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

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 in 2013 and now she is on an F-1 student status, and 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 2012.

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. Our office was retained on November 17, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on April 29, 2015 via regular processing. We also concurrently filed her I-485 adjustment of status since EB-3 priority date for our client was current at the time of her I-485 filing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents. Later, on May 13, 2015, our client upgraded her I-140 processing from regular to premium processing.

However, the USCIS issued a Request for Evidence (RFE) for our client’s degree evaluation document. Our office filed Response to RFE on May 29, 2015. Eventually, on June 2, 2015, the I-140 was approved and it retained our client’s old priority date.  Our client’s adjustment of status application will be approved once her priority date becomes current again.

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

APPLICANT: Kenyan Nurse Practitioner

LOCATION: Minnesota

Our client is a certified nurse practitioner. His prospective employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he was a certified 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 a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on September 23, 2014 via regular processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. Moreover, we filed our client’s I-485 adjustment of status application concurrently with the I-140 petition.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under Schedule A designation.  On March 26, 2015, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved his EB-2 I-140 petition. Eventually, our client’s adjustment of status application was approved on June 3, 2015. Now, our client is a green card holder. 

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CASE: I-485 adjustment of status based on approved I-140 (EB-2 Category) / Schedule A

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Michigan

Our client is from the Philippines and 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 mental health program nurse manager, 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 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 Mental Health Program Nurse Manager should be included in Schedule A.

Our client has a Bachelor’s degree in nursing and a Master’s degree in psychology. She also has a registered nursing license in the state of Michigan. Our office was retained on July 25, 2014 and we started on the Prevailing Wage Determination filing and other related matters.

After the prevailing wage was determined, we filed the I-140 application on September 24, 2014 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 mental health program nurse managers must fall under Schedule A designation and Eb-2 classification. 

On October 1, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Once the I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on October 7, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 27, 2015, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder. 

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

APPLICANT: Zambian Business Operating Manager

LOCATION: Texas

Our client is a business operating manager from Zambia, who used to work at a radio broadcasting company in Texas under his OPT program. While he was working there, the company was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Business Administration and has worked for this company for a year under the OPT program. Currently, our client is in F-2 status.

After talking to our client, our firm concluded that his potential employer can petition him as a Business Operating Manager. Based on our client’s educational, professional and working background as an engineer and management analyst, our office determined that he is eligible for EB-2 classification.

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.

Within a week from our retention, the prevailing wage request was filed.  On January 9, 2014, we filed the PERM labor certification application.  Eventually, on June 23, 2014, the PERM labor certification was approved.

Once the PERM was certified, we then proceeded with the I-140 petition filing. Our office submitted the “ability to pay” letter for the I-140 petition application on July 11, 2014 via premium processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. However, on July 23, 2014, the USCIS Texas Service Center issued a Notice of Intent to Deny for our client’s I-140 petition. According to the Notice of Intent to Deny, the USCIS requested the Petitioner to prove “ability to pay” for beneficiary’s proposed salary. In response to that, our office showed the beneficiary’s previous pay stubs and demonstrated that his previous salary was over and above the prevailing wage for his proposed position. Our office filed Response to Notice of Intent to Deny including a 7-page brief and supporting evidence to overcome the CIS’ arguments on August 11, 2014.

Eventually, the USCIS approved the I-140 petition on August 15, 2014. Once the I-140 petition was approved, our client retained our office again for his and his family’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our client and his derivative family members on August 21, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on April 20, 2015, the USCIS issued Request for Evidence for our client’s I-485 adjustment of status application. The USCIS requested our client to explain the connection between his OPT employment and the degree conferred to him in the United States. In response to the RFE, our office filed a response brief with his previous employer’s attestation regarding the job duties of our client. We filed the RFE response to the USCIS on May 13, 2015.

Eventually, on May 27, 2015, the USCIS Texas Service Center approved our client and his family members’ adjustment of status applications. Now, our client and his family finally are green card holders.

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CASE: H-1B Change of Employer

PETITIONER: Architectural Design Company

BENEFICIARY: Turkish Architect

LOCATION: New York, NY

Our client is an architectural design firm headquartered in New York City. They contacted our office in March 2015 to seek assistance from our office for their foreign employee. The beneficiary is from Turkey and she obtained her Bachelor’s and Master’s degree in architecture. The proffered position for the Beneficiary is an architect which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case already had her H-1B from her previous employer which was in a similar industry.  Her H-1B status was not yet expired, and she wanted to extend her H-1B status on a change of employer basis.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on March 24, 2015 via regular processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on May 25, 2015.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for the next three years.

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CASE: H-1B Visa Extension
PETITIONER:  Capital Investment Company in Georgia
BENEFICIARY: Lithuanian International Compliance Manager

Our client is a Capital Investment Company in Georgia which owns local and international travel clubs and sells memberships. They contacted our office in late March of 2015 to seek legal assistance for its foreign beneficiary’s H-1B extension..

The beneficiary is Lithuanian and obtained her Bachelor’s and Master’s Degree in International Law in Lithuania. The proffered position for the Beneficiary was for an International Compliance Manager which we argued qualified as a specialty occupation. We proffered that the minimum requirement for this position is a Bachelor’s Degree in International Law/Relations or its equivalent. She has been working for the Petitioner on a valid H-1B visa.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on April 9, 2015 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on May 12, 2015. Now, the Beneficiary can continue to work for the Petitioner on an H-1B status until December 7, 2016 (until her duration of H-1B status reaches the 6^th  year mark).

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

EMPLOYER: Physician’s Office

BENEFICIARY: Filipina Nurse Practitioner

LOCATION: Petitioner is in Honolulu, Hawaii; Beneficiary is in Manila, Philippines

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 Bachelor and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on June 10, 2014 and we started the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on September 25, 2014 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 October 7, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

After 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 January 12, 2015, 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 May 11, 2015, 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 / National Interest Waiver

CLIENT: Honduran

LOCATION: Washington, D.C.

Our client contacted us in 2014 about the possibility of doing a National Interest Waiver. He is a researcher in the field of agriculture and geography research, and is currently working as a Research Analyst / Geospatial Analyst at one of the International NGOs in Washington, D.C.

His significant contributions have placed him at the pinnacle of the field of agriculture and geography research; specifically, advancement in finding policy solutions for food and nutrition security in developing areas domestically and developing countries through the application of geographical analysis tools and approaches. Throughout his research career, our client has provided innovative solutions for determining measurable geographical features that relates to different levels of West Nile virus transmission and vector abundance. Although our client does not have a Ph. D. degree (He has Master’s Degree), our client’s work has been highly evaluated by the reviewers of various journals and by colleagues and experts in his field of endeavor.

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 22-page brief for our client’s NIW filing. Our client also obtained 9 letters of recommendation from his colleagues and internationally-recognized researchers in his field. 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 36 exhibits (Exhibit A to JJ).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on June 16, 2014. On May 6, 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.

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CASE: I-485 Adjustment of Status / 245(k) / I-140 (EB-2 Category) / Schedule A

APPLICANT: Ghanaian Psychiatric Mental Health Nurse Practitioner

LOCATION: Indiana

Our client is a certified nurse practitioner. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a certified 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 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 Nurse Practitioner is included in Schedule A.

Our client has both a Bachelor’s and Master’s degrees in nursing. She has a Registered Nurse license and has an ANCC Psychiatric-Mental Health Nurse Practitioner Certificate.  Our office was retained on June 17, 2014 and we started the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on October 24, 2014 via premium processing. We included the job offer letter, the notice of filing, her pay stubs, 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 November 8, 2014, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) and requested our client’s CGFNS certificate. Our office prepared the response to RFE and filed it along with CGFNS certificate on November 20, 2014 to the USCIS. On November 28, 2014, the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

When we filed her I-140 petition, our client simultaneously filed her I-485 adjustment of status application as well. We also included an extensive brief to argue that our client is eligible to adjust under the INA Section 245(k).

Section 245(k) of the INA can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days:

(A)Failed to maintain, continuously, a lawful status;

(B)  Engaged in authorized employment; or

(C)  Otherwise violated the terms and conditions of his or her admission.

Our client maintained lawful F-1 status, and maintained full-time student status, up until May 2014. However, she did not extend her F-1 status or changed to other non-immigrant status in the United States before the filing of her I-485 adjustment of status application. Nevertheless, our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she is still eligible to adjust status based on her approved I-140.

However, on April 20, 2015, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) and requested our client’s CGFNS certificate again. Our office prepared the response to RFE and filed it along with CGFNS certificate on April 24, 2015 to the USCIS.

Finally, the USCIS approved our client’s I-485 adjustment of status application on May 8, 2015. Now, our client becomes a green card holder. 

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: California

Our client contacted us in August 2014 about the possibility of doing a National Interest Waiver. He is a software development engineer in the field of network distribution system research, and is currently working as a software development engineer in a company in Silicon Valley.

His significant contributions have placed him at the pinnacle of the field of computer science and network and distributed system. He is a leading researcher and engineer in the field; specifically, energy management of mobile devices, network performance and management in wireless networks.  Our client’s research on network and distributed systems has led to important innovations in his field of endeavor. His research solutions have successfully deployed, and provide Hotspot services enabling reliable internet connectivity to several cities over multiple countries. He is highly regarded by his peers, and is routinely sought after by other scientists for collaborations and technical reviews.

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 21-page brief for our client’s NIW filing. Our client also obtained 8 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 32 exhibits (Exhibit A to FF).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on December 10, 2014. On April 28, 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. 

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