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NIW EB2 for a J1 scholar. European, not subject to e212

Published Nov 26,2018 By Javier Gutierrez Illan

Hello,

 

and thanks in advance for your work and the excellent information source this site represents.

I am a postdoc currently working in the US. European citizen (Spain), under J1 scholar multiple-entry visa and not subject to e212 two-year rule. I want to apply for a NIW (EB2) and still have 20 months of my J1 visa (expires in May 2020). I have 9 years of experience after obtaining my PhD (Spanish University), about 15 publications and around 1300 citations of my articles. I am preparing (nearly finished) my documentation for the i140 application, and I have a few but quite critical questions:

1- Is my timing sensible, and my steps correct?

2- I intend to send the i140 application this month. Is it advisable to leave the US for christmas or would it be better to wait and send the i140 in January?

3- With my credentials, and 9 letters of support (different countries and Universities) ,what are my chances of success?

4-If my application is approved, will I likely be able to stay in the US during all the process?

 

Thanks a lot again for your help,

Javier

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Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago

Hi Javier,

1. Your timing seems to be sensible.

2. We are not aware of any cases, when the entry with J1 was denied due to pending I-140. In theory it is possible, however.

3. It is impossible to tell what the chances are without looking at the whole petition. In addition to the credentials it is important to have a convincing evidence of the intrinsic merit or your work.

4. If your petition is approved and the priority date for EB2 is current, then you can file I-485 and stay in the U.S. legally even if J1 expires in the process.

Please feel free to ask any further questions in this thread.

Javier
Javier
5 years ago

Hi Tigran,

and thanks so much for this helpful information. In relation to #3, don’t you have any approximate idea of the amount/quality of articles, citations, support letters to have good chances in EB1 or EB2? Based on previous cases I mean. And also, I have read that the NIW is based on limited quotas, or at least that is an important factors. For example, India and China have pretty tight numbers so, for an European citizen should be faster/easier. Is that true?

Thanks again,
Javier

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Javier

Hi Javier,

I apologize for the delay in replying. I would say that predicting EB1A criteria has become difficult, because the bar seems to be raised during the last one-two years. You can look up for the statistics prior to, say, 2015 in the pdf reports by the link below. It includes number of papers, citations and reviewed articles.

https://www.nwmlaw.com/approvals/casesummaries

As you can see, most of the successful EB1A cases had a number of citations between 100 and 200. These curves are from their older reports (they are identical to those and, as you can check, the numbers don’t add up to the current number of approved petitions). Unfortunately, they do not provide the number of denied cases. In the past EB1A reports, they provided a percentage of approved cases, and now they don’t do it anymore, which makes me think that the number of denials increased. This agrees with what I see myself and what other lawyers say. In fact, we recently saw denials of very strong EB1A cases (with 400+ and 1000+ citations) with completely unreasonable justifications, which makes NIW an easier target at the moment. Number of letters depends on the situation. Basically, you should be able to create a coherent story in your petition and the number of letters depends on the amount of evidence you need to prove statements in this story.

Speaking of the “quotas”, situation changed drastically a few months ago. Previously, in general, there was no country-based delay for EB1A green cards. For EB2-NIW there was a backlog for Chinese and Indian nationals. Since about a couple of month ago, however, EB1A is backlogged for the entire world. If you were born in Europe, then you can file I-485 for EB2-NIW at any time, and the priority date for EB1A is 01JUN18, meaning there is currently 6 months backlog. For information, see the table “Dates for filing of employment-based visa applications” by the link below

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-december-2018.html

Javier
Javier
5 years ago

Hi Tigran,

and thanks a lot for the helpful information provided. I have only a couple more questions:

1- I have a J-1 scholar without restriction of the 2-year rule. Having said this, I read about something called J-1 Waiver. Do I need to apply for that? J Visas suppose to be non-inmigrant in intend so, I do not want to apply for something that I am not eligible for.

2- I am in the US with my wife and daughter (J2, dependents). I have completed the I-140 and all the documentation (letters, merits etc), however, there is no mention of them besides the part 7 (information on spouse and all children of the person from whom you are filling). There is no information on the cover letter, merits, etc. It that right? I mean, the decision is made on the academic and research merits of the petitioner, correct? If not, do you provide/sell any package/template of documentation for J1 in my situation?

3- When I pay the fee, the check has to be directed to “US inmigration and naturalization services”? and the check should be physically included in the envelope with the rest of documentation?

Thanks a lot again, I really appreciate your help,
Javier

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Javier

Hi Javier,

[1] You should not apply for J1 waiver, if you are not subject to the 2-year rule. As you do not have the 2-year rule restriction, you can file I-485 at any time, once your priority date is current.

[2] I-140 is filed only for yourself and doesn’t involve/affect your family. The family gets into process only when you file I-485. The template for I-485 together with the cover letter is included in our standard packets.

[3] If you pay by check, you must make your check payable to the U.S. Department of Homeland Security. Yes, the check should be physically included in the envelope with the rest of documentation

Javier
Javier
5 years ago

Hi Tigran,

1- Thank you. But the I-485 should be file once the i-140 is approved, correct? I mean, there is no reason to apply for I-485 if my I-140 is denied. Am I correct here?

2- Thank you. I will purchase one of your 1485 standard packages then

3- Thank you

Tigran Kalaydzhyan
Tigran Kalaydzhyan
5 years ago
Reply to  Javier

Yes, I-485 can be filed after I-140 is approved, but it can also be filed together with I-140 or even if I-140 is still pending. In other words, if the priority date is current, I-485 can be filed at any moment.

Javier Gutierrez Illan
Javier Gutierrez Illan
4 years ago

Dear Tigran,

I recently received a letter fro the USCIS asking me for additional evidence for my case. In particular, the ETA 9089 or the ETA 750B. I was not aware of any of these for someone requesting a NIW. I then have filled the 750B form (which I understand is preferable) and used the provided envelope, along with the letter. I then read in another post that a cover letter is necessary when you receive these letters from the USCIS. I already closed the envelope so, I’m not sure what to do, and if the cover letter is important or not.

Thanks so much again,
Javier

BlogSupport
BlogSupport
4 years ago

If you closed the envelope and it will be easy for the USCIS to identify your case (and that it is in response to the RFE), then I would not worry about the cover letter.

Javier Gutierrez Illan
Javier Gutierrez Illan
4 years ago

Thanks a lot for your response.

I have just received approval of my i-140. Now I have a few questions about the i485 process:

– During the process, is my J1 (and the J2 of my wife and daughter) still valid?
– If I request both EAD and AP (I understand is both in the same physical card), how long (aprox) will it take for us to be able to leace and reenter the USA?

Thanks for all your help and support. This website and the DIY packages are awesome, and critical for helping people like me.

BlogSupport
BlogSupport
4 years ago

Hello Javier,

Congratulations with the I-140 approval! This is the most difficult step in the process and we are glad you managed it!

If you file I-485, your J1/J2 are still valid for staying in the U.S., but you should not use them to reenter the U.S., as this will create a conflict of intents. Waiting time for the EAD/AP varies by the service center. Currently, you can expect 3-5 months, see the link below:
https://egov.uscis.gov/processing-times/

Please also keep in mind retrogression of the priority dates for I-485:
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-september-2019.html

In other words, if your I-140 just got approved, you are not yet eligible to file I-485.

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