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.
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 a physician working for a healthcare network within several counties of a Medically Underserved Area (MUA). Initially, we submitted the required documents, but the tricky issue was the division of the physician’s service over several counties. The approval in this case required that we work closely with officials from the State Health Department to provide proper documentation and verification of the full-time nature of the job, albeit across several areas and proof of physician shortage within each area. At the I-140 stage of the NIW, USCIS issued a relatively minor Request for Evidence requesting a recently dated full-time employment contract listing the full, required period of service.
We represented a physician working for a veteran’s facility within a medically underserved area. The NIW was approved. Before completing her waiver time, she needed to move from the approved location to another location AND switch from a MUA to the Veterans Administration. Unfortunately, the law and the procedures involved in moving MUA’s and moving from a MUA to another NIW mode are very poorly documented. Some of the legal territories are just not well defined. Nevertheless, we filed the appropriate petition,submitting what we believed were the required documents. To meet the total five-year requirement, we also submitted employers’ letters to capture all prior service at other medical facilities within underserved areas while the applicant was on valid H-1B.
USCIS acknowledged the prior service, approved the case, and assigned the original priority date to our client.
We filed an EB-2 I-140 Petition for a petitioner corporation and a beneficiary Senior Systems Analyst. The USCIS sent us a Request for Evidence (RFE), requesting information proving that the petitioner would be in an employer/employee relationship with the beneficiary and that the petitioner had the ability to pay the proffered wages for all of the beneficiaries for whom it had petitioned.
We filed a lengthy response with nearly forty exhibits. The petition was approved less than three weeks later.
We won a case following a Request for Evidence for a scientist. We were able to establish that he is an internationally renowned scientist who is acclaimed and respected in the international research community for his expertise in the area of nanotechnology, magnetic nanoparticles and nanocomposites, nanomagnetism, thermoelectric nanoparticles and nanocomposite materials. His unique specialty set him apart from others in the field. The applicant provided documentary evidence to show that he qualified for four criteria of the category; publications, original contributions, professional membership in a society that required extraordinary achievements and reviewer of work of his peers. He was invited to review for several high-impact scientific journals. He also had an extensive publication list as well as presentations world-wide for his innovative and pioneering work. One of his articles was selected and featured as an “article of impact” in a virtual scientific journal. Only a very small percentage of articles are chosen for this particular publication. As a result of his noteworthy original contributions, he had an impressive number of citations of his work. We also showed in our response to the RFE that this applicant’s extensive contributions to the field were beyond the normal scope of a researcher with his years of educational and work experience.
We filed a petition under premium processing for the beneficiary, who qualified based on his publication record, original contributions, membership in a professional society and service as a reviewer of others’ work. The beneficiary had more than sixteen years of research experience and thus had garnered an international reputation for his outstanding work. We provided letters of recommendation from various international experts in his field that confirmed his status amongst his research peers. The beneficiary had documentation to show his senior level membership in a professional society. We provided documentary evidence to show the stringent criteria for this level of membership. Due to the beneficiary’s exceptional work in his field as an author of numerous publications and a reviewer for this particular society, a Research Fellow nominated him for senior membership. We also provided evidence of the beneficiary’s extensive list of scientific journals for which he had been selected to act as a reviewer. His research peers held his expertise in high regard; thus, he has an extensive list of editors who request his services to review and edit manuscripts for publication. The beneficiary’s original work had been commercialized and had a significant impact on his field of expertise. His continued employment was essential for the maintenance of some highly noteworthy projects of several distinguished institutes with which he was collaborating. The petition was certified, and he obtained his Green Card.
We filed a PERM application under EB-2 for a Senior Programmer Analyst’s position early this year. Three months later, U.S. Department of Labor (DOL) issued an Audit Notification. Immediately following our response, DOL denied the application, citing that our audit response did not include a copy of the job order. Our response, in the form of an MTR (Motion to Reconsider)/Appeal, included a clear exposition of the law and a BALCA decision in which the Administrative Law Judge held that the job order is not a mandatory document required to be submitted, and therefore, the denial was erroneous. Given that the denial reason was clearly an error on DOL’s part, we requested the case be placed into the government error queue so that the case would quickly be reopened and approved. Within one week, DOL certified the labor application.
The applicant had a Ph.D. (Physics), Master of Science (Physics), Bachelor of Education, and Bachelor of Science and more than fourteen years’ research experience working for several world-renowned institutions. Her discipline was Biometeorology – Atmospheric Scientist. We were able to provide substantial documentary evidence of the applicant’s original contributions that began as early has her Ph.D. years. The applicant had published some very significant articles that reflected years of data collection and analysis. Thus, her publications were cited heavily in top scientific journals with high impact factors. The applicant had also been invited to participate on editorial review boards due to her noteworthy research, unique expertise, and related international reputation. In addition, she participated as a reviewer for a significant number of high impact international journals, the selection criteria of which required the scientist to have an outstanding reputation in the field as determined by publication history and significance, citation volume within the specialty, and overall impact of the research. Reference letters from leading experts clearly defined this applicant as one of the very top scientists in this unique specialty of biometeorology. We filed an EB-1 petition premium processing and received an approval within a week.