How do Cap-Subject H-1B Visas Get Assigned?

Cap-Subject H-1B visas are assigned by lottery. Does this mean that someone is picking out of a hat? I hope not. There are less than 85,000 H-1B visas available each year and the supply of these visas is typically exhausted within the first week of filing April 1- April 5. United States Citizenship & Immigration Services (USCIS) record the number of petitions received and announce to the public whether the number of petitions has met the quota. In April 2017, USCIS received approximately 200,000 Cap-Subject H-1B petitions in the first week of April for selection under its fiscal year quota.

Every year, H-1B visas are granted in two primary groups. There are 20,000 visas reserved for foreign nationals who earned their Master’s, Ph.D or higher than bachelor's degree group and another 58,200 visas for foreign nationals who have obtained a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a Bachelor’s degree or higher. USCIS reserves 6,800 visas for citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. These visas are generally under-used and remain available throughout the fiscal year. Unused numbers reserved for H-1B1s are added back to the next year’s total quota.

What is the H-1B Lottery?

The H-1B Lottery in Depth, yet Simplified: USCIS receives H-1B Cap-Subject petitions filed during the first five (5) business days of April. Incomplete petitions are sorted for immediate rejection. Applications that clear the initial quality check will be sorted into two batches, one for petitions on behalf of individuals holding a U.S. earned Master’s (or higher) degree and the non-advanced degree petitions. All petitions are then assigned a random number. USCIS runs a lottery to select winners under the 20,000 advanced degree group. Any cases not selected will then be added to the non-advanced degree group and USCIS then conducts a second lottery. All lottery winners will then have their filing fee checks cashed and receipts for all petitions selected in the lotteries with be created and sent. Petitions that are not selected will be rejected and returned together with the filing fee checks. If USCIS receives more than one H-1B cap petition by an employer for the same foreign national beneficiary under the H-1B cap in the same fiscal year, USCIS will disqualify the petition if selected.

What are the Criteria for the O-1A Visas Extraordinary Ability in the Sciences, Athletics, and Business?

The individual must either demonstrate a one-time achievement at the caliber of an Olympic Medal or Nobel prize, or satisfy at least three of the following criteria:

• Receipt of lesser nationally and internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field which require outstanding achievements of their members, as judged by experts in the field
• Published materials about the individual in professional or major trade publications, or appearance/published materials about the individual in other major media
• Participation, either individually or as part of a panel, as a judge of the work of others in the field (including requests to serve as a reviewer/referee for articles to be published, invitations to serve on discussion and advisory panels, etc.)
• Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field
• Authorship of scholarly articles in the field, as published in professional or major trade publications or in other major media
• Serving in a critical or essential capacity for organizations or establishments that have a distinguished reputation; and/or commanding a high salary or other significantly high remuneration for services, as compared to others in the field.

What are Examples of Evidence that I can Submit to Support my National Interest Waiver Application?

1. Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability: If you obtained your advanced degree outside of the US, you will need to obtain a credential review stating that your degree is the equivalent of a degree obtained in the United States. There are a number of services that you can use to obtain a credential review.

2. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations. This criterion is most easily presented through letters of recommendation from people who are in your field. It is important that the experts writing letters on your behalf come from your field or a very closely related field. The recommendations can come from people in academia, industry, government, etc., as long as they are in your field. These letters are the most critical documents in your application since they can make those working in immigration more comfortable approving you case. Casseus law vets your recommenders before sending the recommendation request to ensure the experts fit the right profile to be providing a recommendation. The goal with the recommendation letters is to show your history of achievement in your field.

3. You can include the work that you performed to obtain your Master's and Phd and also your current work.

4. A license to practice your profession or certification for your profession or occupation: This criteria is usually reserved for architects, lawyers, doctors who require licensure to practice.

5. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability: USCIS is looking for evidence that you have obtained a high wage compared to others in your field. This criterion is rarely used by current Ph.D.’s and postdocs in lab settings, but may be available for high wage earners in industry settings.

6. Membership in a professional association: This can include being a member of a journal editorial staff, member of a scientific society, conference steering committee, review board. USCIS wants your membership to reflect your achievements in your field. Paying $25 to join IEEE or The American Oncologist Society does not count.

7. Authorship of work published in print or on the web: This includes journals, books and patents. We even submitted a case that included sharing code on GitHub as proof of publication. Do not wait to be the first author of a Science or Nature paper to start your green card process! Immigration is not looking for you to be the 1st author on every paper.

8. Patents: Immigration gives weight to patents when they are licensed. You can potentially include all filed and granted patents as proof of original work and contribution to the field.

9. Media Coverage: Capture existing news articles and save them in a PDF format. The media coverage is what others write about you, not what you post yourself. However, you can be proactive and assist in obtaining press – i.e. You can contact NPR to have them write a story about your work. These media stories can complement existing coverage such as media coverage from your institutional website or lab group’s webpage highlighting your work.

10. Awards: Immigration will only consider awards granted to you after you receive your advanced degree: masters or Ph.D. If you don’t have an advanced degree you can include awards won during your professional career. Awards include US government grants, travel awards, conference awards. We are seeing that immigration is recognizing Young Investigator awards granted by professional societies.

11. Grants: You can present grants that you are working under in your lab to show that you are doing work that is in the US national interest because your lab has received US government funding.

Do I need an Employer to Apply for an EB-1A?

No, the EB-1A Category allows an individual to self-sponsor his or her own case. There is no requirement that you have a job offer or employment. I would highly suggest that you apply while you are still in academia or a job to show that you are working in your field.

What are the EB-1A Criteria?

Prove that you meet 3 out of 10 Criterion and Pass the Kazarian Test:

1. An international or national award for excellence in your field.
2. Membership in a professional organization – this is not referring to one that you can pay for, but one that you are invited to join due to expertise in field and your reputation for being a top expert in the field.
3. Publicity in major media and/or trade journals: You the individual must be named in the media report (NPR, New York Times, respected online sources) and the media should discuss YOU and YOUR work.
4. Participating as a judge most commonly presented as performing peer reviewer for journals, acting as a journal editor. You must be individually selected to perform the PI, not acting on behalf of your PI, and you must complete the review. Save the emails asking you to perform the review and the emails confirming that you have completed the review.
5. Original contributions to the field that have had a major impact. For example, you were the first person to identify a novel protein found in skin cancer, your work is currently being used in clinical trials and your continued work is helping to create therapeutics to cure melanoma.
6. Authorship: Publishing books, journals online and/or in print.
7. Display of work at artistic exhibitions or showcases (not usually applicable to scientists, but could be relevant if your work was displayed at a prestigious conference such as the World Economic Summit or NIH conference
8. Having a lead role or critical role at a prestigious institution: This criterion is consistently under scrutiny. USCIS wants you to prove that without your critical role at the institution the work would not have been possible.
9. High Salary: this a rarely used criteria and rarely used by postdocs.
10. Commercial successes in the performing arts- not relevant at all. Please do not include the fact that you are a classically trained ballerina who has performed at Lincoln Center. Your case should only focus on your current scientific achievements.

You are allowed to use other comparable evidence if the above types of evidence do not readily apply to your abilities.

What is the Kazarian Test?

In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under the classification of EB1-A, the Kazarian case. The AAO announced that the Kazarian case sets forth a two-part approach. Part One: the adjudicator counts the evidence provided: one time award or 3 out of 10; Part Two: Final Merits Determination.

Part 1: Did you Meet the Criteria?

The adjudicator reading the case first determines whether the individual has submitted evidence to meet the EB-1A criteria including evidence of receipt of a major internationally recognized award, such as a Nobel Prize, or at least three types of evidence from among the 10 types listed in the regulations listed above. In determining whether the applicant has received a major award (quite unusual) or has shown that she meets at at least three types of evidence, the reviewing immigration officer examines the evidence provided to determine how many evidentiary prongs have been satisfied. After deciding that the applicant shows that they have evidence proving that they meet at least three evidentiary prongs or one major prize has been satisfied, the adjudicator then goes on to part 2.

Part 2: What is the Totality test?

Many people think that as long as they meet three criteria they are all set and should be granted an EB-1A. What they don’t realize is that the officer must consider all of the submitted evidence in its totality to make a determination that the applicant is at the very top of his or her field of endeavor. Officers are looking for evidence of how the applicant’s work has impacted and been adopted by the field as a whole including individuals and companies that are using the individuals work.

What documentary evidence do I need?

The EB-1B requires that you provide two out of six forms of documentary evidence:

1. Evidence of receipt of major prizes or awards for outstanding achievement.
2. Evidence of membership in associations that require their members to demonstrate outstanding achievement.
3. Evidence of published material in professional publications written by others about the alien's work in the academic field.
4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field.
5. Evidence of original scientific or scholarly research contributions in the field.
6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

To Avoid the Backlog, Can I Use the Citizenship of my Spouse?

USCIS allows you to use the doctrine of cross chargeability to adopt the country of birth of your spouse to avoid the backlog, meaning that citizens born in China or India may use the country of birth of their spouse to obtain an immediately available green card as long as the spouse was not born in China or India. Using cross chargeability this means that an a person born in China or India could use the citizenship of their spouse who was born in e.g. Japan to apply for an NIW.

Can I Apply for an Employment Based Green Card from any Status?

Clients ask us all the time, “Do I have to wait to get an H-1B before applying for a green card?” You don’t need an H-1B, but if you can obtain one prior to filing your case, you may save yourself a lot of trouble because the H-1B and L1 statuses allow you to travel outside the US while your green card is pending without your application being deemed abandoned. This is one of the most common questions that we get asked. The answer is not that simple, but for the purposes of this post, it is recommended that you consult an experienced immigration attorney before starting the adjustment of status process. For a simple answer, if you do not have a criminal record, arrests, prior visa overstays or removals from the US, and you are in a valid visa status that is not a visitor visa or ESTA or a J visa subject to 212(e) you could be eligible to adjust your status in the US. Casseus Law has successfully represented individuals in the following statuses obtain permanent residence:

• F-1: Many PhDs go straight form F-1 to a green card without a problem
• H-1B: The nice thing about the H-1B and H-4 is that you are able to leave the US once the green card is filed without the risk of the green card application being deemed abandoned for leaving the US without obtaining a travel document
• TN: Common among Mexican and Canadian scientists in industry position. Yes, they can successfully transition to a green card in the US.
• J-1: You can go from a J-1 to a green card as long as you ensure that you are filing your I-485 90 days after the renewal of your visa or 90 days after your last entry to the US in J-1 visa status to avoid issues of immigrant intent when entering on a non-immigrant visa type. If your J visa is subject to the 212(e) two-year home rule, you will need to obtain a waiver before applying for a green card.
• O-1: Some postdocs working for institutes go from J visas to O-1s to help them stay in status and work while they are waiting for the approval of their J waivers.
• L and E visas: Not a common status for a postdocs, but we have assisted individuals in these status transition to a green card.
• If your status doesn't allow you to file your green card in the US, you will have to consular process your green card outside of the US.

What is the 212(e) Two Year Home Rule?

Individuals on J-1 and J-2 visas that are subject to the 2 year home rule requirement will need to either obtain a waiver or return to their country of residence or citizenship for two years before applying for US permanent resident status. Depending on why you were subject to 212(e) it is recommended that you speak with an attorney before starting the green card process.

How Long is it Taking to get a Permanent Residence Green Card?

This is the number one question that my clients ask me. Everyone wants to know how long it takes to get the green card. It depends on a number of factors including your country of birth, whether you have a criminal record and whether your immigration officer reviewing your case is a meticulous person who likes to move their cases along. As of the date of this writing, The conservative answer one year to 16 months. To give you an inside look as to how long it is taking Casseus Law clients, I provide you with four different cases.

Client 1: Casseus Law filed a National Interest Waiver I-140 and I- 485 Application to Adjust to Permanent Residence Status (green card) for our PhD researcher on October 16, 2017, our client received her green card approval on March 15, 2018 and her physical green card on March 23, 2018 through the US Post Office. This client was extremely lucky. The Texas Service Center approved her I-140 in one month and her case smoothly moved from the Texas Service Center where all cases from Massachusetts are adjudicated to the National Benefits Center where in February she was scheduled for a green card interview at the Boston USCIS office.

Client 2: Casseus Law filed an EB-1A case with a concurrently filed green card for a PhD researcher on May 30, 2017, her green card was approved on February 5, 2018 with a green card interview.

Client 3: Casseus Law filed an EB-1A self-sponsored petition for a PhD researcher from India on January 9, 2018. Her EB-1A case was approved on January 16, 2018 through Premium Processing (for an extra fee of 1225 paid to the US Department of Homeland Security, USCIS will review your case in 15 calendar days. PP only available to EB-1 category cases). The client is still waiting for her green card interview.

Client 4: Casseus Law filed an NIW I-140 for a client on August 1, 2017, he was scheduled for his green card interview on May 1, 2018.

How Long is it Taking Individuals to Obtain their Green Cards?

The estimated time period to receive your 10-year green card through the US adjustment of status process can take anywhere from 8 to 24 months. Below is a sample infographic of steps involved in the process. Processing times and steps will vary on an individual basis.

How Can I Check how long Cases are Taking?

Each service center has a ballpark estimation of how long it is taking them to process cases. You can use this link to see how long cases are taking. https://egov.uscis.gov/processing-times/

What Documents do I need to Compile a Successful Visa or NIW, EB-1A, EB-1B Employment Based Green Card Case?

• Evidence that your work has benefitted and contributed to your field
• Ph.D. Diploma or Masters, if diploma earned outside of the US, obtain a credentials review from a company. Casseus Law uses www.morningside.com
• Doctoral Thesis (Abstract)
• Employment Letter from current job
• Curriculum Vitae
• Google Scholar Citations Report
• Publications: Peer-Reviewed Papers, Book Chapters any proof of publications
• Honors & Awards
• Evidence of leading or critical role on a project
• Judging the work of others by performing peer review, judging competitions, etc.
• Conference Presentations
• Grants awarded to you or your PI showing your involvement
• US Government grants that you are working under NIH, USDA, DARPA,
• Invited Talks, Seminars
• Evidence of Teaching
• Media about you and your work

What Documents do I need to Submit with my Form 485?

It is recommended that you compile the documents that apply to you before starting the permanent residence process.

• Birth Certificate & Translation
• Marriage Certificate
• Proof of Divorce for any Prior Marriage
• Passport Biographical Page (Inside Front & Back Cover Pages)
• I-94 & Travel History you can access this online here
• All US Visas from All Passports
• Current or Past J-visa Holders: All DS-2019 Forms (Certificate of Eligibility for Exchange Visitor)
• If subject to 212(e) J-Waiver from US Dept. of State, if Applicable
• Current or Past F-visa Holders: All I-20 Forms (Certificate of Eligibility for Nonimmigrant (F-1) Student Status)
• Current or Past H-1B Holders: All 797A Approval Notices
• Historical US Immigration Approval Notices, Certificate of Eligibility or Other Form Provided by Your School, SEVIS, Employer or USCIS Granting or Evidencing Your Legal Status or Work Authorization in the US
• All EAD (Work Authorization) Cards and Form I-765 Approval Notices, if Applicable (Often Applies to F-1, non-academic H-1Bs)
• Past 3 years of U.S. Federal Tax Return & W-2s
• Driver's License or State ID
• Social Security Card
• 6 Passport Sized Pictures-Taken Within 6 Months of Filing
• Medical Exam with a USCIS Civil Surgeon - IMPORTANT because medical exams are only valid for one year and need to be as recent as possible given the fact that the average green card can take 8-16 months to be approved wait until your green card interview is scheduled to obtain your medical exam

What is the Most Important Aspect of a Visa or Green Card Case?

Strong Letters of Support

Your Expert Letters of support can mean that your case gets approved, denied or a Request for Further Evidence (RFE) Letters of support are the only opportunity that you are given to present your expertise and impact on your field from the point of view of experts in your field. Please remember, this is not a job reference letter. This letter should cover topics such as - what fundamental principles have you discovered and what your current research goal is and why your work has impacted your field (i.e. finding vaccines for deadly disease, building algorithms to program self-driving cars, tissue engineering for organ replacement). In addition to presenting your expert skills your letter should include technical information followed by a plain language explanation of that work.

How Many Support Letters do I Need?

For O-1 visa and NIW, EB-1A and EB-1B cases, Casseus Law recommends 6-8 letters. For these recommendations, select a mix of experts including 2 dependents – people who have worked with you i.e. your current PI and Ph.D. or Masters PI. The remaining letters should be from independent people who have not worked with you directly or collaborated on a project where they provided you with feedback or mentorship. The platinum standard for an independent expert is someone who has cited your work. Immigration assigns more weight to experts in your field who have not directly worked or collaborated with you, but have used your work to advance their own work.

How Many Citations do I need to be Eligible for a Green Card?

Citations are evidence that your peers in the field have referenced your work (sum of all articles, conferences, books, etc. Some fields may give an individual the opportunity to have more citations than others. All researchers interested in a green card should create a Google Scholar profile or Web of Science page to aggregate their published work. This will help you see where you fall in terms of citations. For researchers especially, you need to show how your citations highlight your impact on your field as a whole. I am sure that you have heard this before, but do not include self-citations as they do not show your influence on the field.

A Special Note on Peer Review

Participating in the scientific review process as a reviewer as proof of your judging the work of others in the field criteria is becoming the norm for National Interest Waivers, EB-1A, and EB-1B applications. Performing peer review at the request of your supervisor is not considered peer review. The peer review request must be directed to you specifically. You must also complete the peer review for it to be counted as proof of judging. Merely being asked to perform is not enough. Casseus Law suggests that if you are not already reviewing papers that you should start contacting journal editors to request to be a reviewer. Proactivity is very important in this case. You can still assist your PI in the peer review process, but remember you cannot use it as documentary evidence for your case – the invitation to be a peer reviewer needs to be addressed to your own personal email directly. Many journals now have a process where you can register that you are available to act as a reviewer. You can find these opportunities online.

Some resources:

• https://www.elsevier.com/reviewers/becoming-a-reviewer-how-and-why
• https://www.sfn.org/news-and-calendar/neuroscience-quarterly/winter-2018/transparency-in-peer-review

What Steps can I take now to start the Visa or Green Card Process?

1. Update your CV and bio sketch whenever you have new accomplishments to add.
2. Obtain copies and translations of documents that are not in English.
3. Create a Google Scholar account
4. Sanitize your LinkedIn, Facebook profile, online presence (if you need to). Immigration does not want people to be affiliated with groups they deem not in line with democracy.
5. Save copies of papers, awards, presentations, in .pdf format.
6. Last but not least, NETWORK! Networking is extremely important for candidates during a job search and it is even more critical for international candidates. Being able to “put a face to a name” will help a candidate get looked at and should help facilitate the interview process. I often suggest to international candidates that they should join their relevant associations/groups. These candidates should also join professional organizations and attend the annual conferences – i.e. Society for Neuroscience for Neuroscientists to network with other members during the poster sessions, panels, exhibit floor, etc. These are wonderful opportunities to build relationships and connect with people who could be beneficial during a career search.