CASE: Immigrant Visa / Consular Processing based on Approved I-140 / EB-11 (Alien of extraordinary ability)

CLIENT: Korean

LOCATION: Seoul, South Korea

Our client contacted us in September 2014 about the possibility of getting an immigrant visa through EB-11 category. He is a world-renowned Taekwondo coach and is currently working as a coach for a university Taekwondo team in South Korea.  Our client was a coach for the Great Britain’s Taekwondo Team in preparation of its Summer Olympic competitions. Also, he wrote one of the first Taekwondo guidance books for the Taekwondo instructors. Moreover, he has multiple patents after he invented an effective exercise band for Taekwondo training. Upon review of his credentials and qualifications, our office determined that he was qualified for the EB-11 category, an alien of extraordinary ability.

According to the INA Section 203(b) states, in pertinent part, that:

1. Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):

1. Aliens with extraordinary – an alien is described in this sub-paragraph if-

1. The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
2. The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
3. The alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability.  See H.R. 723 101st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991).  The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).

The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field.  Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:

1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

1. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

1. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.  Such evidence shall include the title, date, and author of the material, and any necessary translation;

1. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

1. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

1. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

1. Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;

1. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

1. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

1. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the review of our client’s credentials and qualifications, we determined that our client meets 5 of the 10 categories, which is more than 3 required as an alien of extraordinary ability. Our client has made an original contribution to the sport of Taekwondo; has been awarded numerous national and international coaching awards and his student-players have won numerous national and international competitions; has played a critical role for distinguished organizations; has a membership in an organization with distinguished reputation that requires outstanding achievement; and our client’s participation as a panel or judge of the elite Taekwondo athletes.   

Our office prepared a 16-page brief for our client’s EB-11 filing. Our client also obtained 6 letters of recommendation from World Taekwondo Federation, Korea Taekwondo Association, a former Olympic champion, Taekwondo head coaches from other national teams, etc. Our office also included his coaching records, awards, media coverage, medals, athletic career records, and other materials to show that he is an alien of extraordinary ability in Taekwondo coaching. His EB-11 I-140 application contained 50 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via premium processing service on July 23, 2015. However, on August 12, 2015, the USCIS Nebraska Service Center issued the Request for Evidence (RFE). In the RFE, the USCIS claims that our client only meets 2 of the 10 requisite statutory categories of EB-11. In the response brief, our office demonstrated that our client indeed meets 5 of the 10 categories and provided more recommendation letters from independent experts, copies of his publication records, copies of his patent certificate, copies of coaching awards, and media coverage. Our office filed the response to RFE on October 28, 2015. Eventually, on November 10, 2015, the USCIS Nebraska Service Center approved his I-140 self-petition.

Once his I-140 was approved, our client retained our office again for his and his family members’ immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on January 26, 2016, who in turn forwarded the client’s materials to the U.S. Embassy in Seoul, South Korea. An interview notice was set for the client at the U.S. Embassy in Seoul. On May 24, 2016, our client, his wife, and their three sons appeared at the U.S. Embassy in Seoul, South Korea The interview went well, and on the same day, the U.S. Embassy in Seoul, South Korea approved and issued his and his family members’ immigrant visas.

With the approved Immigrant visas, our client and his family members can come to the United States immediately, and they will get their green cards within two months of entry.

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CASE: I-485 Adjustment of Status (EB-2 Category) / Schedule A

APPLICANT: Nurse Practitioner from Hong Kong

LOCATION: Brooklyn, NY

Our client is a family nurse practitioner. His current employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he was a family nurse practitioner, he was 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 Nurse Practitioner is included in Schedule A.

Our client has Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on September 21, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 13, 2016 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 nurse practitioners must fall under the Schedule A designation.  On January 22, 2016, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved his EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on January 13, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 18, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.

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CASE: Fiancée Visa

PETITIONER: US Citizen in Cleveland Ohio

BENEFICIARY: Russian

PETITION FILED: January 5, 2016

PETITION APPROVED: March 4, 2016

K-1 VISA APPROVED: May 10, 2016

Our client, a US Citizen Petitioner, met his Russian fiancée in Russia in 2014. They started their relationship in 2015 while he visited Russia again. His fiancée also visited the United States to see him in the summer of 2015. In October 2015, he proposed to her during his trip in Russia. After his proposal, he retained our firm to file a fiancée petition for her.

After retention, we informed our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on November 25, 2015. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on January 5, 2016.

On March 4, 2016, less than two months of the filing, the I-129F fiancée petition was approved. On May 10, 2016, our client’s fiancée appeared at the U.S. Embassy in Moscow, Russia for her K-1 visa interview. The interview went well, and on the same day, the U.S. Embassy issued her K-1 visa.

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CASE: L-1A petition extension / I-129

PETITIONER: Adventure Travel Company in the Philippines

BENEFICIARY: Filipino President/CEO in Las Vegas, NV

Our client is an adventure travel company in the Philippines.  They contacted our office in the middle of September 2014 to seek legal assistance for a possible L-1A “new office” petition to send its executive to the U.S. in order to setup a new office. Our office was retained and his L-1A petition and visa were approved in February and March 2015.

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

In December 2015, our client contacted our office again for the extension of his L-1A status.

Upon retention, our office prepared and eventually filed the L-1A petition with various supporting documents. The application included a detailed employer support letter, documentation to demonstrate the qualifying corporate relationship between the parent company in the Philippines and the U.S., financial documents, past experience documents, business plan, and physical premises evidence among others. We filed the L-1A extension petition on January 5, 2016.

The USCIS eventually sent a Request for Evidence and requested Petitioner to submit additional evidence to establish ownership and control of the U.S. Entity, physical premises of the U.S. company, and U.S. Entity’s business activities. In response to the RFE, we gathered supporting documents to address all issued and filed the Response to RFE on March 24, 2016.

Eventually, our client’s L-1A application was approved on April 11, 2016. His L-1A status has been extended to March 2018.

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

EMPLOYER: Hospital

BENEFICIARY: Mexican Registered Nurse

LOCATION: Texas

Our client’s beneficiary is a registered nurse from Mexico licensed in the state of Texas. She came to the United States and currently works in the United States on her TN visa.  Her current employer was willing to petition her for a third-preference employment immigrant visa petition (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 Bachelor’s of Nursing degree from a U.S. institution and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on December 2, 2015 and started on her Prevailing Wage Request.

We filed the I-140 application on March 23, 2016 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  However, on April 4, 2016, the USCIS issued a Request for Evidence (RFE) and requested our client to submit documents to prove her employer’s “ability to pay”. Our client’s employer provided a federal corporate tax record and other documents to demonstrate that they have the ability to pay our client’s proffered wage. Our office filed the response to RFE on April 29, 2016. Eventually, the I-140 was approved on May 11, 2016. Our client can file her I-485 adjustment of status application once her priority date becomes current.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION:  Cleveland, OH

Our client contacted us in November 2015 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from the Philippines and obtained her green card in May 2008 through her father. Her father became a naturalized citizen before she turned 18. When she went to the U.S. Embassy in the Philippines for her immigrant visa interview, she was told that she automatically became a U.S. citizen because her father became a citizen before she turned 18 (this was wrong because she had no physical presence in the US). Thus, two months after she entered the U.S., she applied for the U.S. passport. She obtained her approved U.S. passport, and thought from then that what she was told at the US Embassy was correct. The passport was actually incorrectly issued.

Later, she applied for an N-600 because she wanted to petition her husband and she needed a naturalization certificate, but it was denied. She was told she had to wait 5 years. So in 2013, she applied for an N-600 again, and she was denied one more time. During her N-600 interview, she explained her situation to the officer and so USCIS learned about the US passport situation. It was then that she was advised to do her N-400 application.

Our client’s N-600 application was denied because she was not a U.S. citizen. The automatic citizenship provision not only requires that her father be naturalized before she turns 18, but also that she be physically present in the US by that time. She did not know about this and she thought what she did was correct because her US passport application was approved. She was told at the U.S. Embassy in the Philippines that she is a U.S. citizen and she applied for her U.S. passport which was approved later.  

The issue in her case is the possibility of “false claim to US Citizenship”, which not only would get her citizenship case denied, but may also place her in deportation. Thus, it was important to thoroughly explain her situation so that fault won’t be attributed to her.

She retained our office on November 5, 2015. The N-400 application was filed on November 20, 2015 with all supporting documents. We included an extensive explanatory memo as well. Prior to her citizenship interview, our office prepared her at our office. On February 2, 2016, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Attorney JP Sarmiento from our office accompanied our client and explained our client’s complicated situation to the CIS officer. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, her application was approved on April 25, 2016. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE:  Termination of Proceedings after Joint Motion to Reopen
CLIENT: Pakistanis
LOCATION: Philadelphia, PA

Our clients are Pakistani citizens who currently reside in Philadelphia, PA. They were on Withholding of Removal status. Their U.S. Citizen sons were US Citizens. Our client entered to the United States on a valid L-1 and L-2 visa in November 2000.  Later, they were granted withholding of removal in July 2006 by the Philadelphia Immigration Court.

In November 2013, our clients’ son became a naturalized U.S. citizen. However, for them to get a green card, their case should first be reopened in the Immigration Court for them to apply for adjustment of status either with the Court, or with the CIS should proceedings be terminated after reopening.

In May 2015, our clients contacted our office and sought legal assistance for their immigration matter. Our client retained us on May 14, 2015.  Upon retention, we first prepared and filed their U.S. citizen son’s I-130 petitions for them. We filed the I-130 petitions to the USCIS on May 20, 2015 and the USCIS approved the I-130s on October 5, 2015. Once the I-130s were approved, we filed a Request to Join in a Motion to Reopen for our client to USICE-DHS office in Philadelphia.  Our cover brief explained how they got their withholding of removal status, approval of I-130, and their prima facie eligibility to apply for adjustment of status.

After the long review period, the DHS office in Philadelphia finally agreed to join in our Motion to Reopen and an assigned counsel signed on the Motion on April 11, 2016.  Once we received the Joint Motion to Reopen, we filed a Motion to the Philadelphia Immigration Court to request reopening of our clients’ cases so that they can apply for adjustment of status. Eventually, on April 28, 2016, the Philadelphia Immigration Court terminated our clients’ removal proceedings. Now, with the termination order and approved I-130 by their U.S. citizen son, our client can file the adjustment of status applications to the USCIS.

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CASE: H-1B Extension
PETITIONER:  Culture Center
BENEFICIARY: Chinese Assistant Program Development Director

Our client is a Culture Center in Ohio that offers after-school and weekend education programs for children and young students in the Greater Cleveland area. They contacted our office in April to seek legal assistance from our office for their foreign employee’s H-1B Extension.  The beneficiary is a Chinese who obtained her Bachelor’s Degree in Economics in China and also a MBA degree in the United States. The proffered position for the Beneficiary is an Assistant Program Development Director which we argued qualified as a specialty occupation.  She has been working for the Petitioner for the last three years on a valid H-1B visa.

After retention, our office filed the H-1B visa petition with various supporting documents on April 22, 2016 via premium processing. Eventually, without any RFE, our client’s H-1B application was approved on April 28, 2016. Now the Beneficiary can work for the Petitioner until 2019.

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CASE: I-485 Adjustment of Status (EB-2 Category) / Schedule A

APPLICANT: Kyrgyz Nurse Practitioner

LOCATION: Delaware

Our client is a family nurse practitioner who is from Kyrgyzstan. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a family nurse practitioner, she was 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 Nurse Practitioner is included in Schedule A.

Our client has Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on August 18, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on February 1, 2016 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 nurse practitioners must fall under the Schedule A designation.  However, on February 12, 2016, the USCIS issued Request for Evidence (RFE) and asked our client’s recent W-2. Our office filed the Response to RFE on February 23, 2016. Eventually, on March 2, 2016, the USCIS approved her EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on March 3, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 2, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Cincinnati, OH

Our client came to the United States from the Philippines on an F-1 student visa in December 2014. She married a U.S. Citizen in December 2015 and retained our office for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 17, 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 April 12, 2016, our client was interviewed at the Cincinnati, Ohio USCIS office. Eventually, on April 29, 2016, her green card application was approved.

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