CASE: PERM Labor Certification

EMPLOYER: Consulting Company

BENEFICIARY: Chinese Financial Analyst

LOCATION: New York, NY

Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.

After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 classification.

Prior to filing PERM labor certification, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad.

Within a week from our retention, the prevailing wage request was filed.  On June 13, 2014, we filed the PERM labor certification application.  Eventually, on October 31, 2014, exactly four months from filing, the PERM labor certification was approved – an EB3 position for the Chinese Financial Analyst. Now our client can file an I-140 Petition.

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CASE: I-130 and Consular Processing (Immigrant Visa) – Marriage-Petition
CLIENT: US Citizen Petitioner; Filipino Beneficiary in the Philippines
LOCATION: Petitioner: New York; Beneficiary: Manila, Philippines

Our client is a U.S. citizen who married her Filipino boyfriend in the Philippines in 2011.  She had her marriage ceremony with her husband in the Philippines in September 2011.  When she came back to the United States, she wanted to bring her husband over here.

She contacted our office in late March 2013 and retained our office to help bring her husband to the States. Since the client’s husband was not in the United States, and their marriage occurred in the Philippines, our office filed the I-130 on April 15, 2013.

After the I-130 was filed, everything went smoothly and the receipt notices came on time. The I-130 Petition was approved by the USCIS on December 5, 2013.

After the I-130 approval, we filed the immigrant visa packets to the National Visa Center on April 29, 2014, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Manila. On July 16, 2014, our client’s husband appeared at the U.S. Embassy in Manila, Philippines. They then asked for an NBI clearance and CENOMAR, which were eventually submitted. Eventually, on September 23, 2014, the U.S. Embassy in Manila, Philippines approved and issued his immigrant visa.

With the approved Immigrant visa, our client’s husband can come to the United States immediately, and he will get his green card within two weeks of entry.

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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: I-130 / BIA Remand / Stokes Interview

CLIENT: Canadian

LOCATION: New York, NY

Our client came from Canada in 2002 as a visitor. He marrie his U.S. Citizen wife in October 2002. Our client has stayed in the United States since the inception of marriage and his authorized period of stay expired. Due to his overstay, our client was placed in removal proceedings in April 2010. He already had an I-130 approval but when he filed for adjustment of status on his own, they denied it and placed him in removal proceedings, and revoked the I-130.

He retained our office in 2010 for legal assistance for his removal proceedings representation and I-130 filing.

Unfortunately, on July 2, 2010, the USCIS New York office denied our client’s I-130 petition, after an almost three-hour Stokes interview. Before and at the interview, extensive evidence of bona fide marriage covering 8 years of marriage was submitted. The couple was able to answer a majority of the questions in the two and half hour interview, and the grounds and discrepancies relied upon by the USCIS in denying the I-130 compared to the majority and relevance of the correctly answered questions together with the extensive evidence was relatively minor.

In response to this denial decision, we timely filed a Notice of Appeal to the Board of Immigration Appeals on July 29, 2010.  The BIA appeal was pending for a long time. Eventually, on May 9, 2012, the BIA found that a remand is warranted for our client’s case.  As a result, on September 29, 2012, our client and his U.S. Citizen wife appeared at the USCIS New York Field Office for another I-130 interview.

Even after the second interview, the I-130 remained pending without any issuance of any RFEs or Notice of Intent to Deny. In the meantime, we filed a Motion for Continuance based on the pending I-130 petition. The New York Immigration Court kept granting our Motions, and on October 28, 2013, the Immigration Judge administratively closed our client’s removal proceedings. Nevertheless, the I-130 petition remained pending.

In August 2014, the New York USCIS Field Office sent us another Stokes Interview request for our client and his wife. We prepared our clients extensively regarding their 12-year marital life. On August 20, 2014, our clients appeared at the New York USCIS Field Office for their second Stokes Interview. Attorney JP Sarmiento from our office also accompanied them as well. Finally, the USCIS approved our client’s I-130 petition. Now, our client can file for adjustment of status after the Immigration Court grants our Motion to Re-calendar and Terminate.

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CASE: H-1B Change of Employer

PETITIONER: Architectural Design Company

BENEFICIARY: Turkish Architect

LOCATION: New York, NY

Our client is an architectural design firm headquartered in New York City. They contacted our office in May 2014 to seek assistance from our office for their foreign employee. The beneficiary is from Turkey and he obtained his Bachelor’s and Master’s degree in architecture. The proffered position for the Beneficiary is an architect which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had his H-1B from his previous employer which was in a similar industry.  His H-1B status was not yet expired, and he wanted to extend his H-1B status on a change of employer basis.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on May 20, 2014 via regular processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  Thus, we could file it even after the quotas are gone.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on August 25, 2014.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for the next three years.

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CASE: N-400 (Citizenship / Naturalization w/ Rebuttable Presumption and Continuity of Residence Issues)

APPLICANT: Filipina

LOCATION: New York, NY

ISSUES: Rebuttable Presumption / Continuous Residence

Our client contacted us in December 2013 to seek legal representation for her naturalization application.

She came to the United States from the Philippines and obtained her green card through the National Interest Waiver process in 2008. She was abroad for school and an internship during the earlier part of her permanent residency.

She retained our office for her naturalization application on December 10, 2013.

The main issue of her naturalization case was two long, over six-month trips that she had within the last five years.

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residence has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption should they wish to apply.

Our client was out of the U.S. more than 180 days twice.  During these trips, she was in France, Singapore, and Indonesia for her MBA and the other trip was for an internship.

According to Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007), in cases where an applicant left the U.S. to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. Our office drafted a brief which explained the nature of our client’s long trips abroad and argued that she is otherwise eligible for naturalization despite her two long trips outside United States.

The brief and his N-400 application were filed on January 6, 2014 with all necessary supporting documents. Our office prepared her for her interview as well. Our client appeared at her naturalization interview on July 23, 2014 at the NYC USCIS Field Office.  Our client answered all questions correctly and passed her citizenship interview. Her N-400 was approved on July 25, 2014. Her oath taking is scheduled where she will become a U.S. Citizen.

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CASE: Marriage-Based Petition and Adjustment of Status

CLIENT: Paraguayan

LOCATION: New York, NY

Our Paraguayan client came to the United States on a B-2 visitor visa in February 2008. She married a U.S. Citizen in July 2011 and retained our office on November 4, 2013 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 11, 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 via conference call. On July 18, 2014, our client was interviewed at the New York, NY USCIS office.  On the same day, her green card application was approved.

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CASE: N-400 (Citizenship / Naturalization w/ Rebuttable Presumption and Continuity of Residence Issues)
APPLICANT: Pakistan
LOCATION: New York, NY
ISSUES: Rebuttable Presumption / Continuous Residence

Our client contacted us in December 2013 to seek legal representation for her naturalization application. She came to the United States from Pakistan and obtained her green card through a family petition in 1993. She was abroad for school most of her childhood, but went to the US periodically (and was let in all the time).

She retained our office for her naturalization application on December 2, 2013.

The main issue of her naturalization case was two long, over six-month trips that she had within last five years.

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residence has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption should they wish to apply.

Our client was out of the U.S. more than 180 days twice.  During these trips, she was in Pakistan, but she could not come back to the United States earlier due to her medical condition.  Our client had a motor vehicle accident in Pakistan while she visited there.  In her most recent trip, she had to deliver her baby while she was staying there. Our client intended to have temporary trips of less than six months in those two trips. However, due to her medical condition and related health issues, she could not come back to the United States before his trip due to the advice of her doctors.

Our office drafted an extensive cover brief which explained our client’s medical conditions and argued that she is otherwise eligible for naturalization despite her two long trips to Pakistan.  We included a notarized affidavit from our client and we included our client’s medical records from Pakistan and the U.S.

The brief and his N-400 application were filed on January 9, 2014 with all necessary supporting documents. Our office prepared her for her interview through conference call. Our client appeared at her naturalization interview on May 14, 2014 at the NYC USCIS Field Office.  Our client answered all questions correctly and passed her citizenship interview. Her N-400 was approved on May 28, 2014. Her oath taking is scheduled where she will become a U.S. Citizen.

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

EMPLOYER: Health Clinic

BENEFICIARY: Filipino

LOCATION: New York, NY

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 the 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. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), he can file his adjustment of status application at any time (he could have filed it simultaneously, but beneficiary wanted to make sure the I-140 was approved first).

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CASE: Marriage-Based Adjustment of Status

CLIENT: Italian

LOCATION: Long Island, NY

Our client came to the United States in 2010 with a J-1 exchange visitor visa from Italy as a post-doctorate researcher in the United States. His J-1 program did not subject him to the INA Section 212(e), two-year foreign residency requirement. Since then, he has maintained his status as a J-1 and H-1B holder.

He married a U.S. Citizen in December 2013 and retained our office on December 17, 2013 for his adjustment of status application.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on December 27, 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 May 5, 2014, our client was interviewed at the Holtsville, NY USCIS office.  The interview went well, and on the same day, his green card application was approved.

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