Why Don't You Have My Case at the NVC Yet?
When you complete a petition (I-130, I-140, etc.) for an immigrant visa, you send it to United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security for approval. If the USCIS approves the petition and you wish to process for a visa outside the United States, the USCIS will send you a Notice of Approval (I-797) and send the petition to the NVC. It often takes longer for the petition to arrive at the NVC than for you to receive your Notice of Approval. Therefore, we recommend that you wait at least three weeks after you get your Notice of Approval before calling the NVC.
I Am the Beneficiary (applicant) and My Case Is at NVC. Now What Happens?
If a visa is available for your petition (or if the Department of State believes that one will be available in the next several months), the NVC will send you, the beneficiary, a Choice of Agent and Address letter containing the form DS-3032 and instructions for completing the form. If you are the beneficiary of an I-130 petition, the NVC will send your petitioner an Affidavit of Support (AOS) Processing Fee Bill Invoice along with instructions for paying the AOS fee.
If visas are not available for your visa category, the NVC will notify you that the NVC received your petition and will hold it until a visa becomes available.
How Do I Pay the Fees Associated with the National Visa Center’s (NVC) Services?
The NVC will send the Affidavit of Support (AOS) Processing Fee Bill Invoice (if applicable) and the Immigrant Visa Application Processing Fee Bill Invoice when the fees become due. You must follow the payment instructions in the fee bill letter you will receive from the NVC.
Note: It is important to follow the NVC’s instructions carefully. Sending the NVC documentation (or paying fees) when they were not requested by the NVC will delay your visa.
How Much Are the Fees for Immigrant Visas?
For current fee amounts for Immigrant Visa Application Processing, Affidavit of Support Review, and Immigrant Visa Security Surcharge, see Fees for Visa Services.
I Am in the United States and Would Like to Adjust My Status. How Do I Do That?
When a visa is available for your petition (or if the Department of State believes that one will be available in the next several months), the NVC will send you a letter asking what you plan to do. If you respond that you plan to adjust your status, the NVC will hold your file until a USCIS office requests it. If you do not reply, after 30 days, the NVC will begin processing your petition.
Requests for adjustment of status are processed by USCIS not by the NVC. You should contact the USCIS office nearest you for adjustment of status information.
I Am Adjusting My Status with USCIS, What Do I Do About the Fees Requested by the NVC?
If you are planing to adjust status with USCIS, do not submit any fee payments to the NVC. Notify the NVC of your intent to adjust status and contact the USCIS for further information.
Wednesday, August 31, 2011
Tuesday, August 30, 2011
Justice Department Settles Allegations of Immigration-related Employment Discrimination Against Catholic Healthcare West
WASHINGTON – In October 2010, the Justice Department announced that it had reached a settlement agreement with Catholic Healthcare West (CHW) to resolve allegations that CHW engaged in a pattern or practice of citizenship status discrimination by imposing unnecessary and discriminatory hurdles to employment for work-authorized individuals. CHW is the eighth largest hospital provider in the nation, operating facilities in California, Nevada and Arizona.
According to the department’s findings, CHW required non-U.S. citizen and naturalized U.S. citizen new hires to present more work authorization documents than required by federal law, but permitted native born U.S. citizens to provide documents of their own choosing. The Immigration and Nationality Act (INA) prohibits employers from imposing different or greater employment-eligibility verification (I-9) standards on the basis of a worker’s citizenship status.
Under the terms of the settlement, CHW agreed to pay $257,000 in civil penalties –the largest amount of civil penalties ever paid to resolve such allegations – and $1,000 in back pay to the charging party. CHW has also agreed to review its past I-9 practices at all of its 41 facilities in order to identify and compensate any additional victims of over-documentation who have lost wages as a result, and to devise and implement policies and procedures for ensuring best practices with regard to hiring and employment eligibility verification. Further, CHW has agreed to train its recruitment personnel on their responsibilities not to discriminate and provide periodic reports to the department for three years.
"All workers who are authorized to work in the United States have the right to look for a job without encountering discrimination because of their immigration status or national origin," said Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division. "We are pleased to have reached a settlement with CHW and look forward to continuing to work with public and private employers to educate them about anti-discrimination protections and employer obligations under the law."
The Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals against discrimination in hiring, firing, and recruitment or referral for a fee on the basis of citizenship status and national origin. The INA also protects all work-authorized individuals from discrimination in the employment-eligibility verification process and from retaliation.
According to the department’s findings, CHW required non-U.S. citizen and naturalized U.S. citizen new hires to present more work authorization documents than required by federal law, but permitted native born U.S. citizens to provide documents of their own choosing. The Immigration and Nationality Act (INA) prohibits employers from imposing different or greater employment-eligibility verification (I-9) standards on the basis of a worker’s citizenship status.
Under the terms of the settlement, CHW agreed to pay $257,000 in civil penalties –the largest amount of civil penalties ever paid to resolve such allegations – and $1,000 in back pay to the charging party. CHW has also agreed to review its past I-9 practices at all of its 41 facilities in order to identify and compensate any additional victims of over-documentation who have lost wages as a result, and to devise and implement policies and procedures for ensuring best practices with regard to hiring and employment eligibility verification. Further, CHW has agreed to train its recruitment personnel on their responsibilities not to discriminate and provide periodic reports to the department for three years.
"All workers who are authorized to work in the United States have the right to look for a job without encountering discrimination because of their immigration status or national origin," said Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division. "We are pleased to have reached a settlement with CHW and look forward to continuing to work with public and private employers to educate them about anti-discrimination protections and employer obligations under the law."
The Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals against discrimination in hiring, firing, and recruitment or referral for a fee on the basis of citizenship status and national origin. The INA also protects all work-authorized individuals from discrimination in the employment-eligibility verification process and from retaliation.
Monday, August 29, 2011
USCIS Launches Spanish-Language Version of E-Verify Self Check
WASHINGTON — On August 15, U.S. Citizenship and Immigration Services (USCIS) announced that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah and Washington. Today’s announcement expands on the initial launch of Self Check in March 2011 for residents who reside in Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia.
“Self Check equips workers with fast, secure access to their employment eligibility information before they apply for jobs,” said USCIS Director Alejandro Mayorkas. “By offering Self Check to Spanish speakers and making the service more widely available, USCIS makes good on a promise to streamline and protect the integrity of the E-Verify process for employees and employers alike.”
Self Check is the first online service offered directly to U.S. workers by E-Verify, a Department of Homeland Security program administered by USCIS in partnership with the Social Security Administration. Employers use the Internet-based E-Verify service to determine employees’ eligibility to work in the United States through information reported in the employee's Form I-9 (Employment Eligibility Verification).
When workers over the age of 16 use Self Check to confirm their eligibility to work in the United States, they enter the same information that employers would enter into E-Verify. Self Check allows users to compare their information to the same databases that E-Verify accesses, giving them an opportunity to address any existing data mismatches before they are hired by an E-Verify-participating employer.
USCIS will continue to evaluate and improve the Self Check service, which it intends to expand nationwide by spring 2012.
For more information on Self Check, please visit www.uscis.gov/selfcheck.
“Self Check equips workers with fast, secure access to their employment eligibility information before they apply for jobs,” said USCIS Director Alejandro Mayorkas. “By offering Self Check to Spanish speakers and making the service more widely available, USCIS makes good on a promise to streamline and protect the integrity of the E-Verify process for employees and employers alike.”
Self Check is the first online service offered directly to U.S. workers by E-Verify, a Department of Homeland Security program administered by USCIS in partnership with the Social Security Administration. Employers use the Internet-based E-Verify service to determine employees’ eligibility to work in the United States through information reported in the employee's Form I-9 (Employment Eligibility Verification).
When workers over the age of 16 use Self Check to confirm their eligibility to work in the United States, they enter the same information that employers would enter into E-Verify. Self Check allows users to compare their information to the same databases that E-Verify accesses, giving them an opportunity to address any existing data mismatches before they are hired by an E-Verify-participating employer.
USCIS will continue to evaluate and improve the Self Check service, which it intends to expand nationwide by spring 2012.
For more information on Self Check, please visit www.uscis.gov/selfcheck.
Monday, August 15, 2011
Entrepreneurs & Employment-Based Second Preference Immigrant Visa Category FAQ: Part II
NATIONAL INTEREST WAIVER
Q. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
A. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.
A. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.
Q. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.
A. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.
Q. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
A. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
Q. Is there a definition of “national interest”?
A. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
A. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:
The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.
Q. What are the three prongs laid out in the NYSDOT decision?
A.
Q. What are the three prongs laid out in the NYSDOT decision?
A.
1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Q. How does the first prong of NYSDOT relate to entrepreneurs?
A. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.
A. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.
Q. How does the second prong of NYSDOT relate to entrepreneurs?
A. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.
A. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.
Q. How does the third prong of NYSDOT relate to entrepreneurs?
A. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.
A. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.
NYSDOT states:
“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”
The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.
Friday, August 12, 2011
Entrepreneurs & Employment-Based Second Preference Immigrant Visa Category FAQ: Part I
Q. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
A. The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2). The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).
Q. What is the EB-2 Immigrant Visa Category?
A. Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:
- Members of the professions holding advanced degrees or their equivalent, and
- Individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
Q. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
A. No, not every individual with an advanced degree will qualify. It must be demonstrated that the occupation is a profession. The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.
Q. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A. Yes. An entrepreneur can qualify if the:
- Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
- Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
- Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Entrepreneur meets all the specific job requirements listed on the individual labor certification
Q. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A. Yes. An entrepreneur can qualify if the:
- Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
- Entrepreneur will be working in the sciences, arts, or business
- Entrepreneur has exceptional ability in the sciences, arts, or business
- Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Entrepreneur meets all the specific job requirements listed on the individual labor certification.
Q. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
A. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.
Q. How is exceptional ability defined?
A. 8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Q. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
A. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii). The criteria are:
(A)An official academic record showing that the beneficiary 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 beneficiary 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 beneficiary has commanded a salary, or other remuneration 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
It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability. This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.
Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Q. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
A. Yes. 8 CFR 204.5(k)(3)(iii), states:
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above. Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification. USCIS will take into account the totality of the circumstances when reviewing the evidence provided.
When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation.
There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted. For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.
Q. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
A. Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit. For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.
As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States. It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas.
A. The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2). The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).
Q. What is the EB-2 Immigrant Visa Category?
A. Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:
- Members of the professions holding advanced degrees or their equivalent, and
- Individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
Q. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
A. No, not every individual with an advanced degree will qualify. It must be demonstrated that the occupation is a profession. The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.
Q. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A. Yes. An entrepreneur can qualify if the:
- Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
- Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
- Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Entrepreneur meets all the specific job requirements listed on the individual labor certification
Q. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A. Yes. An entrepreneur can qualify if the:
- Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
- Entrepreneur will be working in the sciences, arts, or business
- Entrepreneur has exceptional ability in the sciences, arts, or business
- Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Entrepreneur meets all the specific job requirements listed on the individual labor certification.
Q. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
A. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.
Q. How is exceptional ability defined?
A. 8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Q. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
A. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii). The criteria are:
(A)An official academic record showing that the beneficiary 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 beneficiary 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 beneficiary has commanded a salary, or other remuneration 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
It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability. This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.
Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
Q. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
A. Yes. 8 CFR 204.5(k)(3)(iii), states:
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above. Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification. USCIS will take into account the totality of the circumstances when reviewing the evidence provided.
When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation.
There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted. For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.
Q. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
A. Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit. For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.
As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States. It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas.
Thursday, August 11, 2011
USCIS Initiatives to Promote Startup Enterprises and Spur Job Creation Fact Sheet
Background
On Aug. 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment. These initiatives will allow the U.S. to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.
Introduction
The following actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. These measures have been one key focus of the President's Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.
Availability of EB-2 National Interest Waivers to Entrepreneurs
Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue. USCIS will also conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.
The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.
Availability of H-1B Visas to Entrepreneurs
Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. USCIS has updated existing FAQs to clarify this issue.
New Procedures for Processing EB-5 Petitions
USCIS is enhancing the EB-5 immigrant investor program by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS will begin implementing the first of these enhancements within 30 days.
Premium Processing Service Available to Additional Employment-Based Visa Categories
USCIS will also expand its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns. With this addition, nearly all employment-based petitions and applications will have the option of Premium Processing.
New Engagement Opportunities for Entrepreneurs and Startup Companies
USCIS is committed to open and transparent communication with stakeholders. The Office of Public Engagement will host a series of meetings to discuss issues of importance to foreign entrepreneurs and start-up companies. These engagements will provide USCIS with valuable stakeholder feedback on how entrepreneurs and start-up companies can be eligible for employment-based visa categories. USCIS will host the first of these engagements today, on August 11, 2011.
USCIS is also launching Conversations with the Director, a new series of small group meetings with Director Mayorkas to discuss immigration issues important to communities around the country. The first meeting will take place the week of August 15, 2011, and will focus on economic development and the EB-5 investor program.
On Aug. 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment. These initiatives will allow the U.S. to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.
Introduction
The following actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. These measures have been one key focus of the President's Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.
Availability of EB-2 National Interest Waivers to Entrepreneurs
Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue. USCIS will also conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.
The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.
Availability of H-1B Visas to Entrepreneurs
Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. USCIS has updated existing FAQs to clarify this issue.
New Procedures for Processing EB-5 Petitions
USCIS is enhancing the EB-5 immigrant investor program by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS will begin implementing the first of these enhancements within 30 days.
Premium Processing Service Available to Additional Employment-Based Visa Categories
USCIS will also expand its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns. With this addition, nearly all employment-based petitions and applications will have the option of Premium Processing.
New Engagement Opportunities for Entrepreneurs and Startup Companies
USCIS is committed to open and transparent communication with stakeholders. The Office of Public Engagement will host a series of meetings to discuss issues of importance to foreign entrepreneurs and start-up companies. These engagements will provide USCIS with valuable stakeholder feedback on how entrepreneurs and start-up companies can be eligible for employment-based visa categories. USCIS will host the first of these engagements today, on August 11, 2011.
USCIS is also launching Conversations with the Director, a new series of small group meetings with Director Mayorkas to discuss immigration issues important to communities around the country. The first meeting will take place the week of August 15, 2011, and will focus on economic development and the EB-5 investor program.
Wednesday, August 10, 2011
USCIS Announces End of Parole Program in Moscow – Part II: FAQs
Q. Why has USCIS stopped authorizing parole to this group of individuals?
A. Parole allows a person to enter the United States but does not provide a path to permanent immigration status. Because the provision in the Lautenberg Amendment that allows adjustment of status to lawful permanent resident status for denied refugee applicants who are paroled will expire September 30, 2011, USCIS will not continue to offer parole to persons who are not eligible to adjust their status.
Q. What happens to someone who is denied refugee status and is not authorized parole?
A. If you are denied refugee status and not offered parole, you may submit a Request for Review of your denied refugee case. You may submit only one request. A person wishing to immigrate to the United States may have other immigration options.
Q. What if I have been authorized parole as a Lautenberg category member, but I have not traveled to the U.S.?
A. Individuals authorized parole cannot travel to the United States until they have submitted the required affidavits of support and medical clearances, and USCIS has received the results of all security background checks. If you were authorized parole prior to the end of this program, but have not yet traveled to the United States, you will receive a notice of what steps you still need to complete before you can travel, including any security checks. If you have been authorized parole by USCIS you must complete this process, make travel arrangements and enter the United States no later than September 30, 2011. Your parole into the United States will not be authorized after that date.
Q. What happens if I have been authorized parole, but I cannot get to the United States by September 30, 2011?
A. Your parole into the United States will not be authorized beyond September 30, 2011, because you will not be eligible for adjustment of status if you enter the United States after that date.
Q. What if all my family members are not ready to travel by September 30, 2011? Can I enter the United States and return for my family later?
A. Each individual, whether part of a family or not, who has been authorized parole must enter the United States by September 30, 2011.
Q. What if there has been a change to my family circumstance since the interview, such as a new baby or my child has turned 21 years of age?
A. If there has been a change to your family circumstance since the time of your USCIS interview, please contact the International Organization for Migration (IOM) immediately to determine if this affects your authorization for parole.
Q. What happens if I don’t have valid, updated security checks?
A. USCIS is making every effort to expedite any pending security checks. However, if security checks cannot be completed in time for you to travel to the United States prior to September 30, 2011, the parole will not be authorized.
Q. What will happen if I do not submit the Affidavit of Support or medical clearance in time to travel to the United States before September 30, 2011?
A. You will not be eligible for parole if you have not successfully completed all requirements, including the Affidavit of Support and medical clearances.
Q. I was authorized parole earlier this year but did not submit a Request for Review (RFR) because I intended to travel to the United States with parole authorization. However, I am not able to travel to the United States by September 30, 2011. May I file a Request for Review even though it is past the 90-day window for filing?
A. Yes, you have 90 days from the date of this notice to submit a Request for Review of your denied refugee case.
Q. Who should I contact if I have questions or problems concerning my case or the process I need to complete to travel?
A. You may contact the International Organization for Migration, located at 2-aya Zvenigorodskaya ul., Dom 12, Moscow, Russia 123100, MoscowUSRAP@iom.int, Tel.: +7 (495) 797-8721, Fax: +7 (495) 253-3522. You may also inquire at USCIS in person from 1 to 4 p.m. weekdays, excluding holidays. We are located in the U.S. Embassy at Bolshoi Devyatinsky, Pereluk 8, 121099, Moscow, Russia. You may also reach us by email at Moscow.dhs@dhs.gov.
Q. What are the steps I need to follow to be able to travel to the United States?
A. If you have been authorized parole, you must have your security checks cleared and completed through USCIS. You also must submit to USCIS an Affidavit of Support from a qualified sponsor in the United States. Once we receive and verify your Affidavit of Support, you must complete a medical examination and submit the results from that exam. Once all security checks have cleared through USCIS and the Affidavit of Support and medical examination are properly completed, you may purchase your tickets with an arrival date in the United States no later than September 30, 2011. Please contact the International Organization for Migration for details on each of these required steps.
Q. What if I am having trouble obtaining the Affidavit of Support from a sponsor in the United States?
A. USCIS strongly suggests you obtain your Affidavit of Support on or before August 31, 2011. If you do not obtain the Affidavit of Support by that date, USCIS cannot ensure you will have enough time to complete the other required steps to allow you to travel and enter the United States by September 30, 2011.
A. Parole allows a person to enter the United States but does not provide a path to permanent immigration status. Because the provision in the Lautenberg Amendment that allows adjustment of status to lawful permanent resident status for denied refugee applicants who are paroled will expire September 30, 2011, USCIS will not continue to offer parole to persons who are not eligible to adjust their status.
Q. What happens to someone who is denied refugee status and is not authorized parole?
A. If you are denied refugee status and not offered parole, you may submit a Request for Review of your denied refugee case. You may submit only one request. A person wishing to immigrate to the United States may have other immigration options.
Q. What if I have been authorized parole as a Lautenberg category member, but I have not traveled to the U.S.?
A. Individuals authorized parole cannot travel to the United States until they have submitted the required affidavits of support and medical clearances, and USCIS has received the results of all security background checks. If you were authorized parole prior to the end of this program, but have not yet traveled to the United States, you will receive a notice of what steps you still need to complete before you can travel, including any security checks. If you have been authorized parole by USCIS you must complete this process, make travel arrangements and enter the United States no later than September 30, 2011. Your parole into the United States will not be authorized after that date.
Q. What happens if I have been authorized parole, but I cannot get to the United States by September 30, 2011?
A. Your parole into the United States will not be authorized beyond September 30, 2011, because you will not be eligible for adjustment of status if you enter the United States after that date.
Q. What if all my family members are not ready to travel by September 30, 2011? Can I enter the United States and return for my family later?
A. Each individual, whether part of a family or not, who has been authorized parole must enter the United States by September 30, 2011.
Q. What if there has been a change to my family circumstance since the interview, such as a new baby or my child has turned 21 years of age?
A. If there has been a change to your family circumstance since the time of your USCIS interview, please contact the International Organization for Migration (IOM) immediately to determine if this affects your authorization for parole.
Q. What happens if I don’t have valid, updated security checks?
A. USCIS is making every effort to expedite any pending security checks. However, if security checks cannot be completed in time for you to travel to the United States prior to September 30, 2011, the parole will not be authorized.
Q. What will happen if I do not submit the Affidavit of Support or medical clearance in time to travel to the United States before September 30, 2011?
A. You will not be eligible for parole if you have not successfully completed all requirements, including the Affidavit of Support and medical clearances.
Q. I was authorized parole earlier this year but did not submit a Request for Review (RFR) because I intended to travel to the United States with parole authorization. However, I am not able to travel to the United States by September 30, 2011. May I file a Request for Review even though it is past the 90-day window for filing?
A. Yes, you have 90 days from the date of this notice to submit a Request for Review of your denied refugee case.
Q. Who should I contact if I have questions or problems concerning my case or the process I need to complete to travel?
A. You may contact the International Organization for Migration, located at 2-aya Zvenigorodskaya ul., Dom 12, Moscow, Russia 123100, MoscowUSRAP@iom.int, Tel.: +7 (495) 797-8721, Fax: +7 (495) 253-3522. You may also inquire at USCIS in person from 1 to 4 p.m. weekdays, excluding holidays. We are located in the U.S. Embassy at Bolshoi Devyatinsky, Pereluk 8, 121099, Moscow, Russia. You may also reach us by email at Moscow.dhs@dhs.gov.
Q. What are the steps I need to follow to be able to travel to the United States?
A. If you have been authorized parole, you must have your security checks cleared and completed through USCIS. You also must submit to USCIS an Affidavit of Support from a qualified sponsor in the United States. Once we receive and verify your Affidavit of Support, you must complete a medical examination and submit the results from that exam. Once all security checks have cleared through USCIS and the Affidavit of Support and medical examination are properly completed, you may purchase your tickets with an arrival date in the United States no later than September 30, 2011. Please contact the International Organization for Migration for details on each of these required steps.
Q. What if I am having trouble obtaining the Affidavit of Support from a sponsor in the United States?
A. USCIS strongly suggests you obtain your Affidavit of Support on or before August 31, 2011. If you do not obtain the Affidavit of Support by that date, USCIS cannot ensure you will have enough time to complete the other required steps to allow you to travel and enter the United States by September 30, 2011.
Wednesday, August 3, 2011
USCIS Announces End of Parole Program in Moscow: Part I
On July 12, 2011, U. S. Citizenship and Immigration Services (USCIS) announced it will no longer offer parole to Lautenberg category members who are denied refugee status in Moscow. Individuals who have been offered parole by USCIS in Moscow must make plans to arrive in the United States by Sept. 30, 2011.
A provision of the Lautenberg Amendment to the Foreign Operations Appropriations Act allows certain individuals who are paroled into the United States after being denied refugee status to adjust to lawful permanent resident status after being physically present in the United States for one year. Within the Moscow program, this provision is limited to only those refugee applicants from countries that made up the former Soviet Union who meet the Lautenberg criteria.
Congress has not extended this Lautenberg Amendment provision, which expires after Sept. 30, 2011.
A provision of the Lautenberg Amendment to the Foreign Operations Appropriations Act allows certain individuals who are paroled into the United States after being denied refugee status to adjust to lawful permanent resident status after being physically present in the United States for one year. Within the Moscow program, this provision is limited to only those refugee applicants from countries that made up the former Soviet Union who meet the Lautenberg criteria.
Congress has not extended this Lautenberg Amendment provision, which expires after Sept. 30, 2011.
Tuesday, August 2, 2011
U.S. and Russia Work Together to Improve Process of Adopting Russian Children CONTINUED: FAQs
Q. What does the Agreement mean for the U.S. adoption program in Russia?
A. This Agreement strengthens the protections in place for the children and families involved while preserving a robust adoption program between the two countries. It creates a framework for a system in which the family will receive more complete information on the child earlier in the process so that the prospective adoptive parents can receive targeted preparation and training before the adoption. The Agreement also improves post-placement follow-up to ensure that the adopted child and family receive the support they need so that they all can thrive.
Q. Now that the Agreement has been signed, will there be any interruption in the processing of cases for U.S. families adopting from Russia?
A. We do not anticipate any interruption in the processing of adoptions from Russia as we move to implement this Agreement or once it has been fully implemented.
Q: When will the Agreement enter into force?
A. The Agreement will enter into force upon the exchange of notes from the U.S. and Russian governments. The exchange of notes will take place only after both sides have completed internal procedures necessary for entry into force, which for Russia means approval by its Duma and establishment of other internal procedures for implementing the Agreement.
The U.S. Department of State and the U.S. Citizenship and Immigration Services (USCIS) will provide on their websites procedures and clear guidance related to the Agreement prior to its entry into force. Please monitor www.adoption.state.gov and www.uscis.gov/adoption for more information.
Q. Can families continue to file Form I-600A, Application for Advance Processing of Orphan Petition, and Form I-600, Petition to Classify Orphan as an Immediate Relative, now that the Agreement has been signed?
A. Yes. Pending entry into force of the Agreement prospective adoptive parents may continue to file Forms I-600A and Forms I-600 with USCIS under existing procedures, in accordance with the form instructions. USCIS will inform the public of the date that the Agreement will enter into force and what additional or different steps may become necessary at that time.
Q. If a family began adoption proceedings before the Agreement enters in to force, will they have to restart proceedings upon Agreement execution?
A. The Agreement specifically allows cases which have had their dossier already submitted to the Russian authorities to continue under the pre-Agreement system. Prospective adoptive parents who have not submitted dossiers upon Agreement execution may need to change adoption service providers, as not all providers will remain authorized. However, families will not be required to file a new Form I-600A if their Form I-600A was filed or approved while working with the previous adoption service provider and remains valid.
Q. If a family is working with an adoption agency that does not receive authorization to continue working in Russia after the Agreement enters into force, will they be able to complete their case?
A. Yes, but the family may have to transfer the case to a new adoption service provider that is authorized to work in Russia. If a case is covered by the transition provision, it may be completed under the pre-Agreement procedures.
Q. How will we know which cases may proceed under the pre-Agreement procedures and which cases must follow the new procedures?
A. Once the Agreement enters into force, USCIS will coordinate with the Department of State (DOS) and the Russian authorities to identify all cases that can be processed under the pre-Agreement procedures and we will provide additional guidance at that time.
Q. When will guidelines and instructions about the new procedures be available?
A. We anticipate that the United States and Russia will need additional time to discuss implementation procedures for the Agreement once the Russian Duma has ratified it. After ratification and completion of implementation discussions, USCIS and DOS will publish specific guidance.
Q. We understand that under the Agreement, the Russian Government may institute a “pre-approval” requirement for U.S. families adopting from Russia. Would this procedure lengthen the processing time?
A. Although we do not anticipate that a pre-approval step will lengthen the process significantly for most cases, there are two instances in which delays could occur: 1) If there is a delay in the receipt of the detailed medical and psycho-social history of the child from the Russian authorities, or 2) If USCIS finds, during the pre-approval review, that the family does not appear to be prepared and/or has not been evaluated by the home study preparer as capable of meeting the needs of the specific child they intend to adopt.
Q. Why is a pre-approval process helpful?
A. Under the current system, USCIS cannot review information about the child being adopted until after the parents have completed adoption proceedings in Russia and become legally responsible for the child. Many times prospective adoptive parents only receive full medical and psycho-social information about the child immediately before the court proceedings to complete the adoption. Parents then have a very brief time to decide whether to complete the adoption or obtain an amended home study and Form I-600A approval, if necessary. Pre-approval will allow USCIS to make a preliminary determination on a child’s orphan status and to flag any concerns before the adoption takes place.
Q. Would pre-approval guarantee that the Form I-600 will be approved once the adoption is finalized in Russia?
A. Pre-approval cannot be taken as a guarantee of final approval, because it is always possible that new, additional information will come to light that ultimately prevents the approval of the Form I-600 petition. However, in other countries where pre-approval systems have been in place, experience shows that pre-approval allows for problems to be addressed earlier in the adoption process creating a more streamlined process for the family.
Q. The Agreement will require to adoption agencies to report when an adopted child received U.S. citizenship. How will the adoption agency know that the child has received U.S. citizenship?
A. The Agreement is crafted to cover only adoptions of children who will ultimately be granted IR-3 immigrant visas. When a child with an IR-3 immigrant visa lawfully enters the United States with his or her adoptive parents with the intent to reside permanently in the territory of the United States, that child, by operation of law, acquires U.S. citizenship upon entry.
A. This Agreement strengthens the protections in place for the children and families involved while preserving a robust adoption program between the two countries. It creates a framework for a system in which the family will receive more complete information on the child earlier in the process so that the prospective adoptive parents can receive targeted preparation and training before the adoption. The Agreement also improves post-placement follow-up to ensure that the adopted child and family receive the support they need so that they all can thrive.
Q. Now that the Agreement has been signed, will there be any interruption in the processing of cases for U.S. families adopting from Russia?
A. We do not anticipate any interruption in the processing of adoptions from Russia as we move to implement this Agreement or once it has been fully implemented.
Q: When will the Agreement enter into force?
A. The Agreement will enter into force upon the exchange of notes from the U.S. and Russian governments. The exchange of notes will take place only after both sides have completed internal procedures necessary for entry into force, which for Russia means approval by its Duma and establishment of other internal procedures for implementing the Agreement.
The U.S. Department of State and the U.S. Citizenship and Immigration Services (USCIS) will provide on their websites procedures and clear guidance related to the Agreement prior to its entry into force. Please monitor www.adoption.state.gov and www.uscis.gov/adoption for more information.
Q. Can families continue to file Form I-600A, Application for Advance Processing of Orphan Petition, and Form I-600, Petition to Classify Orphan as an Immediate Relative, now that the Agreement has been signed?
A. Yes. Pending entry into force of the Agreement prospective adoptive parents may continue to file Forms I-600A and Forms I-600 with USCIS under existing procedures, in accordance with the form instructions. USCIS will inform the public of the date that the Agreement will enter into force and what additional or different steps may become necessary at that time.
Q. If a family began adoption proceedings before the Agreement enters in to force, will they have to restart proceedings upon Agreement execution?
A. The Agreement specifically allows cases which have had their dossier already submitted to the Russian authorities to continue under the pre-Agreement system. Prospective adoptive parents who have not submitted dossiers upon Agreement execution may need to change adoption service providers, as not all providers will remain authorized. However, families will not be required to file a new Form I-600A if their Form I-600A was filed or approved while working with the previous adoption service provider and remains valid.
Q. If a family is working with an adoption agency that does not receive authorization to continue working in Russia after the Agreement enters into force, will they be able to complete their case?
A. Yes, but the family may have to transfer the case to a new adoption service provider that is authorized to work in Russia. If a case is covered by the transition provision, it may be completed under the pre-Agreement procedures.
Q. How will we know which cases may proceed under the pre-Agreement procedures and which cases must follow the new procedures?
A. Once the Agreement enters into force, USCIS will coordinate with the Department of State (DOS) and the Russian authorities to identify all cases that can be processed under the pre-Agreement procedures and we will provide additional guidance at that time.
Q. When will guidelines and instructions about the new procedures be available?
A. We anticipate that the United States and Russia will need additional time to discuss implementation procedures for the Agreement once the Russian Duma has ratified it. After ratification and completion of implementation discussions, USCIS and DOS will publish specific guidance.
Q. We understand that under the Agreement, the Russian Government may institute a “pre-approval” requirement for U.S. families adopting from Russia. Would this procedure lengthen the processing time?
A. Although we do not anticipate that a pre-approval step will lengthen the process significantly for most cases, there are two instances in which delays could occur: 1) If there is a delay in the receipt of the detailed medical and psycho-social history of the child from the Russian authorities, or 2) If USCIS finds, during the pre-approval review, that the family does not appear to be prepared and/or has not been evaluated by the home study preparer as capable of meeting the needs of the specific child they intend to adopt.
Q. Why is a pre-approval process helpful?
A. Under the current system, USCIS cannot review information about the child being adopted until after the parents have completed adoption proceedings in Russia and become legally responsible for the child. Many times prospective adoptive parents only receive full medical and psycho-social information about the child immediately before the court proceedings to complete the adoption. Parents then have a very brief time to decide whether to complete the adoption or obtain an amended home study and Form I-600A approval, if necessary. Pre-approval will allow USCIS to make a preliminary determination on a child’s orphan status and to flag any concerns before the adoption takes place.
Q. Would pre-approval guarantee that the Form I-600 will be approved once the adoption is finalized in Russia?
A. Pre-approval cannot be taken as a guarantee of final approval, because it is always possible that new, additional information will come to light that ultimately prevents the approval of the Form I-600 petition. However, in other countries where pre-approval systems have been in place, experience shows that pre-approval allows for problems to be addressed earlier in the adoption process creating a more streamlined process for the family.
Q. The Agreement will require to adoption agencies to report when an adopted child received U.S. citizenship. How will the adoption agency know that the child has received U.S. citizenship?
A. The Agreement is crafted to cover only adoptions of children who will ultimately be granted IR-3 immigrant visas. When a child with an IR-3 immigrant visa lawfully enters the United States with his or her adoptive parents with the intent to reside permanently in the territory of the United States, that child, by operation of law, acquires U.S. citizenship upon entry.
Monday, August 1, 2011
U.S. and Russia Work Together to Improve Process of Adopting Russian Children
On July 13, 2011, the Department of Homeland Security and the Department of State announced that Secretary of State Hilary Clinton and Russian Foreign Minister Sergey Lavrov signed a bilateral adoptions agreement that will strengthen procedural safeguards in adoptions between our countries.
This Agreement will provide additional safeguards to better protect the welfare and interests of children and all parties involved in intercountry adoptions. Under the Agreement, only adoption agencies authorized by the Russian Government will be able to operate in Russia and provide services in adoptions covered by the Agreement, except in the case of an adoption of a child by his or her relatives. This will largely eliminate independent adoptions from Russia and create a better defined framework for intercountry adoptions between the United States and Russia. The Agreement also includes provisions designed to improve post-adoption reporting and monitoring and to ensure that prospective adoptive parents receive more complete information about adoptive children’s social and medical histories and anticipated needs.
The United States is committed to working with the Russian Federation on implementing the provisions laid forth in this Agreement as soon as it enters into force.
This Agreement will provide additional safeguards to better protect the welfare and interests of children and all parties involved in intercountry adoptions. Under the Agreement, only adoption agencies authorized by the Russian Government will be able to operate in Russia and provide services in adoptions covered by the Agreement, except in the case of an adoption of a child by his or her relatives. This will largely eliminate independent adoptions from Russia and create a better defined framework for intercountry adoptions between the United States and Russia. The Agreement also includes provisions designed to improve post-adoption reporting and monitoring and to ensure that prospective adoptive parents receive more complete information about adoptive children’s social and medical histories and anticipated needs.
The United States is committed to working with the Russian Federation on implementing the provisions laid forth in this Agreement as soon as it enters into force.
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