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Legal Issue Series – How Many Researchers Does it Take?

This is the first of our Legal Issue Series, which will answer hard immigration questions and will attempt to fill in the many holes in the immigration system through legal analysis. The first of these holes is a twist to a common factual scenario: A petitioner-company wants to petition one of its three full-time researchers for an EB-1B visa. However, the full-time researcher in question is currently on a nonimmigrant visa (L-1B, H-1B, etc.).

The EB-1B visa we’ve previously discussed, and can be found here. In the context of our situation at hand,the EB-1B visa can be used for a variety of research institutions or “medical practice/research centers” as defined in the Immigration and Nationality Act (“INA”). Some of these institutions may be small with only two or three full-time researchers. The number of full-time researchers is important for an organization petitioning for an EB-1B visa for a new full-time researcher, because the INA states that a visa is available for a researcher if:

The alien seeks to enter the United States for a comparable position to conduct researcher in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

INA § 203(b)(1)(B)(iii)(III); 8 U.S.C. § 1153(b)(1)(B)(iii)(III) (emphasis added)

The focus of this article will be the bolded portion. The hard immigration question applies in the situation where the petitioner-company has three full-time researchers, but one of the three is on a temporary nonimmigrant visa (L-1, H1-B, etc.) and is now seeking to adjust their status to receive a EB-1B visa.

There is little guidance in the rest of the INA or legislative history to help answer this question. This question could make or break smaller institutions with three full-time researchers because it could potentially bar them from receiving EB-1B visas for future full-time researchers.

On one hand, one could argue that the third nonimmigrant visa researcher would help the petitioner-company qualify as having three full-time researchers. Since the petitioner-company already has three full-time researchers, their visa status should not matter and the nonimmigrant visa researcher can adjust their status to receive an EB-1B visa.

On the other hand, the argument could be made that the institution must have three full-time researchers who are not currently seeking an EB-1B visa. This is from the language of § 203(b)(1)(B)(iii)(III) as quoted above: “seeks to enter” and “employs at least 3 persons full-time” are in the present tense, and thus the petitioner-company must already have three full-time researchers. This is because the third researcher is “seeking to enter” by attempting to receive an EB-1B visa, even though the researcher is in the United States on a nonimmigrant visa. Thus, he may not count as the third anymore for purposes of the EB-1B petition.

The Administrative Appeals Office (“AAO”), a quasi-judicial branch that deals with some types of immigration appeals, addressed this issue in an unpublished decision and agreed with the second argument. Given the present tense of the statutory language and that the Director of the California Service Center used that interpretation, the AAO gave that interpretation deference, as the AAO will typically do as long as the interpretation is reasonable.

In conclusion, a petitioner-company who is attempting to obtain an EB-1B visa for a full-time researcher must have three full-time researchers who are not seeking any visas. Even though one of the three researchers has a nonimmigrant visa (L-1, H1-B, etc.) and is currently employed at the petitioner-company, a petitioner-company cannot adjust that researcher under an EB-1B visa.

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Showcase Series: O-1 Visa for Gastrointestinal Scientist

This article marks the first installment of our new Showcase Series, which will overview successful cases filed by t Ms. Sweta Khandelwal, the principal attorney at the Law Offices of Sweta Khandelwal. This Showcase will be for a scientist who successfully received an O-1 visa, which is a nonimmigrant visa for individuals who possesses extraordinary ability in the sciences, arts, education, business, or athletics.

The scientist in this case was one of the founders of a company that specialized in developing products to identify gastrointestinal (“GI”) tract disorders. The product at issue was a special patch used to diagnose abdominal and gastrointestinal issues. The company was a team of over twenty Ph.D. scientists, doctors, engineers, intellectual property professionals, business consultants, finance specialists, and clinical researchers.

The O-1 scientist himself held an impressive resume that established his credentials as a person of “extraordinary ability. First, he authorized more than half a dozen original scholarly articles published in national and international journals with a plethora of citations. His research was the foundation for further research used in treatment centers, hospitals, and other institutions in places like Holland, Canada, Japan, Korea, China, New Zealand, and Brazil. As an example of his renowned fame, in just four weeks one of his papers was viewed over 300 times. His works were relied upon by almost a hundred people all over the world.

Furthermore, the O-1 scientist had developed the underlying research for the basis of the Petitioner company’s product. It was imperative that he join the team to further develop this product to meet investor expectations, project development deadlines, and market windows.

The O-1 scientist was also part of various organizations outside of his direct employment. As a member of a distinguished panel where he was one of the few, if not only, representatives of the medical device industry, he was part of a group that was important in the context of the Affordable Health Care Act. He was also part of many other selective organizations that were nationally or internationally recognized.

The support letter alone, which summarily connects all of the evidence with each of the legal requirements for an O-1 visa, was by itself over 20 pages. It required collaboration from heads of the Petitioner company, including its CEO, O-1 scientist, and five leading experts in the field who wrote letters of recommendation for the O-1 visa scientist. This collaborative effort resulted in the approval of the visa petition and the scientist is now able to work on the company’s products over the next three years. It is significant to note that the without the O-1 visa, the Scientist would have had no other way to work in the US. His fact situation precluded him from obtaining any other work visa.

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Huge Jump Expected in Visa Availability in August 2013

Both immigration attorneys and individuals who have had to wait for a green card may be familiar with the Department of State’s Visa Bulletin, which provides month-by-month updates on when visas become available. Below are the visa bulletin numbers for July 2013:

Family-Sponsored All Other Countries CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 01JUN06 01JUN06 01JUN06 22AUG93 01JUL00
F2A 08OCT11 08OCT11 08OCT11 01SEP11 08OCT11
F2B 01NOV05 01NOV05 01NOV05 01NOV93 22DEC02
F3 01OCT02 01OCT02 01OCT02 22APR93 22NOV92
F4 22MAY01 22MAY01 22MAY01 22SEP96 15DEC89


Employment- Based All Other Countries CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08AUG08 01SEP04 C C
3rd 01JAN09 01JAN09 22JAN03 01JAN09 01OCT06
Other Workers 01JAN09 22MAR04 22JAN03 01JAN09 01OCT06
4th C C C C C
Certain Religious Workers C C C C C
Employment Areas/
Regional Centers and Pilot Programs

Visa Bulletin Basics

The “C” stands for “Current,” which means visas are immediately available and no additional waiting (other than processing and adjudication times) is required. Any of the fields with dates are called “priority dates,” and are determined by the date a relative petition, labor certification application, or employment based petition is submitted. As an example, those who have a petition that fits under the F2A category (spouses and children of Legal Permanent Residents a.k.a. green card holders) and are from India means that anyone who filed a petition before October 8, 2011 now has a visa number available to them. The group with the longest wait time is the brothers and sisters of United States Citizens from the Philippines; only those who have petitions filed from before December 15, 1989 have visas currently available.

Future Visa Predictions – The Huge Jump

This backlog is created by statutory requirements, political influence, historical events, and other factors that have been the focus of many immigration reform discussions. Mr. Charles Oppenheimer, the Chief of the Visa Control and Reporting Division at the U.S. Department of State., has predicted a huge jump for several visa categories next month. Mr. Oppenheim is the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards. He is also the person who prepares and publishes the monthly visa bulletin.

The biggest jump in the family-based categories will come in the F2A category, which consists of the spouses and children of green card holders. This category is expected to become “Current,” meaning immediately available, sometime next month in August.

The employment-based categories may also experience major advancements in visa availability. Although currently the EB-2 Category for India has a priority date of September 1, 2004, it may jump to January 2008. However, for those in the EB-3 Category from all other countries except from China, India, Mexico, and the Philippines may not see any advancement until October 2013 due to the already fast-paced advancement this category has experienced in the past three months.

If you have any questions about how these visa availability advancements could affect your current or potential case, please contact our office to speak with one of our attorneys.

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Immigration Implications of the DOMA Ruling

The Supreme Court of the United States came out with a flurry of exciting decisions last week, including the decision on the Defense of Marriage Act (“DOMA”). Although it was technically a tax case, the Supreme Court’s finding that DOMA was unconstitutional has widespread implications, including in immigration.

Specifically, section 3 of DOMA limited federal recognition of marriage to opposite-sex marriages only. The immigration consequence of section 3 prevented same sex couples from sponsoring their partner for legal permanent residence (a “green card”). Prior to the Supreme Court ruling, there was much litigation and a stubborn policy by USCIS to refuse recognition of same sex marriages. One of the most recent cases is a class action by a lesbian couple from the Philippines, alleging a residency waiver was denied because of DOMA section 3. The implications also run to obtaining United States citizenship, or “naturalization,” given that a green card holder spouse could obtain citizenship after three years.

Although the DOMA ruling isn’t an affirmative statement, it at the very least gives USCIS one less leg to stand on in denying family-based green card petitions for the estimated 36,000 same-sex couples. And just days after the ruling, Secretary of Homeland Security Janet Napolitano stated that any legally valid marriage to a U.S. Citizen would be recognized. If the Comprehensive Immigration Reform bill passes, which looks more and more likely given the huge approval by the Senate, it would affirmatively allow for same-sex couples to petition for their significant others for immigration benefits.

At the AILA National Conference in San Francisco, USCIS Director and keynote speaker Alejandro Mayorkas also announced that USCIS will re-open all Immigrant Visa petitions for same sex couples that were denied since February 2011. If you have questions about how the DOMA ruling could affect your or someone else’s ability to obtain a green card to citizenship, contact our office to speak with an attorney about your case.

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