CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing
EMPLOYER: Physicians’ Office
BENEFICIARY: Kenyan Nurse Practitioner
LOCATION: Houston, TX
Our client is a family nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a family nurse practitioner, she is eligible for “Schedule A” classification.
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 first going to the DOL for a labor certification. 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. The position of Nurse Practitioner is included in Schedule A.
Our client has a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on March 16, 2020 and we filed the Prevailing Wage Determination immediately.
We filed the I-140 application on September 25, 2020 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 nurse practitioners must fall under the Schedule A designation. Eventually, on October 14, 2020, the USCIS Texas Service Center approved her EB-2 I-140 petition without a Request for Evidence (RFE).
Our client retained us again for her adjustment of status application. However, our office was informed that our client’s OPT was expired and she had continuously worked for her employer without the DHS’ authorization. Thus, she worked without authorization and overstayed her visa status.
Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days:
- Failed to maintain, continuously, a lawful status;
- Engaged in unauthorized employment; or
- Otherwise violated the terms and conditions of his or her admission
INA §245(k).
An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.
(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a).
Our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).
As mentioned above, our office filed an I-485 adjustment of status application for our client on December 22, 2020. Our office also submitted a detailed cover brief and explained why our client is still eligible for the adjustment of status through the INA 245K subsection despite her overstay and unauthorized employment. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on November 1, 2021, her adjustment of status application was approved by the USCIS without an interview.