Case: I-130/I-485
Applicant/Beneficiary – British
Location: Miami, FL

Our client entered the United States in August 2012 from the United Kingdom under the visa waiver program. He came here to visit Miami, FL. As a Visa Waiver Entrant, he was only authorized to remain in the United States for only 90 days.

Later, in December 2012, past the 90 day period, our client married his U.S. Citizen wife in the United States. Our client contacted our office, and he retained our office on January 8, 2013.

One main issue in his green card application through marriage was the fact that he 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.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on March 27, 2013.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time.  Prior to the interview, we thoroughly prepared our clients over conference call.

On October 28, 2013, our client was interviewed at the Miami, Florida USCIS Field Office.  Despite the visa waiver issue, the USCIS officer approved his green card application on November 8, 2013.

{ 0 comments }

CASE: Fiancé Visa

PETITIONER: US Citizen in Washington, D.C.

BENEFICIARY: Spanish

PETITION FILED: December 28, 2012

PETITION APPROVED: August 16, 2013

K-1 VISA APPROVED: October 28, 2013

Our client, a US Citizen Petitioner, met his Spanish fiancée in Washington D.C. in July 2011. They started their relationship, and he went to Spain in April 2012 after his fiancée went back to Spain.  When he visited his fiancée in April 2012, he proposed to her. Months after his proposal, he retained our firm to file a fiancée petition for her.

After retention, we informed our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on November 20, 2012. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on December 28, 2012.

On August 16, 2013, the I-129F fiancée petition was approved. On October 28, 2013, our client’s fiancée appeared at the U.S. Embassy in Madrid, Spain for her K-1 visa interview. The interview went well, and on the same day, the U.S. Embassy issued her K-1 visa.

{ 0 comments }

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.

The beneficiary obtained her Bachelor’s Degree in Architecture. The proffered position for the Beneficiary is an architectural draftsperson.  We argued that this position 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 5, 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 9 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 October 25, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 16, 2016

{ 0 comments }

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Chinese

LOCATION: Houston, Texas

Our client is a citizen of China who came to the U.S. on a J-2 Visa in January 2003. She came with her husband who held a J-1 Visa as a visiting scholar. Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and she eventually got divorced from her ex-husband. She lost her J-2 status and she was still subject to the two-year foreign residency requirement.

She remained in the United States and pursued her education. She is now enrolled into a Ph.D. program in Nursing.

Her prospective employer is willing to file an H-1B I-129 petition for her, but until she gets a waiver of the 2-year foreign residency requirement, she cannot change her status.

She contacted our office, and our firm was retained to do her J-2 waiver on August 16, 2013.

On August 26, 2013 the J-2 Waiver 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 was divorced from the J-1 visa holder.

On September 27, 2013, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On October 16, 2013, the USCIS issued the I-612 waiver approval.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER:  Culture Center in Ohio

BENEFICIARY: Chinese Assistant Program Development Director

Our client is a Culture Center in Ohio that offers after-school and weekend educational programs for children and young students in the Greater Cleveland area. They contacted our office in the middle of March 2013 to seek legal assistance for its foreign beneficiary’s H-1B visa petition.

The beneficiary is a Chinese who obtained her Bachelor’s in Economics in China and also an MBA degree in the United States. The proffered position for the Beneficiary was for an Assistant Program Development Director which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Bachelor’s Degree in Economics/Business or its equivalent.

Upon retention, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. The USCIS California Service Center issued a Request for Evidence (RFE) on July 2, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that the business was new and 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 6-page response brief with 14 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.

Our office filed the response to the USCIS California Service Center on August 10, 2013. Our client’s H-1B application was approved on October 16, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 20, 2016

{ 0 comments }

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

NATIONALITY: Korean

LOCATION: Ohio

Our client is from South Korea who came to the U.S. on a J-1 Visa in October 2009.  He came to the U.S. for a post-doctoral program, but his J-1 program made him subject to the two-year foreign residence requirement.  He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications. His NIW petition is currently pending, but before we file his I-485 application, he has to get a waiver for his two-year foreign residency requirement first.

After retention, our office prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Chicago to pursue the waiver for our client.  The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On August 17, 2013 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a National Interest Waiver petition and adjustment of status application.

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 7, 2013, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, the USCIS issued an I-612 approval on October 15, 2013.  Now, our client can file his adjustment of status application.

{ 0 comments }

CASE: H-1B Visa Petition
PETITIONER: Research Foundation in New York, NY
BENEFICIARY: Canadian Foundation Relations Development Specialist in Vancouver, B.C., Canada
ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research / grant making foundations in the United States. Its New York office contacted our office in late of September to seek legal assistance from our office for their foreign employee. The beneficiary previously worked as a coordinator and an acting officer of a large hospital in Canada and gained experience in development and fundraising database management.

The beneficiary currently is in Vancouver, B.C., Canada. The Beneficiary has a Bachelor’s and Master’s degree from the United States. The proffered position for the Beneficiary is a Foundation Relations Development Specialist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, our client is qualified for cap-exempt petitions since it is 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).

Once retained, our office filed the H-1B visa petition with various supporting documents on October 7, 2013 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on October 10, 2013.  She can now work for her employer for three years on an H-1B status starting October 14, 2013.

{ 0 comments }

CASE: Change of Status from B-2 to F-1

CLIENT: Filipina

LOCATION: Houston, TX

Our client came to the United States on April 23, 2013 from the Philippines with a valid B-2 visitor’s visa. Towards the end of her legal status in the United States, she decided to pursue her education here and wanted to get an F-1 status. She enrolled in a community college for an associate’s degree program. After her school issued the I-20, she contacted our office. She retained our office on July 24, 2013.

Once retained we helped our client obtain supporting documents for the Change of Status. On July 29, 2013, we filed the I-539 Change of Status application to the USCIS. On October 10, 2013, the Change of Status was approved. Our client is now on valid F-1 status.

{ 0 comments }

CASE: I-129F Fiancée Petition and Fiancée Visa

PETITIONER: US Citizen in Gainesville, FL

BENEFICIARY: Filipina

PETITION FILED: March 20, 2013

PETITION APPROVED: July 25, 2013

VISA APPROVED: September 24, 2013

Our client, a US Citizen Petitioner, met his Filipina fiancée online. They developed a relationship and he eventually went to Taiwan to meet her in December 2012. He proposed to her on that visit. Months after his proposal, he retained our firm to file a fiancée petition and get her a fiancé visa.

After retention, we gave our clients a list of supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on February 12, 2013. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on March 20, 2013.

On July 25, 2013, the I-129F fiancée petition was approved. On September 5, 2013, the beneficiary appeared at the American Institute in Taiwan for her fiancé visa interview.  The interview went well, and her fiancé (K-1) visa was approved on September 24, 2013. She will come to the United States and will marry her fiancé within 90 days of her entry.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER:  Nursing Care Company in Ohio

BENEFICIARY: Cambodian Compliance Manager

Our client is a Nursing Care Company in Ohio that works with individuals and doctors to design home care plans to meet their needs. They contacted our office in the middle of March 2013 to seek legal assistance for its foreign beneficiary’s H-1B visa petition.

The beneficiary is a Cambodian who obtained her Bachelor’s and Master’s Degree in Law in Cambodia, and also an LLM from George Washington University. The proffered position for the Beneficiary was for a Compliance Manager which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Bachelor’s Degree in Law or its equivalent.

Upon retention, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. The USCIS Vermont Service Center issued a Request for Evidence (RFE) on May 23, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that the business was new and 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 6-page response brief with 10 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.

Our office filed the response to the USCIS Vermont Service Center on June 12, 2013. Our client’s H-1B application was approved on September 17, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 23, 2016.

{ 0 comments }