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Post image for Pharmacist H-1B Case – Successful Motion to Reopen (I-290B) after H-1B Denial, No License, But with Deficiency Letter, H-1B Approval for Healthcare Staffing Company in Ohio and Pharmacist Intern Filipino Beneficiary

CASE: Motion to Reopen (I-290B) / H-1B Visa Petition

PETITIONER: Healthcare Staffing Company

BENEFICIARY: Filipino Pharmacist Intern

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early March to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist in the Philippines who obtained his Doctor of Pharmacy degree in the Philippines. The proffered position for the Beneficiary is a Pharmacist Intern because he does not have any U.S. Pharmacist license. Still, we showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree.

When our client contacted us, the numerical cap of H-1B visas for fiscal year 2014 was not available. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue).

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacist Interns) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 7, 2013 via premium processing.

However, the USCIS California Service Center issued Requests for Evidence (RFE) on May 22, 2014 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the definition of cap-exempt purposes. Also, the USCIS requested additional information regarding the qualifications of Beneficiary for the proffered position.

The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that he could not get a license in Ohio due to what we claimed on the initial application as a lack of social security / status.

Once we received the RFE request, our office prepared the response for the RFE and argued that the prospective places of employment for Beneficiary are non-profit medical research organizations and Beneficiary’s work will be similar to Pharmacist Interns in those hospitals.

We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We also included why he could not take the Board exam (since he does not have a social security number) and did not get a license.We filed this Response to the RFE on May 29, 2014.

Unfortunately, the USCIS denied this case in June 2014. They agreed with our position on the “cap-exempt” issues, however, they did not accept the Ohio Pharmacy Board requirements proof that we submitted showing that they needed a social security number, and that our client did not have one. They instead wanted a deficiency letter.

So our client applied for a license with knowledge that they won’t give it to him, just so that the CIS will be satisfied with the evidence. He indeed got a deficiency letter from Ohio, which we submitted in a Motion to Reopen.

We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow him to obtain a social security number which will lead him to get his license.

Our office filed a Form I-290B (Motion to Reopen) and a detailed brief with exhibits to the USCIS California Service Center on July 9, 2014.  Eventually, our client’s Motion to Reopen was granted by the USCIS on September 15, 2014. Subsequently, his H-1B application was approved on October 1, 2014. Now, the beneficiary can work for the Petitioner from October 1, 2014 for one year.

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Post image for No License, But with Deficiency Letter, Pharmacist Intern H-1B Petition Approval for Pharmacy Petitioner in California and Pharmacist Intern British Beneficiary in the United Kingdom

CASE: H-1B Visa Petition

PETITIONER: Pharmacy in California

BENEFICIARY: British Pharmacist Intern in the United Kingdom

Our client is a pharmacy located in California.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for a prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Pharmacy in the United Kingdom. Also, the beneficiary is a licensed pharmacist in the U.K. and she is currently residing in the U.K. The proffered position for the Beneficiary is a Pharmacist Intern which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing. This H-1B petition was selected after the lottery.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence for the qualifications of Beneficiary for the proffered position. The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that she could not get a license in California due to what we claimed on the initial application as a lack of social security / status.

The USCIS was skeptical and argued that Beneficiary is not qualified for Pharmacist Intern position because she did not have a California Pharmacy license yet. We thus had the beneficiary submit further documents to the California State Board, including fees, in order to receive the deficiency letter (print-outs regarding California’s requirements were initially submitted showing that a social security is needed, but these days, CIS wants an actual deficiency letter… they want you to actually pay and submit an actual application even though your requirements are missing, so that the deficiency letter can serve as your evidence in the H-1B petition) on Beneficiary’s license application from the California State Board of Pharmacy to explain why she could not get her license (she could not get a license because she does not have a social security number).

In the response brief, our office argued that the beneficiary did apply for the California License but she does not have a license yet due to a deficiency in her social security number. We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow her to obtain a social security number which will lead her to get her license. Moreover, our office submitted the documents to demonstrate Petitioner’s business viability (tax return and quarterly wage report) and other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with exhibits to the USCIS California Service Center on September 3, 2014.  Eventually, our client’s H-1B application was approved on September 18, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in London, U.K, and upon the issuance of visa, she can work for the Petitioner from October 1, 2014 for one year.

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Post image for H1B With Cap Exempt and Off Site Employment Issues Approved for Pharmacist Korean Beneficiary and Healthcare Staffing Firm Petitioner in Cleveland Ohio

CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early April to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

When our client contacted us, the numerical cap for H-1B visas for fiscal year 2014 was about to be reached. We could not process this case under the regular cap time frame given the short amount of time we had to prepare for the application. Our client was very disappointed and thought they would have to wait until April 1, 2014. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file.

We told our client that we can argue that they are qualified for some of the exemption provisions of the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding their eligibility despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on April 19, 2013 via premium processing.

However, the USCIS California Service Center issued a Request for Evidence (RFE) on May 2, 2013 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the interpretation of the immigration laws for cap-exempt organizations. After we received the RFE request, our office prepared the response and argued that the prospective places of employment for Beneficiary are non-profit medical research organization and Beneficiary’s work will be similar to Pharmacists of those hospitals.  We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We filed this Response to the RFE on June 14, 2013.

After our Response to RFE was received by the USCIS, our client’s H-1B application was approved on June 21, 2013.  She can now work for her employer for three years on an H-1B starting June 21, 2013.

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For other H-1B success stories, please click here.

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Also feel free to contact our office anytime for free consultations.

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Post image for H-1B With Cap Exempt and Off Site Employment Issue Approval for Pharmacist Korean Beneficiary and Healthcare Staffing Firm Petitioner in Cleveland Ohio

CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics.

They contacted our office in late of October to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was already reached. Our client was very disappointed and thought they would have to wait until April 1, 2013. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file at this point.

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment. We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on November 13, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on November 27, 2012. He can now work for his employer for three years on an H-1B status starting November 27, 2012.

FREE CONSULTATIONS

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

captcha

 

For other H-1B success stories, please click here.

For other success stories, please click here.

Also feel free to contact our office anytime for free consultations.

 

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