In the Business and Transactional Department at Reeves & Associates we specialize in all types of cases including Multinational Executives and Managers for L-1 nonimmigrant visas and Employment-Based (EB) 1st Preference applications. The first step in obtaining employment-based permanent resident status is the filing of an Immigrant Petition for an Alien Worker. The following is in relation to issues and concerns about the Immigrant Worker Petition.
The effect of a prior L-1 approval on an Employment-Based first preference filing: The INS has stated that it may deny an EB-1 petition even though a previous L-1 case may have been approved. However, they have said that they will only deny the petition if: (1) they clearly committed an error in approving the L-1 petition, or (2) the alien no longer qualifies for the first preference category due to a change in circumstances. The INS will not accept a prior L-1 approval notice as sufficient evidence for approving the I-140 petition. Full documentation is required for an immigrant petition. Using our years of experience we have been able to compile a very effective evidentiary list of documents required for Immigrant Worker Petitions. Sometimes petitions are approved which may lead to a false sense of security about the viability of the permanent resident application. In fact, the INS may approve a petition without any intention of approving the adjustment of status. Overseas investigations, long delays and discrimination may indeed follow. If your petition was approved, don’t relax! Our firm can commence representation at any time during the case.
Filing an immigrant petition for an alien worker while in the U.S. on a visitor visa: Sometimes aliens enter the U.S. on a Visitor Visa and then immediately file an Immigrant Worker Petition. Applicants can do this; however, be aware that serious consequences could arise depending on the timing of the petition filing. An alien who obtains a visitor visa and then within 30 days of issuance or entry files for change or adjustment of status may be presumed to have committed misrepresentation. The burden of proof falls on the alien to establish that the true intent was to visit. If the change or adjustment of status occurs after 30 days but within 60 days of visa issuance or entry, no presumption of misrepresentation arises. However, if the consular officer reasonably believes the alien misrepresented his or her intent, then the alien must be given opportunity to present countervailing evidence to the consular officer. When such conduct is initiated more than 60 days after visa issuance or entry, the INS does not consider such conduct to constitute basis for finding of ineligibility. The INS considers fraud and misrepresentation a highly serious offense which can be difficult to overcome.
Revocation of Petition: The INS is authorized to revoke a petition at any time, even after the expiration of the petition. The approval of a petition is automatically revoked if the petitioner withdraws the petition. In other cases, the INS must send the petitioner notice of the their intent to revoke the petition if it finds:
(1) one or more entities are no longer qualifying organizations;
(2) the beneficiary is no longer eligible;
(3) a qualifying organization violated L-1 visa requirements;
(4) the statement of facts contained in the petition was not true and correct; or
(5) approval of the petition involved gross error.
Be careful! The INS has been known to deny or revoke an application and not inform the beneficiary.Subsequently, the applicant will go out of status and may be deported. Professional representation is the key to overcoming or avoiding such disasters.
Do not become discouraged if you are experiencing problems. In creating these categories, it was the intent of Congress to promote the improvement of managerial effectiveness, expansion of U.S. exports and increase U.S. competitiveness in overseas markets. In our office we embrace the intent of Congress and have the necessary experience to help qualified applicants get approvals on their applications.
