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.

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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.

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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.

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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.

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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

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CASE: H-1B Visa Petition

PETITIONER:  Architectural Firm in Stamford, CT

BENEFICIARY: Architectural Draftsperson from Turkey

Our client is an architectural firm in Stamford, CT.  They contacted our office in late-February to seek legal assistance for their foreign employee. His wife also retained our firm but for a part-time position, and this was approved recently too, as stated in one of our success stories.

The beneficiary obtained his Bachelor’s Degree in Architecture. The proffered position for the Beneficiary is an architectural draftsperson.  We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Architecture or its equivalent.

After retention, our office promptly 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 4, 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 3-page response brief with 6 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 beneficiary’s sample work to further illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on September 23, 2013. Our client’s H-1B application was approved on November 13, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 12, 2016

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CASE: H-1B Visa Petition
PETITIONER:  Architectural Firm in Stamford, CT
BENEFICIARY: Architectural Draftsperson from Turkey

Our client is an architectural firm in Stamford, CT.  They contacted our office in late-February to seek legal assistance for their foreign employee.

The beneficiary obtained her Bachelor’s Degree in Architecture. The proffered position for the Beneficiary is an architectural draftsperson.  We argued that this position a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Architecture or its equivalent.

After retention, our office promptly 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 5, 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 3-page response brief with 9 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 beneficiary’s sample work to further illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on September 23, 2013. Our client’s H-1B application was approved on October 25, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 16, 2016

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CASE: H-1B Visa Petition

PETITIONER:  Culture Center in Ohio

BENEFICIARY: Chinese Assistant Program Development Director

Our client is a Culture Center in Ohio that offers after-school and weekend educational programs for children and young students in the Greater Cleveland area. They contacted our office in the middle of March 2013 to seek legal assistance for its foreign beneficiary’s H-1B visa petition.

The beneficiary is a Chinese who obtained her Bachelor’s in Economics in China and also an MBA degree in the United States. The proffered position for the Beneficiary was for an Assistant Program Development Director which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Bachelor’s Degree in Economics/Business or its equivalent.

Upon retention, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. The USCIS California Service Center issued a Request for Evidence (RFE) on July 2, 2013.

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 14 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 California Service Center on August 10, 2013. Our client’s H-1B application was approved on October 16, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 20, 2016

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CASE: H-1B Visa Petition
PETITIONER: Research Foundation in New York, NY
BENEFICIARY: Canadian Foundation Relations Development Specialist in Vancouver, B.C., Canada
ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research / grant making foundations in the United States. Its New York office contacted our office in late of September to seek legal assistance from our office for their foreign employee. The beneficiary previously worked as a coordinator and an acting officer of a large hospital in Canada and gained experience in development and fundraising database management.

The beneficiary currently is in Vancouver, B.C., Canada. The Beneficiary has a Bachelor’s and Master’s degree from the United States. The proffered position for the Beneficiary is a Foundation Relations Development Specialist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, our client is qualified for cap-exempt petitions since it is 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).

Once retained, our office filed the H-1B visa petition with various supporting documents on October 7, 2013 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 October 10, 2013.  She can now work for her employer for three years on an H-1B status starting October 14, 2013.

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CASE: H-1B Visa Petition

PETITIONER:  Nursing Care Company in Ohio

BENEFICIARY: Cambodian Compliance Manager

Our client is a Nursing Care Company in Ohio that works with individuals and doctors to design home care plans to meet their needs. They contacted our office in the middle of March 2013 to seek legal assistance for its foreign beneficiary’s H-1B visa petition.

The beneficiary is a Cambodian who obtained her Bachelor’s and Master’s Degree in Law in Cambodia, and also an LLM from George Washington University. The proffered position for the Beneficiary was for a 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 Law or its equivalent.

Upon retention, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. The USCIS Vermont Service Center issued a Request for Evidence (RFE) on May 23, 2013.

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 10 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 June 12, 2013. Our client’s H-1B application was approved on September 17, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 23, 2016.

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