Law Offices of Rajiv S. Khanna, P.C.
5225 Wilson Blvd
Arlington, VA 22205 USA Ph: (703) 908-4800
Arlington, VA 22205 USA Ph: (703) 908-4800
6 Byers Street
Staunton, VA 24401 USA Ph: (540) 886-6321
Staunton, VA 24401 USA Ph: (540) 886-6321
These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.
The main applicant and his wife filed their I-485 petitions together. At the time of filing, the wife was pregnant. In regards to the required medical examination, there are certain vaccinations that should not be given during pregnancy as they could affect the fetus. After the birth of the baby, the mother is then able to return to the doctor and get the vaccinations that are required the GC process. In this case, the mother’s intention was to breast feed her baby for at least 2 years. They wanted to apply for a waiver of the vaccinations of any kind because she didn't want to get them while breast feeding, regardless of what the doctor said about vaccinations being safe for the nursing baby. We were able to get the I-485 approved for both the main applicant and wife without receiving an RFE or having to file the waiver.
Our office was retained to file a B-1/B-2 extension on behalf of a 34-year old male who was diagnosed with autism and requires ongoing supervision and monitoring. He is dependent on his mother, a permanent resident of the US, who is his legal guardian and only source of care. His father is a resident of Botswana. Botswana regulations do not make provisions for a child above the age of 21 to reside in the country as a dependent. Even in the US, regulations do not consider children over the age of 21 to be dependents of their parents. Our office submitted the extension request to Service requesting discretionary relief as permitted in appropriated cases where family members are not eligible for derivative status. The extension request was approved without an RFE.
USDOL had denied a series of cases for many employers represented by various law firms. The ground of denial was that when "engineering" was one of the acceptable majors for an IT job, that created too much ambiguity for a case to be approved. DOL stated that there are fields of engineering, such as Agricultural Engineering, which are clearly inapplicable to IT positions.
This ruling had become a nation wide issue.
We filed an MTR pointing out the defects, legal and factual, in the ruling. We also indicated our willingness to litigate this highly unfair ruling in federal courts. DOL has, most appropriately, reversed their decision.
We represented a Computer Software Engineer and his spouse. USCIS denied the applicant’s Form I-485 because his former employer withdrew his previously approved I-140 petition when the applicant moved to a different employer. The employer and their lawyer refused to provide any information regarding the filing. So we were constrained to obtain the relevant information directly from the government. Once we received our client’s job description with his former employer, we were able to assess the applicant’s AC-21 porting eligibility. Based on this information, we filed a motion to reopen and reconsider the I-485, explaining that the applicant’s I-485 should not have been denied, considering his eligibility for AC21 portability. USCIS agreed, vacated the denials, and reopened the case.
How does one prove that five years’ experience gained while working for one employer, with one job title is progressively responsible in nature?
That issue was key in a recent EB-2, I-140 petition. USCIS issued a Request For Evidence (RFE) alleging that although the employee had the requisite experience, he had failed to establish that his experience had grown progressively responsible after receipt of his Bachelor’s degree.
Note that a requirement of EB-2 category is that the foreign worker must possess a Bachelor’s degree and 5 years of progressively responsible, post-bachelor’s experience. So, unless we are able to prove that the experience is “progressively responsible,” we would lose our EB-2 case. The complication here was that all five years of experience were with same employer and the same job title. It took considerable investigation and understanding of the IT field, but we could see that the experience was indeed progressive. Accordingly, we responded with a significant amount of evidence, including employment letters, affidavits, and pay stubs. We also presented several cases and legal arguments that backed our position.
The petition was approved in less than two weeks.
We represented a consulting company and their employee, a Senior Quality Assurance Analyst. USDOL had denied PERM certification after an audit holding that we had failed to submit tear sheets from our Sunday advertisements. We filed the appropriate motion establishing that it was highly likely, if not certain, that the tear sheets were in fact submitted. We provided evidence from our files, affidavits, and proof of our firm’s normal business practice.The case was approved in less than three weeks.
We represented a technology consulting services corporation and a Senior Programmer Analyst employed by the firm. We submitted electronically the applicant’s labor certification (PERM) to the USDOL. They denied certification without a request for explanation or audit. The USDOL denial alleged that the employer was required to show on the ETA 9089 (the PERM form) what methodology was used for the foreign degree evaluation. We responded with appropriatemotion showing that this was clearly government error and a violation of due process. The forms provide no way of stating this information. We further presented several legal arguments and cases in support of our clearly justified position. Unfortunately, there is no way to spare anguish and uncertainty inflicted upon our clients, but USDOL did recognize the error and moved to correct it.
The case was approved within four weeks.
We represented an IT consulting company and a Technical Project Lead employed by them. The PERM was selected for supervised recruitment. USDOL denied certification, alleging that the employer rejected a potentially qualified U.S. applicant without an interview. This is one of the cases where our firm’s knowledge of various fields, including IT, paid off. The job offered required high-end database experience. The job applicant possessed only MS Access experience. We established on the record that MS Access experience could not possibly translate into working with high-end databases in multi-million dollar projects. We submitted copious amounts of evidence, including data from federal government IT deployments and case law. We argued that the U.S. applicant was not qualified, could not possibly qualify for the position, and that an interview was not required because hiring the U.S. applicant would necessitate an unreasonable amount of on-the-job training.
The case was approved in about two weeks.
Our office was retained to process an H-1 Change of Status petition for a Quality Assurance Engineer working on a turnkey project owned by a middle vendor at a client location. We explained to USCIS that the end-client was infact the vendor, who “owned” the project. USCIS denied the petition, holdingthat we had failed to obtain proper documentation from the end-client. We filed an MTR with extensive arguments and evidence that the petitioner was the actual employer of the beneficiary and that the vendor, not the end-client, owned the project.
USCIS accepted our arguments and approved the petition and the attached I-94.
Over the last few years, approvals of L-1B cases have become particularly difficult. An L-1B (Intra-Company Transfer Visa) petitioner retained us after receiving a Request for Evidence from USCIS requiring additional proof that the beneficiary had specialized knowledge and that the job duties required an individual with unique knowledge of the petitioner’s complex technology. We provided documentation to show that the beneficiary had skills that could not be obtained in the open market. We were also able to show that, within the petitioner’s employee pool, the beneficiary was unique and had gained specialized knowledge through training and years of hands-on experience with the technology.