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Post image for I-140 Approval for Filipino Family Physician Beneficiary and Hospital Petitioner in Erie PA

CASE: I-140

 EMPLOYER: Hospital

 BENEFICIARY: Filipino

 LOCATION: Erie, PA

Our client is a family physician from the Philippines, who is currently working at a hospital which was willing to do a second-preference petition (I-140) for him. He has a M.D. degree and is a licensed physician in the state of Pennsylvania. He has maintained his status as an H-1B visa holder in the United States.

After talking to our client, our firm concluded that his potential employer can petition him as a Family Medicine Physician. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.

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 foreign degree evaluation report, our office filed the job order on November 16, 2011.  On May 10, 2012, we filed PERM.  Eventually, on July 17, 2012, a little after two months from filing, the PERM Labor Certification was approved – an EB2 position for the Filipino 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, state physician license, our client’s M.D. degree, and other necessary supporting documents.

The I-140 Petition was filed on September 11, 2012 via regular processing.  On May 3, 2013, the I-140 EB2 Petition for our Filipino client was approved.

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Post image for I140 EB2 8 Day Premium Processing Approval for Manufacturing Company Petitioner and British Engineering Manager Beneficiary in Cleveland Ohio

CASE: I-140 / I-907 (Premium Processing)
ISSUE: Had to get the I-140 Approved to Be Eligible for 3-Yr H-1B Extension
EMPLOYER: Molded Component Manufacturer
BENEFICIARY: British Engineering Manager
LOCATION: Cleveland, OH

Our client is an engineering manager from the United Kingdom, who is currently working at a molded component manufacturing company in the greater Cleveland area. The company/petitioner was willing to petition him for a green card, in the second-preference category (EB2).

Our client has a Bachelor’s degree and has more than 5 years of related work experience. He has maintained his status as an H-1B visa holder in the United States. The issue is that he can only renew his H-1B after an I-140 petition is approved.

After talking to our client, our firm advised that his potential employer can petition him as an Engineering Manager, specifically, Liquid Injection Molding (LIM) Process Engineering Manager.

Prior to filing the PERM labor certification application, 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. As mentioned on our previous success story, we filed the PERM labor certification application for our client on August 8, 2012. Two months later, on October 10, 2012, the PERM labor certification was approved. There were no audits in this application. Our client retained us again for the I-140 petition.

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, employment verification letters from our client’s previous employers, and other necessary supporting documents.

The I-140 Petition was filed on October 31, 2012 via premium processing. On November 8, 2012, in only eight days, the I-140 EB2 for our British client was approved.

Now, not only can he file for a green card (could have been filed simultaneously, but priority dates were not current back in October), but he is also eligible for an H-1B 3 year extension.

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The July 2012 Visa Bulletin is out, and please be informed that the EB2 Category is not current anymore for Mexico, Philippines, and “Other Countries”. India and China actually have an “unavailable” priority date and it will likely be “unavailable” until the October 2012 Visa Bulletin comes out.  Whereas other countries including the Philippines and Mexico have always been current on the EB2 category, now, based on the visa bulletin for July 2012, the priority date is January 1, 2009. This means that for Mexico, Philippines, and other countries, even if EB2 labor certifications are approved, the I-140 could not be filed simultaneous to the I-485 adjustment of status application. Even if the I-140 is approved, with the priority date listed as 2009, it may take close to 3 years before one can even file the adjustment of status application. For China and India, even those with I-140s approved and priority dates of 2008, 2009, and 2010 could not even file I-485s until the visa numbers become available, and their priority dates current.  Thus, it is very important to maintain non-immigrant status until the priority date becomes current again.

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CASE: I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)
EMPLOYER: Multinational Tire Corporation
BENEFICIARY: Korean
LOCATION: Akron, Ohio

Our client is a vice president of a multinational tire corporation in Ohio.  He is from Korea, and has worked for its parent company for 24 years in positions of increasing responsibility including that of team manager. He came to the United States in July 2011 with an E-2 visa to work for current petitioner company (wholly-owned subsidiary of his previous employer).  He contacted our firm in December 2011, and discussed us his chances of getting a green card.  Based on our client’s educational and professional background and his current position at the worksite, our office determined that he was clearly eligible for the EB-1C classification for his I-140 petition. Our client eventually retained us for his I-140 and subsequent I-485 adjustment of status application on December 15, 2011.

An employer can petition for its foreign employee under INA § 203(b)(1)(C) if it demonstrates the following: (C) Certain multinational executives and managers – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

According to the INA §101(a)(44), 8 U.S.C. §1101(a)(44) and 8 C.F.R §204.5(j)(2), “executive capacity” means an assignment in an organization in which the employee primarily: (1) Directs the management of the organization or a component or function; (2) Establishes goals and policies; (3) Exercise wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.

Also, above the mentioned statutes define “managerial capacity” as an assignment with the organization in which the employee personally: (1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.

After our office was retained, we prepared a thorough cover letter and obtained all necessary supporting documents from our client and the petitioning company. In our brief, we clearly demonstrated that our client met the requirements set forth in the INA §203(b)(1)(C).  First, the prospective U.S. employer (Petitioner-Company) has been doing business for at least 1 year.  Second, the prospective employer (Petitioner) in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed abroad.  Third, if the worker is already employed in the United States, he or she was employed outside the United States for at least 1 year in the 3 years preceding admission as a non-immigrant in an executive or managerial capacity by the petitioner or by its parent branch, subsidiary, or affiliate. Last, the alien is to be employed in the United States in a managerial or executive capacity.

In this case, the Petitioner-company has been doing business for 21 years in the United States. In addition, Petitioner-Company is the wholly-owned subsidiary of its Korean parent company where our client was employed for 24 years. Moreover, our client was employed outside the U.S. for at least 1 year in the 3 years preceding admission as a non-immigrant in an Executive or Managerial Capacity by the Petitioner’s parent company in South Korea.  Our client served as a team manager and later became general manager for the parent company.  He personally supervised and controlled the work of other researchers and engineers for new types and models of tire developments, and was primarily responsible for the company’s various new tires.  Lastly, our client is to be employed in the United States as a vice president / technical manager for the petitioner.

On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), an organization chart, and a dispatch order.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea.  The evidence included a copy of the certificate of ownership, a copy of the articles of incorporation, a copy the business registration certificate, a copy of the approval for overseas investment, a copy of the annual report and consolidated financial statements.  The I-140 Petition was filed on March 15, 2012.  On June 1, 2012, the I-140 was approved with no Requests for Evidence.  Now, our client can file the I-485 adjustment of status application based on the approved I-140 petition.

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CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Nursing / Rehabilitation Center
BENEFICIARY: Filipina
LOCATION: Des Plaines

Our client is a registered nurse, who is currently working at a large nursing and rehabilitation facility in Des Plaines, Illinois. Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Since she was a registered nurse, 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 Professional Nurses is included in Schedule A.

Our client has a nursing degree and has more than 4 years related experience. Our office was retained on January 31, 2012 and we started on the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on March 29, 2012 via regular processing. We included the job offer letter, employment verification letters from our client’s previous employers, the notice of filing, her H-1B status approval notices, and other necessary supporting documents.  On May 5, 2012, upon our client’s request, we upgraded her processing to premium processing by filing an I-907 application with the required fees. However, the Nebraska Service Center issued Notice of Intent to Deny on May 17, 2012. The USCIS NSC argued about Petitioner’s normal recruiting procedures.  On May 23, 2012, our office filed a Response to Notice of Intent to Deny and argued that Petitioner has no in-house media and their normal procedures do not include the use of in-house media for the recruitment of similar positions. Also, Petitioner did place the notice of filing in accordance with the regulations and that was submitted at the I-140 filing.  On May 30, 2012, the I-140 was approved. Now, our client can file I-485 adjustment
of status application based on the approved I-140 petition when her priority date becomes current. She also will be eligible for a 3-year extension of her H-1B even if she is on her 6th year on H-1B.

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CASE: EB-2 I-140 / I-485
PETITIONER: International Trading Company
BENEFICIARY: Vietnamese
LOCATION: San Diego, CA

Our Vietnamese client from San Diego contacted our office in December 2011. She had an approved PERM Labor Certification and she would like to retain us for her I-140/I-485 application. Her current employer is located in San Diego and they wish to file an I-140 petition for her as a market research analyst. Our client had questions regarding possible issues they may face, the employer’s “ability to pay” issue in particular.

Once retained, our office prepared her I-140 petition and I-485 adjustment of status application. One of the main requirements for the I-140 is that the petitioning company must show that it has the ability to pay the proffered wage for the beneficiary’s position. Despite the negative taxable income, we provided all schedules of Petitioner’s tax return and argued that their net current assets were over and above the proffered wage. We provided the calculation on the cover letter, cited a CIS internal memo on the “ability to pay” issue, and attached the tax return schedule that showed the net current assets. We also prepared our client’s I-485 application and explained that the priority date for EB-2 Vietnam (“Other Countries”) is current.

Our office simultaneously filed the I-140 / I-485 applications on January 26, 2012 and on April 19, 2012, the I-140 petition for our client was approved with no Requests for Evidence.  Once the I-140 petition was approved, her I-485 adjustment of status application was subsequently approved by the USCIS on May 24, 2012.  While we were waiting for I-485 approval, our client informed us that he needed to travel abroad.  Thus, we filed an I-131 advance parole application on February 10, 2012.  The I-131 advance parole document was also approved by the USCIS Nebraska Service Center on May 24, 2012 as well.

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CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Hospital
BENEFICIARY: Canadian
LOCATION: New York, NY

Our client is a registered nurse, who is currently working at a large hospital in New York City. Her employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Since she was a registered nurse, 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 Professional Nurses is included on Schedule A.

Our client has a nursing degree and has more than 5 years related experience. Her employer filed an I-140 petition for her before; however, it was denied due to the prevailing wage issue.  After talking to our client, our firm concluded that her potential employer can petition her again as a Registered Nurse under the schedule A category.

We filed the I-140 application on September 9, 2011 via regular processing. We included the job offer letter, employment verification letters from our client’s previous employers, the notice of filing, her TN status approval notices, and other necessary supporting documents. On May 14, 2012, the I-140 was approved.  Now, our client can file I-485 adjustment of status application based on the approved I-140 petition when her priority date becomes current.

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CASE: I-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Cleveland, OH

Our client contacted us in March 2011 about the possibility of doing a National Interest Waiver. He is a researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, and is currently working as a visiting professor in an academic institution in Cleveland, Ohio.  Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since one would not need an employer nor family member to petition for them for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation , 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 15-page brief for our client’s NIW filing. We asked our client to obtain 10 or more letters of recommendation.  Our office also included his publication records, patents, and conference materials in the NIW application.  We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 67 exhibits (Exhibit A to OOO).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 2, 2011.  On August 19, 2011, the USCIS approved his I-140 petition without any Requests for Evidence.

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