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: 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: I-824 based on approved I-140 (EB-3) and Consular Processing (Immigrant Visa)

CLIENT: Commercial Linen Producing Company Petitioner; Korean Beneficiary in South Korea

LOCATION: Petitioner: Virginia; Beneficiary: Seoul, South Korea

Our client is in South Korea who took voluntary departure in 2008 to South Korea as a result of his removal proceedings. However, before he left the United States, his prospective employer filed an I-140 petition for him in April 2008 and later this I-140 petition was approved.

Our client and his family members went back to South Korea and did not think that they could come back to the United States because of their voluntary departure. Nevertheless, his prospective employer contacted our office in June 2013 and asked our legal assistance for our client’s immigrant visa processing. It was a very difficult case, but with the approved I-140 petition, our client wanted to take his last try. His I-140 petition was still valid.

After we were retained, our office filed an I-824 application to the USCIS on June 23, 2013 to move his case from the USCIS to National Visa Center. After the I-824 was filed, everything went smoothly and the receipt notices came on time. The I-824 application was approved by the USCIS and this case was transferred to the National Visa Center.

After the I-824 approval, we filed the immigrant visa packets to the National Visa Center on July 25, 2014, who in turn forwarded the client’s materials to the U.S. Embassy in Seoul, South Korea. An interview notice was set for the client at the U.S. Embassy in Seoul. On April 2, 2015, our client and his family members appeared at the U.S. Embassy in Seoul, South Korea. The interview went well; however, the consular officer wanted to see our client’s past immigration record including his previous I-485 denial. 

Our client did not have his I-485 denial notice, so our office filed a Track I FOIA on April 8, 2015 to the USCIS. On May 12, 2015, the USCIS issued a copy of his I-485 denial notice and our office immediately emailed our client this document. Then, our client submitted his I-485 denial notice and his other past immigration records.

Eventually, on May 27, 2015, the U.S. Embassy in Seoul issued immigrant visas for our client and his family members. With the approved Immigrant visas, they can come to the  United States as lawful permanent residents. 

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CASE: I-751

APPLICANT: Korean

LOCATION: Cleveland, Ohio

Our client contacted our office in early January this year regarding her I-751 application.

She is from South Korea and she married a U.S. citizen in November 2012. Through her marriage, she obtained a 2-year conditional green card in March of 2013.  Her conditional residency terminated in March 2015.

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 14, 2015 and our office prepared an I-751 application for our client with supporting documents.

On February 5, 2015, our office filed an I-751 application to the USCIS with multiple affidavits from her friends and family members, joint bank statements, joint taxes, utility bills, insurance policies, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

Once the application was filed, a fingerprint notice was issued two weeks later. There was no RFE issuance or interview request for our client’s I-751 application. As a result, on June 30, 2015, 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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CASE: I-751

APPLICANT: Korean

LOCATION: Cleveland, OH

Our client contacted our office in late September of 2014 regarding his I-751 application.

He is from South Korea and married a U.S. citizen in December 2011. Through his marriage, he obtained a 2-year conditional green card in November of 2012. Our office helped him with his green card application.  His conditional residency terminated in November 2014.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office on October 1, 2014 and our office prepared an I-751 application for our client with other supplemental exhibits.

On October 2, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, joint leasing documents, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later. However, the USCIS issued a Request for Evidence (RFE) to demonstrate the bona fideness of our client’s marriage with his wife. We filed an extensive Response to RFE to the USCIS with more bona fide marital documents on April 29, 2015.

Nonetheless, the USCIS scheduled an interview for our client and his wife. On June 4, 2015, our client and his wife were requested to appear for an interview at the USCIS Cleveland Field Office.  Prior to the interview, our office prepared them thoroughly in our office and also accompanied them at the interview as well. The interview went well, and as a result, on the same day of the interview, the USCIS approved our client’s I-751 application.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: California

Our client contacted us in August 2014 about the possibility of doing a National Interest Waiver. He is a software development engineer in the field of network distribution system research, and is currently working as a software development engineer in a company in Silicon Valley.

His significant contributions have placed him at the pinnacle of the field of computer science and network and distributed system. He is a leading researcher and engineer in the field; specifically, energy management of mobile devices, network performance and management in wireless networks.  Our client’s research on network and distributed systems has led to important innovations in his field of endeavor. His research solutions have successfully deployed, and provide Hotspot services enabling reliable internet connectivity to several cities over multiple countries. He is highly regarded by his peers, and is routinely sought after by other scientists for collaborations and technical reviews.

Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. 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 office prepared a 21-page brief for our client’s NIW filing. Our client also obtained 8 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, and conference materials in the NIW application. 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. His NIW application contained 32 exhibits (Exhibit A to FF).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on December 10, 2014. On April 28, 2015, the USCIS approved his I-140 petition without any Requests for Evidence.  Now, with the approved NIW I-140 petition, he can file his adjustment of status application at any time. 

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

NATIONALITY: Korean

LOCATION: Ohio

Our client is from South Korea who came to the U.S. on a J-1 Visa in December 2002 as a visiting scholar. His J-1 program made him subject to the two-year foreign residence requirement.  He retained our office to seek legal assistance for his H-1b visa.. Before his H-1b gets approved, he has to get a waiver of his two-year foreign residency requirement.

Once retained, our office promptly prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Chicago to pursue the waiver for our client.  The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On January 28, 2015 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a National Interest Waiver petition and adjustment of status application.

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On March 25, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, the USCIS issued an I-612 approval on May 1, 2015.

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CASE: I-485 adjustment of status / I-140 (EB-2 Category) / Schedule A

EMPLOYER: Physician’s Office

BENEFICIARY: South Korean Nurse Practitioner

LOCATION: Greater Houston Area, TX

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 June 10, 2014 and we filed a Prevailing Wage Determination Request immediately.

We filed the I-140 application on October 6, 2014 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 October 21, 2014, without any Request for Evidence (RFE), 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 application. Our office filed an I-485 adjustment of status application for our client on December 9, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on April 16, 2015, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, she finally 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-130/I-485

Applicant/Beneficiary – Korean

Location: San Francisco, CA

Our client entered the United States in September 2014 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) for a couple of months. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Later, in November 2014, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on November 20, 2014.

One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability; it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on December 10, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On April 8, 2015, our client was interviewed at the San Francisco, California USCIS Field Office.  Despite the visa waiver issue, on the same day, the USCIS approved her green card application.  Now, our client is a green card holder.

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