CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipino

LOCATION: Jersey City, NJ

Our client contacted us in June 2019 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from the Philippines and he obtained his green card through employment in September 2014. 

His N-400 application was filed on July 1, 2019 with all supporting documents. Prior to his citizenship interview, our office prepared him via conference calls.  On September 2, 2020, our client appeared at the Newark, NJ USCIS office for his naturalization interview. Our client answered all questions correctly and passed his naturalization and citizenship interview. 

Eventually, his application was approved on the same day and he took his oath right away. He is now a naturalized U.S. Citizen.

{ 0 comments }

CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Sacramento, California

Our client came from the Philippines on a J-1 in August 2017 to work as a teacher. Based on her DS-2019, she was subject to the two-year foreign residency requirement. Later, her prospective employer wanted to sponsor her H-1B visa and she consulted with our firm for her J-1 visa waiver prior to applying for the H-1B. If someone is subject to the two-year foreign residency requirement, he or she cannot change status to H-1B in the United States until he or she fulfills the requirement or obtains a waiver.

Our office told our client that she can apply for a waiver under the No Objection Statement category based on the fact that she has a U.S. citizen child. Upon retention, our office filed a waiver application to the Department of State, and also prepared the No Objection Statement request from the EVP in the Philippines.

On January 7, 2020, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  On April 13, 2020, our office sent our client’s No Objection Statement request to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee granted the NOS and forwarded the materials to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On August 11, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 25, 2020, the USCIS issued an I-612 approval notice for the waiver.

{ 0 comments }

CASE: I-485 Adjustment of Status / 245(k)

APPLICANT: Filipina High School Math Teacher

LOCATION: Holyoke, CO

Our client has a current employer that was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Mathematics, a valid Colorado Teaching license, and has worked for her current employer since November 2014. Based on our client’s education and workg background, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2018.

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 PW determination, our office filed the job order on August 14, 2018.  On December 13, 2018, we filed PERM. 

On April 19, 2019, the Department of Labor issued an audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on April 24, 2019.  

Eventually, on July 15, 2019, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s most recent W-2 record, and other necessary supporting documents.

The I-140 Petition was filed on July 30, 2019 via regular processing. Eventually, on September 12, 2019, the I-140 EB3 Petition for our Filipina client was approved. 

We filed her I-140 petition and I-485 adjustment of status application concurrently. 

Our client’s DS-2019 was not extended by her employer. Thus, she overstayed and had violated her status for less than 180 days prior to filing the I-485 application. 

Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

Our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).

As mentioned above, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed brief and explained why our client is still eligible for adjustment of status through 245K despite her overstay and unauthorized employment.  Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference calls as well. On March 16, 2020, our client was interviewed at the Centennial, CO USCIS office. The interview went well; however, at that time, the priority date for the  Eb-3 category – Philippines was backlogged. Our client had to wait until the priority date became current. In August 2020, her priority date became current. Eventually, her I-485 application was approved by the USCIS on August 27, 2020. 

{ 0 comments }

CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Nursing / Rehabilitation Center
BENEFICIARY: Filipino
LOCATION: Des Plaines, IL

Our client is a registered nurse in the Philippines.  His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Since he is a registered nurse, 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 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 Professional Nurses is included on Schedule A.

Our client has a nursing degree and has several years of related experience. During the consultation, our firm concluded that his prospective employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on July 8, 2019 and we started on the prevailing wage request. 

We filed the I-140 application on March 18, 2020 via regular processing. We included the job offer letter, the notice of filing, his degrees and a nursing license, and other necessary supporting documents.  Eventually, on August 18, 2020, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition when his priority date becomes current.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: School District in Eagle Butte, SD

BENEFICIARY: Filipino Junior High Math Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in March 2020 to seek legal assistance from our office for their foreign employee. The beneficiary is a Junior High Math Teacher from the Philippines who has been working for this employer for the last 5 years under a J-1 status. Though he was subject to the INA 212(e), two-year foreign residency requirement, he already obtained a J-1 waiver from the USCIS. 

The proffered position for the Beneficiary is a Junior High Math Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2021 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on August 7, 2020 via premium processing. Eventually, our client’s H-1B application was approved on August 19, 2020 without any RFE.  He can now work for his employer for three years on an H-1B status.

{ 0 comments }

CASE: I-485 / National Interest Waiver

CLIENT: Filipino

LOCATION: Boise, ID

Our client contacted us in March 2019 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from the Philippines and he has a Ph.D. Degree in Atmospheric Science. He is already considered an exceptional researcher and scientist in the field of atmospheric science. 

Our client’s significant contributions have placed him at the pinnacle of his field. Our client’s research centers on ozone, a key air pollutant that is produced from precursor emissions and has an adverse impact on human health and ecosystems. Because of his innovative research, our client’s work were highly evaluated by reviewers of various journals, colleagues, and experts in the field.

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 AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id. 

Our office prepared a 24-page brief for our client’s NIW filing. Our client also obtained 8 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication record, presentation record, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to his field of endeavor, that he is well positioned to advance the proposed endeavor, and it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client.

{ 0 comments }

CASE: I-751

APPLICANT: Filipina

LOCATION: Jersey City, NJ

Our client contacted our office in August of 2019 regarding her I-751 application.

She is from the Philippines and she married a U.S. citizen in November 2016. Through her marriage, she obtained a 2-year conditional green card in December 2017.  Her conditional residency terminated in December 2019.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office on August 6, 2019, and our office prepared an I-751 application for our client with all supporting documents.

On September 19, 2019, our office filed the I-751 application to the USCIS with multiple affidavits from her friends and family members, joint bank statements, joint taxes, utility bills, insurance policies, and photos of our client and her husband to demonstrate the bona fideness of their marriage. 

Eventually, on July 24, 2020, the USCIS approved our client’s I-751 application and our client received her 10-year green card which removed the conditions.

{ 0 comments }

CASE: Marriage-Based Green Card (Same Sex Marriage Case)

CLIENT: Filipino

LOCATION: Philadelphia, PA

Our client came to the United States from the Philippines on a J-1 exchange visitor’s visa. He got his J-1 waiver for his two-year foreign residency requirementl.  In May 2018, he married his U.S. Citizen same-sex spouse in Philadelphia, Pennsylvania. 

On June 26, 2013, the U.S. Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment. United States v. Windsor, 570 U.S. ___ (2013). After Windsor decision, the USCIS implemented a new policy that the USCIS officer must review immigration via petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. As long as a same-sex couple is married in a U.S. state that recognizes same-sex marriage, their marriage shall be considered a valid marriage under the immigration law. 

They married in Pennsylvania where same-sex marriages iares recognized. Our client contacted our office and retained us in April 2019 for his I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application together with all necessary supporting documents on July 3, 2019. 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 calls. On July 29, 2020, our client was interviewed at the Philadelphia, PA USCIS office. The interview went well and his green card application was approved on the same day.

{ 0 comments }

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Filipina

LOCATION: Oakley, CA

Our client was a citizen of the Philippines who came to the U.S. on a J-2 Visa in July 2018.  She came with her mother who came on a J-1 Visa for her employment in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

She turned 21 in July 2019.  She wanted to file her I-485 adjustment of status application with her U.S. citizen spouse’s I-130 petition. However, because of her two-year foreign residency requirement, our client cannot adjust her status in the United States without fulfilling the 2-year foreign residency requirement or obtaining a waiver. 

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in July 2019.

Our firm was retained to do her J-2 waiver, and on January 14, 2020, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of the J-1 visa holder anymore.  Eventually, on June 1, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 15, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

{ 0 comments }

CASE: PERM Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: Tucson, AZ

Our client has a current employer that was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Elementary Education, a valid Arizona Teaching license, and has worked for her current employer since July 2017. Based on our client’s education and work background, our office determined that she is eligible for EB-3 classification for her I-140 petition. Our client eventually retained us in September 2018.

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, whichever is later. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on April 8, 2019.  On August 7, 2019, we promptly filed PERM. 

However, on January 7, 2020, the Department of Labor issued a request for audit, which is random nowadays regardless of how perfect the PERM application was. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on January 23, 2020.   

Eventually, on June 16, 2020, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. Our client can file the I-140 petition at any time.

{ 0 comments }