CASE: H-1B Change of Employer / Re-capture and reclaim issues

PETITIONER: Software Development and IT Staffing Company

BENEFICIARY: Indian Computer Systems Analyst

LOCATION: Jacksonville, FL

Our client is a fast growing software developing and IT consulting company located in Jacksonville, FL. They contacted our office in August 2014 to seek assistance from our office for their foreign employee. The beneficiary is from India and he obtained his Bachelor’s Degree in Information Systems.  The proffered position for the Beneficiary is a Computer Systems Analyst which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had his H-1B from his previous employer which was in a similar industry.  However, he changed his status from H-1B to H-4 after his employment was terminated with his previous employer. Nevertheless, his previous H-1B was valid until September 2016 so our office argued that his unused H-1B time can be recaptured and his H-1B petition can be filed under a change of employer basis which means no cap limitation.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on August 27, 2014 via regular processing. However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on October 24, 2014, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting companies.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on January 13, 2015.  Eventually, our client’s H-1B application was approved on February 11, 2015.

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Case: I-130/I-485

Applicant/Beneficiary – French

Location: New York, NY

Our client entered the United States in August 2014 from France under the visa waiver program. He came here to visit his U.S. citizen wife for a couple months. As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. Later, our client and his wife changed their mind and decided to file I-130/I-485 application for our client in the United States.

One main issue in his green card application through marriage was the fact that he came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability; it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Another possible issue was immigrant intent. In this case though the beneficiary changed his mind here in the US.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 3, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before his authorized period of stay expired. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On February 18, 2015, our client was interviewed at the New York City, NY USCIS Field Office.  Despite the visa waiver issue, on February 20, 2015, the USCIS approved his green card application.  Now, our client is a green card holder.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Ohio

Our client contacted us in October 2014 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from China and obtained her green card in September 2009. She retained our office for her naturalization application on October 20, 2014.

The N-400 application was filed on October 20, 2014 with all supporting documents. Our office prepared her before her naturalization interview via conference calls.

On January 12, 2015, our client appeared for her interview at the Cleveland CIS office.  Our client answered all questions correctly and passed. Eventually, her naturalization application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: I-485 Based on Approved I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Cleveland, OH

Our client contacted us in February 2014 about the possibility of doing a National Interest Waiver. He is a post-doctorate researcher and scientist in the field of biomedical engineering and cardiology research, and is currently working as a post-doctorate researcher in an academic institution in Cleveland, Ohio.

His significant contributions have placed him at the pinnacle of the field of biomedical engineering and cardiology research. He is a leading scientist with an excellent reputation in the area of mechanism of atrial fibrillation. Our client’s research work has provided fundamental understanding of atrial fibrillation in an animal model of atrial fibrillation, and has advanced the development of an algorithm for future clinical treatment of atrial fibrillation by targeting critical epicardial and endocardial sites for ablation for many atrial fibrillation patients in the United States. Throughout his research career, our client has provided significant scientific contributions relevant to understanding mechanisms of atrial fibrillation which were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 19-page brief for our client’s NIW filing. Our client also obtained 7 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 29 exhibits (Exhibit A to CC).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on June 10, 2014. On November 18, 2014, the USCIS approved his I-140 petition without any Requests for Evidence.

When he filed his I-140 petition, he simultaneously filed his adjustment of status application (I-485). Eventually, on February 14, 2015, his adjustment of status application was approved by the USCIS Nebraska Service Center. Now, he is a green card holder.

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CASE: I-140 (EB-3)

EMPLOYER: Consulting Company

BENEFICIARY: Chinese Financial Analyst

LOCATION: New York, NY

Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.

After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 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.

Within a week from our retention, the prevailing wage request was filed.  On June 13, 2014, we filed the PERM labor certification application.  Eventually, on October 31, 2014, exactly four months from filing, 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 November 26, 2014 via regular processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. Later on, we upgraded our client’s I-140 petition filing to “premium processing” by filing an I-907 form. However, on December 31, 2014, the USCIS Texas Service Center issued a Request for Evidence (RFE) for our client’s I-140 petition. According to the RFE, 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 and current pay stubs show that he is “currently being paid” above the proffered wage for his proposed position. According to the William R. Yates May 4, 2004 CIS Memorandum on the “Determination of Ability to Pay under 8 C.F.R.  204.5(g)(2): CIS adjudicators should make a positive ability to pay determination in any of the following circumstances:… (3)  Employment of the beneficiary…”, It should be shown that “the record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid OR is currently paying at least the proffered wage…”

Our client’s recent W2 salary is NOT above the proffered wage, but a calculation of his CURRENT salary if multiplied to a yearly amount DOES. Hence we emphasized the “or is currently paying” clause from the memo. Our office filed the Response to RFE with a brief and supporting evidence to overcome the CIS’ arguments on February 6, 2015.

Eventually, the USCIS approved the I-140 petition on February 12, 2015. Now, with the approved EB-3 I-140 petition, our client can file his adjustment of status application when his priority becomes current.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in Texas

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a nursing / rehabilitation center in the greater Houston area under an H-1B status. Her current 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 August 2008.

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 previous 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 current employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on November 17, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on January 26, 2015 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on February 4, 2015, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file her immigrant visa application

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipino

LOCATION: Albuquerque, NM

Our Filipino client came to the United States on an H-4 visa as a dependent of an H-1B visa holder in 2009. He came to the United States with his mother.

He married a U.S. Citizen in August 2014 and retained our office on October 27, 2014 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 5, 2014.  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 February 3, 2015, our client was interviewed at the Albuquerque, New Mexico USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Eventually, on February 4, 2015, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came to the United States in May 2014 with a B-2 visitors visa from China. She married a U.S. Citizen in June 2014 and retained our office for her petition and adjustment of status application.

She also asked us to file her son’s (Petitioner’s step-son) adjustment of status application.

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on October 1, 2014. 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 in our office. On January 16, 2015, our clients were interviewed at the Cleveland USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied them at their interview as well. On January 30, 2015, our client and her son’s green card applications were approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Pakistani

LOCATION: Cleveland, OH

Our Pakistani client came to the United States on a B-2 visitor visa in June 2014. She married her U.S. citizen husband in April 2014 in Pakistan, before she came on a visitors visa.

Our client and his husband first planned to file her immigrant visa through consular processing, but after she came to the United States, they changed their mind.

Our client consulted with us and retained our office in November 11, 2014 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on November 21, 2014.  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 at our office, in particular focusing on the lack of immigrant intent.  On January 29, 2015, our client was interviewed at the Cleveland USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied them as well. On the same day, her green card application was approved.

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT: Indian

LOCATION: Cleveland, OH

Our client contacted our office in early April of 2014 regarding his pending I-751 filing. He came to the United States from India and he married a U.S. Citizen (her ex-wife) in November 2010.

Through his marriage, he was able to obtain a 2-year conditional green card in May of 2011. Thus, his conditional residency terminated in May 2013.

Before his 2 year green card expired, our client filed an I-751 application with his ex-wife in 2013. However, while the I-751 application was pending, their marriage started to fall apart. Our client experienced a lot of difficulties in his marital life with his ex-wife. Unfortunately, their marriage ended in September 2014.  Thus, our client’s jointly filed application was denied by the USCIS.

He retained our office in September 2014 to file an I-751 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. We focused on the supporting documents that he can show and helped him draft an extensive affidavit about their marriage, and why it ended the way it did.

On September 30, 2014, our office filed the I-751 application with various supporting documents (over 16 exhibits and an affidavit over 3 pages) to demonstrate our client’s bona fide marriage with his ex-wife.

In December 2014, the USCIS scheduled an I-751 interview for our client. Prior to the interview, our office thoroughly prepared our client at our office and informed him of potential issues at the interview.

On January 8, 2015, our client was interviewed for his I-751 application at the USCIS Cleveland, OH Field Office.  Attorney Sung Hee (Glen) Yu from our office accompanied our client.  The interview was very extensive.  Nevertheless, the USCIS approved our client’s I-751 application. Now, he has his ten-year green card.

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