CASE: EB-2 I-140 / I-485
PETITIONER: International Trading Company
BENEFICIARY: Vietnamese
LOCATION: San Diego, CA

Our Vietnamese client from San Diego contacted our office in December 2011. She had an approved PERM Labor Certification and she would like to retain us for her I-140/I-485 application. Her current employer is located in San Diego and they wish to file an I-140 petition for her as a market research analyst. Our client had questions regarding possible issues they may face, the employer’s “ability to pay” issue in particular.

Once retained, our office prepared her I-140 petition and I-485 adjustment of status application. 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. Despite the negative taxable income, we provided all schedules of Petitioner’s tax return and argued that their net current assets were over and above the proffered wage. We provided the calculation on the cover letter, cited a CIS internal memo on the “ability to pay” issue, and attached the tax return schedule that showed the net current assets. We also prepared our client’s I-485 application and explained that the priority date for EB-2 Vietnam (“Other Countries”) is current.

Our office simultaneously filed the I-140 / I-485 applications on January 26, 2012 and on April 19, 2012, the I-140 petition for our client was approved with no Requests for Evidence.  Once the I-140 petition was approved, her I-485 adjustment of status application was subsequently approved by the USCIS on May 24, 2012.  While we were waiting for I-485 approval, our client informed us that he needed to travel abroad.  Thus, we filed an I-131 advance parole application on February 10, 2012.  The I-131 advance parole document was also approved by the USCIS Nebraska Service Center on May 24, 2012 as well.

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CASE: EB-2 I-140
PETITIONER: International Trading Company
BENEFICIARY: Vietnamese
LOCATION: San Diego, CA

Our Vietnamese client from San Diego contacted our office in December 2011. She had an approved PERM Labor Certification and she would like to retain us for her I-140/I-485 application. Her current employer is located in San Diego and they wish to file an I-140 petition for her as a market research analyst. Our client had questions regarding possible issues they may face, the employer’s “ability to pay” issue in particular.

Once retained, our office prepared her I-140 petition and I-485 adjustment of status application. 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. Despite the negative taxable income, we provided all schedules of Petitioner’s tax return and argued that their net current assets were over and above the proffered wage. We provided the calculation on the cover letter, cited a CIS internal memo on the “ability to pay” issue, and attached the tax return schedule that showed the net current assets. We also prepared our client’s I-485 application and explained that the priority date for EB-2 Vietnam (“Other Countries”) is current.

Our office simultaneously filed the I-140 / I-485 applications on January 26, 2012 and on April 19, 2012, the I-140 petition for our client was approved with no Requests for Evidence.

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CASE: I-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Cleveland, OH

Our client contacted us in March 2011 and inquired about his chances of winning a National Interest Waiver self-petition. He is an extraordinary researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, who currently works as a visiting professor in an academic institution in Cleveland, Ohio.  Upon review of his credentials and qualifications, our office determined that he is a good candidate for the National Interest Waiver (NIW) category.

After our firm was retained, we prepared the application and coordinated with our client with his recommendation letters and supporting documents. We eventually prepared a 15-page cover letter for our client’s NIW filing, which included at least 10 letters of recommendation, his publication record, patents, and conference materials. In our brief, our office demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 67 exhibits (Exhibit A to OOO).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 2, 2011.  On August 19, 2011, the USCIS approved his I-140 petition without any Request for Evidence.  Once his I-140 was approved, our office worked on his J-1 waiver of the 2-year foreign residency requirement.

Attorney Yu contacted the Korean Consulate General Office in Chicago to pursue our client’s waiver. The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver. Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On October 11, 2011 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust with an approved I-140 if he obtains the waiver.

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC. After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division. On December 2, 2011, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued an I-612 approval notice on January 12, 2012.

On January 24, 2012, our office filed an I-485 adjustment of status application for our client and his derivative family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, on April 6, 2012, the USCIS Nebraska Service Center issued a request for evidence (RFE) on whether our client continued to be engaged in the occupation that is the basis of his national interest waiver. They mentioned that our client’s visiting professorship term ended three weeks after we filed his I-485 application and his employment with his home institution in South Korea was still ongoing.

The RFE letter from the USCIS requested us to submit evidence which established that the Applicant continued to be engaged in the occupation that is the basis of his national interest waiver. In our response brief, we noted that he is still engaged in the field which formed the basis of his National Interest Waiver. After the I-140 was approved, he proceeded to author more important publications, and was invited to several conferences and presentations in the world.  We also explained that his employment relationship with his home institution and the institution of his visiting professorship in Cleveland, OH, and explained why he applied for adjustment of status in the United States – to continue as a professor, researcher and scientist in the field of Macromolecular Science and Engineering / Chemistry / Polymer Science (Fiber System Engineering).  In our response to RFE, we included our client’s recent publications, invitation letters for upcoming conferences in the United States, and his on-going memberships with professional associations. Our office filed this response to RFE on April 16, 2012.

On April 26, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application. The derivative applicants of this case (his immediate family members) also received the I-485 approval.  Now, our client and his family members are finally green card holders.

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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: Emergency Advance Parole Document (I-131)
CLIENT: Korean
LOCATION: Cleveland, OH

Our client came to the United States in 2010, and through our firm, got his I-140 National Interest Waiver self-petition and his waiver of the J-1 two-year foreign residency requirement. We then filed I-485 adjustment of status applications for him and his family with the approved I-140 petition in January 25, 2012.  The application included I-131 advance paroled applications. His adjustment of status application is still pending at the USCIS Nebraska Service Center.

On March 2, 2012, our client contacted our office in urgency.  He informed us that his mother’s medical condition is critical, so he needs to go back to Korea to take care of her as soon as possible.  However, his I-131 was still pending at that time, and his biometrics and fingerprinting appointment was not issued yet. He wanted us to expedite the advance parole (travel) document so that he could visit his ailing mother.

According to USCIS policy, if the applicant is experiencing an extremely urgent situation, an emergency advance parole document may be requested at the local USCIS office.  The emergency situation must fall under the following categories:

• Severe financial need to the company or individual
• Extreme emergency situation
• Humanitarian situation
• Non-profit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS

We obtained a letter from his mother’s doctor from Korea, explaining the emergency medical situation, and our office prepared a brief for submission to the USCIS Cleveland Field Office.  On March 5, 2012, Attorney Sung Hee Yu and our client appeared at Cleveland CIS office for an Infopass appointment to apply for the emergency advance parole.  The CIS Officer allowed our client to take biometrics on the same day, and reviewed our emergency advance parole application.  On March 6, 2012, only one day after the emergency application, the CIS Cleveland Field Office recommended approval for our client’s application and requested expedited service to Nebraska Service Center.  On March 7, 2012, the USCIS Nebraska Service Center approved our client’s I-131 advance parole document. Our client now is free to visit his mother in South Korea and come back to the United States with no issues during the pendency of his adjustment of status application.

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CASE: I-140 (EB-2 Category)
EMPLOYER: Taekwondo (Martial Arts) School
BENEFICIARY: 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 EB-2 classification. Our client eventually retained us for his PERM labor certification in March, 2011.

As we stated in a previous success story, 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.

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CASE: I-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Cleveland, OH

Our client contacted us in March 2011 about the possibility of doing a National Interest Waiver. He is a researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, and is currently working as a visiting professor in an academic institution in Cleveland, Ohio.  Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since one would not need an employer nor family member to petition for them for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation , 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 15-page brief for our client’s NIW filing. We asked our client to obtain 10 or more letters of recommendation.  Our office also included his publication records, patents, and conference materials in the NIW application.  We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 67 exhibits (Exhibit A to OOO).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 2, 2011.  On August 19, 2011, the USCIS approved his I-140 petition without any Requests for Evidence.

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CASE: PERM and EB-2 I-140
PETITIONER: Professional Services Staffing Company
BENEFICIARY: Pakistani
LOCATION: Baton Rouge, Louisiana

Our Pakistani client contacted our office in December 2010. He called from Houston Texas. A potential employer headquartered in Sacramento California wanted to hire him as an Operations Research Analyst for their office in Baton Rouge Louisiana. Our had questions regarding may possible issues they may face, including the headquarters being in a different location and the fact that their 2010 tax return shows more than a negative $300,000 taxable income. Prior to the company retaining our office, we made sure the case was winnable and asked them to fax us some documentation to assess the feasibility of the I-140, especially the “ability to pay” issue. We reviewed the documents (still part of the free consultation) and told them it could be done. The company thus retained us to do an EB-2 Labor Certification (PERM) and I-140 for our client.

All the pre-PERM filing steps were executed quickly, from the prevailing wage request, job order, advertisements, and internal job posting. Specific rules pertaining to these steps in Louisiana were also reviewed thoroughly prior to execution. We then filed the Labor Certification on March 7, 2011 and on May 2, 2011, the application was certified and approved.

We then proceeded with the I-140. 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. Despite the negative taxable income, we provided all schedules of Petitioner’s tax return and argued that their net current assets are over and above the proffered wage. We provided the calculation on the cover letter, cited a CIS internal memo on the “ability to pay” issue, and attached the tax return schedule that showed the net current assets. The I-140 was filed on June 16, 2011 and on July 27, 2011, the I-140 was approved.

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