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.
Employment Based Green Cards Sample Cases
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 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.
Our client received an approved I-140 for EB-2, but, with the priority dates at a standstill, opted to file under EB-1 as well. She had three Ph.D.’s in Marketing and Management. We provided documentary evidence to show her unique specialty in the social sciences. This applicant had some significant publications but not as many of some other scientists. However, we were able to prove that, with social scientists, the data collection process takes substantially more time and, therefore, the volume of publications would not be the same as a hard scientist. We were able to show that several of the publications were quite noteworthy and published in prestigious journals with a high impact factor. We also provided evidence to show the applicant’s qualifications as a judge of her peers. Given her international reputation and highly regarded research work, the applicant was asked to review manuscripts for a significant number of noteworthy publications and a multitude of international conferences. In addition, we provided evidence of the applicant’s membership on an editorial board, a position of significant importance. We also provided documentation to show the numerous occasions that the applicant was asked to be on expert panels based on her highly respected and extensive expertise. Finally, we were able to show the impact of her original contributions and the ongoing research that continues to be cited by other world-renowned researchers in her field. This case was filed premium processing and approved within just two days.
We have recently received an EB2 approval for a Physical Therapist. EB2 classification has become especially important now that EB3 category cases for severely backlogged countries are delayed so much. The good news with PT’s is that they do not have to go through the PERM process. But the bad news is that USCIS seems to question whether or not truly a Master’s degree or BS+5 years level job is being offered. The I-140 approval took 1.5 months in regular processing.
Our client recently received his green card after a long journey with USCIS. He approached us following a denial of his I-140 (NIW, physician in medically underserved area). The applicant had filed the I-140 and I-485 and then moved to a different state while the applications were pending. There had been no action on the file for 2 years. He submitted a service request with USCIS requesting a status update. USCIS issued a Request for Evidence shortly after the applicant’s move, which was sent to the original address and ultimately returned undelivered. USCIS issued the denial based on the applicant’s employment in a new medically underserved area not identified in the initial petition. Applicant had submitted Form AR11 with USCIS noting his move to another state.
We submitted an MTR/Appeal explaining the law and noting that the applicant had moved following his completion of his J-1 waiver 3-year requirement and had a valid Employment Authorization Document to work for the new employer. We also submitted an Amended I-140 Petition, which reflected employment with the new employer. We provided verification of his completion of 3 years of medical service (J1 period) and documentation to show current full-time employmet We provided verification of his completion of 3 years of medical service (J1 period) plus documentation to show current full-time employment with several rural clinics as well as a private practice. The MTR was granted and the Amended I-140 was approved following a Request for Evidence. USCIS asked for further verification of the health professional shortage area of the various clinics as they were located in several different counties. Due to the unique employment arrangement of the applicant as a contractor for the clinics, USCIS required additional employment verification. Ultimately the I-140 was approved. Following that, his green card (I-485) was also approved.
We were retained by a client who was in USA on B-2 status and wished to apply for green card through EB-5 investor/entrepreneur category. We obtained a B-2 extension and simultaneously filed the EB-5 petition. Client was in the process of investing $1 Million in an existing business. $500,000.00 of the investment was in the form of cash (some portion of which was gift money) and for the remaining $500,000.00, a promissory note was executed and secured by foreign personal assets of client.
Since the business in which the client proposed to invest was already experiencing financial difficulties, we were successfully able to prove that it qualified as a troubled business, i.e., a business that had been in existence for at least two years, and had during the twelve or twenty-four month period prior to the priority date incurred a net loss of at least twenty per cent of the business's net worth prior to such loss.
USCIS initially issued an RFE, mainly raising issues about source of funds. We provided comprehensive tabular explanation along with the appropriate documents to trace the source of funds. One of the challenges was proving source of funds for the money coming from a Joint Family Account. We were able to successfully show that money pooled into “Hindu Undivided Family Fund” properly known as HUF Account, becomes a joint family property, and passes through testamentary succession, therefore as such, our client is the lawful owner of those funds, which her husband left in HUF Account after his death. We provided further evidence that client’s husband had income from lawful business activity, therefore it qualified as ‘lawful investment’ under EB-5 regulations.
USCIS accepted all our arguments and approved EB-5 petition.
We filed a petition premium processing for the beneficiary who qualified based on her extraordinary engineering contributions. Her substantial and highly scientific contributions paved the way for commercial manufacturing of flexible displays by major, well-known display manufacturing companies. The beneficiary’s commercialized research was featured on Amazon.com. She had over eight years of research experience in the nanotechnology field resulting in multiple patents. We also provided documentary evidence of the beneficiary’s research publications in prestigious scientific journals as well as the lengthy citation record of these articles. The beneficiary was employed with a private employer therefore we submitted documentation of the petitioner’s R&D staff to show at least 3 full time researchers. We also provided documentary evidence to show the accomplishments of the employer as well as their ability to pay the beneficiary’s proffered wage, which included a letter from the CFO, the beneficiary’s tax return, W-2, and recent pay stubs. The petition was aproved without an RFE.
We filed a petition premium processing for the beneficiary who qualified based on his original contributions, publication record, featured research work in the media and service as a judge of the works of his research peers. USCIS seems to have accepted the veracity of our claim for outstanding ability without a question. We were issued a request for evidence asking only for proof of the petitioner’s ability to pay. We supplied the most recent financial report of the petitioner, a letter from the CFO as well as copies of the beneficiaries W2 and most recent pay stubs. The case was approved within a week.
We filed an EB-1, Outstanding Researcher petition premium processing for the beneficiary who qualified based on her extraordinary contributions in applied sciences. Her substantial and highly innovative contributions paved the way for commercial manufacturing of flexible displays by major, well-known display manufacturing companies. The beneficiary’s commercialized research was well documented. She has over eight years of research experience in the nanotechnology field producing a multitude of patents. We also provided documentary evidence of the beneficiary’s research publications in prestigious scientific journals as well as the lengthy citation record of these articles. What was unusual about this case was that the beneficiary did not have a PhD, which is the norm for many, if not most EB-1 cases.
We have received two interesting B-2 extensions. It has been my view that under certain circumstances B-2 can and should be permitted by USCIS to be used even where the applicant has an immigrant intent or is otherwise staying longer than usual in USA. Apparently, USCIS agrees.
In the first case, we were preparing an EB-5 (One Million Dollar investment) for an applicant who was here on a B-2 visa. So, we disclosed fully to the government that we have immigrant intent, but should not be required to leave because we are in the process of investing. A forced visit back to home country serves no useful purpose. USCIS approved the case.
In the second case, we have just received a third B-2 extension for the parent of a green card holder. The applicant suffers from chronic ailments and needs to be monitored. Both his sons live in USA (H-1 and green card). Once again, USCIS approved the case.