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 a large Indian restaurant in Ohio. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his employer under the OPT program.  The Petitioner-Employer filed an H-1B application on behalf of our client on July 10, 2011 by themselves.  However, the USCIS mailed a 5-page 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.” 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 “Operations Manager” 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 “Operations Manager” position for this Indian Restaurant 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 restaurant 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 Operations Manager is a common position required by similarly sized restaurants with similar annual incomes.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Operations Managers.  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 9-page Response to RFE brief with 18 exhibits to the USCIS California Service Center on November 16, 2011.  Our client’s H-1B application was approved 12 days later on November 28, 2011.  Now our client can work for the Indian Restaurant employer on an H-1B status and he can work there for next three years, renewable for another 3.

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CASE: PERM Labor Certification
EMPLOYER: Taekwondo (Martial Arts) School
BENEFICIARY: Korean
LOCATION: Akron, Ohio

Our client is a former prominent Taekwondo athlete, and currently is working as a Taekwondo coach who had a Taekwondo school willing to petition him for a second-preference petition (I-140).  Our client has a bachelor’s and a master’s degree in a related field and has more than 5 years of coaching experience. Although he has maintained his status as an O-1 visa holder in the United States, his previous green card application (Based on EB-11 category) was denied two years ago.  After talking to our client, our firm concluded 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 for his I-140 petition.  Our client eventually retained us in March, 2011.

Prior to filing PERM, 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 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.  After we obtained the foreign degree evaluation report, our office filed the job order on May 27, 2011.  On August 12, 2011, we promptly filed PERM.  Eventually, on October 25, 2011, a little after two months from filing, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary. Now our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: I-130 and Consular Processing – Marriage-Petition
CLIENT: US Citizen Petitioenr; Filipina Beneficiary
LOCATION: Petitioner: Ohio; Beneficiary: Manila, Philippines

Our client is a U.S. citizen who married a Filipina lady in the Philippines in 2008. He had his marriage ceremony with his wife in the Philippines, and had resided there until late 2010.  The couple has a son as well.  When he came back to the United States, he wanted to bring his family over here. He contacted our office in December 2010 and retained our office to help bring his family to the States. It is important to note that an alien cannot adjust his or her status (get a green card) outside the U.S. by filing an I-130 and I-485 simultaneously. Since the client’s wife was not in the United States, and their marriage occurred in the Philippines, our office promptly filed the I-130 to the National Visa Center first on January 9, 2011.

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 May 13, 2011.  After the I-130 approval, we filed the immigrant visa packets to the National Visa Center on June 27, 2011, 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 US Embassy in Manila, and we prepared her for her interview. On September 7, 2011, the beneficiary went to her interview in Manila. On October 20, 2011, the U.S. Embassy in the Philippines approved and issued her immigrant visa.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card.

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Case: Motion to Reopen / Terminate with the BIA
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  After he arrived at the port of entry, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002.  He appealed with the BIA and that too was denied. Thus, he had a final order of removal.

Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. Citizen spouse.  As we stated in a previous success story, this client ultimately obtained his permanent residency through adjustment of status with the USCIS as an arriving alien.

After he obtained his permanent residency, he retained our office again to terminate his final order of removal.  Since he had a final order of removal, our office filed a Motion to Terminate Proceedings to the Board of Immigration Appeals (BIA) on August 26, 2011.  Although the DHS opposed our motion, the BIA granted our Motion to Terminate on September 30, 2011. Our client now does not have a final order of removal on his records.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Hotel-Chain Company
BENEFICIARY: Hotel General Manager

Our client is the nation’s fastest-growing extended hotel stay chain company in Ohio. They contacted our office in early June to seek legal assistance from our office for their foreign employee.  The beneficiary is from Pakistan and has extensive work history in the United States as a General Manager in one of the leading brand hotels for 13 years.  This proffered position is a “specialty occupation” because the minimum requirement for this position are a Bachelor’s Degree in Business Administration / Hotel Management or equivalent.

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

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on June 20, 2011 via regular processing.  Since this petition was based on a change in employer, it was exempted from the annual H-1B cap.  On August 12, 2011, the USCIS issued a Request for Evidence (RFE) regarding his past pay stubs to evidence his continued H-1B status. During the validity of his previous H-1B status, his previous employer was acquired but everything pertaining to his position, from the duties to the location to the salary, stayed the same. But he did not file an amendment of his H-1B.  In response to that issue, our office promptly filed a Response to the RFE on August 30, 2011 which included the paystubs from the previous two employers. We cited INA § 214(c)(9)(A)(ii) which states that “an amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.”

Eventually, our client’s H-1B Petition was approved on September 20, 2011.  Moreover, the Beneficiary’s wife and minor son’s H-4 status was properly changed as well. Now the Beneficiary can continue working for his Petitioner-Employer as an H-1B visa holder until 2013.

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

Our client came to the United States in November 2010 with a B-2 tourist visa from Brazil. She married a U.S. Citizen in March 2011 and retained our office around the same time for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on May 18, 2011.  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 August 4, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On May 10, 2011, her green card application was approved.

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

Our client came to the United States in August 2010 with an F-1 student visa from Korea. While on F-1 status, she married her U.S. citizen spouse in March, 2011.  (They have known each other for 4 years while they were in Korea).  They then retained our office in April 2011 for her green card.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on April 28, 2011.  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-call.  On July 28, 2011, our client was interviewed at the Columbus Ohio CIS office. Attorney Sung Hee (Glen) Yu  accompanied them at the interview as well.  At the interview, the USCIS officer approved her application and our client obtained her green card.

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CASE: Adjustment of Status / J-1 Waiver
NATIONALITY: Korean
LOCATION: Ohio

Our South Korean client came to the U.S. on a J-1 Visa six years ago. Before her J-1 visa expired, she managed to get an F-1 visa and she continued her studies in Ohio.  According to her DS-2019, she was subject to the two-year foreign residency requirement.

Last year, she got married to her U.S. citizen husband and later on consulted with our firm for her adjustment of status (obtaining a green card). Her situation was unique because her passport’s visa page stated that she was not subject to the two-year foreign residency requirement.  However, her DS-2019 was clearly marked with the two-year foreign residency requirement.

To clarify the uncertainty, our office checked with the State Department by filing an advisory opinion request.  Our office promptly filed this advisory opinion request on July 27, 2010 to the Waiver Review Division of the Department of State.

Unfortunately, DOS stated that our client is subject to the two-year foreign residency requirement. After receiving this decision, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Korean Embassy in the United States.

On November 24, 2010 the J-1 Waiver was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client was eligible to adjust if she obtains the waiver.

The Korean Consulate General in Chicago promptly forwarded our client’s documents to the Korean Embassy in DC.  On January 18, 2011, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On January 28, 2011, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on February 23, 2011, the USCIS issued an I-612 approval notice for the waiver.

Once the waiver was issued, our office filed the I-130 Petition and I-485Adjustment of Status Application on April 20, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  We thoroughly prepared our clients prior to the interview.   On July 8, 2011, our client was interviewed at the Cleveland USCIS office.  We accompanied them at the interview as well.  On July 11, 2011, her green card application was approved, and our client obtained her green card.

From having the two-year foreign residency requirement, our firm effectively helped her get a J-1 waiver before she adjusted her status.  She did not have to go to Korea for 2 years before she got her permanent residency in the United States. She’s now a green card holder.

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CASE: Termination of Removal Proceedings / Adjustment of Status
ISSUES: 245i; Deceased Petitioner
CLIENT: Filipino
LOCATION: Cleveland, Ohio

This case involves a situation where the beneficiaries had to wait over ten years for priority dates to be current, only to have the petitioner die prior to that happening. Our client, his wife and son, are from the Philippines and came to the U.S. on B-2 visitor’s visas back in 2002. They overstayed their tourist status and have been out of status ever since.

Prior to retaining our firm, our client’s mother filed an I-130 petition for him back in 1992.  As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1992.  However, our client could not apply for his green card until his priority date became current. He had to wait for almost 20 years in order to even apply for his green card.

Unfortunately, his mother (I-130 Petitioner) passed away before he was eligible to apply for his green card.  He and his family was placed in removal proceedings after the DHS found out about his overstay. He was under the impression that nothing could be done since his mother (the I-130) petitioner died.

Once he contacted our office, we explained that an October 2009 law can help his entire family obtain a green card. We can terminate removal proceedings and apply for adjustment of status application with a substitute sponsor – his U.S. Citizen sister. We also informed him that Section 245i would make him eligible to adjust despite his overstay.

Our office was retained in August 2010, and we later filed his I-485 Adjustment of Status application with a substitute sponsor (his US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security before his immigration hearing. We explained this to the Judge and government attorney at the Cleveland Immigration Court.

As we explained in a previous Success Story, the regulation in 2009, Public Law 111-83 (2009), eased the high burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On September 27, 2010, our office filed a request to join in a Motion to Terminate Proceedings with the family’s I-485 applications and supporting documents.  Thereafter, with the government’s agreement, the Immigration Judge terminated our client’s removal proceedings on September 28, 2010.  With the Judge’s Order, our office filed our client’s I-485 Adjustment of Status applications with the USCIS on October 7, 2010.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

On January 3, 2011, our clients had their I-485 interview at the USCIS Cleveland Office.  Our lawyer accompanied our client and his family members for the interview. The Interview went smoothly, but our client could not get his green card right away due to a slight retrogression of priority dates.  Fortunately, in July 2011, his priority date became current, and the USCIS immediately approved his entire family’s Adjustment of Status application. After a 19 year wait from the time our client’s mother filed an I-130 petition, to a 9 year wait from the time his family entered the United States, finally, our client’s family all have their green cards.

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