Immigration.com 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.
Category: Form I-140, NOIR
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: BALCA, EB2 Green Card, PERM - Labor Certification, DOL
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: Engineers, Form I-140
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Type of Case: H-1B Extension
Category: Managers and Executives, H-1 Visa, Extension
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: Outstanding Researcher, Professor
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: Outstanding Researcher, Professor
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: EB2 Green Card, Physical Therapists
Status:

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.

 

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: PERM - Labor Certification, Physicists, DOL
Status:

It is HIGHLY unusual for a PERM case to have such a convoluted history, but here is one where success came after two denials.

We filed a PERM application under EB-2 for a Physicist’s position for which no formal training was required. The job also did not require employment experience, but did require hands-on work in a university research laboratory with a particular equipment.  DOL denied the application stating essentially that the job requires training.  According to them, “hands on work” is the same as formal training.

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. We submitted that hands-on work in a university research laboratory does not constitute formal training. Upon consideration, DOL agreed with us and reopened the application.

A year and a half later, DOL issued an Audit Notification. Immediately following our response, DOL denied the application for the second time, stating (incorrectly) that the advertisements were defective due to some technical reasons. Our response, in the form of another MTR/Appeal, included a clear exposition of the law. Given that the denial reason was clearly an error on DOL’s part, we requested the case be placed into an expedited review so the case would quickly be reopened and approved. To our relief and joy, within one week DOL certified the labor application.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: National Interest Waiver, Physicians
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: EB5 Green Card
Status:

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.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

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