CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Illinois

BENEFICIARY: MDS Coordinator, Filipino

Our client is a Nursing Home Facility in Illinois. They contacted our office in early March to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing. The proffered position for the Beneficiary is a MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents in April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on August 14, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included that Petitioner previously employed and petitioned for an H-1B for the same position.

Our office filed the response to the USCIS Vermont Service Center on October 29, 2013. Our client’s H-1B petition was approved on December 2, 2013.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Houston, TX

Our client came to the United States in June 12 with an F-1 Student visa from the Philippines. Later, she married a U.S. Citizen in July 2013 and retained our office for her petition and adjustment of status application.

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

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 6, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients through conference calls. On December 3, 2013, our clients were interviewed at the Houston, Texas USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied them at their interview as well. On December 4, 2013, our client and her daughter’s green card applications were approved.

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CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: New York, NY

Our Filipina client came on a J-1 visa in July 2005. Upon completion of her J-1 program, she remained in the United States and changed her status to H-1B. However, she was subject to the two-year foreign residency requirement.

In April 2013, she got married to her U.S. citizen husband and later consulted with our firm for her J-1 visa waiver. She had to do this first before becoming eligible to adjust status.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 15, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New York State Government to get authentication for necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in New York for further authentication. On August 2, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines. The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On November 26, 2013, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 2, 2013, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment of status application along with her U.S. Citizen husband’s I-130 petition.

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

APPLICANT: Russian

LOCATION: Cleveland, Ohio

Our client contacted our office in later February of this year regarding her potential I-751 filing. She is from Russia and married a U.S. citizen in September 2011. Through her marriage with a U.S. citizen spouse, she obtained a 2-year conditional green card in April of 2012.

Unfortunately, their marriage ended in April 2013. Thus, our client could not file the I-751 application jointly with her ex-husband. After the consultation, we advised that we can help her file the I-751 application 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 before they can file a joint petition.

On July 8, 2013, our office filed the I-751 application with various supporting documents (13 exhibits and an affidavit over 4 pages) to demonstrate our client’s bona fide marriage with her ex-husband.  However, on September 3, 2013, the USCIS issued a Request for Evidence (RFE) and asked our client to submit more documentary evidence to prove the bona fide nature of her marriage to her ex-husband. Our office thoroughly prepared the Response to RFE and filed it on October 28, 2013.  Eventually, on November 20, 2013, the USCIS approved our request for the removal of conditions on her permanent resident status without even an interview. Now, she has her ten-year green card.

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CASE: I-485 (Based on EB-2 I-140 Approval)

CLIENT: Kenyan Nurse Practitioner

LOCATION: Akron, Ohio

Our client is a certified nurse practitioner, who is currently working at a nursing care company in Akron, Ohio under an OPT. Her 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 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 Nurse Practitioner is included in Schedule A.

Our client has both a Bachelors and Masters degree in nursing. Our office was retained in May 21, 2013 and we started the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on September 17, 2013 via premium processing. We included the job offer letter, the notice of filing, her pay stubs, 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 September 30, 2013, without any Requests for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

When we filed her I-140 petition, the priority date for Kenyan nationals was current for the EB-2 category, thus we also filed her I-485 adjustment of status application concurrently. Eventually, on November 29, 2013, her adjustment of status application was approved by the USCIS. Also, her husband, who applied as a derivative, got his green card at the same time.

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CASE: Marriage-Based Green Card

CLIENT: Korean

LOCATION: Cincinnati, Ohio

Our client came to the United States in December 2011 with an F-1 Student Visa from South Korea to do her ESL program in the United States. After she completed her ESL program, she remained in the United States.

She married a U.S. Citizen in August 2013.  Our client retained our office on August 7, 2013 for her I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on August 15, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients through conference calls. On November 25, 2013, our client was interviewed at the Cincinnati, Ohio USCIS office. Attorney JP Sarmiento accompanied them as well.  On the same day, her green card application was approved.

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CASE: I-485 (National Interest Waiver Category)

CLIENT: Korean

LOCATION: Raleigh, North Carolina

Our client contacted us in March 2012 regarding the possibility of doing a National Interest Waiver self-petition for him. He is a post-doctorate researcher and scientist in the field of Chemistry, and is currently working as a post-doctorate researcher in an academic institution in Raleigh, North Carolina.

His significant contributions have placed him at the pinnacle of the field of medicinal and organic chemistry. He is a leading scientist with an excellent reputation in the development of successful next generation cancer chemotherapeutics that are non-toxic under the action of magnetic waves which would eliminate many of the problematic toxicities that plague current cancer chemotherapeutics. Also, our client is currently developing nano-medicine platform technologies which are useful in addressing such intractable problems such as cancer, in a fundamentally new way.

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 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 17-page brief for our client’s NIW filing. Our client also obtained 8 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication record, presentation record, 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 32 exhibits.

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on July 31, 2012.  However, on June 5, 2013, the USCIS issued a Request for Evidence for his I-140 petition. In response to the RFE request, our office prepared a brief which included notes from scientists in the field regarding updates of his work and the importance of his past work in cancer research and worldwide healthcare in general.  We also emphasized our client’s past accomplishments and the benefits of his work. Our Response to RFE was filed on June 27, 2013.  Eventually, on August 7, 2013, the USCIS Texas Service Center approved our client’s 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 September 5, 2013. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on November 21, 2013, 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: H-1B Visa Petition

PETITIONER:  Architectural Firm in Stamford, CT

BENEFICIARY: Architectural Draftsperson from Turkey

Our client is an architectural firm in Stamford, CT.  They contacted our office in late-February to seek legal assistance for their foreign employee. His wife also retained our firm but for a part-time position, and this was approved recently too, as stated in one of our success stories.

The beneficiary obtained his Bachelor’s Degree in Architecture. The proffered position for the Beneficiary is an architectural draftsperson.  We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Architecture or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on September 4, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in an 3-page response brief with 6 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included beneficiary’s sample work to further illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on September 23, 2013. Our client’s H-1B application was approved on November 13, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 12, 2016

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CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: West Virginia

Our client came to the United States from China and currently teaches at an academic institution in West Virginia. She married her current husband, who is a green card holder, in August 2011.

Our client retained our office on March 19, 2013 for her I-130 petition and I-485 adjustment of status application. However, we could not file the I-130 / I-485 simultaneously because the Petitioner was a green card holder, not a U.S. citizen. At the time of the I-130 filing, the priority date for F2A category was not current, so our firm prepared and filed the I-130 petition on March 25, 2013.

While the I-130 petition was pending, the priority date for our client became current. So, our office prepared and filed an I-485 adjustment of status application, together with all necessary supporting documents, on August 27, 2013. 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 through conference calls. On November 14, 2013, our client was interviewed at the Charleston, WV USCIS office. Eventually on November 21, 2013, her green card application was approved.

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CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: Cleveland, Ohio

Our client came to the United States in August 2009 with an F-1 Student Visa from China to pursue her Master’s degree in the United States. Later, she met her current U.S. Citizen husband and married him in April 2013.

Our client contacted our office and retained us on August 20, 2013 for her I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on September 5, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office. On November 21, 2013, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney JP Sarmiento accompanied them as well.  On November 21, 2013, her green card application was approved.

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