CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Oxford, OH

Our client contacted us about the possibility of doing a National Interest Waiver self-petition. She is from South Korea who works at a university in Ohio as an assistant professor. She is an exceptional researcher in the field of social work and cancer survivorship research. 

Our client’s significant contributions have placed her at the pinnacle of her field. She is conducting research on areas of vital interest to public health and well-being in the United States. Her research investigates racial and ethnic disparities in influenza vaccination and cancer screening behavior; care for cancer survivors in racial and ethnic minority groups; and effects of culture on disparities in chronic disease prevention and management. Moreover, our client’s research work were highly evaluated by reviewers of various journals and by colleagues and experts in the field.

Upon review of her credentials and qualifications, our office determined that she was definitely 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. While we prepared her case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id. 

Our office prepared a 23-page brief for our client’s NIW filing. Our client also obtained 8 letters of recommendation from her colleagues and internationally-recognized researchers. Our office also included her publication records, presentation records, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to her field of endeavor, that she is well positioned to advance the proposed endeavor, and it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client. 

Our office filed her I-140(NIW) petition to the USCIS Nebraska Service Center on January 29, 2020. Eventually, on October 19, 2020, the USCIS approved her I-140 petition without any Requests for Evidence. 

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CASE: I-485 Adjustment of Status / 245(k)

APPLICANT: Brazilian Registered Nurse

LOCATION: Kaneohe, HI

Our client is a registered nurse from Brazil licensed in the state of Hawaii. She came to the United States and worked for the petitioner in the United States on her OPT.  Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

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.

Our client has a nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 4, 2019. We started with the Prevailing Wage Request.

We filed the I-140 application on October 1, 2019 via premium processing. We included the job offer letter, notice of filing, and other necessary supporting documents. The USCIS issued a Request for Evidence on October 9, 2019 and requested our client to submit the Petitioner’s financial record to show ability to pay. We filed the Response to RFE on December 11, 2019 and eventually, on December 21, 2019, the I-140 was approved. 

As we quoted for the green card part of the case, apparently our client’s I-20 was not extended and she has thus overstayed her visa status. However, this was less than 180 days. 

Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

Our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).

On December 13, 2019, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed cover letter and we explained why our client was still eligible for adjustment of status through 245K despite her overstay.  Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference calls as well. On October 27, 2020, our client was interviewed at the Honolulu, HI USCIS office. Though the interview was thoroughly held, the interview went well; her I-485 application was approved by the USCIS on the same day of the interview.  

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipino Special Education Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2020 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under J-1 status. Though he was subject to the INA 212(e), two-year foreign residency requirement, he already obtained a J-1 waiver from the USCIS. 

The proffered position for the Beneficiary is a Special Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2021 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 16, 2020, via premium processing. Eventually, our client’s H-1B application was approved on October 30, 2020 without any RFE.  He can now work for his employer for three years on an H-1B status.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, No Objection Statement

 NATIONALITY: Indonesian

 LOCATION: Jacksonville, FL

Our Indonesian client came to the U.S. on a J-1 Visa in February 2016.  She came to the U.S. for her internship, and she was subject to the two-year foreign resident requirement.  In January 2020, our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office contacted the Indonesian Embassy in Washington D.C. to make sure we knew all the LATEST requirements needed for their office to issue a no objection statement.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of her valid Indonesian passport, and a copy of Form DS-3035.

On May 28, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On September 16, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on October 6, 2020. Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband I-130 petition.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Youngstown, OH

Our client contacted us in May 2020 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from China and she obtained her green card in August 2017 through marriage to her US Citizen spouse. 

Her N-400 application was filed on May 28, 2020 with all supporting documents. Prior to her citizenship interview, our office prepared her via conference calls.  On October 2, 2020, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, on October 16, 2020, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: Westlake, OH

Our client contacted us in June 2020 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from the Philippines and she obtained her green card in September 2015.

Her N-400 application was filed on June 19, 2020 with all supporting documents. Prior to her citizenship interview, our office prepared her via conference calls.  On October 16, 2020, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization interview. On the same day, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: University Heights, OH

Our client contacted us in May 2020 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from the Philippines and she obtained her green card in July 2015.

Her N-400 application was filed on May 12, 2020. Prior to her citizenship interview, our office prepared her via conference calls.  On October 16, 2020, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Our client answered all questions correctly and she passed her naturalization interview. Eventually, on the same day of her interview, her application was approved. Her oath-taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Canadian

LOCATION: Solon, OH

Our client contacted us in July 2019 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from Canada and she obtained her green card in January 2009.

Her N-400 application was filed on June 23, 2020, with all supporting documents. Prior to her citizenship interview, our office prepared her via conference calls.  On October 16, 2020, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, on the same day of her interview, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Cameroonian

LOCATION: Beaumont, TX

Our client contacted us in August 2019 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from Cameroon and she obtained her green card in November 2013.

Her N-400 application was filed on August 29, 2019 with all supporting documents. Prior to her citizenship interview, our office prepared her via conference calls.  On October 1, 2020, our client appeared at the Houston, TX USCIS office for her naturalization interview. Our client answered all questions correctly and passed her interview. On October 14, 2020, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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

NATIONALITY: Ukrainian

LOCATION: New York, NY

Our client is a citizen of Ukriane who came to the U.S. on a J-2 Visa in July 2002.  He came with his father who was on a J-1 Visa for his research program. 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 attended a school and his family moved to Canada after his father’s research scholar period ended. Our client came back to the United States with an H-1B visa.

He turned 21 in April 2014. Early this year, his employer told him that they wanted to file an I-140 petition for him. However, because of his two-year foreign residency requirement, our client cannot adjust his status in the United States without the fulfillment of the requirement or a 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 April 2014.

Our firm was retained and on July 2 2020, 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 September 28, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 9, 2020, the USCIS issued an I-612 approval notice.

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