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

EMPLOYER: Physician’s Office

BENEFICIARY: South Korea

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. Since the priority date for South Korean nationals is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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

Our client came to the United States from South Korea to study piano performance on an F-1 student visa. Later on, she fell in love with and married a U.S. Citizen in January 2013. They retained our office on March 15, 2013 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on April 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 July 8, 2013, our client was interviewed at the Cleveland Ohio USCIS office.  Attorney JP Sarmiento from our office accompanied them as well. On the same day, her green card application was approved.

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CASE: I-485 approval based on approved I-140 petition (EB-1C Category: Executives and Managers of Multinational Organizations)
EMPLOYER: Multinational Tire Corporation
BENEFICIARY: Korean
LOCATION: Akron, 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 24 years in positions of increasing responsibility including that of team manager. He came to the United States in July 2011 with an E-2 visa to work for the current petitioner company (wholly-owned subsidiary of his previous employer). He contacted our firm in December 2011, and discussed with 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 on December 15, 2011.

As our previous success story states, our office prepared and filed the I-140 petition for this client under EB-1C (Executives and Managers of Multinational Organizations) category.

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 of 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 March 15, 2012. On June 1, 2012, the I-140 was approved with no Requests for Evidence.

Once the I-140 was approved, On August 9, 2012, our office filed an I-485 adjustment of status application for our client and his derivative family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time.  On October 19, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  On November 16, 2012, the CIS approved our client’s derivative family members’ adjustment of status applications as well.

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CASE: Change of Status from F-1 to E-1 Derivative
CLIENT: Korean
LOCATION: Dayton, Ohio

Our client was a F-1 student and had an OPT when she contacted our office. In July of this year, she married an E-1 visa holder who worked in the Dayton Ohio area. Rather than remaining an F-1 visa holder, our client wanted to change her status from F-1 to E-1. E derivatives can apply for a work permit, and maintain it as long as your spouse maintains status.

As a family dependent of an E-1 visa holder, our client can change status from F-1 to E-1 derivative.

Our firm was retained and on September 6, 2012, and we filed our client’s I-539 with all supporting documents to the USCIS in Dallas on September 17, 2012. There were no requests for evidence. On November 8, 2012, the Change of Status was approved. Our client is now on E-1 and is with her husband in Dayton, Ohio. She can now file and will get a work permit.

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CASE: H-1B Visa Petition
PETITIONER:  Hospital / Medical Research Center
BENEFICIARY: Strategic Planning Analyst
ISSUES: Cap-Exempt, Research Organization

Our client is a large hospital and medical research center located in Columbus, OH. They contacted our office in the middle of June to seek legal assistance from our office for their foreign employee. The beneficiary obtained her MBA degree in the United States. The proffered position for the Beneficiary is a strategic planning analyst. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Business related curriculum or its equivalent.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was reached.  Our client was very disappointed and thought they would have to wait until April 1, 2013. We told our client that we can argue that they are qualified for cap-exempt petitions and emphasize that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Cases have gone both ways for hospitals, but we thought that if the research aspect of their work is highlighted, that chances of approval are high.

INA Section 214(g)(5) says “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

According to the June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on the Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), it outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Our office argued that the Petitioner was primarily engaged in applied research, and was thus qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Once retained, our office filed the H-1B visa petition with various supporting documents on June 28, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on July 13, 2012.  She can now work for her employer for three years on an H-1B status starting October 1, 2012.  She will continue to work there on an OPT in the meantime.

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CASE: I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)
EMPLOYER: Multinational Tire Corporation
BENEFICIARY: Korean
LOCATION: Akron, 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 24 years in positions of increasing responsibility including that of team manager. He came to the United States in July 2011 with an E-2 visa to work for current petitioner company (wholly-owned subsidiary of his previous employer).  He contacted our firm in December 2011, 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 on December 15, 2011.

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, above the mentioned statutes define “managerial capacity” 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 21 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 24 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 / technical manager 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 March 15, 2012.  On June 1, 2012, 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-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Cleveland, OH

Our client contacted us in March 2011 about the possibility of doing a National Interest Waiver. He is a researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, and is currently working as a visiting professor in an academic institution in Cleveland, Ohio.  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 one would not need an employer nor family member to petition for them for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which 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 15-page brief for our client’s NIW filing. We asked our client to obtain 10 or more letters of recommendation.  Our office also included his publication records, patents, 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 67 exhibits (Exhibit A to OOO).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 2, 2011.  On August 19, 2011, the USCIS approved his I-140 petition without any Requests for Evidence.

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CASE: B-2 Visa Extension / I-539
NATIONALITY: Korean
LOCATION: Cleveland, Ohio

Our client is a Korean national who came to the U.S. on a B-2 visitor visa. She wanted to visit her daughter who is studying in the United States. She consulted with our firm a few weeks before the expiration of her B-2 status. She wanted to extend her visit for six months to visit her sister and be with her daughter for a longer time.  We explained that the CIS has been more stringent on visitor status extensions.

Upon retention, we went into detail with her reasons for requesting extension. Her daughter was entering her senior year in high school, and our client wanted to be there as her daughter chooses a college and prepares for applications. We made sure all addresses, contact information, and dates on her statements were complete and accurate. We made sure all her plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS.  Our office submitted letters from family members in the United States, an employment verification letter for her husband in South Korea, as well as financial documents from Korea. We filed the I-539 Extension Application on July 26, 2011 and her B-2 status extension was approved on August 11, 2011 with no Requests for Evidence.

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