CASE: Adjustment of Status / EB-1A
NATIONALITY: Brazilian
LOCATION: Glendale, CA

Our client is a citizen of Brazil who came to the U.S. on a J-2 Visa in September 2011.  He came with his wife (now, his ex-wife) who held a J-1 Visa as an exchange visitor.  Both were subject to the two-year foreign residency requirement. 

Unfortunately, he got divorced from his ex-wife in January 2019. Prior to their divorce, our client got an approved I-140 EB-1A self-petition. He wanted to file a waiver so that he can file an adjustment of status application once his priority date becomes current.

Our client contacted our office and retained our firm to do his J-2 waiver on June 13, 2019.  On June 28, 2019, the J-2 Waiver (DS-3035) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client was divorced from the J-1 visa holder.  Eventually, on July 22, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued the I-612 waiver approval notice on August 7, 2019. 

Once the J-2 waiver was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application on November 19, 2020. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on August 13, 2020, the USCIS National Benefits Center approved our client’s adjustment of status application without an interview. Now he is a green card holder.

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CASE: I-485 Adjustment of Status  / National Interest Waiver

CLIENT: Korean

LOCATION: Port Jefferson, NY

Our client contacted us in November 2018 about the possibility of doing a National Interest Waiver self-petition. He is a Ph.D. student from South Korea and he has a Master’s Degree in Chemistry. Though he is a Ph.D. student, he is already considered as an exceptional researcher and scientist in the field of synthetic organic chemistry and pharmaceutical research. 

Our client’s significant contributions have placed him at the pinnacle of his field. He has made important contributions in synthesizing chalcone-based small molecules and its biological data.  His research work is very important to the field of Parkinson’s disease therapy. Moreover, our client synthesized more than 100 small molecules targeting Receptor Interacting Protein Kinase (RIPK) enzymes for the treatment of dry Age-related Macular Degeneration (dry AMD).  Because of his innovative experimental research, our client’s works were highly evaluated by 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 22-page brief for our client’s NIW filing. Our client also obtained 7 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication record, presentations, 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 that  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 March 20, 2019. Eventually, on September 6, 2019, the USCIS approved his I-140 petition without any Requests for Evidence.  

Once his I-140 petition was approved, he retained our office again and to file an adjustment of status application for him, his wife and daughter. On October 7, 2019, our office filed an I-485 adjustment of status application for our client and his family members. 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 August 20, 2020, our client was interviewed at the Holtsville New York USCIS office. The interview went well, our client and his family members’ adjustment of status applications were approved by the USCIS on the same day of the interview. 

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CASE: H-1B Visa Petition

PETITIONER: School District in Eagle Butte, SD

BENEFICIARY: Filipino Junior High Math 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 March 2020 to seek legal assistance from our office for their foreign employee. The beneficiary is a Junior High Math Teacher from the Philippines who has been working for this employer for the last 5 years under a 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 Junior High Math 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 August 7, 2020 via premium processing. Eventually, our client’s H-1B application was approved on August 19, 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-3 Category) / Schedule A 

EMPLOYER: Hospital

BENEFICIARY: Filipina Registered Nurse

LOCATION: Crosby, ND

Our client’s beneficiary is a registered nurse from the Philippines who is currently working in UAE. Her prospective U.S. employer was willing to petition her 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 her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on January 14, 2020, and we started on her Prevailing Wage Request.

We filed the I-140 application on June 9, 2020 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. On July 17, 2020, upon our client’s request, we upgraded her processing to premium processing by filing a I-907 application with the required fee. 

On July 27, 2020, the USCIS issued a Request for Evidence (RFE) regarding our clients name change (married name). Our office filed the RFE responses immediately. On August 14, 2020, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition when her priority date becomes current.

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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, who is currently working at a large nursing and rehabilitation facility in Des Plaines, Illinois. His 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 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 consultation, our firm concluded that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on July 31, 2019 and then we started to work on the Prevailing Wage Determination filing and other related procedures. 

We filed the I-140 application on March 18, 2020 via regular processing. We included the job offer letter, the notice of filing, his H-1B status approval notices, and other necessary supporting documents.  On July 24, 2020, upon our client’s request, we upgraded his processing to premium processing by filing a I-907 application with required fees. On August 11, 2020, the I-140 was approved. Now, our client can file an I-485 adjustment of status application based on the approved I-140 petition when his priority date becomes current.

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CASE: I-485 / National Interest Waiver

CLIENT: Korean

LOCATION: San Francisco, CA

Our client contacted us about the possibility of doing a National Interest Waiver self-petition. He is a researcher from South Korea and he is an exceptional scientist in the field of Biomedical Engineering. 

Our client’s significant contributions have placed him at the pinnacle of his field. His field of research primarily concerns biomedical materials design and development, and its in-depth characteristics. He has been working lately on other subjects including bio-inspired materials design (so-called bio-mimetics).  Throughout his career, our client has made important contributions to the field of biomedical engineering and his research involves the study of structural biological materials (bone) and the development of bioinspired designs based on these structures (biodegradable metal / ceramic composite scaffold, 3D printing), which so far has resulted in scaffolds and composites that have diverse applications from bone implants to light weight aerospace structures. Because of his innovative research, our client’s publications were highly evaluated by 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 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 21-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 7, 2019. On November 26, 2019, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) for our client and surprisingly argued that our client has not met all of three prongs of Dhanasar. Our client and our office prepared an extensive RFE response and filed it on February 18, 2020. 

Eventually, on March 25, 2020, the USCIS approved his I-140 petition. When we filed his I-140, he concurrently filed his I-485 adjustment of status application as well. On August 11, 2020, the USCIS approved our client’s I-485 adjustment of status application without an interview.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Wharton, TX

Our client came from the Philippines on a J-1 in August 2015 to work as a teacher. Based on his DS-2019, he was subject to the two-year foreign residency requirement. His employer wanted to sponsor his green card and he consulted with our firm for his 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.

We told him that he can apply for a waiver under the No Objection Statement category based on the fact that he has humanitarian reasons for doing so, based on the numerous hardships that his family (who were on J2) will experience if they return to the Philippines. Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On November 14, 2018, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We prepared the humanitarian arguments and sent the packet, with evidence,  to the EVP  Waiver Review Committee in Manila, Philippines. They eventually issued a No Objection Statement. On July 17, 2020, the Waiver Review Division of the Department of State issued a favorable recommendation based on the No Objection statement.  Eventually, on August 6, 2020, the USCIS issued an I-612 approval notice for the waiver.

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CASE: I-485 / National Interest Waiver

CLIENT: Filipino

LOCATION: Boise, ID

Our client contacted us in March 2019 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from the Philippines and he has a Ph.D. Degree in Atmospheric Science. He is already considered an exceptional researcher and scientist in the field of atmospheric science. 

Our client’s significant contributions have placed him at the pinnacle of his field. Our client’s research centers on ozone, a key air pollutant that is produced from precursor emissions and has an adverse impact on human health and ecosystems. Because of his innovative research, our client’s work were highly evaluated by reviewers of various journals, colleagues, and experts in the field.

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 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. 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 24-page brief for our client’s NIW filing. Our client also obtained 8 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication record, presentation record, 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.

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CASE: I-485 based on Approved I-140 (EB-2)

 APPLICANT: Korean

 LOCATION: Lubbock, TX

Our client is an assistant professor from South Korea, who is currently teaching at a state university who was willing to petition him for a second-preference petition (I-140).  Our client has a Ph.D. degree and has worked for this school since 2018. He has maintained his status as an H-1B visa holder in the United States.  He had an approved I-140 petition which was filed by his current employer and this I-140 petition’s priority date was May 16, 2019.

In October 2019, he contacted our office and retained us for the I-485 adjustment of status application for him and his wife. Our office filed the I-485 adjustment of status applications for our clients on November 18, 2019. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on July 15, 2020, his green card application was approved without the interview.

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CASE: I-485 Adjustment of Status Based on Approved I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)

EMPLOYER: Multinational Tire Corporation

BENEFICIARY: Korean

LOCATION: Akron, Ohio

Our client is a General Manager of a multinational tire corporation in Ohio.  He is from South Korea, and he had worked for its parent company for 6 years in positions of increasing responsibility including that of Research and Development team manager. He came to the United States in January 2018 with an E-2 visa to work for the current petitioner company (wholly-owned subsidiary of his previous employer).  He contacted our firm in August 2018, and discussed us his chances of getting a green card.  Based on our client’s education and professional background and his current position at the worksite, our office determined that he was clearly eligible for the EB-1C classification for his I-140 petition. Our client eventually retained us for his I-140 and subsequent I-485 adjustment of status application.

An employer can petition for its foreign employee under INA § 203(b)(1)(C) if it demonstrates the following: (C) Certain multinational executives and managers – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

According to the INA §101(a)(44), 8 U.S.C. §1101(a)(44) and 8 C.F.R §204.5(j)(2), “executive capacity” means an assignment in an organization in which the employee primarily: (1) Directs the management of the organization or a component or function; (2) Establishes goals and policies; (3) Exercise wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.

Also, the mentioned statutes define “managerial capacity” as an assignment with the organization in which the employee personally: (1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.

After our office was retained, we prepared a thorough cover letter and obtained all necessary supporting documents from our client and the petitioning company. In our brief, we clearly demonstrated that our client met the requirements set forth in the INA §203(b)(1)(C).  First, the prospective U.S. employer (Petitioner-Company) has been doing business for at least 1 year.  Second, the prospective employer (Petitioner) in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed abroad.  Third, if the worker is already employed in the United States, he or she was employed outside the United States for at least 1 year in the 3 years preceding admission as a non-immigrant in an executive or managerial capacity by the petitioner or by its parent branch, subsidiary, or affiliate. Last, the alien is to be employed in the United States in a managerial or executive capacity.

In this case, the Petitioner-company has been doing business for 28 years in the United States. In addition, Petitioner-Company is the wholly-owned subsidiary of its Korean parent company where our client was employed for 6 years. Moreover, our client was employed outside the U.S. for at least 1 year in the 3 years preceding admission as a non-immigrant in an Executive or Managerial Capacity by the Petitioner’s parent company in South Korea.  Our client served as a team manager and later became senior manager for the parent company.  He personally supervised and controlled the work of other researchers and engineers for new types and models of tire developments, and was primarily responsible for the company’s various new tires.  Lastly, our client is to be employed in the United States as a General Manager for the petitioner.

On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), an organizational chart, and a dispatch order.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea.  The evidence included a copy of the certificate of ownership, a copy of the business registration certificate, a copy of the approval for overseas investment, and a copy of the annual report and consolidated financial statements.  The I-140 Petition was filed on November 16, 2018.  

However, on May 16, 2019, the USCIS Nebraska Service Center issued a Request for Evidence (RFE). The RFE letter requested our client to demonstrate the qualifying relationship between the parent company in South Korea and his current employer. Moreover, the USCIS requested our client to show whether he met the requirement of “one year managerial or executive position abroad.”

On the RFE response, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), and an organizational chart.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea.  The evidence included a copy of the certificate of ownership, a copy the business registration certificate, a copy of the tax records, etc.  Our office filed the Response to RFE on August 5, 2019.  Eventually, on August 26, 2019, the I-140 petition was approved.  

On November 8, 2019, 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. His case was scheduled for the interview in March 2020; however, it was cancelled due to the COVID-19 pandemic.  

Nevertheless, on July 9, 2020, the USCIS approved our client’s adjustment of status application without the interview.  On the same day, the CIS approved our client’s derivative family members’ adjustment of status applications as well.

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