Q & A

Updates for EB-2 cases

Q: Have there been any updates on priority dates and demands for EB-2 cases?

A: Based on a discussion with the Visa Office, in October 2012 (beginning of the 2013 fiscal year) the EB-2 cut-off date for China – Mainland born in India, which are currently “unavailable” will move to August or September 2007 (China may be slightly better).  It is unlikely that the cut-off dates will move forward at all for the first two quarters of fiscal year 2013.  If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year.  It also is projected the EB-2 worldwide will be current in 2012.


New Rules for Consular Cases

Q: I read that the USCIS will soon process unlawful presence waivers in the U.S for certain immediate relatives of U.S citizens who are filing immigrant visa applications at a U.S. consulate abroad. Will applicants still have to attend an interview for the visa at the U.S. consulate and if so, how soon can they return to the U.S? What happens if the waiver is denied?

A: Yes, the applicant will still have an immigrant visa interview scheduled at the U.S. consulate. If the waiver is approved, the applicant can immediately return to the U.S. assuming they are otherwise eligible to become permanent residents. This will cut down substantially on the time an applicant will have to remain outside the U.S. after their immigrant visa interview. If the waiver is denied, the USCIS will likely begin deportation proceedings to remove them from the U.S. before they even leave the U.S. for their immigrant visa appointment.


Obtaining Green card by Purchasing a Home

Q: I heard that a foreign national will soon be able to obtain a greencard if he or she buys a home costing at least $500,000. Is that true?

A: Not exactly. A bill has been proposed in the Senate which would grant a 3 year visa that can be renewed if the buyer spends at least $500,000 on residential real estates including at least $250,000 for a primary residence. The buyer must remain in the home or one of at least equal values in order to have the visa renewed.

The reason behind the bill is to help the sluggish housing market by boosting demand.


Filing for Permanent Residency

The process to remove the conditional basis of your green card and to make it permanent involves filing an application with USCIS with documents supporting the fact that you and your spouse are still living together as husband and wife.  If your documents are sufficient, the USCIS will usually approve your application within 6 months without interview.  If an interview is necessary, the USCIS will usually schedule one within 3-6 months. The application should be filed within 3 months of the expiration date of your conditional status.

You may apply for citizenship after you’ve been a conditional resident or permanent resident for a total of 3 years while married to and living together with your U.S citizen spouse.  You are allowed to file for citizenship within 3 months of the expiration of the 3 year period.


Unused EB Numbers

Q: I have read that the EB-2 category for India will be given at least 12,000 additional visa numbers because of decreasing demand for EB-1 visa numbers. I am a Chinese national who filed under EB-2. Why isn’t China getting some of these numbers?

A: The State Department Visa Office is required to allocate unused visa numbers in priority date order. Since there are more applicants from India than China with older priority dates, those applicants with the older priority dates will get the visa numbers first, according to the law. In other words, the people who have waited the longest go first regardless of their country of birth.


California Dream Act

Q: Will the California Dream Act signed into law on July 25, 2011
by Governor Brown allow my children, who do not have their green cards,
to obtain permanent residency after they complete college?

A: The bill, dubbed the California Dream Act does not provide a path to permanent residency for your child as would the federal Dream Act that failed to pass the Senate last year. The California Dream Act that passed is designed to allow undocumented students to receive privately funded scholarships to attend the State’s public colleges and Universities. A separate bill under consideration in the state legislative would allow undocumented students to qualify for publicly funded scholarships as well.


Difference Between L-1 and E Visas

Q: My parent company in Japan wants to transfer me to open a new office in the U.S. for me to manage. What is the major difference between an L-1 and an E visa?  I have heard that L-1 visas are becoming more difficult to obtain.

A: Since the U.S. company is brand new, an L-1 visa is limited to one year to start. After the first year, the U.S. company–if it has expanded its operations and work force–can apply to extend your status in 2-year intervals for a maximum of 7 years if your position is managerial. One of the main advantages of an E visa is that the visa is valid initially for up to 5 years with unlimited renewals at 5-year intervals. Every time the applicant enters the U.S. within the 5-year period, he or she gets a 2-year extension on his or her stay. Also, the applicant for an E visa can bypass the USCIS and can apply directly at the US consulate or embassy.


National Interest Waiver (NIW) Entrepreneurs

Q: I read that the USCIS just announced a new interpretation of the EB-2 immigrant visa category to allow entrepreneurs to obtain employment-based second preference classification and also qualify for a national interest waiver. What are the requirements to qualify under the National Interest Waiver?

A: The entrepreneur must first demonstrate that he or she is a member of the professions, holding an advanced degree, or is an individual of exceptional ability. In order to obtain a national interest waiver, an entrepreneur, even if self-employed, must prove that he or she will serve the national interest to a substantially greater degree than do others in the same field having the same minimum qualifications for the job. For example, an entrepreneur who can demonstrate that his or her business enterprise will create jobs for US workers may qualify for a national interest waiver. The USCIS will look at the entrepreneur’s past record of accomplishments as well as other factors in making that determination.