CASE: H-1B Visa Petition

PETITIONER:  Capital Investment Company in Georgia

BENEFICIARY: Lithuanian International Compliance Manager

Our client is a Capital Investment Company in Georgia which owns local and international travel clubs and sells memberships. They contacted our office in late April of 2012 to seek legal assistance for its foreign beneficiary’s H-1B visa petition.

The beneficiary is Lithuanian and obtained her Bachelor’s and Master’s Degree in International Law in Lithuania. She has worked for different companies in the United States on an H-1B visa and got an offer from our client. The proffered position for the Beneficiary was for an International Compliance Manager which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Bachelor’s Degree in International Law/Relations or its equivalent.

Upon retention, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on May 1, 2012 via premium processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on July 13, 2012.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that the business was new and 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 6-page response brief with 15 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.

Our office filed the response to the USCIS Vermont Service Center on October 1, 2012. Our client’s H-1B application was approved 15 days later on October 15, 2012. Now the Beneficiary can work for the Petitioner on an H-1B status until March 31, 2015.

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CASE: H-1B Visa Petition
PETITIONER:  Hospital / Medical Research Center
BENEFICIARY: Strategic Planning Analyst
ISSUES: Cap-Exempt, Research Organization

Our client is a large hospital and medical research center located in Columbus, OH. They contacted our office in the middle of June to seek legal assistance from our office for their foreign employee. The beneficiary obtained her MBA degree in the United States. The proffered position for the Beneficiary is a strategic planning analyst. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Business related curriculum or its equivalent.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was reached.  Our client was very disappointed and thought they would have to wait until April 1, 2013. We told our client that we can argue that they are qualified for cap-exempt petitions and emphasize that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Cases have gone both ways for hospitals, but we thought that if the research aspect of their work is highlighted, that chances of approval are high.

INA Section 214(g)(5) says “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.”

According to the June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on the 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), it 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.”

Our office argued that the Petitioner was primarily engaged in applied research, and was thus qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Once retained, our office filed the H-1B visa petition with various supporting documents on June 28, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on July 13, 2012.  She can now work for her employer for three years on an H-1B status starting October 1, 2012.  She will continue to work there on an OPT in the meantime.

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CASE: H-1B Visa Petition
PETITIONER:  Financial Investment Management Company
BENEFICIARY: Associate Financial Analyst

Our client is a financial investment management company located in Indianapolis, IN.  They contacted our office in late March to seek legal assistance from our office for their foreign employee.  Their foreign employee was a former client of ours, and he got a J-2 waiver approval through our representation before. The beneficiary obtained his Bachelor’s degree in Business/Finance in the United States. The proffered position for the Beneficiary is an associate financial analyst.  We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelors Degree in Business / Finance or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 1, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on May 12, 2012, only 11 days from the date of filing. He can now work for his employer for three years on an H-1B status starting October 1, 2012. He will continue to work there on an OPT in the meantime.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Electric Manufacturing Company
BENEFICIARY: Procurement Engineer

Our client is an electric immersion heater manufacturing company in Ohio. They contacted our office in late February to seek legal assistance from our office for their foreign employee.  The beneficiary is from India who obtained his Bachelor’s degree in Industrial Engineering in the United States. The proffered position for the Beneficiary is a procurement engineer which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case had his H-1B from his previous employer. He was on his sixth year in H-1B which expires in September 2012, unfortunately, he was terminated in December 2011. So he looked for another employer and found one in February 2012. Since he was terminated from his H-1B employer in December 2011, he could not change status in the U.S. But he was still within the 180 day unlawful presence period, so he did not have a 3-year bar. He also wanted to extend his H-1B status not just up to September 2012, but to 5 months more by recapturing all the time he was out of the United States, and the remaining period that he was not on an H-1B. So we explained in our cover letter that the Beneficiary is eligible to recapture his remaining period of H-1B from the time of his termination from his previous employer, plus all those times that he was abroad on vacations.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 20, 2011 via premium processing. The supporting documents included those for our recapture argument, such as copies of stamps on his passport, plane tickets, and the termination letter from his previous employer. 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.  After 7 days, our client’s H-1B Petition was approved on March 27, 2011. That H-1B was valid until February 2013, which meant that the CIS granted our request for recapture. Now the Beneficiary can have an interview for his H-1B visa at the U.S. Embassy in India, and once admitted, he can work for his Petitioner-Employer as an H-1B visa holder up to February 2013.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Ukraine
LOCATION: Indianapolis, IN

Our client is a citizen of Ukraine who came to the U.S. on a J-2 Visa.  He came with his father who was on a J-1 Visa to pursue his Ph.D. program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as H, L, and O.

After our client came to the United States, he completed his high-school as a J-2 visa holder and later went to college.  Our client initially started his bachelor’s program in a J-2 status, but in January 2011, he changed his status from J-2 to an F-1 student visa through the U.S. Embassy in Canada.  He had to change his status from J-2 to F-1 because he turned 21 in January 2011. After graduation, he applied for OPT (Optional Practical Training), later got a job offer, and started to work for this company in Indianapolis.

Our client contacted our office in December 2011, and sought legal advice regarding the J-2 waiver process.  His OPT will be expired in July 2012, and his current employer was willing to sponsor his H-1B visa.  However, without a waiver of the 2-year foreign residency requirement, our client would not be able to change his status to H-1B.  Our office explained to him that we can do the J-2 waiver application through the Interested Government Agency (IGA) route.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for this process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case.

Our firm was retained to do his J-2 waiver on December 20, 2011. On January 9, 2012, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and is not a dependent of the J-1 visa holder anymore.  Eventually, on January 27, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On February 29, 2012, the CIS granted the J-2 waiver.

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CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Software Distributor
BENEFICIARY: Nepali
LOCATION: Omaha, Nebraska
ISSUE: Specialty Occupation / Degree Issues

Our client is a nationwide stocking wholesaler of voice, data, and outside plant products in Nebraska. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his previous employer under an H-1B.  The Petitioner-Employer filed an H-1B application (Change of employer) on behalf of our client on November 2.  However, on December 1, 2011, the USCIS issued a 5-page 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.”

The USCIS was skeptical and argued that the proffered “Web Developer” position in Petitioner’s business did not qualify as a “Specialty Occupation”. The main issue for the client’s H-1B application was whether the “Web/Software Developer” position for the Petitioner required a bachelor’s degree or its equivalent to make this position a “specialty occupation.”

After Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client consulted with our firm and eventually retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on their industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.

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 Web/Software Developer is a common position required by similarly sized software developer or distributor companies with similar annual incomes. We provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Web/Software developers.  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.

Our office filed a 9-page Response to RFE brief with 13 exhibits to the USCIS California Service Center on December 28, 2011.  On January 11, 2011 our client’s H-1B petition was approved.  Now our client can work for the petitioner on an H-1B status for the next 3 years.

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CASE: H-1B Visa Petition
PETITIONER:  Online Grocery Store in Washington, D.C.
BENEFICIARY: Singaporean Business Development Director

Our client is an online grocery business and is one of the first D.C-based businesses to present a selection of locally and seasonally sourced products on a user-friendly website, combining a simple ordering process with a highly professional, same-day delivery service. They contacted our office in late July of 2011 to seek legal assistance and we met them at our Washington DC satellite office prior to retention.

The beneficiary obtained his Bachelors degree in Economics in the United States and completed his Masters degree in Georgetown University. The proffered position for the Beneficiary was for a business development director which we argued qualified as a specialty occupation.  We proffered that the minimum requirement for this position is a Bachelor’s Degree in Economics or its equivalent.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on September 27, 2011 via premium processing service.  The USCIS Vermont Service Center then issued a Request for Evidence (RFE) on October 13, 2011.  The USCIS argued that the proffered position does not qualify as a “specialty occupation.” They claimed that the business was too small, with only 6 employees, and that a Bachelors degree was not required for this position for “grocery” businesses. In response to the RFE, our office asserted in an 8-page response brief with 23 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 Bachelors degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. We explained that running an online grocery business is more complex than running a small convenience store or small grocery, especially since our client specialized in high-end products.

Our office filed the response to the USCIS Vermont Service Center on January 6, 2012.  Our client’s H-1B application was approved 11 days later on January 17, 2012.  Now the Beneficiary can work for the Petitioner on an H-1B status until September 30, 2014.

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CASE: H-1B Extension
PETITIONER: Hospital
BENEFICIARY: Physician, Filipino
LOCATION: Erie, Pennsylvania

Our client is a physician from the Philippines who currently works at a hospital in Erie, Pennsylvania with a valid H-1B visa.  His H-1B status was about to expire before he retained our office on July 21, 2011.  Our client sought legal assistance from us for his H-1B 3-year extension.

Once we were retained, our office promptly prepared his H-1B extension application.  The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on August 12, 2011 to the USCIS Vermont Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 6, 2012. The H-1B is good from September 22, 2011 to September 21, 2014.

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CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Indian Restaurant
BENEFICIARY: Nepali
LOCATION: Ohio
ISSUE: Specialty Occupation / Degree Issues

Our client is a large Indian restaurant in Ohio. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his employer under the OPT program.  The Petitioner-Employer filed an H-1B application on behalf of our client on July 10, 2011 by themselves.  However, the USCIS mailed a 5-page 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.” The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.

The USCIS was skeptical and argued that the proffered “Operations Manager” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Operations Manager” position for this Indian Restaurant Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.” Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on the restaurant industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.

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 Operations Manager is a common position required by similarly sized restaurants with similar annual incomes.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Operations Managers.  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.

Our office filed a 9-page Response to RFE brief with 18 exhibits to the USCIS California Service Center on November 16, 2011.  Our client’s H-1B application was approved 12 days later on November 28, 2011.  Now our client can work for the Indian Restaurant employer on an H-1B status and he can work there for next three years, renewable for another 3.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Hotel-Chain Company
BENEFICIARY: Hotel General Manager

Our client is the nation’s fastest-growing extended hotel stay chain company in Ohio. They contacted our office in early June to seek legal assistance from our office for their foreign employee.  The beneficiary is from Pakistan and has extensive work history in the United States as a General Manager in one of the leading brand hotels for 13 years.  This proffered position is a “specialty occupation” because the minimum requirement for this position are a Bachelor’s Degree in Business Administration / Hotel Management or equivalent.

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

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on June 20, 2011 via regular processing.  Since this petition was based on a change in employer, it was exempted from the annual H-1B cap.  On August 12, 2011, the USCIS issued a Request for Evidence (RFE) regarding his past pay stubs to evidence his continued H-1B status. During the validity of his previous H-1B status, his previous employer was acquired but everything pertaining to his position, from the duties to the location to the salary, stayed the same. But he did not file an amendment of his H-1B.  In response to that issue, our office promptly filed a Response to the RFE on August 30, 2011 which included the paystubs from the previous two employers. We cited INA § 214(c)(9)(A)(ii) which states that “an amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.”

Eventually, our client’s H-1B Petition was approved on September 20, 2011.  Moreover, the Beneficiary’s wife and minor son’s H-4 status was properly changed as well. Now the Beneficiary can continue working for his Petitioner-Employer as an H-1B visa holder until 2013.

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