EB-2 Approved Despite Petitioning Company Mistakes

Approval of Green Card For Spouse Despite Red Flags

  • Applicant: Ms. Lee
  • Nationality: China
  • Applying for: EB-2 Employment (advanced degree) Highly educated professional immigrants
  • Case Type: PERM review, Form I-140 (petition for alien worker to become a permanent resident), and Form I-485 (Application to Register Permanent Residence or Adjust Status).
  • Time: 9 months
  • Challenges:
    • Contradictory statement on the application stating that her two years of work experience came from the same company that is hiring her.
    • Coordinating with the company on developing appropriate documentation.
    • Touchy contract negotiations on pay wage could lead to company revoking application.

     

    BACKGROUND

    Ms. Lee had been living in the United States since high school and went on to earn her Masters of Engineering. A Southern California technology company offered her an internship and helped her apply for an H-1B visa. The H-1B visa under the Immigration and Nationality Act (INA) allows U.S. employers to temporarily hire foreign workers in specialty occupations. After three years, the company agreed to sponsor her for an EB-2 green card. The EB-2 visa allows employees in specialized professions who have a Master’s degree or higher to gain lawful permanent residence in the U.S. This was a dream come true for Ms. Lee. Her employer filed for Labor Certification with PERM (Program Electronic Review Management) through the U.S. Department of Labor. Within two months the application was approved. A month later Ms. Lee submitted her Form I-140 (petition for Alien Worker to become a Permanent Resident) and her Form I-485 (Application to Register Permanent Residence or Adjust Status).

    That’s when the process ground to a halt and the difficulties began. Ms. Lee received a Request for Evidence (RFE) from the United States Citizenship and Immigration Services (USCIS). Ms. Lee’s company had made some errors in the petitioning documents. The Corporate Executive Administrator had described Ms. Lee’s new position with the company as an “identical role” since 2012 and then checked “no” on Form ETA 9089 asking if the alien worker gained any qualifying experience in the position and described her new role as substantially comparable. USCIS requested the company establish Ms. Lee’s eligibility as a Materials Engineer by providing proof she qualified for the classification, qualified for the position, and the company could provide the wage offered. The onus was put upon the company to submit evidence Ms. Lee had qualifying work experience with employers other than themselves (which was impossible since Ms. Lee had only worked with them since obtaining her Masters) or evidence her previous work within their organization was NOT substantially comparable to the new position being offered. What substantially comparable means is that at least 50% of the duties for the position are the same. Lost in the complexities of the problem, Ms. Lee did not know where to turn until she found Tsang & Associates.

     

    KEYS TO SUCCESS

    Tsang and Associates understood the core issue for the RFE involved the concept of substantially comparable positions in a current job versus a new position with the same employer. An EB-2 application will be rejected if the alien’s work experience is obtained by engaging in the same or a similar position with the employer and it’s best if that experience comes from a different company. That was not possible in this case so Tsang and Associates had to work closely with Ms. Lee’s employer on how they could communicate in writing how the two positions were fundamentally different. Our firm quickly drafted a letter to USCIS in response to the RFE that included several exhibits.

    The letter concluded with the supposition that “It is evident that the new position consists of at least 61% more complicated duties and is a drastic shift in current responsibilities. She is qualified to have her I-140 approved.”

    The H-1B position is Materials Project Engineer and her PERM application is Materials Engineer. Although the name is different, the work content has many similarities. Tsang and Associates suggested the company make appropriate adjustments in the position requirements. Our firm guided the company on how to prepare detailed job descriptions for the two positions, with a work-by-item comparison table, and company recruitment information. In the end, the company provided sufficient evidence to prove the two positions were materially different and the documentation passed the RFE.

    While the package was being put together another complication arose. The RFE required the company to prove they could pay the wage offered. In their original documents, the company had offered Ms. Lee a grossly underwhelming salary for the position based upon industry standards. Ms. Lee balked at the offer and the company threatened to pull their petition. Tsang and Associates prides itself on being able to navigate difficult negotiations and in the end, both parties came to an equitable agreement.

     

    OUTCOME

    Within two weeks of submitting the package, Ms. Lee received approval for her I-140. Five months after that she passed her interview for the I-485 (Application to Register Permanent Residence or Adjust Status). Ms. Lee now has her green card, a new well-paid position in her company and a bright future. Tsang and Associates are proud to have played a vital role in Ms. Lee achieving her dreams and her future.

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