CASE: I-485 Based on Approved I-140 / National Interest Waiver

CLIENT: Korean Radio Frequency Researcher

LOCATION: Dallas, Texas

Our client contacted us in July 2014 about the possibility of doing a National Interest Waiver. He is a research professor in the field of electrical engineering and radio frequency research, and is currently working as a research professor in Dallas, Texas.

His significant contributions have placed him at the pinnacle of the field of radio frequency research. He is a leading researcher and engineer in the field; specifically, Radio Frequency Integrated Circuit (RFIC) design and microwave research.  Our client’s research on RFIC has led to important innovations in his field of endeavor. Throughout his career, our client has provided innovative solutions and contributions for various areas of the microwave engineering from semiconductor device modeling and measurements to complex system-on-a-chip design which were highly evaluated by reviewers of various journals and by colleagues and experts in the field.

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

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 19-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication record, presentation record, and conference materials in the NIW application. We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 46 exhibits (Exhibit A to TT).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 6, 2015. On November 30, 2015, the USCIS approved his I-140 petition without any Requests for Evidence.  

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 December 8, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on March 3, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Kyrgyz

LOCATION: Delaware

Our client is a family nurse practitioner who is from Kyrgyzstan. 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 August 18, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on February 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 February 12, 2016, the USCIS issued Request for Evidence (RFE) and asked for our client’s recent W-2. Our office filed the Response to RFE on February 23, 2016. Eventually, on March 2, 2016, the USCIS approved her EB-2 I-140 petition. Since the priority date for Kyrgyzstan nationals are current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: I-140 (EB-2)

EMPLOYER: Cultural Center

BENEFICIARY: Chinese Educational Services Market Research Analyst

LOCATION: Cleveland, OH

The beneficiary is a Chinese lady who is currently working at a cultural center in Cleveland Ohio. The company was willing to do an immigration petition for her, second-preference. She has a Master’s degree in Business Administration.

Our firm believed her employer can petition her as an Educational Services Market Research Analyst. Based on our client’s educational, professional and working background, our office determined that she may be clearly eligible for EB-2 classification.

Prior to filing the PERM labor certification application, 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 Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad.

On September 26, 2014, the prevailing wage request was filed.  On January 28, 2015, we filed the PERM labor certification application.  Eventually, on August 19, 2015, the PERM labor certification was approved – an EB2 position for the Chinese Educational Services Market Research Analyst.

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 February 10, 2016 via premium processing. However, on February 16, 2016, the USCIS issued a Request for Evidence (RFE) for our client’s petition. In the RFE, the USCIS requested our client to submit any documentation that demonstrated her specific software special skills in the past. Our office promptly filed the Response to RFE on February 25, 2016 to the USCIS by submitting a letter from her employer detailing her usage and knowledge of the specific software that was required. Eventually, on March 2, 2016, the I-140 EB2 Petition for our Chinese client was approved. She can file an I-485 adjustment of status application for her green card when her priority date becomes current.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Canadian 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 is a family nurse practitioner, 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 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 and we filed the Prevailing Wage Determination on September 18, 2015.

We filed the I-140 application on January 25, 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 1, 2016, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Canadian nationals is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Filipina

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 is was a family nurse practitioner, 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 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 Requests for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Philippines nationals are current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: PERM Labor Certification
EMPLOYER: Korean Church
BENEFICIARY: Korean Pastor
LOCATION: Virginia

Our client is a senior pastor of a Korean church in Virginia, and he currently does his ministry work at this church under an H-1B status.  This church was 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 education, professional and working background, our office determined that he is eligible for EB-2 classification.  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 his 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. Now our client can file the I-140 petition and I-485 Application.

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CASE: I-140 (EB-3 Category) / Schedule A

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 and currently works in the United States with her H-1B status.  Her current employer was willing to petition her for a third-preference employment immigrant visa petition (I-140).

Since she is a registered nurse, she is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.

Our client has a nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on November 25, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on February 9, 2015 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  Eventually, on January 16, 2016, the I-140 was approved.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Hong Kong

LOCATION: Brooklyn, NY

Our client is a family nurse practitioner. His current employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he was a family nurse practitioner, he was eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on September 21, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 13, 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 January 22, 2016, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved his EB-2 I-140 petition. Since the priority date for Hong Kong nationals are current for the EB-2 category, he is eligible to file his adjustment of status application now.

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CASE: Adjustment of Status (I-485) / EB-11 (Alien of extraordinary ability)

CLIENT: Indian Plant Biotechnologist

LOCATION: Raleigh, NC

Our client contacted us in March 2014 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally well-known plant biotechnologist and is currently working as a researcher in Raleigh, NC.  Our client has written numerous internationally recognized scholarly articles in his field of endeavor. 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:

• 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):

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

• 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,
• The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
• 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. 723 101^st 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:

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

• 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;

• 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;

• 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;

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

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

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

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

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

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

After reviewing our client’s credentials and qualifications, we determined that our client meets 3 of the 10 categories. Our client has made an original scientific contribution to the plant genetic engineering and plant biology; has authorship of scholarly articles in his professional field of endeavor; and 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 24-page brief for our client’s EB-11 filing. Our client also obtained 11 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 52 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Texas Service Center via regular processing on July 30, 2014.

However, on April 13, 2015, the USCIS issued a Request for Evidence (RFE). In the RFE, the USCIS claimed that our client only met 2 of the 10 requisite statutory categories of EB-11. In the response brief, our office demonstrated that our client indeed meets 3 of the 10 categories and provided more letters of recommendations, citation record, and his recent research record.  Our office filed the response to RFE on June 18, 2015.  Eventually, on September 15, 2015, the USCIS Texas Service Center approved his I-140 self-petition.

Once his I-140 was approved, our client retained our office again for his family and his I-485 adjustment of status applications. Our office filed an I-485 adjustment of status applications for our client and his family members on October 7, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on January 20, 2016, the USCIS Texas Service Center approved our client’s and his family members’ adjustment of status applications. Now, he finally is a green card holder.

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CASE: PERM Labor Certification
EMPLOYER: Taekwondo (Martial Arts) School
BENEFICIARY: Korean
LOCATION: Cleveland, Ohio

Our client is a former Taekwondo athlete, and currently studies in the United States. He has a Taekwondo school which was willing to petition him for a third-preference petition (I-140).  Our client has a bachelor’s degree in a related field. After talking to our client, our firm concluded that his potential employer can petition him as a Taekwondo Coach.  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 background, our office determined that he is eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us on January 20, 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 February 25, 2015, the prevailing wage request was filed.  After we obtained the foreign degree evaluation report, our office filed the job order on April 21, 2015.  On July 15, 2015, we promptly filed PERM.  Eventually, on January 19, 2016, the PERM Labor Certification was approved – an EB3 position for the Korean beneficiary. Now our client can file the I-140 petition.

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