Success Stories From 2013

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 represented a consulting company and their employee, a Senior Quality Assurance Analyst.  USDOL had denied PERM certification after an audit holding that we had failed to submit tear sheets from our Sunday advertisements.  We filed the appropriate motion establishing that it was highly likely, if not certain, that the tear sheets were in fact submitted.  We provided evidence from our files, affidavits, and proof of our firm’s normal business practice.The case was approved in less than three weeks.

We represented a technology consulting services corporation and a Senior Programmer Analyst employed by the firm. We submitted electronically the applicant’s labor certification (PERM) to the USDOL.  They denied certification without a request for explanation or audit.  The USDOL denial alleged that the employer was required to show on the ETA 9089 (the PERM form) what methodology was used for the foreign degree evaluation.  We responded with appropriatemotion showing that this was clearly government error and a violation of due process.  The forms provide no way of stating this information.  We further presented several legal arguments and cases in support of our clearly justified position. Unfortunately, there is no way to spare anguish and uncertainty inflicted upon our clients, but USDOL did recognize the error and moved to correct it.

The case was approved within four weeks. 

We represented an IT consulting company and a Technical Project Lead employed by them.  The PERM was selected for supervised recruitment.  USDOL denied certification, alleging that the employer rejected a potentially qualified U.S. applicant without an interview.  This is one of the cases where our firm’s knowledge of various fields, including IT, paid off.  The job offered required high-end database experience.  The job applicant possessed only MS Access experience.  We established on the record that MS Access experience could not possibly translate into working with high-end databases in multi-million dollar projects.  We submitted copious amounts of evidence, including data from federal government IT deployments and case law.  We argued that the U.S. applicant was not qualified, could not possibly qualify for the position, and that an interview was not required because hiring the U.S. applicant would necessitate an unreasonable amount of on-the-job training. 

The case was approved in about two weeks.

Our office was retained to process an H-1 Change of Status petition for a Quality Assurance Engineer working on a turnkey project owned by a middle vendor at a client location.  We explained to USCIS that the end-client was infact the vendor, who “owned” the project.  USCIS denied the petition, holdingthat we had failed to obtain proper documentation from the end-client.  We filed an MTR with extensive arguments and evidence that the petitioner was the actual employer of the beneficiary and that the vendor, not the end-client, owned the project. 

USCIS accepted our arguments and approved the petition and the attached I-94.