CASE: H-1B Change of Employer

PETITIONER: Sensor Device Development Company

BENEFICIARY: Japanese Mechanical Engineer

LOCATION: Irvine, CA

Our client is a leading company in providing innovative sensors and health monitoring solutions to problems related to maintenance and safety of civil infrastructure and other structural / material systems. They contacted our office in early February 2016 to seek legal assistance from our office for their foreign employee. The beneficiary is from Japan and obtained his Master’s degree in Mechanical Engineering. The proffered position for the Beneficiary is a Principal Engineer which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case already had his H-1B visa from his previous employer.  However, his H-1B visa was not expired yet, and he wanted to extend his H-1B status on a change of employer basis.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on February 26, 2016 via premium processing service.  Since this petition was based on a change of employer, we argued that this petition was exempt from the annual cap of the H-1B.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on March 8, 2016.  The H-1B approval had the duration of March 2016 to March 2019. Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for next three years.

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CASE: H-1B Visa Extension

PETITIONER:  Korean Church in Virginia

BENEFICIARY: Korean Pastor

Our client is a Korean church in Virginia, serving the Korean community at a campus town. They contacted our office in late July of 2015 to seek legal assistance for its foreign beneficiary’s H-1B extension.

The beneficiary is Korean and obtained his Master of Divinity Degree in South Korea.  The proffered position for the Beneficiary was for a Pastor which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Master of Divinity Degree or its equivalent. He has been working for the Petitioner on a valid H-1B visa.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on August 21, 2015 via premium processing. Eventually, without any RFE, our client’s H-1B extension was approved on September 2, 2015. Now, the Beneficiary can continue to work for the Petitioner on an H-1B status until September 20, 2018 (until his duration of H-1B status reaches the 6th year mark).

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CASE: H-1B Visa Petition

PETITIONER:  Metal Supply / Manufacturer

BENEFICIARY: Chinese Operations Development Associate in Cleveland, OH

Our client is a Metal Supplier / Manufacturer located in Cleveland, Ohio.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained her Master of Business Administration in the United States.  The proffered position for the Beneficiary is an Operations Development Associate 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 service. This H-1B petition was selected in the lottery. Our client’s H-1B application was approved on August 31, 2015.

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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: H-1B Visa Petition

PETITIONER:  Dental Clinic

BENEFICIARY: Korean Dentist in Cleveland, OH

Our client is a dental clinic located in Cleveland, Ohio.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Doctor of Dental Medicine in the United States. Moreover, he is a licensed dentist in the state of Ohio. The proffered position for the Beneficiary is an associate dentist which clearly 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 in the lottery. Our client’s H-1B application was approved on July 21, 2015.

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CASE: H-1B Extension

PETITIONER:  Environmental Engineering Consulting Company

BENEFICIARY: Indian Principal Consulting Environmental / Water Engineer

Our client is an Environmental Engineering Consulting Company in Fairfax, VA. They contacted our office in October 2014 to seek legal assistance from our office for their foreign employee’s H-1B Extension.  The beneficiary is from India and obtained his Bachelor’s degree and Master’s Degree in Civil / Environmental Engineering. The proffered position for the Beneficiary is a Principal Consulting Environmental / Water Engineer which we argued qualifies as a specialty occupation.  He has been working for the Petitioner on a valid H-1B visa. The beneficiary already used his H-1B status for 6 years, but he is entitled to get a 3 year extension since he has an approved I-140 petition for him.

After retention, our office filed the H-1B visa petition with various supporting documents on October 21, 2014 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on November 24, 2014. Now the Beneficiary can continue for the Petitioner on an H-1B status until December 31, 2017.

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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 early July of this year to seek legal assistance for possible H-1B petitions for a prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Mechanical Engineering in India.  The proffered position for the Beneficiary was a Systems Analyst which we argued qualifies as a specialty occupation. The beneficiary had an H-1B before and he started to work for his previous employer in 2007, but his employment was terminated though in August 2007 when he left for India 3 weeks from the initial H-1B date. His previous H-1B was valid until April 10, 2010 so our office argued that his unused H-1b time can be recaptured and his H-1B petition can be under a change of employer basis which means no cap limitation.

Upon retention, our office prepared and eventually filed the H-1B change of employer petition with various supporting documents on July 10, 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 September 15, 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 October 17, 2014.  Eventually, our client’s H-1B application was approved on November 10, 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.

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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: H-1B Visa Petition (Change of Employer)

PETITIONER:  E-Commerce Merchandiser in Dallas, TX

BENEFICIARY: Korean Marketing Analyst in Seoul, South Korea

Our client is an E-Commerce Merchandising company located in Dallas, Texas.  They contacted our office in late September to seek legal assistance from our office for their foreign employee.  The beneficiary obtained her Bachelor’s degree in Business Administration in United States. The proffered position for the Beneficiary is a Marketing Analyst which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case already had her H-1B visa from her previous employer which was in a similar industry, but she tried to change her employer and filed an H-1B transfer in February 2014. This H-1B transfer was denied, so she filed a Motion to Reopen in April 2014 which was subsequently denied by the USCIS in June 2014.

After that, she went back to South Korea and retained our firm to do an H-1B transfer. We prepared the application and included an H-1B recapture argument, to get back the remaining period of H-1B time from her termination of the employment with her previous employer.

Once retained, our office prepared and filed the H-1B visa petition with various supporting documents on September 26, 2014 via premium processing service. 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 6, 2014.

The USCIS argued that the proffered “Marketing Analyst” position in Petitioner’s business did not qualify as 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 Marketing Analyst is a common position required by similarly sized E-Commerce Merchandising companies.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Marketing 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 re-capture arguments were submitted.

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CASE: H-1B Visa Petition

PETITIONER: Pharmacy in California

BENEFICIARY: British Pharmacist Intern in the United Kingdom

Our client is a pharmacy located in California.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for a prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Pharmacy in the United Kingdom. Also, the beneficiary is a licensed pharmacist in the U.K. and she is currently residing in the U.K. The proffered position for the Beneficiary is a Pharmacist Intern 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 for the qualifications of Beneficiary for the proffered position. The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that she could not get a license in California due to what we claimed on the initial application as a lack of social security / status.

The USCIS was skeptical and argued that Beneficiary is not qualified for Pharmacist Intern position because she did not have a California Pharmacy license yet. We thus had the beneficiary submit further documents to the California State Board, including fees, in order to receive the deficiency letter (print-outs regarding California’s requirements were initially submitted showing that a social security is needed, but these days, CIS wants an actual deficiency letter… they want you to actually pay and submit an actual application even though your requirements are missing, so that the deficiency letter can serve as your evidence in the H-1B petition) on Beneficiary’s license application from the California State Board of Pharmacy to explain why she could not get her license (she could not get a license because she does not have a social security number).

In the response brief, our office argued that the beneficiary did apply for the California License but she does not have a license yet due to a deficiency in her social security number. We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow her to obtain a social security number which will lead her to get her license. Moreover, our office submitted the documents to demonstrate Petitioner’s business viability (tax return and quarterly wage report) and 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 California Service Center on September 3, 2014.  Eventually, our client’s H-1B application was approved on September 18, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in London, U.K, and upon the issuance of visa, she can work for the Petitioner from October 1, 2014 for one year.

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