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Post image for Fiancée Petition Approved for Petitioner from Florida and Filipina Beneficiary

CASE: I-129F Fiancée Petition and Fiancée Visa
PETITIONER: US Citizen in Gainesville, FL
BENEFICIARY: Filipina
PETITION FILED: March 20, 2013
PETITION APPROVED: July 25, 2013

Our client, a US Citizen Petitioner, met his Filipina fiancée who was living in Taiwan online. Their relationship grew and he met her in person in Taiwan in December 2012. During his visit, he proposed to her. Months after his proposal, he retained our firm to file a fiancée petition.

After retention, we informed our client of the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on February 12, 2013. We helped him and his fiancée draft letters in support of the fiancé petition, gathered supporting documents, and we filed the petition on March 20, 2013.

On July 25, 2013, the I-129F Fiancée petition was approved.

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In the advent of the new CIS standards in allowing marriage-based green card cases for same-sex couples, some of you (and I’m sure a lot more out there) have inquired on which “location” immigration looks to in adjudicating cases and determining the validity of the marriage – the place of marriage, or the couple’s residence.

This CIS memo answers that.

http://1.usa.gov/12EBc2v

This is a common concern because some couples live in states that do not recognize same sex marriages. And so the question is can these people get married in a state that recognizes same sex marriages, continue residing in their usual residence (for example a state that does not administer same sex marriages), and eventually file for immigration benefits on the way towards a green card.

This memo says yes.

You can get married at a different state, one that allows for same sex marriages, go back and reside in your usual state, then apply for the green card.

Hope this clarifies and helps some of you who have this concern. Feel free to email or call me if you have further questions. (216) 573-3712. jp@sarmientoimmigration.com. Thanks!

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Family F2A I-130 Petitions Current for August 2013

by JP Sarmiento on July 16, 2013

Just wanted to let you know that Family F2A I-130 Petitions are current for August 2014.

IF:

  1. You are a permanent resident and have a spouse who is not yet a permanent resident and is in status in the U.S.
  2. You are a permanent resident and your spouse is back home.
  3. You are a permanent resident and have minor children who are not yet permanent residents and are in the U.S. in status. OR
  4. You are a permanent resident and have minor children back home.

… this major development should help in a big way.

This is great news for permanent residents who wish to petition (or have petitioned) a spouse and or minor children. Being able to file for adjustment of status (green card) because priority dates are current is very important news because applicants, even if priority dates retrogress, would be able to file for a WORK PERMIT (and keep extending them) while waiting for their permanent residency. This obviously gives the applicant / beneficiary the ability to work legally, have a valid state ID, and driver’s license.

So what are Family F2A Petitions.

2 TYPES

One, those filed by a green card holder (lawful permanent resident)  to a spouse.

Two, those filed by a green card holder to a minor child.

What does being “current” mean?

Typically, for Family  F2A Petitions, you first file the I-130 petition, then you wait, depending on which country you are from, for priority dates (based on the visa bulletin) to be available. There was a time it was a four year wait, then eventually a two year wait, until now when it just became current. After priority dates become “current”, that’s when immigrant visa processing starts, or, if the beneficiary is here and is eligible (245i or maintained status), someone can apply for adjustment of status (green card).

If priority dates become “current”, then the wait time is over. For those eligible, the petition and adjustment of status application could be filed simultaneously. For those whose beneficiaries are abroad (spouse or minor children), let’s say the “current status” of the F2A category lasts several months, then your spouse or children could immigrate within the next few months hopefully, compared to having to wait 2 years (or even 4 years as it was way back).

So I hope this gives great news to some of you.  I know some beneficiaries have been waiting for their priority dates to be current, or waiting for their spouse to be a US Citizen, so that they may get a work permit, or apply for adjustment of status, or come to the United States, depending on the case. I hope this provides some actionable news, and help some of you to reunite with certain family members sooner.

Feel free to email me back, or call me at (216) 573-3712, if I may be of any help.

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

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Broad Outline of Senate Immigration Agreement Emerge

by JP Sarmiento on April 15, 2013

Post image for Broad Outline of Senate Immigration Agreement Emerge

Below are six key points regarding the Senate’s priorities in immigration reform.

  • Fortifying the borders and other domestic enforcement measures for the next 10 years.
  • Continuous surveillance of close to a hundred percent of the United States border and 90 percent effectiveness of enforcement in high-risk sectors.
  • Provide $3 billion for the Department of Homeland Security to come up and carry out a five-year security plan. While the officials are preparing to present the plan within six months, there would be no room for any provisional legal status for any illegal immigrant.
  • Worker verification system to be required, mandatory for all employers within five years.
  • DHS also asked to create an electronic system to ensure that foreigners leave when their visas expire.
  • For those who meet all the requirements and background checks, a provisional status for 10 years will be given. This allows them to work and travel but not to remain permanently; only then will they be allowed to apply for green cards.

Source: The New York Times

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The first step in an employment petition is the labor certification process.

Certifying What

Today this is done through PERM (Program Electronic Review Management), culminating in an online ten-page submission of Form 9089 that is preceded by a bunch of steps in the labor certification process. The PERM labor certification is issued by the Department of Labor (DOL), in which the Employment and Training Administration (ETA) of the DOL, certifies that:

  • There are noUSworkers who are able, willing, qualified, and available to accept the job
  • At the prevailing wage for the particular position being certified
  • In the location (county and state) of the intended employment, and
  • That hiring the foreign beneficiary will not adversely affect the conditions and wages of similarly employedUSworkers

Form 9089

The form is done online at http://www.plc.doleta.gov. Here, employers or, as in most instances, their attorneys, fill out Form 9089. Take note that there are many steps prior to filling out this form, which will be discussed below. The advertising phase takes at least two months. The employer must register for the PERM system and also register their respective attorneys into a sub-account. The information obtained in the advertising phase, particularly the dates and medium of advertisement, are but some of the information needed in Form 9089.

This is a 10 page form (at the time of this writing) that was established on March 28, 2005. This is also savable and eventually filed by hitting a submit button with a pin number that is emailed to you after you register.

You obtain a priority date upon filing PERM. This priority date will be a reference in determining if and when an adjustment of status application can be filed, or if consular processing could be initiated.

This form, upon certification, would then be mailed to you in a hard copy blue textured paper, where the employer, attorney, and beneficiary have to sign. This is then submitted in its original signed form together as one of the supporting documents for the I-140 Petition.

Validity

The Labor Certification is valid for a period of 180 days.

This means that the I-140 must be filed within that time, or else the Labor Certification would lose its validity. It’s actually best to prepare most of the I-140 documents – form, ability to pay documents, foreigner qualification such as degrees and past experience letters – while waiting for the Labor Certification to be approved, so that by the time the Labor Certification is received, you can move on to simply have the respective parties sign and then file the I-140.

The I-140 would then come back with a priority date that coincides with the Labor Certification filing date, which as mentioned earlier, gives you that priority date as point of reference to determining, in conjunction with the monthly Department of State visa bulletin, whether you can file for adjustment of status or initiate consular the immigrant visa consular processing steps.

Pre-Filing and Recruitment

The PERM application itself is an online application of ten pages or so. You fill it out, press submit, and you wait.

But it is not that part that takes the most time. The form itself for practitioners is not the meat of PERM/ LCA applications. But  it’s those steps that precede the actual filing of the application – the recruitment process, plus the registration process.

The registration process involves registering the company for PERM (unless they are already registered). The employer can do one themselves if they are filing it, but most of time, they register and then create a sub-account for the attorney. This results in a user name, passport, and a pin number which would later be used for the last step in fling the PERM application, where you have to enter the pin to confirm submission.

The prevailing wage request is also one of the first steps. You could not even fill out the PERM application itself because a page or so is dedicated to the information you’d obtain from the prevailing wage request.

It’s good to do the prevailing wage prior to the ads, as some of them may require the proposed salary, and you want to make sure the proposed salary is at least equivalent to or over the prevailing wage.

The next steps in the recruitment phase are as follows:

  • Two print advertisements (two consecutive Sunday ads, or one Sunday ad and one professional journal ad if applicable)
  • Job order from the SWA (State Workforce Agency) for 30 days or more
  • On-site job posting for 10 consecutive business days
  • For professional occupations (those that require at least a BS degree), at least three additional recruitment methods from the following ten:
    • Job fairs
    • Headhunter agencies
    • Employer’s website
    • Radio or TV ads
    • Trade or professional journals
    • On-campus recruiting
    • Job posting other than employer’s
    • Employee referral program with incentives
    • Campus placement office
    • Local or ethnic newspapers

The recruitment must occur within the 30-180 period before filing PERM, except for one of the “3 of 10” which can happen within 30 days of filing.

A lot of advertising entities could be hired to do these advertisements, including ADNET (www.adnet.com).

Summary of Steps 

Below is a short step by step summary of the steps for the labor certification process.

  1. Prevailing Wage Request. This is one of the first steps because some of the advertisements would require the wage. You would get the prevailing wage, level, request number, and the code for the position. Take note that you can request a certain code or position, but then the DOL would give you a different one based on the job description you provide. This sometimes is tough because you may be shooting for a Job Zone 5 EB-2 position but they would provide you with a Job Zone 4 position.
  1. Job order.  Can only file 60 days from when the job order is posted. Record the job order date.
  1. Internal Job Posting. This must be signed, must have the DOL address, and must have the date of the postings among other information.
  1. Recruiting. This is where the 2 Sunday Ads (or 1 plus professional journal) plus the “3 of 10 above” (if professional) ads should take place. This could take place earlier also, but it’s good to start with the prevailing wage request to see the required salary for the position.
  1. Registration. Employer should register for PERM. They may also create a sub-account for the attorney.
  1. Form. Employers or their attorneys, while waiting for the “60 day period from the job order or 30 days from the last ad, whichever is later” timeframe, could start filling out the Form based on whatever steps have been done. This would save  time, and allow the preparer to ask the respective parties any information that may be needed for the form itself, such as previous employers and their contact information, relevant details about their past experience and degrees, etc.
  1. Submission. Complete the form, enter pin, and click submit.

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Post image for Stokes Interview: Marriage Immigration Process and Questions

What is a Stokes Interview?

A stokes interview is an interview process for I-130 marriage-based green card petitions where the US citizen spouse and the foreign beneficiary are separately interviewed. In this case the US citizen is usually interviewed first, asked a bunch of questions, then the foreign beneficiary is called next to be asked mostly the same questions, in which the officer would match the answers, and check for discrepancies.

Reasons for Stokes

There is no objective basis why an officer would conduct a Stokes interview as opposed to a simultaneous interview. It’s very subjective.

Not even a marriage that occurs after removal proceedings are initiated would automatically render a Stokes interview. That actually was what I thought before until some of my clients who got married after removal proceedings were initiated were still interviewed simultaneously.

But a few possible reasons that I noticed that resulted in a Stokes interview are as follows:

  1. Age Gap

A big age gap between theUSCitizen petitioner and foreign beneficiary is NOT an automatic cause for denial. No. There are no straightline restrictive rules like that.

But typically the bigger the gap, the more likely that a Stokes interview would be conducted. The more likely that the couple will be separated.

  1. Marital History

Next is marital history for BOTH theUSCitizen spouse and foreign beneficiary.

If the US Citizen spouse had divorced recently, the closer the divorce date is from the current marriage, the more likely a Stokes interview will be conducted.

If theUSCitizen spouse had several divorces in the past (two or more), then a Stokes interview also becomes likelier.

If theUSCitizen spouse had at least a divorce in the past and had a history of petitioning a foreigner (filed an I-130), Stokes is also likely.

If the beneficiary was previously married to a US Citizen and got divorced, especially if a previous I-130 filed for the beneficiary was withdrawn or denied (in which case you again have to prove the bona fide nature of that first marriage), Stokes is likely.

If the beneficiary had several marriages in the past, or if the divorce is very recent, Stokes is also likely.

  1. Living Arrangements

If the couple does not live together, again, this is NOT an automatic cause for denial. Cases can still get approved, depending on the bona fide marriage evidence presented and the reasons for living apart.

BUT, there is very high chance that a Stokes interview will be conducted.

Again, some couples have to live apart for various reasons. School and employment are some of them. These not only have to be explained at the interview upon interrogation, but also presented through evidence, whether through a job offer letter, pay stubs, or school transcripts.

  1. Removal Proceedings

As you know, there is a higher burden when a marriage occurs after removal proceedings are initiated. A bona fide exception letter is needed, plus proof of a bona fide relationship upon submission of the application, and more of those at the interview also.

Though some couples are still interviewed together despite being married after removal proceedings are initiated, there is a bigger chance of separation.

  1. Lack of Income (or Absence of Income) of the US Citizen Spouse

When theUSCitizen petitioner has little or no income, it is also more likely that the officer will interview you separately. It is what it is. Again, these are not clearcut rules, but merely observations we have based on the hundreds of interviews we’ve been too for marriage to US Citizen green card cases.

Conclusion

The preparation you should have for marriage-based green card interviews should always be as if you will be interviewed separately. As I mentioned, there is no clearcut rule on what would enable the officers to separately interview you. Who knows, it could be the officers’ personal preference.

So think of all possible questions that they may ask and discuss it with your spouse. Some details may be taken for granted, but officers vary, and it’s best to be prepared for anything.

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Post image for Marriage After Deportation Immigration Proceedings are Initiated

What is the difference between the I-130 Petition process in cases that are based on marriage to a US Citizen, between one where the marriage occurred before or without deportation proceedings being initiated and one where the marriage occurred after?

For both, there is a burden to show that the marriage is bona fide, but that burden is higher when the marriage occurred after deportation proceedings were initiated. Below is a list of some major differences.

  1. 485 filing

The first difference is on when you can file the I-485 green card application. If you entered legally and are not in removal proceedings, the I-130 and 485 could be filed simultaneously. Thus you can also file the I-765 work permit application together with it.

If you are placed in removal proceedings and the marriage occurred after, it is the I-130 that is filed first. Then you wait until that finally is approved, in the meantime seeking continuances with the Court while the I-130 is pending.

You cannot file a work permit 765 application while the I-130 is pending in a situation where the marriage occurred after deportation proceedings are initiated, because you still could not file the I-485. I-765s in these cases are approvable based on a pending I-485.

Once the I-130 is approved, you then can either seek termination of the case and then file the 485 green card application and 765 work permit application simultaneously with CIS once the case is terminated, or, should you seek adjustment with the Court, file the adjustment of status application with Court and file the work permit application with CIS.

  1. Bona Fide Marriage Exception Letter

As a primer, I-130s are not approvable when the marriage occurs after removal proceedings are initiated BUT they can be if a bona fide marriage exception letter is included plus proof of a bona fide marriage.

This is very important.

I have seen cases where couple would consult after an I-130 denial where an officer denied a seemingly bona fide marriage (some with kids even) simply because that one page letter was not included.

  1. Higher chance of Separation at Interview

There is also a higher chance that the couple would be separated at the interview. InNew York they undergo what’s called the Stokes interview. More questions are typically asked, and the interviews generally are longer. They would ask one person questions in private first, then ask the spouse separately, before checking if the answers match.

  1. More (evidence, time)

There is also “more” of a bunch of stuff.

More evidence is needed, so I ask for more joint documents, a lease, more affidavits, more pictures, more joint bank statements etc.

More interview questions are usually asked. More time is involved because the I-130 and I-485 are not filed simultaneously.

Ultimately though, if the marriage is bona fide, there should not be any reason why these I-130s can’t be approved. But again, it depends on how you prepare for the filing, and on how you prepare for the interview.

That said, it’s very important to have as much evidence as possible, and to be as prepared as possible to answer questions about your relationship.

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Post image for Tech Giants, Private Prisons Big Players On Immigration Reform

As the country anticipates the overhauling of our immigration policy, different industries are doing its best to influence the specific of the policy. Big tech firms and private prisons are just some of the industries who are vigorously showing their interest in immigration reform.

Big tech firms such as Microsoft, Facebook and Intel want to see an increase in the number of available visas for highly skilled immigrant workers. Also showing great interest in immigration reform are those who build detention facilities housing illegal immigrants in the country. Companies such as Corrections Corporation of America are pushing heavily on lawmakers to take tough stances on the matter.

Although it is tough to track how much each lobbyist would spend for their interests to be heard, it has been reported that Microsoft spent $8 million for their lobbying efforts last year and even contributed $814,645 to President Obama during his re-election campaign. Intel, on the other hand, spent $3.7 million and Facebook didn’t mind spending $3.9 million in their lobbying efforts. These companies filed not less than eight reports.

Source: CNN.Com

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Post image for Jeb Bush Promotes Book on Immigration and Replies to Critics

Republican and former governor of Florida, Jeb Bush has been promoting his new book, “Immigration Wars: Forging an American Solution.” Early critics have said that his book is the exact opposite of his longtime position on immigration.

Fellow Republicans are complaining that Mr. Bush has shifted his support, from one of conservativeness to something more open to a path to citizenship, by calling Congress to welcome some form of legal status short of citizenship. Amidst confusion on what Mr. Bush’s real stand on immigration is, he stressed on “Face of Nation” that he supports a path to citizenship and further explained that his main premise is to make it easier and less costly for those entering the country legally, rather than having them come here illegally anyway.

Mr. Bush was also quick to encourage Republicans to accept a deficit-reduction deal with Mr. Obama, one that purports to cut the budget along the lines of government sequestration.  This is quite the opposite of Representative Paul D. Ryan’s views during his appearance on “Fox News Sunday,” when he reiterated his opposition to the government’s recent deficit-reduction strategies. Mr. Ryan is keen on addressing the issue, paving the way towards a balanced budget, by reducing Medicare, Medicaide and federal pensions.

While Mr. Ryan ‘enjoyed the experience’ when he was a Republican nominee for vice president in 2012, Mr. Bush, on the other hand, quips that he is not even thinking about it.

Source: The New York Times

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