Alan Lee's Talk At Rutgers University On January 27, 2008 - Q&As posed by the audience concerning H-1B and NIW issues (Part 6 of 6). Published in Sing Tao Weekly on 3/23/08

By Alan Lee, Esq.

(This is the last of six parts of the talk given by Alan Lee, Esq, before the Rutgers University Chinese Students and Scholars Association on January 27, 2008. In this part, Mr. Lee answers questions posed by the audience concerning various aspects of his talk. The questions are focused on H-1B and NIW issues. )

Q. I am studying for my Ph.D., will graduate this year, and I plan to work as a postdoc. Can I apply for a green card under NIW? Can you tell me what is the most important factor in an NIW application? Publications, achievements, recommendation letters? Do the papers contribute much to my case? Most of the papers are published in China and are in Chinese. I had NSF funding in China. Should the recommendation letters come from people from different backgrounds, research institutes, industry or government? How can I relate my major, Environmental Science and Chemistry, to the national interest?

A: What's an important factor? Papers published in China? I don't really think that Immigration is impressed by that. They would like to see peer reviewed publications, people who have a number of papers published over here, or in Europe, or in any other venue where they have been peer-reviewed. Being the first author on these types of papers is much better. If we can point out that the publication itself is one of the top publications in the field, even better. Recommendation letters? We'd like to get a bunch of recommendation letters, at least five to start. You should also be ready that Immigration may ask you for more later on. These should not be from your buddies or people who graduated in the class ahead of you, or all from your professors in schools or institutions that you have attended. Immigration would rather like recommendation letters from people who don't know you except professionally. And when I say professionally, I mean people who have no close association with you, are not working with you, collaborating with you, or went to school with you, or taught you. Of course, if the basis of the NIW request is the applicant's work with his professor who is the supervisor and they're both working on this huge project, we'd like to see a long letter from the professor. We'd like to see whether the school or the professor himself has some fame. We'd like to see the fame of everyone who is writing a recommendation letter. What qualifications do the recommenders themselves have to say that the applicant's immigration is in the national interest? Agency letters, like in this case involving Environmental Science, from the EPA, would be great. These are some of the things that Immigration might be looking at. NSF funding in China? No, that would not be given much weight at all. What are the merits of Environmental Science and Chemistry as a field of national interest? Yes, that is certainly one of the fields of national interest. Biology, Biochemistry, Aerospace, most fields are of national interest as long as you're not studying pure science. I mean, for example, Mathematics, we might have a difficult time trying to figure out how a person trying to solve Poincaire's Solution might be in our national interest. But most of the fields are.

Q: How long should we wait to receive a receipt for our OPT application?

A: That's a good question for which I have no answer because I do not deal with OPT [laughter].

Q: If I have not received a receipt from Immigration in three months, does that mean that Immigration has lost my application?

A: Immigration is telling the public that it has slowed down on the issuance of receipts. That is because of the summer surge of 300,000 + I-485 applications that they received as part of their wonderful little fiasco called Visagate. Because of it, however, Immigration slowed down the receipts for a whole bunch of categories. There was an attorney's conference in December in New York in which U.S.C.I.S. told us that they are catching up with their receipts and that they hoped to have them finished by January. Whether or not they do is up in the air but that is what they told us.

Q: I will graduate with a master's degree in December of this year. My husband plans to submit for a green card through NIW or EB-1. How do we arrange my OPT, H-1B, and green card applications.

A: In this case, since you're graduating, you'll do your OPT and your H-1B. Hopefully, you'll get your H-1B. If you don't, you'll either probably go back to school, or if your husband is holding some other type of nonimmigrant status, you could probably join as a dependent onto his status. Green card application? You can either do it yourself if you have an employer willing to sponsor you. Otherwise, if you're going to ride on your husband's application, you're not really going to be part of the application until the time of the I-485 anyway. At that time, you could put in both I-485s at the same time. If you need advance parole or employment authorization, you could ask Immigration for them at the same time that you file the I-485s.

Q: How can we transfer from an academic H-1B to an H-1B sponsored by a company?

A: You're generally going to have to catch the cap. If you are going to quit a job which is cap exempt and move to a company which is not cap exempt, you have to qualify for the cap. If you're not going to be able to make it in this April rush, that means that you are sort of stuck.

Q: Before I graduate under my F-1 visa, can I apply for an H-1B?

A: If you have an undergraduate degree or some other type of degree that might qualify, great. If you have no other type of qualifying degree, that's usually "no" unless you are able to make a combination of education and experience that could qualify for an H-1B. You should note also that a person who has completed all requirements for the degree and is only waiting for the diploma to be issued is qualified for the H-1B. Immigration will accept a letter from the school stating that you have completed all requirements for the degree. It (the letter) cannot say that you have completed all of your classes, because that is not sufficient. Immigration wants to know that you completed all of your requirements. But if it says "all the requirements", Immigration will take that letter.

Q: Please introduce how to do an H-1B transfer.

A: An H-1B transfer can be done that at any time provided there is no cap issue like moving from academic cap exempt institution to an organization in which the cap applies. If you are in an H-1B cap company at this time and you thus already have a cap number, you can transfer at any time because you will keep that number. And so it does not make any difference whether you transfer in April, May, June, July, August or September. The new employer must go through an H-1B process - that is the same paperwork as for the initial H-1B, the only differences being that you don't have to qualify for the cap again because you already have it, and the employer calling this a transfer, or extension petition.

Q: Will it work that a person can apply for H-1B visa on April 1st with a letter saying "All but degree"? Will this application be denied?

A: "All but degree" -- what does that mean? If that means you already completed everything and are just waiting for the graduation ceremony, that's one thing, but if it means that you have not done your dissertation or defense or one of the papers required for graduation, that might be a problem. We would strongly suggest getting a more definite letter from the school that the individual has already completed all requirements for graduation if that is the case.

Q: I have a master's degree in sociology and a bachelor's degree in engineering. I have a job offer in engineering for which the company will apply for my H-1B in April. Can I qualify for the Masters cap through my master's degree in sociology even though it is not related to my job?

A: Yes, as long as the master's degree was earned at a U.S. institution. Immigration has made clear that an unrelated U.S. master's or higher degree will qualify an individual for the master's cap.

As that appears to be the last question, I want to again thank the Rutgers University Chinese Students and Scholars Association and Mr. Cheng Gao for the opportunity to speak with you today. I wish you all good luck on your future immigration.


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2008 Alan Lee, Esq.


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