CASE: H-1B Visa Petition

PETITIONER:  Dental Clinic

BENEFICIARY: Korean Dentist in Cleveland, OH

Our client is a dental clinic located in Cleveland, Ohio.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Doctor of Dental Medicine in the United States. Moreover, she is a licensed dentist in the state of Ohio. The proffered position for the Beneficiary was an associate dentist which we argued qualified as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2017 via regular processing. This H-1B petition was selected after the lottery.  Eventually, our client’s H-1B application was approved on August 29, 2017.

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CASE: H-1B Visa Petition

PETITIONER:  Mental Health and Welfare Agency for children

BENEFICIARY: Taiwanese Outpatient Services Clinician in Columbus OH

Our client is a comprehensive children’s mental health and child welfare agency in Columbus, OH.  They contacted our office in later February of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained her Master of Science in Social Administration in the United States. The proffered position for the Beneficiary is an Outpatient Services Clinician which clearly qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2017 via regular processing service. This H-1B petition was selected after the lottery. Our client’s H-1B application was approved on August 19, 2017 without any Request for Evidence (RFE).

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CASE: I-484 (Adjustment of Status) I-140 Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. She came to the United States in 2013 and now she holds an F-1 student status. Her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of March 2012.

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.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told her that her potential employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on November 17, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on April 29, 2015 via regular processing. We also concurrently filed her I-485 adjustment of status since EB-3 priority date for our client was current at the time of her I-485 filing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents. Later, on May 13, 2015, our client upgraded her I-140 processing from regular to premium processing.   

However, the USCIS issued a Request for Evidence (RFE) for our client’s degree evaluation document. Our office filed Response to RFE on May 29, 2015. Eventually, on June 2, 2015, the I-140 was approved and it retained our client’s old priority date.  

Then, we proceeded with our client’s I-485 adjustment of status application. We prepared and file our client’s adjustment of status application along with supporting documents to USCIS on April 28, 2015.

However, the priority date of Eb-3 category for the Philippines national backlogged. Our client had to wait until the priority date becomes current. In March 2017, her priority date becomes current. Eventually, our client’s adjustment application was approved by the USCIS on August 15, 2017.  After a long wait, our client is finally a green card holder.

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CASE: PERM Labor Certification    
EMPLOYER:  Hydraulic Unit Manufacturing Company in Texas
BENEFICIARY: Filipino Hydraulic Power Unit Design and Installation Project Manager

Our client is from the Philippines. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Bachelor’s degree in Maritime Transportation and has more than 5 years of work experience as a Hydraulic Equipment Installer / Operator. After talking to our client, our firm concluded that his employer can petition him as a Hydraulic Power Unit Design and Installation Project Manager. Based on our client’s educational, professional and work background, our office determined that he is eligible for EB-2 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 September 12, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on January 10, 2017.  On May 3, 2017, we promptly filed PERM.  Eventually, on August 11, 2017, the PERM Labor Certification was approved – an EB2 position for the Filipino beneficiary. Now our client can file the I-140 petition.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client is from the Philippines. His prospective employer-sponsor was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he has a registered nurse license and the proffered position for him 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 Master’s Degree in Nursing degree. He 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 February 26, 2016 via premium processing. We included a 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 March 10, 2016, the USCIS Texas Service Center issued Request for Evidence (RFE) and requested our client to submit his prospective employer’s most recent tax return record and his degree evaluation report. Our office prepared the response and filed the Response to RFE on March 14, 2016. Eventually, on March 25, 2016, the USCIS Texas Service Center approved his EB-2 I-140 petition.

Once his I-140 was approved, our client retained our office again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on May 5, 2016, 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 the Philippines. His interview was scheduled in October 2016 initially; however, due to his health, the interview was re-scheduled. On June 28, 2017, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued his immigrant visa.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino Nurse Manager in the Philippines

LOCATION: Houston, TX

Our client is in the Philippines. His prospective employer-sponsor was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he has a registered nurse license and the proffered position for him 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 master’s degree in nursing and years of experience as a registered nurse. He 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 July 6, 2017 via premium processing. We included a 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.

Eventually, on July 17, 2017, the USCIS Texas Service Center approved his EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), he can file his immigrant visa application.

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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 September 2014 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement.

In August 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 7, 2016, 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 March 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 June 22, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on July 6, 2017, 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-2 Green Card Approval Based on Approved I-140 (EB-2)    
EMPLOYER: Korean Church
BENEFICIARY: Korean Education Pastor
LOCATION: Cleveland, OH

Our client is a Korean church in Cleveland, Ohio which was willing to petition a Korean beneficiary for an Education Pastor position – second-preference petition (I-140).  Our client’s prospective employee has a master’s degree in Divinity. After talking to our client, our firm concluded that this employer can petition him as an Education Pastor.  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 prospective employee’s educational, professional and working backgrounds, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us in October 2015.

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 October 6, 2015, the prevailing wage request was filed.  After we obtained foreign degree evaluation report, our office filed the job order on January 12, 2016.  On April 8, 2016, we promptly filed PERM.  Eventually, on July 19, 2016, 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 audited balance sheet (since the church is tax-exemption entity), and other necessary supporting documents. The I-140 Petition was filed on October 17, 2016 via premium processing service. Eventually, on October 25, 2016, the I-140 EB-2 Petition for our Korean client was approved without any Request for Evidence (RFE).

Once the I-140 petition 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 for our client on November 8, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on June 30, 2017, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.

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CASE: L-1A petition extension / I-129

PETITIONER: Child Care Center in Cleveland, OH

BENEFICIARY: Chinese Child Care Center Director

Our client is a Chinese company which has its US subsidiary in the greater Cleveland area (Avon Lake).  In 2016, our client opened a new business and has offered child care services to children from the age of 6 weeks to 12 years old. They contacted our office in the middle of June 2017 to seek legal assistance for a possible L-1A extension for their employee. She came from China in 2016 with her L-1A visa to work as a Child Care Center Director.

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

Upon retention, our office prepared and eventually filed the L-1A extension petition with various supporting documents. The application included a detailed employer support letter, documentation to demonstrate the qualifying corporate relationship between the parent company in China and the U.S., financial documents, past experience documents, organization chart, and physical premises evidence among others. We filed the L-1A extension petition on June 21, 2017 via premium processing.

Eventually, our client’s L-1A application was approved on June 29, 2017 without any RFE. Her L-1A status has been extended to August 2019.

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CASE: H-1B Visa Petition-Extension

PETITIONER: Research Foundation in Washington, D.C.

BENEFICIARY: French Staff Accountant

ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research associations for the advancement, health, and sustainability of student affairs in the United States. Its National Headquarters in D.C. contacted our office in August of 2016 to seek legal assistance for their foreign employee’s H-1B Extension. The beneficiary is a Staff Accountant for this organization who has been working for Petitioner under an H-1B status. With our office’s legal assistance, he got his H-1B in January 2014.

The beneficiary is the citizen of France, and has a Bachelor’s degree from the United States. The proffered position for the Beneficiary is a Staff Accountant. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Accounting or its equivalent.

This H-1B case is exempt from the numerical limitation because our client is qualified for cap-exempt petitions since it is a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C) so it is exempt from the numerical limitation.

Once retained, our office filed the H-1B visa extension petition with various supporting documents on November 15, 2016.

Eventually, our client’s H-1B application was approved on June 19, 2017, without any Request for Evidence (RFE).  He can now work for his employer for three more years.

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