CASE: H-1B Change of Employer

PETITIONER: Advertising Media Company

BENEFICIARY: Albanian Graphic Designer

LOCATION: Nevada

Our client is an advertising media company in Nevada. They contacted our office in early November 2013 to seek legal assistance for their foreign employee. The beneficiary is from Albania and obtained her Bachelor’s degree in graphic design. The proffered position for the Beneficiary is a graphic designer which we argued qualifies as a specialty occupation.

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

After retention, our office filed the H-1B change of employer with various supporting documents on November 26, 2013 via regular processing service.  Since this petition was based on a change in employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on January 21, 2014.  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.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, Filipino

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is a Nurse Manager. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent. We emphasized that Nurse Manager position is clearly different from a registered nurse because Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on September 9, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  We also included a detailed statement regarding the number of registered nurses that the Beneficiary will supervise. Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 30, 2013. Eventually, our client’s H-1B application was approved on January 8, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 12, 2016 as a Nurse Manager.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: MDS Coordinator, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on August 30, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a lengthy response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 31, 2013. Eventually, our client’s H-1B application was approved on January 6, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 14, 2016 as a MDS Coordinator.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: Research Foundation in Washington, D.C.

BENEFICIARY: French Staff Accountant

ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research associations for the advancement, health, and sustainability of student affairs and education in the United States. Its National Headquarter in D.C. contacted our office in early December 2013 to seek legal assistance from our office for their foreign employee. The beneficiary is a Staff Accountant for this organization who has been working for Petitioner under the OPT program.

The beneficiary is a citizen of France, and has a Bachelor’s degree from the United States. The proffered position for the Beneficiary is a Staff Accountant. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Accounting or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, we believed our client is qualified for cap-exempt petitions since it is arguable that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

After retention, our office filed the H-1B visa petition with various supporting documents on December 27, 2013 via premium processing. This included an extensive brief arguing that our client was cap-exempt. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on January 3, 2014.  He can now work for his employer for three years on an H-1B status, and he did not have to wait for April 1 for the petition filing, nor October 1 to start working.

{ 0 comments }

CASE: H-1B Visa Petition (Change of Employer)

PETITIONER:  Environmental Engineering Consulting Firm

BENEFICIARY: Principal Consulting Environmental / Water Engineer

Our client is an Environmental Engineering Consulting Company in Fairfax, VA. They contacted our office in late November 2013 to seek legal assistance from our office for their foreign employee.  The beneficiary is from India and obtained his Bachelor’s degree and Master’s Degree in Civil / Environmental Engineering from Stanford.

The proffered position for the Beneficiary is a Principal Consulting Environmental / Water Engineer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Civil / Environmental Engineering or its equivalent.

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

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on December 12, 2013 via premium processing service.  Since this petition was based on a change of employer, this petition was exempted from the annual H-1B cap.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on December 27, 2013.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder.

{ 0 comments }

CASE: H-1B Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is a Nurse Manager. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent. We emphasized that Nurse Manager position is clearly different from a registered nurse because the Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office prepared and filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on July 25, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  We also included a detailed statement regarding the number of registered nurses the Beneficiary will supervise. Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included an organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 16, 2013. Eventually, our client’s H-1B application was approved on December 23, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 13, 2016 as a Nurse Manager.

{ 0 comments }

CASE: H-1B Visa Extension Petition

PETITIONER:  Taekwondo Academy in Hartford, CT

BENEFICIARY: Master Level Taekwondo Coach from South Korea

Our client is a Taekwondo Academy (martial arts school) located near Harford, Connecticut.  They contacted our office in late-October to seek legal assistance for their foreign employee’s H-1B extension.

The beneficiary obtained his Bachelor’s Degree in Physical Education. The proffered position for the Beneficiary is a Master Level Taekwondo Coach.  He has been working for the Petitioner for last three years with a valid H-1B visa. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Physical Education or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on November 8, 2013 via premium processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on November 25, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in an 5-page response brief with 8 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included letters from experts to demonstrate that the bachelor’s degree is a minimum educational qualification for Taekwondo coach positions in the industry and illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on December 19, 2013. Our client’s H-1B application was approved on December 24, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until December 31, 2016

{ 0 comments }

CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Santa Clara, California

Our client contacted us in June 2013 about the possibility of doing a National Interest Waiver application for him. He is a post-doctorate researcher and scientist in the field of Aerospace Engineering and Science, and was working as a research fellow for NASA at the time of his filing.

Our client is an extraordinary researcher and engineer in the field of Aerospace Engineering Research; specifically, computational fluid dynamics (CFD) and flow control.

His significant contributions have placed him at the pinnacle of the field of Aerospace engineering. Our client’s expertise is in the development of computational fluid dynamics (CFD) which meets the contemporary requirements for not only conventional development but also revolutionary aircraft design. He has been helping a U.S. aircraft company investigate the feasibility of their designs under consideration by performing very complex CFD analysis and suggesting alternative optimal new configurations.

Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for the NIW is beneficial since you would not need an employer nor family member to petition 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 9 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 45 exhibits. Our office filed his I-140(NIW) petition at the USCIS Nebraska Service Center on July 29, 2013 along with his I-485 adjustment of status application.

However, on September 16, 2013, 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 physics-based turbulence model and computational fluid dynamics research.  We also emphasized our client’s past accomplishments and the benefits of his work. Our Response to RFE was filed on November 13, 2013.

Eventually, on December 6, 2013, the USCIS Nebraska Service Center approved our client’s I-140 petition. Now, our client can wait for his I-485 adjustment of status decision which will be adjudicated soon.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Illinois

BENEFICIARY: MDS Coordinator, Filipino

Our client is a Nursing Home Facility in Illinois. They contacted our office in early March to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing. The proffered position for the Beneficiary is a MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents in April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on August 14, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included that Petitioner previously employed and petitioned for an H-1B for the same position.

Our office filed the response to the USCIS Vermont Service Center on October 29, 2013. Our client’s H-1B petition was approved on December 2, 2013.

{ 0 comments }

CASE: I-485 (Based on EB-2 I-140 Approval)

CLIENT: Kenyan Nurse Practitioner

LOCATION: Akron, Ohio

Our client is a certified nurse practitioner, who is currently working at a nursing care company in Akron, Ohio under an OPT. Her 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 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 Bachelors and Masters degree in nursing. Our office was retained in May 21, 2013 and we started the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on September 17, 2013 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.  On September 30, 2013, without any Requests for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

When we filed her I-140 petition, the priority date for Kenyan nationals was current for the EB-2 category, thus we also filed her I-485 adjustment of status application concurrently. Eventually, on November 29, 2013, her adjustment of status application was approved by the USCIS. Also, her husband, who applied as a derivative, got his green card at the same time.

{ 0 comments }