CASE: PERM Labor Certification

EMPLOYER: Public Schools District

BENEFICIARY: Filipina Speech Language Pathologist

LOCATION: Crosby, North Dakota

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 speech language pathology, a valid North Dakota speech language pathology license, and has worked for her current employer since March 2014. Based on our client’s education and work background, our office determined that she is clearly 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 January 29, 2019, we promptly filed PERM.

Eventually, on April 26, 2019, the PERM Labor Certification was approved – an EB2 position for the Filipina beneficiary. Since her priority date is current, our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Palo Alto, 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 scientist in the field of Neurology and Neuroscience research.

Our client’s significant contributions have placed him at the pinnacle of his field. Throughout his research career, our client has pioneered the development of cutting-edge neuroscience methods to both enable and accelerate the investigation of the functional brain circuits. Specifically, his research studies provide critical insights into how we can restore dysfunctional motor circuits in patients suffering from devastating motor diseases. Because of his innovative 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 23-page brief for our client’s NIW filing. Our client also obtained 5 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 August 27, 2018. Eventually, on April 19, 2019, 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.

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CASE: I-130 / I-485

NATIONALITY: Philippines

LOCATION: Bronx, New York

Our client came from the Philippines on a J-1 in April 2015 to work as a visiting research fellow. Based on her DS-2019, she was subject to the two-year foreign residency requirement.

In November 2016, she got married to her U.S. citizen husband and later on 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.

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 December 23, 2016, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New York State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in New York for further authentication.  On February 23, 2017, our office sent our client’s materials 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 July 6, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on July 25, 2017, the USCIS issued an I-612 approval notice for the waiver.

Once her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on August 29, 2017.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On April 11, 2019, our client was interviewed at the New York, NY USCIS office.  The interview went well, and eventually, on April 22, 2019, her green card application was approved.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Columbus, OH

Our client contacted us about the possibility of doing a National Interest Waiver self-petition. She is a post-doctorate researcher from South Korea and she is an exceptional researcher and scientist in the field of cancer biology and biomedical research.

Our client’s significant contributions have placed her at the pinnacle of her field. She has developed several animal models for breast cancer and pancreatic cancer focusing on the Brca1/2 and Palb2 genes. Individuals carrying mutations in these genes are highly predisposed to breast and pancreatic cancer. Specifically, by using her mouse models, she studied Palb2 pancreatic tumor pathology, characterizing differences and similarities of such cancers caused by Brca1/2 or Palb2 mutations and determined therapeutic effects of different chemotherapy drugs on these model mouse tumors. Our client’s experimental results provided important clues concerning treatment for human cancers initiated due to Brca1/2 or Palb2 mutations. Moreover, her research 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 21-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 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 September 25, 2018. Eventually, on April 16, 2019, the USCIS approved her I-140 petition without any Requests for Evidence.  She can file her adjustment of status application now since her priority date is current.

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

APPLICANT: Korean Nurse Practitioner

LOCATION: Cleveland, Ohio

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

Our client has a Bachelor’s and Master’s degree in nursing and is a certified Nurse Practitioner. Our office was retained on August 1, 2017, and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 18, 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.  

However, on January 29, 2018, the USCIS Nebraska Service Center issued the Request for Evidence (RFE) for our client’s I-140 petition. The USCIS requested our client to submit her official transcript. Our office immediately filed Response to RFE with our client’s official transcript. Eventually, on February 8, 2018, 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 I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on August 22, 2018. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference call as well. On March 22, 2019, our client was interviewed at Cleveland Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our client as well. Eventually, on March 27, 2019, her green card application was approved.

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CASE: Immigrant Visa / EB-3 I-140 Petition
APPLICANT: Kenyan Sales Manager

LOCATION: Nairobi, Kenya

Our client is from Kenya, who used to work in the U.S. with his H-1B status. His former employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor of Business Administration Degree and has worked for the current employer as a Sales Manager. After talking to our client, our firm concluded that his employer can petition him as a Sales Manager. Based on our client’s education and work background, our office determined that he is clearly 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. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 5, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on July 6, 2016. On September 27, 2016, we promptly filed PERM. Eventually, on November 22, 2016, the PERM Labor Certification was approved – an EB3 position for the Kenyan 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, ability to pay letter, and other necessary supporting documents. The I-140 petition was filed on December 9, 2016 via premium processing service. However, the USCIS issued Request for Evidence (RFE) on December 21, 2016 and request our client to submit documents regarding Beneficiary’s special skills for the proposed job position and employer’s ability to pay proffered wage. Our office prepared and filed Response to RFE to USCIS on January 3, 2017.  Eventually, on January 5, 2017, the I-140 EB-3 Petition for our Kenyan client was approved.

After the approval of the I-140 petition, our client retained us again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on November 29, 2018, who in turn forwarded the client’s materials to the U.S. Embassy in Nairobi, Kenya. An interview notice was set for the client at the U.S. Embassy in Kenya. On March 7, 2019, our client appeared at the U.S. Embassy in Nairobi, Kenya. Eventually, on March 22, 2019, the Immigrant Visa was issued for our client.

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

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CASE: Adjustment of Status / 245i / I-140 (EB-3)    
APPLICANT: Ecuadorian BAS/HVAC Controls Technician

LOCATION: New York

Our client is from Ecuador. His current employer was willing to do an immigration petition for him, third-preference. Our client has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that his employer can petition him as a BAS/HVAC Controls Technician. Based on our client’s education and work background, our office determined that he eligible for EB-3 classification and our client eventually retained us in May 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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.

However, on April 19, 2018, the Department of Labor issued a request for 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 May 16, 2018.  

Eventually, on July 11, 2018, the PERM Labor Certification was approved.

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, past experience letters, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on August 8, 2018 via premium processing service. Eventually, on August 17, 2018, the I-140 EB3 Petition for our 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 F4 petition filed by his US Citizen uncle to his father filed back in September 1989 and approved in December 1989. Our client was 10 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 EB3 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 F4 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 F4 Petition filed in September 1989, 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 August 29, 2018.  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 March 20, 2019, our client was interviewed at the Queens, New York 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 the same day of the interview.

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CASE: I-485 (Adjustment of Status) / I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Virginia

Our client contacted us in October 2016 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from South Korea and he is an exceptional researcher and scientist in the field of urban forestry and urban ecosystem research.

Our client’s significant contributions have placed him at the pinnacle of his field. He has identified innovative solutions for improving energy conservation in dense urban areas. Specifically, our client is making significant contribution in the area of urban forestry for energy conservation and other ecosystem services. His research is revealing and identifying how trees influence local climate and can decrease building energy consumption which has important implications for city, state, federal policies across the United States.

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 24-page brief for our client’s NIW filing. Our client also obtained 11 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. His NIW application contained 43 exhibits (Exhibit A to QQ).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on January 26, 2017. Eventually, on September 27, 2017, 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 January 9, 2018, our client was interviewed at Norfolk, Virginia USCIS office. The interview went well, and the officer recommended his case for approval.  

However, without any reasons, our client’s case remained pending after his interview. Our office sent multiple follow-up letters to USCIS Norfolk Field Office and made multiple inquiries to the USCIS. Our client also visited the field office with the Infopass. None of us did hear any reasons for the delay. Our client even contacted Senator Tim Kane’s office for help.

In August 2018, our client and his wife received the Request for Evidence (RFE) from the USCIS to submit updated I-693 vaccination records. Our client received new physical exams and responded to his RFE. His case was transferred to the USCIS Texas Service Center and in February 2019, his case was transferred to the USCIS National Benefits Center.

Nevertheless, our client and his wife’s adjustment of status applications were approved on March 15, 2019. Now, he becomes a green card holder after the long wait.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Montana

Our client came from the Philippines on a J-1 visa in August 2016 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement.

In May 2018, she got married to her U.S. citizen husband and later on 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.

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 June 19, 2018, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Montana State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in Chicago for further authentication.  On August 8, 2018, our office sent our client’s materials 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 December 11, 2018, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on February 22, 2019, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: EB-3 I-140    
EMPLOYER:  Oleo-chemical manufacturer company in Boston, MA
BENEFICIARY: Malaysian Financial Planning & Analysis Manager

Our client is from Malaysia. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Business Administration. After talking to our client, our firm concluded that his employer can petition him as a Financial Planning & Analysis Manager. Based on our client’s education and work background, our office determined that he clearly 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. 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 2, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on August 14, 2018. On October 17, 2018, we promptly filed PERM. Eventually, on January 8, 2019, the PERM Labor Certification was approved – an EB3 position for the Malaysian 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 February 1, 2019 via premium processing service. Eventually, on February 14, 2019, the I-140 EB3 Petition for our Malaysian client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green card at any time.

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