CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino

LOCATION: Beneficiary: Thailand / Petitioner: Houston, TX

Our Filipino client is currently working in Thailand as a nurse coordinator. His prospective employer-sponsor was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he has a registered nurse license and the proffered position for him is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs progressive experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a nurse coordinator and a coordination nurse. He also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on February 16, 2016 via premium processing. We included a job offer letter, the notice of filing, employment letters, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation.

However, on March 2, 2016, the USCIS Texas Service Center issued the Notice of Intent to Deny (NOID) for our client’s I-140. The USCIS alleged that our client’s past experience was not progressive in nature. We submitted new past experience letters showing that they were indeed progressive in nature and submitted the response to NOID on March 11, 2016.

Eventually, on March 17, 2016, the USCIS Texas Service Center approved his EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippine nationals is current), he can file and obtain an immigrant visa.

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

NATIONALITY: Thai

LOCATION: Dallas Texas

Our client is a citizen of Thailand who came to the U.S. on a J-2 Visa in 1990.  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.

He has remained her ever since. He completed his elementary and secondary school and finished his bachelor and graduate programs in the United States as well. He did not know about his overstay until he became a late teenager.

He turned 21 in 2005. Nonetheless, he did not know of the waiver process, lost his I-94 ,and did not have J-2 related documents besides the J-2 visa stamp on his old passport. Later, he became a beneficiary of the Deferred Action for Childhood Arrivals (DACA) program and got his work permit.

Our client married his current U.S. citizen wife in October 2012. He would like to get a waiver because he can get a green card based on his U.S. citizen wife’s I-130 petition. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the requirement or the waiver.

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 2005.

Our firm was retained to do his J-2 waiver and replacement of his I-94. We first filed an I-102 application to USCIS on June 12, 2015 in order to obtain his I-94 record replacement. The USCIS issued his replacement I-94 on September 21, 2015. Thereafter, on September 25, 2015, 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 14, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 25, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

Our client is a U.S. citizen who married his wife in Bangkok, Thailand in June 2010.  After living years in Thailand, our client would like to come back to the United States with his wife. Therefore, he contacted our office and retained us to bring his wife to the States.

With our office’s legal assistance, our client directly filed the I-130 petition to the USCIS in Bangkok, Thailand on May 14, 2014. After the I-130 was filed, everything went smoothly, and there were no requests for evidence. The I-130 Petition was approved on June 5, 2014.

After the I-130 approval, we prepared the immigrant visa packet of our client’s wife. Once it was finalized, we sent the application to our client who was in Bangkok, and he directly filed the application to the USCIS Bangkok on July 24, 2014.  An interview notice was set for the client at the US Embassy in Bangkok, and we prepared them for the interview. On July 28, 2014, the interview was conducted.  There was a request for evidence regarding Petitioner’s intent to live in the United States, and we responded with several supporting documents. Eventually, on December 23, 2014, the U.S. Embassy in Bangkok, Thailand approved and issued her immigrant visa.

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

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

 NATIONALITY: Thai

 LOCATION: Ohio

Our Thai client came to the U.S. on a J-1 Visa in August 2008.  She came to the U.S. for research training, and her J-1 visa made her subject to the two-year foreign resident requirement.

In February 2014, our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Thai Embassy in the United States.  On April 15, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request with supporting documents to the Thai Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Thai Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 10, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on October 27, 2014.  Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband’s I-130 petition.

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CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino Registered Nurse in Bangkok, Thailand

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, he is working at a hospital in Bangkok, Thailand as a nurse. His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of January 2009.

Since he is a registered nurse, he is 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 in Schedule A.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told him that his potential employer can petition him as a Registered Nurse under the schedule A category. More importantly, since the priority date of his previous I-140 was current, he can eventually apply for his immigrant visa via consular processing. Our office was retained on July 27, 2014 and we started on his Prevailing Wage Request.

We filed the I-140 application on October 2, 2014 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on October 16, 2014, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file his immigrant visa application.

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CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino Registered Nurse in Bangkok, Thailand

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, he is working at a hospital in Bangkok, Thailand as a nurse. His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of January 2009.

Since he is a registered nurse, he is 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 in Schedule A.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told him that his potential employer can petition him as a Registered Nurse under the schedule A category. More importantly, since the priority date of his previous I-140 was current, he can eventually apply for his immigrant visa via consular processing. Our office was retained on July 27, 2014 and we started on his Prevailing Wage Request.

We filed the I-140 application on October 2, 2014 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on October 8, 2014, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file his immigrant visa application.

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CASE: PERM Labor Certification

 EMPLOYER: Hospital

 BENEFICIARY: Thai Hospitalist

 LOCATION: Tennessee

Our client is a hospitalist (physician) from Thailand, who is currently working at a hospital which was willing to petition him for a second-preference petition (I-140).  Our client has an M.D. degree and is a licensed physician in the state of Tennessee. He has maintained his status as an H-1B visa holder in the United States.  After talking to our client, our firm concluded that his potential employer can petition him as a Hospitalist. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the foreign degree evaluation report, our office filed the job order on September 6, 2013.  On January 9, 2014, we promptly filed PERM.  Eventually, on June 23, 2014, the PERM Labor Certification was approved – an EB2 position for the Thai Hospitalist beneficiary. Now our client can file the I-140 Petition and I-485 green card application simultaneously since his priority date is current.

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

 NATIONALITY: Thai

 LOCATION: Los Angeles, CA

Our Thai client came to the U.S. on a J-1 Visa in May 2009.  She came to the U.S. for business internship training, and her J-1 visa made her subject to the two-year foreign resident requirement.  In June 2012, our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Thai Embassy in the United States.  Our office contacted the Thai Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested several different documents including a statement of reason for the waiver, a notarized copy of the marriage certificate, a notarized copy of his US citizen husband’s US passport Biographic Page, a notarized copy of her valid Thai passport, and a copy of Form DS-3035.

On September 20, 2013 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Thai Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Thai Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On February 3, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on February 7, 2014.  Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband’s I-130 petition.

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CASE: Marriage Based Green Card

CLIENT: Thai

LOCATION: Cleveland, Ohio

Our client married his current U.S. citizen husband in May 2013 in Thailand. After that, his U.S. citizen husband filed an I-130 petition in Thailand. However, while it was pending, our client’s US Citizen husband had to come back to the United States for his employment.

Though the I-130 was pending, our client (beneficiary of the I-130) came to the United States in June 2013 with a B-2 Visitor’s Visa. Consular processing was their intent, however, while they were staying in the United States, our client and her husband changed their mind and wanted to pursue our client’s adjustment of status process in the United States. The tricky factor in their case was that there was already an I-130 pending, and yet she came to the United States on a non-immigrant visa. It was thus very important to prove non-immigrant intent despite the background of their case.

Our client contacted our office and retained us on September 4, 2013. We decided to re-file the I-130 here in the United States, file it together with an adjustment of status application, and explain RIGHT AT THE FILING STAGE (instead of waiting for the interview) that our client did not have any immigrant intent on her recent entry, despite the pending I-130 petition.

Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents including documents and an affidavit which demonstrated that she had an intention to return to Thailand when she came to the U.S. in June 2013.

We filed the applications on October 17, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office, especially on any possible “immigrant intent” issue. This was very important, as a denial on those grounds would not simply be a denial, but would add a possible requirement for a hardship waiver should a re-file be done. It they deny it, it’s as if our client would’ve been better off, sans the expensive cost of going back, pursuing consular processing.

On January 10, 2014, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  The interview went well, and Attorney Yu explained that our client did not have any immigrant intent at the time of her most recent entry to the United States. On the same day, her green card application was approved.

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