CASE: EB-2 I-140

EMPLOYER: Nutrition Management Company

BENEFICIARY: Taiwanese Consulting Dietician

LOCATION: Kittanning, PA

Our client has a current employer that was willing to petition her for a second-preference petition (I-140).  Our client has a master’s degree in nutrition, a valid state dietician license, and has worked for her current employer since November 2018. Based on our client’s education and work background, our office determined that she is eligible for EB-2 classification for her I-140 petition.  

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on October 8, 2019.  On February 22, 2020, we filed PERM.  On June 18, 2020, 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 August 28, 2020 via regular processing. We also filed her I-485 adjustment of status application simultaneously since her priority date was current. On October 1, 2020, our office filed a premium processing upgrade request to the USCIS upon our client’s request. Eventually, on October 14, 2020, the I-140 EB2 Petition for our Taiwanese client was approved without any Request for Evidence (RFE). 

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Eagle Butte, SD

Our client came from the Philippines on a J-1 in August 2015 to work as a teacher. She was subject to the two-year foreign residency requirement. She now has a US Citizen child and she wishes to apply for a waiver. 

Our office told our client that she can apply for a waiver under the No Objection Statement category based on the fact that she has a U.S. citizen child. 

On July 12, 2019, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We then prepared the EVP Packet upon receipt of her documents. On November 14, 2020, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  They eventually approved the No Objection Statement, forwarded the approval to the Philippine Consulate in DC to issue the official NOS, and the then on September 10, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on September 23, 2020, the USCIS issued an I-612 approval notice for the waiver.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Christiansted, VI

Our client came from the Philippines on a J-1 visa in September 2016 to work as a teacher. She was subject to the two-year foreign residency requirement. Her wanted sponsor her green card and she consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Our office told our client that she can apply for a waiver under the No Objection Statement category based on the fact that she has a U.S. citizen son. 

On March 3, 2020, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We then prepared and filed the No Objection Request to the EVP. Eventually, the No Objection Statement was issued. 

On September 10, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  On September 23, 2020, the USCIS issued an I-612 approval notice for the waiver.

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CASE: PERM Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Math Teacher

LOCATION: Casa Grande, AZ

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 Education, a valid Arizona Teaching license, and has worked for her current employer since August 2015. Based on our education and credentials, our office determined that she is clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in September 2019.

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 only 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 February 17, 2020.  On April 26, 2020, we promptly filed PERM. 

Eventually, on September 18, 2020, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. Our client can file the I-140 petition at any time.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Orlando, FL

Our client came from the Philippines on a J-1 in August 2017 to work as a teacher. He was subject to the two-year foreign residency requirement. His prospective employer wanted to sponsor his H-1B and consulted with our firm for his J-1 visa waiver. If someone is subject to the two-year foreign residency requirement, he or she cannot change status to H-1B in the United States until he or she fulfills the requirement or obtains a waiver.

Our office told our client that he can apply for a waiver under the No Objection Statement category based on the fact that he has a U.S. citizen child. 

On January 7, 2020, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  On April 13, 2020, our office sent our client’s NOS application to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On August 25, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on September 14, 2020, the USCIS issued an I-612 approval notice for the waiver.

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

 NATIONALITY: Filipina

 LOCATION: Hobbs, NM

Our client came from the Philippines on a J-1 visa to work as a teacher. She was 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). She was married in the Philippines and even though she got her divorce in the United States, the Philippines do not recognize divorces, only annulments, and annulments take five years in the Philippines. An option though to get a waiver without needing a No Objection Statement is through a showing of Exceptional Hardship. That’s what our client pursued as her husband had several hardships. 

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 extreme 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 11, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an extensive brief in support of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen husband’s medical conditions.  On April 12, 2019, our office filed the I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to the Philippines for two years. 

On November 14, 2019, the USCIS issued a Request for Evidence (RFE) and requested our client to submit more hardship evidence. Our office prepared the response and filed an extensive Response to RFE to the USCIS on February 3, 2020. 

Eventually, the USCIS approved her I-612 waiver on August 31, 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: H-1B Extension
PETITIONER:  Nursing Care Facility in Des Plaines, IL
BENEFICIARY: Filipino Health Educator

Our client is a nursing home which is located in Des Plaines, IL. They contacted our office in August 2020 to seek legal assistance for their foreign employee’s H-1B extension.  The beneficiary obtained his Bachelor’s Degree in Nursing. The proffered position for the Beneficiary is a Health Educator which qualifies as a specialty occupation – a position where the minimum requirement is a Bachelor’s Degree in a specific specialty related to the position. We also note that we did an I-140 Petition for this client and it was approved.  

Upon retention, our office filed the H-1B visa petition with various supporting documents on August 28, 2020 via premium processing service. Eventually, our client’s H-1B application was approved on September 4, 2020.  His H-1B is good until August 31, 2023.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Sacramento, California

Our client came from the Philippines on a J-1 in August 2017 to work as a teacher. Based on her DS-2019, she was subject to the two-year foreign residency requirement. Later, her prospective employer wanted to sponsor her H-1B visa and she consulted with our firm for her J-1 visa waiver prior to applying for the H-1B. If someone is subject to the two-year foreign residency requirement, he or she cannot change status to H-1B in the United States until he or she fulfills the requirement or obtains a waiver.

Our office told our client that she can apply for a waiver under the No Objection Statement category based on the fact that she has a U.S. citizen child. Upon retention, our office filed a waiver application to the Department of State, and also prepared the No Objection Statement request from the EVP in the Philippines.

On January 7, 2020, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  On April 13, 2020, our office sent our client’s No Objection Statement request to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee granted the NOS and forwarded the materials to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On August 11, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 25, 2020, the USCIS issued an I-612 approval notice for the waiver.

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

APPLICANT: 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 workg 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, our office filed the job order on August 14, 2018.  On December 13, 2018, we filed PERM. 

On April 19, 2019, the Department of Labor issued an 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. Eventually, on September 12, 2019, the I-140 EB3 Petition for our Filipina client was approved. 

We filed her I-140 petition and I-485 adjustment of status application concurrently. 

Our client’s DS-2019 was not extended by her employer. Thus, she overstayed and had violated her status for less than 180 days prior to filing the I-485 application. 

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).

As mentioned above, 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 brief and explained why our client is still eligible for adjustment of status through 245K despite her overstay and unauthorized employment.  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 March 16, 2020, our client was interviewed at the Centennial, CO USCIS office. The interview went well; however, at that time, the priority date for the  Eb-3 category – Philippines was backlogged. Our client had to wait until the priority date became current. In August 2020, her priority date became current. Eventually, her I-485 application was approved by the USCIS on August 27, 2020. 

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

Our client is a registered nurse in the Philippines.  His prospective 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 on Schedule A.

Our client has a nursing degree and has several years of related experience. During the consultation, our firm concluded that his prospective employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on July 8, 2019 and we started on the prevailing wage request. 

We filed the I-140 application on March 18, 2020 via regular processing. We included the job offer letter, the notice of filing, his degrees and a nursing license, and other necessary supporting documents.  Eventually, on August 18, 2020, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition when his priority date becomes current.

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