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Yes. Your attorney or your responsible/alternate officer may request an advisory opinion for you.

You should only request an advisory opinion after you have participated in a J-1 program and you have doubts whether you are or are not subject to Section 212(e).

If you have already received a final determination from the Waiver Review Division that denies your request for a waiver recommendation, you will need to apply again from the beginning for a waiver recommendation. You can use this new information to support your reapplication. You will need to follow all of the procedures for reapplication that you followed for your first application, including paying the $215 fee. If your application is still pending with the Waiver Review Division and you have not yet received a final determination, you should send that information on to the Waiver Review Division for their consideration with your file. Please remember to write your waiver case number on any documentation you send and on the outside of the envelope.

An advisory opinion is a request for a statement from the Waiver Review Division as to whether an exchange visitor is subject to Section 212(e) of the Immigration and Nationality Act, as amended.

There is an internal agency review process, but there is no formal appeal process for the applicant. However, the visitor may be eligible to reapply based on another statutory ground, e.g. if the first application was based on a "no objection" statement from the applicant's home country and then reapplies based on an interested U.S. Government agency (IGA) request, a claim of exceptional hardship to a U.S. citizen or legal permanent resident spouse or child(ren), or based on a fear of persecution if the applicant is required to return to his/her home country.

Applications are denied because the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason, "no objection" applications in Fulbright/USAID funded programs are generally denied.

Yes.

Yes. You will receive a copy of the recommendation.

USCIS will make the final decision regarding the waiver and will contact the exchange visitor directly.

You are subject to return to your former country of residence. J-1 regulations stipulate that an exchange visitor is subject to the country of his/her legal permanent residence at the time that the visitor acquires the J-1 status. The visitor must return to his/her former country of residence in order to fulfill the two-year home residence requirement or he/she must receive a waiver of the requirement.

No. Persecution claims should never be intertwined with claims of exceptional hardship.

Yes. Requests to reopen an exceptional hardship application are made through the USCIS. If USCIS determines the new information warrants a reopening of the case, USCIS will forward a new Form I-612 application to the Department of State for its consideration.

No, unless requested by the Waiver Review Division.

You may submit your application and processing fee prior to submitting I-612 to USCIS or after USCIS has acted favorably on your I-612.

Apply directly to the USCIS on Form I-612. Also apply to the Department of State on Form DS-3035. Please note you will need to apply to both USCIS and the Department of State.

Yes. Requests to reopen persecution applications are made through the USCIS. If the USCIS determines that new information warrants reopening of the case, USCIS will forward a new Form I-612 application to the Department for its consideration.

No. Persecution claims should never be intertwined with claims of exceptional hardship.

No, unless requested by the Waiver Review Division.

You may submit your application and processing fee prior to submitting I-612 to USCIS or after USCIS has acted favorably on your I-612.

Apply directly to the USCIS on Form I-612. Also apply to the Department of State on Form DS-3035.

No. Waiver applications are exhaustively considered, and it is the policy of the Waiver Review Division not to reconsider "no objection" statement applications once a final determination has been made. You may, however, reapply using another statutory basis for waiver should another one apply to your situation.

Appalachian and Delta Regional Commissions, Department of Health and Human Services, Department of Veterans Affairs and Department of Interior for Indian Reservations. Foreign medical graduates may also apply through an individual State's department of health that participates in the Conrad State 30 program.

You can ask the embassy from which you requested the "no objection" statement if it has been sent to the Waiver Review Division. The Waiver Review Division unfortunately does not have the resources to notify each applicant when a "no objection" letter has been received on his/her behalf.

You can send a letter by fax to the Public Inquiries Division requesting the status. It is possible that the case is problematic. The case could be missing documents or the applicant could not be reached at the last known address.

No. Foreign medical graduates sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) to do their clinical training cannot apply for a waiver based on a "no objection" statement.

You may apply for a waiver in any of the remaining statutory bases. If none of the other bases applies to your situation, you must return home to fulfill the foreign residence requirement.

Once you have your case number.

You may contact the consular section of your embassy in Washington, D.C., and request a "no objection" statement to be forwarded to the Department of State on your behalf. The Embassy must forward the "no objection" statement directly to the Waiver Review Division at the Department of State.

There are five statutory bases upon which you can apply for a waiver of the two-year foreign residence requirement:

• a no objection statement from your home government,
• a request from an interested U.S. Government agency on your behalf,
• a claim that you will be persecuted if you return to your country of residence,
• a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your country of residence, and
• request by a designated State health agency or its equivalent.

The period of time a former exchange visitor spends in the U.S. or a third country may count towards fulfillment of the two-year home residence requirement if the person is employed by his or her government in its military service or career foreign service and that person is serving in a country other than the home country at the behest of his/her government. Before the Department can determine that the individual has satisfied the foreign residence requirement, we require a written statement from an official of the home government (through the home-country's embassy in Washington, D.C.) that the individual was or will be serving in the U.S. or third country in the service of his/her home country and at that government's request.

In cases of death or divorce from the J-1, or when a J-2 child reaches age 21, the Waiver Review Division may entertain requests for waivers on behalf of the J-2. The Division will need a completed data sheet, DS-2019/IAP-66 forms of the J-1, divorce decree or death certificate, whichever is applicable, and, for a dependent son or daughter turning 21, a copy of his/her birth certificate.

Yes, if the J-1 applies for and receives a favorable recommendation, members of the immediate family, if applicable, will be included.

Yes, a J-1 visitor’s dependent spouse and child are also subject to the foreign residence requirement.

Only the following visitors are subject to the foreign residence requirement:

• Any part of your participation in the exchange program was paid for, directly or indirectly, by your government or the United States Government. Your program sponsor should have noted on your DS- 2019 (previously the IAP-66) (Certificate of Eligibility for Exchange Visitor Status) if your program was paid for directly or indirectly by your government or the United States Government. You can also discuss this issue with officials from the Bureau of Consular Affairs.
• You are from a country which has been designated by Bureau of Consular Affairs as requiring your skills; or
• You arrived in the United States on or after January 10, 1977 to obtain graduate medical education or training.

States are subject to a requirement that they return to their home country to share with their States are subject to a requirement that they return to their home country to share with their countrymen the knowledge, experience and impressions gained during their stay in the United States. Unless USCIS approves a waiver for this requirement, exchange visitors must depart from the United States and live in their country of residence for two years before they are allowed to apply for an immigrant visa, permanent residence, or change to a new nonimmigrant status, immigrant visa, permanent residence, or change to a new nonimmigrant status.

If you are interested in knowing whether you are qualified for O-1, please email your resume or CV to evaluation@niwus.com for a free evaluation.  Our attorneys will evaluate the case based on the information provided in your resume or CV and notify you of your qualifications for O-1 within two business days.

The approval rate of O-1 cases handled by LPY Law Group is close to 100%. Our attorneys have helped U.S. companies, universities, and research institutes to obtain O-1 visas or status for qualified foreign workers. Click HERE for Sample Approved O-1 Cases.

All cases including O-1 cases are diligently handled by experienced attorneys in LPY Law Group. We strictly follow the deadlines set forth in our work procedures to process each individual case. For details about our work procedure for processing O-1 cases at L&A, please click HERE for a Step by Step Procedure Flowchart.

Spouses and minor children of O-1 are admitted under O-3 status with the same restrictions as the principal. They may not work in the U.S. under this classification.

The O-2 category applies to aliens accompanying an O-1 artist or athlete to assist in a specific event or performance. This person would be acting as an essential and integral part of the artistic or athletic performance of an O-1 artist or athlete because he or she performs support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1.

Yes. The O-1 category also applies to aliens who are coming temporarily and have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.

Petitioner can establish alien’s extraordinary ability by submitting evidence that the alien has received a major, internationally-recognized award, such as a Nobel Prize, OR evidence of at least three of the following:

Petitioner must establish alien’s extraordinary ability by submitting evidence that the alien has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director's Guild Award, or evidence of at least three of the following:

1. Performed or will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
2. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
3. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
4. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the alien is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the alien's achievements;
5. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence; or If the above standards do not readily apply to the alien's occupation, the petitioner may submit comparable evidence in order to establish the alien's eligibility.

The O-1 category applies to aliens who have extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television).

Both O and Eb-1A are visas for alien of extraordinary ability. Although their requirements are similar and overlap each other, they are different visa categories. The major differences between these two categories are: 1) O is a non-immigrant visa while Eb-1A is an immigrant visa (green card); 2) O needs employer sponsorship while Eb-1A does not.

No. There is currently no annual cap on O visas.

To qualify for O visa, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement.

The O non-immigrant category is reserved for Aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1), the artist’s or athlete’s support staff (O-2), and the O-1’s spouse and/or children (O-3).

Employers who regularly file L petitions may file for a blanket L petition in order to obtain continuing approval for itself (and some or all of its parents, branches, subsidiaries and affiliates in the U.S.). This simplifies the process of approving and admitting additional individual L-1A and L-1B workers. After approval of a blanket petition, the petitioner may file for individual employees to enter as L-1 professionals under the blanket petition.

Yes, immediately family members (i.e. spouses and unmarried children under 21 years of age) of L-1 workers are entitled to L-2 status with the same restrictions as the principal. Dependents may be students in the U.S. while remaining in L-2 status, however, dependents may not be employed under the L-2 classification.

No, prevailing wage is not required for L-1 beneficiaries, but U.S. income must be sufficient to prevent the alien from becoming a public charge.

No, unlike H-1B, employer is not required to file LCA in L-1 petitions.

No, unlike H-1B, there is currently no annual cap on L-1 visas.

Qualified L-1 employee must have been employed abroad for the corporation, firm, or other legal entity (or an affiliate or subsidiary thereof) on a full-time basis for at least one continuous year out of the last three-year period to qualify.

The L-1 non-immigrant category, also known as intracompany transfree visa, applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers come to the U.S. as intracompany transferees who are coming temporarily to perform services either in a managerial or executive capacity (L-1A) or which entail specialized knowledge (L-1B) for a parent, branch, subsidiary or affiliate of the same employer that employed the professional abroad.

If you are interested in filing H-1B and want to know your qualifications, please complete a brief H-1B Evaluation Questionnaire and email it with your resume to h1b@niwus.com for a fee evaluation. The H- 1B Evaluation Questionnaire can be obtained from Here.

H-1B cases, like other types of cases, are professionally handled by an experienced attorney in our law firm. At each step of the process, employers and beneficiaries will be contacted and advised by an experienced attorney, NOT a paralegal, law clerk, or legal assistant. For more details, please see the Step by Step H-1B Processing Flowchart.

Yes, a foreign H-1B worker can work part-time, but the work hours must be specified in the H-1B petition.

As long as the employer/employee relationship exists in compliance with the H-1B requirements, you are in valid status. Just like other workers, you may be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting your status.

Yes, you may change status to H-1B even after you filed immigrant petition. Although H-1B is a non- immigrant visa, it allows immigrant intent and an H-1B petition cannot be denied on the immigrant intent basis.

Unlike other non-immigrant visas such as F and J that do not allow immigrant intent, H-1B visa has dual intent, which among other things, allows filing of immigrant applications without affecting their non- immigrant status.

According to the H-1B portability rule, you can start to work for the new employer after your new employer properly files the H-1B petition in your behalf. You do not need to wait till the new H-1B approval to change your employment. For more information about H-1B portability, please read our special section on H-1B Portability Issues Related to Change of Employer.

Yes, H-1B workers may work for more than one U.S. employer, but each employer involved must file an H-1B petition and the petition must be approved.

Yes, you may change H-1B employers and at the same time keep you H-1B status, but the new H-1B employer must file a new H-1B petition for you properly before you begin working for the new employer.

You will be able to extend H-1B status in one-year increments beyond the six-year limit if your Labor Certification application (Form ETA-9089) or your employment-based immigrant petition (Form I-140) has been pending for 365 days or more. Therefore, to be eligible for the one-year extension at a time, a Labor Certification application or I-140 petition must be filed before the H-1B reaches the 6th year.

You will be eligible to extend H-1B status in three-year increments beyond the six-year limit if your I-140 petition has been approved but you are unable to obtain green card due to the retrogression of priority date.

A foreign worker can obtain an extension of H-1B status beyond the 6-year maximum period if he or she meets one of the following conditions:

1. 365 days or more have passed since the filing of a Labor Certification (Form ETA-9089), or an employment-based immigrant petition (Form I-140) if Labor Certification is not required; or
2. An employment-based immigrant petition (Form I-140) has been approved but due to the retrogression of priority date, the foreign worker is unable to obtain green card.

H-1B petitioning employer is required to file a Labor Condition Application (LCA) with the Department of Labor (DOL) attesting to a number of items, including payment of prevailing wages for the position, and the working conditions offered. The LCA must be certified by DOL before the H-1B petition is filed with USCIS.

Under current law, a foreign worker can be in H-1B status for a maximum period of six (6) years at a time. After being on H-1B for six years, the foreign worker must remain outside the United States for at least one year before another H-1B petition can be approved. There are, however, a few exceptions to the six-year limit, which allow a foreign worker to extend their H-1B status beyond six years.

No, a foreign worker is not subject to the annual cap if he/she used the H-1B quota in the past 6 years.

H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is considered as a “U.S. employer” for H-1B purposes if its U.S. entity meets the following requirements: 1) it engages a person to work within the U.S.; 2) it has the authority to hire, pay, fire, and supervise employees; and 3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN).

No, current H-1B workers who have used the H-1B quota are not subject to the annual cap.

Yes. As long as you have obtained an advanced degree in the U.S., you can use the additional 20,000 H-1B visas for advanced degree professionals.

The earliest date for U.S. employers to file new H-1B petitions under the 2010 FY cap is April 1, 2009.

No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced degree in the U.S.

The new H-1B visas available for FY 2010 are 65,000. In addition, 20,000 foreign workers who obtained advanced degree in the U.S. are exempted from the 65,000 cap.

It is not enough that an employer requires bachelor’s degree for a specific position. Pertinent laws set some objective standards for determining whether a specific occupation requires a bachelor’s degree for entry into the occupation. For more information regarding the standards to determine the requirement of bachelor’s degree, please read our special section on Standards to Determine Specialty Occupation.

While some occupations are clearly “specialty occupations” as defined by laws and regulations, others are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such as computer programmer, general manager, librarian, consultant, designer, etc., determination of “specialty occupation” is an extremely complicated process and many factors should be considered. We suggest that H-1B petitioners or beneficiaries consult with an experienced immigration attorney regarding their specific cases.

When determining whether a specific position is a “specialty occupation”, the USCIS will look into the job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. For more information regarding the standards to determine specialty occupation, please read our special section on Standards to Determine Specialty Occupation.

The H-1B is a nonimmigrant classification granted to a foreign worker who is employed temporarily in a specialty occupation, or a fashion model of distinguished merit and ability. For a Step by Step H-1B Processing Flowchart, please click Here.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree or its equivalent for entry into the occupation in the U.S. Examples of specialty occupation include, but are not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, etc.

Both Schedule A Exceptional Ability in Sciences or arts and Eb-1A Extraordinary Ability are immigrant categories. However, there are major differences between these two categories. For example, Eb-1A does not require employer sponsorship and permanent job offer. But Schedule A requires permanent employment from a U.S. employer.

No. Schedule A immigration petition must be filed by a U.S. employer.

The current list of Schedule A occupations include:

1. Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
2. Professional Nurses - the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
3. Sciences or arts (except performing arts) - Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
4. Performing arts - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

Schedule A is a list of occupations for which the Department has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.

Many employment based immigration categories require a Labor Certification from the Department of Labor before a petition can be filed with USCIS. Schedule A occupations are pre-certified by the Department of Labor, therefore petitioner can skip the Labor Certification process and file petition with USCIS directly.

The recruitment standards and procedures for Optional Special Recruitment PERM is different from the regular PERM processing. Please click HERE for a Step by Step Optional Special Recruitment PERM Processing Flowchart.

Optional Special Recruitment PERM is specifically tailored for college or university teachers. To be eligible for Optional Special Recruitment PERM, the employment must meet the following requirements:

1. The position must be tenured or on tenure track;
2. The employer must have advertised the position in a professional print media;
3. The PERM application must be filed within 18 months after determination of the employment.

PERM application is a complicated process that involves both the U.S. employer and the alien beneficiary. Please click HERE for a Step by Step PERM Processing Flowchart.

In Eb-3 and Eb-2 (except for National Interest Waiver) immigrant petitions, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL. The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

A labor certification, or permanent labor certification, issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States.

PERM stands for "Program Electronic Review Management". Starting from March 28, 2005, The computer-based PERM system along with a new set of procedures replaced the traditional paper-based review of labor certification application.

No, a labor certification is not required for Eb-1C petition.

The petitioner of EB-1C must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad.

EB-1C, also known as classification of multinational managers or executives, is given to executives and managers of foreign companies who are transferred to the U.S.

A multinational manager or executive is eligible for this category if he or she has been employed outside the U.S. in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the U.S to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

The approval rate of Eb-1B cases handled by LPY Law Group is substantially higher than thenational average. He has helped many qualified foreign nationals obtain permanent residency throughthe classification of Outstanding Researcher/Professor. Click HERE for his Recently Approved Eb-1B Cases.

The information provided in the initial evaluation may be different case by case because we do not use a broad brush template to answer every request. Each individual case is unique. Basically, however, our evaluation includes the following information: (1) whether your credentials meet the minimum Eb-1B requirements; (2) whether your case has a reasonable chance to be approved; (3) if, in our best judgment, you are not qualified for Eb-1B, what other options you have to obtain to green card.

Now you know the basics about Eb-1B from our website. If you are wondering whether your credentials qualify you to file an Eb-1B petition, or how good your chance is to be approved, e-mail your resume or curriculum vitae to zliu@niwus.com. Attorney Liu will personally review your credentials and get back to you with a written evaluation within two work days. The evaluation is free and you are under no obligation to retain us after the evaluation.

No, a labor certification is not required in Eb-1B petition.