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

NATIONALITY: Filipina

LOCATION: Sacramento, CA

Our client is a citizen of the Philippines who came to the U.S. on a J-2 Visa in July 2018.  She came with her mother who entered on a J-1 Visa for her employment in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

She turned 21 in July 2021.  She wanted to file her I-485 adjustment of status application with her U.S. citizen spouse’s I-130 petition. However, because of her two-year foreign residency requirement, our client cannot adjust her status in the United States without the fulfillment of the requirement or a waiver. 

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in July 2021.

Our firm was retained to do her J-2 waiver, and on September 28, 2021, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on January 19, 2022, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On February 23, 2022, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Visa Extension
PETITIONER:  Public School District in Mohave Valley, AZ
BENEFICIARY: Filipina Elementary School Teacher

Our client is a Public School District in Mohave Valley, AZ. They contacted our office in May 2021 to seek legal assistance from our office for their foreign employee’s H-1B extension.  The beneficiary obtained her Bachelor’s Degree in Elementary Education. The proffered position for the Beneficiary is an Elementary School Teacher which qualifies as a specialty occupation. This proffered position is a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Elementary Education or its equivalent.  The Beneficiary has worked for her employer under H-1B status since August 2018.   

Upon retention, our office filed the H-1B visa petition with various supporting documents on June 14, 2021 via regular processing. Eventually, our client’s H-1B application was approved on February 25, 2022.  Her H-1B is good until June 30, 2024.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client is  Filipina registered nurse who currently works in the Philippines. Her prospective employer was willing to petition for a third-preference employment immigrant I-140.

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

Our client has a nursing degree and has Texas Registered Nursing License. Our firm told her that her prospective employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 15, 2019 and we started on her Prevailing Wage Request. We filed the I-140 application on August 8, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. Without any issuance of Request for Evidence (RFE), on August 17, 2019, the I-140 was approved. 

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 January 26, 2021, 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 Manila. On February 17, 2022, 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: I-130 / I-485

 NATIONALITY: Filipina

 LOCATION: Hobbs, NM

Our client came from the Philippines on a J-1 to work as a teacher. She was subject to the two-year foreign resident requirement. Our client would like to file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

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 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 the exceptional hardship basis. On April 11, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an 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 condition.  On April 12, 2019, our office filed the I-612 application to the USCIS and asked for them to issue and recommend 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. 

On November 14, 2019, the USCIS issued a Request for Evidence (RFE) and asked our client to submit more hardship evidence. Our office prepared the response and filed an extensive Response to RFE to the USCIS on February 3, 2020. Eventually, the USCIS approved her I-612 waiver on August 31, 2020. 

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 -485 Adjustment of Status Application on May 18, 2021.  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 February 22, 2022, our client was interviewed at the El Paso, Texas 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-140 (EB-3)

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Science Teacher

LOCATION: McIntosh, SD

Our client has a current employer that was willing to petition for a third-preference I-140.  Our client has a Bachelor’s degree in Chemistry, a valid South Dakota Teaching license, and has worked for her current employer since August 2016. Based on our client’s education and work background, our office determined that she is clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in February 2020.

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 PW determination, our office filed the job order on May 21, 2020.  On September 1, 2020, we filed PERM. On April 19, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s W-2 copy, and other necessary supporting documents.

The I-140 Petition was filed on May 11, 2021 via regular processing service. On February 12, 2022, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE). 

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CASE: I-751 / Waiver of the Joint Waiver Requirement
APPLICANT: Filipina
LOCATION: Akron, OH

Our client contacted our office in October of 2020 regarding her potential I-751 filing. She is from the Philippines and she married a U.S. citizen in June 2018. Through her marriage with a U.S. citizen spouse, she obtained a 2-year conditional green card in October of 2018. Therefore, her conditional residency terminated in October 2020.

Unfortunately, during their marriage, our client and her ex-husband went through struggles. They lived separately for a while and their divorce was finalized in September 2019. Thus, our client could not file I-751 application jointly with her ex-husband. After consultation, we advised that we can help her file the I-751 application with a waiver of the joint filing requirement. We requested a waiver because our client entered into the marriage in good faith, but the marriage was terminated through divorce or annulment before they can file a joint petition.

On October 16, 2020, our office filed the I-751 application with various supporting documents (including a detailed affidavit) to demonstrate our client’s bona fide marriage with her ex-husband.  In January 2022, the USCIS scheduled our client’s I-751 interview. We prepared our client for her interview via conference calls. On February 11, 2022, our client appeared at the USCIS Cleveland Field Office. Attorney Sung Hee (Glen) Yu from our office also accompanied our client. On the same day of the interview, the USCIS approved our request for the removal of conditions on her permanent resident status. Now, she has her ten-year green card.

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CASE: Immigrant Visa (Consular Processing)

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina Nurse Manager in Manila Philippines

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

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences. 

Our client has a Bachelor’s degree in nursing and has more than five years of experience as a staff nusre. She also has a registered nursing license in the state of Texas. Our office was retained and we started the Prevailing Wage Determination filing. 

Once the prevailing wage was determined, we filed the I-140 application on June 6, 2018 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 the nurse manager position falls under a Schedule A and EB2 designation.

However, on June 18, 2018, the USCIS issued a Request for Evidence (RFE). The USCIS argued that they cannot approve her I-140 petition because the proffered position, Nurse Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Nurse Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to EB-2 classification argument, our office argued that the proffered position has the supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to RFE to USCIS Texas Service Center on July 27, 2018.  Eventually, on August 10, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition. 

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Our office filed the immigrant visa packets to the National Visa Center on November 8, 2019, 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 Manila. On January 21, 2021, our client appeared at the U.S. Embassy in Manila, Philippines. However, the Embassy refused the visa and requested our client to update her DS-260 and obtain the job offer confirmation letter from her prospective employer. Our client submitted all of the requested documents to the Embassy. On February 11, 2022, 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: I-140 (EB-3)

EMPLOYER: Public School District

BENEFICIARY: Filipina High School General Science Teacher

LOCATION: Casa Grande, AZ

Our client has an employer that as willing to do an I-140 Petition. Our client has a Bachelor’s degree in Geology, a valid Arizona Teaching license, and has worked for her current employer since August 2016. Based on our client’s education and work background, our office determined that she is eligible for EB-3 classification for her I-140 petition.  We were retained in April 2020.

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 PW determination, our office filed the job order on August 19, 2020.  On December 4, 2020, we promptly filed PERM. Eventually, on August 18, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s W-2 copy, and other necessary supporting documents.

The I-140 Petition was filed on August 31, 2021 via regular processing service. Eventually, on February 8, 2022, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE).

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Singaporean                                                                                  

LOCATION: North Royalton, OH

Our client is from Singapore who came to the U.S. on a B-2  visa in April 2021. In July 2021, our client married his U.S. citizen wife. He retained our office on August 17, 2021 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 7, 2021.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we thoroughly prepared our clients at our office via conference calls. On February 7, 2022, our client was interviewed at Cleveland, OH USCIS office. Attorney JP Sarmiento, Esq. accompanied our clients as well. Eventually, on February 8, 2022, his green card application was approved.

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CASE: I-140 (EB-3)

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Math Teacher

LOCATION: Casa Grande, AZ

Our client has a current employer that was willing to petition for a third-preference I-140.  Our client has a Bachelor’s degree in Education, a valid Arizona Teaching license, and has worked for her current employer since August 2015. Based on our client’s education and credentials, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client retained us in September 2019.

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 only 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 PW determination, our office filed the job order on February 6, 2020.  On April 13, 2020, we filed PERM. 

On September 24, 2020, the Department of Labor issued an audit request. The DOL requested documents from the 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 October 16, 2020. Eventually, on March 22, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s W-2 copy, and other necessary supporting documents.

The I-140 Petition was filed on April 6, 2021 via regular processing service. Eventually, on January 27, 2022, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE).

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