CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client came from the Philippines. Her prospective employer-sponsor is willing to petition her for a second-preference employment immigrant visa petition (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 petition 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 5 years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on July 30, 2015 via premium processing. We included a 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 August 7, 2015, the USCIS Texas Service Center issued the Request for Evidence (RFE) for our client’s I-140 petition. In RFE letter, the USCIS requested our client to demonstrate her past experience and Petitioner’s new tax records. In response to RFE, our office prepared and filed the Response to RFE on August 25, 2015 including our client’s past experience letter from the Philippines and the Petitioner’s tax documents.

Eventually, on August 31, 2015, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her adjustment of status application.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: Cleveland, OH

Our client contacted us in June 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 2011 through marriage to her U.S. Citizen husband. She retained our office on June 3, 2015.

The N-400 application was filed on June 9, 2015 with all supporting documents. Prior to her citizenship interview, our office prepared her in our office. On August 20, 2015, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, her application was approved on August 27, 2015. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Turkish

LOCATION: Texas

Our client is a citizen of Turkey who came to the U.S. on a J-2 Visa in October 2007.  He came with his father who came on a J-1 Visa for his research 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 the H, L, and O visas.

After our client came to the United States, he completed his high school and was admitted to a University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2012. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the requirement or the getting a waiver approved.

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 that 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. In fact, our client turned 21 in October 2012.

Our firm was retained to do his J-2 waiver, and on May 27, 2015, 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 was not a dependent of a J-1 visa holder anymore.  Eventually, on July 22, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On August 26, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, No Objection Statement

 NATIONALITY: Malaysian

 LOCATION: Boston, MA

Our Malaysian client came to the U.S. on a J-1 Visa in November 2013.  He came to the United States to work and get training, but his J-1 visa made him subject to the two-year foreign resident requirement.  His workand training program in the U.S. enhanced our client’s interest in his field, and he would like to gain employment in the U.S. beyond his J-1 term. His employer would like to file a petition for him to change his non-immigrant status from J-1 to L-1. However, due to the two-year foreign residency requirement, he had to obtain a waiver first before he could change his current status in the United States.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Malaysian Embassy in the United States.  Our office contacted the Malaysian Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested different documents including a statement of reason for the waiver.

On February 13, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Malaysian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a change of status application but for the waiver.

The Malaysian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division. The Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on August 17, 2015.  Now that our client’s two-year foreign residency requirement is waived, he can be a beneficiary of other non-immigrant visa in the United States without going back to Malaysia for 2 years.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement

NATIONALITY: Indonesian

LOCATION: Texas

Our client is from Indonesia who came to the U.S. on a J-1 Visa in August 2014.  He came to the U.S. for Internship training. His J-1 program made him subject to the two-year foreign residency requirement.

 In May 2015, our client married his U.S. Citizen wife.  He is eligible to get a green card through his marriage to U.S. citizen; however, before he file his I-130/I-485 application simultaneously, he has to get a waiver of his two-year foreign residency requirement. In order to get a waiver of his two-year foreign residency requirement, he consulted with our office and later decided to retain our office on May 15, 2015.

Once retained, our office promptly prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office and our client contacted the Indonesian Embassy in Washington D.C. to pursue the waiver for our client.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of valid Indonesian passport, and a copy of Form DS-3035 application.

On May 28, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a marriage based adjustment of status on an I-130 Petition.

The Indonesian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS receipted the fee and issued an I-612 approval notice for our client’s waiver of the two-year foreign residency program on August 17, 2015.  Now, our client can file his adjustment of status application along with an I-130 petition.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in Jacksonville, FL

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in Jacksonville, FL.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petition for their potential foreign employee.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. The Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2015 via regular processing. This H-1B petition was selected after the lottery.

Without any RFEs, our client’s H-1B petition was approved on August 17, 2015. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of the visa, he can work for the Petitioner from October 1, 2015 for three years.

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CASE: PERM Labor Certification

EMPLOYER: Culture Center

BENEFICIARY: Chinese Educational Services Market Research Analyst

LOCATION: Cleveland, OH

Our client’s beneficiary is Chinese, who is currently working at a culture center in Cleveland, OH on an H-1B. The company was willing to do an immigration petition for her, second-preference. Our client has a Master’s degree in Business Administration.

After talking to our client, our firm concluded that her employer can petition her as an Educational Services Market Research Analyst. Based on the beneficiary’s educational background and the position offered, our office did PERM with an EB-2 classification.

Prior to filing PERM labor certification, 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 Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad.

On September 26, 2014, the prevailing wage request was filed.  On January 28, 2015, we filed the PERM labor certification application.  Eventually, on August 19, 2015, the PERM labor certification was approved – an EB2 position for the Chinese Educational Services Market Research Analyst, WITHOUT any audits. Now our client can file an I-140 Petition.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Physician’s Office

BENEFICIARY: South Korean

LOCATION: Florida

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified 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 a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on May 5, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on July 20, 2015 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 July 29, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) and asked to submit Petitioner’s entire tax record and explanation regarding its place of employment. Our office prepared the Response to RFE and filed it to the USCIS on August 10, 2015. Eventually, on August 19, 2015, the USCIS Texas Service Center approved her EB-2 I-140 petition. Since the priority date for South Korean national is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Ghanaian

LOCATION: Toledo, OH

Our client came to the United States from Ghana on a F-1 student visa in January 2013. He married a U.S. Citizen in April 2015 and retained our office on May 13, 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on May 27, 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 as well. On August 14, 2015, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Eventually, on the same day of the interview, his green card application was approved.

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CASE: Adjustment of Status Based on Approved K-1 Petition
CLIENT: Indian
LOCATION: Ohio

Our client came to the United States in July 2014 as a K-1 visa entrant from India.  Our client is a beneficiary of an approved I-129F petition and came to the United States as a K-1 Fiancée of a U.S. Citizen whom she married within 90 days of entry.  Under immigration law, if you married your petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible to apply for adjustment of status (green card) in the United States.   

Our client contacted our office initially in the middle of August 2014 and consulted with us for her adjustment of status application process.  Once retained, our firm prepared and filed the I-485 Adjustment of Status Application on August 26, 2014.  Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  

It is not mandatory to have an adjustment of status interview for an adjustment applicant who entered on a K-1 visa.  However, the USCIS may require an interview to test the validity and bona fide nature of marriage between the Petitioner and Beneficiary.  Fortunately, the USCIS did not ask for an adjustment interview for our client.  On August 12, 2015, her green card application was approved.

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