CASE: I-485 Adjustment of Status / I-140 (EB-2 Category) / Schedule A

APPLICANT: Korean Nurse Practitioner

LOCATION: Florida

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, 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 Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on May 5, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on July 20, 2015 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  However, on July 29, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) and asked to submit Petitioner’s entire tax record and an explanation regarding the place of employment. Our office prepared the Response to RFE and filed it to the USCIS on August 10, 2015. Eventually, on August 19, 2015, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for her I-485 adjustment of status (green card) application. Our office filed an I-485 adjustment of status application for our client and her husband on August 21, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on January 6, 2016, the USCIS approved our client and her husband’s adjustment of status applications. Now, they finally are green card holders.

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CASE: Motion to Reopen and Rescind an In Absentia Order of Removal Based on Exceptional Circumstances
CLIENT: Bahamian
LOCATION: Miami, Florida

Our client was from the Bahamas and is a lawful permanent resident.  She was placed into removal proceedings due to a criminal conviction which she has tried to vacate for the last couple years. After removal proceedings were initiated, our client attended her master calendar hearings.

However, in July 2015, our client was in a great deal of pain and was admitted to the emergency room for a week.  Our client got very sick, especially on the master calendar hearing date. Eventually, she did not appear before the Court on her master calendar hearing date.   Because of her absence, an order of removal was issued against her. Once she learned about the order of removal, she immediately contacted our office and explained to us that why she was not able to attend the hearing.

Our client contacted and retained our office on August 20, 2015 for the Motion to Reopen and Rescind an in absentia order.  After we analyzed her story and the surrounding circumstances, our office determined that the Immigration Court will likely grant our client’s Motion to Reopen and Rescind an in absentia order based on exceptional circumstances.

In the Motion, we contended that our client could not attend the hearing due to her medical condition and her absence was inevitable due to the medical condition.  Our office included supporting documents such as a doctor’s letter, copy of prescription, and other supporting documents.  Eventually, our office filed the Motion on September 30, 2015 within the statutory time frame.  On November 3, 2015, the Miami Immigration Court granted our client’s Motion and rescinded the order of removal.  Our client’s case is re-opened, and she can now pursue her relief again.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in Jacksonville, FL

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in Jacksonville, FL.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petition for their potential foreign employee.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. The 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, 2015 via regular processing. This H-1B petition was selected after the lottery.

Without any RFEs, our client’s H-1B petition was approved on August 17, 2015. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of the visa, he can work for the Petitioner from October 1, 2015 for three years.

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

EMPLOYER: Physician’s Office

BENEFICIARY: South Korean

LOCATION: Florida

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, 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 Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on May 5, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on July 20, 2015 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  However, on July 29, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) and asked to submit Petitioner’s entire tax record and explanation regarding its place of employment. Our office prepared the Response to RFE and filed it to the USCIS on August 10, 2015. Eventually, on August 19, 2015, the USCIS Texas Service Center approved her EB-2 I-140 petition. Since the priority date for South Korean national is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Miami, FL

Our Filipina client came to the United States on a B-2 visitor visa in June 2014. Later, she married a U.S. Citizen in September 2014 and retained our office on September 29, 2014 for her green card application. Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 26, 2014.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls as well. On March 2, 2015, our client was interviewed at the Miami, FL USCIS office.

However, after the interview, the USCIS officer requested more evidence to show the bona fide nature of our client’s marriage to her U.S. citizen husband. With our guidance, our client prepared and submitted more evidence to show  the bona fide nature of her marriage. Eventually, on May 11, 2015, the USCIS approved our client’s I-485 adjustment of status application. Now, she is a green card holder. 

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CASE: I-140 / National Interest Waiver / Response to RFE

CLIENT: Korean

LOCATION: Gainesville, FL

Our client contacted us in October 2014 to get legal assistance for an NIW Response to Request for Evidence (RFE) he obtained after he filed the NIW Self-Petition himself. He is a post-doctorate researcher and scientist in the field of ferroelectric material and biomedical research, and is currently working as a post-doctorate researcher in an academic institution in Gainesville, FL. In May 2014, our client filed an I-140 NIW self-petition to the USCIS by himself. However, in September 2014, the USCIS issued a Request for Evidence and requested our client to demonstrate the following:

·         The petitioner (our client) must establish that he has a past record of specific prior achievement with some degree of influence on the field as a whole;

·         The petitioner must establish, in some capacity, the beneficiary’s ability to serve the national interest to a substantially greater extent than the majority of others in the field;

·         The petitioner must establish that the beneficiary’s skills or background are unique and innovative and serve the national interest; and

·         The petitioner must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required.

During consultation stage, our office reviewed our client’s credentials and qualifications.  Moreover, our office reviewed the copy of his initial I-140 NIW filing which was done by our client himself.  After review, we determined that our client was clearly qualified for the National Interest Waiver (NIW) category because he has over 900 citations and his significant contributions have placed him at the pinnacle of his field. Throughout his research career, our client has successfully developed a series of dielectric materials and structures for Radio Frequency (RF) tunable and dynamic random access memory applications such as: A and B site doped barium strontium titanate, Lead strontium titanate and hetero-layered lead strontium titanate, etc.  These dielectric materials and hetero-layered thin films would benefit the United States in many aspects of our economy, national defense, and environment. Our client’s research work were highly evaluated by reviewers of various journals and by colleagues and experts in the field.

Our client received an RFE because he did not demonstrate his “exceptional ability” and outstanding past accomplishments by using the standards for NIW. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation , 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our client retained us on October 24, 2014. He received seven (7) more letters of recommendation from his colleagues and internationally-recognized scientists for his Response to RFE. Our office prepared a 28-page brief for our client’s Response to RFE. Our office also included his publication records, presentation records, and conference materials in the NIW application.  In the response brief, we demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Our office filed his Response to RFE to the USCIS Texas Service Center on December 10, 2014 with substantial amount of supporting documents. On April 6, 2015, the USCIS approved his I-140 petition. When he filed his I-140 petition, he simultaneously filed his adjustment of status application (I-485). Since his I-140 petition was approved, his adjustment of status application will likely be approved soon.

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

APPLICANT: Dominican

LOCATION: Orlando, FL

Our client contacted our office in early December of 2014 regarding her pending I-751 filing. She came to the United States from the Dominican Republic and she married a U.S. Citizen (her ex-husband) in July 2011.

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

Before her 2 year green card expired, our client filed an I-751 application JOINTLY with her ex-husband in 2014. However, while the I-751 application was pending, their marriage started to fall apart. Our client experienced a lot of difficulties in her marital life with his ex-husband. Eventually, they were SEPARATED AND FILED FOR DIVORCE IN DECEMBER 2014. Their marriage ended in February 2015 (divorce issued). While her I-751 was pending, she retained our office to convert her I-751 from joint filing to a waiver of the joint filing category.

According to an April 9, 2009 USCIS Memorandum by Director Neufeld, “USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings…  If a Service Center ISO encounters an I-751 petition jointly filed by co-petitioners who are still married but are in divorce proceedings, the ISO issues the Conditional Permanent Resident (CPR) a Request for Evidence with an 87-day response period.  In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree along with a request to have the joint filing petition treated as a waiver petition.  This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refilling.”

Based on this Memorandum and with various supporting documents (over 42 exhibits and an affidavit over 9 pages) to demonstrate their bona fide marriage, on December 26, 2014, our office promptly filed a new I-751 application with a Request to convert the joint filing to I-751 with waiver of the joint waiver requirement pursuant to the Neufeld April 3, 2009 Memorandum for I-751 Applications pending divorce proceedings. No new filing fees were included in this conversion request.

In January 2015, the USCIS scheduled an I-751 interview for our client. Prior to the interview, our office thoroughly prepared our client via conference calls and informed her of potential issues at the interview.

On February 24, 2015, our client was interviewed for her I-751 application at the USCIS Orlando, FL Field Office.  Eventually, the USCIS approved our client’s I-751 application. Now, she has her ten-year green card.

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CASE: H-1B Change of Employer / Re-capture and reclaim issues

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 August 2014 to seek assistance from our office for their foreign employee. The beneficiary is from India and he obtained his Bachelor’s Degree in 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.  However, he changed his status from H-1B to H-4 after his employment was terminated with his previous employer. Nevertheless, his previous H-1B was valid until September 2016 so our office argued that his unused H-1B time can be recaptured and his H-1B petition can be filed under a change of employer basis which means no cap limitation.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on August 27, 2014 via regular processing. 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 October 24, 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 companies.  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 January 13, 2015.  Eventually, our client’s H-1B application was approved on February 11, 2015.

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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-360 Petition

NATIONALITY: Canadian

LOCATION: Florida

Our Canadian client came to the U.S. in February 2013. He entered the United States with B-2 visitor’s visa for pleasure to go to Florida.

In October 2013, he contacted our office to seek legal representation for his I-360 petition.

Our client’s marital life was tough and he was abused by his spouse. He was hesitant at first because he was male, and believed VAWA cases for males were impossible. However, with his story and evidence, our office determined that he would be eligible for an I-360 self-petition as a spouse of an abusive U.S. citizen.

Our client experienced domestic violence and spousal abuse during his marriage. His wife physically and mentally abused him after the inception of their marriage. Thus, we prepared and filed his I-360 petition and I-485 adjustment of status application, which included 40 exhibits and a detailed brief to the USCIS Vermont Service Center on February 14, 2014.

Despite our client’s thoroughly prepared I-360 application, in May 2014, the USCIS Vermont Service Center issued a Request for Evidence (RFE).  Specifically, the RFE letter requested our client to submit more documents to prove his marriage was in good faith at the time of the inception of marriage. Our client and our office thoroughly gathered the requested documents, and filed a response to the RFE on July 24, 2013.

Finally, on September 8, 2014, the USCIS Vermont Service Center approved our client’s I-360 petition.

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