CASE: I-130 / BIA Remand / Stokes Interview

CLIENT: Canadian

LOCATION: New York, NY

Our client came from Canada in 2002 as a visitor. He marrie his U.S. Citizen wife in October 2002. Our client has stayed in the United States since the inception of marriage and his authorized period of stay expired. Due to his overstay, our client was placed in removal proceedings in April 2010. He already had an I-130 approval but when he filed for adjustment of status on his own, they denied it and placed him in removal proceedings, and revoked the I-130.

He retained our office in 2010 for legal assistance for his removal proceedings representation and I-130 filing.

Unfortunately, on July 2, 2010, the USCIS New York office denied our client’s I-130 petition, after an almost three-hour Stokes interview. Before and at the interview, extensive evidence of bona fide marriage covering 8 years of marriage was submitted. The couple was able to answer a majority of the questions in the two and half hour interview, and the grounds and discrepancies relied upon by the USCIS in denying the I-130 compared to the majority and relevance of the correctly answered questions together with the extensive evidence was relatively minor.

In response to this denial decision, we timely filed a Notice of Appeal to the Board of Immigration Appeals on July 29, 2010.  The BIA appeal was pending for a long time. Eventually, on May 9, 2012, the BIA found that a remand is warranted for our client’s case.  As a result, on September 29, 2012, our client and his U.S. Citizen wife appeared at the USCIS New York Field Office for another I-130 interview.

Even after the second interview, the I-130 remained pending without any issuance of any RFEs or Notice of Intent to Deny. In the meantime, we filed a Motion for Continuance based on the pending I-130 petition. The New York Immigration Court kept granting our Motions, and on October 28, 2013, the Immigration Judge administratively closed our client’s removal proceedings. Nevertheless, the I-130 petition remained pending.

In August 2014, the New York USCIS Field Office sent us another Stokes Interview request for our client and his wife. We prepared our clients extensively regarding their 12-year marital life. On August 20, 2014, our clients appeared at the New York USCIS Field Office for their second Stokes Interview. Attorney JP Sarmiento from our office also accompanied them as well. Finally, the USCIS approved our client’s I-130 petition. Now, our client can file for adjustment of status after the Immigration Court grants our Motion to Re-calendar and Terminate.

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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.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Canadian
LOCATION: Detroit, MI

Our client is a medical doctor from Canada who last came here on an H-1B visa. He previously came here on a J-1 visa, but our firm filed and won a J-1 waiver for him based on extreme hardship.

He married a U.S. Citizen in January 2011 and retained our office on March 4, 2013 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on March 15, 2013.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our client through conference calls.

On March 29, 2013, our client was interviewed at the Detroit, Michigan USCIS office.  Attorney JP Sarmiento from our office also accompanied them. Our client’s interview went well, and on the same day, his green card application was approved.

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CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Hospital
BENEFICIARY: Canadian
LOCATION: New York, NY

Our client is a registered nurse, who is currently working at a large hospital in New York City. Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Since she was a registered nurse, she was 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 on Schedule A.

Our client has a nursing degree and has more than 5 years related experience. Her employer filed an I-140 petition for her before; however, it was denied due to the prevailing wage issue.  After talking to our client, our firm concluded that her potential employer can petition her again as a Registered Nurse under the schedule A category.

We filed the I-140 application on September 9, 2011 via regular processing. We included the job offer letter, employment verification letters from our client’s previous employers, the notice of filing, her TN status approval notices, and other necessary supporting documents. On May 14, 2012, the I-140 was approved.  Now, our client can file I-485 adjustment of status application based on the approved I-140 petition when her priority date becomes current.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Canadian
LOCATION: Cleveland, Ohio

Our client came to the United States from Canada when she was 14 years old as a permanent resident. She has studied and worked in the United States as a green card holder, but did not naturalize as a U.S. Citizen.  Our client contacted us in early October 2011 and she retained our office for her naturalization application.  Our client was concerned about her numerous trips to Canada for the last five years, with some almost lasting six months.  Although she went to Canada back and forth, she has never left the United States more than 180 days continuously. She also resided in the United States for a least half of the past five years. Thus, her travel record should not be a problem for her naturalization application.

Her N-400 application was filed on October 20, 2011 with all necessary supporting documents.
Our office prepared her before her interview, and also accompanied her on January 5, 2012 at the Cleveland CIS office.  Our client answered all questions correctly and passed her citizenship interview.   Eventually, her N-400 was approved on January 23, 2012. Her oath taking is scheduled soon in which she will be a U.S. Citizen.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Canadian
LOCATION: Baltimore, MD

Our client came to the United States in March 2011 as a visitor from Canada.  She married her U.S. Citizen wife in April 2011 and retained our office on September 9, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 26, 2011.  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 January 12, 2012, our client was interviewed at the Baltimore, Maryland USCIS office.  Our attorney accompanied them at the interview as well.  On January 17, 2012, her green card application was approved.

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CASE: I-130 / I-485

POTENTIAL ISSUES PRE-RETENTION: Immigrant Intent

APPLICANT / BENEFICIARY: Canadian

LOCATION: Dallas Texas

Our client last entered the United States on January 23, 2010. She has been going back and forth from Canada to the U.S. to visit his boyfriend. She had no intention to marry her husband preceding her last entry but a few weeks after her last entry, her husband proposed to her and they got married. It is important to show that there was no immigrant intent on your last entry and in this case, there was none. The officer may have doubts though due to the closeness of the marriage date to the date of entry. Our firm was retained to process the paperwork and prepare the couple for the interview. The I-130 and I-485 was filed on June 28, 2010. The receipt notices and fingerprint appointments were issued immediately and on August 31, 2010, our client received her work permit. Interview notices were issued on August 13, 2010 and our office prepared them prior to the interview, specifically addressing the immigrant intent issue. On September 20, 2010, they went to their interview in Dallas and the officer right after informed them that their case was to be approved. The CIS officially issued the I-485 approval on September 22, 2010, less than 3 months from filing the application and petition.

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