General Nonimmigrant Visa Sample Cases from our office

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.

We filed an H-1B extension for a specialized medical practice on behalf of a physician who had completed a fellowship in this specialty. We subsequently received a Request for Evidence questioning whether his position satisfied the requirements for a specialty occupation and questioning his current immigration status. In our response we noted facts that were already on the record, included probative data from a occupational handbook often cited by the government, and argued that when the offered position requires highly specialized knowledge such as this and when it is established, through his credentials, that the beneficiary possesses such specialized knowledge, the statutory requirements have been established. We argued that the evidence already on the record proved by a preponderance of the evidence that the offered position comports with the government’s  description. Nevertheless, we did provide additional evidence in support of this. We also addressed the question as to beneficiary’s maintenance of his current immigration status by providing evidence and explanation about how he was paid by the employer. The petition was approved seven days after our filing of the RFE Response.  

Status: The petition was approved seven days after our filing of the RFE Response.
 

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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We assisted petitioner, a public accounting firm, in filing an H-1B petition for beneficiary for the position of staff accountant. We received an RFE requesting additional evidence that the position qualified as a specialty occupation by satisfying at least one of the four qualifying criteria for a specialty occupation.  In our lengthy response, we argued that the job duties, as detailed in the petition, and as compared with OOH’s job description for staff accountant not only comports with but goes beyond OOH guidance in its uniqueness and complexity.  We were able to show that although the employee's qualifying degree was not specifically in accounting, it was in an equivalent field with a shared body of specialized knowledge. The petition was approved shortly after filing the response.

Status: We were able to show that although the employee's qualifying degree was not specifically in accounting, it was in an equivalent field with a shared body of specialized knowledge. The petition was approved shortly after filing the response.

 

 

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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We successfully responded to an H-1B request for evidence (RFE), questioning the beneficiary’s maintenance of status. The beneficiary’s previous employer (Employer A) had submitted an H-1B extension. While the petition was pending the beneficiary’s nonimmigrant status expired. An RFE was subsequently received by Employer A, and following the filing of a comprehensive RFE response, the petition was denied. Upon receipt of the denial the beneficiary immediately stopped working for Employer A and shortly thereafter applied for and accepted a job with Employer B, who then filed a petition requesting a change of employer and an H-1B extension. In the interim between the denial of the petition filed by Employer A and the filing of the petition by Employer B, the beneficiary was unable to leave the U.S. due to the COVID -19 pandemic and applicable international travel restrictions. We submitted a comprehensive RFE response clearly establishing that a gap in maintenance of status occurred because of extraordinary circumstances beyond the control of the beneficiary and argued that the matter warranted discretionary approval. The petition filed by Employer B was then approved.

Status: We submitted a comprehensive RFE response clearly establishing that a gap in maintenance of status occurred because of extraordinary circumstances beyond the control of the beneficiary and argued that the matter warranted discretionary approval. The petition filed by Employer B was then 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.

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We filed an H-1B extension petition for a software consulting and professional services firm on behalf of a software architect requesting status and work authorization for a duration of three years. The extension was, however, approved for a duration much shorter than requested and the approval notice was both dated and received after the shorter validity period had already expired, thereby destroying the legal status of the employee and causing him to accrue unlawful presence. We immediately proceeded to file another H-1B extension petition, which was approved, but the extension of status within the U.S. was denied because the employee was “out of status.” These circumstances would have otherwise caused the employee to accrue unlawful presence, subjecting him to a bar from the U.S., and with no choice but to leave the U.S. with his family,  and apply for visa stamping abroad during the beginning stages of the COVID-19 pandemic, when international travel was highly inadvisable. With U.S. consulates abroad being closed during this time, the employee’s ability to work would also be interrupted for an indeterminate amount of time. We filed a  lawsuit against the government to have the employee’s extension of stay approved within ten days in order to prevent the employee from accruing unlawful presence. However, due to the urgency of the matter, and shortly thereafter, we filed a preliminary injunction motion to compel the court to hastily render a decision and preserve the employee’s status in the U.S. After filing the motion, and discussing the case with the government attorney, the government settled the case. The employee immediately received an extension of his status in the U.S. for the entire requested duration, allowing him to stay in the U.S. and continue working.

Status: The employee immediately received an extension of his status in the U.S. for the entire requested duration, allowing him to stay in the U.S. and continue working.

 

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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We filed an H-1B petition for a company that provides IT related services, on behalf of the beneficiary, a  software developer. An RFE was subsequently issued, responded to and then denied as failing to prove that petitioner established that sufficient speciality occupation work was available and that the position qualified as a specialty occupation. We filed an appeal with the Administrative Appeals Office, the appeal was sustained and the petition was remanded back for issuance of an approval notice. During the following months multiple attempts were made by counsel and petitioner to determine and expedite the processing of the approval notice. After approximately six months of delay in issuance of the notice, we filed a complaint with a United States District Court. We were able to successfully argue that this was an unreasonable delay. The case was settled and approximately ten days after filing the case the approval notice was issued.

Status: We were able to successfully argue that this was an unreasonable delay. The case was settled and approximately ten days after filing the case the approval notice was issued.

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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