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Chicago Law Blogs

Uche O. Asonye, CPA, JD, founded the Chicago law firm of Asonye & Associates in 1993. His firm concentrates on workplace issues, immigration law, employment, and civil litigation. His practice includes employment contracts, discrimination, workplace harassment issues as well as immigration, with special focus on physicians, health care workers and medical institutions. The firm relies on advanced technology to provide competent and cost effective representation for clients

San Antonio, Texas Health Care Institution Approved for Conrad 30 J-1 Waivers For Two Internal Medicine Physicians October 24, 2011 - Our client, a large healthcare institution with a level I trauma center, has successfully acquired the services of two J-1 physicians to join the practice upon completion of their residency programs. The waiver applications submitted on their behalf by our law firm received recommendations through the Conrad 30 program of the State Texas. The two physicians are completing their internal medicine residency and will commence employment once the final waiver approval through the USCIS is completed. Both will work in a medically underserved area in San Antonio, Texas. With the approval of the J-1 visa waivers, the internist physicians are eligible to consider whether to pursue the green card through the national interest waiver (NIW) or PERM process, depending on the individual situations presented.

H-1B J-1 Waiver Transfer Approved for VA Physician Whose Physician Spouse Could Not Find Position Within Commuting Distance

October 13, 2011- We received an H-1B visa waiver transfer approval for a VA anesthesiologist who needed to transfer to a different VA facility because of her husband’s career.  Her husband, also a physician, sough employment extensively in the same city and state where the waiver service was required for his spouse. After several months of job search with no offer, he applied for employment in a different state.  After getting a position in a different state, we applied for a H-1B/J-1 waiver transfer for his wife in order to accept a position in a VA facility near the location where her husband found employment. We submitted extensive evidence of the fruitless job search of the husband in the waiver state, explained in sworn statements that both physicians had to work in order to support the family, as well as the negative effects of a separation on the physician couple and their young child. After review, the application which was filed on September 30, 2011 was approved fairly fast on October 13, 2011.

 

Atlanta Outstanding Professor, Researcher Obtains Green Card As EB-1(B) For Vice President and Teaching Position Under EB-1

June 24, 2011 - The underlying I-140 petition for this professor (Phd.) client was submitted under the Employment Based First Preference Category (EB-1) for Outstanding Professors and Researchers for a position as vice president of an Atlanta University. The position was a tenured lecturer position at a university. The I-140 petition was filed concurrently with the I-485 application which permitted the professor and his entire family to immediately apply for work authorizations and advance parole travel documents given that the EB-1 classification was current and had visas available.

To support the I-140 petition, we submitted evidence and documentation that the professor met the rigid and stringent requirements required of those who seek the EB-1 employment-based green card classification, including his credentials; distinguished scholarly work and publications; evidence of expertise and scholarly eminence; educational qualifications; and word-wide recognition of his work and excellence. After the initial review and extensive request for additional evidence in further support of the petition, the USCIS approved the I-140 along with the I-485 petitions for the entire family on June 14, 2011. The petition was filed on May 14, 2010.

 

I-140/I-485 Adjustment of Status Obtained for Canadian Optometrist Through the PERM Labor Certification Process
June 21, 2011 - We were retained by this Canadian optometrist after clinical internships for H-1B visa application to accept a permanent position in Chicago. The optometrist was originally on the F-1 Student visa status with the Optional Practical Training (OPT) at the time. We submitted a change of status to the H-1B visa for her first employer, a small eye clinic, in Chicago. After several months in that position, she left and accepted another position downstate, Illinois to which we transferred her H-1B visa. With the new employment also, we submitted a PERM labor certification application to initiate the green card process, after appropriate recruitment efforts. The PERM application was submitted in July 2010 and approved in October 2010.

Upon approval of the PERM application, we submitted concurrent a I-140/I-485 green card application in the EB-2 category. Along with those, we requested a work authorization (EAD) and advance parole (travel permit) as we typically do in concurrent green card filings. The EAD card as well advance parole applications were approved while the green card petition was under review. For the I-140, we received a request for further evidence (RFE) from the USCIS asking that the employer prove an ability to pay the wage offered to the optometrist through tax returns and financial statements. Shortly we providing the requested information to the USCIS, The green card petition (I-140/I-485) was then approved on June 21, 2011.

 

Physician Couple Filing Both NIW and PERM Applications Approved Green Cards

June 9, 2011 - This physician J-1 waiver couple, both internists, reached the end of the lengthy visa process for J-1 physicians when they recently received their green cards. Both husband and wife are internists who completed their residency programs on J-1 visas. The wife held a J-1 visa and her internist husband held a dependent J-2 status. My law firm was first retained years ago as they completed their residency programs to apply for a J-1 visa waiver and H-1B visas for permanent employment as internists. We first filed for and received a J-1 visa waiver approval for a waiver position in Chicago. The waiver also extended to the J-2 internist husband and their dependent child. We then applied for H-1B visas for each of the physicians since both needed separate H-1B visas for their employment. Their dependent child remained on the H-4 status. In addition, we filed an I-140 National interest waiver petition under the EB-2 category for the wife. The EB-2 classification was then visa current so we concurrently filed I-485 adjustment of status petitions for the entire family, sponsored by the wife.

Within months, the original J-1 waiver position in Chicago did not work out. We then had to file a J-1 waiver transfer for the H-1B status to new internist positions in Louisiana where both couples had found waiver jobs, proving extenuating circumstances with the job change. We also had to transfer the pending national interest waiver position to Louisiana once we received the Letter of Need from the state. Both the H-1Bs as well as the I-140 national interest waiver transfers were successful and the couple moved to Louisiana to commence their new waiver positions. As backup to the national interest waiver, the internist husband physician submitted a separate PERM application. The PERM application was approved and we submitted a regular EB-2 I-140 and concurrent adjustment of status application for him and his family as well, based on the PERM approval.

Over the years and while waiting to complete the green card process, the couple continued to renew their H-1B visas, EAD cards and traveled using advance parole. The family recently received approvals for the green card application and now look forward to naturalization in time.

 

H-1B Family Practitioner Approved for J-1 Transfer to CT due to Various Violations By Employer

March 22, 2011 - We filed an H-1B transfer petition for a family J-1 waiver physician in Connecticut on February 17, 2011 and received approval on March 22, 2011. This physician was in the process of completing the J-1 service when the terms and conditions of his employment changes so much that he needed to terminate the position and relocate to different employment. The J-1 waiver transfer application was based on several different violations by the employer that, when added together, qualified as extenuating circumstances for the USCIS to approve the application. This waiver physician was subjected to various contact breaches including non-payment for all time worked, being required to work more than the contract specifications, as well as being pressured to engage in conduct that they physician felt was unethical thereby endangering his professional standing. In support of the application, we submitted affidavits, detailed work records and evidence of unpaid time and hours outside the contractual bounds. We also cited examples of other violations by the employer in support of the application. Upon review, the USCIS concluded that the evidence was sufficient to establish extenuating circumstances requirement of the J-1 waiver transfer request.

 

Premium Processing of I-140 Permits Specialist Physician to Complete Green Card Processing in Time For the 6-year H-1B Limitation

October 18, 2011 - This pulmonary/critical care physician was admitted to permanent residency on October 18, 2011.  This fairly complex matter came to us in 2010. It was difficult because of time constraints resulting from the fact that this specialist used most of his entire 6 year H-1B time completing his residency and fellowship, without starting the green card process.  He had spent more than 5 of the 6-year H-1 maximum stay at the time we were retained.  Given that he had less than 1 year left on H-1B status and had not filed a PERM application, we could not continue to extend his H-1B after 6 years without some complex legal maneuvers.  Generally, after the 6th year, a PERM or I-140 green card petition had to be pending for more than 365 days before further yearly extensions of the H-1B can be obtained.  As such, this physician was facing possible abrupt departure after completing his fellowship as he would have used up total of 6 years on the H-1B status for the residency and fellowship without having started the green card process.

To keep him here, we needed to have his I-140 and/or I-485 filed and pending before his H-1B visa expired in less than one year.  That meant that we needed a very fast PERM approval. Another option was to file a request for premium processing of the I-140 petition after the PERM is approved. Once approved, we would be able to extend his H-1B visa into the 7th year and thereafter. The third option was to simply pursue an NIW green card petition which permits concurrent filing of the I-140/I-485 immediately with EAD requests, and bypassing the PERM process to save time.  This third option obviously required employment a medically underserved area which he did not have.  So, we decided to pursue options 1 and 2. We started out by submitting a PERM labor certification application after an expedited recruitment campaign.  To give us additional time, we immediately filed an H-1B recapture application.  In the application, we requested an extension of the H-1B status for the amount of time he spent outside the U.S.  on vacation and for other purposes.  We were careful to request each day that could be recaptured to obtain the maximum extension. The extension request was granted and he was given several more weeks on the H-1B status.

Fortunately, the PERM labor certification petition was approved expeditiously within weeks. We filed an I-140 EB-2 (premium processing) petition and requested expedited processing citing that immediate approval was necessary in order to obtain further H-1B extensions into the 7th year.  Upon receiving the I-140 approval, we were then able to extend his H-1B visa into the 7th year and also filed an I-485 adjustment of status petition for him.  Shortly thereafter his I-485 was approved and he became admitted to permanent residency before during his 7th year, completing the immigration process.

 

Processing Times for Actual H-1B Visa, PERM, I-140/I-485 Green Card Adjustment Application for Fla. Emergency Room Physician

I get a lot of questions from physicians completing their residency training programs and evaluating their prospective employers and visa options. Considerations about the length of the visa process frequently factor into the decision as to which employer is most attractive to the physician. One of the most common questions is how long the entire H-1B, PERM and green card process take to complete, from beginning to end. I advise physicians that processing times vary significantly based on the service center where the petition is filed, USCIS and DOL work schedules, the schedule and inclinations of the individual examiner assigned to the case and how may requests for further evidence (RFE) by that examiner. Some examiners issue more RFEs than others.

All in all, processing times could vary widely. However, for H-1Bs and certain I-140 petitions, premium processing may be requested under which the USCIS is obligated to approve the application or issue an RFE within 15 days of filing. Once they receive the RFE response, the USCIS must act on the application within 15 days.

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January 31, 2011 - We received a premium processing H-1B visa waiver transfer approval for a pediatric neurologist who applied for a J-1 waiver transfer after the termination of his previous employment. After the termination, he found a new employer within a couple of weeks. The new employer is located in a medically underserved area in the same state as his former employer. We submitted the H-1B/J-1 visa waiver transfer (premium processing) application on January 20, 2011 and received the approval on the 31st. The application was received by the USCIS for premium processing on January 21, 2010.

In the J-1 visa waiver H-1B transfer application, we relied on several reasons to meet the extenuating circumstances standard. First, the physician was paid less than the actual wage stated in the contract. Second, the physician was directed by his employer to engage in what the physician believed to be medically unnecessary tests. Finally, the physician’s patient’s tests were changed by the employer in an effort to enhance billing amounts. Ultimately, the former employer suspended and terminated the physician due to the resulting on-going conflicts. The extenuating circumstances were detailed in a statement we prepared on behalf of the physician.

With new employment in a medically underserved area, the USCIS approved this J-1 waiver transfer, permitting the neurologist to complete his waiver service at the new location. In addition, the USCIS approved the transfer and continuation of the H1B status without requiring that the physician leave the country for a stamp before commencing the new employment.

February 4, 2011 - The past J-1 waiver and transfer filing season was fairly busy for our law firm. The applications we have handled this season include physicians, physician groups and institutions in different specialties spread out in states across the country, including Colorado, Illinois, Michigan, Alabama, Arizona, Maryland, New Jersey, Connecticut, Florida and Indiana. The states of Illinois and Michigan recently performed their review of Conrad 30 J-1 waiver applications.

Our law firm received favorable recommendations and waivers for all the physicians we represented in these 2 states. We received waiver recommendations and sponsorships for one internist in Illinois; two general surgeons and a pediatrician in Michigan. We were quite delighted especially given the fact that both states seemed to have received more applications than the 30 spots allowed.

Typically, when more than 30 applications are received, states apply different methods and criteria to prioritize applications and determine which ones to sponsor. Many states give preference to primary care physicians over specialists. Others base their preferences on actual location, HPSA scores, number of physicians presently in the area, specialty area, or a combination of these factors.

December 13, 2010 - We received an H-1B visa waiver transfer approval for an internist who was employed at a J-1 waiver job, starting March 2010. After he started the position, in an apparent effort to reduce costs, his employer cut his salary from the amount agreed in the contract to a lower amount. The lower salary incidentally coincided with the prevailing wage determination amount. Due to the reduced salary, the physician sought new employment that can support a J-1 visa waiver transfer.

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Majority Leader Reid Files New Version of the DREAM ACT (S. 3992) To Address Republicans’ Concerns

 The DREAM Act (S. 729/H.R. 1751) provides qualified undocumented students and those who agree to serve in the armed forces an opportunity to earn permanent legal status. To qualify for this six-year path to legal permanent residency, such aliens must successfully complete educational or military requirements. The bill targets legalization of young people brought into the United States at an early age, who have spent the majority of their lives in the U.S. The legislation would provide an avenue for these young people to acquire legal status if they pursue a college degree or join the U.S. military for at least 2 years.

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November 18, 2010- The U.S. Ambassador to India, Timothy J. Roemer, announced that visa applications are now accepted across India at all visa facilities, regardless of the applicant’s home address or city of residence. This was done to make the visa application process more convenient for all Indians and to facilitate legitimate travel to the United States.

 In addition, the U.S. Embassy reorganized the following Indian consular districts: Embassy Delhi, Mumbai, Hyderabad, Chennai, Kolkata. This action was taken as a way to best capture the dynamism of India’s growth across the nation. According to Roemer, "With these changes, we believe our Consulates General and our Embassy in New Delhi will be even better positioned to support and serve Indian visa applicants, as well as American citizens and businesses throughout India."

 

Pros and Cons of PERM Labor Certification vs I-140 National Interest Waiver for Doctors in Medically Underserved Areas

 I am frequently asked by foreign medical graduates (FMGs) whether to pursue a PERM labor certification application, the I-140 NIW petition or both. While both options are available to International Medical Graduates (IMGs), the one that is best depends on the individual physician, his/her family situation, and his/her opinion of the sponsoring employer. Here is a summary of the key differences.

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Introduced by Senator Robert Menendez (D-NJ) and Senator Patrick Leahy (D-VT)

Senators Patrick Leahy (D-VT) and Leahy (D-NJ) introduced a comprehensive immigration bill in the U.S. Senate. The Menendez-Leahy bill is the first comprehensive immigration bill introduced in the Senate since 2007. It includes key elements that both Republican and Democratic leaders have called for: enhanced border security, mandatory employment verification, fixes to the business and family visa systems, a legalization plan for the millions who are undocumented, and stiffer penalties on illegal immigration. Here is a summary of the contents of the bill:

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Employers Employing More Than 50% in The H-1B or L-1 Classification To Pay Additional $2,000 or $2,250 Filing Fee

Effective August 14, 2010 through September 30, 2014, employers that employ more than 50% of its employees in the H-1B or L-1 visa classifications face an additional filing fee of $2,000 or $2,250 for each H-1 or L-1 application. The new fees apply to petitioners with a total of 50 or more employees. The fee is required for an initial application to employ an alien or change employers in one of these categories.

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Extenuating Circumstances/Undue Hardship Approved for J-1 Visa Waiver Transfers for HPSA Doctors (FMGs/IMGs)

I frequently get questions from J-1 waiver physicians who need to transfer from one medically underserved facility to another. Most of the questions revolve around what qualifies as "extenuating circumstances" or "undue hardship" under the USCIS’ definition. The USCIS does not give specific parameters or instances with respect to what qualifies. From my experience however, both the personal circumstances and work situations of the physician might cause extenuating circumstances or undue hardships that qualify. For example, a transfer that would permit a physician to be closer to his/her family might qualify as well as a situation where the present waiver employer is underpaying a physician. One reason might qualify as an "extenuating circumstance" and the other because it creates "undue hardship" for the physician.

Here are some recent examples of situations that we have handled that USCIS found to the be sufficient to prove extenuating circumstances or undue hardship, permitting a transfer. Note however, that each USCIS examiner may differ in his/her assessment of each situation and may reach different conclusions from the others.

Colorectal & General Surgeon J-1 Waiver Transfer From Oregon to Illinois

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September 2010 - Black Dockworkers and Janitors Subjected to Nooses, Racist Graffiti, and Adverse Working Conditions

CHICAGO – Federal Magistrate Judge Susan E. Cox has granted preliminary approval to a $10 million, five-year consent decree in connection with the race harassment and discrimination lawsuit against Roadway Express and YRC, Inc that had been brought by the EEOC. In addition, the decree enjoins future discrimination at the facilities and requires the appointment of a monitor to oversee its implementation.

 In the lawsuit, the EEOC claimed that the company subjected black employees at its Chicago Heights, Ill., and Elk Grove Village, Ill., facilities to a racially hostile working environment and racial discrimination in terms and conditions of employment. Roadway Express operated the facilities until its merger with Yellow Transportation, when the two companies combined operations to form YRC, Inc., in October 2008.

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J-1 Waiver Application Submission Period Begins October 1, 2010 for HPSA physicians in Michigan

The Michigan Health Council has issued a reminder to physicians and healthcare facilities who seek to apply for J-1 visa waivers for physicians who intend to work in a medically underserved as follows:

 Don’t Delay! The application submission period 2010-11 J-1 waivers is less than two (2) weeks away. Completed applications can be returned to the Michigan Health Council for processing from October 1, 2010 to November 30, 2010. Last year we filled all 30 waiver slots during this one application window, so we encourage you to request your applications packets now if you have not already done so.

To request a Conrad 30 Application Packet on behalf of your client(s):

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