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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. He came to the United States and currently works in the United States with his H-1B status.  His current 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 nursing degree and has worked for the sponsor-employer. Our firm told him that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on April 10, 2014 and we started on his Prevailing Wage Request.

We filed the I-140 application on June 25, 2014 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. On April 18, 2015, the I-140 was approved. Now, our client can file an I-485 adjustment of status application based on the approved I-140 petition since his priority date is current in the month of April 2015.

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CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in Texas

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a nursing / rehabilitation center in the greater Houston area under an H-1B status. Her current employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of August 2008.

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.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s previous approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told her that her current employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on November 17, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on January 26, 2015 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on February 4, 2015, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file her immigrant visa application

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CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino Registered Nurse in Bangkok, Thailand

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, he is working at a hospital in Bangkok, Thailand as a nurse. His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of January 2009.

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.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told him that his potential employer can petition him as a Registered Nurse under the schedule A category. More importantly, since the priority date of his previous I-140 was current, he can eventually apply for his immigrant visa via consular processing. Our office was retained on July 27, 2014 and we started on his Prevailing Wage Request.

We filed the I-140 application on October 2, 2014 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on October 8, 2014, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file his immigrant visa application.

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CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Illinois

BENEFICIARY: MDS Coordinator, Filipino

Our client is a Nursing Home Facility in Illinois. They contacted our office in early March to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing. The proffered position for the Beneficiary is a MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents in April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on August 14, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included that Petitioner previously employed and petitioned for an H-1B for the same position.

Our office filed the response to the USCIS Vermont Service Center on October 29, 2013. Our client’s H-1B petition was approved on December 2, 2013.

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CASE: I-140

 EMPLOYER: Hospital

 BENEFICIARY: Filipino

 LOCATION: Erie, PA

Our client is a family physician from the Philippines, who is currently working at a hospital which was willing to do a second-preference petition (I-140) for him. He has a M.D. degree and is a licensed physician in the state of Pennsylvania. He has maintained his status as an H-1B visa holder in the United States.

After talking to our client, our firm concluded that his potential employer can petition him as a Family Medicine Physician. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification for his 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 foreign degree evaluation report, our office filed the job order on November 16, 2011.  On May 10, 2012, we filed PERM.  Eventually, on July 17, 2012, a little after two months from filing, 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, state physician license, our client’s M.D. degree, and other necessary supporting documents.

The I-140 Petition was filed on September 11, 2012 via regular processing.  On May 3, 2013, the I-140 EB2 Petition for our Filipino client was approved.

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CASE: I-140 (EB-2) / I-485
Applicant: Korean
LOCATION: Akron, Ohio

Our client is a prominent Taekwondo master who is working as a Taekwondo coach. He had a Taekwondo school willing to do a second-preference petition (I-140) for him. Our client has a Bachelors and Masters degree in a related field and has more than 5 years of coaching experience. Although he had maintained his status as an O-1 visa holder in the United States, his previous green card application (Based on the EB-11 category) was denied two years ago.

After talking to our client, our firm decided that his potential employer can petition him as a Taekwondo Head Coach. Second preference petitions for Koreans are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for the EB-2 classification. Our client eventually retained us for his PERM labor certification in March, 2011.

As we stated in previous success stories, his PERM Labor Certification was approved on October 25, 2011. After the PERM approval, our client retained us again for the I-140 petition.

We then proceeded with the I-140 Petition filing. One of the main requirements for the I-140 is that the petitioning company must show that it has the ability to pay the proffered wage for the beneficiary’s position. The adjusted gross income was not enough, thus, we attached the tax return schedule that showed the net current assets of the Petitioner, which was over the minimum requirement. We included the job offer letter, employment verification letters from our client’s previous employers, and other necessary supporting documents. The I-140 Petition was filed on December 5, 2011 via premium processing. On December 15, 2011, in only ten days, the I-140 EB2 for our Korean client was approved.

Once his I-140 was approved, our office filed his I-485 adjustment of status application along with supporting documents on January 30, 2012. His wife’s I-485 was filed simultaneously as a derivative applicant of our client’s adjustment of status application. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

However, in May 2012, the USCIS Nebraska Service Center issued Request for Evidence (RFE) for our client and his wife’s I-485 applications.  In the RFE letter, the USCIS wanted them to submit a copy of their marriage certificate.

They participated in a marriage ceremony in Connecticut in 2004, but they did not record their marriage in Connecticut.  Rather, they only recorded their marriage at a local South Korean Government office.  Nevertheless, they have been “married” under Korean law since 2004, and our client’s wife applied for O-3 visas since our client got his O-1 status, with all these relevant facts on hand, and our client’s wife has been granted O-3 extensions too.

In our Response to the RFE, our office argued that their marriage is valid and should be recognized.  This case was transferred to the local USCIS office in Cleveland, Ohio and they appeared at the interview for the adjustment of status interview with Attorney Sung Hee (Glen) Yu from our office on September 4, 2012.

The interview went well, however, the USCIS office denied our client’s wife’s adjustment of status application on September 28, 2012 based on the fact that our client and his wife failed to establish that she married him in a marriage ceremony that was legal in the place where it was conducted.  As a result, the USCIS denial decision stated that she has failed to establish that her marriage to our client is valid for “U.S. immigration purposes.”

Once our client’s wife’s adjustment application was denied, we immediately withdrew our client’s adjustment application as well.  The primary reason for withdrawal was the fact that if his adjustment application is approved, then his wife cannot adjust her status as a derivative applicant. Then, our client would needs to file the I-130 petition for his wife which will delay her adjustment of status for three years.

Since the USCIS decided that our client’s marriage to his wife is not valid for U.S. immigration purposes (due to the immigration requirement that they both be present for the marriage to be valid, even though in South Korea this was not a requirement), our client and his wife had another ceremony and registered their marriage in Ohio to make it valid for “U.S. Immigration Purposes.” They had their marriage ceremony and it was registered in the state of Ohio in October 2012.

With this marriage certificate, our office re-filed our client and his wife’s I-485 adjustment of status application on November 1, 2012. On top of their I-485 applications, our office included an extensive brief in support to explain the nature of this case and its complicated procedural history. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

Eventually, on January 28, 2013, our client and his wife’s I-485 applications were approved by the USCIS Nebraska Service Center.  There were no more RFEs and no interviews. Our client came to the United States in 2002 and has remained in the United States with O-1 visa/extensions. He had a previous I-140 denial under the EB-11 category, and had to withdraw his I-485 application due to the aforementioned marriage issue.  Nevertheless, he and his wife are now finally permanent residents.

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CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Nursing / Rehabilitation Center
BENEFICIARY: Filipina
LOCATION: Des Plaines

Our client is a registered nurse, who is currently working at a large nursing and rehabilitation facility in Des Plaines, Illinois. Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Since she was a registered nurse, 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 Professional Nurses is included in Schedule A.

Our client has a nursing degree and has more than 4 years related experience. Our office was retained on January 31, 2012 and we started on the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on March 29, 2012 via regular processing. We included the job offer letter, employment verification letters from our client’s previous employers, the notice of filing, her H-1B status approval notices, and other necessary supporting documents.  On May 5, 2012, upon our client’s request, we upgraded her processing to premium processing by filing an I-907 application with the required fees. However, the Nebraska Service Center issued Notice of Intent to Deny on May 17, 2012. The USCIS NSC argued about Petitioner’s normal recruiting procedures.  On May 23, 2012, our office filed a Response to Notice of Intent to Deny and argued that Petitioner has no in-house media and their normal procedures do not include the use of in-house media for the recruitment of similar positions. Also, Petitioner did place the notice of filing in accordance with the regulations and that was submitted at the I-140 filing.  On May 30, 2012, the I-140 was approved. Now, our client can file I-485 adjustment
of status application based on the approved I-140 petition when her priority date becomes current. She also will be eligible for a 3-year extension of her H-1B even if she is on her 6th year on H-1B.

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CASE: Employment-Based Adjustment of Status / Derivative Beneficiary
CLIENT: Filipino
LOCATION: Des Plaines, IL

Our client came to the United States in 2007 with an H-4 visa as a dependent of his H-1B visa holding wife from the Philippines.  His wife was working as a registered nurse in the United States. His wife’s previous employer filed an I-140 petition under the EB-3 classification on her behalf.  The petition was later approved, and our client’s priority date was sometime in August, 2001.  Through our legal assistance, our client’s wife obtained her green card in March 2012.

In February 2012, our client sought legal assistance from our office regarding his adjustment of status application.  Based on our client’s wife’s approved I-140, our client was eligible to file for adjustment of status.  Our firm prepared and filed the I-485 Adjustment of Status Application and I-765 Employment Authorization Documentation on February 20, 2012.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  On May 16, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  After a long wait, our client finally became a green card holder.

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Our client came from India and has two approved I-140 petitions, one under the EB-2 category, and before that from the EB-3 category. He filed his I-485 adjustment of status application in 2007 when his EB-3 I-140 priority date was current.   In 2011, our client got another I-140 approval under the EB-2 category.

Our client retained our office on October 6, 2011 for an interfile request to the USCIS so that his I-485 application may be processed according to the availability of immigrant visas in the EB-2 category. At that point the priority date he had would have been current if based on the EB-2 category, which meant that his green card application would be adjudicated soon.

According to the CIS Adjudicator’s Field Manual Chapter 23.2(I)(2)(L):

“In order to convert an adjustment application to a new basis involving a preference classification, the alien must be the beneficiary of an approved visa petition (pertaining to that new basis) which has a current visa availability date. With limited exceptions, a priority date is NOT transferrable from one preference category to another or from one petition to another.

Note: The request for conversion of the adjustment application is a totally separate issue from the priority date determination. Priority dates for preference visa categories are determined in accordance with the provisions of 8 CFR 204.1(c) and (d) for family-based petitions or 8 CFR 204.5(d), (e) and (f) for employment-based petitions and are generally not transferable. The only exceptions to this general rule are:

• Conversion within the first three employment based categories (sections 203(b)(1), (2), and (3), as provided in 8 CFR 204.5(e)”

Since employment based priority dates for the first three preference petitions are transferable, such cases fall within the “limited exceptions” specified in the CIS manual. This provision suggests that substitutions involving different employment preference classifications are permissible, as it is in our client’s case.

The CIS Adjudicator’s Field Manual, in Chapter 23.2(I)(2), sets forth certain specific rules, including:

(C) The request must be made in writing. Verbal requests for conversion are unacceptable.
(D) There must be no break in the underlying eligibility prior to the conversion request.

Section 23.2(I)(C) and (D) of the Adjudicator’s Field Manual provides that an I-485 adjustment application may be converted from one eligibility basis to another if the request is made in writing and there is no break in the continuity of the underlying eligibility for adjustment prior to submission of the conversion request.

With the above standards cited, our office sent an interfile request to the USCIS Nebraska Service Center for our client and his three dependents.  Since our client is the beneficiary of multiple approved I-140 petitions; we requested that the basis of his pending I-485 application be converted to the EB-2 I-140 petition approved on his behalf.  We asked the USCIS to interfile our client’s second approved I-140 petition with his pending I-485 application and process his adjustment application, using his EB-3 priority date but according to the availability of immigrant visas in the EB-2 category, to make his I-485 application available for adjudication.

Eventually, on March 16, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  After a long wait, our client, his wife, and his two children finally became green card holders.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Des Plaines, IL

Our client came to the United States in 2001 with an H-1B visa to work as a registered nurse. Her previous employer filed an I-140 petition under the EB-3 classification on her behalf.  The petition was later approved, and our client’s priority date was August 2001.  Thereafter, she maintained her status as an H-1B visa holder and has extended her H-1B status.

In November 2011, our client sought legal assistance from our office regarding her adjustment of status application.  After reviewing her documents and the Department of State’s visa bulletin, we determined that her priority date was current and that we could apply for her adjustment of status application.  She retained our office on November 14, 2011 and our firm prepared and filed the I-485 Adjustment of Status Application and I-765 Employment Authorization Documentation on November 27, 2011.  Everything went smoothly and the receipt notices and fingerprint appointment came on time.  On February 27, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  After a long wait, our client finally became a green card holder.

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