CASE: H-1B Extension

PETITIONER:  Environmental Engineering Consulting Company

BENEFICIARY: Indian Principal Consulting Environmental / Water Engineer

Our client is an Environmental Engineering Consulting Company in Fairfax, VA. They contacted our office in October 2014 to seek legal assistance from our office for their foreign employee’s H-1B Extension.  The beneficiary is from India and obtained his Bachelor’s degree and Master’s Degree in Civil / Environmental Engineering. The proffered position for the Beneficiary is a Principal Consulting Environmental / Water Engineer which we argued qualifies as a specialty occupation.  He has been working for the Petitioner on a valid H-1B visa. The beneficiary already used his H-1B status for 6 years, but he is entitled to get a 3 year extension since he has an approved I-140 petition for him.

After retention, our office filed the H-1B visa petition with various supporting documents on October 21, 2014 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on November 24, 2014. Now the Beneficiary can continue for the Petitioner on an H-1B status until December 31, 2017.

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

 NATIONALITY:  Jordanian

 LOCATION: Virginia

Our client came to the U.S. on a J-1 Visa in September 2007 from Jordan.  He came to the U.S. for his research program, and his J-1 visa made him subject to the two-year foreign resident requirement. Our client would like to file an I-140 self-petition under the National Interest Waiver Category and also an adjustment of status application.  However, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Our client could not pursue his waiver under the No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for his research program which made his case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on the exceptional hardship standard. In fact, our client’s U.S. citizen son is experiencing exceptional medical hardships.

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.”

Some of the factors in analyzing exceptional hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

After he retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On April 8, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an extensive brief in support of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen son’s medical conditions.  On April 17, 2014, our office filed an I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Jordan for two years.

Eventually, the Department of State recommended a waiver for our client on November 7. 2014. Subsequently, the USCIS approved his I-612 waiver on November 12, 2014. Now that our client’s two-year foreign residency requirement is waived, he can file an I-140 NIW application along with his adjustment of status application in the United States (technically the I-140 NIW petition could have been filed, but the I-485 adjustment of status application could not be filed unless the waiver was approved).

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in New Jersey.  They contacted our office in early July of this year to seek legal assistance for possible H-1B petitions for a prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Mechanical Engineering in India.  The proffered position for the Beneficiary was a Systems Analyst which we argued qualifies as a specialty occupation. The beneficiary had an H-1B before and he started to work for his previous employer in 2007, but his employment was terminated though in August 2007 when he left for India 3 weeks from the initial H-1B date. His previous H-1B was valid until April 10, 2010 so our office argued that his unused H-1b time can be recaptured and his H-1B petition can be under a change of employer basis which means no cap limitation.

Upon retention, our office prepared and eventually filed the H-1B change of employer petition with various supporting documents on July 10, 2014 via regular processing. However, the USCIS mailed a 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” on September 15, 2014, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

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 Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  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. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on October 17, 2014.  Eventually, our client’s H-1B application was approved on November 10, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner.

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CASE: H-1B Change of Employer

PETITIONER: Software Development and IT Staffing Company

BENEFICIARY: Indian Computer Systems Analyst

LOCATION: Jacksonville, FL

Our client is a fast growing software developing and IT consulting company located in Jacksonville, FL. They contacted our office in September 2014 to seek assistance from our office for their foreign employee. The beneficiary is from India and he obtained his Master of Science degree in Computer Information Systems.  The proffered position for the Beneficiary is a Computer Systems Analyst which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had his H-1B from his previous employer which was in a similar industry.  His H-1B status was not yet expired, and he wanted to extend his H-1B status on a change of employer basis.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on October 6, 2014 via regular processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  Thus, we could file it even after the quotas are gone.  Later, our client wished to upgrade his case to premium processing services by submitting Form I-907 and paying $1225 to the USCIS. We made an upgrade request on October 17, 2014. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on October 30, 2014.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for the next three years.

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

 NATIONALITY: Thai

 LOCATION: Ohio

Our Thai client came to the U.S. on a J-1 Visa in August 2008.  She came to the U.S. for research training, and her J-1 visa made her subject to the two-year foreign resident requirement.

In February 2014, 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 Thai Embassy in the United States.  On April 15, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request with supporting documents to the Thai 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 Thai Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 10, 2014, 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 27, 2014.  Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband’s I-130 petition.

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CASE: H-1B Visa Petition (Change of Employer)

PETITIONER:  E-Commerce Merchandiser in Dallas, TX

BENEFICIARY: Korean Marketing Analyst in Seoul, South Korea

Our client is an E-Commerce Merchandising company located in Dallas, Texas.  They contacted our office in late September to seek legal assistance from our office for their foreign employee.  The beneficiary obtained her Bachelor’s degree in Business Administration in United States. The proffered position for the Beneficiary is a Marketing Analyst which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case already had her H-1B visa from her previous employer which was in a similar industry, but she tried to change her employer and filed an H-1B transfer in February 2014. This H-1B transfer was denied, so she filed a Motion to Reopen in April 2014 which was subsequently denied by the USCIS in June 2014.

After that, she went back to South Korea and retained our firm to do an H-1B transfer. We prepared the application and included an H-1B recapture argument, to get back the remaining period of H-1B time from her termination of the employment with her previous employer.

Once retained, our office prepared and filed the H-1B visa petition with various supporting documents on September 26, 2014 via premium processing service. The USCIS mailed a 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” on October 6, 2014.

The USCIS argued that the proffered “Marketing Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the 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 Marketing Analyst is a common position required by similarly sized E-Commerce Merchandising companies.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Marketing Analyst.  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. Other documents pertaining to re-capture arguments were submitted.

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CASE: Motion to Reopen (I-290B) / H-1B Visa Petition

PETITIONER: Healthcare Staffing Company

BENEFICIARY: Filipino Pharmacist Intern

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early March to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist in the Philippines who obtained his Doctor of Pharmacy degree in the Philippines. The proffered position for the Beneficiary is a Pharmacist Intern because he does not have any U.S. Pharmacist license. Still, we showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree.

When our client contacted us, the numerical cap of H-1B visas for fiscal year 2014 was not available. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue).

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacist Interns) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 7, 2013 via premium processing.

However, the USCIS California Service Center issued Requests for Evidence (RFE) on May 22, 2014 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the definition of cap-exempt purposes. Also, the USCIS requested additional information regarding the qualifications of Beneficiary for the proffered position.

The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that he could not get a license in Ohio due to what we claimed on the initial application as a lack of social security / status.

Once we received the RFE request, our office prepared the response for the RFE and argued that the prospective places of employment for Beneficiary are non-profit medical research organizations and Beneficiary’s work will be similar to Pharmacist Interns in those hospitals.

We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We also included why he could not take the Board exam (since he does not have a social security number) and did not get a license.We filed this Response to the RFE on May 29, 2014.

Unfortunately, the USCIS denied this case in June 2014. They agreed with our position on the “cap-exempt” issues, however, they did not accept the Ohio Pharmacy Board requirements proof that we submitted showing that they needed a social security number, and that our client did not have one. They instead wanted a deficiency letter.

So our client applied for a license with knowledge that they won’t give it to him, just so that the CIS will be satisfied with the evidence. He indeed got a deficiency letter from Ohio, which we submitted in a Motion to Reopen.

We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow him to obtain a social security number which will lead him to get his license.

Our office filed a Form I-290B (Motion to Reopen) and a detailed brief with exhibits to the USCIS California Service Center on July 9, 2014.  Eventually, our client’s Motion to Reopen was granted by the USCIS on September 15, 2014. Subsequently, his H-1B application was approved on October 1, 2014. Now, the beneficiary can work for the Petitioner from October 1, 2014 for one year.

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CASE: H-1B Visa Petition

PETITIONER: Pharmacy in California

BENEFICIARY: British Pharmacist Intern in the United Kingdom

Our client is a pharmacy located in California.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for a prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Pharmacy in the United Kingdom. Also, the beneficiary is a licensed pharmacist in the U.K. and she is currently residing in the U.K. The proffered position for the Beneficiary is a Pharmacist Intern which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing. This H-1B petition was selected after the lottery.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence for the qualifications of Beneficiary for the proffered position. The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that she could not get a license in California due to what we claimed on the initial application as a lack of social security / status.

The USCIS was skeptical and argued that Beneficiary is not qualified for Pharmacist Intern position because she did not have a California Pharmacy license yet. We thus had the beneficiary submit further documents to the California State Board, including fees, in order to receive the deficiency letter (print-outs regarding California’s requirements were initially submitted showing that a social security is needed, but these days, CIS wants an actual deficiency letter… they want you to actually pay and submit an actual application even though your requirements are missing, so that the deficiency letter can serve as your evidence in the H-1B petition) on Beneficiary’s license application from the California State Board of Pharmacy to explain why she could not get her license (she could not get a license because she does not have a social security number).

In the response brief, our office argued that the beneficiary did apply for the California License but she does not have a license yet due to a deficiency in her social security number. We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow her to obtain a social security number which will lead her to get her license. Moreover, our office submitted the documents to demonstrate Petitioner’s business viability (tax return and quarterly wage report) and other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with exhibits to the USCIS California Service Center on September 3, 2014.  Eventually, our client’s H-1B application was approved on September 18, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in London, U.K, and upon the issuance of visa, she can work for the Petitioner from October 1, 2014 for one year.

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

 NATIONALITY: Malaysian

 LOCATION: Michigan

Our Malaysian client came to the U.S. on a J-1 Visa in August 2008.  He came to the United States to pursue his Bachelor’s program, and his J-1 visa made him subject to the two-year foreign resident requirement.  He later changed his status from J-1 to F-1 when he started this Master’s program. His research and higher education enhanced his interest in the field, and he would like to further his studies in the field.

However, since most of the research projects that interest him will take a longer time, and since some of the projects he had inquired on have resulted in the employers/institutions inquiring whether he is eligible to work beyond the OPT, he anticipated that most employers will eventually wish to petition him for an alternate form of visa such as an H-1B.

However, due to the two-year foreign residency requirement, he had to obtain a waiver first before he could change his current status in the United States.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Malaysian Embassy in the United States.  Our office contacted the Malaysian Embassy in New York and Washington D.C. to make sure we got all the requirements needed for their office to issue a no objection statement.  The Embassy requested different documents including a statement of reason for the waiver.

On October 24, 2013 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Malaysian 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 change of status application but for the waiver.

The Malaysian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division. 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 September 18, 2014.  Now that our client’s two-year foreign residency requirement is waived, he can be a beneficiary of other non-immigrant visa in the United States without going back to Malaysia for 2 years.

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Case: I-130/I-485

Applicant/Beneficiary – Lithuanian

Location: Columbus, OH

Our client entered the United States in April 2013 from Lithuania under the visa waiver program. She had a transit stamp on the passport though 90 days was given. While her flight was delayed, she spoke with a close friend and decided to stay in the US.

As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days, as was stamped on her passport.

Later, in May 2014, our client married her U.S. citizen boyfriend. However, her authorized stay had elapsed. Our client and her husband contacted our office, and they retained us on May 30, 2014.

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. Another issue also was the “transit” note there (which also conflicted with the 90 day handwritten date provided on the stamp).

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 June 26, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On September 11, 2014, our client was interviewed at the Columbus, Ohio USCIS Field Office.  Despite the visa waiver issue, on the same day, the USCIS approved her green card application.  Now, our client is a green card holder.

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