CASE: EB-3 I-140

EMPLOYER: Rehabilitation Center in Katy, TX 

BENEFICIARY: Filipina SM Network and Computer Systems Administrator in Malaysia

Our client has a prospective employer that as willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Computer Science and currently works for an IT consulting company in Malaysia. Based on our client’s education and work background, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2018.

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, the job order was filed on September 27, 2018. On January 21, 2019, we promptly filed PERM. 

However, on May 24, 2019, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on June 6, 2019.  

Eventually, on August 29, 2019, 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 academic credential documents, and other necessary supporting documents.

The I-140 Petition was filed on September 18, 2019 via regular processing service. Eventually, on October 11, 2019, the I-140 EB3 Petition for our Filipina client was approved.

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CASE: EB-3 I-140

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Math Teacher

LOCATION: Holyoke, CO

Our client has a current employer that was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Mathematics, a valid Colorado Teaching license, and has worked for her current employer since November 2014. Based on our client’s education and work background, our office determined that she clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2018.

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 August 14, 2018. On December 13, 2018, we promptly filed PERM. 

However, on April 19, 2019, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on April 24, 2019.  

Eventually, on July 15, 2019, 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 most recent W-2 record, and other necessary supporting documents.

The I-140 Petition was filed on July 30, 2019 via regular processing service. Eventually, on September 12, 2019, the I-140 EB3 Petition for our Filipina client was approved.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client is Filipina registered nurse who currently works in the Philippines. Her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140) as a registered nurse. 

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 Texas Registered Nursing License. Our firm told her that her prospective employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 15, 2019 and started on her Prevailing Wage Request.

We filed the I-140 application on August 8, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. Without any issuance of Request for Evidence (RFE), on August 17, 2019, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition when her priority dates become current.

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CASE:I-485 Adjustment of Status /  I-140 (EB-3)
EMPLOYER:  E-Commerce Merchandiser Employer in Dallas, TX

APPLICANT: Korean E-Business Operations Specialist in Lewisville, TX

Our client is from South Korea and his prospective employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Business Administration. After talking to our client, our firm concluded that his employer can petition him as an E-Business Operations Specialist. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification. 

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On November 22, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on July 10, 2017. On September 13, 2017, we promptly filed PERM. Eventually, on June 25, 2018, the PERM Labor Certification was approved – an EB3 position for the Korean 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 17, 2018 via premium processing service. Eventually, on August 2, 2018, the I-140 EB3 Petition for our Korean client was approved without any Request for Evidence (RFE). 

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 wife. On August 23, 2018, our office filed an I-485 adjustment of status application for our client and his wife. 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 June 27, 2019, our client was interviewed at Dallas Texas USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients as well. Eventually, on the same day of the interview, their I-485 applications were approved by the USCIS. 

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CASE: Immigrant Visa / EB-3 I-140 Petition
APPLICANT: Kenyan Sales Manager

LOCATION: Nairobi, Kenya

Our client is from Kenya, who used to work in the U.S. with his H-1B status. His former employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor of Business Administration Degree and has worked for the current employer as a Sales Manager. After talking to our client, our firm concluded that his employer can petition him as a Sales Manager. Based on our client’s education and work background, our office determined that he is clearly eligible for EB-3 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 5, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on July 6, 2016. On September 27, 2016, we promptly filed PERM. Eventually, on November 22, 2016, the PERM Labor Certification was approved – an EB3 position for the Kenyan 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, ability to pay letter, and other necessary supporting documents. The I-140 petition was filed on December 9, 2016 via premium processing service. However, the USCIS issued Request for Evidence (RFE) on December 21, 2016 and request our client to submit documents regarding Beneficiary’s special skills for the proposed job position and employer’s ability to pay proffered wage. Our office prepared and filed Response to RFE to USCIS on January 3, 2017.  Eventually, on January 5, 2017, the I-140 EB-3 Petition for our Kenyan client was approved.

After the approval of the I-140 petition, our client retained us again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on November 29, 2018, who in turn forwarded the client’s materials to the U.S. Embassy in Nairobi, Kenya. An interview notice was set for the client at the U.S. Embassy in Kenya. On March 7, 2019, our client appeared at the U.S. Embassy in Nairobi, Kenya. Eventually, on March 22, 2019, the Immigrant Visa was issued for our client.

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: Adjustment of Status / 245i / I-140 (EB-3)    
APPLICANT: Ecuadorian BAS/HVAC Controls Technician

LOCATION: New York

Our client is from Ecuador. His current employer was willing to do an immigration petition for him, third-preference. Our client has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that his employer can petition him as a BAS/HVAC Controls Technician. Based on our client’s education and work background, our office determined that he eligible for EB-3 classification and our client eventually retained us in May 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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.

However, on April 19, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on May 16, 2018.  

Eventually, on July 11, 2018, the PERM Labor Certification was approved.

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, past experience letters, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on August 8, 2018 via premium processing service. Eventually, on August 17, 2018, the I-140 EB3 Petition for our client was approved without any Request for Evidence (RFE).

Then, he retained our office for the adjustment of status applications for him and his family members. In fact, our client failed to maintain his status in the United States; nonetheless, he could be eligible to file adjustment of status under the INA Section 245(i). Our client is the derivative beneficiary of an I-130 F4 petition filed by his US Citizen uncle to his father filed back in September 1989 and approved in December 1989. Our client was 10 years old at that time.

INA Section 245(i) allows a person to apply to adjust status notwithstanding the fact that he overstayed his immigration status.  Thus, a person who entered legally but overstayed can adjust status based on an approved and current I-140 EB3 Petition if he paid the special fee required of $1000 and files Supplement A to I-485, as long as he is the beneficiary or derivative beneficiary of any approvable immigrant petition under section 204 (including I-130 F4 Petitions) that was filed on or before April 30, 2001 and proves physical presence as of December 21, 2000. INA 245(i). Beneficiaries or derivative beneficiaries who were petitioned prior to January 14, 1998 do not have to prove physical presence in 2000.

According to the Robert Bach’s “Accepting Applications for Adjustment of Status Under Section 245(i) of the “Immigration and Nationality Act” memorandum (“Bach Memo June 10, 1999).  

“Section 245(i) defines the term “beneficiary” to include a spouse or child eligible to receive a visa under section 203(d) of the Act’ This applies to spouses or children ‘accompanying or following to join’  the principal alien…. The spouse or child of a grandfathered alien as of January 14 is also grandfathered for 245(i) purposes. This means that the spouse or child is grandfathered irrespective of whether the spouse or child adjusts with the principal. The pre-January 15 spouse or child also are grandfathered even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age…

Often, a principal alien who has filed a visa petition or labor certification application will have a “child” who reaches the age of 21, and thus no longer meet the statutory definition of child, before the petition or application is approved or the principal alien adjusts status. However, such an “aged-out” beneficiary will remain a beneficiary for the purpose of determining whether he or she may use section 245(i) to adjust status.”

(Bach Memo June 10, 1999)

Thus, since our client was the derivative beneficiary of an I-130 F4 Petition filed in September 1989, which was before January 14, 1998, he and his family are eligible for adjustment of status by virtue of INA 245(i) despite their overstay.

Our office filed their I-485 adjustment of status applications under the 245(i) category for our client on August 29, 2018.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time. We thoroughly prepared our clients prior to their interviews as well.

On March 20, 2019, our client was interviewed at the Queens, New York USCIS Field Office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, their green card applications were approved by the USCIS on the same day of the interview.

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CASE: EB-3 I-140    
EMPLOYER:  Tire Mold Manufacturing Company in Akron, OH
BENEFICIARY: Korean Molding Process Engineer

Our client is from South Korea. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Mechanical Engineering. After talking to our client, our firm concluded that his employer can petition him as a Molding Process Engineer. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On January 17, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on April 4, 2018. On June 21, 2018, we promptly filed PERM. Eventually, on August 16, 2018, the PERM Labor Certification was approved – an EB3 position for the Korean 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 January 22, 2019 via premium processing service. Eventually, on January 30, 2019, the I-140 EB3 Petition for our Korean client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green card at any time.

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CASE: EB-3 I-140    
EMPLOYER:  Accounting Company in Akron, OH
BENEFICIARY: Chinese Associate Accountant

Our client is from China. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Accounting. After talking to our client, our firm concluded that his employer can petition him as an Associate Accountant. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 27, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on June 7, 2018. On September 13, 2018, we promptly filed PERM. Eventually, on November 8, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese 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 January 3, 2019 via premium processing service. Eventually, on January 11, 2019, the I-140 EB3 Petition for our Chinese client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green card once his priority dates become current.

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CASE: I-140 / Old Priority Date Retention

EMPLOYER: Public School

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: New Mexico

Our client had an employer willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in English, a valid New Mexico Teaching license, and has worked for her current employer since 2016. Based on our client’s school and work background, our office determined that she is eligible for EB-3 classification.  Our client eventually retained us in June 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 November 1, 2017. On April 13, 2018, we promptly filed PERM.

However, on August 13, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on August 22, 2018.  Eventually, on October 23, 2018, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary.

We then proceeded with the I-140 Petition filing. Our client already had her approved I-140 from her old employer with priority date of October 2010.

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 current employer for our client is entitled to the previous priority date.

We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, her previous I-140 approval notice and other necessary supporting documents.

The I-140 Petition was filed on November 1, 2018 via premium processing service. Eventually, on November 6, 2018, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE). Also, the approved I-140 retained our client’s old priority date. She can file an I-485 adjustment of status application for her green card now.

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CASE: EB-3 I-140    
EMPLOYER:  Architecture Company in Cleveland, OH
BENEFICIARY: Chinese Architectural Designer

Our client is from China. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Architecture. After talking to our client, our firm concluded that his employer can petition him as an Architectural Designer. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 20, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on June 6, 2018. On August 28, 2018, we promptly filed PERM. Eventually, on October 29, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese 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 November 6, 2018 via premium processing service. Eventually, on November 16, 2018, the I-140 EB3 Petition for our Chinese client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green card once his priority dates become current.

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