EB-5 Regional Center List Grows; 2 New FL Projects

[NOTE: USCIS HAS UPDATED THIS LIST AS OF DECEMBER 2008. PLEASE SEE OUR LATEST ARTICLE HERE]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

EB-5 Regional Center Program To Be Extended to March 6, 2009

Congress has extended the EB-5 regional center pilot program through March 6, 2009, having included it in its continuing resolution for fiscal 2009 to fund government operations.

The resolution is now before the President for his signature.

The extension only lasts through March 6, 2009 as Congress continues to debate whether and how to proceed with the pilot program. The program was scheduled to sunset Sept. 30, 2008. The House had approved the extension in H.R. 5569, but the Senate is still reviewing its version of the bill S. 2751.

For investors in the EB-5 regional center pilot program, approval by the President of the continuing resolution means applications should continue processing as visas remain available. We will update our readers if USCIS issues a statement on EB-5 processing in light of the continuing resolution, assuming it is signed by the President.

A continuing resolution is a stopgap spending bill Congress approves when it has not finished its appropriations work by Sept. 30, the end of the government’s fiscal year. If the spending bills are not in place, the government cannot operate.

The continuing resolution is available here. The provision providing for the extension of the EB-5 program is Section 144.

Iraqi Worker Immigrant Visa Open For Application Now

At long last, the new immigrant visa for certain Iraqis who have worked with the U.S. government is now available, USCIS has announced.

USCIS is accepting applications for the promised special immigrant visa for certain Iraqi nationals who worked for, or were contractors of, the United States government in Iraq for at least one year after March 20, 2003 and who have received serious threats because of that work.

The applicant’s spouse and children are eligible to immigrant as well.

The U.S. government announced the creation of the new Iraqi worker visa in January 2008, but delayed implementation until now while it formulated the regulations and procedures for applications.

To be eligible, the applicant must establish he or she:

1. is a national of Iraq;

2. has been employed by, or on behalf of, the U. S. Government in Iraq, on or after March 20, 2003, for a period of not less than one year;

3. provided faithful and valuable service to the U.S. Government, which is documented in a recommendation from the U.S. citizen or national who is the applicant’s senior supervisor, or the U.S. citizen or national currently occupying that position, or a more senior U.S. citizen or national, if the applicant’s senior supervisor has left the employer or left Iraq.

If it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national, then the applicant may request a recommendation from the applicant’s senior supervisor, provided the U.S. citizen or national responsible for the contract co-signs the letter.

The recommendation must be accompanied by the approval of the Chief of Mission (COM) or designee of the COM based upon an independent review of records maintained by the USG or hiring organization or entity to confirm employment and faithful and valuable service;

4. has experienced or is experiencing an ongoing serious threat as a consequence of the applicant’s employment by the U.S. Government, as documented by a risk assessment conducted by the COM or the designee of the COM;

5. has cleared a background check and appropriate screening; 

6. is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence. In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4)) relating to “public charge” shall not apply.

Essentially, applying for this visa is a two-step process. First, the applicant must obtain the approval of the COM of the U.S. embassy. Then, the applicant must seek approval from USCIS. Applications for USCIS approval are made using Form I-360. There is no application or biometric fee for this application.

More information on the eligibility criteria is available here on the USCIS website.  

The State Department has posted additional eligibility and processing information about the visa here.

The regulations authorize 5,000 of these visas per year starting in fiscal year 2008 through 2012. If the numerical limitation is not reached during a given fiscal year, the unused numbers will roll-over into the 5,000 authorized for the following fiscal year. If the numerical limitation for FY 2012 is not reached, any unused numbers from that year may be used in FY 2013. Numbers will not carry forward into FY 2014, said USCIS.

This new program for Iraqi workers is different from the special immigrant visa program for Afghan and Iraqi translators. The new Iraqi worker program though, is available to the group of translators as well. In fact, eligible translators who file or who have filed under the translator program before Oct. 1, 2008 but who are unable to adjust status or receive an immigrant visa because  USCIS has reached the current year’s cap of 500, will have their applications automatically converted to the new program for Iraqi workers, USCIS said. 

The translators whose applications are converted to the new Iraqi worker program do not need to provide any additional documents or meet any other eligibility requirements under the new program as long as they meet the requirements under the translator program. However, individuals who file under the translator program after Sept. 30, 2008 will be subject to an annual cap of 50 for FY 2009, according to USCIS.

USCIS List of EB-5 Regional Centers; 2 New Centers in CA Approved

[NOTE: THE REGIONAL CENTER LIST HAS BEEN UPDATED. PLEASE SEE THE REVISED LIST HERE: EB-5 Regional Center List Grows; 2 New FL Projects]

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

Update On Family Visa Processing Under New Name Check Policy

The immigration service has provided AILA with the following explanation about processing family-based green card applications in light of the new policy regarding name checks that have been pending for more than 180 days:

“Assuming that an application is otherwise ready to be placed into the interview queue, and the only item remaining is the name check, then the application will be placed in the queue in time for the application to be ready to be scheduled for interview as of the 180th day.

If the application is not ready to be placed into the interview queue (for example, if the biometrics have not been taken), then the application will not be placed into the queue, even if the name check has been completed.

NBC reminds AILA members that the Field Offices schedule cases when they have available interview slots. The automated system by which Field Offices schedule interviews automatically schedules applications on a first-in, first-out basis (based on the date the filing was received at USCIS, which usually would be when received at the Lockbox), once the NBC identifies a case as interview ready.”

For more information, see our other articles: Updated Q and A Re USCIS New Name check Policy Available, How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks. 

Naturalization Delays? What You Can Do About It

While permanent residency applicants were pleasantly surprised by the new USCIS policy allowing adjudication of applications with FBI name checks pending for more than 180 days, naturalization applicants in the same situation were disappointed to learn no such remedy is in sight for them.

So what can you do if your naturalization application is stuck in the FBI name check black hole?

One option is to file a lawsuit against USCIS and the FBI for unreasonably delaying the processing of your case. This lawsuit, known as a mandamus action, enables plaintiffs to request the court to order USCIS and the FBI to do their jobs by adjudicating the case, or in the alternative, conduct a new naturalization hearing before the judge.

Immigrants who have been waiting for years for their application to be processed have been filing such suits in federal courts around the country, generally with success.

AILF (American Immigration Law Foundation) provides an overview of the status of these delayed naturalization lawsuits on its website here.

Additional information on the use of mandamus for other DHS applications, as well as naturalizations is available through AILF here.

These lawsuits for delayed naturalization adjudications are based on INA § 336(b) (8 U.S.C. § 1447(b) ), which requires the government to make a determination on naturalization applications within 120 days of the “examination.”

If the application is not adjudicated 120 days after the “examination is conducted,” under INA § 336(b) an applicant may file a petition in district court seeking judicial adjudication of the application (i.e. the court holds its own naturalization hearing) or return it to USCIS with an order to finish processing it in a timely manner. [Note: With this latter option, you are not asking the court to approve your case. Rather, you are asking the court to compel USCIS to complete processing of your case.]

The hurdle to getting these cases into court centers on the question of whether the FBI name check is considered part of the “examination” so as to provide the court with jurisdiction to hear the mandamus action.

The government argues that the “examination” encompasses the entire process of gathering information about an applicant, including the completion of the FBI check, explains AILF. Thus, the government says, if the FBI check still is pending, the 120-day clock has not started ticking.

The plaintiffs, however, argue the 120-day period runs from the date of the naturalization interview.

Across the country, the courts are agreeing with the plaintiffs that jurisdiction exists even if the name check is not complete. A few holdouts remain, though, so it is important to know the status of the law in your jurisdiction before filing a case.

As to the remedy granted to plaintiffs, most courts have been choosing to remand applications to USCIS for decisions within a specified time frame rather than to conduct naturalization hearings. 

As these mandamus lawsuits have become more and more popular and effective, USCIS is coming up with new policies designed to thwart prospective plaintiffs.

For example, in April 25, 2006, the USCIS announced it will schedule naturalization interviews only after the FBI name check has also cleared, thereby avoiding the triggering of the 120-day clock that has served as the basis for the lawsuits.

In addition, in the early days, when a mandamus lawsuit was filed, USCIS would react by requesting the FBI to expedite the name check for processing. On February 20, 2007, however, USCIS announced that it will no longer make expedite requests based merely on filing a lawsuit.

AILF says the extent to which this new policy affects mandamus actions is still unclear. It says practitioners continue to report that the government is mooting mandamus actions by taking the action requested in the complaint; other practitioners, however, report that the U.S. Attorneys are defending the government more aggressively than in the past.

Attorney Fees

Winning plaintiffs can seek attorney’s fees and costs for pursuing their mandamus actions in federal courts under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq. The courts, though, will only award attorney’s fees when there has been some sort of court order demonstrating that the plaintiff was the “prevailing party.”

A prevailing party can be established, for example, by a judgment in the plaintiff’s favor, or perhaps a settlement agreement or consent decree approved by the court.

If the government, however, takes the action prior to and in the absence of a court order, attorney’s fees are not recoverable.

For more on EAJA fees, see AILF’s discussion here.

AZ Employer Sanctions Law Upheld By Federal Court; Plaintiffs to Appeal Ruling

The controversial Arizona state law that threatens employers with closure of their business for hiring unauthorized workers passes Constitutional muster, ruled a federal district court judge.

States Cracking Down on Unauthorized Employment; Employers Fighting Back

Lately it seems the media has been teeming with stories on the backlash in states that have introduced legislation requiring employers to use a maligned federal database to verify a worker’s social security number.

In the past year or so, more and more states are contemplating or have already implemented legislation that compels employers to verify work authorization using the federal electronic verification program, called E-verify.

This week alone media reports on opposition to the forced use of the E-verify system included California, Texas, Arizona  and Kansas. Employers in Oregon are also rallying against proposed regulations targeting undocumented workers.

Consular Visa Fees to Increase in January 2008

Consular immigrant and nonimmigrant visa fees will increase in January 2008, according to the American Immigration Lawyers Association (AILA).

AILA learned that as early as this week the Department of State (DOS) will publish the fee increases in the Federal Register with an effective date of Jan. 1, 2008. Nonimmigrant visa fees reportedly will rise from $100 to $131 and immigrant visa fees will go up by $20.

Some pre-paid visa fees may be grandfathered, but the details will not be known until they appear in the Federal Register notice.

AILA says the increase and its suddenness result from the FBI’s success in obtaining approval from the Office of Management and Budget (OMB) to charge DOS almost $20 per fingerprint for records clearance. Other justifications for the $31 nonimmigrant visa fee increase include the costs of systems that have already been in place.

Updated List of Regional Centers for EB-5 Immigrant Investor Pilot Program as of October 2007

PUBLISHER’S NOTE: SEE OUR UPDATED LIST AS OF MAY 2008 HERE USCIS LIST OF APPROVED REGIONAL CENTERS; 2 NEW CENTERS IN CA APPROVED.  

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated

In November 2007, USCIS released to AILA the following list of “active” regional centers as of October 2007.

Regional Centers that may have been approved, but were not designated as “active” by USCIS are not included in this list.

As the status of these Regional Centers as participants in the Pilot Program can change, before investing any money, verify the center is still approved and active in the Pilot Program.

For more information on the EB-5 Immigrant Investor visa see our other article EB – 5 Permanent Residency through Investment.

In alphabetical order by state, the Regional Centers deemed “active” as of March 2007 include:

EB-2: Advanced Degrees or Exceptional Abilities

Overview: The second-preference, employment-based immigrant visa is available to the following two subcategories of foreign nationals: 1) members of the professions holding an advanced degree or its equivalent or 2) foreign nationals who possess exceptional abilities in the sciences, arts, or business.

Once an approved labor certification is obtained through PERM or a foreign national qualifies for the streamlined labor certification process under Schedule A II, a foreign national can then file for an immigrant visa with USCIS.  (The PERM labor certification process is described in our other article PERM Labor Certification for Immigrant Work Visas and the Schedule A II process is described in Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability.)

Professionals holding an advanced degree or its equivalent

Eligibility criteria: To be eligible for this category, the foreign national must be working in certain fields deemed “professions” and must hold an advanced degree or its equivalent.

What types of jobs are considered “professions”?

The term “profession” includes, but is not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. 8 CFR 101(a)(32). USCIS also considers professions to include any other occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

What is considered an advanced degree or its equivalent?

An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the foreign national must have a U.S. doctorate or a foreign equivalent degree.

Supporting documentation required: To establish the foreign national holds an advanced degree, he or she will need to submit an official academic record showing that the foreign national has a United States advanced degree or a foreign equivalent degree.

To establish degree equivalency, the foreign national must submit an official academic record showing that the foreign national has a United States baccalaureate degree or a foreign equivalent degree, and letters from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty.

Foreign nationals with “exceptional ability” in the sciences, arts, or business

Eligibility criteria: To be eligible for this category the foreign national must possess an “exceptional ability” in the sciences, arts or business and be offered a job in his area of specialty.

What is considered “exceptional ability.”

The 8 CFR 204.5(k)(2) defines “exceptional ability” as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The USCIS “exceptional ability” standard is different from that of DOL; it is actually a slightly lower standard. Thus, if a foreign national meets the DOL standard for exceptional ability he or she should also be able to meet the USCIS standard.

Supporting documentation: To establish “exceptional ability” the foreign national must submit supporting documentation for at least three of the following:

(A) An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the foreign national has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above standards do not apply to the foreign national’s occupation, other comparable evidence of eligibility is also acceptable.

Application requirements: For either subcategory, the employer must file the labor certification (Form ETA 9089) and Form I-140 along with the requisite supporting documentation with USCIS. If the I-140 is approved, the foreign national can they apply for permanent residency (green card).

Employer requirement: The employer must establish it has the ability to pay the wage offered to the foreign national. Evidence of this ability can be in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer has 100 or more workers, USCIS may accept a statement from the company’s financial officer which establishes the ability to pay the proffered wage. In some cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted or requested by USCIS.

Quotas: There are worldwide and country-wide quotas. Whether a country is backlogged is shown on the monthly State Department visa bulletin. Visa availability and cut-off dates can change monthly, moving backwards or forwards. The countries that traditionally have been vulnerable to backlogs in the employment-based categories are China and India.

PERM Labor Certification for Immigrant Work Visas

What is labor certification?

Certain employment-based immigrant visas require approval from two different agencies: the Department of Labor (DOL) and USCIS. The approval required from the DOL is the first step and is known as labor certification.

To obtain labor certification from DOL, the employer must establish no Americans are qualified for and want the particular job and the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed US workers. The process for doing so is known as PERM, which stands for Permanent Electronic Review Management.

(Please note: The PERM labor certification process for EB-2 and EB-3 categories is not necessary if the foreign national possesses an “exceptional ability” in the sciences, arts or performing arts, known as Schedule A II occupations. See our related article Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability)

What are the requirements of PERM

PERM describes the recruitment procedures an employer must follow in order to obtain a labor certification from the DOL. The PERM procedures vary somewhat depending on whether the job is a professional or non-professional job. Also, special procedures exist for sheepherders, college or university teachers and professors, and Schedule A occupations.

This article will only address requirements for professional and non-professional jobs.

General job requirements: The position offered must be full-time, permanent (as opposed to seasonal or temporary) and it must be a bona fide job opening available to U.S. workers. The employer must pay at minimum the prevailing wage for that type of position in the region of intended employment.

The job requirements must conform to what is normally required for the occupation in the United States. It may not be tailored to the desired foreign worker’s qualifications and it cannot be unduly restrictive, such as requiring foreign language capability, unless these restrictive requirements can be established to arise out of business necessity.

Recruitment steps: PERM requires the employer to follow a series of recruitment steps, the details of which differ depending on if the job is a professional or non-professional occupation.

Professional Occupations

20 CFR 656.3 defines a professional occupation as “an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement.” Work experience may be accepted in lieu of a degree, however, provided certain PERM recruiting and application procedures are followed. Generally, the law requires that if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on Form ETA 9089, the Application for Permanent Employment Certification form.

In addition, alternative recruiting procedures exist for college and university teachers, which is outside the scope of this article.

Types of advertising: There are several forms of advertising and recruitment an employer must conduct as part of the labor certification process, including:

• Mandatory advertising:  There are two forms of mandatory advertising: The position must be advertised 1) via a job order placed with the state and 2) in two print advertisements (i.e. Sunday newspaper and a professional journal).  This advertising must be conducted at least 30 days, but no more than 180 days, before the filing of the application.

• Additional recruitment steps: The employer must do at least three of the 10 recruiting steps named in the list below. Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the labor certification application. None of the steps may have taken place more than 180 days prior to filing the application.

1. Job fairs.

2. Employer’s Web site.

3. Job search Web site other than the employer’s.

4. On-campus recruiting.

5. Trade or professional organizations.

6. Private employment firms.

7. Employee referral program with incentives.

8. Campus placement offices.

9. Local and ethnic newspapers.

10. Radio and television advertisements.

Non-Professional Occupations

For a non-professional job, the employer must at a minimum, place a job order with the state and advertise in two different Sunday editions of a general circulation newspaper. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.

No other recruitment steps are required.

Labor Certification Employee Notice Requirement: The employer must give notice of the intent to file a labor certification application in connection with the available position to the employees’ bargaining representative. If no such representative exists, the employer must inform its employees by posting a notice in a conspicuous place at the job site for 10 days. This posting must take place between 30 and 180 days of filing the labor certification application. The notice must also be published on any in-house media.

 

Post-advertising requirements: After advertising, the employer must interview all qualified candidates who responded to the advertisements. For all candidates not selected, the employer must document the reason. The employer must prepare a recruitment report for submission to the DOL describing the recruitment steps taken and the outcome.

Employers must keep in mind that a U.S. worker is considered qualified for the job if the worker can acquire the skills necessary to perform the job duties during a reasonable period of on-the-job training. In other words, an employer cannot reject a U.S. worker because he lacks the necessary skills if that worker can acquire the skills through on-the-job training.

The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the DOL prior to rendering a final determination.

Application Process: Once the recruitment phase is finished the employer will fill out DOL Form ETA 9089, Application for Permanent Employment Certification and file it electronically with the DOL. Paper submissions are also accepted. When an approved labor certification is received, the employer may then file the I-140 immigrant visa petition. Upon receiving an approved I-140, the foreign national can then apply for an immigrant visa at his home consulate. If the foreign national is already in the U.S. he can apply for permanent residency based on the approved I-140.

Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability

Obtaining an immigrant visa for a foreign national in the employer-sponsored second-preference (EB-2) or third-preference (EB-3) categories generally is a two-step process requiring both Department of Labor (DOL) and USCIS approval. The first step is obtaining an approved labor certification from DOL. The second step is obtaining an approved immigrant petition from USCIS.

(More information on this process as it relates to specific types of employment can be found in our other articles under the category of Work Visas – Immigrant. )

There are certain jobs, however, that enjoy a streamlined processing of the first step, labor certification, because DOL has already pre-determined that insufficient American workers exist to fill them. These jobs are known as Schedule A occupations and can be found at 20 CFR 656.5. This article focuses on Group II of Schedule A, those with “exceptional ability.”

Specifically, the streamlined process avoids the time-consuming recruitment formalities of PERM for those foreign nationals who can demonstrate an “exceptional ability” in either: 1) Sciences or Arts or 2) Performing Arts. For both categories, the key issue is international recognition. A person who has received national, but not international recognition, does not meet the “exceptional ability” standard.

Sciences or Arts

This group includes foreign nationals who have an exceptional ability in the sciences or arts, including college and university teachers, who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States.

For purposes of this group, 20 CFR 656.5(b)(1) defines the term “science or art” as any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.

A foreign national need not have studied at a college or university in order to qualify for the Group II occupation. Instead, sufficient experience can be used to establish the applicant meets the “exceptional ability” criteria.

How to Prove “Exceptional Ability” for the Sciences and Arts?

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing 1) the widespread acclaim and international recognition accorded the foreign national by recognized experts in the foreign national’s field; 2) documentation showing the foreign national’s work in that field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability; and 3) documentation about the foreign national from at least two of seven identified categories involving receipt of prizes, published or authored articles and other prestigious honors.

1. The widespread acclaim and international recognition accorded the foreign national by recognized experts.

This criterion may be met by submitting reference letters from a diverse group of recognized experts in the field of the foreign national’s “exceptional ability.” The letters should discuss both the foreign national’s accomplishments and where those accomplishments have been recognized. In other words, the recognition must be international in scope, meaning that the letter writers should come from different parts of the world, not just one country, or the letters should refer to the foreign national’s accomplishments in various countries.

2. The foreign national’s work in the field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability.

This criterion involves proving three points: 1) the foreign national has at least one year of experience; 2) the foreign national’s work during the past year required exceptional ability; and 3) the future work in the U.S. will require exceptional ability.

To establish the first point, the experience must have been gained during the year prior to application. In other words, if an applicant worked for a year, then took a year off, and now wants to apply under this program, he will not be eligible. He must return to work again for a year before applying.

For the second and third points, the foreign national should submit letters from recognized experts explaining how the past and future work can only be performed by someone with the “exceptional ability” such as the foreign national. In addition, the foreign national’s employer(s), past and future, should also submit letters confirming the past and future positions require someone with exceptional skills.

3. Confirmation the foreign national has fulfilled at least two of the following seven categories:

• Documentation of the foreign national’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought;

• Documentation of the foreign national’s membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;

• Published material in professional publications about the foreign national, about the foreign national’s work in the field for which certification is sought, which shall include the title, date, and author of such published material;

• Evidence of the foreign national’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought;

• Evidence of the foreign national’s original scientific or scholarly research contributions of major significance in the field for which certification is sought;

• Evidence of the foreign national’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation;

• Evidence of the display of the foreign national’s work, in the field for which certification is sought, at artistic exhibitions in more than one country.

Performing Arts

This group includes foreign nationals of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

How to Prove “Exceptional Ability” in the Performing Arts

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing: 1) the foreign national’s work during the past year did, and the foreign national’s work will, require exceptional ability; and 2) must submit documentation to show this exceptional ability. The DOL provides a list of suggested documentation, as follows, but does not specify how many of the categories must be addressed. The more evidence submitted, however, the greater the chance of success. The evidence requested by DOL includes:

• Documentation attesting to the current widespread acclaim and international recognition accorded to the foreign national, and receipt of internationally recognized prizes or awards for excellence;

• Published material by or about the foreign national, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated);

• Documentary evidence of earnings commensurate with the claimed level of ability;

• Playbills and star billings;

• Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the foreign national has appeared or is scheduled to appear; and/or

• Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the foreign national has performed during the past year in a leading or starring capacity.

Other General Requirements: Prior to submission of the application, the employer is required to post notice of the intended labor certification filing at the place of the foreign national’s employment for 10 days. It also must be posted in any in-house media normally used to recruit for similar positions.

The foreign national’s pay must be equal to or more than the state workforce agency’s prevailing wage determination.

Application Process: The employer must fill out and sign the labor certification form (Form ETA 9089) and submit it in duplicate to USCIS along with the I-140 and all supporting documentation. Whether the foreign national should apply for EB-2 or EB-3 will depend on the foreign national’s qualifications and other considerations such as visa availability.

DV (Green Card) Lottery Applications Due by Dec. 2, 2007

It’s that time of year again. The Department of State is accepting applications for its annual visa lottery.

The Diversity Visa (DV) Lottery 2009 application and instructions are available on the DOS website. Applications will be accepted through noon (12 p.m.), Eastern Standard Time, Sunday, Dec. 2007.

The DV Lottery is the annual program that provides a maximum of up to 55,000 immigrant visas each fiscal year to randomly selected eligible persons from countries with low rates of immigration to the United States.

The eligibility requirements to enter the lottery are simple. The applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. Whether an occupation requires the two years or more of training is determined by the U.S. Department of Labor via the O*Net OnLine database.

Applicants must strictly follow the application process, including photo requirements, or the entry will be rejected. In addition, only one entry per applicant may be filed. If an applicant files more than one entry, the applicant will be disqualified.

Applications may be filed only online. Paper submissions are not accepted.

Individuals born in the following countries are NOT eligible to apply because they have sent more than 50,000 immigrants to the U.S. over the period of the previous five years:

Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. However, persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Please note that if you were born in one of the above ineligible countries, you may still be eligible based on your spouse’s or a parent’s country of birth. The DV Lottery instructions contain more information about the requirements for eligibility in this situation and should be read carefully.

Winners will be notified by mail between May and July 2008 and will be provided further instructions at that point. Those selected in the random drawing are NOT notified by email. Every year, spam emails circulate the world claiming the recipient to be a DV Lottery winner. These emails are fraudulent and should be reported to the U.S. government.

There is NO fee for entering the DV Lottery. Lottery winners, though, will have to pay the visa fee applicable to their country if they are approved.

Applicants should be skeptical of any unsolicited offers to apply on their behalf or making guarantees of winning. While there are legitimate companies that offer useful information about the DV Lottery and assistance with the technical requirements, some are scams preying on the hopeful. Accordingly, the U.S. government has issued this warning in its instructions:

Some websites may try to mislead customers and members of the public into thinking they are official websites and may contact you by email to lure you to their offers. These websites may attempt to require you to pay for services such as forms and information about immigration procedures, which are otherwise free on the Department of State Visa Services website, or overseas through the Embassy Consular Section websites. Additionally, these other websites may require you to pay for services you will not receive, often including diversity immigration application and visa fees in an effort to outright steal your money. Once you send money in one of these scams, you will never see it again. Also, you should be wary of sending any personal information that might be used for identity fraud/theft to these websites.

If you receive an email solicitation by someone claiming to be the U.S. government, in particular, first look at the email or any referenced website address. The only official government internet sites on the DV Lottery are those with the “.gov” indicator. All others are fraudulent and should be reported to any one of these sites: econsumer.gov, a joint effort of consumer protection agences from 17 countries, or the Federal Bureau of Investigation (FBI) Internet Crime Complaint Center or IC3. Any other internet fraud related to the DV Lottery should also be reported to those sites. To file a complaint about unsolicited email in particular, go to the Department of Justice anti-spam site.

Furthermore, regardless of any claims made by one of these services, whether you pay someone to fill out and submit the application for you, or you do it yourself, your chance at winning is the same, provided you have completed the application properly.

For more information about the DV Lottery 2009 program, the State Department has posted detailed instructions on its website. Read them carefully, follow them precisely and …

Good Luck!

LIST OF REGIONAL CENTERS FOR EB-5 IMMIGRANT INVESTOR PILOT PROGRAM

NOTE: This list is from May 2007. See our updated list of active regional centers as of October 2007 here.  

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated

In May 2007, USCIS released to AILA the following list of regional centers that were “active” as of March 30, 2007. In addition, since the release of that list, two new centers have been approved: the Alabama Center for Foreign Investment Regional Center and the Southwest Biofuels Regional Center (see details below).

Regional Centers that may have been approved, but were not designated as “active” by USCIS are not included in this list.

As the status of these Regional Centers as participants in the Pilot Program can change, before investing any money, verify the center is still approved and active in the Pilot Program.

For more information on the EB-5 Immigrant Investor visa see our other article EB – 5 Permanent Residency through Investment.

In alphabetical order by state, the Regional Centers deemed “active” as of March 2007 include: