World Journal Weekly Q & A - September 25, 2011

Q & A 1.

Q&A 1.

Reader on Appeal from P-3 Extension Denial Wishes to Apply Under EB-1A Extraordinary Alien Classification and Wants to Know His Chances.

A performer asks:

I came here as a P-3 performer which was given until June 2010.  I filed for an extension in May 2010, but it was denied in December 2010.  My lawyer has appealed.  At this time, I am interested in applying as an extraordinary performer and adjusting my status to permanent residence in the U.S..  I am a key member of the Chinese opera group, and we have been reviewed in the Chinese newspapers.  We also won a national award in a television show for performers under the age of 35 in China.  What are my chances of getting my green card this way?

Dear reader:

The first question for U.S.C.I.S. will be whether you belong to the EB-1A category for extraordinary aliens who can basically sponsor themselves for a green card.  I do not know enough about your case to comment on your chances except to go over with you the criteria by which U.S.C.I.S. determines whether individuals such as you are eligible.  Applicants must submit evidence of qualifying in three of the following categories if they have not won a major award such as an Oscar, Pulitzer Prize, or Nobel Prize:

  1. Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 
  2. Documentation of membership and associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts. 
  3. Published material in professional or major trade publications or other major media relating to your work in the field for which you are seeking classification. 
  4. Evidence of your participation either individually or on a panel as a judge of the work of others in the same or allied field for which you seek classification. 
  5. Evidence of your original artistic related contributions of major significance in your field. 
  6. Evidence of your authorship of scholarly articles in your field in professional or major trade publications or other major media. 
  7. Evidence of the display of your work in the field at artistic exhibitions showcases. 
  8. Evidence that you have performed in a leading or critical role for organizations or establishments having distinguished reputation. 
  9. Evidence that you have commanded a high salary or other significantly higher remuneration for services in relation to others in the field. 
  10. Evidence of commercial successes in the performing arts as shown by box office receipts or record, cassette, compact disc, or video sales. 
  11. If the above standards do not readily apply to your occupation, you can submit comparable evidence to establish your eligibility. 

U.S.C.I.S. notes that meeting the minimum requirements of eligibility by fulfilling 3 of the above does not mean that the case will be approved as its officers will evaluate the evidence together to make a final merits determination of whether you have demonstrated that you have sustained national or international acclaim and that your achievements have been recognized in the field of expertise indicating that you are one of the small percentage who has risen to the very top of the field of endeavor. 

The second question in your case is whether you will be able to adjust your status in the U.S.  Even though your lawyer has appealed the denial of your P-3 extension application, the fact of appeal alone does not make you legal in the eyes of U.S.C.I.S. for adjustment of status purposes although the agency generally will not act against anyone during the pendency of an appeal.  If you win your appeal, however, all of the time following expiration of your non-immigrant status through the appeal process becomes legal.  Lacking such, your non-immigrant status legally expired on the date that you were last extended by the agency, June 2010.  For employment based cases, the law still allows applicants to apply for adjustment of status in most cases as long as the I-485 adjustment of status application is filed within 180 days of the ending of non-immigrant status.  Unfortunately 180 days have passed since June 2010. Also under law, most who have overstayed their period of non-immigrant stay for 180 days or one year after April 1, 1997, are barred from returning to the U.S. for three years and 10 years respectively.  This time period begins from the date of denial of a timely filed application for extension or a change of status.  In your case, the counting would begin with your denial in December 2010.  The fact that 180 days have already passed since December 2010 means that even if you left the country to pursue consular processing of an approved EB-1A petition, you would encounter the bar to returning.  I note that you can still adjust status without leaving if you are the beneficiary of Section 245(i) which allows most illegal individuals to adjust status upon payment of a fine amount of $1000 if they are able to establish that they had a labor certification nor immigrant visa petition filed by April 30, 2001, and were physically present in the U.S. on December 21, 2000. 

These appear to be the two outstanding concerns to your proposed EB-1A case.  Perhaps you could discuss with your attorney what he/she believes are the merits of an EB-1A filing for you and his/her opinion of the chances of your present appeal.  If your attorney does not feel strongly about the prospects of success on both, you might ask about any other alternatives for staying here in the States.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.