CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Dayton, Ohio

Our client came to the United States from Mexico in April 2007 without inspection and admission. He married his U.S. citizen wife in April 2016. After they got married, his U.S. Citizen wife filed an I-130 petition for him in June 2016. This I-130 petition was approved on July 29, 2016.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission). He needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. His wife has ongoing medical hardships and she would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in Mexico in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in Mexico, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On September 19, 2017, we filed the I-601A waiver application which included the brief in support, his wife’s extensive medical examination records, and other documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on May 22, 2018. Now, he can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get his immigrant visa.

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CASE: PERM Labor Certification    
EMPLOYER: Chinese Restaurant
BENEFICIARY: Chinese Cook in Venezuela
LOCATION: Ohio

Our client is a Chinese restaurant in Ohio. They do have a prospective employee from Venezuela and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their prospective employee has more than 2 years of experience as a Chinese cook. After talking to our client, our firm concluded that they can petition him as a Chinese Specialty Cook. Our client eventually retained us on January 27, 2017.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 10, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on July 14, 2017. On November 3, 2017, we promptly filed PERM. Eventually, on April 19, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification    
EMPLOYER: Temperature Control Services
BENEFICIARY: Ecuadorian
LOCATION: New York

Our client is a company which specializes in providing and installing automatic temperature control systems in commercial and industrial buildings. They do have an employee from Ecuador and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their employee has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that they can petition him as a BAS/HVAC Controls Technician. Our client eventually retained us in May 2017.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.

However, on April 19, 2018, the Department of Labor issued a request for audit. The DOL requested documents from 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 May 16, 2018.  

Eventually, on July 11, 2018, the PERM Labor Certification was approved – an EB3 position for the Ecuadorian beneficiary. Now our client can file the I-140 petition.

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

EMPLOYER: Health Service Ambulatory Facility

BENEFICIARY: Filipina Nurse Manager

LOCATION: Saipan, Northern Mariana Islands

Our client is a Filipina nurse manger and her current 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 nurse manager at the nursing care facility, the petitioner 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).

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 bachelor’s degree in nursing and more than 5 years of experience as a staff nurse. 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 October 18, 2017 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 EB2 designation.

However, on May 14, 2018, the USCIS issued Request for Evidence (RFE) and requested Petitioner’s most recent tax records to prove its “ability to pay.” Our office filed the Response to RFE on June 7, 2018.

Eventually, on June 26, 2016, 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.

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CASE: PERM Labor Certification    
EMPLOYER: Dental Group in Cleveland, OH
BENEFICIARY: Indian Endodontist

Our client is from India, who is currently working in the United States as an associate endodontist under her OPT. Her current employer is willing to do an immigration petition for her, second-preference. Our client has a dentistry degree in India which is evaluated as an equivalent degree of Doctor of Dental Surgery degree the United States. She also has a license to practice dentistry in the state of Ohio and has 2 years of residency training in endodontics.  After talking to our client, our firm concluded that her employer can petition her as an associate endodontist. Based on our client’s educational, professional and working backgrounds, our office determined that she is clearly eligible for EB-2 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On August 23, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on November 1, 2017. On February 6, 2018, we promptly filed PERM. Eventually, on June 11, 2018, the PERM Labor Certification was approved – an EB2 position for the Indian beneficiary. Now our client can file the I-140 petition.

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CASE: I-485 Adjustment of Status / I-140 (EB-2)
CLIENT: Korean Associate Dentist

Our client is from South Korea, who is currently working in the United States as an associate dentist under H-1B status. Her current employer was willing to do an immigration petition for her, second-preference. Our client has a Doctor of Dental Medicine degree in the United States. After talking to our client, our firm concluded that her employer can petition her as an associate dentist. Based on our client’s education and work background, our office determined that she is clearly eligible for EB-2 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 10, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on May 16, 2017. On August 4, 2017, we promptly filed PERM. Eventually, on December 21, 2017, the PERM Labor Certification was approved – an EB2 position for the Korean 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 January 11, 2018 via premium processing service. Eventually, on January 22, 2018, the I-140 EB-2 Petition for our Korean client 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 February 9, 2018, 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.

Prior to the interview, we thoroughly prepared our client via conference call as well. On June 18, 2018, our client was interviewed at Cleveland Ohio USCIS office. Attorney JP Sarmiento from our office also accompanied our client as well. Eventually, on June 19, 2018, her green card application was approved.

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CASE: PERM Labor Certification    
EMPLOYER: Dental Group in Cleveland, OH
BENEFICIARY: Egyptian Periodontist

Our client is from Egypt, who is currently working in the United States as an associate periodontist under his OPT. His current employer as willing to do an immigration petition for him, second-preference. Our client has a dentistry degree in Egypt which is evaluated as an equivalent degree of Doctor of Dental Medicine degree the United States. He also has a license to practice dentistry in the state of Ohio and has 3 years of residency training in periodontics.  After talking to our client, our firm concluded that his employer can petition him as an associate periodontist. Based on our client’s educational, professional and working backgrounds, our office determined that he is clearly eligible for EB-2 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On August 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on November 1, 2017. On January 16, 2018, we promptly filed PERM. Eventually, on May 18, 2018, the PERM Labor Certification was approved – an EB2 position for the Egyptian beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification

EMPLOYER: University

BENEFICIARY: Zimbabwean Director of Global Integration & Project Manager

LOCATION: Kansas

Our client has a current employer who was willing to petition him for a second-preference petition (I-140).  Our client has a Ph.D. degree in chemistry and has worked for his current employer since April 2017. Based on our client’s education and working background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us on June 1, 2017.

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, our office filed the job order on August 30, 2017. On November 30, 2017, we promptly filed PERM.

Eventually, on April 16, 2018, the PERM Labor Certification was approved – an EB2 position for the Zimbabwean beneficiary. Since his priority date is current, our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: PERM Labor Certification

EMPLOYER: Fashion Design Company

BENEFICIARY: Korean Fashion / Technical Designer

LOCATION: Los Angeles, CA

Our client has a prospective employer that was willing to petition her for a third-preference petition (I-140).  Our client has a bachelor’s degree in fashion design and has relevant work experience. Based on our client’s education and work background, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in February 2017.

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, our office filed the job order on June 23, 2017. On August 28, 2017, we promptly filed PERM.

However, on January 24, 2018, the Department of Labor issued a request for audit. The DOL requested documents from 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 February 5, 2018.  

Eventually, on May 7, 2018, the PERM Labor Certification was approved – an EB3 position for the Korean beneficiary. Since her priority date is current, our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: PERM Labor Certification

EMPLOYER: Public Schools District

BENEFICIARY: Filipino Speech Language Pathologist

LOCATION: North Dakota

Our client has a current employer that was willing to petition him for a second-preference petition (I-140).  Our client has a master’s degree in speech language pathology, a valid North Dakota speech language pathologist license, and has worked for his current employer since August 2015. Based on our client’s education and work background, our office determined that he is eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us in March 2017.

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, our office filed the job order on June 20, 2017. On December 13, 2017, we promptly filed PERM.

Eventually, on April 26, 2018, the PERM Labor Certification was approved – an EB2 position for the Filipino beneficiary. Since his priority date is current, our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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