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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client is in the Philippines. Her prospective employer-sponsor is 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 petition 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 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 September 20, 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.

Eventually, on September 29, 2016, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file immigrant visa in the Philippines.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a hospital in the Philippines as a nurse. Her prospective 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 March 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 potential 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 3, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on December 9, 2014 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 December 22, 2014, the I-140 was approved and it retained our client’s old priority date.  

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on February 23, 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 23, 2016, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued her immigrant visa.

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

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CASE: Adjustment of Status Based on Approved K-1 Visa

CLIENT: Filipina

LOCATION: Cleveland, OH

Our client came to the United States in January 2016 as a K-1 visa entrant from the Philippines.  Our client is the beneficiary of an approved I-129F petition. She came to the United States as a K-1 Fiancée of a U.S. Citizen whom she married within 90 days of her entry. By law, if you married your petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible to apply for adjustment of status (green card) in the United States. She also has a minor child who came with her with valid K-2 visa.

Our client contacted our office initially in May 2016 and consulted with us for her and her child’s adjustment of status application. After the retention, our firm quickly prepared and filed the I-485 Adjustment of Status Applications on May 6, 2016.  Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  

It is not mandatory to have an adjustment of status interview for an applicant who entered on a K-1 visa.  However, the USCIS may require an interview to test the validity and bona fide nature of the marriage between the Petitioner and Beneficiary. The USCIS did not require an adjustment interview for our client.  On August 28, 2016, her green card application was finally approved. Her child (U.S. citizen’s step-child)’s adjustment of status application was also approved.

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

CLIENT: Filipino

LOCATION: Utah

Our client came from the Philippines with an F-1 student visa in July 2015. He married his U.S. Citizen same-sex spouse in February 2016.

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 the 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 Utah where same-sex marriage is recognized. Our client contacted our office and retained us on March 23, 2016 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 April 8, 2016. 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 August 30, 2016, our client was interviewed at the Salt Lake City, Utah USCIS office. The interview went well and his green card application was approved on the same day.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: Chicago, IL

Our client contacted us in March 2016 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from the Philippines and obtained her green card in February 2012 through marriage to her U.S. Citizen husband. She retained our office on March 14, 2016.

The N-400 application was filed on April 8, 2016 with all supporting documents. Prior to her citizenship interview, our office prepared her through conference calls. On August 15, 2016, our client appeared at the Chicago, IL USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, her application was approved on August 17, 2016. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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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 November 2013 to work as a 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 October 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 prepared and filed 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 November 2, 2015, 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 of the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate General in Chicago for further authentication.  On January 5, 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 March 9, 2016, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on March 24, 2016, 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 I-485Adjustment of Status Application on May 11, 2016.  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 August 18, 2016, 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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CASE: I-751

APPLICANT: Filipina

LOCATION: Tennessee

Our client contacted our office in May of 2014 regarding her I-751 application.

She is from the Philippines and she married a U.S. citizen in July 2007. Through her marriage, she obtained a 2-year conditional green card in March of 2008.  Her conditional residency terminated in March 2010.

To comply with immigration requirements, our client and her husband should have filed an I-751 Joint Petition to Remove Conditions before March 2010. However, due to financial and health related reasons for our clients, they could not file the I-751 application on time.

However, the USCIS still allows the I-751 applicant to file his or her I-751 application as long as there is a good cause for the late filing. She was placed in removal proceedings because she did not remove conditions on her residency.

In May 2014, the Memphis Immigration Court terminated her removal proceedings. She then retained our office for the I-751 filing. Once retained, our office prepared an I-751 application for our client with bona fide marriage evidence and a letter to explain their late filing.

On May 11, 2015, our office filed an I-751 application to the USCIS with affidavits of applicant and her husband to explain their late filing and other joint documents to demonstrate the bona fideness of their marriage.

On December 10, 2015, the USCIS issued a Request for Evidence (RFE) and asked our clients to submit more evidence regarding the bona fide nature of their marriage. We filed an extensive Response to RFE to the USCIS with more bona fide marital documents on March 2, 2016. The USCIS scheduled an I-751 interview for our client. Prior to the interview, our office thoroughly prepared our clients via conference calls and informed them of potential issues at the interview.

On July 19, 2016, our client was interviewed for her I-751 application at the USCIS Memphis, TN Field Office.  The USCIS approved our client’s I-751 application after the interview. She now has her 10-year green card.

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CASE: I-140 (Derivative Beneficiary) and Adjustment of Status

CLIENT: Filipino

LOCATION: Houston, TX

Our client retained us for his green card application. Our client was born and raised in the Philippines, and has maintained his non-immigrant status lawfully in the United States. His wife became the beneficiary of an approved EB-3 I-140 petition from her employer. Thus, our client could file his I-485 adjustment of status application once the priority dates become current.  Our office was retained on April 6, 2015.

Once retained, our firm prepared and filed the Adjustment of Status Application on April 24, 2015.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time.  However, the priority date retrogressed in 2015 for our client’s case and his adjustment of status application remained pending.

On June 6, 2016, the USCIS issued a Request for Evidence for our client and asked him to submit any evidence to prove his lawful status in the United States from his last. Our office gathered the evidence from our client, prepared the response, and filed the Response to RFE on June 28, 2016. Eventually, on July 8, 2016, our client’s adjustment of status application was approved. Now, he is a green card holder.

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CASE: I-130 / I-485

NATIONALITY: Philippines

LOCATION: South Carolina

Our client came from the Philippines on a J-1 in July 2008 to work as a teacher. She was subject to the two-year foreign residency requirement. After her authorized period of stay expired, she remained in the United States.

In April 2011, 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 the No Objection Statement (NOS) route from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On September 21, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the South Carolina 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 Philippine Consulate in D.C. for further authentication.  On November 20, 2012, 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 29, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 12, 2015, the USCIS issued an I-612 approval notice for the waiver.

Once she gets the waiver, she retained our office again for her and her daughter’s adjustment of status application. Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on November 3, 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. On March 28, 2016, our clients were interviewed at the Charleston, South Carolina USCIS office. After the interview, however, the USCIS issued the Request for Evidence (RFE) and requested our client to submit more evidence to demonstrate bona fide nature of her marriage to her US citizen husband. We promptly filed the Response to RFE and on June 27, 2016, the USCIS approved our client and her daughter’s green card applications.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION:  Cleveland, OH

Our client contacted us in November 2015 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from the Philippines and obtained her green card in May 2008 through her father. Her father became a naturalized citizen before she turned 18. When she went to the U.S. Embassy in the Philippines for her immigrant visa interview, she was told that she automatically became a U.S. citizen because her father became a citizen before she turned 18 (this was wrong because she had no physical presence in the US). Thus, two months after she entered the U.S., she applied for a U.S. passport. She obtained her approved U.S. passport, and thought from then that what she was told at the US Embassy was correct. The passport was actually incorrectly issued.

Later, her applied for an N-600 because she wanted to petition her husband and she needed a naturalization certificate, but it was denied. Her sister was told she had to wait 5 years. So in 2013, she applied for an N-600 again, and she was denied one more time. During her N-600 interview, she explained her situation to the officer and so USCIS learned about the US passport situation. It was then that her sister was advised to do her N-400 application.

Her sister’s N-600 application was denied because she was not a U.S. citizen. The automatic citizenship provision not only requires that her father be naturalized before she turns 18, but also that she be physically present in the US by that time. She did not know about this and she thought what she did was correct because her US passport application was approved. She was told at the U.S. Embassy in the Philippines that she is a U.S. citizen and she applied for her U.S. passport which was approved later.  

The issue in her case is the possibility of “false claim to US Citizenship”, which not only would get her citizenship case denied, but may also place her in deportation. Thus, it was important to thoroughly explain her situation so that fault won’t be attributed to her.

She retained our office on November 5, 2015. The N-400 application was filed on November 20, 2015 with all supporting documents. We included an extensive explanatory memo as well. Prior to her citizenship interview, our office prepared her at our office. On May 3, 2016, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Attorney JP Sarmiento from our office accompanied our client and explained our client’s complicated situation to the CIS officer. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, her application was approved on May 24, 2016. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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