Success Stories From 2013

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.