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: I-485 based on Approved I-140 (EB-2)

APPLICANT: Indian

 LOCATION: Cleveland, OH

Our client is a Senior Oracle Applications Developer from India, who is currently working at a large chemical company who was willing to petition him for a second-preference petition (I-140).  He has maintained his status as an H-1B visa holder in the United States.  He had an approved I-140 petition which was filed by his current employer and this I-140 petition’s priority date was November 19, 2008.

In February 2012, his priority date became current. He contacted our office and retained us for his and his wife’s I-485 adjustment of status applications. Our office filed I-485 adjustment of status applications for our client on February 17, 2012. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, the EB-2 for Indian Nationals retrogressed.

Eventually, in August 2014, his priority date became current. On August 25, 2014, the USCIS Nebraska Service Center approved our client and his wife’s adjustment of status applications. They are now green card holders.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in Japan

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

The beneficiary obtained his Bachelor’s degree in Electronic Engineering in India. The beneficiary is currently working in Japan. The proffered position for the Beneficiary is a Systems Analyst 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 to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on June 30, 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 August 6, 2014.  Eventually, our client’s H-1B application was approved on August 25, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in Tokyo, Japan, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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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 the middle of February this year to seek legal assistance for a possible H-1B petitions for prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst 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 to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on June 26, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalence for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position 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 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 exhibits to the USCIS Vermont Service Center on July 23, 2014.  Eventually, our client’s H-1B application was approved on August 7, 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 from October 1, 2014 for three years.

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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 company located in New Jersey.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst 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.

Without any RFEs, our client’s H-1B petition was approved on July 22, 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 from October 1, 2014 for three years.

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT: Indian

LOCATION: Cleveland, OH

Our client contacted our office in early February of 2014 regarding her potential I-751 filing. She came to the United States from India and she married a U.S. Citizen (her ex-husband) in September 2011.

Through her marriage, she was able to obtain a 2-year conditional green card in May of 2012. Thus, her conditional residency terminated in May 2014.

Unfortunately, their marriage ended in April 2013. Our client experienced a lot of difficulties during her marriage with her ex-husband. Thus, our client could not file the I-751 application jointly with her ex-husband.

Once retained, we requested a waiver because our client entered into the marriage in good faith, but the marriage was terminated through divorce or annulment before they can file a joint petition. We focused on the supporting documents that she can show and helped her draft an extensive affidavit about their marriage, and why it ended the way it did.

On February 25, 2014, our office filed the I-751 application with various supporting documents (over 9 exhibits and an affidavit over 3 pages) to demonstrate our client’s bona fide marriage with her ex-husband.

In June 2014, the USCIS scheduled an I-751 interview for our client.

Prior to the interview, our office thoroughly prepared our client at our office and informed her of potential issues at the interview.

On July 10, 2014, our client was interviewed for her I-751 application at the USCIS Cleveland, OH Field Office.  Attorney JP Sarmiento from our office accompanied our client.  The interview was very extensive.  Nevertheless, the USCIS approved our client’s I-751 application on the same day. Now, she has her ten-year green card.

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CASE: H-1B Visa Petition – Response to Request for Evidence

PETITIONER: Indian Restaurant

BENEFICIARY: Nepali

LOCATION: Ohio

ISSUE: Specialty Occupation / Degree Issues

Our client is an IT Consulting Company which is based in New Jersey. The beneficiary is from India who obtained a Bachelor’s degree in a related field.

The beneficiary had a previous H-1B so the Petitioner employer needed to file a change of employer petition for the beneficiary.  Prior to retaining our firm, the Petitioner-Employer filed an H-1B application on behalf of our client with help of their previous immigration counsel on October 21, 2013.

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 March 10, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.”

Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. 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 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.

Our office filed a detailed Response to RFE brief with 16 exhibits to the USCIS Vermont Service Center on May 8, 2014.  Eventually, our client’s H-1B application was approved on May 20, 2014.

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CASE: I-751

APPLICANT: Indian

LOCATION: Toledo, Ohio

Our client contacted our office in October of 2013 regarding his I-751 application.

He is from India and married a U.S. citizen in October 2010. Through his marriage, he obtained a 2-year conditional green card in February of 2012.  His conditional residency was terminated in February 2014.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office on October 28, 2013 and our office prepared an I-751 application for our client with bona fide marriage evidence.

He had a criminal record and inquired about how this will affect his case. After doing research, we determined it will not.

On November 14, 2013, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, insurance policies, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on April 3, 2014, the USCIS approved our client’s I-751 application and our client received his 10-year green card.

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CASE: Marriage-Based Adjustment of Status.

NATIONALITY:Indian

LOCATION: Austin, TX

Our client is from India who came to the U.S. on a J-1 Visa in December 2006.  He came to the U.S. for business training, but his J-1 program made him subject to the two-year foreign residency requirement.

In October 2013, our client married his U.S. citizen wife.

He is eligible to get a green card through marriage to U.S. citizen; however, before we can file his I-130/I-485 application simultaneously, he had to get a waiver of his two-year foreign residency requirement. Therefore, prior to his marriage, in order to get a waiver of his two-year foreign residency requirement, he consulted with our office and decided to retain our office.

Our office worked on our client’s J-1 waiver..  Eventually, the Indian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On August 6, 2013, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and issued an I-612 approval notice.

Our firm then prepared and filed an I-130 petition and I-485 adjustment of status application on October 25, 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 25, 2014, our client was interviewed at the San Antonio, Texas USCIS office.  On the same day, his green card application was approved.

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CASE: I-130 Motion to Reopen Nunc Pro Tunc

CLIENT: U.S. Citizen Petitioner in California / Indian Beneficiaries in India

LOCATION: California

Our client is a naturalized U.S. citizen who resides in California. In August 2004, our client filed three I-130 petitions for her siblings who are in India.  Shortly after the filing of the I-130 petitions, our client received a receipt notice from the USCIS. Since the time that our client filed the I-130s, she has never moved and has never received any Requests for Evidence or decisions in the mail.

After she filed the petition, for the next nine years, she has always called the USCIS Customer Service Center to inquire about the status of the I-130 petitions. The CIS customer service personnel have always told our client that there were all in process. Petitioner has contacted the USCIS Customer Service Center throughout the last 9 years (from 2004 to 2013), and the only answer she got from the USCIS was that the Petition was still pending.

In August of 2013, our client made an Infopass appointment with the local USCIS office and went. When she went to the Infopass appointment, the officer there informed her that one of her cases was denied due to abandonment in 2009 and two of her I-130 petition cases were administratively closed in 2009 as well.

Over the past 9 years, our client and her siblings were waiting for the CIS decision with regard to the I-130 petition. Our client timely filed all requested documents at the time of initial filing of the I-130. There were no Requests for Evidence or denial decisions received in the mail. Despite her efforts, our client never received any succeeding notice about the I-130 petition. Only in August 2013 did she find out about the real processing status of the 3 Petitions when she went for an Infopass.

Our client became so disappointed and sought legal assistance to resolve this matter.

She retained our office on September 18, 2013 and our office promptly prepared and filed a Motion to Reopen to the USCIS the three petitions and asked the Service to exercise its discretion in re-opening nun pro tunc the cases beyond the filing deadline since our client has never been served nor informed by the CIS with regard to the administrative closure of the I-130 petitions.

Moreover, our Motion requested the CIS to summarily approve the I-130 petition for our client’s siblings because our client and her siblings have been waiting for the CIS decision for more than 9 years, without any decision from the USCIS.

The Motion noted that it would be extremely unfortunate and unfair for our client and her siblings if she has to re-file the I-130 petitions again since the priority date will be moved and they would have to wait another ten years.

Our office filed the Motions with Form I-290Bs on September 24, 2013.

On February 17, 2014, the USCIS California Center informed us that the cases are transferred to National Visa Center.

On February 25, 2014, the USCIS moved to reopen the matter, and also approved the two of her three I-130s with the old priority date.

Two of client’s 9-year pending I-130 petitions finally got an approval, and once priority dates become current, her siblings can file an Immigrant Visa in India, without having to re-file another I-130 and wait 10 more years.

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