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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client is in the United States on an H-4 visa. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to go for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on February 22, 2017 via premium processing. We included a 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 the nurse manager position falls under a Schedule A and EB2 designation. Eventually, on March 8, 2017, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her and her husband. On April 5, 2017, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client at via conference calls as well. On January 24, 2018, our client was interviewed at Houston Texas USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients as well. Eventually, on January 25, 2018, her green card application was approved. Her husband’s green card was approved as well.

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CASE: I-130 and Consular Processing (Immigrant Visa) – Marriage-Petition

Our client is a Lawful Permanent Resident (Green card holder) from the Philippines. He got his green card through family petition; however, his wife and children did not get the green cards back then. In August 2015, he retained our office to bring his wife and two children to the States via consular processing. Once retained, our office filed the I-130 petition on October 22, 2015 and this petition was approved by the USCIS on August 5, 2016.

Once the priority date became current, we filed the immigrant visa packets to the National Visa Center on March 7, 2017, who in turn forwarded our clients’ 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 them for the interview. On November 20, 2017, the interview was conducted.  Eventually, after the interview, the U.S. Embassy in Manila, Philippines approved and issued their immigrant visas.

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CASE:  Immigrant Visa / I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Filipino

LOCATION: California / Manila, Philippines (Visa Interview)

Our client came to the United States from the Philippines in 2002 on a C1/D visa (Crewman). He remained in the United States after his entry in 2002. He married his U.S. citizen wife in 2009. His U.S. Citizen wife filed an I-130 petition for him in November 2009. This I-130 petition was approved on April 13, 2010.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (crewman entry and overstay). He needed a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

In 2013, our client filed his first I-601A application to USCIS. However, USCIS denied it because his case does not demonstrate that his U.S. citizen wife will not suffer “extreme hardship.” He contacted our office in June 2016 and retained our office on July 6, 2016 for the re-file of I-601A application.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of hardship. We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. She would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for her to get the same level of economic stability in the Philippines in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in the Philippines, and that his U.S. citizen children and his wife will face extreme emotional difficulties if he is removed.

On October 13, 2016, we filed the I-601A waiver application which included the brief in support, and documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on February 21, 2017.

Once his I-601A waiver was approved, he retained our office again for his immigrant visa processing. Our office prepared and filed his immigrant visa application on July 6, 2017. In October 2017, the U.S. Embassy in Manila, Philippines informed our office that they scheduled an immigrant visa interview for our client. Our client went back to the Philippines to appear at his interview on November 27, 2017. On November 27, 2017, our client appeared at his immigrant visa interview at the Embassy. Eventually, on December 22, 2017, and the U.S. Embassy approved his immigrant visa.

Now, our client successfully came back to the United States with an approved immigrant visa and he will get his green card in a mail within two months.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client is in the United States with an H-1B visa and has been working as a nurse instructor. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a nurse instructor. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on March 27, 2017 via premium processing. We included a 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 the nurse manager position falls under a Schedule A and EB2 designation. Eventually, on April 7, 2017, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application. On May 1, 2017, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client at via conference calls as well. On December 22, 2017, our client was interviewed at Houston Texas USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our client as well. Eventually, on the same day of her interview, her green card application was approved.

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CASE: Immigrant Visa / I-140 (EB-2 Category) / Schedule A

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino Nurse Manager in the Philippines

LOCATION: Manila, Philippines

Our client is in the Philippines. His prospective employer-sponsor was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he has a registered nurse license and the proffered position for him was a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a registered nurse. He also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on March 6, 2017 via premium processing. We included a 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 the nurse manager position falls under a Schedule A and EB2 designation.

Eventually, on March 21, 2017, the USCIS Texas Service Center approved his EB-2 I-140 petition.

After the approval of the I-140 petition, our client retained us again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on May 10, 2017, 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 Philippines. On December 18, 2017, our client appeared at the U.S. Embassy in Manila, Philippines. Eventually, on December 27, 2017, the Immigrant Visa was issued for our client.

With the approved Immigrant Visa, our client can come to the United States immediately, and he will get his green card within two months of entry.

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CASE: I-140 (EB-3 Category) / Schedule A

EMPLOYER: Nursing / Rehabilitation Center in Houston, TX

BENEFICIARY: Filipino Registered Nurse in the Philippines

LOCATION: Manila, Philippines

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. He came to the United States and currently studies in the United States on his F-1 status.  His current employer was willing to petition him for a third-preference employment immigrant visa petition (I-140).

Since she is a registered nurse, she 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 in Schedule A.

Our client has a nursing degree and has worked for the sponsor-employer. Our firm told him that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on July 24, 2014 and started on his Prevailing Wage Request.

We filed the I-140 application on November 7, 2014 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  Eventually, on June 24, 2015, the I-140 was approved without any RFE.  

Once his priority date became current, our client retained our office again for his immigrant visa processing. After his I-140 was approved, he went back to the Philippines and waited for his priority date becomes current. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on July 31, 2017, 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 Philippines. On December 7, 2017, our client appeared at the U.S. Embassy in Manila, Philippines. Eventually, the Immigrant Visa was issued for our client.

With the approved Immigrant Visa, our client can come to the United States immediately, and he will get his green card within two months of entry.

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

NATIONALITY: Filipino

LOCATION: San Francisco, CA

Our client is a citizen of the Philippines who came to the U.S. on a J-2 Visa in November 2015.  He came with his mother who came on a J-1 Visa for her teaching program 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, F, and O visas.

After our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He wanted to change his status from J-2 to F-1 in the United States.

He turned 21 in September 2017. He would like to get a waiver because he wanted to change his status from J-2 to F-1. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the 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 September 2017.

Our firm was retained to do his J-2 waiver, and on September 22, 2017, 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 a J-1 visa holder anymore.  Eventually, on October 16, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 14, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Filipino
LOCATION: Cleveland, OH

Our client contacted us in July 2016 to seek legal representation for his naturalization application. He came to the United States from the Philippines and obtained his green card through a family petition in 2009. He retained our office for his naturalization application on July 16, 2016. He had a lot of trips totaling almost two and a half years out of the past five years. He also had a trip that lasted between six months and one year.

His N-400 application was filed on July 20, 2017 with all necessary supporting documents. We included a brief to rebut the presumption of discontinuation of his residency due to his “over six month” trip.

Our office prepared him for his interview. Our client appeared at his naturalization interview on October 19, 2017 at the Cleveland USCIS Field Office. Attorney JP Sarmiento accompanied our client as well.  Our client answered all questions correctly and passed his citizenship interview. His N-400 was approved on November 9, 2017. His oath taking is scheduled where he will become a U.S. Citizen.

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CASE: H-1B Visa Petition

PETITIONER: School in New Mexico

BENEFICIARY: Filipina Middle School Math Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a non-profit organization affiliated with five institutions of higher education. They contacted our office in September 2017 to seek legal assistance from our office for their foreign employee. The beneficiary is a Middle School Math Teacher from the Philippines.  

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

In the first week of April, the numerical cap of H-1B visas for fiscal year 2018 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 October 13, 2017, 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 October 18, 2017.  She can now work for her employer for three years on an H-1B status.

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CASE: I-130 / I-485 Adjustment of Status

NATIONALITY:  Filipina

LOCATION: Montana

Our client came from the Philippines on a J-1 in September 2014 to work as a teacher. Based on her DS-2019, she was subject to the two-year foreign residency requirement.

In August 2016, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On December 7, 2016, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Montana State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in Chicago for further authentication.  On March 23, 2017, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On June 22, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on July 6, 2017, the USCIS issued an I-612 approval notice for the waiver.

Once her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on July 28, 2017.  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 November 2, 2017, our client was interviewed at the Helena, Montana USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

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