CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under a J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 5, 2021 via premium processing. Our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on October 5, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER: School District in Forrest City, AR

BENEFICIARY: Filipina High School Math Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in August 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a High School Math Teacher from the Philippines who has been working for this employer for the last several years under a J-1 status. Her J-1 visa was not subject to the 2 year foreign residency requirement. 

The proffered position for the Beneficiary is a High School Math Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, we argued that our client is qualified for cap-exempt petitions since they are a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on September 24, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 7, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

{ 0 comments }

CASE: I-130 and I-485 Marriage Based Petition and Adjustment of Status 

NATIONALITY: Filipina

LOCATION: Junction City, KS

Our client is a citizen of the Philippines who came to the U.S. on a J-2 Visa in August 2017.  She came with her mother who came 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 2020.  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 requirement or the 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 2020.

Our firm was retained to do her J-2 waiver, and on July 10, 2020, 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 October 7, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 28, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

Once her J-2 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-485 Adjustment of Status Application on February 2, 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 October 5, 2021, our client was interviewed at the Kansas City, MO USCIS office. Eventually, her green card application was approved on October 6, 2021.

{ 0 comments }

CASE: PERM EB3 Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipino High School Physics Teacher

LOCATION: Casa Grande, AZ

Our client has an  employer that was willing to do a PERM Labor Certification for him, EB3  Our client has a Bachelor’s degree in Physics for Teachers, a valid Arizona Teaching license, and has worked for his current employer since August 2016. Based on our education and credentials, our office determined that he is clearly eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us 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 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 August 13, 2020.  On November 9, 2020, we promptly filed PERM. 

On June 3, 2021, the Department of Labor issued a request for audit. 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 June 14, 2021.   

Eventually, on September 21, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipino beneficiary. Our client can file the I-140 petition at any time.

{ 0 comments }

CASE: PERM EB3 Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipino High School Biology Teacher

LOCATION: Casa Grande, AZ

Our client has a current employer that was willing to petition him for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Biology, a valid Arizona Teaching license, and has worked for his current employer since July 2016. Based on our education and credentials, our office determined that he is eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us in May 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 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 September 3, 2020.  On November 20, 2020, we promptly filed PERM. 

On June 17, 2021, the Department of Labor issued a request for audit. 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 June 29, 2021.   

Eventually, on September 29, 2021, the PERM Labor Certification was approved – an EB3 position for the Filipino beneficiary. Our client can file the I-140 petition at any time.

{ 0 comments }

CASE: 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 her for a third-preference employment immigrant visa petition (I-140) as a registered nurse. 

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 January 19, 2021 and we started on her Prevailing Wage Request. Her PW request was filed on January 20, 2021. 

We filed the I-140 application on June 14, 2021 via regular processing. We included the job offer letter, notice of filing, financial ability to pay letter, and other necessary supporting documents. Eventually, on September 13, 2021, our client’s I-140 petition was approved without any Request for Evidence (RFE). Now, our client can file an immigrant visa application based on the approved I-140 petition.

{ 0 comments }

CASE: I-130 and I-485 Marriage Based Petition and Adjustment of Status 

 NATIONALITY: Filipina

 LOCATION: Houston, TX

Our client came from the Philippines on a J-1 visa. 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.

Unlike our other J-1 clients, our client could not pursue her waiver under the No Objection Statement or Interest Government Agency (IGA) due to the lack of divorce laws in the Philippines (annulment takes 5 years average). She thus pursued  her J-1 waiver based on the exceptional hardship standard. 

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 extreme 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 July 2, 2018, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared for  affidavit of 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 conditions.  On July 16, 2018, our office filed the I-612 application to the USCIS. Eventually, the USCIS approved her I-612 waiver on February 25, 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 I-485 Adjustment of Status Application on April 7, 2020.  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 September 22, 2021, our client was interviewed at the Houston, Texas USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

{ 0 comments }

CASE: EB-3 I-140

EMPLOYER: Public School District

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: Mohave Valley, 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 Elementary Education, a valid Arizona Teaching license, and has worked for her current employer since July 2014. 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.  Our client eventually retained us in June 2014.

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 October 14, 2019.  On January 10, 2020, we filed PERM. 

On July 29, 2020, 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 August 14, 2020.   

On December 21, 2020, the Department of Labor denied the PERM application due to non-receipt of the Audit response. In this case though, the 45-page audit response (including the audit, the cover letter, and all the supporting documents) was delivered by August 17, 2020, which was way before the deadline of August 31, 2020. Our office filed a Motion to Reconsider to the Department of Labor on December 22, 2020. Eventually, on May 13, 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, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on June 10, 2021 via regular processing service. We also filed her I-485 adjustment of status application simultaneously since her priority date was current. On September 7, 2021, our office filed a premium processing upgrade request to the USCIS upon our client’s request. Eventually, on September 22, 2021, the I-140 EB3 Petition for our Filipina client was approved without any Request for Evidence (RFE).

{ 0 comments }

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Indonesian Registered Nurse 

LOCATION: Seattle, WA

Our client is an Indonesian registered nurse who currently lives in Seattle, WA. Her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140) as a registered nurse. 

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 a Washington 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 March 22, 2021 and we started on her Prevailing Wage Request. Her PW request was filed on March 25, 2021.  

We filed the I-140 application on September 3, 2021 via premium processing. We included the job offer letter, the notice of filing, financial ability to pay letter, and other necessary supporting documents. Eventually, on September 13, 2021, our client’s I-140 petition was approved without any Request for Evidence (RFE). Now, our client can file an adjustment of status application based on the approved I-140 petition.

{ 0 comments }