CASE: I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)

EMPLOYER: Multinational Tire Corporation

BENEFICIARY: Korean

LOCATION: Ohio

Our client is a vice president of a multinational tire corporation in Ohio.  He is from Korea, and has worked for its parent company for 12 years in positions of increasing responsibility including that of Research and Development team manager. He came to the United States in February 2013 with an E-2 visa to work for current petitioner company (wholly-owned subsidiary of his previous employer).  He contacted our firm in December 2013, and discussed us his chances of getting a green card.  Based on our client’s educational and professional background and his current position at the worksite, our office determined that he was clearly eligible for the EB-1C classification for his I-140 petition. Our client eventually retained us for his I-140 and subsequent I-485 adjustment of status application.

An employer can petition for its foreign employee under INA § 203(b)(1)(C) if it demonstrates the following: (C) Certain multinational executives and managers – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

According to the INA §101(a)(44), 8 U.S.C. §1101(a)(44) and 8 C.F.R §204.5(j)(2), “executive capacity” means an assignment in an organization in which the employee primarily: (1) Directs the management of the organization or a component or function; (2) Establishes goals and policies; (3) Exercise wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.

Also, “managerial capacity” is defined as an assignment with the organization in which the employee personally: (1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.

After our office was retained, we prepared a thorough cover letter and obtained all necessary supporting documents from our client and the petitioning company. In our brief, we clearly demonstrated that our client met the requirements set forth in the INA §203(b)(1)(C).  First, the prospective U.S. employer (Petitioner-Company) has been doing business for at least 1 year.  Second, the prospective employer (Petitioner) in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed abroad.  Third, if the worker is already employed in the United States, he or she was employed outside the United States for at least 1 year in the 3 years preceding admission as a non-immigrant in an executive or managerial capacity by the petitioner or by its parent branch, subsidiary, or affiliate. Last, the alien is to be employed in the United States in a managerial or executive capacity.

In this case, the Petitioner-company has been doing business for 23 years in the United States. In addition, Petitioner-Company is the wholly-owned subsidiary of its Korean parent company where our client was employed for 12 years. Moreover, our client was employed outside the U.S. for at least 1 year in the 3 years preceding admission as a non-immigrant in an Executive or Managerial Capacity by the Petitioner’s parent company in South Korea.  Our client served as a team manager and later became general manager for the parent company.  He personally supervised and controlled the work of other researchers and engineers for new types and models of tire developments, and was primarily responsible for the company’s various new tires.  Lastly, our client is to be employed in the United States as a vice president for the petitioner.

On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), an organization chart, and a dispatch order.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea.  The evidence included a copy of the certificate of ownership, a copy of the articles of incorporation, a copy the business registration certificate, a copy of the approval for overseas investment, a copy of the annual report and consolidated financial statements.  The I-140 Petition was filed on September 8, 2014.  On March 5, 2015, the I-140 was approved with no Requests for Evidence.  Now, our client can file the I-485 adjustment of status application based on the approved I-140 petition.

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CASE: I-824 (Follow-to-join) based on approved I-140 and Consular Processing (Immigrant Visa)

CLIENT: Korean LPR Petitioner; Korean Beneficiary in South Korea

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

Our client is a Lawful Permanent Resident who got his green card under the NIW category with our office’s legal assistance in 2014.  He has a wife, and our client and his wife married before his adjustment of status application was adjudicated. However, his wife was in South Korea when he got his green card due to her employment. She could have been a derivative applicant at the time of our client’s green card filing, but she was not in the United States at that time. Nevertheless, we explained to our client that we can do an I-824 filing and consular processing for his wife when she wants to permanently move to the United States.

In May 2014, he contacted our office to do an I-824 follow-to-join application to the USCIS so that his wife can file an immigrant visa and come as a derivative beneficiary of the I-140 petition. He retained our office on May 13, 2014 to help bring his wife to the States.

After we were retained, our office filed an I-824 follow-to-join application to the USCIS on May 19, 2014. 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 on June 19, 2014 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 October 1, 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 February 27, 2015, our client’s wife appeared at the U.S. Embassy in Seoul, South Korea. The interview went well, and eventually, on the same day, the U.S. Embassy in Seoul, South Korea approved and issued her immigrant visa.

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

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CASE: I-485 Based on Approved I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Cleveland, OH

Our client contacted us in February 2014 about the possibility of doing a National Interest Waiver. He is a post-doctorate researcher and scientist in the field of biomedical engineering and cardiology research, and is currently working as a post-doctorate researcher in an academic institution in Cleveland, Ohio.

His significant contributions have placed him at the pinnacle of the field of biomedical engineering and cardiology research. He is a leading scientist with an excellent reputation in the area of mechanism of atrial fibrillation. Our client’s research work has provided fundamental understanding of atrial fibrillation in an animal model of atrial fibrillation, and has advanced the development of an algorithm for future clinical treatment of atrial fibrillation by targeting critical epicardial and endocardial sites for ablation for many atrial fibrillation patients in the United States. Throughout his research career, our client has provided significant scientific contributions relevant to understanding mechanisms of atrial fibrillation which were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

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 19-page brief for our client’s NIW filing. Our client also obtained 7 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 29 exhibits (Exhibit A to CC).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on June 10, 2014. On November 18, 2014, the USCIS approved his I-140 petition without any Requests for Evidence.

When he filed his I-140 petition, he simultaneously filed his adjustment of status application (I-485). Eventually, on February 14, 2015, his adjustment of status application was approved by the USCIS Nebraska Service Center. Now, he is a green card holder.

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

NATIONALITY: Korean

LOCATION: Los Angeles, California

Our client is a citizen of South Korea who came to the U.S. on a J-2 Visa in August 2005.  She came with her 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.

After our client came to the United States, she completed her ESL courses and was admitted to the University to pursue her bachelor’s degree. In July 2006, she went back to South Korea and got her F-1 student visa at the U.S. Embassy in Seoul, and came back to the United States with her F-1 student visa.

She turned 21 in 2007. This year, she would like to change her status from F-1 to H-1B if her prospective employer files an I-129 petition for her in April. Moreover, she also has an approved I-140 petition and currently is waiting for her priority date to be current. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without fulfilling the requirement or getting a 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 March 2007.

Our firm was retained to do her J-2 waiver on December 11, 2014. On December 12, 2014, 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 January 9, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On January 20, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Korean Client in Dayton, OH

As our office explained before on our website, the USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases.  According to the USCIS Deferred Action Memorandum issued in August 2012, an individual who meets the following criteria may apply for deferred action:

◾Was under the age of 31 as of June 15, 2012;

◾Came to the U.S. before reaching his/her 16th birthday;

◾Has continuously resided in the U.S. since June 15, 2007, up to the present time;

◾Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;

◾Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;

◾Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and

◾Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

Our client’s brother contacted our office immediately after he heard of this relief on the news.  His younger brother, our client, initially came to the United States in December 2000 with a valid B-2 visitor’s visa when he was only 8 years old.

As of June 15, 2012, our client was twenty (20) years old.   Also, our client was studying at a college in Dayton, Ohio. Our client went to grade school, middle school and graduated from high school in the United States.  Also, since his last entry to the United States in December 2000, our client never left the United States.

He was physically present in the United States on June 15, 2012 and has continuously resided here since December, 2000. Our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.  So, our client was clearly eligible for deferred action.

In November 2012, through our office’s legal assistance, our client’s I-821D and I-765 were successfully approved. In September 2014, he retained our office again for the renewal of his DACA application.  Our client and his family members sent us supporting documents that prove our client’s education history, physical presence in the United States, and his initial entry to the United States.  Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On September 30, 2014, our office filed his I-821D and I-765 to the USCIS.  Eventually, on December 17, 2014, the USCIS approved our client’s I-821D and I-765.

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

EMPLOYER: Taekwondo (Martial Arts) School

BENEFICIARY: Korean

LOCATION: Erie, PA

Our client is a prominent Taekwondo master who is working as a Taekwondo coach. He had a Taekwondo school willing to do a second-preference petition (I-140) for him.  Our client has a Bachelors and Masters degree in a related field and has coaching experience. Although he had maintained his status as an O-1 visa holder in the United States, his previous green card application (Based on the EB-11 category) was denied.

After talking to our client, our firm decided that his potential employer can petition him as a Taekwondo Head Coach.  Second preference petitions for Koreans are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification. Our client eventually retained us for his PERM labor certification in January 2013.

As we stated in a previous success story, his PERM Labor Certification was approved on May 13, 2014 despite the issuance of an Audit request.  After the PERM approval, our client retained us again for the I-140 petition.

We then proceeded with the I-140 Petition filing. One of the main requirements for the I-140 is that the petitioning company must show that it has the ability to pay the proffered wage for the beneficiary’s position.

The adjusted gross income was not enough. The current wage of the beneficiary was not enough. The net current assets were also not enough.

Thus, we attached the tax return schedule that showed the net current assets of the Petitioner and combined it with his wage to argue that this combination establishes Petitioner’s ability to pay the prevailing wage. A combination of the net current assets and our client’s current salary was over and above the prevailing wage and the proffered wage.

We included the job offer letter, employment verification letters from our client’s previous employers, and other necessary supporting documents.  The I-140 Petition was filed on June 2, 2014 via premium processing.  Eventually, on June 17, 2014, the I-140 EB2 Petition for our Korean client was approved.

Once his I-140 petition was approved, he retained our office again for his I-485 adjustment of status application. Once retained, our office filed an I-485 adjustment of status application for our client on June 3, 2014. However, on November 22, 2014, the USCIS Texas Service Center issued a Request for Evidence (RFE) and asked us to submit more documents to show whether our client has maintained his lawful status in the United States.

Our office promptly filed the Response to RFE to the USCIS on December 1, 2014 along with his previous I-129 approval notices. Eventually, on December 12, 2014, the USCIS approved our client’s adjustment of status application. Now, our client is a green card holder.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Cleveland, OH

Our client contacted us in February 2014 about the possibility of doing a National Interest Waiver. He is a post-doctorate researcher and scientist in the field of biomedical engineering and cardiology research, and is currently working as a post-doctorate researcher in an academic institution in Cleveland, Ohio.

His significant contributions have placed him at the pinnacle of the field of biomedical engineering and cardiology research. He is a leading scientist with an excellent reputation in the area of the mechanism of atrial fibrillation. Our client’s research work has provided fundamental understanding of atrial fibrillation in an animal model of atrial fibrillation, and has advanced the development of an algorithm for future clinical treatment of atrial fibrillation by targeting critical epicardial and endocardial sites for ablation for many atrial fibrillation patients in the United States. Throughout his research career, our client has provided significant scientific contributions relevant to understanding mechanisms of atrial fibrillation which were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

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 19-page brief for our client’s NIW filing. Our client also obtained 7 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 29 exhibits (Exhibit A to CC).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on June 10, 2014. On November 18, 2014, the USCIS approved his I-140 petition without any Requests for Evidence. When he filed his I-140 petition, he simultaneously filed his adjustment of status application (I-485). Since his I-140 petition is approved, his adjustment of status application will likely be approved soon.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Korean

LOCATION: Los Angeles, CA

Our Korean client came to the United States on a F-1 student visa to pursue her law degree. Currently, she is working as a patent attorney in Los Angeles under her OPT program.

She married a U.S. Citizen in March 2014 and retained our office on March 18, 2014 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on April 1, 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 as well. On July 22, 2014, our client was interviewed at the Los Angeles, CA USCIS.  On the same day, her green card application was approved.

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Case: I-130/I-485

Applicant/Beneficiary – Korean

Location: Dayton, OH

Our client entered the United States in January 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 months. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Later, in February, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on March 21, 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 March 31, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay expired. 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. On July 17, 2014, our client was interviewed at the Cincinnati, Ohio USCIS Field Office.  Attorney Sung Hee (Glen) Yu accompanied them at the interview as well.  Despite the visa waiver issue, on the same day of the interview, the USCIS approved her green card application.  Now, our client is a green card holder.

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CASE: Change of Status from H-1B to F-2

CLIENT: Korean

LOCATION: Akron, Ohio

Our client was a part-time instructor who has taught in the University in Akron under an H-1B status. His wife was studying at a local community college under an F-1 status. Before he contacted our office, he and his employer decided not to renew his contract. Our client, thus, would like to change his status from H-1B to F-2 once his H-1B is expired.

Our firm was retained on April 24, 2014, and on May 6, 2014, we filed our client’s I-539 with all supporting documents to the USCIS. We included our client’s bank statements, joint tax records, and other relevant financial documentations of our client and his wife to show that they have enough financial ability to finish our client’s wife’s degree program and support their daily life in the United States until her degree is completed.

After the change of status application was filed, there were no requests for evidence. On June 17, 2014, the Change of Status was approved. Our client is now on F-2 and can stay in the United States with his wife until the duration of his wife’s F-1 status.

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