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

APPLICANT: Korean Nurse Practitioner

LOCATION: Florida

Our client is a certified nurse practitioner. Her prospective 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 a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on May 5, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on July 20, 2015 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 29, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) and asked to submit Petitioner’s entire tax record and an explanation regarding the place of employment. Our office prepared the Response to RFE and filed it to the USCIS on August 10, 2015. Eventually, on August 19, 2015, the USCIS Texas Service Center 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 (green card) application. Our office filed an I-485 adjustment of status application for our client and her husband on August 21, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on January 6, 2016, the USCIS approved our client and her husband’s adjustment of status applications. Now, they finally are green card holders.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client was in the Philippines when we started his case. 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 Bachelor’s degree in nursing and 5 years of experience as a clinical 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 March 16, 2015 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 March 26, 2015, the USCIS Texas Service Center approved his EB-2 I-140 petition.

While his I-140 petition was pending, he came to the United States to visit his family members as a B-2 visitor’s visa. He intended to come home after but while he was in the United States, his I-140 petition was approved. After consultation with our office, and assessing that he did not have immigrant intent, he retained our office again and to file an adjustment of status application in the United States.

On June 23, 2015, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on December 28, 2015, the USCIS approved our client’s I-485 adjustment of status application. Now, he is a green card holder.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

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

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on July 30, 2015 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 August 7, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) for our client’s I-140 petition. In the RFE letter, the USCIS requested our client to demonstrate her past experience and Petitioner’s new tax records. In response to RFE, our office prepared and filed the Response to RFE on August 25, 2015 including our client’s past experience letter from the Philippines and the Petitioner’s tax documents.  Eventually, on August 31, 2015, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once her I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. On September 4, 2015, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

As a result, on December 30, 2015, the USCIS approved our client’s I-485 adjustment of status application. Now, she is a green card holder.

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CASE: I-140 (EB-2)

EMPLOYER: Home Health Services in Chicago Illinois

BENEFICIARY: Nigerian Director of Business Technology and Strategy

Our client is Nigerian, who is in the U.S on H-4 status. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Engineering Management.

After talking to our client, our firm concluded that his employer can petition him as a Director of Business Technology and Strategy. Based on our client’s educational and professional, our office determined that he is eligible for EB-2 classification.

Prior to filing PERM labor certification, 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, whichever is later.

On October 28, 2014, the prevailing wage request was filed.  On April 17, 2015, we filed the PERM labor certification application.  Eventually, on November 17, 2015, the PERM labor certification was approved – an EB2 position for the Nigerian Director of Business Technology and Strategy.

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 November 24, 2015 via premium processing service. However, on December 7, 2015, the USCIS issued a Request for Evidence (RFE) for our client’s petition. In RFE, the USCIS requested our client to submit any documentation that demonstrates his specific software special skills in the past. Our office promptly filed the Response to RFE on December 8, 2015 to USCIS by submitting a letter from his old employer detailing his usage and knowledge of the three specific software that were required. Eventually, on December 16, 2015, the I-140 EB2 Petition for our Nigerian client was approved. He can now file an I-485 adjustment of status application for his green card (he could have filed the I-485 application simultaneously, but he wanted to make sure the I-140 was approved first).

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CASE: I-485 adjustment of status / I-140 / EB-11 (Alien of Extraordinary Ability)

CLIENT: Chinese

LOCATION: Cleveland, Ohio

Our client contacted us in May 2014 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally known Pianist and is currently working as a pianist in the Cleveland area.  Our client has received multiple international awards and has appeared in numerous recitals in several cities in the world.  Also, has performed at the Carnegie Hall in New York City, and has been published in publications such as the Plain Dealer. 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 INA Section 203(b):

(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):

(A) Aliens with extraordinary – an alien is described in this sub-paragraph if-

(i)                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,

(ii)               The alien seeks to enter the United States to continue work in the area of extraordinary ability, and

(iii)             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:

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

(ii)               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;

(iii)             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;

(iv)             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;

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

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

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

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

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

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

After review of our client’s credentials and qualifications, we determined that our client can meet 4 of the 10 categories, which is more than 3 required as an alien of extraordinary ability. Our client has been awarded numerous national and international awards for his piano performance; has made an original contribution in the musical field of piano performance; has participated in a judging panel in numerous prestigious national and international piano competition events; and his distinguished achievements and success in piano performance were published in professional and major media.

Our office prepared a 19-page brief for our client’s EB-11 filing. Our client also obtained 8 letters of recommendation from internationally well-known piano professors and players. Our office also included his performance coverage, awards, media coverage, medals, recital records, and other materials to show that he is an alien of extraordinary ability in piano performance. His EB-11 I-140 application contained 55 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via regular processing on October 31, 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 met more categories and provided more letters of recommendations, media coverage documents, recent performance records, and leadership positions.  Our office filed the response to RFE on June 19, 2015.  Eventually, on July 7, 2015, 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 I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on August 6, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, on October 9, 2015, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) for his adjustment of status application. In the RFE, the USCIS claimed that our client did not comply immigration law while he was in OPT status. They also claimed he worked illegally while volunteering to provide piano lessons in Church. In response, we argued that his volunteer work was part of Church activities. He was not compensated for it, and it’s volunteer and charitable work that does not displace American workers.

 Eventually, on December 8, 2015, 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: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Fairbanks, 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 Philippine Government) were sent to the Philippines Consulate General 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. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

Feel free to call us at (216) 573-3712 or email us at jp@sarmientoimmigration.com if you have any questions. Consultations are free.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

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 microwave engineering from semiconductor device modeling and measurements to complex system-on-a-chip design which were highly evaluated by the 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.

Now, with the approved NIW I-140 petition, he can file his adjustment of status application at any time.

For free consultations, feel free to email Glen Yu at glen@sarmientoimmigration.com or call at (216) 573-3712.

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CASE: PERM Labor Certification

EMPLOYER: Data Marketing Company

BENEFICIARY: Nepali Computer Systems Analyst

LOCATION: Omaha, NE

Our client is a computer systems analyst from Nepal, who is currently working at a data marketing company in Omaha, Nebraska. They were willing to do an immigration petition him for a second-preference petition (I-140 EB-2).

Our client has a Master of Science degree in Computer Science and has worked for this company since January 2013. He has maintained his status as an H-1B visa holder in the United States.  After talking to our client, our firm concluded that his employer can petition him as a Computer Systems Analyst II. Based on our client’s educational, professional and work background, our office determined that he is clearly eligible for the EB-2 classification for his I-140 petition.

Prior to filing the PERM labor certification, 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.

After retention, our office filed the prevailing wage request in December 2014.  On May 26, 2015, we filed the PERM labor certification application.  Eventually, on November 19, 2015, less than 6 months from filing, with no audits, the PERM labor certification was approved – an EB2 position for our Nepali Computer Systems Analyst. Now our client can file the I-140 Petition and the I-485 green card application since his priority date is current.

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CASE: I-824 (Follow-to-join) based on approved I-140 and Consular Processing (Immigrant Visa)

CLIENT: Filipina LPR Petitioner; Filipino Beneficiary in the Philippines

LOCATION: Petitioner: Michigan; Beneficiary: Manila, Philippines

Our client is a Lawful Permanent Resident who got her green card under EB-2 category with our office’s legal assistance in 2014.  She has a husband, and our client and her husband married before his adjustment of status application was adjudicated. However, her husband was in the Philippines when she got her green card due to his employment. He could have been a derivative applicant at the time of our client’s green card filing, but he was not in the United States at that time. Nevertheless, we told our client that we can do an I-824 and do consular processing for her husband when he wants to permanently move to the United States.

In October 2014, she contacted our office to do an I-824 follow-to-join application to the USCIS so that her husband can file an immigrant visa and come as a derivative beneficiary of the I-140 petition. She retained our office on October 17, 2014 to help bring her husband to the States.

After we were retained, our office filed an I-824 follow-to-join application to the USCIS on October 31, 2014. After the I-824 was filed, everything went smoothly and the receipt notice came on time. The I-824 application was approved by the USCIS on June 29, 2015 and this case was transferred to the National Visa Center.

After the I-824 approval, we filed the immigrant visa packets to the National Visa Center on August 20, 2015 who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for our client at the U.S. Embassy in Manila. On November 10, 2015, our client’s husband appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and eventually, on the same day, the U.S. Embassy in Manila, Philippines approved and issued his immigrant visa.

With the approved Immigrant visa, our client’s husband can come to the United States. He will get his green card within two months.

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CASE: PERM Labor Certification

EMPLOYER: Home Health Services in Chicago Illinois

BENEFICIARY: Nigerian Director of Business Technology and Strategy

The beneficiary of this labor certification is Nigerian, who is in the U.S on H-4 status. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Engineering Management.

Our firm concluded that his employer can petition him as a Director of Business Technology and Strategy. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification.

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

On October 28, 2014, the prevailing wage request was filed.  On April 17, 2015, we filed the PERM labor certification application.  Eventually, on November 17, 2015, the PERM labor certification was approved – an EB2 position for the Nigerian Director of Business Technology and Strategy. Now our client can file an I-140 Petition and his I-485 adjustment of status application simultaneously.

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