CASE: Marriage-Based Adjustment of Status

NATIONALITY: Indian                                                                          

LOCATION: Willowick, OH

Our client is from India who came to the U.S. on an H-1B visa. In August 2021, our client married his U.S. citizen wife. He retained our office on August 21, 2021 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 2, 2022.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we prepared our clients over the phone. On April 28, 2022, our client was interviewed at the Cleveland, OH USCIS office. Attorney Sung Hee (Glen) Yu, Esq. accompanied our clients. On April 29, 2022, his green card application was approved.

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CASE: I-485 Adjustment of Status / I-140 (EB-3 Category) / Schedule A 

APPLICANT: Filipina Registered Nurse 

LOCATION: Katy, TX

Our client is Filipina registered nurse (citizen of Canada) who currently works in Houston, Texas under a TN status. Her current employer was willing to petition for a third-preference 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 a Texas Registered Nursing License. Our firm told her that her current employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on May 4, 2021 and we started on her Prevailing Wage Request. Her PW request was filed on May 7, 2021. 

We filed the I-140 application on October 29, 2021 via premium processing. We included the job offer letter, the notice of filing, financial ability to pay letter, and other necessary supporting documents. On November 10, 2021, our client’s I-140 petition was approved without any Request for Evidence (RFE). 

Once her I-140 petition was approved, she retained our office again to file adjustment of status applications for her and her husband. On January 24, 2022, our office filed an I-485 adjustment of status application for our client and her husband. Everything went smoothly and the receipt notices and fingerprint appointment came on time. On April 22, 2022, their green card applications were approved. Her adjustment of status application was approved within 3 months from the filing date.

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CASE: I-485 Adjustment of Status / EB-3 I-140

EMPLOYER: Public School District in Mohave Valley, AZ

APPLICANT: Filipina Elementary School Teacher in Laughlin, NV

Our client has an employer willing to do an I-140 Petition for her. Our client has a Bachelor’s degree in Elementary Education, a valid Arizona Teaching license, and has worked for her current employer since July 2014. Based on our client’s education and work background, she is eligible for EB-3 classification for her I-140 petition.  We were retained in June 2019.

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 PW determination, our office filed the job order on October 14, 2019.  On January 10, 2020, we filed PERM. 

On July 29, 2020, the Department of Labor issued an audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on August 14, 2020.   

On December 21, 2020, the Department of Labor denied the PERM application due to non-receipt of the Audit response. In this case though, the 45-page audit response (including the audit, the cover letter, and all the supporting documents) was delivered by August 17, 2020, which was way before the deadline of August 31, 2020. Our office filed Motion to Reconsider to the Department of Labor on December 22, 2020. Eventually, on May 13, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on June 10, 2021 via regular processing service. We also filed her I-485 adjustment of status application simultaneously since her priority date was current. On September 7, 2021, our office filed a premium processing upgrade request to the USCIS. On September 22, 2021, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE). On April 27, 2022, the I-485 adjustment of status applications for our client and her family members were approved by the USCIS. 

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CASE: I-485 Adjustment of Status I-140 (EB-3 Category) / Schedule A 

APPLICANT: Indonesian Registered Nurse 

LOCATION: Shoreline, WA

Our client is an Indonesian registered nurse who currently lives in Seattle, WA. Her prospective employer was willing file a third-preference employment immigrant visa petition (I-140) as a registered nurse. 

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 a Washington Registered Nursing License. Our firm told her that her prospective employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on March 22, 2021 and we started on her Prevailing Wage Request. Her PW request was filed on March 25, 2021.  

We filed the I-140 application on September 3, 2021 via premium processing. We included the job offer letter, the notice of filing, financial ability to pay letter, and other necessary supporting documents. On September 13, 2021, our client’s I-140 petition was approved without any Request for Evidence (RFE). 

Once her I-140 petition was approved, she retained our office again to file an adjustment of status application for her and her husband. On October 1, 2021, our office filed the I-485 adjustment of status applications for our client and her husband. Everything went smoothly and the receipt notices and fingerprint appointment came on time. On April 25, 2022, she and her husband’s green card applications were approved. 

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CASE: Adjustment of Status at Removal Proceeding
CLIENT: Nigerian
LOCATION: Newark, NJ

Our client came to the United States in 2004 with a F-1 student visa from Nigeria. He failed to maintain his status and was placed in removal proceedings. He missed his hearing and got an In Absentia order of removal. In November 2015, he retained our office for his Motion to Reopen in Absentia. Our office filed the Motion to Reopen on November 13, 2015. In December 2015, the Houston Immigration Court reopened our client’s case. 

He married a U.S. Citizen in August 2015.  Our client’s wife filed an I-130 petition on his behalf, and this I-130 petition was approved by in August 2016. Once the I-130 petition is approved, our client retained our office again for the representation in his removal proceedings.

Upon retention, office prepared and filed the Motion to Change Venue and the venue was changed from Houston, TX to Newark, NJ.  His case was scheduled to the immigration judge’s docket and our office prepared and filed the I-485 Adjustment of Status Application and other supporting documents to the Newark Immigration Court.

On April 21, 2022, Attorney Sung Hee (Glen) Yu represented our client at his Individual Hearing for adjustment of status at the Newark Immigration Court.  After the hearing, the Immigration Judge granted our client’s adjustment of status.  Our client’s removal proceeding was terminated simultaneously. Now, our client is a green card holder.    

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: San Diego, CA

Our South Korean client entered the United States in May 2021 under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.  

In August 2021, our client and her U.S. citizen boyfriend married in the United States. They contacted our office and retained us.  One main issue in her green card application through marriage was the fact that she 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.

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on August 10, 2021.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized stay period expired. Everything went smoothly and the receipt notices, 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 April 19, 2022, our client was interviewed at the San Diego, CA USCIS Field Office.  Despite the visa waiver issue, the USCIS officer approved her green card application on April 21, 2022.  Now, our client is a green card holder.

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

NATIONALITY: Chinese

LOCATION: Jersey City, NJ

Our client  is a citizen of China who came to the U.S. on a J-2 Visa in January 2014.  He came with his mother who entered on a J-1 Visa as a researcher in the U.S. 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.

He turned 21 in March 2019.  By getting a waiver, he would have the ability to be petitioned for H-1B status by his prospective employer. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the 2-year rule or the 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 March 2019.  

Our firm was retained to do his J-2 waiver and on November 9, 2021, 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 March 18, 2022, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On April 15, 2022, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: EB-3 I-140

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Chemistry Teacher

LOCATION: Casa Grande, AZ

Our client has a current employer that was willing to petition for a third-preference I-140.  Our client has a Bachelor’s degree in Education, a valid Arizona Teaching license, and has worked for her current employer since July 2016. Based on her education and credentials, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in May 2020.

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 only 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 PW determination, our office filed the job order on September 2, 2020.  On November 17, 2020, we promptly filed PERM. 

On June 16, 2021, the Department of Labor issued a request for audit. The DOL requested documents from the Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on June 25, 2021.  On September 29, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s W-2 copy, and other necessary supporting documents.

The I-140 Petition was filed on October 29, 2021 via regular processing service. Eventually, on April 16, 2022, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE). 

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CASE: I-485 Adjustment of Status Based on Approved I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)

EMPLOYER: Multinational Tire Corporation

BENEFICIARY: Korean

LOCATION: Akron, Ohio

Our client is an Engineering Manager of a multinational tire corporation in Ohio.  He is from South Korea and has worked for its parent company for more than 20 years in positions of increasing responsibility including that of Tire Development team manager. He came to the United States in March 2020 with an E-2 visa to work for current petitioner company (wholly-owned subsidiary of his previous employer).  He contacted our firm in April 2020 and discussed with us his chances of getting a green card.  Based on our client’s education and work background and his current position at the worksite, our office determined that he was clearly eligible for the EB-1C classification for his I-140 petition. Our client eventually retained us for his I-140 and subsequent I-485 adjustment of status application.

An employer can petition for its foreign employee under INA § 203(b)(1)(C) if it demonstrates the following: (C) Certain multinational executives and managers – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

According to INA §101(a)(44), 8 U.S.C. §1101(a)(44) and 8 C.F.R §204.5(j)(2), “executive capacity” means an assignment in an organization in which the employee primarily: (1) Directs the management of the organization or a component or function; (2) Establishes goals and policies; (3) Exercise wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.

Also, the above mentioned statutes define “managerial capacity” as an assignment with the organization in which the employee personally: (1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.

After our office was retained, we prepared a thorough cover letter and obtained all necessary supporting documents from our client and the petitioning company. In our brief, we clearly demonstrated that our client met the requirements set forth in the INA §203(b)(1)(C).  First, the prospective U.S. employer (Petitioner-Company) has been doing business for at least 1 year.  Second, the prospective employer (Petitioner) in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed abroad.  Third, if the worker is already employed in the United States, he or she was employed outside the United States for at least 1 year in the 3 years preceding admission as a non-immigrant in an executive or managerial capacity by the petitioner or by its parent branch, subsidiary, or affiliate. Last, the alien is to be employed in the United States in a managerial or executive capacity.

In this case, the Petitioner-company has been doing business for 29 years in the United States. In addition, Petitioner-Company is the wholly-owned subsidiary of its Korean parent company where our client was employed for more than 20 years. Moreover, our client was employed outside the U.S. for at least 1 year in the 3 years preceding admission as a non-immigrant in an Executive or Managerial Capacity by the Petitioner’s parent company in South Korea.  Our client served as a team manager and later became senior manager for the parent company.  He personally supervised and controlled the work of other researchers and engineers for new types and models of tire developments, and was primarily responsible for the company’s various new tires.  Lastly, our client is to be employed in the United States as an Engineering Manager for the petitioner.

On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), an organization chart, and a dispatch order.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea.  The evidence included a copy of the certificate of ownership, a copy the business registration certificate, a copy of the approval for overseas investment, a copy of the annual report and consolidated financial statements.  The I-140 Petition was filed on September 24, 2020.   

However, on January 6, 2021, the USCIS Nebraska Service Center issued Request for Evidence (RFE). The RFE letter thoroughly requested our client to demonstrate the qualifying relationship between the parent company in South Korea and his current employer. Moreover, the USCIS requested our client to show whether he met the requirement of “one year managerial or executive position abroad.”

On the RFE response application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), and an organization chart.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea.  The evidence included a copy of the certificate of ownership, a copy the business registration certificate, a copy of the tax records, etc.  Our office filed the Response to RFE on March 24, 2021.  Eventually, on April 20, 2021, the I-140 petition was approved.  

On November 22, 2021, our office filed an I-485 adjustment of status application for our client and his derivative family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on April 12, 2022, the USCIS approved our client’s adjustment of status application without the interview.  On the same day, the CIS approved our client’s derivative family members’ adjustment of status applications as well.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Indian

LOCATION: Culver City, CA

Our client came to the United States from India in August 2021. She married her US citizen husband in December 2021. She retained our office on January 7, 2022, for her green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on January 20, 2022. Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls. On April 12, 2022, our client was interviewed at the Los Angeles, CA USCIS office. On April 13, 2022, our client’s green card application was approved.

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