CASE: I-140 / EB-11 (Alien of extraordinary ability)
CLIENT: Korean
LOCATION: Seoul, South Korea

Our client contacted us in September 2012, inquiring about the possibility of getting an immigrant visa through extremely difficult EB-11 category.

He is a world-renowned Taekwondo coach, currently working for one of the best Taekwondo teams in South Korea.  Our client was a two-time world champion as a Taekwondo athlete and one of his students won the gold medal at the 2008 Beijing Olympics. Also, he was the head coach for national Taekwondo teams in South Korea and Vietnam multiple times in his career.

Upon review of his credentials and qualifications, our office determined that he was qualified for the EB-11 category, an alien of extraordinary ability.

According to the INA Section 203(b) states, in pertinent part, that:

(1)   Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):

(A) Aliens with extraordinary – an alien is described in this sub-paragraph if-

(i)  The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

(ii)  The alien seeks to enter the United States to continue work in the area of extraordinary ability, and

(iii)  The alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability.  See H.R. 723 101^st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991).  The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).

Regulations at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field.  Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:

(i)    Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii)    Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(iii)             Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.  Such evidence shall include the title, date, and author of the material, and any necessary translation;

(iv)   Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

(v)   Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

(vi)   Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

(vii)     Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;

(viii)     Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

(ix)    Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

(x)   Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

We determined that our client meets 5 of the 10 categories, which is more than 3 required as an alien of extraordinary ability.

Our client has made an original contribution to the sport of Taekwondo; has been awarded numerous national and international coaching awards and his student-players have won numerous national and international competitions including events in the Summer Olympics; has played a critical role for distinguished organizations; has a membership in an organization with distinguished reputation that requires outstanding achievement; and our client’s coaching success were published in professional and major media.

Our office prepared a 21-page brief for our client’s EB-11 filing. Our client also obtained 10 letters of recommendation among establishments sucn as the World Taekwondo Federation, Korea Taekwondo Association, former Olympic champions, Taekwondo head coaches from other national teams, etc.

Our office also included his coaching record, awards, media coverage, medals, athletic career records, and other materials to show that he is an alien of extraordinary ability in Taekwondo coaching. His EB-11 I-140 application contained 65 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via premium processing service on August 1, 2013. On August 7, 2013, within a week of the filing, the USCIS Nebraska Service Center approved his I-140 self-petition.

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CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early April to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

When our client contacted us, the numerical cap for H-1B visas for fiscal year 2014 was about to be reached. We could not process this case under the regular cap time frame given the short amount of time we had to prepare for the application. Our client was very disappointed and thought they would have to wait until April 1, 2014. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file.

We told our client that we can argue that they are qualified for some of the exemption provisions of the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding their eligibility despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on April 19, 2013 via premium processing.

However, the USCIS California Service Center issued a Request for Evidence (RFE) on May 2, 2013 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the interpretation of the immigration laws for cap-exempt organizations. After we received the RFE request, our office prepared the response and argued that the prospective places of employment for Beneficiary are non-profit medical research organization and Beneficiary’s work will be similar to Pharmacists of those hospitals.  We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We filed this Response to the RFE on June 14, 2013.

After our Response to RFE was received by the USCIS, our client’s H-1B application was approved on June 21, 2013.  She can now work for her employer for three years on an H-1B starting June 21, 2013.

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CASE: Marriage-Based Green Card

CLIENT: Korean

LOCATION: Philadelphia, PA

Our client came to the United States in April 2008 with an F-1 student visa from South Korea. He has remained in the United States and continues to pursue his degree in the U.S.

He married a U.S. Citizen in August 2012 and retained our office on November 22, 2012 for and I-130 petition and I-485 adjustment of status application.  

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on January 22, 2013.  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 through conference calls. On April 16, 2013, our client was interviewed at the Philadelphia, PA USCIS office.  Our client’s interview went well, and on the same day, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Korean
LOCATION: Cleveland, OH

Our client came to the United States in August 2007 with an F-1 Student visa from South Korea.  She married a U.S. Citizen in November 2012 and retained our office on November 6, 2012 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 18, 2012.  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 at our office.

On March 8, 2013, our client was interviewed at the Cleveland, OH USCIS.  Attorney Sung Hee (Glen) Yu from our office accompanied them as well. On the same day, her green card application was approved.

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CASE: I-485 (National Interest Waiver Category)
CLIENT: Korean
LOCATION: Raleigh, North Carolina

Our client contacted us in February 2012 about the possibility of doing a National Interest Waiver. He is a post-doctorate researcher and scientist in the field of Chemistry, and is currently working as a post-doctorate researcher in an academic institution in Raleigh, North Carolina.

His contributions have placed him at the “pinnacle of the field” of inorganic materials and solid-state chemistry. He is a leading scientist with an excellent reputation in the development of successful synthesis of several new layered perovskite structures, which he then characterized by several in-depth structural methods.

Our client was on a J-1 visa, but he got his 212(e) waiver before he applied for the National Interest Waiver I-140 and I-485 applications.

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 17-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 35 exhibits (Exhibit A to NN).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on October 1, 2012. On November 30, 2012, the USCIS approved his I-140 petition without any Requests for Evidence.

While his I-140 was pending, we filed an I-485 adjustment of status application for our client and his wife on November 20, 2012. Everything went smoothly and the receipt notices and fingerprint appointment came on time.  Our client received his work permit and travel permit from the USCIS on December 26, 2012.

Eventually, on February 8, 2013, the USCIS Texas Service Center approved our client’s adjustment of status application.  Our client’s wife also received the I-485 approval as a derivative applicant of this case. Now, our client finally is a green card holder.

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CASE: I-140 (EB-2) / I-485
Applicant: Korean
LOCATION: Akron, Ohio

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 more than 5 years of 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 two years ago.

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 the EB-2 classification. Our client eventually retained us for his PERM labor certification in March, 2011.

As we stated in previous success stories, his PERM Labor Certification was approved on October 25, 2011. 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, thus, we attached the tax return schedule that showed the net current assets of the Petitioner, which was over the minimum requirement. 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 December 5, 2011 via premium processing. On December 15, 2011, in only ten days, the I-140 EB2 for our Korean client was approved.

Once his I-140 was approved, our office filed his I-485 adjustment of status application along with supporting documents on January 30, 2012. His wife’s I-485 was filed simultaneously as a derivative applicant of our client’s adjustment of status application. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

However, in May 2012, the USCIS Nebraska Service Center issued Request for Evidence (RFE) for our client and his wife’s I-485 applications.  In the RFE letter, the USCIS wanted them to submit a copy of their marriage certificate.

They participated in a marriage ceremony in Connecticut in 2004, but they did not record their marriage in Connecticut.  Rather, they only recorded their marriage at a local South Korean Government office.  Nevertheless, they have been “married” under Korean law since 2004, and our client’s wife applied for O-3 visas since our client got his O-1 status, with all these relevant facts on hand, and our client’s wife has been granted O-3 extensions too.

In our Response to the RFE, our office argued that their marriage is valid and should be recognized.  This case was transferred to the local USCIS office in Cleveland, Ohio and they appeared at the interview for the adjustment of status interview with Attorney Sung Hee (Glen) Yu from our office on September 4, 2012.

The interview went well, however, the USCIS office denied our client’s wife’s adjustment of status application on September 28, 2012 based on the fact that our client and his wife failed to establish that she married him in a marriage ceremony that was legal in the place where it was conducted.  As a result, the USCIS denial decision stated that she has failed to establish that her marriage to our client is valid for “U.S. immigration purposes.”

Once our client’s wife’s adjustment application was denied, we immediately withdrew our client’s adjustment application as well.  The primary reason for withdrawal was the fact that if his adjustment application is approved, then his wife cannot adjust her status as a derivative applicant. Then, our client would needs to file the I-130 petition for his wife which will delay her adjustment of status for three years.

Since the USCIS decided that our client’s marriage to his wife is not valid for U.S. immigration purposes (due to the immigration requirement that they both be present for the marriage to be valid, even though in South Korea this was not a requirement), our client and his wife had another ceremony and registered their marriage in Ohio to make it valid for “U.S. Immigration Purposes.” They had their marriage ceremony and it was registered in the state of Ohio in October 2012.

With this marriage certificate, our office re-filed our client and his wife’s I-485 adjustment of status application on November 1, 2012. On top of their I-485 applications, our office included an extensive brief in support to explain the nature of this case and its complicated procedural history. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

Eventually, on January 28, 2013, our client and his wife’s I-485 applications were approved by the USCIS Nebraska Service Center.  There were no more RFEs and no interviews. Our client came to the United States in 2002 and has remained in the United States with O-1 visa/extensions. He had a previous I-140 denial under the EB-11 category, and had to withdraw his I-485 application due to the aforementioned marriage issue.  Nevertheless, he and his wife are now finally permanent residents.

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

PETITIONER:  Electric Engine / Turbine Manufacturing Company

BENEFICIARY: Global Sales Application Engineer

Our client is an Electric Engine/Turbine Manufacturing Company in Ohio. They contacted our office in early December to seek legal assistance for their foreign employee.

The beneficiary is from South Korea and obtained her Bachelor’s degree in Mechanical Engineering. The proffered position for the Beneficiary is a Global Sales Application Engineer which qualifies as a specialty occupation – the minimum requirement for this position is a Bachelor’s Degree in Mechanical Engineering or its equivalent.

The foreign beneficiary in this case already had her H-1B visa from her previous employer which was in a similar industry. Her H-1B visa has not yet expired, but she wanted to extend her H-1B status on the change of employer basis.

Once retained, our office filed the H-1B visa petition with various supporting documents on December 14, 2012 via premium processing. Since this petition was based on a change in employer, this petition was exempted 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 December 22, 2012.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for next three years.

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2012 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for only 90 days.

Later, in September, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on September 10, 2012.  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 September 18, 2012.  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, the fingerprint appointment, and the work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On December 21, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver issue, on December 26, 2012, the USCIS approved her green card application.  Now, our client is a green card holder.

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2012 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for only 90 days.

Later, in August, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained our office on August 22, 2012.

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.

Since our client resided in Cleveland, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny his application because of her visa waiver entry.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on August 27, 2012.  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. There was no Request for Evidence.

Prior to the interview, we thoroughly prepared our clients. On December 10, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver issue, the USCIS officer approved her green card application on the same day.  Now, our client is a green card holder.

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CASE: I-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Raleigh, North Carolina

Our client contacted us in February 2012 about the possibility of doing a National Interest Waiver. He is a post-doctorate researcher and scientist in the field of Chemistry, and is currently working as a post-doctorate researcher in an academic institution in Raleigh, North Carolina.

His significant contributions have placed him at the pinnacle of the field of inorganic materials and solid-state chemistry. He is a leading scientist with an excellent reputation in the development of successful synthesis of several new layered perovskite structures, which he then characterized by several in-depth structural methods.  Also, our client has designed a solar photo-catalyst testing device and has used it to study the catalytic activity of his synthesized nano-materials.

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 17-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 35 exhibits (Exhibit A to NN).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on October 1, 2012. On November 30, 2012, the USCIS approved his I-140 petition without any Requests for Evidence.

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