CASE: I-140 (EB-3)

EMPLOYER: Care Center in Houston, TX 

BENEFICIARY: Filipino Information Technology Director in the Philippines

Our client has a prospective employer that as willing to petition for a third-preference I-140.  Our client has a Bachelor’s degree in Information Technology and currently works for an IT consulting company in the Philippines. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us in February 2016.

Prior to filing PERM, 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 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.  After we obtained the PW determination, the job order was filed on April 28, 2020.  On July 7, 2020, we promptly filed PERM.  Eventually, on February 11, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipino beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on April 6, 2021 via regular processing service. Eventually, on October 25, 2021, the I-140 EB3 Petition for our Filipino client was approved without any Request for Evidence (RFE).

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

EMPLOYER: Physicians’ Office

BENEFICIARY: Kenyan Nurse Practitioner

LOCATION: Houston, TX

Our client is a family nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a family 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 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 March 16, 2020 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on September 25, 2020 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.  Eventually, on October 14, 2020, the USCIS Texas Service Center approved her EB-2 I-140 petition without a Request for Evidence (RFE). 

Our client retained us again for her adjustment of status application. However, our office was informed that our client’s OPT was expired and she had continuously worked for her employer without the DHS’ authorization. Thus, she worked without authorization and overstayed her visa status. 

Section 245(k) of the Immigration and Nationality Act 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: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

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 was still eligible to adjust status based on the I-485 filing through INA 245(k).

As mentioned above, our office filed an I-485 adjustment of status application for our client on December 22, 2020. Our office also submitted a detailed cover brief and explained why our client is still eligible for the adjustment of status through the INA 245K subsection despite her overstay and unauthorized employment.  Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on November 1, 2021, her adjustment of status application was approved by the USCIS without an interview. 

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CASE: PERM Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Biology Teacher

LOCATION: Casa Grande, AZ

Our client has a current employer who was willing petition her for a third-preference I-140.  Our client has a Bachelor’s degree in Secondary Education, a valid Arizona Teaching license, and has worked for her current employer since July 2016. Based on our client’s education and credentials, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2020.

Prior to filing PERM, 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 application could only 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.  After we obtained the PW determination, our office filed the job order on August 31, 2020.  On December 8, 2020, we filed PERM. 

On July 2, 2021, the Department of Labor issued a request for audit. The DOL requested documents from the Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on July 29, 2021.   

Eventually, on November 1, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. Our client can file the I-140 petition at any time.

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CASE: I-485 Adjustment of Status / I-140 (EB-3 Category) / Schedule A 

EMPLOYER: Health Service Ambulatory Facility

BENEFICIARY: Filipina Registered Nurse

LOCATION: Saipan, Northern Mariana Islands

Our client is a Filipina Registered Nurse and her current employer-sponsor was willing to petition her for a third-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a registered nurse at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB3 (requiring at least a Bachelor’s degree).

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. 

Our client has a bachelor’s degree in nursing and has worked for the Petitioner as a registered nurse for several years.  She also has a registered nursing license in Northern Mariana Islands. 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 April 13, 2020 via regular processing. We included a job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB3 designation.

Eventually, on December 17, 2020, the USCIS Texas Service Center approved her EB-3 I-140 petition. 

Once her I-140 was approved, she retained our office again for her I-485 adjustment of status application. Our office filed the I-485 adjustment of status application on October 23, 2020. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on October 20, 2021, their green card application was approved without an interview.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under a J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 5, 2021 via premium processing. Our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 5, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in Forrest City, AR

BENEFICIARY: Filipina High School Math Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in August 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a High School Math Teacher from the Philippines who has been working for this employer for the last several years under a J-1 status. Her J-1 visa was not subject to the 2 year foreign residency requirement. 

The proffered position for the Beneficiary is a High School Math Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, we argued that our client is qualified for cap-exempt petitions since they are a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on September 24, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 7, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Extension Petition
PETITIONER:  E-Commerce Company in Addison, TX
BENEFICIARY: Korean Market Research Analyst

Our client is an E-commerce company in Addison, TX. They contacted our office in August 2021 to seek legal assistance for their foreign employee’s H-1B extension.  The beneficiary obtained his Bachelor’s Degree in Marketing. The proffered position for the Beneficiary is a Market Research Analyst. The argument would be to make the occupation at hand a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Marketing or its equivalent.  We also did their initial H-1B petition in 2018.  

Our office filed the H-1B visa petition with various supporting documents on September 7, 2021 via regular processing service. Eventually, our client’s H-1B application was approved on September 30, 2021.  His H-1B is good until September 11, 2024.

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CASE: I-485 Adjustment of Status / I-140 (Skilled Worker) / Schedule A 

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Kyrgyz

LOCATION: Rockford, IL

Our client’s beneficiary is a registered nurse from Kyrgyzstan and licensed in the state of Illinois. She came to the United States on a F-1 student’s visa.  Her prospective employer was willing to petition her 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 an Associate of nursing degree and has 2 years of work experience as a Registered Nurse. Our firm told her that her prospective employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on November 3, 2020 and we started on her Prevailing Wage Request.

We filed the I-140 application on June 16, 2021 via premium processing. We included the job offer letter, the notice of filing, employer’s financial ability to pay letter, and other necessary supporting documents. Eventually, on June 28, 2021, the I-140 was approved without any Request for Evidence (RFE). 

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her. On July 16, 2021, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on September 16, 2021, the USCIS issued a Request for Evidence (RFE) and requested our client to submit evidence of her status maintenance in the United States. Our office filed the RFE response on September 21, 2021.  Eventually, on September 28, 2021, her green card application was approved. Her adjustment of status application was approved less than 3 months from the filing date.

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CASE: PERM EB3 Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipino High School Physics Teacher

LOCATION: Casa Grande, AZ

Our client has an  employer that was willing to do a PERM Labor Certification for him, EB3  Our client has a Bachelor’s degree in Physics for Teachers, a valid Arizona Teaching license, and has worked for his current employer since August 2016. Based on our education and credentials, our office determined that he is clearly eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us in April 2020.

Prior to filing PERM, 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 application could only 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.  After we obtained the PW determination, our office filed the job order on August 13, 2020.  On November 9, 2020, we promptly filed PERM. 

On June 3, 2021, the Department of Labor issued a request for audit. The DOL requested documents from the Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on June 14, 2021.   

Eventually, on September 21, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipino beneficiary. Our client can file the I-140 petition at any time.

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