CASE: I-751

APPLICANT: Bangladeshi

LOCATION: New York

Our client contacted our office in October of 2014 regarding her and her daughter’s I-751 applications.

Our client is from Bangladesh and she married a U.S. citizen in July 2012. Through her marriage, she obtained a 2-year conditional green card in November of 2012. Her minor daughter also got a green card when our client got her green card. Her conditional residency terminated in November 2014.

To comply with immigration requirements, our client and her husband should have filed an I-751 Joint Petition to Remove Conditions before November 2014. She retained our office on October 14, 2014 and our office prepared an I-751 application for our client and her daughter with bona fide marriage evidence.

On October 27, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from her friends and family members, joint bank statements, joint tax records, joint lease, joint bank statements, joint insurance, utility bills, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on June 1, 2015, the USCIS approved our client’s and her daughter’s I-751 applications and they received their 10-year green cards.

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CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. She came to the United States in 2013 and now she is on an F-1 student status, and her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of March 2012.

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.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told her that her potential employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on November 17, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on April 29, 2015 via regular processing. We also concurrently filed her I-485 adjustment of status since EB-3 priority date for our client was current at the time of her I-485 filing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents. Later, on May 13, 2015, our client upgraded her I-140 processing from regular to premium processing.

However, the USCIS issued a Request for Evidence (RFE) for our client’s degree evaluation document. Our office filed Response to RFE on May 29, 2015. Eventually, on June 2, 2015, the I-140 was approved and it retained our client’s old priority date.  Our client’s adjustment of status application will be approved once her priority date becomes current again.

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CASE: I-485 Adjustment of Status / I-140 (EB-2 Category) / Schedule A

APPLICANT: Kenyan Nurse Practitioner

LOCATION: Minnesota

Our client is a certified nurse practitioner. His prospective employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he was a certified 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 a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on September 23, 2014 via regular processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. Moreover, we filed our client’s I-485 adjustment of status application concurrently with the I-140 petition.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under Schedule A designation.  On March 26, 2015, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved his EB-2 I-140 petition. Eventually, our client’s adjustment of status application was approved on June 3, 2015. Now, our client is a green card holder. 

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CASE: I-751

APPLICANT: Turkish

LOCATION: New Jersey

Our client contacted our office in September of 2014 regarding her I-751 application.

She is from Turkey and she married a U.S. citizen in February 2010. Through her marriage, she obtained a 2-year conditional green card in June of 2011.  Her conditional residency terminated in June 2013.

To comply with immigration requirements, our client and her husband should have filed an I-751 Joint Petition to Remove Conditions before June 2013. However, due to financial and health related reasons, they could not file the I-751 application on time.

However, the USCIS still allows I-751 applicants to file late as long as there is a “good cause” for the late filing. She retained our office on October 1, 2014 and our office prepared an I-751 application for our client with bona fide marriage evidence and a letter to explain their late filing.

On October 17, 2014, our office filed an I-751 application to the USCIS with affidavits of applicant and her husband to explain their late filing and other joint documents to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on May 27, 2015, the USCIS approved our client’s I-751 application and our client received her 10-year green card.

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CASE: I-485 adjustment of status based on approved I-140 (EB-2 Category) / Schedule A

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Michigan

Our client is from the Philippines and her prospective employer-sponsor was 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 mental health program nurse manager, 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 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 Mental Health Program Nurse Manager should be included in Schedule A.

Our client has a Bachelor’s degree in nursing and a Master’s degree in psychology. She also has a registered nursing license in the state of Michigan. Our office was retained on July 25, 2014 and we started on the Prevailing Wage Determination filing and other related matters.

After the prevailing wage was determined, we filed the I-140 application on September 24, 2014 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 mental health program nurse managers must fall under Schedule A designation and Eb-2 classification. 

On October 1, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center 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 October 7, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 27, 2015, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder. 

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CASE: I-485 adjustment of status based on Approved I-140 (EB-2)

APPLICANT: Zambian Business Operating Manager

LOCATION: Texas

Our client is a business operating manager from Zambia, who used to work at a radio broadcasting company in Texas under his OPT program. While he was working there, the company was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Business Administration and has worked for this company for a year under the OPT program. Currently, our client is in F-2 status.

After talking to our client, our firm concluded that his potential employer can petition him as a Business Operating Manager. Based on our client’s educational, professional and working background as an engineer and management analyst, our office determined that he is eligible for EB-2 classification.

Prior to filing the 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.

Within a week from our retention, the prevailing wage request was filed.  On January 9, 2014, we filed the PERM labor certification application.  Eventually, on June 23, 2014, the PERM labor certification was approved.

Once the PERM was certified, we then proceeded with the I-140 petition filing. Our office submitted the “ability to pay” letter for the I-140 petition application on July 11, 2014 via premium processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. However, on July 23, 2014, the USCIS Texas Service Center issued a Notice of Intent to Deny for our client’s I-140 petition. According to the Notice of Intent to Deny, the USCIS requested the Petitioner to prove “ability to pay” for beneficiary’s proposed salary. In response to that, our office showed the beneficiary’s previous pay stubs and demonstrated that his previous salary was over and above the prevailing wage for his proposed position. Our office filed Response to Notice of Intent to Deny including a 7-page brief and supporting evidence to overcome the CIS’ arguments on August 11, 2014.

Eventually, the USCIS approved the I-140 petition on August 15, 2014. Once the I-140 petition was approved, our client retained our office again for his and his family’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our client and his derivative family members on August 21, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on April 20, 2015, the USCIS issued Request for Evidence for our client’s I-485 adjustment of status application. The USCIS requested our client to explain the connection between his OPT employment and the degree conferred to him in the United States. In response to the RFE, our office filed a response brief with his previous employer’s attestation regarding the job duties of our client. We filed the RFE response to the USCIS on May 13, 2015.

Eventually, on May 27, 2015, the USCIS Texas Service Center approved our client and his family members’ adjustment of status applications. Now, our client and his family finally are green card holders.

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

NATIONALITY: Chinese

LOCATION: California

Our client was a citizen of China 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 went back to China and got his F-1 student visa at the U.S. Embassy in China and came back to the United States with his F-1 student visa.

He turned 21 in 2010. This year, his employer filed an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the waiver.

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. Our client turned 21 in July 2010.

Our firm was retained to do his J-2 waiver, and on March 12, 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 April 11, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On May 22, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Change of Employer

PETITIONER: Architectural Design Company

BENEFICIARY: Turkish Architect

LOCATION: New York, NY

Our client is an architectural design firm headquartered in New York City. They contacted our office in March 2015 to seek assistance from our office for their foreign employee. The beneficiary is from Turkey and she obtained her Bachelor’s and Master’s degree in architecture. The proffered position for the Beneficiary is an architect which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case already had her H-1B from her previous employer which was in a similar industry.  Her H-1B status was not yet expired, and she wanted to extend her H-1B status on a change of employer basis.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on March 24, 2015 via regular processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on May 25, 2015.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for the next three years.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Japanese

LOCATION: Cleveland, OH

Our Japanese client came to the United States on a J-1 exchange visitor visa to teach Japanese in the United States. She was not subject to the two-year foreign residency requirement. She married a U.S. Citizen in December 2014 and retained our office on February 1, 2015 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 19, 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 May 15, 2015, our client was interviewed at the Cleveland, OH USCIS office.  Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. On May 27, 2015, her green card application was approved.

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

NATIONALITY: Chinese

LOCATION: Pittsburgh, PA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in March 2007.  He came with his mother who came on a J-1 Visa for her 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 went back to China and got his F-1 student visa at the U.S. Embassy in China and came back to the United States with his F-1 student visa.

He turned 21 in 2011. This year, his employer filed an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the waiver.

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 March 2011.

Our firm was retained to do his J-2 waiver, and on March 25, 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 April 27, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On May 21, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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