The Requirements for EB1
1. The Requirements for Multinational Executives and Managers under the EB1 Immigrant Category
Many employment based immigrant visa application categories require both a job offer by a U.S. employer and a Labor Certification approval by the U.S. Department of Labor (DOL). A job offer is required for EB-1C immigrant visa application for multinational executive or manager, but a Labor Certification approval from U.S. Department of Labor is not required, if the alien beneficiary had one year or more experience abroad as an executive or manager.
The two main advantages for an EB1 Multinational Executives and Managers immigrant petition are:
1) The employer and the alien employee can avoid the Labor Certification process, which are typical to the EB-2 and EB-3 classifications, and
2) The immigrant visa numbers are "current," even for high-demand green card countries such as India and China, so the alien employee is immediately eligible to file a Green Card application after the EB-1C immigrant petition approval.
To qualify for a Green Card as an EB1 Multinational Executive or Manager, the foreign worker must show that he or she was employed by a company affiliated with the current U.S. employer as an executive or manager outside the U.S. for at least one year out of the three years before the transfer to the United States.
The requirements for multinational executives and managers under the immigration first preference are similar to those for executives and managers under the L-1A non-immigrant subcategory. A non-immigrant worker under L-1A status may generally qualify under the immigration first preference category. However, there is no such equivalent of immigration first preference category for the specialized knowledge L-1B workers.
The basic requirements for multinational executives and managers under the EB1 first preference are as follows:
a) the alien must have been employed outside the United States in a managerial or executive capacity for at least one year in the three years prior to the filing of the petition;
b) if the worker is currently in the U.S. working for the same prospective U.S. employer, the three year period is the time preceding his or her entry to the U.S. as a non-immigrant;
c) the foreign employer must have been the same employer, an affiliate or a subsidiary of the prospective U.S. employer;
d) the alien must be coming to the U.S. to work in an executive or managerial capacity; and
e) the prospective U.S. employer must have been doing business for at least one year.
This means that a multinational executive or manager is the one who has been employed outside the U.S. in a managerial or executive capacity for at least one of the three years immediately preceding the filing of the petition.
The U.S. employer must file the petition for the manager or executive. The petition must be accompanied by a statement from the U.S. employer affirming all of the pertinent requirements, including a description of the job duties to be performed by the foreign executive/manager in the United States, the job duties performed by the foreign executive/manager abroad, and the periods of employment by the foreign executive/manager abroad.
Simply presenting evidence which relates to the EB-1C petition requirements does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1C classification, the additional evidence may be requested (Request For Evidence, or RFE)
2. The Requirements of Qualifying Organization and Qualifying Individual as Transferee
One important requirement for EB-1C classification is that there must exist a qualifying relationship between the petitioning U.S. company and the foreign company. Not until there is a full measure of proof evidencing that the foreign and U.S. employers belong to the same qualifying organization will the USCIS grant the EB-1C immigrant classification to the alien beneficiary. In relationship to the foreign company, the U.S. entity may be:
1) Parent company;
2) Subsidiary company;
3) Branch company; or
4) Affiliated company.
In order for an alien to apply for U.S. Green Card in the category of EB-1C Multinational Executive or Manager, there must be a foriegn employer. The foreign employer may take the form of any business organization, such as a company limited by shares, a limited liability company, a partnership, a joint venture, or any other type of business entity.
The company abroad may be the parent, subsidiary, branch or affiliate of the U.S. company. The alien beneficiary of an EB-1C immigrant petition must have been employed in the foreign company in a managerial or executive capacity for not less than one year in the three years immediately preceding the date the petition is submitted. The company abroad must actively engage in business operations and financially viable to support the petition.
Materials submitted in petitions must substantiate that the two organizations, the U.S. employer and foreign entity, whether they are a parent, branch, subsidiary, or affiliate of the other, have common ownership and control to demonstrate that a manager or executive qualifies as an EB-1C beneficiary.
Here, a contractual relationship, i.e. licensing or franchising, is often not sufficient to establish the corporate relationship required for an EB-1C Green Card application. Moreover, if one or both of the qualifying entities has undergone or will undergo some type of corporate reorganization, such as a merger or acquisition, then USCIS must be apprised so that it can determine whether a qualifying relationship between the entities exists or will exist.
3. The Requirements of an Executive or Managerial Capacity
The EB-1C intra-company transferee must have been employed in a qualifying company abroad in a managerial or executive capacity for at least one year within the past three years. In order to better establish the past duties of a multinational executive or manager abroad, it is advisable to provide a breakdown of the percentage of time that the alien spends on each task, in order to present a clear indication that the alien has been functioning primarily in an executive or managerial capacity within the foreign organization.
The past employment of the alien applicant must have been with the same employer, an affiliate, or a subsidiary of the employer and in a managerial or executive capacity. The alien must be coming to the U.S. to work in a managerial or executive capacity for the same company that is a U.S. employer, and has been in business for one year or more. No Labor Certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.If the alien is outside the U.S., he or she must have been employed outside the U.S. for at least one year in the past three years in a managerial or executive capacity by a firm or corporation or other legal entity, or by its affiliate or subsidiary.
If the alien is already in the U.S. working for the same employer, or a subsidiary, or affiliate of the firm or corporation or other legal entity by which the alien was employed abroad, the alien must have been employed by the entity abroad in a managerial or executive capacity for at least one year in the three years preceding his or her entry as a nonimmigrant. The alien may supervise and control the work of other supervisory, professional, or managerial employees, or mange as essential function within the organization, or a department or subdivision of the organization.
If an alien directly supervises other employees, the alien must have the authority to hire and fire, or to recommend other personnel actions such as promotions, or leave authorization. If the alien does not directly supervise other employees, then he or she must perform at a senior level within the organization, or with respect to the function managed, exercising direction over the day-to-day operations of his or her assigned activities. A first-line supervisor cannot be considered a manager unless the employees he or she supervises are professionals.
4. The Specific Definitions of Executive Capacity and Managerial Capacity
USCIS adjudicators could deny an EB1 Multinational Executives and Managers petition, if the alien beneficiary will not be employed in an executive or managerial capacity. The Immigration and Nationality Act has specific definitions of “executive capacity” and “managerial capacity.”
Executive Capacity: The executive capacity primarily focuses on a person's position within an organization. The term “executive capacity” means an assignment within an organization in which the employee primarily:
1) directs the management of the organization or a major component or function of the organization;
2) establishes the goals and policies of the organization, component, or function;
3) exercises wide latitude in discretionary decision-making; and
4) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization
For EB1 Multinational Executives and Managers classification, an alien employee will not be deemed an executive, simply because he or she has an executive title, or because he or she uses some time directing an organization as the owner or sole managerial employee. An executive should be primarily employed in the executive function, and should have sufficient staffs or contract employees to perform the petitioning organization's daily operations.
Also, the petitioner must also establish that the organization is conducting business at a level that would require the services of an individual primarily engaged in executive functions. USCIS adjudicators will consider the nature of the business, including its size, its organizational structure, and the product or service it provides.
Managerial Capacity: The definition of "managerial capacity" allows for both "personnel managers" and "function managers." The managerial capacity means an assignment within an organization in which the beneficiary primarily:1) manages the organization, or a department, subdivision, function, or component of the organization;
2) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
4) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional
The USCIS regulation has a limited definition of the “manager” term, which is contrary to the common understanding of the word "manager” as any person who supervises others. In the USCIS regulation, a first-line supervisor is not considered to be acting in a managerial capacity merely by doing the supervisory duties, unless the employees supervised are professional.
Also, when determining whether the alien beneficiary is functioning in a managerial or executive capacity, USCIS adjudicators will not merely rely on the number of employees that the beneficiary is supervising, but will look at the beneficiary’s role and function within the organization.
5. The Consideration of Function Manager and First Line Manager for EB1 Multinational Executives and Managers Petition
Those persons who are in positions that are more accurately defined as junior management will be excluded for EB-1C Multinational Manager or Executive classification. Positions defined as supervisor or persons with managerial sounding titles only would not qualify. A first line supervisor is not considered to be acting in a managerial capacity, unless the employees who are being supervised are professionals. There are essentially two types of managers qualifying for EB-1C Multinational Manager or Executive classification.
Therefore, a function manager who manages a function or component but does not have qualifying staff responsibilities must manage an "essential function". Here, the term "essential function" generally means a function that is important to achieve the company's goals. Because a function manager may not have authority to execute personnel actions, the manager must operate at a senior level within the company.
A manager may qualify for EB1 Multinational Executives and Managers classification as a functional manager, if the petitioner can show that the alien beneficiary will be primarily managing a function of an organization, even the alien beneficiary does not supervise any employees directly. A functional manager can also be defined as a "manager who has responsibility for one area of activity such as finance, marketing, production, personnel, accounting, or sales."
It should be noted that the "essential function" should be managed by alien beneficiary, but not directly performed by the alien beneficiary. As indicated by USCIS before that an alien employee who primarily performs the tasks necessary to produce a product or service is not considered to be employed in a managerial or executive capacity. Therefore, a manager claiming primarily directing a company's research should not performing the daily laboratory research.
For individuals who work under the supervision of a middle manager and are responsible for managing the daily activities of a group of workers, they are called "first line managers", and USCIS will not consider them as serving in a “managerial capacity”, unless the employees they supervise are professionals. Even if the employees they supervise are professionals, the position of these "first line managers" must be primarily managerial.
- Example 1: An EB1 Multinational Executives and Managers petition was approved for a marketing director for a consumer electronics company. The marketing director had only one employee directly report to him, but that employee directed the work of three outside agencies. USCIS found that a function manager does not have to oversee employees, but rather should manage an “essential function” or operation within the organization.
- Example 2: An EB1 Multinational Executives and Managers petition was denied for a Team Manager of a consulting company. The alien beneficiary’s former position as Senior Software Consultant was only 60% managerial, and the alien beneficiary’s prospective position as Team Manager over 10 employees was not primarily managerial. The EB-1C petition was denyed, even USCIS later granted an L-1A visa petition for the same position.
6. How to Prove the Executive or Managerial Capacity for an EB1 Multinational Executives and Managers Petition
- Example 3: In one EB-1C petition case, USCIS held that a chef of a food service company could not qualify as a "functional manager" for EB-1C Multinational Manager or Executive petition. The EB-1C petitioner assumed that managing food service is an "essential function" for the alien beneficiary, but the petitioner failed to establish that managing food service in one store qualifies as "managing an essential function, department, subdivision, or component of the organization as a whole."
To prove the alien beneficiary will serve in an executive or managerial capacity, the petitioner should show:
1) the alien beneficiary performs the high level responsibilities specified in an executive or managerial capacity; and
2) the alien beneficiary primarily performs these specified responsibilities, and does not spend a majority of time on day-to-day functions.
The Form I-140 petition for EB1-C multinational executive or manger should provide evidence and a cover letter that describes the name of the foreign employer, the position offered in the U.S., the position held abroad and the years of employment as well as the date the beneficiary transferred to the U.S. State the claimed relationship between the foreign employer and the U.S. petitioner, i.e. affiliates, subsidiary, joint venture etc. The EB1-C multinational executive or manger petition should also provide evidence that the U.S. employer has been doing business for at least one year prior to the filing of the petition.
In order to be qualified as a manager, the applicant must satisfy several requirements. Usually, first-line supervisors are excluded from the statutory definition of a manager unless the employees supervised are professionals. Staffing levels are to be considered in relation to the reasonable needs of the business and its stage of development. The statutory definition of a manager provides that, a manager must:
1) Manage a corporation, department, subdivision, or function;
2) Supervise and control the work of other supervisory, professional, or managerial employees, or else manage essential functions;
3) Have the authority to make personal decisions as to hiring and termination, or else function at a senior level; or
4) Exercise discretion over the day to day operations of the activity or function for which he or she has authority.
Therefore, the majority of the alien beneficiary’s duties must relate to operational or policy management. As USCIS noted in one case: “an employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity. The discretionary authority and a managerial or executive title does not mean a person is employed in a managerial or executive capacity.”
The activities not in managerial or executive capacity may include:
Thus, it is critical to clearly specify the job duties that the alien beneficiary will perform, and explain how these duties satisfy the definitions of executive and managerial capacity. It is also important to demonstrate that the alien beneficiary will spend the majority of time engaging in executive or managerial duties.
- supervision of low level employees;
- doing sales work;
- producing products;
- providing services;
- operating machine;
- supervising others producing products or providing services;
- other involvement of company activities not related to management.
7. The Requirements of One Year Employment Abroad as an Executive or Manager
A petition for EB1 Multinational Executive or Manager must be accompanied by a statement from an authorized official of the petitioning U.S. employer which demonstrates that:
1) if the alien is outside the United States, for at least one out of the three years immediately preceding the filing of the petition, the alien has been employed with an organization outside the United States in a managerial or executive capacity; or
2) if the alien is in the United States working for the petitioning employer, or a parent, subsidiary, or affiliate organization by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;
3) the prospective employer in the United States is the same employer, a parent, a subsidiary, or an affiliate of the organization by which the alien was employed overseas; and
4) the prospective United States employer has been doing business for at least one year.
8. The Requirements of the Petitioner Established Its Ability to Pay the Beneficiary's Proffered Wage
The U.S. immigration regulation at 8 C.F.R. 3 204.5(g)(2) states the following, in pertinent part:
“Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In appropriate cases, additional evidence, such as profit loss statements, bank statements, or personnel records, may be submitted by the petitioner or requested by the Service.”
As noted by the USCIS, the alien beneficiary should be remunerated at a proffered wage under an approved petition. While the petitioner is under no obligation to actually pay the proffered wage prior to the petition's approval, the petitioner must nevertheless establish that it was able to pay that wage at the time of filing.
For the petitioner's ability to pay the beneficiary's proffered wage, USCIS adjudicators will focus on the financial figures that represented the petitioner's net income and net assets at the time of filing. While the evidence may establish that the petitioner employed the beneficiary at the time of filing, USCIS will determine that if the employer did pay the beneficiary a salary that was equal to or greater than the proffered wage. Therefore as a result, there should be a facie proof of the petitioner's ability to pay the beneficiary's salary.
As an alternate means of determining the petitioner's ability to pay, USCIS adjudicators may examine the petitioner's net income figure as reflected on the federal income tax return, without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. U.S. courts held that USCIS had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income.
Also, in light of the petitioner's business income, the USCIS may consider the petitioner's net current assets. The net current assets are the difference between the petitioner's current assets and current liabilities. If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net current assets, and the petitioner's net current assets should not be a negative number.
1) If the petitioner's business had been launched for a short period of time, although this factor may explain the petitioner's inability to pay the beneficiary's proffered wage, it does not excuse the petitioner from the burden of meeting the provision's requirement.
2) Also, in the case that petitioner's foreign affiliate has supplied and would continue to supply all the funding necessary to financially support the petitioner's business operation, the fact remains that the petitioner must establish its own ability to pay the beneficiary's proffered wage, notwithstanding the ability of the foreign entity to meet that burden. If the petitioner has failed to establish its own ability to pay the beneficiary's proffered wage, then a petition cannot be approved.
9. The Process of U.S. Permanent Residency (Green Card) Petition in the Category of EB1 Multinational Executives and Managers
The EB1 Multinational Manager or Executive petition process begins with the filing of the USCIS Form I-140, Immigrant Petition for Prospective Alien Worker, by the U.S. employer on behalf of the alien employee with a Service Center of the USCIS.
As an option, the alien applicant may also file concurrent Form I-485, Application to Adjust Status, if an immigrant visa number for the EB-1C category remains immediately available, which is true for most of the cases. The Form I-485 application may be approved only after the approval of the Form I-140 petition.
After the Form I-140 petition is approved by USCIS, the Form I-485 application for permanent residence can then be approved. The USCIS has an option to conduct an interview of the alien applicant, but may also waive the interview. Only after the Form I-485 approved by USCIS, the alien beneficiary's U.S. immigration status is adjusted to lawful permanent resident, and the USCIS will then issue a “Green Card", which a Form I-551, and a Resident Alien Card.
The Form I-140 petition for EB-1C Multinational Manager or Executive must prove that both the U.S. and the foreign entity are qualifying organizations. The petition should show that the alien employee has worked abroad with the same qualifying organization that will employ the alien applicant in the United States.
The petition should also show that the alien applicant worked at least one year with the organization abroad during the preceding three years in an executive or managerial capacity. It should show that the alien employee's education and training make him/her of significantly greater value than hiring a U.S. citizen for the same position.
The U.S. employer should submit the USCIS required documentation, telling the USCIS that the alien employee will work permanently in the United States as an executive or manager. A letter from the U.S. employer is required to describe both the alien applicant's prior duties abroad, and the duties to be performed in the United States. This letter should also prove that the petitioning company can meet the guidelines of a qualifying organization.
Since the USCIS is selective in its procedure of EB-1C Multinational Manager or Executive petition, an EB-1C petitioner should be prepared to know how to respond a Request For Evidence (RFE) notice from USCIS, or even how to appeal a denial.
In summary, for an alien applicant to seek U.S. permanent residency in EB1 Multinational Executives and Managers (EB-1C) category, the following is the process:
1) The alien's employer should file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS.
2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status. An immigrant visa number is always available for EB-1C category.
3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail.
10. How to Organize the Evidence Accompanied with the EB1 Multinational Executive and Manager Petition
Follow the tips below for how to organize the evidence:
1) Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a Request For Evidence (RFE) in the instances where the required evidence described in the instructions and regulations are not initially provided. If providing photocopies of documents, provide clear legible copies.
2) All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.
3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy paper/report written by the alien beneficiary.
4) Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation.
11. The Request For Evidence (RFE) and Notice of Intent to Deny from USCIS
When USCIS (U.S. Citizenship and Immigration Services) needs more information to proceed an immigration application, it will issue the petitioner a Request for Evidence (RFE) notice. The petitioner should respond to the RFE within the timeframe indicated in the RFE notice, usually 30 to 90 days, so that the USCIS immigration official adjudicating the immigration case will have enough evidence to make a decision.
If you receive an RFE notice from USCIS, you should not panic. It does not mean that the denial of your application is inevitable, it only mean that USCIS needs more information from the petitioner, in order to make a right decision. USCIS also has the power to deny an immigration application without first issuing Request for Evidence, so the petitioner should be thankful for the opportunity to correct information, provide more documentation and evidence, and convince the USCIS immigration official to approve your immigration petition.
The petitioner should return the RFE response before the deadline given by USCIS. If you fail to respond the RFE notice, USCIS will either determine that you abandoned your immigration application and issue a denial, or it will make an ultimate decision on the case without the information that it requested, most likely resulting in a denial.
Therefore, it is important that you change your address with USCIS if you move, or make arrangements for your mail to be forwarded to you if you travel extensively. If USCIS sends you a RFE, you don’t want to miss it.
1) Request For Evidence (RFE)
An USCIS adjudicator may issue a Request For Evidence (RFE) on EB-1C cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence (RFE) for EB1 Multinational Executives or Managers (EB1C) Petition". In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB-1C petition, and eventually get your Green Card. Please also visit "How to Prepare a Successful RFE Response for Your EB1 Multinational Executive or Manager (EB-1C) Green Card Application"
An EB-1C petition case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
2) Notice of Intent to Deny
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
If your EB-1C petition is denied by USCIS, you can file an EB-1C petition again, or file in other categories. For example, you can consider the EB1 Aliens with Extraordinary Ability Petition (EB-1A) or EB2 National Interest Waiver Petition (NIW), if you can meet their regulation requirements.
The immigration law does not restrict the time you can file an EB-1C petition again after the rejection of your previous EB-1C application. A previous rejected EB-1C petition does not bar you from submitting another EB-1C petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
12. Apply for Adjustment of Status by Using Form I-485 or Consular Processing after EB-1C based Form I-140 Approval
1) The Form I-485 Application
USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB-1C is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.
An immigrant visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB-1C application is current. Therefore, you can file EB-1C based Form I-140 application with Form I-485 application concurrently.
With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.
2) The Consular Processing
The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation.
After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.
13. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial
Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:
* The requested evidence was not material;
* The required initial evidence was submitted with the petition;
* The request for appearance or additional evidence was complied with during the allotted period, or
* The request for evidence or appearance was not sent to the address of record.
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
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