CASE: I-130 and Consular Processing (Immigrant Visa) – Marriage-Petition

Our client is a professor in South Korea and he used to be a permanent resident of the U.S. He abandoned his permanent residency in 1993 when he got a tenured professorship in South Korea. Later, his wife became a naturalized U.S. citizen and she wanted to file an I-130 petition for our client. Our client contacted and retained our office on August 31, 2017.

Once retained, our office prepared and filed the I-130 petition for our client to the USCIS on September 12, 2017. After the I-130 petition was filed, everything went smoothly, there were no requests for evidence, and the receipt notice came on time. The I-130 Petition was approved on April 16, 2018.

Then, we filed the immigrant visa packets to the National Visa Center on July 9, 2018, who in turn forwarded our client’s materials to the U.S. Embassy in Seoul, South Korea. An interview notice was set for the client at the U.S. Embassy in Seoul, and we prepared him for the interview. On September 10, 2018, the interview was conducted.  The interview went well and after the interview, the U.S. Embassy in Seoul, South Korea approved and issued his immigrant visa.

With the approved Immigrant Visa, our client can come to the United States immediately, and he will get his green card within two months of entry.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Chinese

LOCATION: Cleveland, OH

Our client is from China who came to the U.S. on a F-1 student visa. In May 2018, our client married her current U.S. citizen husband.  She retained our office for her green card application, and our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on June 7, 2018.  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 at our office. On August 24, 2018, our client was interviewed at the Cleveland Ohio USCIS office.  Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Eventually, on September 5, 2018, her green card application was approved.

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CASE: PERM Labor Certification    
EMPLOYER:  Research Foundation in Washington, D.C.
BENEFICIARY: French Staff Accountant

Our client is from France. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Accounting and has worked for his current employer on an H-1B status since 2013. After talking to our client, our firm concluded that his employer can petition him as a Staff Accountant. Based on our client’s educational, professional and work backgrounds, our office determined that he clearly eligible for EB-3 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On December 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on April 23, 2018. On July 9, 2018, we promptly filed PERM. Eventually, on August 31, 2018, the PERM Labor Certification was approved – an EB3 position for the French beneficiary. Now our client can file the I-140 petition.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Iran                                                                                                  

LOCATION: Cleveland, OH

Our client is from Iran who came to the U.S. on a J-1 exchange visitor’s visa to pursue his research project. His J-1 program was not subject to the INA 212(e) two year foreign residency requirement. In January 2018, our client married his current U.S. citizen wife.  He retained our office on January 23, 2018 for his green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 21, 2018. 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 at our office. On August 24, 2018, our client was interviewed at Cleveland Ohio USCIS office. Attorney JP Sarmiento from our office accompanied our clients at their interview as well.  Eventually, on the same day of his interview, his green card application was approved.

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

NATIONALITY: DR Congo

LOCATION: Washington, DC

Our client is a citizen of Democratic Republic of Congo who came to the U.S. on a J-2 Visa in 2006.  She came with her father who was 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.

She turned 21 in 2014. She would like to get a waiver because she has a prospective employer who will file the H-1B petition for her next year. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without the fulfillment of requirement 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 2014.

Our firm was retained to do her J-2 waiver, and on June 28, 2018, 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 July 20, 2018, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On August 27, 2018, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Persecution

NATIONALITY:  Iraqi

LOCATION: Charlotte, NC

Our client came to the U.S. on a J-1 Visa in August 2013 from Iraq.  He came to the U.S. for his undergraduate program, and his J-1 visa made him subject to the two-year foreign resident requirement. Our client would like to file an asylum or file an adjustment of status application.  However, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under No Objection Statement or Interest Government Agency (IGA). Moreover, our client could not pursue his J-1 waiver based on exceptional hardship standard. Nonetheless, our client could pursue J-1 waiver under persecution category since he believes that he will be persecuted based on his religion (Shiite Muslim).

A person can file the J-1 waiver under the persecution basis if the person believes that he or she will be persecuted based on his/her race, religion, or political opinion if he or she returns to his or her home country, he/she may apply for a persecution waiver. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.

Our client believed that he would be persecuted if he goes back to Iraq by ISIS based on his belief. His opinions, beliefs, and religious practice as a Muslim Shiite basically go against the beliefs and objectives of ISIS.  After he retained our firm, we prepared and filed a waiver request through a persecution basis. On August 2, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. Thereafter, our office prepared affidavit of our client, extensive brief in support for our client’s J-1 waiver application, and other supporting documents to show that he will be persecuted in Iraq if he goes back. On August 18, 2017, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client will be persecuted if our client needs to go back to Iraq for two years.

Eventually, the Department of State recommended a waiver for our client on June 26, 2018. Subsequently, the USCIS approved his I-612 waiver on August 16, 2018. Now that our client’s two-year foreign residency requirement is waived, he can file asylum in the United States.

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CASE: I-130 (Petition for Father) and Adjustment of Status

CLIENT: Malaysian

LOCATION: Fairfax, VA

Our client retained us to petition her father for his green card. Our client was born and raised in Malaysia, but was naturalized in the United States in June 2017. She contacted our office in July of 2017 and discussed with us the green card process. Her father came to the United States from Malaysia on a G-4 visa in September 2016. After consultation, he retained our office again on July 21, 2017.

Once retained, our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 27, 2017 for her father.  Everything went smoothly and the receipt notices, fingerprint appointment, and a work permit all came on time. On August 15, 2018, our client appeared at his I-485 adjustment of status interview at Fairfax, VA USCIS Field Office. Prior to the interview, our office prepared him via conference call. Eventually, on August 22, 2018, our client’s father’s adjustment of status application was approved. Now, he is a green card holder.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                                      

LOCATION: Cleveland, Ohio

Our client is from the Philippines who came to the U.S. on a J-1 exchange visitor’s visa in December 2016. Her J-1 program was not subject to the 2-year foreign residency requirement (INA Section 212(e)).  In October 2017, our client married her current U.S. citizen husband. After she got married, she retained our office for her green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on January 12, 2018.  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 at our office as well. On August 21, 2018, our client was interviewed at Cleveland Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients as well. Eventually, on August 24, 2018, her green card application was approved.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: San Antonio, TX

Our client is in the Philippines. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and has more than five years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on June 6, 2018 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation.

However, on June 18, 2018, the USCIS issued a Request for Evidence (RFE). The USCIS argued that they cannot approve her I-140 petition because the proffered position, Nurse Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Nurse Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to EB-2 classification argument, our office argued that the proffered position has the supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to RFE to USCIS Texas Service Center on July 27, 2018.  

Eventually, on August 10, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her immigrant visa via consular processing.

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CASE: I-140 (EB-3)    
EMPLOYER: Temperature Control Services
BENEFICIARY: Ecuadorian
LOCATION: New York

Our client is a company which specializes in providing and installing automatic temperature control systems in commercial and industrial buildings. They have an employee from Ecuador and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their employee has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that they can petition him as a BAS/HVAC Controls Technician. Our client eventually retained us in May 2017.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.

However, on April 19, 2018, the Department of Labor issued a request for 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 May 16, 2018.  

Eventually, on July 11, 2018, the PERM Labor Certification was approved – an EB3 position for the Ecuadorian 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, past experience letters, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on August 8, 2018 via premium processing service. Eventually, on August 17, 2018, the I-140 EB3 Petition for our Ecuadorian client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green at any time since his priority dates are current.

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