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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. She came to the United States in 2013 and now she is on an F-1 student status, and 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 2012.

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. Our office was retained on November 17, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on April 29, 2015 via regular processing. We also concurrently filed her I-485 adjustment of status since EB-3 priority date for our client was current at the time of her I-485 filing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents. Later, on May 13, 2015, our client upgraded her I-140 processing from regular to premium processing.

However, the USCIS issued a Request for Evidence (RFE) for our client’s degree evaluation document. Our office filed Response to RFE on May 29, 2015. Eventually, on June 2, 2015, the I-140 was approved and it retained our client’s old priority date.  Our client’s adjustment of status application will be approved once her priority date becomes current again.

{ 2 comments }

CASE: I-485 adjustment of status based on approved I-140 (EB-2 Category) / Schedule A

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Michigan

Our client is from the Philippines and 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 mental health program nurse manager, 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 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 Mental Health Program Nurse Manager should be included in Schedule A.

Our client has a Bachelor’s degree in nursing and a Master’s degree in psychology. She also has a registered nursing license in the state of Michigan. Our office was retained on July 25, 2014 and we started on the Prevailing Wage Determination filing and other related matters.

After the prevailing wage was determined, we filed the I-140 application on September 24, 2014 via premium processing. We included the 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 mental health program nurse managers must fall under Schedule A designation and Eb-2 classification. 

On October 1, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Once the I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on October 7, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 27, 2015, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder. 

{ 0 comments }

CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. 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 December 2012, 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 9, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California 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 San Francisco for further authentication.  On February 16, 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 April 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on May 19, 2015, 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.

{ 0 comments }

CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Miami, FL

Our Filipina client came to the United States on a B-2 visitor visa in June 2014. Later, she married a U.S. Citizen in September 2014 and retained our office on September 29, 2014 for her green card application. Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 26, 2014.  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 March 2, 2015, our client was interviewed at the Miami, FL USCIS office.

However, after the interview, the USCIS officer requested more evidence to show the bona fide nature of our client’s marriage to her U.S. citizen husband. With our guidance, our client prepared and submitted more evidence to show  the bona fide nature of her marriage. Eventually, on May 11, 2015, the USCIS approved our client’s I-485 adjustment of status application. Now, she is a green card holder. 

{ 0 comments }

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

EMPLOYER: Physician’s Office

BENEFICIARY: Filipina Nurse Practitioner

LOCATION: Petitioner is in Honolulu, Hawaii; Beneficiary is in Manila, Philippines

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was 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 Nurse Practitioner is included in Schedule A.

Our client has a Bachelor and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on June 10, 2014 and we started the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on September 25, 2014 via premium processing. We included the 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 nurse practitioners must fall under the Schedule A designation.  On October 7, 2014, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

After 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 January 12, 2015, 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 May 11, 2015, 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.

{ 0 comments }

CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipino

LOCATION: Chicago, IL

Our client contacted us in January 2015 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from the Philippines and obtained his green card in June 2005 through his family’s petition. Our client would have filed his naturalization application before; however, he was hesitant to file it because of his criminal conviction and the related misrepresentation (not putting his DUI conviction on his immigrant visa application).

Before he became the green card holder, he came to the United States as a tourist and committed a DUI offense. He was convicted and he properly paid his fine. Thereafter, he went back to the Philippines before his authorized stay expired. However, when he applied for his immigrant visa, he did not disclose this DUI record. Nevertheless, his immigrant visa was issued and he became a green card holder in the U.S.

On his most recent trip abroad, at the point of entry, the CBP officer stopped him, and asked him about his DUI record. He disclosed it and eventually was let in. At that point he worried about any potential naturalization application because this DUI was not disclosed on his immigrant visa application prior to him gaining permanent residency.

Although he was admitted into the U.S., he started to worry about his permanent residency and eligibility to file his naturalization application. When he contacted our office, we thoroughly explained him that there an argument that could be made regarding his N-400 eligibility despite the aforementioned issue. He retained our office on January 7, 2015.

The N-400 application was filed on January 27, 2015. The application actually include a “yes” regarding previous misrepresentation but included a detailed explanation of it.

According to 9 FAM 40.63 N2, in order to find an alien inadmissible under INA 212(a)(6)(C)(i), it must be determined that:

(1)   There has been a misrepresentation made by the applicant 

(2)   The misrepresentation was willfully made; and

(3)   The fact misrepresented is material; and

(4)   The alien by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.

According to 9 FAM 40.63 N6.1 “Materiality” Defined:

“Materiality does not rest on the simple moral premise that an alien has lied, but must be measured pragmatically in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien’s application for a visa. The Attorney General has declared the definition of “materiality” with respect to INA 212(a)(6)(C)(i) to be as follows: “A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(1)   The alien is inadmissible on the true facts; or

(2)   The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible

Section 212(a) delineates several crimes and convictions that render a person inadmissible, such as crimes of moral turpitude, controlled substance violations, and aggravated felonies among others. Misdemeanor DUIs are not included.

Finally, the William Yates Interoffice Memorandum by the USCIS issued on September 19, 2005 is the seminal memorandum regarding good moral character determinations in naturalization applications. Based on the memorandum:

“One of the basic eligibility requirements for naturalization is that of establishing good moral character. An applicant for naturalization must show that, during the statutorily prescribed period, he or she has been and continuous to be a person of good moral character…

Proper application of 8 C.F.R. § 316.10(b)(3)(iii) requires that naturalization adjudicators not seize upon minor unlawful acts committed by an applicant without engaging in an individualized analysis of whether the commission of those acts does in fat reflect adversely upon the applicant’s moral character.”

Our argument lied on the premise that the underlying facts would not have rendered him inadmissible, the misrepresentation was not material, and finally, that is beyond the 5-year statutory period for “good moral character”.

Prior to his citizenship interview, our office thoroughly prepared him via conference calls. On May 12, 2015, our client appeared at the Chicago, IL USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved only 2 days later on May 14, 2015. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

{ 0 comments }

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

CLIENT: Filipina

LOCATION: Irvine, CA

Our client retained us to petition his mother for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States in 2014 through our firm’s legal assistance. He contacted our office in late April of 2014 and discussed with us the green card process for his mother. After consultation, he retained our office again on May 1, 2014.

Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 23, 2014. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Eventually, on April 20, 2015, our client’s mother’s adjustment of status application was approved. Now, she is a green card holder

{ 0 comments }

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino

LOCATION: Houston, TX

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 works in the United States with his H-1B status.  His current employer was willing to petition him for a third-preference employment immigrant visa petition (I-140).

Since he is a registered nurse, he is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included 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 April 10, 2014 and we started on his Prevailing Wage Request.

We filed the I-140 application on June 25, 2014 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. On April 18, 2015, the I-140 was approved. Now, our client can file an I-485 adjustment of status application based on the approved I-140 petition since his priority date is current in the month of April 2015.

{ 0 comments }

CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period was expired, she has remained in the United States.

In March 2014, 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 August 29, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate General in San Francisco for further authentication.  On November 4, 2014, 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, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on April 6, 2015, 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.

{ 0 comments }

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

CLIENT: Filipino

LOCATION: Portland, OR

Our client came from the Philippines and he was working in Oregon on an H-1B visa. Since 2011, our client and his current U.S. citizen spouse were in a relationship.

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.

After DOMA was struck down, our client and his current U.S. citizen spouse, decided to get married. They married in Sacramento, CA in February 2014 where same-sex marriage is recognized. Our client contacted our office and retained us on August 8, 2014 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 August 15, 2014. 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 April 1, 2015, our client was interviewed at the Portland, Oregon USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well. The interview went well and his green card application was approved on the same day.

{ 0 comments }