CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early March to seek legal assistance from our office for their foreign employee’s H-1B Extension.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license. With our office’s legal assistance, she got her H-1B in May 2013.

Her H-1B extension is quite unique due to the nature of her employment. The Petitioner is qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment. We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

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

Eventually, our client’s H-1B application was approved on September 22, 2016 without any Request for Evidence (RFE).  She can now work for her employer for three more years.

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CASE: I-485 based on Approved I-140 (EB-2)

APPLICANT: Chinese Nurse Practitioner

LOCATION: Houston, Texas

Our client is a nurse practitioner from China, who is currently working at a large hospital which was willing to petition her for a second-preference petition (I-140). She has maintained her status as an H-1B visa holder in the United States.  She had an approved I-140 petition which was filed by her current employer and this I-140 petition’s priority date was December 31, 2007.

In July 2016, she contacted our office and retained us for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on July 22, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on September 22, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. She is now a green card holder.

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CASE: Immigrant Visa / I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a hospital in the Philippines as a nurse. 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 2009.

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. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on October 3, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on December 9, 2014 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on December 22, 2014, the I-140 was approved and it retained our client’s old priority date.  

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on February 23, 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 Philippines. On August 23, 2016, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued her immigrant visa.

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)    
EMPLOYER: Korean Church
BENEFICIARY: Korean Pastor
LOCATION: Virginia

Our client is a senior pastor of a Korean church in Virginia, and currently does his ministry at this church under the H-1B status.  This church is willing to petition him for a second-preference petition (I-140).  Our client has a master’s degree in Divinity. After talking to our client, our firm concluded that his employer can petition him as a 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 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 on December 15, 2014.

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 March 4, 2015, the prevailing wage request was filed.  After we obtained foreign degree evaluation report, our office filed the job order on May 4, 2015.  On July 29, 2015, we promptly filed PERM.  Eventually, on January 28, 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 financial records, and other necessary supporting documents. The I-140 Petition was filed on June 14, 2016 via premium processing service. However, the USCIS issued Request for Evidence (RFE) on June 29, 2016 and requested the Petitioner’s audited balance sheet to demonstrate whether Petitioner has sufficient net current asset to pay proffered wage of beneficiary. On September 8, 2016, our office filed the Response to RFE to USCIS along with Petitioner’s 2015 audited balance sheet. Eventually, on September 16, 2016, the I-140 EB-2 Petition for our Korean client was approved. Our client can file his I-485 adjustment of status application once his priority date becomes current in October 2016.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Taiwanese

LOCATION: Brooklyn, NY

Our client is a physical therapist. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a physical therapist, 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 Master’s degrees in Rehabilitation Science and is a licensed physical therapist in the State of New York. Our office was retained on February 22, 2016 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on June 24, 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 July 7, 2016, the USCIS issued Request for Evidence (RFE) for her I-140 case. The USCIS requested our client’s employer to explain its multiple locations and our client’s potential place of employment. We filed the Response to RFE on August 11, 2016. Eventually, on August 24, 2016, the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Taiwanese national will be current in October 2016 for the EB-2 category, she is eligible to file her adjustment of status application in October 2016.

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CASE: I-140 (EB-3)

EMPLOYER: Engineering Company

BENEFICIARY: Taiwanese Radio Frequency Identification Engineer

LOCATION: Columbus, OH

Our client is currently working as a Radio Frequency Identification Engineer (RFID) whose current employer willing to petition him for a third-preference petition (I-140).  Our client has a bachelor’s and a master’s degree in a related field and working experience. He has been working for his current employer under H-1B status. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us in March 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 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 August 31, 2015.  On November 11, 2015, we promptly filed PERM.

However, on April 14, 2016, 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 April 29, 2016.  

Eventually, on June 30, 2016, the PERM Labor Certification was approved – an EB3 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 August 22, 2016 via premium processing service. Eventually, on August 31, 2016, the I-140 EB-3 Petition for our Taiwanese client was approved without any Request for Evidence (RFE). Now, our client can file his I-485 adjustment of status application since his priority date is current.  

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CASE: I-140 (EB-2)
EMPLOYER: Dental Group in Cleveland, OH
BENEFICIARY: Korean Dentist

Our client is from South Korea, who is currently working in the United States as an associate dentist under H-1B status. His current employer is willing to do an immigration petition for him, second-preference. Our client has a Doctor of Dental Medicine degree in the United States. After talking to our client, our firm concluded that his employer can petition him as an associate dentist. Based on our client’s educational, professional and working backgrounds, our office determined that he is clearly 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 29, 2015, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on December 10, 2015.  On March 1, 2016, we promptly filed PERM.  Eventually, on July 8, 2016, the PERM Labor Certification was approved – an EB2 position for the South 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 August 22, 2016 via premium processing service. Eventually, on August 29, 2016, the I-140 EB-2 Petition for our Korean client was approved without any Request for Evidence (RFE). Our client can file his I-485 adjustment of status application once his priority date becomes current.

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

EMPLOYER: Physician’s Office

BENEFICIARY: 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. She is eligible to file her adjustment of status application once her priority date becomes current.

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CASE: H-1B Visa Petition

PETITIONER:  Dental Clinic

BENEFICIARY: Nepalese 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 her Doctor of Dental Surgery in the United States. Moreover, she is a licensed dentist in the state of Ohio. The proffered position for the Beneficiary is an associate dentist 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, 2016 via regular processing service. This H-1B petition was selected after the lottery.

However, the USCIS issued Request for Evidence (RFE) on June 8, 2016 and requested beneficiary’s pay stubs during her OPT employment. Moreover, the USCIS asked Beneficiary to submit evidence to show whether she has maintained her non-immigrant status lawfully in the United States. Our office gathered the evidence from Beneficiary and submitted the Response to RFE to USCIS on June 22, 2016. Eventually, our client’s H-1B application was approved on August 24, 2016.

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CASE: I-129 (O-1B Petition)

CLIENT: Korean

LOCATION: Columbus, OH

Our client contacted us in May 2016 about the possibility of getting an O-1B visa in the United States. She is a renowned solo / collaborative pianist and is currently working with different performing groups and music establishments.  Our client was first place in several national competitions and had a chance to perform in Carnegie Hall in New York, one of the most prestigious musical venues in the world. She also performed in various distinguished musical groups, orchestras and bands.  Upon review of her credentials and qualifications, our office determined that she was qualified for the O-1B visa petition, alien of extraordinary ability in the Arts.

The regulation at 8 C.F.R. Section 214.2(o)(3)(iv) sets forth a multi-part analysis. First, a petitioner can demonstrate the beneficiary’s recognition in the field through evidence that the alien has been nominated for, or the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award. 8 C.F.R. Section 214.2(o)(3)(iv)(A).

If the petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying evidence that satisfies at least three of the six categories of evidence listed below.

1. Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
2. Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
3. Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
4. A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
5. Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements
6. A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence.

After the review of our client’s credentials and qualifications, we determined that our client meets 4 of the 6 categories, which is more than 3 required as an alien of extraordinary ability in Arts. She performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation. She achieved national or international recognition for her achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publication. She performed and will perform in a critical role for distinguished music groups, musicians, and musical establishment, and she has received significant recognition for her musical, scholarly, and performance achievements from various experts in her field of endeavor.

Our office prepared a 21-page brief for our client’s O-1B filing. Our client also obtained 9 letters of recommendation from experts in her field of endeavor. Our office also included her performance records, awards, media coverage, scholarly achievements, and other materials to show that she is an alien of extraordinary ability in piano performance.  Also, our office contacted the American Guild of Musical Artists and obtained a consultation letter (Advisory Opinion Letter) for her case. Lastly, we included her contracts with various employers and itineraries.

Our office filed her I-129 (O-1B) petition to the USCIS California Service Center on June 29, 2016 via regular processing. In August, our client decided to upgrade her case to premium processing, so our office filed premium processing request to USCIS on August 9, 2016.  Eventually, on August 19, 2016, the USCIS California Service Center approved the I-129 petition for our client’s O-1B visa.

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