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

EMPLOYER: Hospital

BENEFICIARY: Filipino Registered Nurse

Our client’s beneficiary is a registered nurse from the Philippines who is currently working in the UAE. His prospective U.S. employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). 

Since he is a registered nurse, he 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 Bachelor’s of Nursing degree and has passed NCLEX exam. Our firm told him that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on May 4, 2020, and started on his Prevailing Wage Request.

We filed the I-140 application on November 5, 2020 via premium processing service. We included the job offer letter, the notice of filing, and other necessary supporting documents.

Eventually, on November 17, 2020, the I-140 was approved. 

Once his I-140 was approved, our client retained our office again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on December 18, 2020, who in turn forwarded the client’s materials to the U.S. Embassy in Abu Dhabi, UAE. An interview notice was set for the client at the U.S. Embassy in UAE. On January 20, 2022, our client appeared at the U.S. Embassy in Abu Dhabi, UAE. Eventually, on March 16, 2022, the Embassy approved and issued his immigrant visa. With the approved Immigrant Visa, our client can come to the United States immediately, and he will get his green card within two months of entry.

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CASE: I-140 (EB-3)

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Science Teacher

LOCATION: McIntosh, SD

Our client has a current employer that was willing to petition for a third-preference I-140.  Our client has a Bachelor’s degree in Chemistry, a valid South Dakota Teaching license, and has worked for her current employer since August 2016. Based on our client’s education and work background, our office determined that she is clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in February 2020.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on May 21, 2020.  On September 1, 2020, we filed PERM. On April 19, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s W-2 copy, and other necessary supporting documents.

The I-140 Petition was filed on May 11, 2021 via regular processing service. On February 12, 2022, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE). 

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in November 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary School Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Upon retention, our office filed the H-1B visa petition with various supporting documents on December 23, 2021 via premium processing. On January 13, 2022, the USCIS issued a Request for Evidence for our client’s petition. Our office filed the Response to RFE on the same day. Eventually, our client’s H-1B application was approved on January 25, 2022. She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under a J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 5, 2021 via premium processing. Our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 5, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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

EMPLOYER: Hospital

BENEFICIARY: Filipino Registered Nurse

LOCATION: Crosby, ND

Our client’s beneficiary is a registered nurse from the Philippines who is currently working in the UAE. His prospective U.S. employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). 

Since he is a registered nurse, he 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 Bachelor’s of Nursing degree and has passed the NCLEX exam. Our firm told him that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on May 4, 2020, and started on his Prevailing Wage Request.

We filed the I-140 application on November 5, 2020 via premium processing service. We included the job offer letter, the notice of filing, and other necessary supporting documents.

Eventually, on November 17, 2020, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition since his priority date is current.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipino Special Education Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2020 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under J-1 status. Though he was subject to the INA 212(e), two-year foreign residency requirement, he already obtained a J-1 waiver from the USCIS. 

The proffered position for the Beneficiary is a Special Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2021 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 16, 2020, via premium processing. Eventually, our client’s H-1B application was approved on October 30, 2020 without any RFE.  He can now work for his employer for three years on an H-1B status.

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

APPLICANT: Filipina Speech Language Pathologist

LOCATION: North Dakota

Our client has a current employer that was willing to petition her for a second-preference petition (I-140).  Our client has a master’s degree in speech language pathology, a valid North Dakota speech language pathologist license, and has worked for her current employer since March 2014. Based on our client’s education and work background, our office determined that she is eligible for EB-2 classification for her I-140 petition.  

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order. On January 29, 2019, we promptly filed PERM. Eventually, on April 26, 2019, the PERM Labor Certification was approved – an EB2 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s most recent W-2 record, and other necessary supporting documents.

The I-140 Petition was filed on May 28, 2019 via regular processing service. Eventually, on August 22, 2019, the I-140 EB2 Petition for our Filipina client was approved without any Request for Evidence (RFE). We filed her I-140 petition and I-485 adjustment of status application concurrently. 

However, our office was informed that our client’s DS-2019 was not extended by her employer and she has continuously worked for her employer without the DHS’ authorization. Thus, she worked without authorization and overstayed her visa status. 

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). 

At least, 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).

As mentioned above, 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 brief and explained why our client is still eligible for the adjustment of status through 245K subsection despite her overstay and unauthorized employment.  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 January 6, 2020, our client was interviewed at Minneapolis, Minnesota USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Though interview was thoroughly held, on the same day of the interview, their I-485 applications were approved by the USCIS. 

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

APPLICANT: Filipino Speech Language Pathologist

LOCATION: North Dakota

Our client has a current employer that was willing to petition him for a second-preference I-140.  Our client has a master’s degree in speech language pathology, a valid North Dakota speech language pathologist license, and has worked for his current employer since August 2015. Based on our client’s education and work background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us in March 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on June 20, 2017. On December 13, 2017, we promptly filed PERM. Eventually, on April 26, 2018, the PERM Labor Certification was approved – an EB2 position for the Filipino beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on July 26, 2018 via premium processing service.

However, on August 6, 2018, the USCIS Nebraska Service Center issued Request for Evidence (RFE) and requested our client to submit the documents to show special skills for Beneficiary. On September 5, 2018, our office filed Response to RFE and included the letter from the Petitioner regarding the proof that Beneficiary already obtained his special skills for the proffered position. Eventually, on September 14, 2018, the I-140 EB2 Petition for our Filipino client was approved. 

Once his I-140 petition was approved, he retained our office again and determined to file an adjustment of status application for him and his immediate family members. However, our office was informed that our client’s DS-2019 was not extended by his employer and he has continuously worked for his employer without the DHS’ authorization. Thus, he worked without authorization and overstayed his visa status. 

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). 

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

On December 21, 2018, our office filed an I-485 adjustment of status application for our client and his immediate family members. Our office also submitted a detailed cover brief and explained why our client is still eligible for the adjustment of status through 245K subsection despite his overstay and unauthorized employment.  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 November 6, 2019, our client was interviewed at Minneapolis, Minnesota USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Though interview was thoroughly held, on November 8, 2019, their I-485 applications were approved by the USCIS. 

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Williston, ND

Our client came to the United States as a J-1 exchange visa holder to work as s speech language pathologist. His current U.S. employer filed an I-140 petition in 2018 for him and this petition was approved by the USCIS. Our client and his family members filed their adjustment of status application in December 2018. However, it was not clear whether his program was subject to the two-year foreign residency requirement. His J-1 visa page clearly states that he is not subject to the requirement; though his wife’s J-2 visa page states that she is subject to the requirement. In order to clarify it, our office filed an advisory opinion request to the Department of State in January 2019. The DOS responded that our client is subject to the 2-year foreign residency requirement. 

If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver. Our client needs a waiver and sought for our legal assistance on this matter. 

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On May 9, 2019, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the North Dakota State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in Chicago for further authentication.  On May 22, 2019, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines. Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on October 31, 2019, the USCIS issued an I-612 approval notice for the waiver.

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