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.
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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 an H-1 application for a Bonsai Nursery/Facility Manager. USCIS issued a Request for Evidence (RFE) challenging whether or not a specific Bachelor’s level education is required for this position. We filed a detailed response, with voluminous evidence the specialized nature of the job. We urged USCIS to consider the merits of the job description and what it would take to perform the job. We argued job titles alone are not dispositive of the nature of a job.
USCIS approved the application.
We filed an I-140 application in which the beneficiary was no longer working for the employer and was living outside the U.S. We included fairly standard supporting documents. To show the employer’s ability to pay the offered wage, we submitted federal tax returns and a W-2 from the preceding year. To show the beneficiary’s qualifications, we submitted a copy of his degree and affidavits from previous supervisors and co-workers with supporting documents. USCIS issued a Request for Evidence (RFE) that called into question both the employer’s ability to pay the offered wage and the beneficiary’s qualifications.
The RFE challenged that the submitted W-2 did not belong to the beneficiary, and that evidence of the employer’s ability to pay the full wage from the priority date onward was required. With additional documentation and a thorough legal response, we proved that the W-2 wages were paid to the beneficiary and that the employer did indeed have the means to pay the offered salary at all times in question. In regards to the beneficiary’s qualifications, USCIS requested official letters from the beneficiary’s previous employers. The beneficiary was able to procure letters showing part of his required experience, and we addressed the other concerns with affidavits and other thorough supporting documentation. With the submitted evidence and our legal arguments, USCIS approved the I-140 application, and the beneficiary was able to obtain an H-1B extension based on the approval.
We filed an ETA 9089 Labor Certification and included a requirement of a Master’s degree. The job required no employment experience, but did require hands-on work in a university research laboratory with particular equipment. DOL denied the application, stating that training and experience requirements were in place that exceeded the employer’s true minimum requirements. We responded with an MTR/Appeal asserting that this was not an appropriate ground for denial and that no formal training was required or available in these technologies. Hands-on work in a university research laboratory does not constitute formal training, but the deficient Form ETA 9089 does not accommodate any requirements other than training and/or employment experience. DOL reopened the application.
A year and a half later, DOL issued an Audit Notification, to which we responded in full with all the required documentation. Immediately following our response, DOL denied the application for the second time, stating that the advertisements did not mention that the "employer will accept a suitable combination of education, training or experience." (i.e., “Kellogg” language). Our response, in the form of another MTR/Appeal, included arguments of the law and the PERM FAQ’s. Given that the denial reason was clearly an error on DOL’s part, we requested the case be put into the government error queue so the case would quickly be reopened and approved. In approximately one week, DOL certified the labor application.
The following two cases demonstrate how USCIS, an "expert" agency, can misread immigration forms, causing unnecessary anxiety and expense for people.
We submitted two I-140’s for EB-2 cases in which the requirements from the PERM Petition were a Master’s Degree and three years’ experience, or a Bachelor’s Degree and five years’ experience. One case received a Notice of Intent to Deny (NOID) and the other a Request for Evidence (RFE). In both cases, USCIS misinterpreted the requirements as a MS+3 or, in lieu of Master’s, BS+5, meaning three years’ experience plus the Bachelor’s Degree and five years’ experience. Therefore, the officer required proof of each applicant having a Bachelor’s and eight years’ experience.
In the Intent to Deny case, the applicant had a Bachelor’s and more than five years’ experience, but did not have eight years. We responded, stating that the requirements were being read incorrectly from the PERM petition and that the requirements clearly did not require a BS+8, but a BS plus only five years. The USCIS denied this case, claiming that the applicant did not have the required eight years, and denied the accompanying I-485 petitions for the main applicant and his family. We immediately filed a new I-140 case, and this second filing was ultimately approved without any RFE or Intent to Deny. Upon extensive subsequent follow-up, we were also able to have the denied I-485’s reopened and linked to the approved I-140, saving the applicant thousands of dollars in filing fees. As the priority date for this case was current, the I-485’s were processed, and the applicant received his Green Card in a short period.
After the first case was denied, we received the RFE in the second case. The applicant had a Bachelor’s and approximately six years’ experience. Knowing about the denial in the first case, we responded with a detailed argument and an in-depth analysis of the PERM form and answers, the instructions, and the drafts of future PERM petitions that had been released by the Department of Labor (DOL) in attempt to show that the actual requirement was a MS+3 or BS+5, not MS+3 or BS+8 as the USCIS claimed. This I-140 was approved.
The following case is an example of USCIS blanket revocations based upon criminal convictions. Fortunately, USCIS did keep an open mind and permitted us to show the law and the facts in their proper light without having to go to the Court over this.
A petitioner with several employees filed an I-140 application for a beneficiary using substituted labor. USCIS approved the I-140. The beneficiary filed an I-485 application and ported to other employers. Meanwhile, USCIS received a letter of withdrawal of the I-140 petition from petitioner’s representative whom USCIS found had never worked for petitioner. Later, the employer/petitioner pled guilty to mail fraud and admitted to each element of the crime. USCIS found all petitions filed by that petitioner fraudulent. USCIS issued a Notice of Intent to Revoke (NOIR) the beneficiary’s I-140 FIVE years after the I-140 approval and after the beneficiary had ported twice to new employers. We took over the case and filed a response. We pointed out all the legal infirmities with sweeping generalization that overturns all approved cases based upon a conviction. We also pointed out item by item how every allegation in the NOIR was, in fact, without basis in law or fact. USCIS reaffirmed approval of the I-140. Later, the beneficiary’s I- 485 was also approved.
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 completed a three-year Diploma in Computer Engineering from an accredited institution in India (Government Polytechnic Mumbai). The applicant was then directly admitted to the second year Bachelor of Engineering (B.E) program at an advanced level and completed the four-year degree B.E. program.
We provided several items of evidence that indicated that the applicant had attained the foreign equivalent of a four-year Bachelor of Science degree in Computer Engineering from an accredited U.S. college or university.
The I-140 was approved.
We were retained to file H-1B extension for the job title of Manager, HR and Training Operations [SOC (ONET/OES) Occupation Title of 11-3131 Training and Development Manager]. USCIS questioned that the job does not qualify as specialty occupation because the position falls within the category of HR Managers, and, as such, no specific degree or education is required to train for the position of HR Manager.
This was a very difficult case because we had the task of differentiating the proffered position of Manager, HR and Training Operations from that of HR Manager, even though Beneficiary was performing some of the HR Manager functions and his job title appeared to be similar to HR Manager.
We argued in the RFE using decided cases that USCIS should take into account the nature, scope, and size of the Petitioner’s business enterprise along with Petitioner's hierarchy/staffing levels to determine the importance of Beneficiary’s position. We provided data from various universities and arguments how the data correlates with the offered job.
USCIS accepted our arguments and approved the case.