CASE: I-751

APPLICANT: Filipina

LOCATION: Chicago, Illinois

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

She is from the Philippines and she married a U.S. citizen in January 2011. Through her marriage, she obtained a 2-year conditional green card in July of 2012.  Her conditional residency terminated in July 2014.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office on June 16, 2014 and our office prepared an I-751 application for our client with bona fide marriage evidence.

On June 19, 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, utility bills, joint mortgage, joint insurances 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 August 14, 2014, the USCIS approved our client’s I-751 application and our client received her 10-year green card.

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CASE: EB-2 I-140 Petition / Response to Notice of Intent to Deny

EMPLOYER: Radio Broadcasting Company

BENEFICIARY: 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. He could not continue working there since his OPT expired.

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 an “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 a Response to Notice of Intent to Deny which included a 7-page brief and supporting evidence on August 11, 2014.

Eventually, the USCIS approved the I-140 petition on August 15, 2014. Now, with the approved EB-2 I-140 petition (priority date for EB2 Zambian nationals is current), our client can file his adjustment of status application at any time (he could have filed it simultaneously, but beneficiary wanted to make sure the I-140 was approved first).

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: Maryland

Our client contacted us in October 2013 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 June 2010 through the marriage to her U.S. Citizen husband. She retained our office on October 13, 2013.

The N-400 application was filed on January 23, 2014 with all supporting documents. Prior to her citizenship interview, our office prepared her over the phone. On August 5, 2014, our client appeared at the Baltimore, MD USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, her application was approved on August 14, 2014. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in New Jersey.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petitions for prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. 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, 2014 via regular processing. This H-1B petition was selected after the lottery.

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 June 26, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalence for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.”

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.

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 company.  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 exhibits to the USCIS Vermont Service Center on July 23, 2014.  Eventually, our client’s H-1B application was approved on August 7, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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CASE: I-130 (Petitions for Parents) and Adjustment of Status

CLIENT: Filipinos

LOCATION: Chicago, IL

Our client retained us to petition her parents for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States in 2013.

She contacted our office in November 2013 and discussed with us the green card process. After consultation, she retained our office on November 18, 2013.

Once retained, our firm prepared and filed the I-130 Petition and Adjustment of Status Application on January 3, 2014 for her parents.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  Eventually, on August 6, 2014, our client’s parents’ adjustment of status applications were approved. Now, they 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: Atlanta, GA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in July 2007.  She came with her 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, she completed her high school and was admitted to the University to pursue her bachelor’s degree. In July 2009, she went back to China and got her F-1 student visa at the U.S. Embassy in China and came back to the United States with her F-1 student visa.

She turned 21 in November 2011. She is now married to her Chinese citizen husband and her husband is a recipient of an approved I-526 petition (EB-5 immigrant visa). However, because of her two-year foreign residency requirement, our client could not apply for permanent residency.

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 November 2011.

Our firm was retained to do her J-2 waiver on June 2, 2014. On June 10, 2014, 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 June 30, 2014 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On August 7, 2014, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-751

APPLICANT: Filipina

LOCATION: Chicago, IL

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

She is from the Philippines and she married a U.S. citizen in 2011. Through her marriage, she obtained a 2-year conditional green card in February of 2012.  Her conditional residency terminated in February 2014.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office again on January 31, 2014 and our office prepared an I-751 application for our client with bona fide marriage documents.

On February 7, 2014, our office filed an I-751 application to the USCIS with joint bank statements, utility bills, insurance policies, joint tax records, affidavits from friends and family and photos of our client and her husband to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later.  However, USCIS issued a Request for Evidence (RFE) on June 2, 2014.  The USCIS requested our client to submit more documentary evidence to prove the bona fide nature of her marriage with her husband. In response to the RFE, our office prepared the response and gathered more joint documentary evidence to demonstrate the bona fide nature of her marriage. We filed the RFE response on July 23, 2014 to the USCIS.

Eventually, on July 31, 2014, the USCIS approved our client’s I-751 application and our client received her 10-year green card which removed the conditions.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Ugandan Client in Toledo, OH

The USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases (DACA). According to the USCIS Deferred Action Memorandum, an individual who meets the following criteria may apply for deferred action:

• Was under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching his/her 16th birthday;
• Has continuously resided in the U.S. since June 15, 2007, up to the present time;
• Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
• Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

Our client initially came to the United States in July 1989 on a valid F-2 visa as a derivative of an F-1 Student visa holder when she was only 3 years old.

As of June 15, 2012, our client was twenty-six (26) years old.

Our client also finished high school in the United States.

Also, since her last entry to the United States in July 1989, our client never left the United States.

She was physically present in the United States on June 15, 2012 and has continuously resided here since July of 1989.

Our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Accordingly, our client was eligible for this relief.

After she retained our office, we informed her of all supporting documents we would need. Our client sent us supporting documents that proved our client’s education, physical presence in the United States, and her initial entry to the United States. Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On November 6, 2013, our office filed her I-821D and I-765 to the USCIS. Eventually, on July 31, 2014, the USCIS approved our client’s I-821D and I-765, good for two years.

Our client can now work and study in the United States lawfully.

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CASE: N-400 (Citizenship / Naturalization w/ Rebuttable Presumption and Continuity of Residence Issues)

APPLICANT: Filipina

LOCATION: New York, NY

ISSUES: Rebuttable Presumption / Continuous Residence

Our client contacted us in December 2013 to seek legal representation for her naturalization application.

She came to the United States from the Philippines and obtained her green card through the National Interest Waiver process in 2008. She was abroad for school and an internship during the earlier part of her permanent residency.

She retained our office for her naturalization application on December 10, 2013.

The main issue of her naturalization case was two long, over six-month trips that she had within the last five years.

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residence has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption should they wish to apply.

Our client was out of the U.S. more than 180 days twice.  During these trips, she was in France, Singapore, and Indonesia for her MBA and the other trip was for an internship.

According to Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007), in cases where an applicant left the U.S. to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. Our office drafted a brief which explained the nature of our client’s long trips abroad and argued that she is otherwise eligible for naturalization despite her two long trips outside United States.

The brief and his N-400 application were filed on January 6, 2014 with all necessary supporting documents. Our office prepared her for her interview as well. Our client appeared at her naturalization interview on July 23, 2014 at the NYC USCIS Field Office.  Our client answered all questions correctly and passed her citizenship interview. Her N-400 was approved on July 25, 2014. Her oath taking is scheduled where she will become a U.S. Citizen.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

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

The beneficiary obtained his Bachelor’s degree in Computer Science in India. 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, 2014 via regular processing. This H-1B petition was selected after the lottery.

Without any RFEs, our client’s H-1B petition was approved on July 22, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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