CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: Kailua, HI

Our client contacted us in June 2020 to seek legal representation for her naturalization. She came to the United States from the Philippines and obtained her green card in October 2015.

We filed her N-400 application on July 20, 2020. Prior to her citizenship interview, our office prepared her via conference calls.  On March 9, 2021, our client appeared at the Honolulu, HI USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization interview. On May 14, 2021, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: I-485 Adjustment of Status / 245(k)

APPLICANT: Brazilian Registered Nurse

LOCATION: Kaneohe, HI

Our client is a registered nurse from Brazil licensed in the state of Hawaii. She came to the United States and worked for the petitioner in the United States on her OPT.  Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

Since she is a registered nurse, she is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.

Our client has a nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 4, 2019. We started with the Prevailing Wage Request.

We filed the I-140 application on October 1, 2019 via premium processing. We included the job offer letter, notice of filing, and other necessary supporting documents. The USCIS issued a Request for Evidence on October 9, 2019 and requested our client to submit the Petitioner’s financial record to show ability to pay. We filed the Response to RFE on December 11, 2019 and eventually, on December 21, 2019, the I-140 was approved. 

As we quoted for the green card part of the case, apparently our client’s I-20 was not extended and she has thus overstayed her visa status. However, this was less than 180 days. 

Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

Our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).

On December 13, 2019, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed cover letter and we explained why our client was still eligible for adjustment of status through 245K despite her overstay.  Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference calls as well. On October 27, 2020, our client was interviewed at the Honolulu, HI USCIS office. Though the interview was thoroughly held, the interview went well; her I-485 application was approved by the USCIS on the same day of the interview.  

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CASE: I-140 (EB-3 Category) / Schedule A 

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Brazilian

LOCATION: Kaneohe, HI

Our client is a registered nurse from Brazil licensed in the state of Hawaii. She came to the United States and worked for the petitioner in the United States with her OPT status.  Her former employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

Since she is a registered nurse, she is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.

Our client has a nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 4, 2019 and started on her Prevailing Wage Request.

We filed the I-140 application on October 1, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  However, the USCIS issued Request for Evidence on October 9, 2019 and requested our client to submit the Petitioner’s financial record to show ability to pay the proffered wage for our client. We filed the Response to RFE on December 11, 2019 and eventually, on December 21, 2019, the I-140 was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Vietnamese

LOCATION: Honolulu, HI

Our client is a citizen of Vietnam who came to the U.S. on a J-2 Visa in July 2004.  He came with his father who came on a J-1 Visa for his research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2011. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in December 2011.

Our firm was retained to do his J-2 waiver, and on October 6, 2016, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on November 6, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On February 1, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Immigrant Visa/ I-140 (EB-2 Category) / Schedule A

EMPLOYER: Physician’s Office

BENEFICIARY: Filipina Nurse Practitioner

LOCATION: Petitioner is in Honolulu, Hawaii; Beneficiary is in Manila, Philippines

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has a Bachelor and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on June 10, 2014 and we started the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on September 25, 2014 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  On October 7, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

After her I-140 was approved, our client retained our office again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on January 12, 2015, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Philippines. On May 11, 2015, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued her immigrant visa.

With the approved Immigrant Visa, our client can come to the United States immediately, and she will get her green card within two months of entry.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Physician’s Office

BENEFICIARY: Filipina

LOCATION: Petitioner is in Honolulu, Hawaii; Beneficiary is in Manila, Philippines

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on June 10, 2014 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on September 25, 2014 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  On October 7, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

Since the priority date for Philippine national is current for the EB-2 category, she is eligible to file her immigrant visa via consular processing.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Honolulu, HI

Our client came to the United States in 2008 with an H-4 visa from the Philippines. In December 2012, she changed her status from H-4 to F-1 to pursue her Bachelor’s degree in the United States.  She married a U.S. Citizen in December 2013 and retained our office on January 21, 2014 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 11, 2014.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

The interview was scheduled. However, our client’s U.S. Citizen husband left the U.S. deployment in Afghanistan. Our office submitted an interview rescheduling request to the USCIS Honolulu Field Office, asking for an interview at a later time. However, the USCIS Honolulu Field Office contacted our office and told us that they still want the beneficiary to appear for the interview even without the Petitioner.

Prior to the interview, we thoroughly prepared our client via conference calls. We made sure bona fides are shown at the interview as well as documentation as to why her husband was abroad (U.S. Army Service)

On June 5, 2014, our client was interviewed at the Honolulu, HI USCIS.  On June 6, 2014, her green card application was approved.

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CASE: Change of Status / I-539
NATIONALITY: Filipina
LOCATION: Hawaii
DATE FILED: August 9, 2012
DATE APPROVED: October 5, 2012

Our client came from the Philippines on an H-4 visa (Dependent of H-1B). She was about to turn 20 years old, and wanted to attend a college in the U.S. Her father was still on an H-1B in Cleveland, but the job was not as secure as it was before. If he loses his job, our client will also lose her H4 status.

Her family contacted us. As parents, they wanted the best for their daughter, regardless of what happens to them in the future. Should the family lose their status, they just want to make sure their daughter continues in the States and attend college. They had relatives in Hawaii and they wanted her to stay with them as she goes to college. So they contacted us to get legal assistance for her change of status from H-4 to F-1.

Upon retention, we went into detail with their reasons for requesting a change of status. We made sure all addresses, contact information, and dates on their statements were complete and accurate. We made sure the SEVIS fees were paid and we obtained the I-20 document from our client. We prepared a brief that explained our client’s financial ability to go to school in the U.S.

The application was supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS. Our firm filed the I-539 Extension Application on August 9, 2012. On October 5, 2012, her change of status application was approved by the USCIS with no Requests for Evidence. Now she can stay in the United States and go to college, regardless of what happens to her parents’ situation.

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