CASE: Adjustment of Status / 245i / I-140 (EB-2)    
APPLICANT: Filipino Hydraulic Power Unit Design and Installation Project Manager

LOCATION: Houston, TX

Our client is from the Philippines. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Bachelor’s degree in Maritime Transportation and has more than 5 years of work experience as a Hydraulic Equipment Installer / Operator. After talking to our client, our firm concluded that his employer can petition him as a Hydraulic Power Unit Design and Installation Project Manager. Based on our client’s education and work background, our office determined that he is eligible for EB-2 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 September 12, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on January 10, 2017. On May 3, 2017, we promptly filed PERM. Eventually, on August 11, 2017, 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 September 6, 2017 via premium processing service. Eventually, on September 21, 2017, the I-140 EB-2 Petition for our Filipino 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 F3 petition filed by his US Citizen grandfather to his mother filed back in April 1993 and approved in July 1993. Our client was 14 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 EB2 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 F3 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 F3 Petition filed in April 1993, 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 October 24, 2017.  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 August 17, 2018, our client was interviewed at the Houston, Texas 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 November 14, 2018.

{ 0 comments }

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

APPLICANT: Filipina Nurse Manager in Winnipeg Canada

LOCATION: Petitioner is Houston, TX; Applicant is in Winnipeg Canada

Our client is a Filipina lady who has worked in Canada and the Philippines as a staff nurse. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a bachelor’s degree in nursing and more than 5 years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on September 22, 2017 via premium processing. We included a job offer letter, the notice of filing, employment letter, past experience letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation. Eventually, on October 6, 2017, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on March 19, 2018, who in turn forwarded the client’s materials to the U.S. Consulate General in Montreal, Canada. An interview notice was set for the client at the U.S. Consulate General in Montreal, Canada. On November 16, 2018, our client appeared at the U.S. Consulate General in Montreal, Canada. The interview went well, and the Embassy approved and issued her immigrant visa.

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

{ 0 comments }

CASE: I-485 based on approved I-140 (NIW)

CLIENT: Filipino

LOCATION: San Antonio, TX

Our client contacted us in January 2018 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from the Philippines and he is an exceptional researcher and scientist in the field of Hydrology, Geomorphology, Ecology, and Physics.

Our client’s significant contributions have placed him at the pinnacle of his field. He has developed a rigorous quantitative framework based on spectral graph theory to study delta channel network connectivity and demonstrated its value in computing delta’s steady state fluxes and identifying upstream (contributing) and downstream (nourishment) areas and fluxes from any point in the network.  Because of his innovative experimental research, our client’s research works were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case 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. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id.

Our office prepared a 27-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to his field of endeavor, that he is well positioned to advance the proposed endeavor, and it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client.

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on February 15, 2018. Eventually, on July 13, 2018, the USCIS approved his I-140 petition without any Requests for Evidence.  

When we filed his I-140, he concurrently filed his I-485 adjustment of status application. 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. On November 13, 2018, our client was interviewed at San Antonio, Texas USCIS office. The interview went well, and on the same day of the interview, his green card application was approved.

{ 0 comments }

CASE: I-485 Adjustment of Status / I-140 (EB-2)

CLIENT: Korean Operations Research Analyst

LOCATION: Dallas, Texas

Our client is from South Korea and his prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Business Administration. After talking to our client, our firm concluded that his employer can petition him as an Operations Research Analyst. Based on our client’s education and work background, our office determined that he is clearly eligible for EB-2 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 May 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on August 8, 2017. On October 11, 2017, we promptly filed PERM. Eventually, on March 19, 2018, the PERM Labor Certification was approved – an EB2 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 April 13, 2018 via premium processing service. Eventually, on April 26, 2018, the I-140 EB2 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 May 15, 2018, our office filed an I-485 adjustment of status application for our clients. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our clients via conference calls as well. On October 29, 2018, our clients were interviewed at Irving Texas USCIS office.  Their interview went well; and eventually, their I-485 applications were approved by the USCIS on October 30, 2018.

{ 0 comments }

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina Nurse Manager in Manila, Philippines

LOCATION: Houston, TX

Our client’s beneficiary is a Filipina lady who has worked in the Philippines as a registered nurse. Our client was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 years of experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a bachelor’s degree in nursing and more than 5 years of experience as a registered nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on September 26, 2018 via premium processing. We included a job offer letter, the notice of filing, employment letter, past experience letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation.

Eventually, on October 4, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her immigrant visa application.

{ 0 comments }

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina Physical Therapist

LOCATION: Houston, TX

Our client is a physical therapist in the Philippines. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a physical therapist, 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 Physical Therapist is included in Schedule A.

Our client has U.S. equivalent Master’s degrees in Physical Therapy and is a licensed physical therapist in the State of Texas. Our office was retained on May 9, 2018 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on September 10, 2018 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  

Eventually, on September 24, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals will be current in October 2018), she can file his immigrant visa application next month.

{ 0 comments }

CASE: EB-2 I-140

EMPLOYER: Public Schools District

BENEFICIARY: Filipino Speech Language Pathologist

LOCATION: North Dakota

Our client has a current employer who was willing to petition him 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 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. He can file an I-485 adjustment of status application for his green card in October 2018.

{ 0 comments }

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: San Antonio, TX

Our client is in the Philippines. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and has more than five years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on June 6, 2018 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation.

However, on June 18, 2018, the USCIS issued a Request for Evidence (RFE). The USCIS argued that they cannot approve her I-140 petition because the proffered position, Nurse Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Nurse Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to EB-2 classification argument, our office argued that the proffered position has the supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to RFE to USCIS Texas Service Center on July 27, 2018.  

Eventually, on August 10, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her immigrant visa via consular processing.

{ 0 comments }

CASE: I-140 / National Interest Waiver

CLIENT: Filipino

LOCATION: Irvine, CA

Our client contacted us in January 2018 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from the Philippines and he is an exceptional researcher and scientist in the field of Hydrology, Geomorphology, Ecology, and Physics.

Our client’s significant contributions have placed him at the pinnacle of his field. He has developed a rigorous quantitative framework based on spectral graph theory to study delta channel network connectivity and demonstrated its value in computing delta’s steady state fluxes and identifying upstream (contributing) and downstream (nourishment) areas and fluxes from any point in the network.  Because of his innovative experimental research, our client’s research works were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case 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. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id.

Our office prepared a 27-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to his field of endeavor, that he is well positioned to advance the proposed endeavor, and it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client.

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on February 15, 2018. Eventually, on July 13, 2018, the USCIS approved his I-140 petition without any Requests for Evidence.  When we filed his I-140, he concurrently filed his I-485 adjustment of status application. His adjustment of status application will be approved soon as well.

{ 0 comments }

CASE: EB-2 I-140    
EMPLOYER: Children’s Mental Health and Child Welfare Agency
BENEFICIARY: Taiwanese Outpatient Services Clinician
LOCATION: Columbus, OH

Our client is a comprehensive children’s mental health and child welfare agency who was willing to petition an Outpatient Services Clinician position for a second-preference petition (I-140).  Our client’s employee has a master’s degree in Social Administration and currently is working for them under H-1B status. After talking to our client, our firm concluded that this employer can petition her as an Outpatient Services Clinician.  Second preference petitions for Taiwanese people 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 prospective employee’s educational, professional and working backgrounds, our office determined that she is clearly eligible for EB-2 classification for her I-140 petition.  Our client eventually retained us on November 2, 2016.

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 8, 2016, the prevailing wage request was filed.  After we obtained determined prevailing wage, our office filed the job order on February 16, 2017. On July 14, 2017, we promptly filed PERM. Eventually, on December 4, 2017, the PERM Labor Certification was approved – an EB2 position for the Taiwanese 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 May 10, 2018 via premium processing service.

However, on May 15, 2018, the USCIS Nebraska Service Center issued Request for Evidence (RFE) and requested our client to submit the documents to show “ability to pay” and special skills for Beneficiary. On May 22, 2018, our office filed Response to RFE and stated that Petitioner’s net current asset figure is sufficient for proffered wage of Beneficiary. Moreover, we included the letter from the Petitioner regarding the proof that Beneficiary already obtained her special skills for the proffered position.

Eventually, on June 4, 2018, the I-140 EB2 Petition for our Taiwanese client was approved. She can file an I-485 adjustment of status application for her green at any time since her priority dates are current.

{ 0 comments }