CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Akron, OH

Our client contacted us in December 2017 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 Engineering. Though he is a Ph.D. student, he is already considered as an exceptional researcher and scientist in the field of polymer engineering and nanofabrication research.

Our client’s significant contributions have placed him at the pinnacle of his field. He has made important contributions to the field of nanofabrication based on layer-by-layer (LbL) assembly using two-dimensional (2D) materials. LbL assembly technique can create ultrathin films and highly tunable surfaces using diverse combinations of nanomaterials on various supports. Our client has incorporated 2D materials (e. g. graphene and molybdenum disulfide) into thin films using LbL assembly technique to produce materials with designed functionality. Because of his innovative experimental research, our client’s research works were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id.

Our office prepared a 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 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 26 exhibits (Exhibit A to Z).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on July 30, 2018. Eventually, on February 14, 2019, the USCIS approved his I-140 petition without any Requests for Evidence.  Now, he can file his adjustment of status application.

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CASE: Marriage-Based Green Card (I-130 / I-485)

NATIONALITY: Philippines

LOCATION: Indianapolis, IN

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 August 2017, 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 February 14, 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 April 2, 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 July 23, 2018, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 7, 2018, 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 September 4, 2018.  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 January 31, 2019, our client was interviewed at the Indianapolis, Indiana USCIS office.  The interview went well, and eventually, on February 11, 2019, her green card application was approved.

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CASE: I-140 (Skilled Worker) / Schedule A

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Nepalese

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from Nepal and licensed in the state of Texas. She came to the United States on a valid visa and she is currently working in the United States with her TPS (Temporary Protected Status).  Her current 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 an Associate of 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 June 15, 2016 and started on her Prevailing Wage Request.

We filed the I-140 application on January 14, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. However, on January 23, 2019, the USCIS issued Request for Evidence and asked our client to submit the copy of petitioner’s most recent tax return. Our office filed the response to USCIS on January 25, 2019.  Eventually, on February 7, 2019, the I-140 was approved.

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CASE: I-140 / EB-11 (Alien of extraordinary ability)

CLIENT: Korean

LOCATION: Seoul, South Korea

Our client contacted us regarding the possibility of getting an immigrant visa through the EB-11 category. He is a world-renowned Taekwondo coach and is currently working as a coach for one of the best Taekwondo teams in South Korea.  Our client was a former Asian champion as a Taekwondo athlete and one of his students won the gold medal at the 2016 Rio de Janeiro Olympics. Also, he was a coach and the head coach for the national Taekwondo teams multiple times in his career. Upon review of his credentials and qualifications, our office determined that he was qualified for the EB-11 category, an alien of extraordinary ability.

According to the INA Section 203(b) states, in pertinent part, that:

1. Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):

1. Aliens with extraordinary – an alien is described in this sub-paragraph if-

1. The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
2. The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
3. The alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability.  See H.R. 723 101st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991).  The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).

The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field.  Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:

1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

1. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

1. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.  Such evidence shall include the title, date, and author of the material, and any necessary translation;

1. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

1. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

1. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

1. Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;

1. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

1. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

1. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the review of our client’s credentials and qualifications, we determined that our client meets 5 of the 10 categories, which is more than 3 required as an alien of extraordinary ability. Our client has made an original contribution to the sport of Taekwondo; has been awarded numerous national and international coaching awards and his student-players have won numerous national and international competitions including Summer Olympics; has played a critical role for distinguished organizations; has a membership in an organization with distinguished reputation that requires outstanding achievement; and our client’s coaching successes were published in professional and major media.

Our office prepared a 21-page brief for our client’s EB-11 filing. Our client also obtained 4 letters of recommendation from World Taekwondo Federation, former Olympic champions, Taekwondo head coaches from other national teams, etc. Our office also included his coaching records, awards, media coverage, medals, athletic career records, and other materials to show that he is an alien of extraordinary ability in Taekwondo coaching. His EB-11 I-140 application contained 31 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via premium processing service on February 4, 2019. On February 8, 2019, within a week of the filing, the USCIS Nebraska Service Center approved his I-140 self-petition.

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

APPLICANT: Filipina Physical Therapist

LOCATION: Manila, Philippines

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

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

We filed the I-140 application on September 10, 2018 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  Eventually, on September 24, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition.

After the approval of the I-140 petition, our client retained us again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on October 31, 2018, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Philippines. On January 9, 2019, our client appeared at the U.S. Embassy in Manila, Philippines. Eventually, after the interview, the Immigrant Visa was issued for our client.

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

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

EMPLOYER: Outpatient Mental Health Center

BENEFICIARY: Korean

LOCATION: Utah

Our client is a certified mental health nurse practitioner. His current employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he is a certified mental health nurse practitioner, he 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 Ph.D. degree in nursing and is a certified Nurse Practitioner. Our office was retained on August 9, 2018, and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 18, 2019 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  Eventually, on January 30, 2019, the USCIS Nebraska Service Center approved his EB-2 I-140 petition. Since the priority date for South Korean national is current for the EB-2 category, he is eligible to file his adjustment of status application now.

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CASE: Adjustment of Status (EB-2 Category)    
APPLICANT: Taiwanese Outpatient Services Clinician
LOCATION: Columbus, OH

Our client is a comprehensive children’s mental health and child welfare agency which was willing to petition an Outpatient Services Clinician position for a second-preference petition (I-140).  Our client’s employee has a master’s degree in Social Administration and currently is working for them under H-1B status. After talking to our client, our firm concluded that this employer can petition her as an Outpatient Services Clinician.  Second preference petitions for Taiwanese people are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s prospective employee’s educational, professional and working backgrounds, our office determined that she is clearly eligible for EB-2 classification for her I-140 petition.  Our client eventually retained us on November 2, 2016.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On November 8, 2016, the prevailing wage request was filed.  After we obtained determined prevailing wage, our office filed the job order on February 16, 2017. On July 14, 2017, we promptly filed PERM. Eventually, on December 4, 2017, the PERM Labor Certification was approved – an EB2 position for the Taiwanese beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on May 10, 2018 via premium processing service.

However, on May 15, 2018, the USCIS Nebraska Service Center issued Request for Evidence (RFE) and requested our client to submit the documents to show “ability to pay” and special skills for Beneficiary. On May 22, 2018, our office filed Response to RFE and stated that Petitioner’s net current asset figure is sufficient for proffered wage of Beneficiary. Moreover, we included the letter from the Petitioner regarding the proof that Beneficiary already obtained her special skills for the proffered position.  Eventually, on June 4, 2018, the I-140 EB2 Petition for our Taiwanese client was approved.

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her. On July 17, 2018, our office filed an I-485 adjustment of status application for our client. 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 January 31, 2019, our client was interviewed at Columbus Ohio USCIS office. Eventually, her I-485 application was approved by the USCIS on January 31, 2019.

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CASE: EB-3 I-140    
EMPLOYER:  Tire Mold Manufacturing Company in Akron, OH
BENEFICIARY: Korean Molding Process Engineer

Our client is from South Korea. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Mechanical Engineering. After talking to our client, our firm concluded that his employer can petition him as a Molding Process 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. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On January 17, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on April 4, 2018. On June 21, 2018, we promptly filed PERM. Eventually, on August 16, 2018, the PERM Labor Certification was approved – an EB3 position for the Korean beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on January 22, 2019 via premium processing service. Eventually, on January 30, 2019, the I-140 EB3 Petition for our Korean 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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CASE: EB-2 I-140

EMPLOYER: Cosmetic Products Manufacturer

BENEFICIARY: Korean Controller

LOCATION: Cleveland, OH

Our client is currently working as a finance manager and his current employer was willing to petition him for a second-preference petition (I-140).  Our client has a bachelor’s degree in Business Administration and has more than 5 years of experience as a Financial Analyst. After talking to our client, our firm concluded that his employer can petition him as a Controller. Second preference petitions for Koreans are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s education and work background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us in June 8, 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the foreign degree evaluation report, our office filed the job order on December 8, 2017. On May 7, 2018, we promptly filed PERM.

However, on August 22, 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. Moreover, the DOL requested the Petitioner to submit evidence related to bona fide job opportunity which includes Petitioner’s articles of incorporation, quarterly tax, organizational chart, etc. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, recruitment documentation, and other requested documents on September 19, 2018.  Eventually, on December 13, 2018, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on January 18, 2019 via premium processing service. Eventually, on January 29, 2019, the I-140 EB2 Petition for our Korean 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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CASE: I-485 / National Interest Waiver

CLIENT: Mexican

LOCATION: Raleigh, NC

Our client contacted us in April 2016 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from Mexico and he is an exceptional researcher and scientist in the field of plant developmental biology research.

Our client’s significant contributions have placed him at the pinnacle of his field. His research has contributed to the advancing of our understanding of the mechanisms that control plant growth and development, and how plants respond to geminivirus infection, thus enabling the development of new plant breeding technologies for food production improvement.  Because of his innovative experimental research, our client’s research works were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id.

Our office prepared a 20-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 Texas Service Center on December 20, 2017. Eventually, on April 13, 2018, 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 determined to file an adjustment of status application for him and his wife. On July 19, 2018, our office filed an I-485 adjustment of status application for our client. 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 19, 2019, our client was interviewed at Durham North Carolina USCIS office. Eventually, his I-485 application was approved by the USCIS on January 22, 2019.  

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