CASE: I-130/I-485 / J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Alaska

Our client came from the Philippines on a J-1 in August 2012 to work as a speech teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In May 2015, 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 May 20, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Alaska 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 July 29, 2015, 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 October 8, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 3, 2015, 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 December 9, 2015.  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 10, 2017, our client was interviewed at the Anchorage, Alaska USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

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CASE: Immigrant Visa / Consular Processing based on Approved I-140 / EB-11 (Alien of extraordinary ability)

CLIENT: Korean

LOCATION: Seoul, South Korea

Our client contacted us in August 2015 about 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 member of the Korean National Taekwondo Team as a Taekwondo athlete and one of his students won the gold medal at Universiade. Also, he was the head coach for national Taekwondo teams 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 Universiade; 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 18-page brief for our client’s EB-11 filing. Our client also obtained 7 letters of recommendation from World Taekwondo Federation, Korea Taekwondo Association, 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 50 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via premium processing service on May 9, 2016. On May 24, 2016, the USCIS Nebraska Service Center approved his I-140 self-petition.

Once his I-140 was approved, our client retained our office again for his and his family members’ immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on July 28, 2016, who in turn forwarded the client’s materials to the U.S. Embassy in Seoul, South Korea. An interview notice was set for the client at the U.S. Embassy in Seoul. On January 10, 2017, our client and his son appeared at the U.S. Embassy in Seoul, South Korea The interview went well, and on the same day, the U.S. Embassy in Seoul, South Korea approved and issued his and his son’s immigrant visas.

With the approved Immigrant visas, our client and his son can come to the United States immediately, and they will get their green cards within two months of entry.

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CASE: EB-3 I-140 Petition
EMPLOYER: Hydraulic Pumps and Motors Manufacturing Company in WV
BENEFICIARY: Kenyan Sales Manager in Kenya

Our client is from Kenya, who used to work in the U.S. on 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 educational, professional and working backgrounds, 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. Now, our client can file his immigrant visa application in Kenya once his priority date becomes current.  

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CASE: H-1B Visa Extension Petition
PETITIONER:  Accounting Firm in Baltimore, MD
BENEFICIARY: Staff Auditor from Trinidad and Tobago

Our client is an accounting firm in Baltimore, MD.  They contacted our office in March 2016 to seek legal assistance from our office for their foreign employee’s H-1B extension.  The beneficiary obtained his Bachelor’s Degree in accounting and completed his MBA program in the United States. The proffered position for the Beneficiary is a staff auditor which qualifies as a specialty occupation.  We argued that this position a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in accounting or its equivalent.  Moreover, our office helped this employee’s initial H-1B case in 2013 and it was approved by the USCIS.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on May 11, 2016 via the regular processing service. Eventually, our client’s H-1B application was approved on December 22, 2016.  His H-1B is good until September 13, 2019.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in Jacksonville, FL

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in Jacksonville, FL.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst which we argued 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, 2016 via regular processing. This H-1B petition was selected after the lottery.

However, on September 13, 2016, the USCIS issued Request for Evidence (RFE) for our client’s H-1B petition. USCIS requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation”, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on November 23, 2016.  Eventually, our client’s H-1B application was approved on December 12, 2016. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner.

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

APPLICANT: Filipina Nurse Practitioner

LOCATION: Chicago, IL

Our client is a family nurse practitioner. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a family 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 Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on October 19, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 22, 2016 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.  On February 3, 2016, without any Request for Evidence (RFE), 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 and her husband’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status applications for our client and her husband on February 12, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on August 22, 2016, the USCIS issued Request for Evidence (RFE) and requested our client to submit her Visa Screen document. In response to RFE, our office filed her Visa Screen document on November 14, 2016.  Eventually, on December 5, 2016, the USCIS Nebraska Service Center approved our clients’ adjustment of status applications. Now, she finally is a green card holder.

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CASE: I-485 Adjustment of Status / Schedule A

EMPLOYER: Physician’s Office

APPLICANT: Polish Nurse Practitioner

LOCATION: New Jersey

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 Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Once our office was retained, we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on August 1, 2016 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 August 15, 2016, the USCIS issued Request for Evidence (RFE) and requested our client to submit the missing copy of prevailing wage determination document. Our office immediately responded back to USCIS.  Eventually, on August 29, 2016, the USCIS 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 October 4, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on December 5, 2016, the USCIS approved our client’s adjustment of status application. Now, she finally becomes a green card holder.

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CASE: I-140 (EB-3)
EMPLOYER: Beauty Supply Distributing / Retail Company in Cleveland, OH
BENEFICIARY: Korean Product Safety / Quality Assurance Director

Our client is from South Korea, who is currently working in the U.S. on his H-1B status. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor of Chemical Engineering Degree and has worked for the current employer as a Product Safety / Quality Assurance Director. After talking to our client, our firm concluded that his employer can petition him as a Product Safety / Quality Assurance Director. Based on our client’s educational, professional and working backgrounds, 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 May 5, 2016.  On August 1, 2016, we promptly filed PERM.  Eventually, on October 24, 2016, the PERM Labor Certification was approved – an EB3 position for the Korean beneficiary.

We then proceeded with the I-140 Petition filing. We submitted a cover brief with the “ability to pay” argument 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 November 29, 2016 via premium processing service. Eventually, on December 5, 2016, the I-140 EB-3 Petition for our Korean client was approved without any Request for Evidence (RFE). Our client can file his I-485 adjustment this month.

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

CLIENT: Indian Chemist

LOCATION: Massachusetts

Our client contacted us in December 2016 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally well-known chemist and is currently working as a researcher in Boston, MA.  Our client has written numerous internationally recognized scholarly articles in his field of endeavor.  However, he filed his EB-11 I-140 petition by himself previously, and got a denial. Upon review of his credentials and qualifications, our office determined that he was definitely 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 3 of the 10 categories. Our client has made original scientific contributions of significance to the field of nuclear medicine and molecular imaging, in particular in the areas of cardiovascular diseases and imaging, cancer research, neurological disorders, and pharmaceutical sciences. He has authorship of scholarly articles in his professional field of endeavor. Lastly, our client has participated as a judge of the work of others in the same or an allied field of specialization for which classification is sought.

Our office prepared a 36-page brief for our client’s EB-11 filing. Our client also obtained 7 letters of recommendation from internationally well-known scholars in his field of endeavor. Our office also included his record of publications, citations, conference proceedings and invited talks, journal reviewer invitation evidence and other materials to show that he is an alien of extraordinary ability in plant engineering research. His EB-11 I-140 application contained 90 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Texas Service Center via regular processing on May 25, 2016. Eventually, without any RFE, the USCIS Texas Service Center approved his I-140 self-petition on November 23, 2016.

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CASE: H-1B Visa Extension

PETITIONER:  Physician’s Office in Flushing, NY

BENEFICIARY: Chinese Nurse Practitioner

Our client is a dermatology clinic in Flushing, NY which provides cosmetic and dermatologic treatments for its patients. They contacted our office in July of 2016 to seek legal assistance for its foreign beneficiary’s H-1B extension.

The beneficiary is from China and obtained her Master of Nursing Degree in the United States. She also has a valid Nurse Practitioner License in the State of New York. The proffered position for the Beneficiary was for a Nurse Practitioner which we argued qualified as a specialty occupation. We proffered that the minimum requirement for this position is a Master of Nursing Degree or its equivalent. Moreover, Nurse Practitioner needs the state license as well.  She has been working for the Petitioner on a valid H-1B visa.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on August 16, 2016 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on November 22, 2016. Now, the Beneficiary can continue to work for the Petitioner on an H-1B status until September 1, 2019 (until her duration of H-1B status reaches the 6th year mark).

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