CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, Filipino

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is a Nurse Manager. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent. We emphasized that Nurse Manager position is clearly different from a registered nurse because Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on September 9, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  We also included a detailed statement regarding the number of registered nurses that the Beneficiary will supervise. Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 30, 2013. Eventually, our client’s H-1B application was approved on January 8, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 12, 2016 as a Nurse Manager.

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CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: MDS Coordinator, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on August 30, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a lengthy response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 31, 2013. Eventually, our client’s H-1B application was approved on January 6, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 14, 2016 as a MDS Coordinator.

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CASE: H-1B Visa Petition

PETITIONER: Research Foundation in Washington, D.C.

BENEFICIARY: French Staff Accountant

ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research associations for the advancement, health, and sustainability of student affairs and education in the United States. Its National Headquarter in D.C. contacted our office in early December 2013 to seek legal assistance from our office for their foreign employee. The beneficiary is a Staff Accountant for this organization who has been working for Petitioner under the OPT program.

The beneficiary is a citizen of France, and has a Bachelor’s degree from the United States. The proffered position for the Beneficiary is a Staff Accountant. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Accounting or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, we believed our client is qualified for cap-exempt petitions since it is arguable that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

After retention, our office filed the H-1B visa petition with various supporting documents on December 27, 2013 via premium processing. This included an extensive brief arguing that our client was cap-exempt. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on January 3, 2014.  He can now work for his employer for three years on an H-1B status, and he did not have to wait for April 1 for the petition filing, nor October 1 to start working.

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CASE: H-1B Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is a Nurse Manager. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent. We emphasized that Nurse Manager position is clearly different from a registered nurse because the Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office prepared and filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on July 25, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  We also included a detailed statement regarding the number of registered nurses the Beneficiary will supervise. Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included an organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 16, 2013. Eventually, our client’s H-1B application was approved on December 23, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 13, 2016 as a Nurse Manager.

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CASE: H-1B Visa Extension Petition

PETITIONER:  Taekwondo Academy in Hartford, CT

BENEFICIARY: Master Level Taekwondo Coach from South Korea

Our client is a Taekwondo Academy (martial arts school) located near Harford, Connecticut.  They contacted our office in late-October to seek legal assistance for their foreign employee’s H-1B extension.

The beneficiary obtained his Bachelor’s Degree in Physical Education. The proffered position for the Beneficiary is a Master Level Taekwondo Coach.  He has been working for the Petitioner for last three years with a valid H-1B visa. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Physical Education or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on November 8, 2013 via premium processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on November 25, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in an 5-page response brief with 8 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included letters from experts to demonstrate that the bachelor’s degree is a minimum educational qualification for Taekwondo coach positions in the industry and illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on December 19, 2013. Our client’s H-1B application was approved on December 24, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until December 31, 2016

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

CLIENT: Chinese LPR Petitioner in Ohio; Chinese Beneficiary Wife and Daughter in China

LOCATION: Petitioner: Ohio; Beneficiaries: China

Our client retained us to bring his wife and daughter from China to the United States. He is a permanent resident and got married to his wife in 2011. Initially, he retained our office in July 2011 to file the I-130 petitions for his wife. After we were retained, we prepared and filed the I-130 petition for our client’s wife on July 28, 2011. Eventually, this I-130 petition was approved by the USCIS on April 16, 2012.

In April of this year, he retained our office again after the priority date became current for the immigrant visa processing for his wife and his newly born daughter. He retained our office on April 10, 2013.

On June 28, 2013, we filed the immigrant visa packets to the National Visa Center who in turn forwarded our client’s materials to the U.S. Consulate in Guangzhou, China. An interview notice was set for our client’s wife at the U.S. Consulate in Guangzhou, and we prepared her for her interview. On November 20, 2013, after the interview, the U.S. Consulate in Guangzhou, China approved and issued her and her daughter’s immigrant visas.

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

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CASE: Change of Status / I-539

NATIONALITY: Filipina

LOCATION: Los Angeles, CA

DATE FILED: September 11, 2013

DATE APPROVED: December 14, 2013

Our client came from the Philippines on an E-2 visa (Dependent of E-2). She was about to turn 21 years old, wanted to maintain valid status, and attend a college in the U.S. Her father was still on an E-2 in Los Angeles, CA. In early August, 2013, our client contacted us to get legal assistance for her change of status from E-2 to F-1.

Upon retention, we went into detail with their reasons for requesting a change of status. We made sure all addresses, contact information, and dates on their statements were complete and accurate. We made sure the SEVIS fees were paid and we obtained the I-20 document from our client. We prepared a brief that explained our client’s financial ability to go to school in the U.S.

The application was supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS. Our firm filed the I-539 Extension Application on September 11, 2013. Eventually, on December 14, 2013, her change of status application was approved by the USCIS. Now she can stay in the United States and go to college as an F-1 student.

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CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: New York, NY

Our Filipina client came on a J-1 visa in July 2005. Upon completion of her J-1 program, she remained in the United States and changed her status to H-1B. However, she was subject to the two-year foreign residency requirement.

In April 2013, she got married to her U.S. citizen husband and later consulted with our firm for her J-1 visa waiver. She had to do this first before becoming eligible to adjust status.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 15, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New York State Government to get authentication for necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in New York for further authentication. On August 2, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines. The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On November 26, 2013, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 2, 2013, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment of status application along with her U.S. Citizen husband’s I-130 petition.

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CASE: H-1B Visa Petition

PETITIONER:  Architectural Firm in Stamford, CT

BENEFICIARY: Architectural Draftsperson from Turkey

Our client is an architectural firm in Stamford, CT.  They contacted our office in late-February to seek legal assistance for their foreign employee. His wife also retained our firm but for a part-time position, and this was approved recently too, as stated in one of our success stories.

The beneficiary obtained his Bachelor’s Degree in Architecture. The proffered position for the Beneficiary is an architectural draftsperson.  We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Architecture or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on September 4, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in an 3-page response brief with 6 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included beneficiary’s sample work to further illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on September 23, 2013. Our client’s H-1B application was approved on November 13, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 12, 2016

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

NATIONALITY: Chinese

LOCATION: Illinois

Our client is a citizen of China who came to the U.S. on a J-2 Visa.  He came with his father who came 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.

After our client came to the United States, he finished high-school as a J-2 visa holder and later pursued his Bachelor’s degree. Prior to the commencement of his Bachelor’s program, our client changed his status from J-2 to F-1 through the U.S. Consulate in Shanghai, China. He is still in school, but he would like to apply for a J-2 waiver so that he would not have any problem for his future change of status in the United States when his prospective employer files an I-129 petition for him in 2014.

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 December 2012.

Our firm was retained to do his J-2 waiver on September 10, 2013. On October 4, 2013, 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 October 28, 2013 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 14, 2013, the USCIS issued an I-612 approval notice for our client’s waiver request.

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