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

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 is still in the Philippines and her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (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 a registered nursing license in the state of Texas. 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 6, 2015 and started on her Prevailing Wage Request.

We filed the I-140 application on August 25, 2015 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  However, on September 9, 2015, the USCIS Texas Service Center issued the Request for Evidence (RFE). According to the RFE, the USCIS requested our client to submit her degree evaluation report. Our office filed the Response to RFE with our client’s degree evaluation report on September 15, 2015. Eventually, on September 24, 2015, the I-140 was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Peruvian

LOCATION: Dallas, TX

Our client came to the United States in July 2009 with a B-2 Visitor’s visa from Peru. Later, she married a U.S. Citizen in June 2014 and retained our office for her petition and adjustment of status application.

She also asked us to file her son’s (Petitioner’s step-son) adjustment of status application.

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 22, 2014. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients through conference calls. On September 15, 2015, our clients were interviewed at the Dallas (Irving), Texas USCIS office. On the same day, our client and her son’s green card applications were approved.

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CASE:  I-485 Adjustment of Status with step-father’s I-130 petition

CLIENT: Korean

LOCATION: Houston, TX

Our client is from South Korea who came to the U.S. in 1999 with a B-2 visitor’s visa when he was a young child. Since that time, he never left the United States.

In 2011, our client’s mother married our client’s step-father (U.S. citizen) and later she got her green card through the marriage. However, our client was not properly advised by his previous immigration counsel and thought that he was not eligible for adjustment. He was eligible to file an adjustment of status along with his step-father’s I-130 petition for him since his mother and his step-father’s marriage occurred prior to our client’s 18^th birthday and he was under 21 years old when he contacted our office.

Our client contacted us around April of 2014 for consultation and sought legal assistance for his DACA case initially. After consultation, we determined that he is eligible for adjustment of status along with his step-father’s I-130 petition. Our client retained us on May 6, 2014.

Once retained, our office filed the I-130 petition and I-485 his adjustment of status application, together with other supporting documents. Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  We thoroughly prepared our client prior to his green card interview.  On September 3, 2015, our client was interviewed at the Houston USCIS office. Attorney Sung Hee (Glen) Yu accompanied him at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s eligibility. On the same day, our client’s I-485 application was approved.  He finally became a green card holder.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client came from 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 July 30, 2015 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 August 7, 2015, the USCIS Texas Service Center issued the Request for Evidence (RFE) for our client’s I-140 petition. In RFE letter, the USCIS requested our client to demonstrate her past experience and Petitioner’s new tax records. In response to RFE, our office prepared and filed the Response to RFE on August 25, 2015 including our client’s past experience letter from the Philippines and the Petitioner’s tax documents.

Eventually, on August 31, 2015, 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 her adjustment of status application.

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

NATIONALITY: Turkish

LOCATION: Texas

Our client is a citizen of Turkey who came to the U.S. on a J-2 Visa in October 2007.  He came with his father who came on a J-1 Visa for his research program 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.

After our client came to the United States, he completed his high school and was admitted to a University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2012. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the requirement or the getting a waiver approved.

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 October 2012.

Our firm was retained to do his J-2 waiver, and on May 27, 2015, 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 July 22, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On August 26, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement

NATIONALITY: Indonesian

LOCATION: Texas

Our client is from Indonesia who came to the U.S. on a J-1 Visa in August 2014.  He came to the U.S. for Internship training. His J-1 program made him subject to the two-year foreign residency requirement.

 In May 2015, our client married his U.S. Citizen wife.  He is eligible to get a green card through his marriage to U.S. citizen; however, before he file his I-130/I-485 application simultaneously, he has to get a waiver of his two-year foreign residency requirement. In order to get a waiver of his two-year foreign residency requirement, he consulted with our office and later decided to retain our office on May 15, 2015.

Once retained, our office promptly prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office and our client contacted the Indonesian Embassy in Washington D.C. to pursue the waiver for our client.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of valid Indonesian passport, and a copy of Form DS-3035 application.

On May 28, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a marriage based adjustment of status on an I-130 Petition.

The Indonesian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS receipted the fee and issued an I-612 approval notice for our client’s waiver of the two-year foreign residency program on August 17, 2015.  Now, our client can file his adjustment of status application along with an I-130 petition.

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CASE: Registered Nurse 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. She came to the United States and currently studies in the United States on her F-1 status. Her current employer was willing to petition him for a third-preference employment immigrant visa petition (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 worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on July 24, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on November 7, 2014 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  Eventually, on June 24, 2015, the I-140 was approved without any RFE.  Our client can file an I-485 adjustment of status application once her priority date becomes current provided she maintains status throughout. 

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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.

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CASE: I-485 adjustment of status based on Approved I-140 (EB-2)

APPLICANT: Zambian Business Operating Manager

LOCATION: Texas

Our client is a business operating manager from Zambia, who used to work at a radio broadcasting company in Texas under his OPT program. While he was working there, the company was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Business Administration and has worked for this company for a year under the OPT program. Currently, our client is in F-2 status.

After talking to our client, our firm concluded that his potential employer can petition him as a Business Operating Manager. Based on our client’s educational, professional and working background as an engineer and management analyst, our office determined that he is eligible for EB-2 classification.

Prior to filing the PERM labor certification, 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 Labor Certification 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.  On January 9, 2014, we filed the PERM labor certification application.  Eventually, on June 23, 2014, the PERM labor certification was approved.

Once the PERM was certified, we then proceeded with the I-140 petition filing. Our office submitted the “ability to pay” letter for the I-140 petition application on July 11, 2014 via premium processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. However, on July 23, 2014, the USCIS Texas Service Center issued a Notice of Intent to Deny for our client’s I-140 petition. According to the Notice of Intent to Deny, the USCIS requested the Petitioner to prove “ability to pay” for beneficiary’s proposed salary. In response to that, our office showed the beneficiary’s previous pay stubs and demonstrated that his previous salary was over and above the prevailing wage for his proposed position. Our office filed Response to Notice of Intent to Deny including a 7-page brief and supporting evidence to overcome the CIS’ arguments on August 11, 2014.

Eventually, the USCIS approved the I-140 petition on August 15, 2014. Once the I-140 petition was approved, our client retained our office again for his and his family’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our client and his derivative family members on August 21, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on April 20, 2015, the USCIS issued Request for Evidence for our client’s I-485 adjustment of status application. The USCIS requested our client to explain the connection between his OPT employment and the degree conferred to him in the United States. In response to the RFE, our office filed a response brief with his previous employer’s attestation regarding the job duties of our client. We filed the RFE response to the USCIS on May 13, 2015.

Eventually, on May 27, 2015, the USCIS Texas Service Center approved our client and his family members’ adjustment of status applications. Now, our client and his family finally are green card holders.

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

EMPLOYER: Physician’s Office

BENEFICIARY: South Korean Nurse Practitioner

LOCATION: Greater Houston Area, TX

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 Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on June 10, 2014 and we filed a Prevailing Wage Determination Request immediately.

We filed the I-140 application on October 6, 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 21, 2014, without any Request for Evidence (RFE), the USCIS Texas 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 December 9, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on April 16, 2015, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder. 

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