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 a large Indian restaurant in Ohio. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his employer under the OPT program.  The Petitioner-Employer filed an H-1B application on behalf of our client on July 10, 2011 by themselves.  However, the USCIS mailed a 5-page 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.” 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 “Operations Manager” 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 “Operations Manager” position for this Indian Restaurant 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 restaurant 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 Operations Manager is a common position required by similarly sized restaurants with similar annual incomes.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Operations Managers.  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 9-page Response to RFE brief with 18 exhibits to the USCIS California Service Center on November 16, 2011.  Our client’s H-1B application was approved 12 days later on November 28, 2011.  Now our client can work for the Indian Restaurant employer on an H-1B status and he can work there for next three years, renewable for another 3.

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One of the biggest recipients of H-1B visas in the past few years have been major outsourcing companies from India. Of the five biggest users of the program from 2007 to 2009, four are from India namely Infosys, Wipro, Mahindra Satyam, and Tata. Microsoft was the only US company in the top five. These data have been critical in American business owners in support of the H-1B visa, as hearings with the House Committee have recently indicated.

A lot of American companies are thus requesting an increase in the annual national limit of 65,000 H-1B visas issues per year, stating that this is too low and inflexible to meet their needs for scientists and engineers. The need is so imminent that business owners are even urging the availability of green cards (permanent residence) rather than simply H-1Bs. Bruce Morrison of the Institute of Electrical and Electronics Engineers, testifying before the House Subcommittee for Immigration Policy and Enforcement, urged them to even consider green cards for foreign students with advanced degrees in science and mathematics from American universities. Many foreign students who get advanced degrees in the U.S. could not remain because work visas are not available.

Fraud has also declined with the H-1B program. Donald Neufeld, a CIS official, testified that auditors have found a decrease in H-1B fraud from 21% in 2008 to only 7% today. This counters the possible argument of those against the H-1B visa that most employers are simply using this to take advantage of foreign workers and displace US workers in their respective fields, resorting to fraud at times to hire foreign workers.

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CASE: I-130 Motion to Reopen Nunc Pro Tunc
CLIENT: Indian
LOCATION: Ohio

Our client is a naturalized U.S. citizen who resides in Ohio. In April 2001, our client filed an I-130 petition for his brother who is in India.  About a year later, our client received mail from the USCIS requesting him to submit his brother’s birth records.  Upon receipt of the letter, our client timely mailed the requested documents to the Nebraska Service Center.  However, he had not heard from the USCIS with regard to the status of the I-130 petition.

In November, 2003, our client contacted the CIS Nebraska Service Center to ask about the status of the I-130 petition.  In response to his request, USCIS informed him that his records were located at the Cleveland District Office.  Thereafter, he contacted the Cleveland District office.  However, he never got a response from the District office.  While disappointed, he kept sending letters to the CIS Nebraska Center to request the status of the I-130 petition.  Despite his efforts, he did not get any response from the USCIS.  Moreover, from the time he filed the I-130 in 2001 to 2006, he never moved to a different address.

On September 16, 2010, after following up again with the CIS Nebraska Service Center, Petitioner received an email and the Service informed him that the I-130 petition was administratively closed on September 22, 2005 and the petition was no longer pending. Our client became so disappointed and sought legal assistance to resolve this matter.  He retained our office on October 13, 2010 and Attorney Sung Hee (Glen) Yu promptly prepared and filed a Motion to Reopen to the USCIS and asked the Service to exercise its discretion in re-opening nun pro tunc the case 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 petition.

Moreover, the Motion requested the CIS to summarily approve the I-130 petition for our client’s brother because our client and his brother have been waiting for the CIS decision for more than 9 years, and since he also responded to the purported Request for Evidence.  The Motion noted that it would be extremely unfortunate and unfair for our client and his brother if he has to re-file the I-130 petition again since the priority date will be moved and he would have to wait another ten years.

After we filed the Motion, his case was transferred to the Nebraska Service Center.  On March 1, 2011, the USCIS Nebraska Center informed us that the USCIS moved to reopen the matter, and also approved the I-130.  Our client’s 9-years pending I-130 petition finally got an approval, and once priority dates become current, his brother can file an Immigrant Visa in India, without having to re-file another I-130 and wait 10 more years.

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CASE: F-1 Reinstatement

APPLICANT: Indian

LOCATION: Los Angeles, California

Our client came from India in 2009 to pursue his Master’s in Computer Science degree in California. Unfortunately, extreme and exceptional hardships related to his family caused him to drop a course in his third semester which caused him to fail to maintain his F-1 visa status.

There are many reasons why some F-1 students fall out of status. In limited circumstances, they could still apply for F-1 reinstatement if they meet the requirements. It starts by talking to the school’s international student immigration representative. Upon providing all the necessary documentation, your immigration advisor should issue you a new I-20 with a reinstatement endorsement.  Each school has its own guidelines on what you need to show. Typically you should explain the exceptional circumstances which led you to not maintain full-time courseload.

For the USCIS to grant reinstatement, the standards are as follows:

• The student became out of status due to circumstances beyond the student’s control, or the student would suffer extreme hardship if not reinstated
• The student intends to pursue full-time study
•  No other grounds of removability (criminal cases, for example) apply to the student other than the overstay or status violation
•  The student has not worked illegally off-campus
•  The period being out of status is not more than five months, or there were exceptional circumstances for being out of status longer and the application was filed as soon as possible
•  The student does not have a record of repeated immigration violations

In early September of 2010, our client contacted our office to do his F-1 reinstatement application. Our office promptly prepared his application with various supporting documents to demonstrate that he became out of status due to circumstances beyond his control and that he would suffer extreme hardship if not reinstated.  Moreover, our office explained that our client never had any status violations prior to this incident and never engaged in unauthorized employment.

On January 12, 2011, our office was notified by the USCIS that our client’s F-1 reinstatement is granted.  Now, our client has a chance to finish his Master’s Degree.

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CASE: I-130 and Consular Processing – Marriage-Petition

CLIENT: Indian

LOCATION: Petitioner: Cleveland Ohio; Beneficiary: Pakistan

Our client is a U.S. citizen who married a Pakistani lady in Pakistan. He had his marriage ceremony with his wife in Pakistan, so he wanted to file an Immigrant visa for his wife by filing an I-130 petition.  It is important to note that an alien cannot adjust his or her status (gets a green card) outside U.S. by filing I-130 and I-485 simultaneously. The Petitioner also had questions on the fact that he was married before and filed an I-130 Petition for his previous wife. We explained that as long as that marriage was bona fide and the second one is bona fide (in good faith), there should be no problem.  Since the client’s wife was not in the United States, and their marriage occurred in Pakistan, our office promptly filed the I-130 and I-129K (for the wife’s K-3 visa) to the National Visa Center. 

The I-130 and I-129K were filed on May 21, 2010 to National Visa Center in New Hampshire.  Everything went smoothly and the receipt notices came on time. After the I-130 approval, we filed the immigrant visa packets to the National Visa Center, who in turn forwarded client’s materials to the U.S. Embassy in Islamabad, Pakistan. An interview notice was set for the client at the US Embassy in Islamabad, and we prepared her for her interview. On November 29, 2010, the beneficiary went to her interview in Islamabad, Pakistan and the officer right after informed them that the case was to be approved.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card.

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CASE: Change of Status from H-1B to H-4

CLIENT: Indian

LOCATION: Milwaukee, Wisconsin

Our client has been on H-1B status for two years and held his specialty occupation position. However, his H-1B status expired on September 10, 2010.  Before his H-1B status was expired, our client married his girlfriend who was an H-1B visa holder in the United States living in Cleveland Ohio.  As a family dependent of H-1B visa holder, our client has a chance to change his status from H-1B to H-4 before his H-1B is expired. Our firm was retained and we helped the client obtain supporting documents for the Change of Status before his H-1B was expired. On September 2, 2010, our firm promptly filed the client’s I-539 with detailed exhibits to USCIS Texas Service Center.  On November 24, 2010, the Change of Status was approved. Our client is now on H-4 and can maintain his lawful stay in the United States.

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