Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick talks about an exciting new announcement released by the United States Citizenship and Immigration Services (USCIS) regarding new initiatives the agency is taking to reduce the application backlogs, expand premium processing to broader categories of applications, and provide much needed relief to those waiting for their work permits to be processed.
Overview
As of March 29, 2022, USCIS is unveiling a trio of actions that will help improve the processing of applications and petitions currently awaiting adjudication by the agency. As you may know at the height of the COVID-19 pandemic, USCIS along with other government agencies suspended in-person services at its field offices and Application Support Centers (ASCs) nationwide to help slow the spread of the virus. The agency also took precautions to slow its spread by limiting the number of people that could enter federal buildings for immigration interviews. The consequence of these closures has been a backlog of cases across the board that the agency has been working to reduce.
To help ease the number of pending cases at USCIS, the agency has introduced 3 new actions.
What are these new actions all about?
(1) Cycle Time Goals
First, the agency has said that it will be implementing agency-wide goals to reduce the substantial backlogs.
USCIS has established a new system known as “internal cycle time goals,” to process applications that remain pending with USCIS. According to USCIS, these “internal cycle time goals,” are internal metrics that the agency will now be using to help guide the reduction of the current backlog. These cycle times will determine how long it will take USCIS to process immigration benefits going forward.
To accomplish the stated “cycle time goals,” the agency has said that it plans to increase its capacity, adopt technological improvements (such as e-filing systems), train, and hire more staff to ensure that applications are processed within the stated “cycle time goals.” USCIS estimates that these new actions will help the agency reach its stated cycle time goals by the end of fiscal year 2023.
For easy reference, the new USCIS cycle time goals are listed down below.
The new cycle time goals provided by USCIS are as follows:
Processing of I-129 premium processing cases – 2 weeks
Processing of I-140 premium processing cases –2 weeks
Processing of I-129 non-premium processing cases –2 months
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick discusses an exciting new procedure for individuals arriving at the United States border to apply for asylum, specifically with respect to those asylum seekers who are subject to expedited removal.
Want to know more? Keep on watching for all the details.
Overview
What is Asylum?
Asylum is a form of protection which allows an individual to remain in the United States instead of being removed to a country of feared persecution. To apply for asylum in the U.S., individuals must file the required application, form I-589, and submit it with the appropriate documentation within one year of arriving to the United States. To be successful, individuals must establish that they have suffered persecution or fear that they will suffer persecution based on their race, religion, nationality, membership in a particular social group, or political opinion.
Under current immigration law, individuals applying for defensive asylum at the border (meaning that they do not have a valid visa at the time of entry) are detained by the United States Customs and Border Protection (CBP) and become subject to removal proceedings. Once an immigration hearing is scheduled, the asylum seeker is given the opportunity to make his or her case for asylum before an immigration judge.
Currently, the defensive asylum process is taking over 7 years to complete in the United States, including the required scheduling of a hearing before an immigration judge.
Under the new interim final rule, released on March 29, 2022, the Biden administration seeks to overhaul the current defensive asylum system to drastically reduce backlogs in the immigration courts and improve filing procedures.
The final rule proposes sweeping changes to current asylum law including allowing asylum claims to be heard and evaluated by United States Citizenship and Immigration Services (USCIS) asylum officers instead of immigration judges.
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick goes over the upcoming April 2022 Visa Bulletin and what you can expect in terms of movement or retrogression in the employment based and family sponsored preference categories.
The visa bulletin is issued every month by the Department of State. It shows which green card applications can move forward, based on when the immigrant petition that starts the green card process was originally filed. The visa bulletin allows you to estimate how long it will take before you will be able to get your green card, based on how quickly the “line” is moving now. You can check the visa bulletin on a monthly basis to determine your place in line.
Want to know more? Keep on watching for all the details.
Overview
What’s happening in the employment-based categories?
FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE
According to the Department of State’s April 2022 Visa Bulletin, the following final cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:
EB-1: All countries, including India and China, will remain current.
EB-2: India will advance by more than 2 months to July 8, 2013, and China will remain at March 1, 2019. All other countries will remain current.
EB-3 Professionals and Skilled Workers: EB-3 India and China will remain unchanged from the previous month, at January 15, 2012, and March 22, 2018, respectively. All other countries will remain current.
EB-4: All countries are current, except El Salvador, Guatemala, and Honduras at May 01, 2017, and Mexico at April 01, 2020.
EB-5: The Non-Regional Center program will be current for all countries, including China. The Regional Center program has been reauthorized by recent legislation but is still listed as Unavailable in the April Visa Bulletin Final Action Date chart, given that certain provisions of the reauthorizing legislation have not yet taken effect.
Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
C
2nd
C
01MAR19
C
08JUL13
C
C
3rd
C
22MAR18
C
15JAN12
C
C
Other Workers
C
01JUN12
C
15JAN12
C
C
4th
C
C
01MAY17
C
01APR20
C
Certain Religious Workers
U
U
U
U
U
U
5th Non-Regional Center
(C5 and T5)
C
C
C
C
C
C
5th Regional Center
(I5 and R5)
U
U
U
U
U
U
DATES FOR FILING FOR EMPLOYMENT-BASED PREFERENCE CATEGORIES
Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
C
2nd
C
01APR19
C
01SEP14
C
C
3rd
C
01APR18
C
22JAN12
C
C
Other Workers
C
01AUG15
C
22JAN12
C
C
4th
C
C
15JUN17
C
C
C
Certain Religious Workers
C
C
15JUN17
C
C
C
5th Non-Regional Center
(C5 and T5)
C
C
C
C
C
C
5th Regional Center
(I5 and R5)
C
15DEC15
C
C
C
C
Which filing chart do I use if I want to apply for adjustment of status based on employment within the USA?
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides a brand-new update from the U.S. Department of State regarding the status of E-2 Treaty Investor Visa processing at Consulates and Embassies worldwide. Please note that this information is being provided as of March of 2022.
Want to know more? Keep on watching for all the details.
Overview
In the past few months, E-2 visa processing times have varied significantly due to the suspension of routine visa services at all U.S. Embassies and Consulates, a move that was announced by the Department of State in July of 2020. This suspension occurred in response to significant worldwide challenges posed by the Coronavirus pandemic. Since then, operational capacity has continued to be limited for non-immigrant visas at most U.S. Embassies and Consulates resulting in delays in providing visa interview appointments, including for E-2 visa investors. To make matters worse, the Department of State put the processing of non-immigrant visas on the back-burner, giving priority to immigrant visa petitions including family-based petitions and fiancé(e) visas. In this post, we provide you with the most up to date information regarding current processing times as of March 2022 for E-2 investors to receive an appointment at Consular posts abroad.
Not only has there been a sharp decline in E-2 visa processing at most Consulates and Embassies worldwide, but some posts have refused to accept E-2 visa applications altogether. Such Embassies that have refused to accept E-2 visa applications include U.S. Embassy Ankara, Turkey; U.S. Embassy Bogota, Colombia; and U.S. Embassy Bridgetown, Barbados.
The U.S. Embassy in Bogota, Colombia for instance has not adjudicated any E-2 visa applications for more than 1 year, according to recent information provided by the U.S. Department of State.
In a recent meeting between the American Immigration Lawyers Association (AILA) and the U.S. Department of State, the government provided more information regarding E-2 visa processing delays. Here is what they had to say.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the USCIS backlogs and current USCIS processing times in the year 2022. You can expect information about the specific increase in processing times for I-130 family petitions, N-400 applications for citizenship, I-485 adjustment of status applications, and I-140 applications for employment based green cards.
Want to know more? Keep on watching for all the details.
Overview
The USCIS Backlogs
In this video we talk about the latest statistics with respect to USCIS backlogs and case delays impacting many of the people watching our videos. As you know, the Coronavirus pandemic has severely impacted the processing times of USCIS petitions with many service centers facing unprecedented delays. As time goes on, we expect the USCIS backlogs to continue to grow. It is estimated that the agency will take at least a year to catch up to current demand.
According to an August 2021 government accountability report, it is estimated that the number of cases pending adjudication at USCIS grew by over 81% since fiscal year 2015.
Looking at the second quarter of fiscal year 2020, USCIS had a backlog of approximately 3 million cases which swelled to 5.8 million cases by fiscal year 2021.
Essentially, the report indicates that USCIS processing delays have continued to grow since fiscal year 2017, increasing by approximately 50% in fiscal year 2021. This has happened despite only a slight 3.6% increase in cases received annually by USCIS. Over the last fiscal year alone (FY 2020 to 2021), there was about an 11% increase in USCIS processing times.
This information is crucial to understand the reasons behind the current USCIS backlogs caused partially by the COVID-19 pandemic, the inefficiencies on the part of USCIS, budgeting issues, and other contributing factors. The fact is, USCIS is facing a crisis.
So, what are the main types of applications being impacted by the backlogs?
According to the report, certain “high volume” forms filed with USCIS have been disproportionately impacted.
These include Form I-730 Refugee/Asylee petitions, that are now facing processing time increases of 20 months when compared to 12.4 months in fiscal year 2019.
Form I-485 green card applications also increased to 12.9 months when compared to 10.9 months in fiscal year 2019.
Similarly, N-400 application processing times increased to 11.5 months when compared to 10 months in fiscal year 2019.
Form I-130 petitions for alien relative increased to 10.2 months when compared to 8.6 months in fiscal year 2019.
Finally, processing times for Form I-140 immigrant petitions for alien workers increased to 8.2 months when compared to 5.8 months in fiscal year 2019.
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick goes over a brand new and unexpected change in policy being followed by the United States Citizenship and Immigration Services (USCIS) with respect to Employment Authorization Documents (EADs) for green card applicants.
Want to know more about this important change? Just keep on watching!
Overview
This month has brought unexpected news for green card applicants. The U.S. Citizenship and Immigration Services (USCIS) recently announced that it will be discontinuing its policy of issuing employment authorization documents (EADs) and advance parole travel authorization as a joint “combo” card. Up until recently, green card applicants could send Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document, along with their I-485 green card applications to apply for a “combo” work/travel authorization card. This “combo” card enabled green card applicants to work and travel while their applications were in process with USCIS.
The agency has now confirmed that it will be separating the issuance of the employment authorization document (EAD card) and advance parole (AP) document and will no longer be issuing these “combo cards.” USCIS has said that this new policy change has been implemented to reduce EAD processing times. Effective immediately, the agency will now be issuing EAD and AP documents separately.
Applicants with EAD cards that do not have the notation “Serves as I-512 Advance Parole” will only be able to use their EAD card for employment purposes, and not for travel. A separate Advance Parole document must be issued by USCIS in order for the applicant to engage in international travel. Traveling without a valid Advance Parole document will result in the abandonment of the applicant’s green card.
Why the change?
USCIS has been experiencing abnormally high processing times for I-765 Applications for Employment Authorization, causing serious delays during the COVID-19 pandemic. For instance, the Nebraska Service Center is currently reporting processing times of between 11.5 to 13.5 months for an EAD to be issued based on a pending adjustment of status application. While the California Service Center is currently reporting a wait period of between 20 months to 21.5 months.
While USCIS has been doing its best to reduce the EAD backlogs, many applicants have faced employment interruptions during what is already a difficult economic climate.
USCIS has said that it is working through the EAD backlog and is prioritizing EAD adjudication as it seeks to avoid applicants experiencing a lapse or prolonged lapse in employment authorization. At present, there is no additional information available on the scope or duration of this procedural change
Can I Expedite an EAD Card?
The answer is it depends. USCIS has established clear guidelines explaining when an EAD card may be expedited. In general, USCIS considers an expedite request if it meets one or more of the following criteria or circumstances:
Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:
Timely file the benefit request, or
Timely respond to any requests for additional evidence;
Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization by itself, without evidence of other compelling factors, does not warrant expedited treatment. In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.
Emergencies and urgent humanitarian reasons;
In the context of an expedite request, humanitarian reasons are those related to human welfare. Examples may include, but are not limited to, illness, disability, extreme living conditions, death in the family, or a critical need to travel to obtain medical treatment in a limited amount of time. An emergency may include an urgent need to expedite employment authorization for healthcare workers during a national emergency such as the COVID-19 pandemic. Additionally, an expedite request may be considered under this criterion in instances where a vulnerable person’s safety may be compromised due to a breach of confidentiality if there is a delay in processing the benefit application. A benefit requestor’s desire to travel for vacation does not, in general, meet the definition of an emergency.
Nonprofit organization (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural or social interests of the United States;
A nonprofit organization seeking to expedite a beneficiary’s benefit request must demonstrate an urgent need to expedite the case based on the beneficiary’s specific role within the nonprofit in furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests). Examples may include a medical professional urgently needed for medical research related to a specific social U.S. interest (such as the COVID-19 pandemic or other socially impactful research or project) or a university professor urgently needed to participate in a specific and imminent cultural program. Another example is a religious organization that urgently needs a beneficiary’s specific services and skill set to continue a vital social outreach program. In such instances, the religious organization must articulate why the respective beneficiary is specifically needed, as opposed to pointing to a general shortage alone.
U.S. government interests (such cases identified as urgent by federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, National Labor Relations Board, Equal Opportunity Commission, U.S. Department of Justice, U.S. Department of State, U.S. Department of Homeland Security, or other public safety or national security interests); or
U.S. government interests may include, but are not limited to, cases identified as urgent by other government agencies, including labor and employment agencies, and public safety or national security interests.
For expedite requests made by a federal agency, involving other public safety or national security interests, the national interest need must be immediate and substantive. If the need for the action is not immediate, expedited processing is not warranted. A substantive need does not mean that a delay would pose existential or irreversible consequences to the national interests but rather that the case at hand is of a scale or a uniqueness that requires immediate action to prevent real and serious harm to U.S. interests.
Expedite requests from government agencies (federal, state, or local) must be made by a senior-level official of that agency. If the request relates to employment authorization, the request must demonstrate that the need for a person to be employment-authorized is mission-critical and goes beyond a general need to retain a particular worker or person. Examples include, but are not limited to, a noncitizen victim or witness cooperating with a federal, state, or local agency who is in need of employment authorization because the respective agency is seeking back pay or reinstatement in court proceedings.
Clear USCIS error.
Not every circumstance that fits in one of these categories will result in expedited processing.
What You Can Expect Going Forward
It is too early to say how effective this new policy will be at reducing the backlogs. Therefore, it is important for applicants to file their applications well in advance of their anticipated employment and planned travel to avoid facing any dilemmas.
Applicants should continue to monitor their pending EAD applications closely and avoid making any travel plans while the applications are pending. We are hopeful that this new policy change will be a welcome improvement, however no estimates can be made with respect to how long it might take USCIS to issue these stand-alone employment authorization and advance parole documents going forward.
The Law Offices of Jacob Sapochnick will continue to monitor these new developments and will report on any new updates right here on our blog.
Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.
For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick goes over the upcoming March 2022 Visa Bulletin and what you can expect in terms of movement or retrogression in the employment based and family sponsored preference categories.
The visa bulletin is issued every month by the Department of State. It shows which green card applications can move forward, based on when the immigrant petition that starts the green card process was originally filed. The visa bulletin allows you to estimate how long it will take before you will be able to get your green card, based on how quickly the “line” is moving now. You can check the visa bulletin on a monthly basis to determine your place in line.
Overview
What’s happening in the employment-based categories?
FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE
According to the Department of State’s March 2022 Visa Bulletin, the following final action cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:
EB-1: All countries, including India and China, will remain current.
EB-2: India will advance by 4 months to May 1, 2013, and China will remain at March 1, 2019. All other countries will remain current.
EB-3 Professionals and Skilled Workers: EB-3 India and China will remain unchanged from the previous month, at January 15, 2012, and March 22, 2018, respectively. All other countries will remain current.
EB-5: The Non-Regional Center program will be current for all countries, including China. The Regional Center program has expired and is listed as unavailable in the March 2022 Visa Bulletin. If reauthorized, the Regional Center category will also be current for final action for all countries except China, which would be subject to a November 22, 2015 final action date.
Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
C
2nd
C
01MAR19
C
01MAY13
C
C
3rd
C
22MAR18
C
15JAN12
C
C
Other Workers
C
01MAY12
C
15JAN12
C
C
4th
C
C
01MAY17
C
01APR20
C
Certain Religious Workers
U
U
U
U
U
U
5th Non-Regional Center
(C5 and T5)
C
C
C
C
C
C
5th Regional Center
(I5 and R5)
U
U
U
U
U
U
Which filing chart do I use if I want to apply for adjustment of status based on employment within the USA?
What can be expected moving forward from the employment-based categories?
In this month’s visa bulletin, the most important highlight is that EB-3 China Other Workers advanced by one-month to July 1, 2015, and EB-4 El Salvador, Guatemala, and Honduras retrogressed by almost 2 years.
Additionally, DOS estimates that it may soon be necessary to establish EB-5 Non-Regional Center Final Action and Dates for Filing cutoff dates for China. DOS predicts this may occur as early as April 2022, which would make the category no longer current for China-mainland born nationals.
DOS also predicts that EB-2 India might soon retrogress in the coming weeks.
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick discusses a hot topic in the world of immigration, why is the National Visa Center taking such a long time to process cases? What are some predictions on the status of visa processing in the future? If you are interested in receiving more information about the National Visa Center, or if your case is stuck at the National Visa Center, this is the right video is for you.
Overview
In this video, we will discuss the National Visa Center February backlog report, which contains important statistics and data that has been provided by the Department of State to provide transparency to the public. The Coronavirus pandemic has caused an enormous backlog at Embassies worldwide, which are expected to continue for months to come. Please note that the National Visa Center backlog report changes on a regular basis, and often the information released can become easily outdated as the NVC works to move these cases through the pipeline.
In addition, this data is specific to cases that have been processed by National Visa Center and that have been determined to be “documentarily complete.” It does not reflect Immigrant Visa cases that have already been transferred to an embassy or consulate for interview, cases that are still with USCIS for petition approval, or cases that are not considered documentarily complete.
First let’s discuss, what is the National Visa Center?
The National Visa Center (NVC) is a government agency that is responsible for the pre-processing of all immigrant visa petitions approved by the United States Citizenship and Immigration Services (USCIS) including family sponsored and employment-based immigrant petitions of foreign nationals residing overseas. The National Visa Center serves as an intermediary between USCIS, where the immigrant visa petition was first approved, and the U.S. Consulate, where the foreign national will eventually undergo their immigrant visa interview.
Once the immigrant visa petition has been approved by USCIS, the application is then forwarded to the National Visa Center located in Portsmouth, New Hampshire, where it will be pre-processed and retained until the immigrant visa application is ready to be adjudicated at the foreign national’s closest U.S. Consulate or Embassy. It takes approximately 30-60 days for an immigrant visa application to be transferred from USCIS to the National Visa Center. The National Visa Center recommends that an applicant wait at least 90 days from the date of the immigrant petition’s approval before calling to confirm the receipt of an application. Remember that an immigrant visa will not be scheduled for an interview, until the applicant’s priority date becomes current on the Visa Bulletin. Certain categories of immigrants are not subject to numerical limitations, while many others are.
How long will the NVC take to process my case?
After you have submitted all of your required documentation to the National Visa Center, paid the visa fees, and uploaded all of the necessary documents to your Consular Electronic Application Center (CEAC) portal, it can take anywhere from 3 to 6 months for the National Visa Center to review your documentation and determine that your case is “documentarily complete.”
If you have submitted all documentation as required by the National Visa Center, you will receive an email which states the following:
Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick provides a brand-new update from the Department of State granting immigrant visa fee exemptions for certain visa applicants who were previously denied visas under Presidential Proclamations 9645 and 9983.
Want to know more? Just keep on watching
Overview
As you may be aware, on January 20, 2021, President Biden issued Presidential Proclamation 10141, “Ending Discriminatory Bans on Entry to the United States,” which immediately rescinded Proclamations 9645 and 9983. These Proclamations had temporarily banned the entry of immigrants from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.
The Department of State has now made changes to its regulations calling for the exemption of immigrant visa (IV) fees for certain applicants who were previously denied an immigrant visa solely based on the temporary travel ban outlined in Proclamations 9645 and 9983.
What changes has the government made?
Effective immediately, all immigrant visa applicants who were previously denied an immigrant visa on or between December 8, 2017, and January 19, 2020,with the sole ground of ineligibility based on Proclamations 9645 or 9983, will be exempted from paying a new immigrant visa application fee or affidavit of support fee if they are reapplying for an immigrant visa.
Applicants will not need to pay a second fee if the following conditions are met:
The immigrant visa applicant was previously denied an immigrant visa on or between December 8, 2017, and January 19, 2020; and
The sole ground of ineligibility was based on Presidential Proclamation. 9645 or P.P. 9983; and
The applicant is reapplying for an immigrant visa.
The Department of State has made clear that this new change in regulation is not retroactive and no refunds will be distributed based on this change. This new provision will allow for a one-time exemption of the applicable fees per applicant.
Separate from this form of relief, the Department of State regulation 22 C.F.R. 42.81(e) states that an immigrant visa applicant is not required to pay a new application fee when seeking reconsideration of a visa refusal, so long as they (1) apply within one year of the refusal date, and (2) provide additional evidence that overcomes the ineligibility on which the visa was denied.
The Department of State has said that individuals who were refused on or after January 20, 2020, may benefit under that regulation and fee exemption, because they are presumed to have sought reconsideration of their prior refusals on January 20, 2021, when the President issued Proclamation 10141.
Welcome back to Immigration Lawyer Blog! Are you an entrepreneur wishing to work in the United States temporarily? In this video, Jacob Sapochnick discusses how you can live and work in the United States as an entrepreneur on an O-1A visa.
Want to find out more? Just keep on watching.
Overview
As you know there is no clear pathway in U.S. immigration law for entrepreneurs to obtain a U.S. visa to work in the United States. While many had hoped that comprehensive immigration reform would bring about much needed changes in our current immigration system to afford entrepreneurs the opportunity to build their businesses in the U.S., no “start-up” visa has yet been legislated. However, entrepreneurs are increasingly turning to the O-1A visa as an alternative.
What is the O-1A visa?
The O-1A nonimmigrant visa is suitable for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics (not including the arts, motion pictures, or television industry which is known as the O-1B visa).
To be eligible, applicants must demonstrate extraordinary ability by sustained national or international acclaim and must be coming to the United States temporarily to continue work in an area of extraordinary ability. Extraordinary ability under U.S. immigration law means that you are one of a small percentage who has arisen to the very top of your field.
One of the main drawbacks of the O-1A visa is that you cannot self-petition for an O-1A. You must have a contract with a U.S. employer to establish a valid employer-employee relationship. As an entrepreneur, however, you may form a company in the U.S. which can petition you for an O-1A, so long as a valid employer-employee relationship has been created.
A valid employer-employee relationship exists where other individuals in the business entity can hire, fire, pay, or control your work. At all times, the company (petitioning entity) must be in control of the work conditions. If it is impossible to fire the employee, then no valid employer-employee relationship can be said to exist.
Immigration Lawyer Blog
