CASE: PERM Labor Certification    
EMPLOYER:  Hydraulic Unit Manufacturing Company in Texas
BENEFICIARY: Filipino Hydraulic Power Unit Design and Installation Project Manager

Our client is from the Philippines. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Bachelor’s degree in Maritime Transportation and has more than 5 years of work experience as a Hydraulic Equipment Installer / Operator. After talking to our client, our firm concluded that his employer can petition him as a Hydraulic Power Unit Design and Installation Project Manager. Based on our client’s educational, professional and work background, our office determined that he is eligible for EB-2 classification.

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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On September 12, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on January 10, 2017.  On May 3, 2017, we promptly filed PERM.  Eventually, on August 11, 2017, the PERM Labor Certification was approved – an EB2 position for the Filipino beneficiary. Now our client can file the I-140 petition.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: New York

Our client came from the Philippines on a J-1 in April 2015 to work as a visiting research fellow. According to her DS-2019, she was subject to the two-year foreign residency requirement.

In November 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 23, 2016, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New York 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 New York for further authentication.  On February 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 July 6, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on July 25, 2017, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client is from 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 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 Master’s Degree in Nursing degree. 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 February 26, 2016 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.

However, on March 10, 2016, the USCIS Texas Service Center issued Request for Evidence (RFE) and requested our client to submit his prospective employer’s most recent tax return record and his degree evaluation report. Our office prepared the response and filed the Response to RFE on March 14, 2016. Eventually, on March 25, 2016, the USCIS Texas Service Center approved his EB-2 I-140 petition.

Once his I-140 was approved, our client retained our office again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on May 5, 2016, 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 the Philippines. His interview was scheduled in October 2016 initially; however, due to his health, the interview was re-scheduled. On June 28, 2017, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued his immigrant visa.

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: Employment Based Adjustment of Status (Derivative Applicant) / 245(i)

CLIENT: Filipino

LOCATION: Indiana

Our Filipino client came to the U.S. in June 2001 with a valid B-2 visitor’s visa. He has remained in the United States since then. He married his current spouse in June 2002 and she obtained her permanent residency in 2016 through an employment petition. Our client’s wife was the beneficiary of labor certification that was filed before April 30, 2001 and she was physically present in the United States before December 2000.

Our client contacted us around November of 2016 for consultation and sought legal assistance for his adjustment of status. He was not sure whether he could be a derivative applicant of the adjustment of status based on his wife’s I-140 approval and his eligibility under INA 245(i). Nonetheless, after consultation, we determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on December 1, 2016.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

However, aforementioned requirements were not met for our client since he was not a beneficiary of any I-130 / I-140 petition which was filed prior to April 30, 2001. He was not also physically present in the United States prior to December 2000. Nonetheless, there is a controlling BIA case for our client’s situation. In Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), the BIA held that:

“Although not grandfathered, qualifying after-acquired spouses and children are still able to benefit from section 245(i) of the Act in certain circumstances. The Supplementary Information to the interim rule clarifies that a dependent spouse or child – if eligible under section 203(d) of the Act  – who is accompanying or following to join a grandfathered adjustment applicant is “considered to be grandfathered” if the qualifying relationship existed before the grandfathered alien adjusts his or her status…. Such spouses and children are able to benefit from section 245(i) of the Act by virtue of their status as dependents under section 203(d), which provides that a spouse or child who is accompanying or following to join a principal beneficiary of an immigrant visa is entitled to the same status as that alien. Thus, when a grandfathered alien applies for adjustment of status under section 245(i) as the principal adjustment applicant, his or her dependent spouse or children are eligible to adjust status under that section notwithstanding the fact that they are not grandfathered aliens.

As mentioned above, our client married his wife in June 2002. His wife filed her adjustment of status application by virtue of an approved and current I-140 petition filed for her and invoked INA 245(i) in the process as the principal beneficiary. By virtue of 245(i), our client’s wife obtained her permanent residency in September 2016. Thus, based on Matter of Estrada and Estrada, our office argued that our client is able to benefit from section 245(i) by virtue of his status as spouse who is following to join a principal beneficiary under 245(i) since the qualifying relationship (their marriage in 2002) existed before the grandfathered alien (our client’s wife) adjusted her status (adjustment in 2016 through 245(i).

On December 20, 2016, our office filed his I-485 adjustment of status application and I-485 Supplement A under the 245(i) category for our client.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  Eventually, on July 19, 2017, our client’s I-485 adjustment of status application was approved.

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CASE: I-130 (Petitions for Parents) and Adjustment of Status

CLIENT: Filipinos

LOCATION: Maryland

Our client retained us to petition his parents for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States in 2016. He contacted our office in November 2016 and discussed with us the green card process. His parents are in the United States and have maintained their status (H-1B and H-4). After consultation, he retained our office on November 2, 2016.

Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 1, 2016 for his parents.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  Eventually, on July 12, 2017, our client’s parents’ adjustments of status applications were approved. Now, they are green card holders.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino Nurse Manager in the Philippines

LOCATION: Houston, TX

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 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 master’s degree in nursing and 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 July 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 July 17, 2017, 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 immigrant visa application.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Montana

Our client came from the Philippines on a J-1 visa in September 2014 to work as a teacher. According to 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. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                                        

LOCATION: Cleveland, Ohio

Our client is from the Philippines who came to the U.S. on a J-1 exchange visitor’s visa in March 2016. Her J-1 program was not subject to the 212(e), two-year foreign residency requirement. In January 2017, our client married her current U.S. citizen husband.  She retained our office on February 15, 2017, for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on March 21, 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 at our office as well. On June 26, 2017, our client was interviewed at the Cleveland Ohio USCIS office. Attorney Sung Hee (Glen) Yu, a partner for our office also accompanied our clients as well. Eventually, on the same day of the interview, her green card application was approved.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Little Rock, AR

Our client came to the United States as an H-1B visa holder to teach in the U.S. in 2007. Her H-1B status reached the maximum 6 years, but her current employer accepted her for a teaching position on a J-1 status. She changed status from H-1B to J-1 and her current employer was willing to file an I-140 employment petition for her permanent residency. However, 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. Her J-1 is subject to the two-year foreign residency requirement. It is much harder to obtain a no objection statement from the Philippines if you don’t have a US Citizen spouse or child, but we thought there was enough factors in her case to warrant 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 4, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Arkansas 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 January 21, 2016, 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 the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on April 10, 2017, the USCIS issued an I-612 approval notice for the waiver.

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CASE: Immigrant Visa / I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino Registered Nurse in the Philippines

LOCATION: Petitioner: Des Plaines, IL / Beneficiary: Manila, Phlippines

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Illinois. Currently, he is working at a hospital in the Philippines as a nurse. His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of December 2008.

Since he 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.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told him that his potential employer can petition him as a Registered Nurse under the schedule A category. More importantly, since the priority date of his previous I-140 was current, he can eventually apply for his immigrant visa via consular processing. Our office was retained on September 21, 2016 and started on his Prevailing Wage Request.

We filed the I-140 application on December 18, 2015 via regular processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Later, we upgraded our client’s I-140 petition to premium processing. Eventually, on June 2, 2016, the I-140 was approved and it retained our client’s old priority date.  

Once his I-140 was approved, our client retained our office again for his immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on October 28, 2016, 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 the Philippines. On June 8, 2017, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued his immigrant visa.

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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