I can't begin to tell you how many times I have come across this question: "I was granted asylum by the Immigration Judge after my case was referred to the Immigration Court by the Asylum officer. But I want to make a short trip back to my home country to visit family. Can I go?" The answer to that question is simply this: NO! Period. If, after a favorable grant of Asylum either by the Immigration Court or by the Asylum Office, you go back to the home country where you claimed to be persecuted or that you will be persecuted and killed upon your return, there is a good chance that your travel there will come under sharp and detailed scrutiny by the immigration authorities. You were questioned at length by the immigration officer, by your own lawyer, the government trial attorney and quite very possibly the judge, and only after that traumatizing ordeal you were granted asylum. The reason that you were granted asylum is that you convinced the Judge that upon your return to your country, something horrible would happen to you or to your family. By going to your home country you have essentially said that you no longer need the protection and your status as an asylee or refugee may be terminated.
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The Old Framework for NIWSo you think you're a Rocket Scientist (you probably are) and you want to apply for the National Interest Waiver to get a Green Card and become a LPR (Legal Permanent Resident) of the United States. Well, you're in luck. The law on NIW has changed -- and for the better. If you are an entrepreneur, you'll have an easier time with the NIW's new framework. Let's take a look to see how the new framework operates. The old NIW framework required the following to be demonstrated: 1. The waiver applicant must seek employment in an area that has substantial intrinsic merit. 2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope. 3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant. This is no longer the case. It is entirely fair to say that the new Framework is a Christmas gift to NIW applicants by President Obama. This framework was "overturned" by In Re The Matter of Dhanasar 26 I&N Dec. 884 (AAO 2016) on December 27, 2016. The new framework is more relaxed and entrepreneur friendly. Let's look at the Dhanasar framework. The New Framework for NIWThe AAO (Administrative Appeals Office) in Dhanasar stated that, "Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion." What does preponderance of the evidence mean?: It essentially means that more than 50% of the evidence points to the applicant satisfying the new framework. So if your evidence is at, say, 51% you're good. First Requirement: Notice the word "intrinsic" was struck from the requirement and replaced with Substantial Merit and National Importance. The AAO reasoned that the word "intrinsic" adds little to the analysis. Substantial Merit and National Importance can be demonstrated through the work and achievements of the applicant. There is no hard-and-fast rule for what substantial merit and national importance means. The Second Requirement: The second prong has changed. It is no longer the case that the impact of the applicant's proposed endeavor must be national in scope. This geographic requirement was struck down. Suppose, under the old framework, an applicant's work was located in New York. The impact must have had national impact. It's impact could not have been localized to New York. Now, under the Dhanasar framework, the applicant must be well positioned to advance the proposed endeavor. USCIS would have to consider (not exhaustive) "the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals." The Third Requirement: The third prong has also changed. Notice the difference in the wording: "on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification." Under the new framework, there is no longer a need to show "harm to the national interest or a comparison against U.S. workers in the petitioner’s field." Thank you, Obama! If you would like to find out more about the NIW and whether you qualify for the National Interest Waiver, please contact us so that we may evaluate your resume and background. The Law Office of M. Ray Arvand, PC An Immigration Law Firm 26 Broadway, Suite 2100 New York, NY 10004 #ArvandLaw 212-323-7435 |
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