CASE: Immigrant Visa (Consular Processing)
EMPLOYER: Nursing Care Facility
BENEFICIARY: Filipina Nurse Manager in Manila Philippines
Our client is a nurse manager in the Philippines. Her prospective employer-sponsor as willing to petition for a second-preference I-140. Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).
The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.
Our client has a Bachelor’s degree in nursing and has more than five years of experience as a staff nusre. She also has a registered nursing license in the state of Texas. Our office was retained and we started the Prevailing Wage Determination filing.
Once the prevailing wage was determined, we filed the I-140 application on June 6, 2018 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation.
However, on June 18, 2018, the USCIS issued a Request for Evidence (RFE). The USCIS argued that they cannot approve her I-140 petition because the proffered position, Nurse Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Nurse Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to EB-2 classification argument, our office argued that the proffered position has the supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to RFE to USCIS Texas Service Center on July 27, 2018. Eventually, on August 10, 2018, the USCIS Texas Service Center approved her EB-2 I-140 petition.
Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Our office filed the immigrant visa packets to the National Visa Center on November 8, 2019, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Manila. On January 21, 2021, our client appeared at the U.S. Embassy in Manila, Philippines. However, the Embassy refused the visa and requested our client to update her DS-260 and obtain the job offer confirmation letter from her prospective employer. Our client submitted all of the requested documents to the Embassy. On February 11, 2022, the Embassy approved and issued her immigrant visa. With the approved Immigrant Visa, our client can come to the United States immediately, and she will get her green card within two months of entry.