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

CLIENT: Korean LPR Petitioner; Korean Beneficiary in South Korea

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

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

In May 2014, he contacted our office to do an I-824 follow-to-join application to the USCIS so that his wife can file an immigrant visa and come as a derivative beneficiary of the I-140 petition. He retained our office on May 13, 2014 to help bring his wife to the States.

After we were retained, our office filed an I-824 follow-to-join application to the USCIS on May 19, 2014. 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 on June 19, 2014 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 October 1, 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 February 27, 2015, our client’s wife appeared at the U.S. Embassy in Seoul, South Korea. The interview went well, and eventually, on the same day, the U.S. Embassy in Seoul, South Korea approved and issued her immigrant visa.

With the approved Immigrant visa, our client’s wife can come to the United States. She will get her green card within two weeks.

{ 0 comments }

CASE: H-1B Change of Employer / Re-capture and reclaim issues

PETITIONER: Software Development and IT Staffing Company

BENEFICIARY: Indian Computer Systems Analyst

LOCATION: Jacksonville, FL

Our client is a fast growing software developing and IT consulting company located in Jacksonville, FL. They contacted our office in August 2014 to seek assistance from our office for their foreign employee. The beneficiary is from India and he obtained his Bachelor’s Degree in Information Systems.  The proffered position for the Beneficiary is a Computer Systems Analyst which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had his H-1B from his previous employer which was in a similar industry.  However, he changed his status from H-1B to H-4 after his employment was terminated with his previous employer. Nevertheless, his previous H-1B was valid until September 2016 so our office argued that his unused H-1B time can be recaptured and his H-1B petition can be filed under a change of employer basis which means no cap limitation.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on August 27, 2014 via regular processing. However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on October 24, 2014, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting companies.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on January 13, 2015.  Eventually, our client’s H-1B application was approved on February 11, 2015.

{ 0 comments }

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

CLIENT: Korean

LOCATION: Cleveland, OH

Our client contacted us in February 2014 about the possibility of doing a National Interest Waiver. He is a post-doctorate researcher and scientist in the field of biomedical engineering and cardiology research, and is currently working as a post-doctorate researcher in an academic institution in Cleveland, Ohio.

His significant contributions have placed him at the pinnacle of the field of biomedical engineering and cardiology research. He is a leading scientist with an excellent reputation in the area of mechanism of atrial fibrillation. Our client’s research work has provided fundamental understanding of atrial fibrillation in an animal model of atrial fibrillation, and has advanced the development of an algorithm for future clinical treatment of atrial fibrillation by targeting critical epicardial and endocardial sites for ablation for many atrial fibrillation patients in the United States. Throughout his research career, our client has provided significant scientific contributions relevant to understanding mechanisms of atrial fibrillation 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 7 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 29 exhibits (Exhibit A to CC).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on June 10, 2014. On November 18, 2014, the USCIS approved his I-140 petition without any Requests for Evidence.

When he filed his I-140 petition, he simultaneously filed his adjustment of status application (I-485). Eventually, on February 14, 2015, his adjustment of status application was approved by the USCIS Nebraska Service Center. Now, he is a green card holder.

{ 0 comments }

CASE: I-140 (EB-3)

EMPLOYER: Consulting Company

BENEFICIARY: Chinese Financial Analyst

LOCATION: New York, NY

Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.

After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 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.

Within a week from our retention, the prevailing wage request was filed.  On June 13, 2014, we filed the PERM labor certification application.  Eventually, on October 31, 2014, exactly four months from filing, 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 November 26, 2014 via regular processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. Later on, we upgraded our client’s I-140 petition filing to “premium processing” by filing an I-907 form. However, on December 31, 2014, the USCIS Texas Service Center issued a Request for Evidence (RFE) for our client’s I-140 petition. According to the RFE, 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 and current pay stubs show that he is “currently being paid” above the proffered wage for his proposed position. According to the William R. Yates May 4, 2004 CIS Memorandum on the “Determination of Ability to Pay under 8 C.F.R.  204.5(g)(2): CIS adjudicators should make a positive ability to pay determination in any of the following circumstances:… (3)  Employment of the beneficiary…”, It should be shown that “the record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid OR is currently paying at least the proffered wage…”

Our client’s recent W2 salary is NOT above the proffered wage, but a calculation of his CURRENT salary if multiplied to a yearly amount DOES. Hence we emphasized the “or is currently paying” clause from the memo. Our office filed the Response to RFE with a brief and supporting evidence to overcome the CIS’ arguments on February 6, 2015.

Eventually, the USCIS approved the I-140 petition on February 12, 2015. Now, with the approved EB-3 I-140 petition, our client can file his adjustment of status application when his priority becomes current.

{ 0 comments }

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in Texas

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a nursing / rehabilitation center in the greater Houston area under an H-1B status. Her current 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 August 2008.

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 previous 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 current employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on November 17, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on January 26, 2015 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on February 4, 2015, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file her immigrant visa application

{ 0 comments }

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in Texas

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a nursing / rehabilitation center in the greater Houston area under an H-1B status. Her current 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 November 2009.

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

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told her that her current employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can apply for adjustment of status. Our office was retained on October 29, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on January 7, 2015 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on January 15, 2015, the I-140 was approved and it retained our client’s old priority date.  Now, our client can file for adjustment of status.

{ 0 comments }

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

CLIENT: Korean LPR Petitioner; Korean Beneficiary in South Korea

LOCATION: Petitioner: Seattle, WA; Beneficiary: Seoul, South Korea

Our client is a Lawful Permanent Resident who got his green card through his current employer’s petition. His current employer filed an I-140 petition for him in August 2008 and later this I-140 petition was approved. He filed his adjustment of status application and became a green card holder in July 2013. He has a wife and two U.S. citizen children. Our client and his wife married in August 2011 before his adjustment of status application was adjudicated. However, his wife was in South Korea when he got his green card due to personal circumstances. She could have been a derivative applicant at the time of our client’s green card filing.

Our client was also given wrong advice before. After he got his green card, his previous counsel suggested for him to file an I-130 petition for his wife in South Korea (F2A category). He filed the I-130 petition and just waited for the priority date become current so that his wife can file the immigrant visa.

In May 2014, he contacted our office and explained his situation to our office. Our office immediately told him that he can file an I-824 follow-to-join application to the USCIS so that his wife can file an immigrant visa and come as a derivative beneficiary of the I-140 petition rather than as a beneficiary of the I-130 petition which will take more time. After consultation, he retained our office on May 28, 2014 to help bring his wife to the States.

After we were retained, our office filed an I-824 follow-to-join application to the USCIS on June 2, 2014. 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 on June 30, 2014 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 28, 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 January 6, 2015, our client’s wife appeared at the U.S. Embassy in Seoul, South Korea. The interview went well, and eventually, on January 8, 2015, the U.S. Embassy in Seoul, South Korea approved and issued her immigrant visa.

With the approved Immigrant visa, our client’s wife successfully came to the United States ten days after the visa issuance.  She will get her green card within two weeks.

{ 2 comments }

CASE: 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.

{ 0 comments }

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a hospital in the Philippines as a nurse. Her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of March 2009.

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

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told her that her potential employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on October 3, 2014 and we started on her Prevailing Wage Request.

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

{ 0 comments }

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client is 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 health services manager (nurse manager) at the nursing care facility, the petition 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). She did not have 5 years experience, but she had a Masters in Nursing.

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 Master’s degree in nursing. 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 December 15, 2014 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 health services manager position falls under a Schedule A and EB2 designation.

Eventually, on December 22, 2014, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her adjustment of status application at any time (she could have filed it simultaneous to the I-140, we just want to make sure the I-140 was approved first).

{ 0 comments }