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

EMPLOYER: Physician’s Office

BENEFICIARY: Canadian Nurse Practitioner

LOCATION: Chicago, IL

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

Our client has  Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained and we filed the Prevailing Wage Determination on September 18, 2015.

We filed the I-140 application on January 25, 2016 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.  On February 1, 2016, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Canadian nationals is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Filipina

LOCATION: Chicago, IL

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

Our client has Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on October 19, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 22, 2016 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.  On February 3, 2016, without any Requests for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Philippines nationals are current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE:  I-130 / I-485 / I-601 Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Filipino

LOCATION: Chicago, IL

Our client entered the U.S. in 1993.  Later, he married his U.S. citizen wife and his wife filed an I-130 petition for him and he concurrently filed an I-485 adjustment of status application.  Our client also filed an I-601 wavier application with his adjustment application with the help of his previous immigration lawyer.  He needed to file an I-601 waiver because he was found inadmissible due to his previous immigration law violation.

In 1997, our client went back to his father who was critically ill. After he visited his father, our client re-applied for his visitor’s visa to come back to the United States. However, he claimed himself to be single rather than “married” on his visitor’s visa application in order to get his visitor’s visa easily. He got his visa and came back to the United States. Nonetheless, when he applied for his permanent residency in the United States, the USCIS found that he misrepresented a material fact to get his B-2 visitor’s visa. As a result of his actions, was found to be inadmissible.  (Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible).

As mentioned above, his green card application was denied, as well as the I-601 waiver application. He had multiple tries, but none of them were successful.

Our client contacted our office in November 2011 to pursue the I-130 / 485 and I-601 waiver once again. Our firm thoroughly analyzed why his previous I-601 waiver applications were denied.  Based on his story and surrounding circumstances (hardship to his U.S. citizen wife if he is deported), our office determined that he has a good chance of winning another I-601 application. He retained our office on November 21, 2011.

If someone is found to be inadmissible under Section 212(a)(6)(C)(i) of the INA, the INA Section 212(i) provides for a discretionary waiver of the fraud or misrepresentation inadmissibility ground.  To qualify for the waiver, the alien must establish that his or her USC spouse would suffer extreme hardship if the alien were denied admission.  INA Section 212(i)(l).  In addition to the equities presented, the USCIS may consider the nature of the fraud or misrepresentation.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601 application had a good chance since our client’s U.S. Citizen wife suffers from physical pains emanating from her surgery and various incidents in the past.  Thus, in the I-601 brief in support, our office included extensive medical reports of his wife. We argued that if he is removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  His wife needs consistent and continuous physical therapy to help deal with her pain. Also, it would be extremely difficult for her to get the same level of physical therapy and satisfactory access to medical services in the Philippines in case she joins our client there.

In our brief, we also contended that our client and his wife have maintained strong family ties in the United States, that his wife will have extreme difficulty to find the same level of occupation in the Philippines, that his wife will face extreme financial and emotional difficulties if she is removed.

On May 2, 2012, our client and his wife appeared at the interview in the Chicago USCIS Field Office.  Subsequently, one year later, the USCIS requested another interview for our client to appear at the USCIS Chicago Field Office. Our client appeared at the USCIS office on November 5, 2013 and on both occasions, our attorneys accompanied our client. Eventually, his I-601 waiver application was approved on July 10, 2015.

Once his I-601 was approved, our client retained our office again for his adjustment of status application. In late July of 2015, the USCIS notified us that the old I-130 from his wife for him was terminated. Thus, we prepared both the I-130 and I-485 applications again.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 29, 2015.  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 call. On December 7, 2015, our client was interviewed at the Chicago, Illinois USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. The interview went well, but the officer informed us that due to the complex and extensive nature of our client’s case, it would take more time for her to adjudicate his applications. Nevertheless, on January 13, 2016, his green card application was approved.

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CASE: I-140 (EB-2)

EMPLOYER: Home Health Services in Chicago Illinois

BENEFICIARY: Nigerian Director of Business Technology and Strategy

Our client is Nigerian, who is in the U.S on H-4 status. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Engineering Management.

After talking to our client, our firm concluded that his employer can petition him as a Director of Business Technology and Strategy. Based on our client’s educational and professional, our office determined that he is eligible for EB-2 classification.

Prior to filing PERM labor certification, 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 Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad, whichever is later.

On October 28, 2014, the prevailing wage request was filed.  On April 17, 2015, we filed the PERM labor certification application.  Eventually, on November 17, 2015, the PERM labor certification was approved – an EB2 position for the Nigerian Director of Business Technology and Strategy.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on November 24, 2015 via premium processing service. However, on December 7, 2015, the USCIS issued a Request for Evidence (RFE) for our client’s petition. In RFE, the USCIS requested our client to submit any documentation that demonstrates his specific software special skills in the past. Our office promptly filed the Response to RFE on December 8, 2015 to USCIS by submitting a letter from his old employer detailing his usage and knowledge of the three specific software that were required. Eventually, on December 16, 2015, the I-140 EB2 Petition for our Nigerian client was approved. He can now file an I-485 adjustment of status application for his green card (he could have filed the I-485 application simultaneously, but he wanted to make sure the I-140 was approved first).

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CASE: PERM Labor Certification

EMPLOYER: Home Health Services in Chicago Illinois

BENEFICIARY: Nigerian Director of Business Technology and Strategy

The beneficiary of this labor certification is Nigerian, who is in the U.S on H-4 status. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Engineering Management.

Our firm concluded that his employer can petition him as a Director of Business Technology and Strategy. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification.

Prior to filing PERM labor certification, 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 Labor Certification application could only be filed at least 60 days from the job posting date or 30 days from the last ad.

On October 28, 2014, the prevailing wage request was filed.  On April 17, 2015, we filed the PERM labor certification application.  Eventually, on November 17, 2015, the PERM labor certification was approved – an EB2 position for the Nigerian Director of Business Technology and Strategy. Now our client can file an I-140 Petition and his I-485 adjustment of status application simultaneously.

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CASE:  I-601 Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Filipino

LOCATION: Chicago, IL

Our client entered the U.S. in 1993.  Later, he married his U.S. citizen wife and his wife filed an I-130 petition for him and he concurrently filed an I-485 adjustment of status application.  Our client also filed an I-601 wavier application with his adjustment application with the help of his previous immigration lawyer.  He needed to file I-601 waiver because he was found inadmissible due to his previous immigration law violation.

In 1997, our client went back to his father who was critically ill. After he visited his father, our client re-applied for his visitor’s visa to come back to the United States. However, he claimed himself as a single rather than “married” on his visitor’s visa application in order to get his visitor’s visa easily. He got his visa and came back to the United States. Nonetheless, when he applied for his permanent residency in the United States, the USCIS found that he misrepresented a material fact to get his B-2 visitor’s visa. As a result of his actions, he was found to be inadmissible to the United States pursuant to Section 212(a)(6)(C)(i) of the INA.  (Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible). 

As mentioned above, his green card application was denied, as well as the I-601 waiver application. He had multiple tries, but none of them were successful.

Our client contacted our office in November 2011 to pursue an I-601 waiver once again. Our firm thoroughly analyzed why his previous I-601 waiver applications were denied.  Based on his story and surrounding circumstances (hardship to his U.S. citizen wife if he is deported), our office determined that he had a good chance to win I-601 application. He retained our office on November 21, 2011.

If someone is found to be inadmissible under Section 212(a)(6)(C)(i) of the INA, INA Section 212(i) provides for a discretionary waiver of the fraud or misrepresentation inadmissibility ground.  To qualify for the waiver, the alien must establish that his or her USC spouse would suffer extreme hardship if the alien were denied admission.  INA Section 212(i)(l).  In addition to the equities presented, the USCIS may consider the nature of the fraud or misrepresentation. 

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.    

Our client’s I-601 application has a good chance since our client’s U.S. Citizen wife suffers from physical pains emanating from her surgery and some incidents in the past.  Thus, in I-601 brief in support, our office included extensive medical reports of his wife. We argued that if he is removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  His wife needs consistent and continuous physical therapy to help deal with her pain. Also, it would be extremely difficult for her to get the same level of physical therapy and satisfactory access to medical services in the Philippines in case she joins our client there.

In our brief, we also contended that our client and his wife have maintained strong family ties in the United States, that his wife will have extreme difficulty to find the same level of occupation in the Philippines, that his wife will face extreme financial and emotional difficulties if she is removed.

On May 2, 2012, our client and his wife appeared at an interview at the Chicago USCIS Field Office.  Subsequently, one year later, the USCIS requested another interview for our client to appear at the USCIS Chicago Field Office. Our client appeared at the USCIS office on November 5, 2013 and on both occasions, our attorneys accompanied our client.

Eventually, his I-601 waiver application was approved on July 10, 2015. 

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipino

LOCATION: Chicago, IL

Our client contacted us in January 2015 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from the Philippines and obtained his green card in June 2005 through his family’s petition. Our client would have filed his naturalization application before; however, he was hesitant to file it because of his criminal conviction and the related misrepresentation (not putting his DUI conviction on his immigrant visa application).

Before he became the green card holder, he came to the United States as a tourist and committed a DUI offense. He was convicted and he properly paid his fine. Thereafter, he went back to the Philippines before his authorized stay expired. However, when he applied for his immigrant visa, he did not disclose this DUI record. Nevertheless, his immigrant visa was issued and he became a green card holder in the U.S.

On his most recent trip abroad, at the point of entry, the CBP officer stopped him, and asked him about his DUI record. He disclosed it and eventually was let in. At that point he worried about any potential naturalization application because this DUI was not disclosed on his immigrant visa application prior to him gaining permanent residency.

Although he was admitted into the U.S., he started to worry about his permanent residency and eligibility to file his naturalization application. When he contacted our office, we thoroughly explained him that there an argument that could be made regarding his N-400 eligibility despite the aforementioned issue. He retained our office on January 7, 2015.

The N-400 application was filed on January 27, 2015. The application actually include a “yes” regarding previous misrepresentation but included a detailed explanation of it.

According to 9 FAM 40.63 N2, in order to find an alien inadmissible under INA 212(a)(6)(C)(i), it must be determined that:

(1)   There has been a misrepresentation made by the applicant 

(2)   The misrepresentation was willfully made; and

(3)   The fact misrepresented is material; and

(4)   The alien by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.

According to 9 FAM 40.63 N6.1 “Materiality” Defined:

“Materiality does not rest on the simple moral premise that an alien has lied, but must be measured pragmatically in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien’s application for a visa. The Attorney General has declared the definition of “materiality” with respect to INA 212(a)(6)(C)(i) to be as follows: “A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(1)   The alien is inadmissible on the true facts; or

(2)   The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible

Section 212(a) delineates several crimes and convictions that render a person inadmissible, such as crimes of moral turpitude, controlled substance violations, and aggravated felonies among others. Misdemeanor DUIs are not included.

Finally, the William Yates Interoffice Memorandum by the USCIS issued on September 19, 2005 is the seminal memorandum regarding good moral character determinations in naturalization applications. Based on the memorandum:

“One of the basic eligibility requirements for naturalization is that of establishing good moral character. An applicant for naturalization must show that, during the statutorily prescribed period, he or she has been and continuous to be a person of good moral character…

Proper application of 8 C.F.R. § 316.10(b)(3)(iii) requires that naturalization adjudicators not seize upon minor unlawful acts committed by an applicant without engaging in an individualized analysis of whether the commission of those acts does in fat reflect adversely upon the applicant’s moral character.”

Our argument lied on the premise that the underlying facts would not have rendered him inadmissible, the misrepresentation was not material, and finally, that is beyond the 5-year statutory period for “good moral character”.

Prior to his citizenship interview, our office thoroughly prepared him via conference calls. On May 12, 2015, our client appeared at the Chicago, IL USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved only 2 days later on May 14, 2015. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: I-751

APPLICANT: Filipina

LOCATION: Chicago, Illinois

Our client contacted our office in June of 2014 regarding her I-751 application.

She is from the Philippines and she married a U.S. citizen in January 2011. Through her marriage, she obtained a 2-year conditional green card in July of 2012.  Her conditional residency terminated in July 2014.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office on June 16, 2014 and our office prepared an I-751 application for our client with bona fide marriage evidence.

On June 19, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from her friends and family members, joint bank statements, joint tax records, utility bills, joint mortgage, joint insurances and photos of our client and her husband 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 August 14, 2014, the USCIS approved our client’s I-751 application and our client received her 10-year green card.

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CASE: I-130 (Petitions for Parents) and Adjustment of Status

CLIENT: Filipinos

LOCATION: Chicago, IL

Our client retained us to petition her parents for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States in 2013.

She contacted our office in November 2013 and discussed with us the green card process. After consultation, she retained our office on November 18, 2013.

Once retained, our firm prepared and filed the I-130 Petition and Adjustment of Status Application on January 3, 2014 for her parents.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  Eventually, on August 6, 2014, our client’s parents’ adjustment of status applications were approved. Now, they are green card holders.

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CASE: I-751

APPLICANT: Filipina

LOCATION: Chicago, IL

Our client contacted our office in January of 2014 regarding her I-751 application.

She is from the Philippines and she married a U.S. citizen in 2011. Through her marriage, she obtained a 2-year conditional green card in February of 2012.  Her conditional residency terminated in February 2014.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office again on January 31, 2014 and our office prepared an I-751 application for our client with bona fide marriage documents.

On February 7, 2014, our office filed an I-751 application to the USCIS with joint bank statements, utility bills, insurance policies, joint tax records, affidavits from friends and family and photos of our client and her husband to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later.  However, USCIS issued a Request for Evidence (RFE) on June 2, 2014.  The USCIS requested our client to submit more documentary evidence to prove the bona fide nature of her marriage with her husband. In response to the RFE, our office prepared the response and gathered more joint documentary evidence to demonstrate the bona fide nature of her marriage. We filed the RFE response on July 23, 2014 to the USCIS.

Eventually, on July 31, 2014, the USCIS approved our client’s I-751 application and our client received her 10-year green card which removed the conditions.

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