Sample Cases from our office

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 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 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.

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.