E3 Immigrant Visa with 212(g) need proof of previous employment

[yasinpuertas 1]

Well, let me explain:

I did work for an organization between the years 2000 and 2005 as a PR specialist in Spain. This is the experience I used to comply with the requirements of the Labor Certification. I worked between 2001 and 2003 as a full time teacher of media arts and communication at a local community college, to get a decent salary. I did both at the same time for two years. Since you can teach full time at community college for only 18 hours a week, I could do both at the same time.

Then in 2004 I entered the USA under a J1 visa to participate in a visiting teacher program in Texas. In 2008, my sponsor agreed to fill a petition for an H1B for a change of status sine I was granted a waiver that would let me stay in the USA longer (the J1 visa requires the beneficiary to return to home country for at least two years before applying for a new one after three years witch are non renewable). Once obtained the H1B, another company (not my primary beneficiary which was a School District) that needed a PR specialist was interested in my services (I actually helped them with a couple of things before as a favor and the boss liked my style of doing things) filled another I-94 for joint sponsor with him. At that time, yes, I worked for both the School District and the company. The company started the process for a EB3 visa, since he wanted to have me full time (not to be shared with the School District) which is fine by me, as I'm not primary a teacher, but a PR specialist with a bachelors degree on the field. I leaved the USA due to family matters and chose to do the "consular processing" instead of AOS.

Now the CO asked me about this "second I-94" stating that my employer actually filled it for me to be legally working for him, as well as for the School District at the same time. I provided the document right away.

What do you think?

[yasinpuertas 1]

Well, let me explain:

I did work for an organization between the years 2000 and 2005 as a PR specialist in Spain. This is the experience I used to comply with the requirements of the Labor Certification. I worked between 2001 and 2003 as a full time teacher of media arts and communication at a local community college, to get a decent salary. I did both at the same time for two years. Since you can teach full time at community college for only 18 hours a week, I could do both at the same time.

Then in 2004 I entered the USA under a J1 visa to participate in a visiting teacher program in Texas. In 2008, my sponsor agreed to fill a petition for an H1B for a change of status sine I was granted a waiver that would let me stay in the USA longer (the J1 visa requires the beneficiary to return to home country for at least two years before applying for a new one after three years witch are non renewable). Once obtained the H1B, another company (not my primary beneficiary which was a School District) that needed a PR specialist was interested in my services (I actually helped them with a couple of things before as a favor and the boss liked my style of doing things) filled another I-94 for joint sponsor with him. At that time, yes, I worked for both the School District and the company. The company started the process for a EB3 visa, since he wanted to have me full time (not to be shared with the School District) which is fine by me, as I'm not primary a teacher, but a PR specialist with a bachelors degree on the field. I leaved the USA due to family matters and chose to do the "consular processing" instead of AOS.

Now the CO asked me about this "second I-94" stating that my employer actually filled it for me to be legally working for him, as well as for the School District at the same time. I provided the document right away.

What do you think?

[Boiler 45,488]

Interesting, I did not think a H1b could have joint sponsorship, well I have never heard of it before. One Visa one I 94.

Now you can have multiple Visa's which would produce multiple I 94's.

Perhaps that was the issue?

[yasinpuertas 1]

Update.

Case was returned to USCIS with a recommendation for revocation. The CO says in the refusal letter that I failed to establish the experience required to qualify and, therefore, exists evidence that wasn't available to USCIS at the time of the approval of my I-140 that may be material to such approval.

Now,

1. I don’t know if reapplying would be wiser than waiting for the USCIS to reaffirm or issue a NOIR. Maybe this could be a faster way to get the paperwork straight back to the embassy now that we know what was the problem, how to overcome it and (maybe) with an AO in hand to make our case before the CO. I know that I would have to pay for the immigration fees again but, Do you guys think it makes sense?

2. If reapplying could be an option, Can I try the “professionals” category instead of the “Skilled workers”. Because in this category, a bachelor’s degree is mandatory, but experience is not. The other requirement is “be a member of the profession” which I could demonstrate as I am a member of the National Professional Association of the Press and the Federation of International Press (http://www.ipf-fip.org) since 2001.

3. Do you guys think premium processing would be available? I now it would be around $1500, Do you guys believe is worth it?

4. If the visa is not reaffirmed and finally we cannot (for some strange reason) overcome the refusal by the USCIS, Do you think I can still apply for a non-immigrant visa in the future?. It is just that I don’t know how much time would be necessary to wait until the requirement to demonstrate the intention not to immigrate can be overcame.

Thank you all

Yasin

[Boiler 45,488]

The two things you do not mention are:

Your Employer, who is paying for all this.

The Lawyer handling the case.

What do they say?

[yasinpuertas 1]

My employer is a nation-wide Houston based company that is in dire need of my services. That is why they are paying for the cost of the Labor Cert. I paid for the immigration fees for me and my family. Now I'm retaining a lawyer for the consular process since I would have to do a series of actions to defend my case.

My lawyer says we could keep trying at consular level to ask for a review of the case, since he is certain that the decision made was a very narrow (at the very least) interpretation of the law and that the USCIS will most likely reaffirm the case (since there is no "new evidence" but if you may "a lack of hard evidence" other than the one required by the Code of Federal Regulations). If the consular post is not willing (or able) to review the case, we could reapply and the employer says they are willing to pay for premium processing so I can be at consular post for a new interview sooner.

Hope this clarify.

[lucid 4]

The Employer is desperate because he has a PR and Marketing department that needs a bilingual skilled supervisor, and even though I have meetings with them over the Internet and make some work from here, he needs me there to start a new project creating a tv show for his company. He waited because he says he is not going to invest that amount of money without having the right person on board.

Of course 8 years is a lot of time, but that is how much it took for the process to finish, nothing to do with me but a rescheduling of the visa interview due to my wife's last pregnancy, last year.

The lawyer says it would be ok now that the documents are produced and the phone call was made. He believes there is nothing else needed to prove the experience was real.

just curious. the employer wants you to hire as supervisor. you have more than 5 years of experience. why would he petition you under eb3 and not eb2? eb2 is quite faster than eb3.. my eb3 is still pending and my eb2 which was just applied last april is now in NVC for processing. just a thought.

[yasinpuertas 1]

Yes, that is something that crossed my mind too, back in the day when the priority date was taking so long. Now, if I'm able to reapply in the same category, the lawyer says I don't have to wait bur for the USCIS to process the new I-140

[Boiler 45,488]

So you know this is unusual, normally the Employer would be employer would be paying for the Lawyer, picking up most of the costs including relocation.

[yasinpuertas 1]

Boiler, they DID pay for their lawyer but not for the immigration fees since I'm bringing my whole family (we are five). He did not pay for the medical check up or the cost of the documents (birth certificate, criminal records...) for the same reason. He pays for MY plane ticket when I'm able to obtain a visa.

I'm retaining a lawyer for the USCIS process to represent me and my family, but my employer has a lawyer ALSO. I just wanted to make sure what are MY options regardless of what my employer's are, and that further action do not hurt ME or MY FAMILY (not the employer). Meaning, I want to be able to visit the USA in the future or be able to work for another employer if this process do not ends positively, and every single action taken needs to be done with BOTH interest in mind (mine and my employer's), so that is why I hired a lawyer for myself now that I have been refused. See, this already made me and my family be OUT of the ESTA program, so this is negatively affecting us already.

[arken 4,197]

My employer is a nation-wide Houston based company that is in dire need of my services. That is why they are paying for the cost of the Labor Cert. I paid for the immigration fees for me and my family. Now I'm retaining a lawyer for the consular process since I would have to do a series of actions to defend my case.

My lawyer says we could keep trying at consular level to ask for a review of the case, since he is certain that the decision made was a very narrow (at the very least) interpretation of the law and that the USCIS will most likely reaffirm the case (since there is no "new evidence" but if you may "a lack of hard evidence" other than the one required by the Code of Federal Regulations). If the consular post is not willing (or able) to review the case, we could reapply and the employer says they are willing to pay for premium processing so I can be at consular post for a new interview sooner.

Hope this clarify.

It seems like the embassy has already mailed your case to USCIS, so i don't think it can now be resolved at the consular level. Once the USCIS receives your package, they will contact your employer's attorney on record and you have to go from there and provide any documents necessary to resolve it. If USCIS reapproves your case and sends back to the embassy again through NVC, then there might be a better chance of getting visa at that time.

[yasinpuertas 1]

I'm wondering if I can travel to the US as a visitor until the matter is resolved. If my employer can reapply on my behalf and submit a new I-140 to expedite the process or even pay for a premium processing at USCIS (the process now it's expected to be delayed for up to one year) or if, after a possible hard denial I would be ever able to be hired as a non-immigrant like I was before for other employers that might be not willing to sponsor an immigration visa but a non-immigrant one. Those are my concerns now.

[Boiler 45,488]

I presume you should qualify for the VWP, so yes you can certainly apply for ESTA, only downside is that you would need to declare a refused visa.

I have personally not met many people who came here through family but quite a few who came through work, most came on H or L's as this was quickest and then the Employer sponsored them for a GC. I alos know one person here on an O.

Pretty sure in most if not all cases the cost of the family was part of the deal.

Now of course the Lawyer appointed by the Employer is acting for the Employer, and their interests may not be the same as yours. Having said that seems very rare for the Employee to have their own Lawyer.