CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Exceptional Hardship

 NATIONALITY: Filipina

 LOCATION: Oakley, CA

Our client came from the Philippines as a J-1 teacher. Her J-1 status made her subject to the two-year foreign residency requirement. Our client would like to file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue her waiver under the No Objection Statement or Interest Government Agency (IGA) due to her previous marriage in the Philippines. Her only option was through exceptional hardship. 

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.” 

Some of the factors in analyzing exceptional hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 

After she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On April 26, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Our office prepared an affidavit for our client, an extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with medical documents and doctor’s reports for her U.S. citizen husband’s medical condition.  

On May 9, 2019, our office filed an I-612 application to the USCIS. We asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship in the scenarios of relocation and separation. 

The USCIS issued a Request for Evidence (RFE) on March 16, 2020. They requested our client to submit more hardship documents. Our office thoroughly prepared the Response to RFE and filed it to the USCIS on May 22, 2020. 

Eventually, the USCIS approved his I-612 waiver on December 8, 2020. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition in the United States. 

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CASE: PERM Labor Certification    
EMPLOYER: Dental Group in Cleveland, OH
BENEFICIARY: Korean Dentist

Our client is from South Korea who is currently working in the United States as an associate dentist under an H-1B status. Her current employer was willing to do an immigration petition for her, second-preference. Our client has a Doctor of Dental Medicine degree in the United States. Based on these, her employer can petition her as an associate dentist. She 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. PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On December 6, 2019, the prevailing wage request was filed.  After we obtained the Prevailing Wage determination, our office filed the job order on March 30, 2020.  On June 4, 2020, we promptly filed PERM.  Eventually, on December 3, 2020, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary. Now our client can file the I-140 petition.

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CASE: I-485 Adjustment of Status / I-140 (EB-3 Category) / Schedule A 

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse 

LOCATION: Houston, TX

Our client is a Filipina registered nurse who currently resides in Overland Park, KS. 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 a 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 May 8, 2019 and we started on her Prevailing Wage Request.

We filed the I-140 application on September 26, 2019 via regular processing. We included the job offer letter, notice of filing, and other necessary supporting documents.  On October 24, 2019, our office filed an I-907 premium processing upgrade request for this petition. Without any Request for Evidence (RFE), on November 6, 2019, the I-140 was approved. 

Once her I-140 was approved, she retained our office again for her and her husband’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our clients on November 22, 2019. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on November 27, 2020, their green card applications were approved without an interview.

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

EMPLOYER: Hospital

BENEFICIARY: Filipino Registered Nurse

LOCATION: Crosby, ND

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

Since he is a registered nurse, he is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.

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

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

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

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CASE: I-485 Adjustment of Status

EMPLOYER: Physicians’ Office

BENEFICIARY: Canadian Nurse Practitioner

LOCATION: St. Louis, MO

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a certified nurse practitioner, 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 Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a Certified Nurse Practitioner. Our office was retained on August 12, 2019 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 28, 2020 via premium processing. We included the job offer letter, 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.  On February 5, 2020, the USCIS Nebraska Service Center issued a Request for Evidence and requested the Petitioner to submit its business existence documents such as IRS FEIN issuance letter, articles of incorporation, and business license. Our office filed the Response to RFE on February 13, 2020. On February 25, 2020, the USCIS Nebraska Service Center approved her EB-2 I-140 petition. 

Once the I-140 petition was approved, our client retained our office again for her and her husband’s I-485 adjustment of status applications. Our office filed the I-485 adjustment of status applications on May 25, 2020. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on November 6, 2020, the USCIS Nebraska Service Center approved our clients’ adjustment of status applications without an interview. They are now green card holders.

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CASE: EB-3 I-485
EMPLOYER:  Plastic Manufacturing Company in Solon, OH
BENEFICIARY: Nigerian Project Engineer

Our client is from Nigeria. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Chemical Engineering. After talking to our client, our firm concluded that his employer can petition him as a Project 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. PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 20, 2019, the prevailing wage request was filed.  After we obtained the Prevailing Wage determination, our office filed the job order on June 11, 2019.  On September 3, 2019, we promptly filed PERM.  Eventually, on December 18, 2019, the PERM Labor Certification was approved – an EB3 position for the Nigerian 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 December 30, 2019 via regular processing. On March 25, 2020, the USCIS issued a Request for Evidence (RFE) for the I-140 petition and requested our client to submit evidence to verify beneficiary’s special skills on the PERM application. Our office prepared and filed the Response to RFE to the USCIS on April 1, 2020.  On April 27, 2020, the I-140 EB3 Petition for our Nigerian client was approved. 

When we filed his I-140 petition, he concurrently filed his I-485 adjustment of status application. On October 16, 2020, the USCIS Nebraska Service Center approved our client’s adjustment of status application without an interview. He is now a permanent resident.  

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Oxford, OH

Our client contacted us about the possibility of doing a National Interest Waiver self-petition. She is from South Korea who works at a university in Ohio as an assistant professor. She is an exceptional researcher in the field of social work and cancer survivorship research. 

Our client’s significant contributions have placed her at the pinnacle of her field. She is conducting research on areas of vital interest to public health and well-being in the United States. Her research investigates racial and ethnic disparities in influenza vaccination and cancer screening behavior; care for cancer survivors in racial and ethnic minority groups; and effects of culture on disparities in chronic disease prevention and management. Moreover, our client’s research work were highly evaluated by reviewers of various journals and by colleagues and experts in the field.

Upon review of her credentials and qualifications, our office determined that she 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 her 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 23-page brief for our client’s NIW filing. Our client also obtained 8 letters of recommendation from her colleagues and internationally-recognized researchers. Our office also included her 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 her field of endeavor, that she 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 her I-140(NIW) petition to the USCIS Nebraska Service Center on January 29, 2020. Eventually, on October 19, 2020, the USCIS approved her I-140 petition without any Requests for Evidence. 

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

APPLICANT: Brazilian Registered Nurse

LOCATION: Kaneohe, HI

Our client is a registered nurse from Brazil licensed in the state of Hawaii. She came to the United States and worked for the petitioner in the United States on her OPT.  Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

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 worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 4, 2019. We started with the Prevailing Wage Request.

We filed the I-140 application on October 1, 2019 via premium processing. We included the job offer letter, notice of filing, and other necessary supporting documents. The USCIS issued a Request for Evidence on October 9, 2019 and requested our client to submit the Petitioner’s financial record to show ability to pay. We filed the Response to RFE on December 11, 2019 and eventually, on December 21, 2019, the I-140 was approved. 

As we quoted for the green card part of the case, apparently our client’s I-20 was not extended and she has thus overstayed her visa status. However, this was less than 180 days. 

Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

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

On December 13, 2019, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed cover letter and we explained why our client was still eligible for adjustment of status through 245K despite her overstay.  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 October 27, 2020, our client was interviewed at the Honolulu, HI USCIS office. Though the interview was thoroughly held, the interview went well; her I-485 application was approved by the USCIS on the same day of the interview.  

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipino Special Education Teacher

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

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

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

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

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

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

EMPLOYER: Physicians’ Office

BENEFICIARY: Kenyan Nurse Practitioner

LOCATION: Houston, TX

Our client is a family nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a family nurse practitioner, 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 Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a Certified Nurse Practitioner. Our office was retained on March 16, 2020, and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on September 25, 2020 via premium processing. We included the job offer letter, 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 October 14, 2020, the USCIS Texas Service Center approved her EB-2 I-140 petition without a Request for Evidence (RFE). Since the priority date for a Kenyan national is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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