CASE: Immigrant Visa / I-140 (EB-3 Category) / Schedule A 

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client is  Filipina registered nurse who currently works in the Philippines. Her prospective employer was willing to petition for a third-preference employment immigrant 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 a nursing degree and has Texas Registered Nursing License. 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 April 15, 2019 and we started on her Prevailing Wage Request. We filed the I-140 application on August 8, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. Without any issuance of Request for Evidence (RFE), on August 17, 2019, the I-140 was approved. 

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on January 26, 2021, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Manila. On February 17, 2022, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued her immigrant visa. With the approved Immigrant Visa, our client can come to the United States immediately, and she will get her green card within two months of entry.

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Case: I-130/I-485

Potential Issue: Response to Notice of Intent to Deny

Client: Cameroonian

Location: Fayetteville, NC

Our client entered the United States from Cameroon. She married her U.S. citizen husband and they filed an I-130 Petition and I-485 Adjustment of Status Application to the USCIS in April 2018. In July 2021, they appeared at the adjustment of status interview at the USCIS Durham Field Office in North Carolina. However, on October 13, 2021, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary was not bona fide.  The NOID pointed out that the submitted documentation of Petitioner and Beneficiary did not establish a bona fide marriage. 

In response to the USCIS’s NOID, our office included multiple supporting documents including, several affidavits from their friends, joint bank account statements, a joint tax return, and several pictures of our client and her husband in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on November 5, 2021, we filed the Response to NOID prior to the 30-day deadline.

On February 18, 2022, the USCIS approved our client’s case. Both the I-130 Petition and I-485 Green Card Applications were approved. Our client is now a green card holder.

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 CASE: I-130 / I-485

 NATIONALITY: Filipina

 LOCATION: Hobbs, NM

Our client came from the Philippines on a J-1 to work as a teacher. She was subject to the two-year foreign resident requirement. Our client would like to file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.” 

Some of the factors in analyzing hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 

After she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On April 11, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen husband’s medical condition.  On April 12, 2019, our office filed the I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to the Philippines for two years. 

On November 14, 2019, the USCIS issued a Request for Evidence (RFE) and asked our client to submit more hardship evidence. Our office prepared the response and filed an extensive Response to RFE to the USCIS on February 3, 2020. Eventually, the USCIS approved her I-612 waiver on August 31, 2020. 

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 -485 Adjustment of Status Application on May 18, 2021.  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 February 22, 2022, our client was interviewed at the El Paso, Texas 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-751

APPLICANT: Mexican

LOCATION: Newville, PA

Our client contacted our office in December of 2020 regarding his I-751 application.

He is from Mexico and he married a U.S. citizen in February 2018. Through his marriage, he obtained a 2-year conditional green card in April 2019.  His conditional residency terminated in April 2021.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office on December 20, 2020 and we prepared the I-751 application. .

On January 15, 2021, our office filed the I-751 application to the USCIS. On February 15, 2022, the USCIS approved our client’s I-751 application without any Request for Evidence (RFE) and our client received his 10-year green card which removed the conditions.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Korean

LOCATION: Northfield, OH

Our client came to the United States from South Korea on a F-1 student visa. She married a U.S. Citizen in September 2021 and retained our office on September 24, 2021 for her green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 1, 2021. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls. On February 22, 2022, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office also accompanied our clients. On February 23, 2022, our client’s green card application was approved.

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CASE: I-140 (EB-3)

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Science Teacher

LOCATION: McIntosh, SD

Our client has a current employer that was willing to petition for a third-preference I-140.  Our client has a Bachelor’s degree in Chemistry, a valid South Dakota Teaching license, and has worked for her current employer since August 2016. Based on our client’s education and work background, our office determined that she is clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in February 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 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 May 21, 2020.  On September 1, 2020, we filed PERM. On April 19, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina 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, employee’s W-2 copy, and other necessary supporting documents.

The I-140 Petition was filed on May 11, 2021 via regular processing service. On February 12, 2022, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE). 

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CASE: Marriage-Based Adjustment of Status

CLIENT: Jamaican

LOCATION: Davenport, FL

Our client came to the United States from Jamaica on a J-2 visa in August 2016. She married a U.S. Citizen in November 2019 and retained our office on April 15, 2021 for her green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 3, 2021. Everything went smoothly and the receipt notices, fingerprint appointment, and employment authorization documents all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls. On February 10, 2022, our client was interviewed at the Tampa, Florida USCIS office. On February 11, 2022, our client’s green card application was approved.

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CASE: I-751 / Waiver of the Joint Waiver Requirement
APPLICANT: Filipina
LOCATION: Akron, OH

Our client contacted our office in October of 2020 regarding her potential I-751 filing. She is from the Philippines and she married a U.S. citizen in June 2018. Through her marriage with a U.S. citizen spouse, she obtained a 2-year conditional green card in October of 2018. Therefore, her conditional residency terminated in October 2020.

Unfortunately, during their marriage, our client and her ex-husband went through struggles. They lived separately for a while and their divorce was finalized in September 2019. Thus, our client could not file I-751 application jointly with her ex-husband. After consultation, we advised that we can help her file the I-751 application with a waiver of the joint filing requirement. We requested a waiver because our client entered into the marriage in good faith, but the marriage was terminated through divorce or annulment before they can file a joint petition.

On October 16, 2020, our office filed the I-751 application with various supporting documents (including a detailed affidavit) to demonstrate our client’s bona fide marriage with her ex-husband.  In January 2022, the USCIS scheduled our client’s I-751 interview. We prepared our client for her interview via conference calls. On February 11, 2022, our client appeared at the USCIS Cleveland Field Office. Attorney Sung Hee (Glen) Yu from our office also accompanied our client. On the same day of the interview, the USCIS approved our request for the removal of conditions on her permanent resident status. Now, she has her ten-year green card.

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CASE: Immigrant Visa (Consular Processing)

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina Nurse Manager in Manila Philippines

Our client is a nurse manager in the Philippines. Her prospective employer-sponsor as willing to petition for a second-preference 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 has more than five years of experience as a staff nusre. She also has a registered nursing license in the state of Texas. Our office was retained and we started the Prevailing Wage Determination filing. 

Once the prevailing wage was determined, we filed the I-140 application on June 6, 2018 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 the nurse manager position falls under a Schedule A and EB2 designation.

However, on June 18, 2018, the USCIS issued a Request for Evidence (RFE). The USCIS argued that they cannot approve her I-140 petition because the proffered position, Nurse Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Nurse Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to EB-2 classification argument, our office argued that the proffered position has the supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to RFE to USCIS Texas Service Center on July 27, 2018.  Eventually, on August 10, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. 

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Our office filed the immigrant visa packets to the National Visa Center on November 8, 2019, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Manila. On January 21, 2021, our client appeared at the U.S. Embassy in Manila, Philippines. However, the Embassy refused the visa and requested our client to update her DS-260 and obtain the job offer confirmation letter from her prospective employer. Our client submitted all of the requested documents to the Embassy. On February 11, 2022, the Embassy approved and issued her immigrant visa. With the approved Immigrant Visa, our client can come to the United States immediately, and she will get her green card within two months of entry.

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Issue: Arriving Alien / Adjustment of Status

Nationality: Chinese

Location: Cleveland, Ohio

Our client came to the United States in 1991 without any documents (such as a passport or a visa) from China.  Once he arrived at the Los Angeles International Airport, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum relief after he was paroled in, but, his asylum relief was denied by the Immigration Judge in 1993. Thus, he had a final order of removal (exclusion).  

According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.

Despite his final order of removal, our client remained in the United States and his biological daughter became 21 years old in 2020.  Our client consulted with our firm and retained us on August 18, 2020. 

Arriving Aliens can adjust his or her status even though they were subject to removal proceedings previously.   On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review (EOIR)) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment applications of “arriving aliens” in particular. 

The January 12, 2007 USCIS memo states that USCIS can decide an adjustment application of a parolee with a final order under these interim regulations. 

• Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. 

• Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings). 

Thus, our office thoroughly prepared and filed the I-130 Petition and I-485 Adjustment of Status application in accordance with the regulations on September 22, 2020.  Everything went smoothly and the receipt notices, finger print notices, and work authorization all came on time.  Prior to the interview, our office thoroughly prepared our client for their upcoming USCIS adjustment of status interview.

On May 25, 2021, Attorney Yu accompanied our client and his daughter in Cleveland USCIS office.  Though the interview went well, the USCIS issued the Request for Evidence and requested our client to submit a certified copy of our client’s marriage certificate. We submitted it on December 3, 2021. Eventually, the USCIS approved our client’s I-485 adjustment of status application on February 3, 2022. Despite being a parolee and “arriving alien” in the United States for the last 20 years, he finally is a permanent resident of the United States.  

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