CASE: I-130/I-485 / J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Alaska

Our client came from the Philippines on a J-1 in August 2012 to work as a speech teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In May 2015, 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 May 20, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Alaska 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 July 29, 2015, 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 October 8, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 3, 2015, 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 December 9, 2015.  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 January 10, 2017, our client was interviewed at the Anchorage, Alaska 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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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Exceptional Hardship

NATIONALITY:  Filipina

LOCATION: Seattle, WA

Our client came from the Philippines on a J-1 visa in 2008.  She got her J-1 status as a recipient of the Fulbright Scholarship in the United States and her J-1 status made her subject to the two-year foreign residency requirement. Later, she changed her status from J-1 to F-1 and maintained her non-immigrant visa status. In 2012, she married her U.S. citizen husband. She would like to file her adjustment of status application along with her husband’s I-130 petition for her. However, due to her two-year foreign residency requirement, she has to get the waiver or fulfill the requirement before she files the adjustment of status application.  

Unlike our other J-1 clients, our client could not pursue her waiver under No Objection Statement or Interest Government Agency (IGA). Our client also received government funding (Fulbright Scholarship) for her research programs which made her case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue her J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen husband is experiencing exceptional medical hardships.

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.”

Some of the factors in analyzing exceptional hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

After she retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On September 10, 2015 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared affidavit of our client, extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen husband’s medical conditions.  On September 24, 2015, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to the Philippines for two years.

Eventually, the USCIS approved her I-612 waiver on December 15, 2016. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition.  

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                                        

LOCATION: Houston, TX

Our client is from the Philippines who came to the U.S. on a B-2 Visitor’s Visa in April 2011.  In September 2015, our client married her current U.S. citizen husband.  She retained our office in October 2015 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 5, 2015.  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 as well. On December 8, 2016, 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 December 9, 2016, her green card application was approved.

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CASE: Follow-to-join based on approved I-140 for husband and I-485 adjustment of status

CLIENT: Filipina Client in Miami, FL

Our client contacted our office in November 2014 for her adjustment of status case. Her husband was a beneficiary of an EB-3 I-140 petition from his prospective employer, and got his green card in July 2014. Our client and her husband have been married since May 2010 before her husband got his permanent residency. Thus, she was eligible follow-to-join and adjustment of status based on her husband’s I-140.

She came to the United States in October 2014 on a valid B-2 visitor’s visa. She did not know that she was eligible for the adjustment of status when she came to the United States, but later learned that she would be eligible for the adjustment of status filing. After the consultation with our office, she retained our office on December 18, 2014.

Once retained, we prepared and file our client’s adjustment of status application along with supporting documents to USCIS on December 22, 2014.  However, the priority date of Eb-3 category for the Philippines national backlogged. Our client had to wait until the priority date becomes current. In October 2016, her priority date becomes current. The USCIS requested our client to submit her new immigration medical record and our office submitted it to the USCIS on October 20, 2016. Eventually, our client’s adjustment application was approved by the USCIS on November 14, 2016.  After a long wait, our client is finally a green card holder.

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CASE: Change of Status from B-2 to F-1

CLIENT: Filipina

LOCATION: Anaheim, CA

Our client came from the Philippines on a valid B-2 visa in February 2016. Later, she decided to study further in the United States and get admission. She retained our office for her I-539 Change of Status application to change her status from B-2 to F-1 to the USCIS.

Once retained, we helped our client obtain supporting documents for the Change of Status. We filed I-539 Change of Status application along with supporting documents to USCIS on May 19, 2016. In the application, we fully explained her financial ability to pursue her studies in the U.S., and reasons for her studies. Eventually, on October 11, 2016, the Change of Status was approved. Our client is now on F-1 and can start her program.

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CASE: I-485 Adjustment of Status / I-140 (EB-3 Category) / Schedule A

BENEFICIARY: Filipina Registered Nurse

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Prior to retaining us, she was working at a nursing / rehabilitation center in the greater Houston area under an H-1B status. Her current employer was willing to petition her 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 November 2009.

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.

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 her that her current employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on October 29, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on January 7, 2015 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on January 15, 2015, the I-140 was approved and it retained our client’s old priority date.  

Once the I-140 petition was approved, our client retained our office again for her and her family members’ I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our client and her family members on February 11, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, while the applications were pending, the EB-3 priority dates for the Philippines nationals were retrogressed so that our client cases could not be adjudicated.  

Her priority dates became current again in 2016. However, on August 25, 2016, the USCIS issued the Request for Evidence for our clients for their new medical records. Our client and her family members submitted their new medical records to the USCIS on October 4, 2016. Eventually, on October 27, 2016, the USCIS Texas Service Center approved our client and her family members’ adjustment of status applications. Now, she finally is a green card holder.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino

LOCATION: Beneficiary: Thailand / Petitioner: Houston, TX

Our Filipino client was working in Thailand as a nurse coordinator. His prospective employer-sponsor in Texas 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 Bachelor’s degree in nursing and 5 years of experience as a nurse coordinator and a coordination 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 February 16, 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 2, 2016, the USCIS Texas Service Center issued the Notice of Intent to Deny (NOID) for our client’s I-140. The USCIS alleged whether our client’s past experience letters from Thailand were genuine. We submitted new past experience letters and submitted the response to NOID on March 11, 2016.

Eventually, on March 17, 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 16, 2016, who in turn forwarded the client’s materials to the U.S. Embassy in Bangkok, Thailand. An interview notice was set for the client at the U.S. Embassy in Thailand. On October 4, 2016, our client appeared at the U.S. Embassy in Bangkok, Thailand. 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: 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: Manila, Philippines

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. 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 July 2008.

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 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 July 22, 2014 and started on his Prevailing Wage Request.

We filed the I-140 application on March 15, 2015 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on March 23, 2015, the I-140 was approved and it retained our client’s old priority date.  

Once his priority date became current, 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 12, 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 Philippines. On August 15, 2016, our client appeared at the U.S. Embassy in Manila, Philippines. Eventually, on October 25, 2016, 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-130 and Consular Processing (Immigrant Visa) – Marriage-Petition

Our client is a U.S. citizen who married his wife in the Philippines in February 2016.  After the marriage, he came back to the United States and contacted our office and retained us to bring his wife to the States.

Our office prepared and filed an I-130 petition for his wife to the USCIS on April 22, 2016. After the I-130 petition was filed, everything went smoothly, there were no requests for evidence, and the receipt notice came on time. The I-130 Petition was approved on June 15, 2016.

After the I-130 approval, we filed the immigrant visa packets to the National Visa Center on July 21, 2016, who in turn forwarded our client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Manila, and we prepared her for the interview. On October 19, 2016, the interview was conducted.  Eventually, after the interview, the U.S. Embassy in Manila, 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 within two months of entry.

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CASE: PERM Labor Certification

EMPLOYER: Public School

BENEFICIARY: Filipino Middle School Language Arts Teacher

LOCATION: New Mexico

Our client is currently working as a language arts teacher whose current employer was 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 work experience. He has been working for his current employer under H-1B status. 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 2015.

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 November 20, 2015.  On February 16, 2016, we promptly filed PERM.

However, on June 23, 2016, the Department of Labor issued a request for 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 July 6, 2016.  

Eventually, on September 30, 2016, the PERM Labor Certification was approved – an EB2 position for the Filipino beneficiary. Since his priority date is current, our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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