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

NATIONALITY: Kenyan

LOCATION: New Jersey

Our client is from Kenya who came to the U.S. on a J-1 Visa in June 2013 to work as a camp counselor.  After she finished her J-1 program, she remained in the United States. In May 2015, our client married her current LPR husband. (Her husband will become a naturalized U.S. citizen soon). However, she will not be able to adjust her status unless she gets a waiver of the 2-year foreign residency program.  When she came to the United States in 2013, her program made her subject to the 2-year foreign residency program.

Our firm filed a waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regards to the J-1 No Objection Statement waiver.  Our office contacted the Kenyan Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver, a clearance letter from the J-1 program sponsor, Clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver.

On June 4, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on her marriage to her spouse.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On August 28, 2015, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can file an I-485 adjustment of status application along with her husband’s I-130 petition once her husband becomes a naturalized U.S. citizen.

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CASE: I-751

APPLICANT: Turkish

LOCATION: New Jersey

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

She is from Turkey and she married a U.S. citizen in February 2010. Through her marriage, she obtained a 2-year conditional green card in June of 2011.  Her conditional residency terminated in June 2013.

To comply with immigration requirements, our client and her husband should have filed an I-751 Joint Petition to Remove Conditions before June 2013. However, due to financial and health related reasons, they could not file the I-751 application on time.

However, the USCIS still allows I-751 applicants to file late as long as there is a “good cause” for the late filing. She retained our office on October 1, 2014 and our office prepared an I-751 application for our client with bona fide marriage evidence and a letter to explain their late filing.

On October 17, 2014, our office filed an I-751 application to the USCIS with affidavits of applicant and her husband to explain their late filing and other joint documents to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on May 27, 2015, the USCIS approved our client’s I-751 application and our client received her 10-year green card.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in New Jersey.  They contacted our office in early July of this year to seek legal assistance for possible H-1B petitions for a prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Mechanical Engineering in India.  The proffered position for the Beneficiary was a Systems Analyst which we argued qualifies as a specialty occupation. The beneficiary had an H-1B before and he started to work for his previous employer in 2007, but his employment was terminated though in August 2007 when he left for India 3 weeks from the initial H-1B date. His previous H-1B was valid until April 10, 2010 so our office argued that his unused H-1b time can be recaptured and his H-1B petition can be under a change of employer basis which means no cap limitation.

Upon retention, our office prepared and eventually filed the H-1B change of employer petition with various supporting documents on July 10, 2014 via regular processing. However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on September 15, 2014, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on October 17, 2014.  Eventually, our client’s H-1B application was approved on November 10, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner.

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CASE: I-485 Adjustment of Status / I-140 (EB-2 Category) / Schedule A

CLIENT: Filipino

LOCATION: New Jersey

Our client is a certified nurse practitioner. His current employer-sponsor (on OPT) was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he is a certified nurse practitioner, he is eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Nurse Practitioner is included in Schedule A.

Our client has both a Bachelor’s and Master’s degrees in nursing. Our office was retained on January 9, 2014 and we started the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on April 11, 2014 via premium processing. We included the job offer letter, the notice of filing, his pay stubs, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under Schedule A designation.

However, on April 24, 2014, the USCIS Texas Service Center issued a Request for Evidence (RFE) and requested petitioner-employer to explain recent ownership changes and further explanation on the entity arrangement. Our office prepared the response to RFE and filed it along with supplemental evidence on May 8, 2014 to the USCIS. On May 15, 2014, the USCIS Texas Service Center approved his EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on May 23, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on September 20, 2014, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in Japan

Our client is an IT Consulting Company located in New Jersey.  They contacted our office in the middle of February this year to seek legal assistance for possible H-1B petitions for prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Electronic Engineering in India. The beneficiary is currently working in Japan. The proffered position for the Beneficiary is a Systems Analyst which we argued 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, 2014 via regular processing. This H-1B petition was selected after the lottery.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on June 30, 2014, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on August 6, 2014.  Eventually, our client’s H-1B application was approved on August 25, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in Tokyo, Japan, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in New Jersey.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petitions for prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst which we argued 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, 2014 via regular processing. This H-1B petition was selected after the lottery.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on June 26, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalence for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.”

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with exhibits to the USCIS Vermont Service Center on July 23, 2014.  Eventually, our client’s H-1B application was approved on August 7, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company company located in New Jersey.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst which we argued 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, 2014 via regular processing. This H-1B petition was selected after the lottery.

Without any RFEs, our client’s H-1B petition was approved on July 22, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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CASE: H-1B Visa Petition – Response to Request for Evidence

PETITIONER: Indian Restaurant

BENEFICIARY: Nepali

LOCATION: Ohio

ISSUE: Specialty Occupation / Degree Issues

Our client is an IT Consulting Company which is based in New Jersey. The beneficiary is from India who obtained a Bachelor’s degree in a related field.

The beneficiary had a previous H-1B so the Petitioner employer needed to file a change of employer petition for the beneficiary.  Prior to retaining our firm, the Petitioner-Employer filed an H-1B application on behalf of our client with help of their previous immigration counsel on October 21, 2013.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on March 10, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.”

Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.

Our office filed a detailed Response to RFE brief with 16 exhibits to the USCIS Vermont Service Center on May 8, 2014.  Eventually, our client’s H-1B application was approved on May 20, 2014.

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CASE: I-130 (Petitions for Parents) and Adjustment of Status
CLIENT: Pakistan
LOCATION: New Jersey

Our client retained us to petition his parents who came to the U.S. from Pakistan as visitors. Our client was born and raised in Pakistan, but was naturalized in the United States. His parents were visiting him. He contacted our office in late August of 2012 and discussed with us the possibilities of petitioning his parents. After consultation, he retained our office on September 4, 2012.

Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 19, 2012 for his parents.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  Eventually, on July 18, 2013, our client’s parents’ adjustment of status applications were approved. Now, they are green card holders.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Jamaican
LOCATION: Newark, NJ

Our client came to the United States in October 2008 on an H-2 temporary work visa from Jamaica.  She married a U.S. Citizen in August 2011 and months later wished to apply for a green card. We met them for consultations in New Jersey and they retained our office on January 9.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on January 19, 2012. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On April 4, 2012, our client was interviewed at the Newark, NJ USCIS.  Attorney Sung Hee (Glen) Yu from our office accompanied them at the interview as well.  On the same day, her green card application was approved, and our client obtained her green card.

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