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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: San Antonio, TX

Our client is in the Philippines. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and has more than five years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on June 6, 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 the nurse manager position falls under a Schedule A and EB2 designation.

However, on June 18, 2018, the USCIS issued a Request for Evidence (RFE). The USCIS argued that they cannot approve her I-140 petition because the proffered position, Nurse Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Nurse Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to EB-2 classification argument, our office argued that the proffered position has the supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to RFE to USCIS Texas Service Center on July 27, 2018.  

Eventually, on August 10, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her immigrant visa via consular processing.

{ 0 comments }

CASE: I-140 (EB-3)    
EMPLOYER: Temperature Control Services
BENEFICIARY: Ecuadorian
LOCATION: New York

Our client is a company which specializes in providing and installing automatic temperature control systems in commercial and industrial buildings. They have an employee from Ecuador and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their employee has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that they can petition him as a BAS/HVAC Controls Technician. 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 – an EB3 position for the Ecuadorian 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, 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 Ecuadorian client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green at any time since his priority dates are current.

{ 0 comments }

CASE: PERM Labor Certification    
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 they can petition the beneficiary 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. Now our client can file the I-140 petition.

{ 0 comments }

CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Montana

Our client came from the Philippines on a J-1 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 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. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

{ 0 comments }

CASE: I-140 (EB-3)
EMPLOYER:  E-Commerce Merchandiser Employer in Dallas, TX

BENEFICIARY: Korean E-Business Operations Specialist

Our client is from South Korea and his prospective 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 an E-Business Operations Specialist. Based on our client’s educational, professional and wprl background, our office determined that he was 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 November 22, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on July 10, 2017. On September 13, 2017, we promptly filed PERM. Eventually, on June 25, 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 July 17, 2018 via premium processing service. Eventually, on August 2, 2018, 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 at any time since his priority dates are current.

{ 0 comments }

CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Dayton, Ohio

Our client came to the United States from Mexico in April 2007 without inspection and admission. He married his U.S. citizen wife in April 2016. After they got married, his U.S. Citizen wife filed an I-130 petition for him in June 2016. This I-130 petition was approved on July 29, 2016.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission). He needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. His wife has ongoing medical hardships and she would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in Mexico in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in Mexico, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On September 19, 2017, we filed the I-601A waiver application which included the brief in support, his wife’s extensive medical examination records, and other documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on May 22, 2018. Now, he can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get his immigrant visa.

{ 0 comments }

CASE: PERM Labor Certification    
EMPLOYER: Chinese Restaurant
BENEFICIARY: Chinese Cook in Venezuela
LOCATION: Ohio

Our client is a Chinese restaurant in Ohio. They do have a prospective employee from Venezuela and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their prospective employee has more than 2 years of experience as a Chinese cook. After talking to our client, our firm concluded that they can petition him as a Chinese Specialty Cook. Our client eventually retained us on January 27, 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 February 10, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on July 14, 2017. On November 3, 2017, we promptly filed PERM. Eventually, on April 19, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese beneficiary. Now our client can file the I-140 petition.

{ 0 comments }

CASE: I-140 (Derivative Beneficiary) and Adjustment of Status

CLIENT: Nepalese

LOCATION: Omaha, Nebraska

Our client retained us to apply for her green card application. Our client was born and raised in Nepal. Her husband became the beneficiary of an approved EB-2 I-140 petition from his employer and got his green card in May 2017 through our firm’s legal assistance. She married her husband in September 2016 while her husband’s green card application was pending.  Thus, she was qualified as a derivative applicant. She retained our office in October 2016.

Once retained, our firm prepared and filed the Adjustment of Status Application on October 3, 2016 for our client.  Everything went smoothly and the receipt notices, fingerprint appointment, and a work permit all came on time. However, on April 7, 2017, the USCIS issued Request for Evidence for our client and requested her to submit documents regarding her maintenance of status in the U.S. and documentations regarding bona fide nature of her marriage to her husband. On April 17, 2017, our office filed the Response for RFE to USCIS. In June 2017, the USCIS schedule our client’s adjustment of status interview at Omaha USCIS Field Office.

Prior to the interview, we thoroughly prepared our client through conference calls.  On July 26, 2017, our client was interviewed at the Omaha USCIS Field office in Nebraska. Nevertheless, her case was remained pending until May of this year. Finally, the USCIS issued another Request for Evidence (RFE) and requested our client to submit the updated medical record (I-693). Our client submitted the updated I-693 to USCIS promptly. Eventually, on June 25, 2018, her green card application was approved.

{ 0 comments }

CASE: PERM Labor Certification    
EMPLOYER: Temperature Control Services
BENEFICIARY: Ecuadorian
LOCATION: New York

Our client is a company which specializes in providing and installing automatic temperature control systems in commercial and industrial buildings. They do have an employee from Ecuador and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their employee has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that they can petition him as a BAS/HVAC Controls Technician. 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 – an EB3 position for the Ecuadorian beneficiary. Now our client can file the I-140 petition.

{ 0 comments }

CASE: I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)

EMPLOYER: Multinational Travel Company

BENEFICIARY: Filipino

LOCATION: Las Vegas, NV

Our client is the president of a multinational travel company in Las Vegas.  He is from the Philippines, and he has worked for the parent company as an Executive. He came to the United States in January 2015 on an a L-1A visa to work for the current petitioner company (wholly-owned subsidiary of his previous employer).  He contacted our firm in August 2017, and discussed with 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 eligible for the EB-1C classification. 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, above 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 3 years in the United States. In addition, Petitioner-Company is the wholly-owned subsidiary of its Filipino 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 the Philippines.  Our client served as an executive for the parent company. Lastly, our client is to be employed in the United States as a president 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 organization chart, and a dispatch order.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in the Philippines. The evidence included a copy of the certificate of ownership, a copy of the articles of incorporation, a copy the business registration certificate, a copy of the financial statements.  The I-140 Petition was filed on September 11, 2017. On July 11, 2018, the I-140 petition was approved with no Requests for Evidence.

{ 0 comments }