Opportunities Come to Those Who are Prepared

Every immigrant to the United Stated knows to love and hate the visa bulletin. When it moves forward, which means the waiting period shortens, there is an influx of applicants, but as soon as there is any retrogression, the number of applicants drastically decreases. However, as immigration lawyers, our many years of experience prove that this kind of up and down may not be the best idea. In fact, we believe that it is better to do the opposite, that is to actively prepare and file your petition/application during retrogression.

The benefits of filing during retrogression are the following:

*Plenty of time to prepare materials and evidence for the case

*Your recommenders will more likely be free (avoid requesting for letter of recommendation on short notice). This will generally create better results for recommendations

*Since generally there are less applicants, there is less competition for approvals

*It is also likely that immigration lawyers have less cases to deal with, thus putting more attention to your case

*The decrease in clients could also result in a more [lucrative rate] (it’s not clear what you meant by this) for the client

These benefits would not be possible during the rush that usually occurs when visa bulletin moves forward. More importantly, cases such as EB-1, NIW, and PERM require at least 2 months to prepare. So, in many cases, those who apply during the rush may not even have the case ready until retrogression hits. This may lead to missing out an important time slot opportunity.

Here is an example: Professor Jin from Korea is a very mellow person, never in a rush. When it came to immigration, he was the same. His H1-B reaches its 6 year expiration date in September 2012. He would have to file his case within specific time frame during H1B 6 year period in order to get an extension on his H1-B beyond 6 yrs. In January 2012, only a few months before the H-1B expiration date, Prof. Jin, with the help of his university, decided to file for PERM. His idea was that by around June, he could have his PERM approved. With that, he would file for I-140 with premium service, and by July, have that approved too. Once I-140 was approved, he could apply for I-485 and get EAD card to continue working after H-1B expires.

However, things did not go as smoothly as he planned. Prof. Jin’s PERM was audited by DOL. A PERM audit could tremendously delay the PERM process, typically between a year to 18 months. This threw off Prof. Jin’s game plan. [Thusly] (a typo here?), in April 2012, Prof. Jin’s university contacted lawyer Amy Feng, inquiring about whether there were still any possible ways for Prof. Jin to continue working after H-1B expires.  After careful analysis of Prof. Jin’s background, Amy advised that Prof. Jin skip the PERM process and file EB-2(NIW). Because Prof. Jin was born in Korea, under the processing conditions at the time, he could file NIW and I-485 concurrently. As long as the application was filed before July, the work authorization portion of the I-485 (I-765) should be approved before the H1-B expires.

About 3 month before the July deadline, even with constant reminder from Amy, Prof. Jin barely started preparation for NIW recommendation letters. As time progressed, there was little or no development in Prof. Jin’s case. On June 15, 2012 USICS announced the visa bulletin for July—and for Korean born applicants there would be waiting time for filing I-485.  This means that Prof. Jin could not concurrently file his NIW and I-485 on or after July 1^st, 2012.  Once again Prof. Jin’s plans were in jeopardy as it was almost impossible to get everything ready within 15 days. Prof. Jin’s chances of gaining work approval looked grim. The only possibility left is if Prof. Jin worked together with Amy, and filed both NIW and I-485 within the 15 days left in June. It would have to be a record smashing effort, but it was the only option for Prof. Jin. After working days and nights, Amy and Prof. Jin finally finished a speedy yet high quality case on time. With luck, Prof. Jin’s case should be approved and he can continue to work in the United States.

Prof. Jin did just barely make the deadline. We can all learn a good lesson from this case. If it were not for extraordinary effort by the lawyer, Prof. Lin might have been jobless and on his way home to Korea. If Prof. Jin had planned ahead, it would have saved a lot of time and needless worrying. Most importantly, he could have avoided the dire situation. For Korean born aliens, the visa number for EB-2 has been current under most circumstances. However, from June 2012 to October 2012, the visa number was backlogged, which means they were not eligible to submit I-485 along with I-140. Although the visa number becomes current in November 2012, it may be retrogressed in the near future.  So, it is beneficial to file I-140 as soon as possible since the sooner you submit your I-140, the earlier your priority date will be. This way when the visa bulletin moves forward, you may be eligible to submit I-485. This also applies to EB-1, because in the near future EB-1 may have backlog too. It is advisable for EB-1 applicants to think ahead as well.

In conclusion, the changes in visa bulletin affect the number of applicants. During times of retrogression, there are less applicants. The decrease in applicants will then help the visa bulletin move forward.  That, in turn, will increase the number of applicants, leading to retrogression. It is a game of demand and supply. Our experience tells us that no matter what, it is always beneficial to submit your I-140 application as soon as possible provided that you have sufficient evidence to support the same.

International Recognized Athletes O-1 approved within Four Days of submission

Coach Gu was born into a table tennis family, he started practicing table tennis at the age of 3. But because there are a lot of table tennis athletes in China, even after Coach Gu’s vigorous practices, his best achievement was only a national team gold. After becoming an adult, there wasn’t any more opportunity to achieve good results in national competitions. There wasn’t any chance that he could represent China in international competitions either. Coach Gu retired early from an athletic career and went into areas of training partners and coaching, and then proceeded to accumulate some table tennis coaching experiences.

The U.S. Table Tennis team isn’t really on par with China’s Table Tennis team right now, but the U.S. devotes a lot of time and effort into table tennis training. Every year, the U.S. sends selected athletes to train in China; Coach Gu got to know the United States Table Tennis Club. Because of his diligence, the U.S. Table Tennis Club hoped that he could come to the U.S. to train the athletes for long-term. When the U.S. Tennis Club commissioned Attorney Feng to handle his visa, according to Coach Gu’s background, Attorney Feng believed that approval for a P visa should be within grasp. But P visa only allows the holder to stay in the U.S. for a short period of time, and it’s unable to fully meet the requirement that Coach Gu’s work needs long-term stay. The other possibility is O-1 visa, but because Coach Gu’s background is relatively weak, it’s very difficult to prove that Coach Gu holds a leadership role and top-notch status in his field. Taking in account that the Club intends to apply for a Green Card for Coach Gu in the future, Attorney Feng decided to give O-1 visa a try. If the visa is approved, it would lay some foundation for the future EB-1A case.

The legal requirement for O-1 visa is nearly identical to EB-1A. In this case, in addition to proving that Coach Gu has achieved great results as a table tennis athlete, Attorney Feng also needed to prove that Coach Gu made significant contributions as a coach. Attorney Feng has a lot of experience in petitioning for athletes’ O-1 and EB-1A. Typically, if athletes continue pursuing their career as an athlete after coming to the United States, their achievements in athletic career before can be used as evidences in support of the petition. However because athletic careers are relatively short, most athletes will change to coaching instead. If one uses the coaching career as the occupation for petitioning, immigration officers usually don’t consider the athlete’s achievements as a basis for his/her coaching ability as they believe good athlete does not mean good coach. Once the athletic achievements are excluded, the case is often difficult in obtaining approval because of the lack of sufficient evidence on petitioner’s coaching experience. Therefore, how to reasonably and cleverly use the achievements of the athletes as a direct proof of the coach’s ability is crucial.

In this petition, Attorney Feng successfully used the recommendation letters to convince the USCIS. Attorney Feng not only invited the coaches of United States to write a letter of recommendation as proof of Coach Gu’s ability, she also invited the U.S. National Team athletes who were Coach Gu’s students to prove that Coach Gu’s past athletic experiences is important in the training process. Attorney Feng also stressed the reputation of the U.S. Table Tennis Club and the achievement of giving great athletes to the U.S. National Team that employed Coach Gu as a proof that people with Coach Gu’s talents is desperately needed. In the past London Olympics, although the U.S. Table Tennis athletes weren’t able to win any metals, they did defeat Chinese seeded athletes, which set off the U.S. interests and confidences in table tennis. Attorney Feng used this to emphasize the importance of the introduction of outstanding coaches. The Director of the U.S. Table Tennis Association also wrote a letterof recommendation, asking for the approval of Coach Gu’s petition so that he could contribute to the process of propelling the U.S. into the next table tennis world championships and the Olympics. Under Attorney Feng’s careful planning and preparation, a case that otherwise would have no chance, was approved in four days. Please note that the case did not apply for premium processing.

Each case’s success or failure on a certain extent have to do with luck, but Coach Gu’s case is a prime example that even with a weak background application, under the help of an experience lawyer, the success rate is still pretty high. O-1 and EB-1A are both very demanding, but with goal-oriented planning, strategically preparation of materials, and targeted packaging, it is very possible for the case to be approved. Therefore, we recommend that you consult with your lawyer as to the feasibility of applying for an O-1, NIW, or EB-1A. Coach Gu’s case illustrated that he not only benefited from the letters of recommendation and petitioner letter that the Attorney prepared, but he also benefited from the professional legal counsel’s advice.

We encourage you to send your resume to us to assess the possibility of applying for O-1, NIW, or EB-1(a). An experienced lawyer in applications, especially for applications like Coach Gu’s with a weak background, is very important.  In addition, an experience lawyer can greatly raise the successful rate of a case. As long as you are willing to try, there are always faster and better options for your applications.

Success in an average EB-1A petition

Dr. Chen retained Attorney Feng to prepare his EB-1(a) I-140 petition. Dr. Chen was working in the specialized field of Atmospheric Science and Climate Change Research, and had received his Ph.D. degree in Meteorology from a U.S. university. He only had 7 journal papers, 12 conference proceedings, 1 national award received in China and several media reports with regard to his research. Attorney Feng understands that although the case would be challenging, with the help of an experienced attorney to prepare strong recommendation letters and to draft a strong petition letter, Dr. Chen had a fair chance of approval.

In order to demonstrate Dr. Chen’s qualifications, Attorney Feng emphasized that his findings have substantially impacted the advancement of research and development in the field of atmospheric science and climate change research, and that his work will enable other researchers and engineers to further investigate and develop the strategies to solve climate-related problems. She also stressed the significant applications of his work completed by other researchers to demonstrate Dr. Chen’s impact. After careful preparation, Attorney Feng submitted the case to USCIS.

Later, the case received a standard Request for Evidence, questioning the basis of our request to classify Dr. Chen under the EB-1(a) category. USCIS challenged the extent and importance of Dr. Chen’s recognition in his field because all of his awards were national awards from China. USCIS had limited knowledge of foreign awards and needed more evidence to prove the importance of the award. Attorney Feng confronted this issue by requesting six additional recommendation letters from experts in Climate Change Research that specifically addressed the selective standards of Dr. Chen’s honors and prizes.

The RFE also requested further proof that Dr. Chen’s extraordinary achievements could advance the national interest. Since his work in the U.S. mainly dealt with pollution in California, USCIS questioned whether his work could be applied to the entire nation. Among the six recommendation letters prepared especially for the RFE, Attorney Feng requested that experts discuss the importance and applicability of Dr. Chen’s work to the nation. She also showed that his work was reported in major media of national and international circulation.

To further prove the significance of Dr. Chen’s research, Attorney Feng also demonstrated that he had a major impact on other scientist’s works. She provided evidence that not only was his work cited by other researchers, it was referenced extensively by distinguished experts in high impact scholarly journals. Moreover, she verified that his research not only applied to his field, but also other important areas such as Aeronautics and Space research.

Although the RFE only required satisfaction of three of the ten EB-1(a) criteria, Attorney Feng illustrated that Dr. Chen satisfied seven out of the ten. In less than one month after the RFE response, the case was approved.

Because of limited visa numbers available for EB-2 China or India-born aliens, it takes a relatively long time (3-4 years) for them to file I-485 petitions. As you know, pending I-485 applications not only provide petitioners with working permission and travel documentation, but they also provide the same benefits to petitioner’s family members. In light of the recession, many employers do not want to sponsor H-1B visas. If you have an I-485 pending, you can work for any employer as an EAD card holder, as can your family members. In contrast to EB-2 petitions, EB-1(a) and EB-1(b) petitions provide China or India-born researchers with opportunities to concurrently file their I-485 applications because the visa numbers for these two petitions are current. We encourage you to send us your CV to determine whether you have a good chance to succeed under EB-1(a) or EB-1(b) categories. An experienced attorney’s help is essential for researchers like Dr. Chen who do not believe that their Eb-1(a) could be approved at first. Experienced attorneys can enhance your chance of approval even if you only have an average case. What makes your green card application different is whether you are willing to try.

*In order to protect our client’s privacy, all identifying information has been changed.

*Attorney Jing Amy Feng is the Partner of Jing Feng Law Group PLLC. (www.fengvisa.com).  She has extensive experience in working visa applications and employment/business immigration, with a proven record of many successful NIW, EB-1, H-1B, PERM cases.  She may be reached at info@fengvisa.com