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    Published on 01-17-2017 09:42 AM

    EB-1 Extraordinary Ability Immigration Cases: Tales from the RFE

    by


    Introduction: The Best of the Best

    In the work that I do as a Houston Immigration Lawyer at Coane and Associates, PLLC, I am primarily involved in the preparation of EB-1 Extraordinary Ability petitions.

    EB-1 petitions are very document intensive – an average one might be anywhere from 400 to 700 pages, and I have prepared them with as many as 1,300 pages of evidence. In addition, many of them are extremely subjective. What, precisely, is “major significance”? What is an “outstanding achievement”? What constitutes a “critical role”? With so much left up to the individual adjudicator’s discretion, it is perhaps not surprising that the Extraordinary Ability petition is not-uncommonly the subject of a Request for Evidence (RFE) in which the USCIS attempts to “clarify” its positions regarding what, exactly, each of these criteria demand, and how they can be met.

    As might also be anticipated, however, these RFE’s often are asking for unnecessary evidence, creating new and unsupported evidentiary standards and even, in some cases, outright ignoring the evidence in front of them. This series explores some of the more interesting assertions the agency has made in RFE’s which they have issued, and how those assertions might be addressed in a response.

    Part 2: Take me to your leader?

    As opposed to the “judging” criterion which we examined in Part 1, 8 C.F.R. §204.5(3)(viii) – asking that the petitioner provide, “Evidence of the petitioner’s performance of a leading or critical role in distinguished organizations,” is very much subject to the subjective opinion of an adjudicator. 8 C.F.R. §204.5(3)(viii). After all, what is a “leading role”? How does somebody show themselves to be working in a “critical” role?

    Providing evidence of a distinguished reputation is not, typically, particularly difficult or questions in the RFE’s we receive. Assuming that the petitioner works for a major corporation, printouts from such sources as the Wall Street Journal, Forbes, or even Wikipedia – coupled with the “about us” from the company website, generally prove to be sufficient. It is in proving the “leading or critical” nature of the petitioner’s roles that the agency seems to run into some roadblocks. While the regulation itself does not define what constitutes a leading or critical role, but, helpfully, the USCIS has provided just such guidance in its own policy. Under USCIS policy, it states that:

    “If a leading role, the evidence must establish that the alien is (or was) a leader. A title, with appropriate matching duties, can help to establish if a role is (or was), in fact, leading. If a critical role, the evidence must establish that the alien has contributed in a way that is of significant importance to the outcome of the organization or establishment’s activities. A supporting role may be considered “critical” if the alien’s performance in the role is (or was) important in that way. It is not the title of the alien’s role, but rather the alien’s performance in the role that determines whether the role is (or was) critical.”

     

    Policy Memorandum PM-602-0005.1, (Dec. 22, 2010) (emphasis added)

     

    While those definitions seem fairly clear, the RFE’s we have received seem to indicate that there is, in fact, a great deal of confusion remaining among USCIS adjudicators regarding how these roles are defined and what the evidence needs to show.

    The first sign of confusion commonly seen in RFE’s received at our Texas Immigration Law office is the common assertion that, “the evidence does not establish that the role the beneficiary has performed in [was] leading and critical.” While the RFE may be worded that way because, typically, a petition will provide evidence that the petitioner has acted in both roles, it is important to point out in the response that ...

    Published on 01-16-2017 11:58 AM

    President Obama’s Change to Cuban Migration Policy, Explained

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    On January 12, the White House announced the end of the “wet-foot, dry-foot” policy towards Cuban migrants. Effective immediately, Cubans who attempt to enter the U.S. unauthorized will be treated the same as other migrants. They will not be automatically “paroled” (granted entry to the United States by an immigration officer), and thus eligible for benefits under the Cuban Adjustment Act, including eligibility for permanent residence after one year.

    The administration also announced that, in light of the increased “normalization” of relations between Cuba and the United States, Cuban migrants will no longer be exempt from expedited removal, where individuals are summarily removed from the country without ever seeing an immigration judge. Also being terminated is a special program offering parole for Cuban medical professionals and their families.

    The administration will retain the Cuban Family Reunification Parole Program, which allows Cuban family members of U.S. permanent residents or citizens to come to the United States while they wait for their immigrant visa to ...

    Published on 01-13-2017 02:14 PM
    Published on 01-12-2017 12:57 PM

    USCIS Drops the Hammer on the EB-5 Program by Announcing a 170% Proposed Increase on the Minimum Investment Amount for Targeted Employment Areas

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    The U.S. Department of Homeland Security (“DHS”) has released a Notice of Proposed Rulemaking that will dramatically change the EB-5 Immigrant Investor Program. DHS has given stakeholders only three months until April 11, 2017 to comment on the proposals. We will provide a more in-depth analysis soon but here are five important observations regarding the proposal:

    1. Huge Increases in Minimum Investment Amount. DHS proposes to increase the standard minimum investment amount from $1 million to $1.8 million. This is an 80% increase. For those investors seeking to invest ...

    Published on 01-12-2017 12:21 PM
    Published on 01-12-2017 08:27 AM

    2017 H1B Education Trends You Need to Know Before Your File

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    2017 H1B Education Trends You Need to Know Before Your File

    It’s the New Year and that means H1B filing season is coming up sooner than you expect. We predict that last years educational trends will still be influential in 2017. Over the past six or seven years, educational trends regarding H1b approval have gotten more strict and specific. At the same time, several recurrent H1B traps have also presented themselves. ...

    Published on 01-11-2017 10:49 AM

    5 Things You Need to Know about New Proposed EB-5 Rulemaking

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    Tomorrow, January 11, 2017, the U.S. Department of Homeland Security (“DHS”) will publish a Notice of Proposed Rulemaking in the Federal Register regarding regulatory changes to the EB-5 Immigrant Investor Regional Center Program. The goal of these proposed changes is to better reflect business realities for Regional Centers and EB-5 immigrant investors, to increase predictability and transparency in the adjudication process, to improve operational efficiency for USCIS, and to enhance the EB-5 Program’s integrity. Stakeholders will be given 90 days, until approximately April 11, 2017, to comment on the proposed regulations, and DHS will then finalize the regulations and implement them.

    Here ...

    Published on 01-11-2017 10:40 AM

    New Legal Framework for Adjudicating NIW Petitions

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    Out with the Old. The EB-2 immigrant visa category is for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business. This visa category generally requires a job offer and a labor certification by the Department of Labor. That means a self-petitioning entrepreneur cannot file an EB-2 visa petition unless he or she qualifies for a National Interest Waiver (NIW).

    Under section 203(b)(2)(B)(i) of the Immigration ...

    Published on 01-11-2017 10:31 AM

    Expert Testimony In Immigration Hearings Live And Telephonic Testimony

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    Introduction
    Telephonic testimony has become accepted practice in many courtrooms and jurisdictions due to both convenience and cost-effectiveness. This paper will explore several advantages of live testimony versus telephonic testimony for the mitigation or forensic clinical expert. Although the examples provided concern immigration hearings, the issues may be applicable to other courtroom settings.

    Reasons to Attend a Hearing
    There are three basic reasons an expert is asked to attend the individual hearing at immigration court.

    1. The lawyer makes the request. This may occur because the lawyer feels that the Immigration Judge needs direct persuasive evidence, the client has difficulty expressing himself, expert testimony can be useful to supplement primary testimony, or there are nuanced mental health, family, or hardship issues that require clarification.

    2. The client makes the request. This may ...

    Published on 01-10-2017 10:30 AM

    Issues for Chinese EB-5 Investors in the Year of the Rooster

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    2017 will be the Year of the Fire Rooster. Speculation is that the Year of the Fire Rooster is going to bring fresh challenges requiring quick wit and practical solutions! This would likely be an accurate prediction as there are many challenges appearing as we start the New Year.

    The start of a new year is a time of reflection and can signify hope for a better future. It’s a time when parents discuss their goals and aspirations for their children. It’s a time for individuals to empower themselves to ensure a stable, secure, and healthy future. At Wolfsdorf Rosenthal LLP, we are proud to have helped hundreds of Chinese immigrant families with EB-5 visa applications in 2016. Our biggest concern is the ever-increasing waiting line for Mainland Chinese born investors. While presently just over 3 years, the line is constantly getting longer, and will soon go to 4 years, 5 years and beyond, unless congress takes steps to resolve this issue by adding more numbers.

    Here are five important matters that current and potential Chinese EB-5 immigrant investors should be paying attention to in the beginning of 2017.

    1. New Currency Control Rules by the Chinese Government. Amid weak domestic growth and an uncertain economic outlook, the Chinese State Administration of Foreign Exchange recently indicated that it wanted to close loopholes to restrict the outflow of capital. Starting January 1, 2017, Chinese individuals desiring to send capital overseas will be required to disclose the purpose of the money transfer, with penalties to be imposed on those for not making an honest statement. For example, Chinese citizens must now pledge that money won’t be used for overseas purchases of property, securities, life insurance, or for immigration purposes; ...

    Published on 01-09-2017 02:03 PM

    Open Letter to Donald Trump

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    Dear Mr. Trump:

    Understanding fully the limitless number of urgent issues on your agenda, I would like to focus your attention on one U.S. immigration program. I do this for two reasons. First, it is a program that is set to expire on April 28, 2017, and will likely be the subject of legislation enacting significant changes before that date. Second, it is an immigration program, that I suggest to you, furthers your Make America Great Again agenda.

    That program is the EB-5 job creating investor program. As you know, both from your own experience and the experience of your son-in-law, EB-5 is an important part of the capital stack used by many real estate developers across the country. As a real estate developer yourself, you ...

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