CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Montana

Our client came from the Philippines on a J-1 visa in November 2013 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In October 2015, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office prepared and filed a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On November 2, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Montana State Government to get authentication of the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate General in Chicago for further authentication.  On January 5, 2016, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On March 9, 2016, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on March 24, 2016, the USCIS issued an I-612 approval notice for the waiver.

Once her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and I-485Adjustment of Status Application on May 11, 2016.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On August 18, 2016, our client was interviewed at the Helena, Montana USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

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CASE: I-130 / I-485

NATIONALITY: Philippines

LOCATION: South Carolina

Our client came from the Philippines on a J-1 in July 2008 to work as a teacher. She was subject to the two-year foreign residency requirement. After her authorized period of stay expired, she remained in the United States.

In April 2011, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through the No Objection Statement (NOS) route from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On September 21, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the South Carolina State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippine Consulate in D.C. for further authentication.  On November 20, 2012, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On June 29, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 12, 2015, the USCIS issued an I-612 approval notice for the waiver.

Once she gets the waiver, she retained our office again for her and her daughter’s adjustment of status application. Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on November 3, 2015. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

Prior to the interview, we thoroughly prepared our clients via conference calls. On March 28, 2016, our clients were interviewed at the Charleston, South Carolina USCIS office. After the interview, however, the USCIS issued the Request for Evidence (RFE) and requested our client to submit more evidence to demonstrate bona fide nature of her marriage to her US citizen husband. We promptly filed the Response to RFE and on June 27, 2016, the USCIS approved our client and her daughter’s green card applications.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Montana

Our client came from the Philippines on a J-1 Visa in November 2013 to work as a teacher. Based on her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In October 2015, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On November 2, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Montana State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippine Consulate General in Chicago for further authentication.  On January 5, 2016, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On March 9, 2016, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on March 24, 2016, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Fairbanks, Alaska

Our client came from the Philippines on a J-1 in August 2012 to work as a speech teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In May 2015, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On May 20, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Alaska State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippines Consulate General for further authentication.  On July 29, 2015, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On October 8, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 3, 2015, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

Feel free to call us at (216) 573-3712 or email us at jp@sarmientoimmigration.com if you have any questions. Consultations are free.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: South Carolina

Our client came from the Philippines on a J-1 in July 2008 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In April 2011, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On September 21, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the South Carolina State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Embassy in D.C. for further authentication.  On November 20, 2012, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On June 29, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 12, 2015, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her I-485 adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina

LOCATION: Albuquerque, NM

Our client is from the Philippines who came to the U.S. on a J-1 Visa in July 2011 to work as a teacher. In June 2013, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for her adjustment of status application.

She was eligible to get a green card through her marriage to a U.S. citizen; however, before we can file her I-130/I-485 application simultaneously, she had to get a waiver of her two-year foreign residency requirement first

As a previous success story explained, our office worked on our client’s J-1 waiver.  Eventually, the Philippine Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 21, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and issued an I-612 approval notice for our client’s waiver on August 19, 2014.

Later on, our client retained us for her adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application for her and her two children on August 26, 2014.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  Prior to the interview, we thoroughly prepared our clients through conference calls.  On March 10, 2015, our client and her two children were interviewed at the Albuquerque NM USCIS office.  On the same day, her and her two children’s green card applications were approved.

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CASE: J-1 Waiver (No Objection Statement)
NATIONALITY: Philippines
LOCATION: New Mexico

Our client came from the Philippines on a J-1 in July 2011 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement.

In June 2013, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On March 19, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New Mexico State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in Los Angeles for further authentication.  On May 1, 2014, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On July 21, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 19, 2014, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: H-1B Change of Employer

PETITIONER: Elementary School

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: New Mexico

Our client is a public grant elementary school for native Indians in New Mexico. They contacted our office to seek assistance from for their foreign employee. The beneficiary is from the Philippines and she obtained her Bachelor’s degree in English. The proffered position for the Beneficiary is an elementary school teacher which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had her H-1B from her previous employer which was in a similar industry.  She also has an approved I-140 petition which allows her to get a three year extension. Her H-1B status was not yet expired, and she wanted to extend her H-1B status on a change of employer basis.

After retention, our office filed the H-1B visa petition with various supporting documents on January 20, 2014 via premium processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  Thus, we could file prior to April 1, 2014.

However, the USCIS issued a Request for Evidence for this petition on January 30, 2014. The USCIS requested the beneficiary to submit her teaching license, employment verification with her most recent employer, and W-2 and pay stubs from her most recent employer. Our office helped the beneficiary and filed a Response to RFE to USCIS on April 25, 2014. Eventually, our client’s H-1B Petition was approved on April 28, 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.

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The Cap

H-1B petitions per year are capped at 65,000, with an extra 20,000 for those who are petitioning someone with a U.S. earned master’s or higher degree. These cap numbers only apply to initial H-1B filings. Thus, H-1B extensions and transfers are not subject to the cap. April 1 of each year is the earliest that an H-1B petitioner can file an initial cap-subject filing. A few years ago, this quota was filled on the first day. Applications outnumbered the quota. The US Citizenship and Icemmigration Service (USCIS) resorted to a lottery system. Thus an employer may have filed at the earliest possible time and still got rejected. This year, the quote was filled by July, merely two months from April 1. A lot of people are thus wondering if there is anyway an employer can file an initial H-1B petition without having to wait for April 1, 2013.

Cap-Exempt

Other than extensions and transfers, there are other ways where a petitioner gets exempted from the cap. A beneficiary of employment petitions from an institution of higher education, or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the cap. Thus, for these employers, H-1B petitions could be filed all year round, regardless of whether the cap is closed.

Institution of Higher Education

By law, an institution of higher education is defined as one which: 1) admits students who have completed secondary education; 2) is licensed to provide education beyond secondary school; 3) provides education programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees; 4) is a public or nonprofit institution; and 5) is accredited or has been granted pre-accreditation status by a recognized accrediting agency. Each of these elements should be met to be cap-exempt.

Primary or Secondary Education Schools

Based on statutory language and legislative history on the definition of “institutions of higher education,” primary or secondary education schools are not within this definition, and if the argument for making these schools cap-exempt is solely based on including them within the definition of an “institution of higher education,” the USCIS will not find the petition cap-exempt.

Related or Affiliated Nonprofit Entity

However, primary or secondary schools can still meet the cap-exempt requirement through the second prong of the exemption category, that of the “related or affiliated nonprofit entity” (with an institution of higher education).

In filing the H-1B cap-exempt petition, the cover letter should demonstrate how the petition is cap-exempt by explaining how the petitioner, beneficiary, line of work, and how they fit the exemption clause and the entities covered. Citing specific language from two important documents on this issue, the 2006 Aytes Memo on H-1B Cap Exemption and the Administrative Appeals Office (AAO) 2006 Texas decision (EAC 06 216 52028) is a must in arguing whether the petitioner is cap-exempt, especially if one is using the “related or affiliated” argument.

The AAO case mentioned (2006 EAC 06 216 52028) has been one of the most cited sources for “related or affiliated” cap-exempt based H-1B petitions. This case addressed the issue of whether a Texas nonprofit public school district as the petitioner was cap exempt. The USCIS in Vermont initially denied the case and one of the grounds was that the petition was subject to the cap. After appeal, the AAO granted the H-1B, finding that the school’s Teachertrak program is related or affiliated with an institution of higher education. The AAO provided citable language, stating that in order to demonstrate that the petitioner is an affiliated or related nonprofit entity, it should show one or more of the following: a) shared ownership or control by the same board or federation; b) the petitioner is operated by an institution of higher education; or; c) the petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. The AAO found that the petitioner in this case met the third prong, that of a member, branch, cooperative, or subsidiary, and thus made a finding that it was related or affiliated with an institution of higher education.

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