CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Indian Restaurant
BENEFICIARY: Nepali
LOCATION: Ohio
ISSUE: Specialty Occupation / Degree Issues

Our client is a large Indian restaurant in Ohio. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his employer under the OPT program.  The Petitioner-Employer filed an H-1B application on behalf of our client on July 10, 2011 by themselves.  However, the USCIS mailed a 5-page 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.” The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.

The USCIS was skeptical and argued that the proffered “Operations Manager” 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 she 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 “Operations Manager” position for this Indian Restaurant Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.” Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on the restaurant 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 Operations Manager is a common position required by similarly sized restaurants with similar annual incomes.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Operations Managers.  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.

Our office filed a 9-page Response to RFE brief with 18 exhibits to the USCIS California Service Center on November 16, 2011.  Our client’s H-1B application was approved 12 days later on November 28, 2011.  Now our client can work for the Indian Restaurant employer on an H-1B status and he can work there for next three years, renewable for another 3.

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CASE: Change of Status from B1 / B2 to H-4
CLIENT: Filipina
LOCATION: Santa Clara, California

Our client was married to an H-1B visa holder working for Apple. They were married in the Philippines. She came here on a B1 / B2 visa for a business visit with the intention of returning back to the Philippines for work. She changed her mind while she was here and decided to remain with her husband. As a family dependent of an H-1B visa holder, our client can change her status from B1 / B2 to H-4. Our firm was retained and on October 4, 2011, we filed our client’s I-539 with all supporting documents to the USCIS in Dallas. There were no requests for evidence. On November 14, 2011, the Change of Status was approved. Our client is now on H-4 and is with her husband in Santa Clara California.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Hartford, CT

Our client came to the United States in 2004 with an H-4 visa from the Philippines. Her ex-husband was an H-1B visa holder, so our client came as an H-4 dependent.  Unfortunately, her marriage with her ex-husband ended in 2010.  Several months later, she married a U.S. Citizen and retained our office in May 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on June 17, 2011.  Things went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time.   Prior to the interview, we thoroughly prepared our clients over the telephone. Our client had a divorce and her husband had three prior divorces so we anticipated that the officer would ask a lot of questions and maybe even separate them.  On November 7, 2011, our client was interviewed at the Hartford, Connecticut USCIS Field Office. Attorney Sung Hee Yu accompanied them at the interview as well.  On November 14, 2011, her green card application was approved.

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CASE: I-130 and Consular Processing – Marriage-Petition
CLIENT: US Citizen Petitioner; Chinese Beneficiary
LOCATION: Petitioner: Sacramento, CA; Beneficiary: Hubei, China

Our Chinese client contacted our office in the middle of May 2011. He is a U.S. Citizen living in California and sought legal assistance for his wife’s case in China. The USCIS, based on a request from the U.S. Embassy in Guangzhou, issued an intent to revoke his I-130 petition.
Our client married his Chinese citizen wife back in November 2008. This was the first marriage for both him and his wife. He mentioned that he never even had a girlfriend before, all the time consumed with work and school here in the United States. He is a civil engineer in Sacramento California.

Our client filed an I-130 petition for his wife in January 2009.  On March 20, 2009, the Director of the California Service Center approved the I-130 petition and his wife was eventually interviewed at the U.S. Embassy in Guangzhou. Her U.S. Citizen husband was even there during the interview. However, the U.S. Embassy denied her immigrant visa application, and the approved I-130 petition was subsequently returned to the California Service Center by the Department of State for further review and action. The USCIS then issued a Notice of Intent to Revoke.

After our office was retained, we filed a Response to Intent to Revoke on July 7, 2011 with the USCIS California Service Center. Over 200 pages of documents and 30 exhibits were submitted in our response. On July 21, 2011, the USCIS determined that they will not to revoke our client’s I-130 petition.   After the affirmation of the I-130 petition, the US Consulate in Guangzhou, China set another interview date for our client’s wife for her immigrant visa.  On November 9, 2011, the U.S. Consulate in Guangzhou, China conducted the immigrant visa interview for our client’s wife and simultaneously approved and issued her immigrant visa on the same day.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card within two weeks of entry. She finally would be able to be with her husband.

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CASE: I-130 and Consular Processing – Marriage-Petition
CLIENT: US Citizen Petitioner; Chinese Beneficiary
LOCATION: Petitioner: New York; Beneficiary: Shanghai, China

Our client is a U.S. citizen who married her Chinese girlfriend in China in 2008. He had his marriage ceremony with his wife in the China, and had resided there until December 2010.  When he came back to the United States, he wanted to bring his wife over here. He contacted our office in late January 2011 and retained our office to help bring his wife to the States.  As we explained in previous success stories, an alien cannot adjust his or her status (get a green card) outside the U.S. by filing an I-130 and I-485 simultaneously. Since the client’s wife was not in the United States, and their marriage occurred in China, our office promptly filed the I-130 to the National Visa Center first on April 10, 2011.

After the I-130 was filed, everything went smoothly and the receipt notices came on time. The I-130 Petition was approved by the USCIS on June 20, 2011.  After the I-130 approval, we filed the immigrant visa packets to the National Visa Center on August 23, 2011, who in turn forwarded the client’s materials to the U.S. Consulate in Guangzhou, China. An interview notice was set for the client at the US Consulate in Guangzhou, and we prepared her for her interview. On October 31, 2011, the U.S. Consulate in Guangzhou, China approved and issued her immigrant visa.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card within two weeks of entry.

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CASE: BIA Appeal and Refiled I-130
CLIENT: Jordanian
LOCATION: Toledo, Ohio

Our client is a Jordanian citizen who married her U.S. Citizen husband in Jordan in September 2009.  They had their marriage ceremony in Jordan, and our client came to the United States in October 2009 with an F-1 student visa.  Since September 2009, the couple has maintained their bona fide martial relationship in the United States.  The couple also entered a marriage contract in the United States after our client came here.  Once our client came to the United States, her U.S. citizen husband filed an I-130 Petition on her behalf.  They had an I-130 interview at the Cleveland USCIS Office in October 2010, but the USCIS issued a Notice of Intent to Revoke in March 2011.  The USCIS intended to revoke the I-130 petition because our client was not free and lawfully eligible to enter into a valid martial union at the time of their marriage.  Although our client prepared and submitted a response to Notice of Intent to Revoke with an assistance of her immigration counsel, the USCIS revoked the I-130 petition.

Our client consulted with our office in June 2011.  They explained to us what happened during the I-130 interview, and we thoroughly reviewed the USCIS’s revocation/denial decision.  After the review, we pointed out that there were several mistakes by previous counsel with regard to their marriage dates and I-130 filing. The USCIS even claimed that our client fraudulently procured her student visa in Jordan and did not disclose her marital relationship with her current husband.  However, our client clearly applied for her student visa prior to her marriage to her U.S. citizen husband, and when the student visa was issued, she was still not married to her husband. Yet previous counsel admitted fraud though there was not any, and submitted a waiver.

Based on these facts, our office prepared a BIA appeal brief with extensive documents to reverse the USCIS’s determination.  We filed the BIA appeal on July 10, 2011.  Our office also refiled the I-130 with supporting documents including affidavits and an explanatory brief with regard to the marriage between our client and her husband. Dates pertaining to the F-1 visa application and the marriage were emphasized. The USCIS received our I-130 refiled application on August 11, 2011.

On October 29, 2011, the USCIS approved the I-130 petition without conducting an interview again. With the approved I-130, our client can file for Adjustment of Status application in the United States to get her permanent residency.

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CASE: PERM Labor Certification
EMPLOYER: Taekwondo (Martial Arts) School
BENEFICIARY: Korean
LOCATION: Akron, Ohio

Our client is a former prominent Taekwondo athlete, and currently is working as a Taekwondo coach who had a Taekwondo school willing to petition him for a second-preference petition (I-140).  Our client has a bachelor’s and a master’s degree in a related field and has more than 5 years of coaching experience. Although he has maintained his status as an O-1 visa holder in the United States, his previous green card application (Based on EB-11 category) was denied two years ago.  After talking to our client, our firm concluded that his potential employer can petition him as a Taekwondo Head Coach.  Second preference petitions for Koreans are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us in March, 2011.

Prior to filing PERM, 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 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.  After we obtained the foreign degree evaluation report, our office filed the job order on May 27, 2011.  On August 12, 2011, we promptly filed PERM.  Eventually, on October 25, 2011, a little after two months from filing, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary. Now our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: I-130 and Consular Processing – Marriage-Petition
CLIENT: US Citizen Petitioenr; Filipina Beneficiary
LOCATION: Petitioner: Ohio; Beneficiary: Manila, Philippines

Our client is a U.S. citizen who married a Filipina lady in the Philippines in 2008. He had his marriage ceremony with his wife in the Philippines, and had resided there until late 2010.  The couple has a son as well.  When he came back to the United States, he wanted to bring his family over here. He contacted our office in December 2010 and retained our office to help bring his family to the States. It is important to note that an alien cannot adjust his or her status (get a green card) outside the U.S. by filing an I-130 and I-485 simultaneously. Since the client’s wife was not in the United States, and their marriage occurred in the Philippines, our office promptly filed the I-130 to the National Visa Center first on January 9, 2011.

After the I-130 was filed, everything went smoothly and the receipt notices came on time. The I-130 Petition was approved by the USCIS on May 13, 2011.  After the I-130 approval, we filed the immigrant visa packets to the National Visa Center on June 27, 2011, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the US Embassy in Manila, and we prepared her for her interview. On September 7, 2011, the beneficiary went to her interview in Manila. On October 20, 2011, the U.S. Embassy in the Philippines approved and issued her immigrant visa.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card.

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CASE: Adjustment of Status / J-1 Waiver
NATIONALITY: Philippines                                                                                                       �
LOCATION: Seattle, WA

Our client came from the Philippines on a J-1 Visa three years ago. However, upon completion of her J-1 program, she remained in the United States.  According to her DS-2019, she was subject to the two-year foreign residency requirement.   At the end of last year, she got married to her U.S. citizen husband and later on consulted with our firm for her adjustment of status (obtaining a green card). If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Our client asked us to help her obtain a waiver of the two-year foreign residency requirement.  Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States.

On January 18, 2011 the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Washington State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate General for further authentication.  On March 8, 2011, the Consulate office in San Francisco sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. which eventually issued a No Objection Statement.  Throughout the process, we asked these government agencies to recommend a waiver for our client based on the fact that our client was eligible to adjust if she obtains a waiver.

On April 27, 2011, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on May 16, 2011, the USCIS issued an I-612 approval notice for the waiver.

Once the waiver was issued, our office filed the I-130 Petition and I-485Adjustment of Status Application on May 18, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  We thoroughly prepared our clients prior to the interview.   On August 17, 2011, our client was interviewed at the Seattle USCIS Field office.  Attorney Sung Hee (Glen) Yu accompanied them at the interview as well. The Petitioner and Respondent were separated, but were prepared to answer questions and did well. Although the interview process was intensive and the USCIS went through further investigation for our client’s eligibility, on October 18, 2011, her green card application was finally approved.

From having the two-year foreign residency requirement, our firm effectively helped her get a J-1 waiver before she adjusted her status.  She did not have to go to the Philippines for 2 years before she got her permanent residency in the United States. She’s now a green card holder.

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Case: I-130/I-485
Issue: Visa Waiver Overstay
Applicant/Beneficiary – Argentinean
Location: Columbus, Ohio

Our client entered the United States in 2001 from Argentina under the visa waiver program.  When he entered the United States, he was a minor and came with his parents.  As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. However, he has remained in the United States ever since.

Several years later, he married his U.S. citizen wife on March 25, 2011. 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.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on July 21, 2010.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status despite the filing date falling beyond the expiration of the visa waiver. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On October 14, 2011, our client was interviewed at the Columbus, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver / overstay issue, the USCIS officer approved his green card application on the same day.  Now, our client is a green card holder.

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