CASE: PERM Labor Certification

EMPLOYER: Culture Center

BENEFICIARY: Chinese Educational Services Market Research Analyst

LOCATION: Cleveland, OH

Our client’s beneficiary is Chinese, who is currently working at a culture center in Cleveland, OH on an H-1B. The company was willing to do an immigration petition for her, second-preference. Our client has a Master’s degree in Business Administration.

After talking to our client, our firm concluded that her employer can petition her as an Educational Services Market Research Analyst. Based on the beneficiary’s educational background and the position offered, our office did PERM with an 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.

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, WITHOUT any audits. Now our client can file an I-140 Petition.

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

EMPLOYER: Physician’s Office

BENEFICIARY: South Korean

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 explanation regarding its 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. Since the priority date for South Korean national is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: South Carolina

Our client came from the Philippines on a J-1 in July 2008 to work as a 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 April 2011, 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 September 21, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the South Carolina 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 Philippine Embassy in D.C. for further authentication.  On November 20, 2012, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On June 29, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 12, 2015, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her I-485 adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: Derivative Adjustment of Status  (I-485) / Same-Sex Marriage

CLIENT: Filipino

LOCATION: Oregon

Our client came to the United States in November 2013 with a valid B-2 visitor’s visa from the Philippines. Later, in March 2014, he married his same-sex spouse in Washington where the same-sex couple’s marriage is legally recognized. His spouse is an H-1B visa holder.

As a family dependent of an H-1B visa holder, our client can change his status from B1 / B2 to H-4. Our firm was retained and on April 14, 2014, we filed our client’s I-539 with all supporting documents to the USCIS. There were no requests for evidence. On July 2, 2014, the Change of Status was approved.

In January 2015, our client contacted our office again for his I-485 adjustment of status application. His spouse had an approved EB-2 I-140 petition and filed his adjustment of status application. Thus, as a derivative beneficiary, our client would like to get legal assistance from us for his adjustment of status application.

Upon retention, our firm prepared and filed the I-485 Adjustment of Status Application on January 14, 2015.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

However, on May 5, 2015, the USCIS Nebraska Service Center issued a Request for Evidence for our client’s I-485 application and requested bona fide marriage documents from our client. On May 21, 2015, our office filed the Response to RFE with multiple documents showing the bona fide nature of his marriage to his spouse.

Eventually, on August 10, 2015, the USCIS approved our client’s adjustment of status application. Now, he is a green card holder.

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CASE: H-1B Visa Petition

PETITIONER:  Dental Clinic

BENEFICIARY: Korean Dentist in Cleveland, OH

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

The beneficiary obtained his Doctor of Dental Medicine in the United States. Moreover, he 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, 2015 via regular processing. This H-1B petition was selected in the lottery. Our client’s H-1B application was approved on July 21, 2015.

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CASE: L-1A petition / I-129

PETITIONER: Adventure Travel Company in the Philippines

BENEFICIARY: Filipino President/CEO in the Philippines

Our client is an adventure travel company in the Philippines.  They contacted our office in the middle of September 2014 to seek legal assistance for a possible L-1A “new office” petition to send its executive to the U.S. in order to setup a new office.

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

For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:

• The employer has secured sufficient physical premises to house the new office;
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

The beneficiary has been the President of the parent company since 2010. Physical premises, articles of incorporation, and other legal matters were established for the “new office” as well. Our office was retained to do an L-1A petition with the purpose of transferring Beneficiary to the United States to head operations and be President of the new business (U.S. subsidiary).

Upon retention, our office prepared and eventually filed the L-1A visa petition with various supporting documents. The application included a detailed employer support letter, documentation to demonstrate the qualifying corporate relationship between the parent company in the Philippines and the U.S., financial documents, past experience documents, business plan, and physical premises evidence among others. We filed the L-1A petition on October 14, 2014.

The USCIS eventually sent a Request for Evidence and requested Petitioner to submit additional evidence to establish ownership and control of the U.S. Entity, physical premises of the U.S. company, and Beneficiary’s abroad employment. The company is in the “service” industry hence we had to argue and justify the “virtual” office arrangement of the office. In response to the RFE, we gathered supporting documents to address all issued and filed the Response to RFE on January 22, 2015.

Eventually, our client’s L-1A application was approved on February 10, 2015. Thereafter, our office filed I-824 follow-to-join application on March 24, 2015 to enable Beneficiary and his wife to come to the United States under the L visa as well. The I-824 petition was approved on April 28, 2015. Eventually, the visa applications were sent and our clients were interviewed. Eventually, our clients  L visas were approved at the U.S. Embassy in Manila.

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CASE: I-824 based on approved I-140 (EB-3) and Consular Processing (Immigrant Visa)

CLIENT: Commercial Linen Producing Company Petitioner; Korean Beneficiary in South Korea

LOCATION: Petitioner: Virginia; Beneficiary: Seoul, South Korea

Our client is in South Korea who took voluntary departure in 2008 to South Korea as a result of his removal proceedings. However, before he left the United States, his prospective employer filed an I-140 petition for him in April 2008 and later this I-140 petition was approved.

Our client and his family members went back to South Korea and did not think that they could come back to the United States because of their voluntary departure. Nevertheless, his prospective employer contacted our office in June 2013 and asked our legal assistance for our client’s immigrant visa processing. It was a very difficult case, but with the approved I-140 petition, our client wanted to take his last try. His I-140 petition was still valid.

After we were retained, our office filed an I-824 application to the USCIS on June 23, 2013 to move his case from the USCIS to National Visa Center. After the I-824 was filed, everything went smoothly and the receipt notices came on time. The I-824 application was approved by the USCIS 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 July 25, 2014, 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 April 2, 2015, our client and his family members appeared at the U.S. Embassy in Seoul, South Korea. The interview went well; however, the consular officer wanted to see our client’s past immigration record including his previous I-485 denial. 

Our client did not have his I-485 denial notice, so our office filed a Track I FOIA on April 8, 2015 to the USCIS. On May 12, 2015, the USCIS issued a copy of his I-485 denial notice and our office immediately emailed our client this document. Then, our client submitted his I-485 denial notice and his other past immigration records.

Eventually, on May 27, 2015, the U.S. Embassy in Seoul issued immigrant visas for our client and his family members. With the approved Immigrant visas, they can come to the  United States as lawful permanent residents. 

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CASE: 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 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):

(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. 723 101^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:

(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 the 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.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino

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 studies in the United States on her F-1 status. Her current employer was willing to petition him 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 July 24, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on November 7, 2014 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  Eventually, on June 24, 2015, the I-140 was approved without any RFE.  Our client can file an I-485 adjustment of status application once her priority date becomes current provided she maintains status throughout. 

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

CLIENT: Nepalese Nuclear Scientist

LOCATION: Cleveland, OH

Our client contacted us in April 2014 regarding the possibility of doing a National Interest Waiver self-petition for him. He is a post-doctorate researcher and scientist in the field of Physics and Nuclear research, and is currently working as a post-doctorate researcher in an academic institution in Kent, OH.

His significant contributions have placed him at the pinnacle of the field of physics and nuclear science. He is a leading scientist with an excellent reputation in his field of endeavor and his research work involved a very complex, simultaneous, and constrained analysis of partial-wave amplitudes for multiple channels produced in pion-nucleon scattering. His work has confirmed the state of low-lying states involving S- and P- wave amplitudes and has also predicted some new states. Overall, his research has yielded important information about excited states of nucleons thereby producing a clearer picture of the baryon spectrum.

Upon review of his credentials and qualifications, our office determined that he has a good chance of meeting 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 14-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 records, presentation records, 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 19 exhibits.

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on June 4, 2014.  However, on October 6, 2014, the USCIS issued a Request for Evidence for his I-140 petition. In response to the RFE request, our office prepared a brief which included notes from scientists in the field regarding updates of his work and the importance of his past work in nuclear and physics research. We also emphasized our client’s past accomplishments and the benefits of his work. Our Response to RFE was filed on December 5, 2014.  Eventually, on December 24, 2014, the USCIS Nebraska Service Center approved our client’s I-140 petition.

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 January 14, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on June 26, 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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