FAQ

EB-1 Immigration

What is Terrace Walnut LP’s experience with EB-1 and NIW petitions?

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

How does Terrace Walnut LP assist with the petition?

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards. In addition to working with you, we assist in framing your achievements in terms a lay person can understand. Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate. These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

Who is allowed to file concurrently?

Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.

Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.

What are the legal fees, and what do the legal fees include?

We will provide you a fixed legal fee during the consultation once we evaluate your case. The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation. Please ask any questions you may have about the quoted legal fee and what it includes. The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays. In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx. Rather, we add 6% to each legal fee payment to cover the expenses. We accept Visa, MasterCard and Discover.

Should I file one petition or multiple petitions?

This determination is made on a case-by-case basis. In some instances, we recommend filing both an EB-1 and EB-2 NIW if the NIW is stronger, but you are subject to a backlog in the EB-2 category. If filed at the same time, we charge a reduced rate for the second petition. We will work with you to determine the best option for you.

EB-5 Immigration

What are the basic requirements and timeline for an EB-5 visa?

There are several basic requirements for an EB-5 visa.

Invest the minimum amount in a qualified US business (“New Commercial Enterprise” or NCE) or approved regional center

Create 10 permanent jobs (direct or indirect) for American workers with the NCE
There are three steps to the EB-5 process:

I-526 Petition: Once an investor has made the required investment, they would file the I-526 petition. This petition includes project documents and documents related to the investor’s source of funds.
Conditional Resident Application: USCIS is currently allowing for concurrent filing of a green card application. This means that most applicants, except for those born in India, China, and Vietnam, are eligible to apply for their green card along with the I-526 petition if they are present in the U.S. and meet specific requirements. Otherwise, upon approval of the I-526 petition, if their priority date is current, the investor and family can apply for their conditional green card. The conditional green card, once approved, is valid for 2 years. Within the 90 days before the expiration of the green card, the investor and family members apply to remove the conditions on their green card by filing form I-829.
Form I-829: USCIS will review the and confirm that the investor’s funds stayed at risk throughout conditional resident status and the project created the necessary jobs. Once the I-829 is approved, the investor and family are lawful permanent residents of the U.S.

What is the EB-5 quota?

Congress has allocated approximately 10,000 visa numbers for EB-5 investors and family members. Under the 2022 EB-5 Integrity and Reform Act (“RIA”), 32% of the annual EB-5 immigrant visa quota is set aside for specific types of TEA projects. Here is the breakdown of what those set-asides are reserved for:

20% are for those investing in a rural area of the United States;
10% are for those investing in a high unemployment area (designated by USCIS);
2% are for those investing in qualified infrastructure projects administered by a government entity.

Must concurrent filing be used?

Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait. However, in cases where the person’s ability to extend their H-1B nonimmigrant status past their six-year maximum under AC-21 can be limited by the timing of the filing of the I-485 when their priority date is current, we advise to please check with the attorney since, in those cases, it would be prudent to file the I-485 concurrently with the I-140.

Can I “port” my EB-2 or EB-3 priority date to my EB-5 petition?

Unfortunately, no. You cannot use your EB-2 or EB-3 Priority Date for your EB-5 petition. Your EB-5 priority date is the date USCIS received your I-526 Petition.

I was born in a backlogged country but am a citizen of Canada, will I still be subject to the backlog?

Yes. Unfortunately, the country against which you are “charged” for your visa number is your country of birth. Because you were born in a backlogged country, your visa and that of your family will be charged against the visa numbers for that country.

Immigration Litigation

What is a mandamus lawsuit?

A mandamus lawsuit requests a federal court judge to order the government to take action in a case. It does not and cannot request the judge to approve the case. If the judge believes that the delay is unreasonable, the judge may order the government to complete clearances and/or to adjudicate the application within a specified period of time. Although the time specified by the judge may vary, it is often 30 to 90 days.

Can a mandamus case be filed on behalf of someone outside of the United States?

Yes, however, there are more complicated issues involved when the mandamus case is filed on behalf of someone outside of the United States, and not every type of case is suitable.

Can the judge order the government to pay attorney’s fees?

If the judge issues an order in favor of the plaintiff (the foreign national) the judge can order the government to pay the foreign national’s attorney’s fees under the Equal Access to Justice Act.

How long does it take to get action after filing a mandamus case in federal court?

The answer varies greatly depending upon the Assistant U.S. Attorney (“AUSA”) assigned to the case and the judge assigned to the case. Some AUSAs will work with us to try to get the case resolved quickly without the need for the judge to make a decision and issue an order. Some judges will get involved with the case quickly and force action. Although we have had some cases resolved in less than a month after filing of the complaint in federal court, three to six months after filing is more normal if the government settles the case. If the government makes a motion to dismiss or a motion for summary judgment, it can take much longer.