Besides the opportunity to pursue academic achievements and career development, obtaining a green card is one of the most important goals for many immigrants who come to the United States to seek their dreams. However, the immigration process can be very challenging for most. For instance, Dr. Lin, one of our clients, experienced great uncertainty and concern during his I -140 application process. His case provides many examples of how complicated the immigration process can be and includes an excellent example of how an O-1 petition may be used in conjunction with other status petitions. We present his story here in the hopes that it may offer our clients and readers some helpful insight regarding O-1 petitions, obtaining a green card, and navigating the immigration process.
Note: Any confidential client information has been disguised.
Dr. Lin is a researcher at a prestigious U.S. institution. He received his B.S degree froma famous university in China and his Ph. D. degree in Chemistry from one of the most prestigious universities in Canada.
On October 23, 2006, Dr. Lin sent an inquiry email to Attorney Zhang. At that time, Dr. Lin’s EB-1(a) petition, which was filed with the help of another local attorney, had just been denied by the USCIS and his H-1B visa was due to expire ten days later on November 3. As his wife and children were in H-4 status, they would also be out of status if Dr. Lin lost his H-1B status. Disappointed by his previous attorney, Dr. Lin turned to our office for help.
A few minutes after receiving the email from Dr. Lin Attorney Zhang replied and suggested that he email the denial notice from USCIS and his CV to Zhang & Attorneys for a free evaluation. In addition, Attorney Zhang asked Dr. Lin whether he had done RFE process in the petition.
Dr. Lin replied in one hour with his CV. Attorney Zhang was astonished that his case was denied since he found that Dr. Lin should be qualified for the EB-1(a) based on his academic achievements and contributions to his field. Dr. Lin had published many articles in top journals, including 9 peer-reviewed articles. Furthermore, Dr. Lin was also a member of a very important academic organization and had received many awards and patents.
On October 24th, in order to get to the bottom of why Dr. Lin’s petition was denied, Attorney Zhang asked him to send us the original petition letter, the RFE notice, his response to the RFE and the denial notice. We received all the required documents from Dr. Lin on October 26th. After carefully examining these materials our attorneys came to the conclusion that Dr. Lin was qualified for the EB-1(a) petition. The failure of the original petition was due to a defective strategy and poor arrangement of the documents sent to the USCIS.
Our attorneys offered four options to Dr. Lin:
Follow the instruction of the USCIS and appeal to the Administrative Appeals Unit (AAU);
File a new EB-1(a) petition;
File a NIW petition;
Find a job as soon as possible and have the new employer sponsor an O-1 petition.
Based on Dr. Lin’s current status the first option was not viable. If we appealedto the AAU Dr. Lin’s H-1B visa would expire before anything could be done. Then, if his I-485 was denied, Dr. Lin would lose legal status. The same problem would arise if we pursued option 3.
As Dr. Lin was born in mainland China, he could not file the I-485 concurrently with the I-140 if he files an NIW petition, since the immigration visa numbers are not currently available. Thus, Dr. Lin would also lose his legal status when his current H-1B visa expires.
Since options 1, 2 and 3 are not viable, that leaves option 4. Dr. Lin will need to find a new job as soon as possible in order to obtain O-1 status. Dr. Lin can then re-file for EB-1(a) and receive a new I-485 pending status. Dr. Lin can file for EAD together with hisI-485 petition so he may legally work once his H-1B expires and before his new employer petitions for his O-1. This way if his I-485 is denied he and his family will still be in valid O-1 status.
Attorney Zhang presented option 4 to Dr. Lin as their most viable option for the following reasons:
I-485 pending status on its own is not a safe legal status. If Dr. Lin’s new EB-1(a) petition were to get denied again, and then his I-485 were to be denied, Dr. Lin and his family would be completely out of legal status.
Dr. Lin needs a permit or a status which will allow him to work in the U.S. He has three choices: H-1B，EAD，or O-1. As we said before, an H-1B visa is not available for Dr. Lin now because he has already stayed in the U.S with H-1B visa for six years without renewing it. According to the relevant immigration regulation, if he wants to apply for a new H-1B visa, he has to leave the U.S for at least one year before he can apply for a new H-1B visaAnd if Dr. Lin were to use an EAD card to work (based on a pending I-485 application) he runs the risk of losing status if his I-485 petition were denied.
Dr. Lin can apply for premium processing for his O-1 petition. After paying a $1,000 processing fee, the USCIS guarantees tothe case within 15 calendar days. Thus, if Dr. Lin’s O-1 petition is approved he will obtain a stable three-year legal status and can begin working immediately, even if his EB-1(a) petition is denied.
If no action is taken Dr. Lin will lose his legal status in 10 days. Quickly filing an O-1 petition will mean Dr. Lin will not lose his legal status.
Dr. Lin also inquired about the possibility of changing to an F-1 status. Attorney Zhang believed this was not a good option. First, there was a high chance that the F-1 petition would be denied because he had already filed a previous immigration petition. An F-1 visa petitioner should have no intention of gaining permanent residency status. Additionally, an F-1 visa holder is not allowed to work, meaning that Dr. Lin would have no source of income.
After deciding the petition strategy the next critical step was to submit the EB-1(a) I-140 and I-485 petitions for Dr. Lin before his H-1B visa expired. We had only 7 days left before the deadline. Dr. Lin, in the meantime, should begin looking for a job so his employer can file an O-1 petition on his behalf.
On October 27th Attorney Zhang assigned Dr. Lin’s case to one of our experienced attorneys. The attorney immediately contacted Dr. Lin once he got the assignment. For the new petition, Dr. Lin needed to provide three more academic articles and our attorney prepared a strong petition letter to persuade the USCIS.
In the new petition letter our attorney emphasized that Dr. Lin had already made significant original contributions to his field of research before coming to the U.S. He continued his impressive research and became an internationally recognized expert once entering the U.S. His work could potentially reduce 70% of the adverse side effects of a drug used to treat kidney failure. This was an important development in medical technology that has the ability to help thousands of people. In addition to his academic articles, Dr. Lin submitted 9 recommendation letters outlining his outstanding contributions to the medical field to the USCIS.
Over the next two days our attorney worked day and night in order to submit Dr. Lin’s petition before his H-1B visa expired. On October 30th (3 days before Dr. Lin’s H-1B visa expired), we sentthe petition package to the USCIS Nebraska Service Center (NSC) by FedEx. The petition package included a strong petition letter, required petition forms, 9 recommendation letters, Dr. Lin’s CV, and other supporting materials. From the time that Dr. Lin officially retained us the whole process only took four days, including a weekend.
We tracked the FedEx package and affirmed that the USCIS received Dr. Lin’s petition two days later, on November 2nd. Thus, Dr. Lin now had a legal I-485 pending status when his H-1B visa expired on November 3rd. On November 16th our office received the receipt notice from the USCIS which told us that Dr. Lin’s petition would be transferred to the Texas Service Center.
In addition, Dr. Lin successfully found a new job when we were preparing the EB-1(a) petition documents and the new employer agreed to support his O-1 petition. Our attorney prepared all the required documents in two days and filed the O-1 petition with premium processing service on November 1st. Dr. Lin’s O-1 petition was approved on November 14th, ensuring that Dr. Lin had legal status in the United States in the event that his EB-1(a) petition was denied.
While the EB- 1(a) petition was being processed Dr. Lin asked if we should also file an EB-1(b) petition. Attorney Zhang discouraged him from doing so for the following reasons:
We were confident his re-filed EB-1(a) petition would be approved.
An EB-1(b) petition requires an employer sponsor and an Eb-1(b) applicant can change their job only if their I-485 had been pending for 180 days. The new job should be the same or a similar occupation to the primary one, otherwise the applicant’s green card application would be considered abandoned. If Dr. Lin were to file an EB-1(b) petition, it would be impossible for him to change jobs if he needed to.
Immigration petitions are expensive and since Dr. Lin had already spent a lot of money on his EB-1(a) and O-1 petitions, we did not want him to accrue any more costs.
As we predicted, Dr. Lin’s EB-1(a) petition was approved on March 1st and he and his family were no longer at risk of being out of status once their O statuses ran out. Since his I-140 was approved, we predict that his family will be able to get their green cards soon.
It took exactly four months and five days from the time when Dr. Lin contacted us initially on October 23, 2006 to the time when his EB-1(a) was approved on March 1, 2007. What a pleasant and smooth process!
We worked with Dr. Lin closely and effectively as a team throughout the entire process and the success of his petition can be attributed to our team work. Dr. Lin’s attorney prepared and revised all the necessary documents in 7 days. His professional and persuasive petition letter laid a solid foundation for Dr. Lin’s successful EB-1(a) petition. Our quality control attorney double checked all the petition materials before they were filed while our assistants worked on the forms, notices and client records quickly and carefully. And of course, Dr. Lin’s cooperation and prompt responses during the petition process played a critical role in its success. We were thrilled by the quick and happy result of Dr. Lin’s case. The best reward we receive in our work is the joy of seeing our client’s case approved. An immigration application is a complicated process and, while it is hard to control the result, an experienced immigration attorney can provide guidance and truly help the applicant throughout the challenging process.
(Updated 10/10/2012 by AG)
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