Case: I-130/I-485
Applicant/Beneficiary – French
Location: Philadelphia, PA

Our client entered the United States in November 2021 from France under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.  She came to the U.S. to see her U.S. citizen fiancé. Her fiancé filed a K-1 visa petition for her and she was waiting for the K-1 visa interview in Paris, France. Nonetheless, she came to the U.S. to spend time together with her U.S. citizen fiancé.

While she was staying in the U.S., the omicron variant became widespread. Our client and her fiancé changed their plans and she married her U.S. fiancé in February 2022. 

They contacted our office and consulted with us regarding adjustment of status. After the consultation, they retained our office.  One issue in her green card application was the fact that she came to the United States under the visa waiver program. As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on February 14, 2022.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices and the fingerprint appointment all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls. On June 9, 2022, our client was interviewed at the Philadelphia Pennsylvania USCIS Field Office.  The interview went well, and the USCIS approved her adjustment of status application on June 10, 2022.  Now, our client is a green card holder.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: French

LOCATION: Ravenna, OH

Our client contacted us in September 2021 to seek legal representation for his naturalization application. He came to the United States from France and obtained his green card in May 2014.

Shortly upon retention, his N-400 application was filed on October 7, 2021 with all supporting documents. Prior to his citizenship interview, our office prepared him via conference calls.  On March 8, 2022, our client appeared at the Cleveland, Ohio USCIS office for his naturalization interview. Our client answered all questions correctly and passed his naturalization interview. On March 9, 2022, his application was approved. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: EB-3 I-140    
EMPLOYER:  Research Foundation in Washington, D.C.
BENEFICIARY: French Staff Accountant

Our client is from France. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Accounting and has worked for his current employer on an H-1B status since 2013. After talking to our client, our firm concluded that his employer can petition him as a Staff Accountant. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On December 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on April 23, 2018. On July 9, 2018, we promptly filed PERM. Eventually, on August 31, 2018, the PERM Labor Certification was approved – an EB3 position for the French beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on October 29, 2018 via premium processing service. Eventually, on November 8, 2018, the I-140 EB3 Petition for our French client was approved without any Request for Evidence (RFE). He can file an I-485 adjustment of status application for his green at any time since his priority dates are current.

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CASE: PERM Labor Certification    
EMPLOYER:  Research Foundation in Washington, D.C.
BENEFICIARY: French Staff Accountant

Our client is from France. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Accounting and has worked for his current employer on an H-1B status since 2013. After talking to our client, our firm concluded that his employer can petition him as a Staff Accountant. Based on our client’s educational, professional and work backgrounds, our office determined that he clearly eligible for EB-3 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On December 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on April 23, 2018. On July 9, 2018, we promptly filed PERM. Eventually, on August 31, 2018, the PERM Labor Certification was approved – an EB3 position for the French beneficiary. Now our client can file the I-140 petition.

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CASE: I-751

APPLICANT: French

LOCATION: New York, NY

Our client contacted our office in August of 2016 regarding his I-751 application.

He is from France and he married a U.S. citizen in July 2014. Through his marriage, he obtained a 2-year conditional green card in February of 2015. Thus, his conditional residency terminated in February 2017.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office on September 1, 2016, and our office prepared an I-751 application for our client with supporting documents.

On November 21, 2016, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, joint lease documents, joint tax documents, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later. Eventually, on October 13, 2017, the USCIS approved our client’s I-751 application without any Request for Evidence (RFE).

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CASE: H-1B Visa Petition-Extension

PETITIONER: Research Foundation in Washington, D.C.

BENEFICIARY: French Staff Accountant

ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research associations for the advancement, health, and sustainability of student affairs in the United States. Its National Headquarters in D.C. contacted our office in August of 2016 to seek legal assistance for their foreign employee’s H-1B Extension. The beneficiary is a Staff Accountant for this organization who has been working for Petitioner under an H-1B status. With our office’s legal assistance, he got his H-1B in January 2014.

The beneficiary is the citizen of France, and has a Bachelor’s degree from the United States. The proffered position for the Beneficiary is a Staff Accountant. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Accounting or its equivalent.

This H-1B case is exempt from the numerical limitation because our client is qualified for cap-exempt petitions since it is a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C) so it is exempt from the numerical limitation.

Once retained, our office filed the H-1B visa extension petition with various supporting documents on November 15, 2016.

Eventually, our client’s H-1B application was approved on June 19, 2017, without any Request for Evidence (RFE).  He can now work for his employer for three more years.

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Case: I-130/I-485

Applicant/Beneficiary – French

Location: New York, NY

Our client entered the United States in August 2014 from France under the visa waiver program. He came here to visit his U.S. citizen wife for a couple months. As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. Later, our client and his wife changed their mind and decided to file I-130/I-485 application for our client in the United States.

One main issue in his green card application through marriage was the fact that he came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability; it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Another possible issue was immigrant intent. In this case though the beneficiary changed his mind here in the US.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 3, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before his authorized period of stay expired. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On February 18, 2015, our client was interviewed at the New York City, NY USCIS Field Office.  Despite the visa waiver issue, on February 20, 2015, the USCIS approved his green card application.  Now, our client is a green card holder.

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Case: I-130/I-485

Applicant/Beneficiary – French

Location: Cleveland, OH

Our client entered the United States in November 2013 from France under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now husband). As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Less than a month after her entry, in late November 2013, our client and her U.S. citizen boyfriend got married in the United States.

Afterwards, she contacted our office, and they retained us.

One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.  Under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Another potential issue was immigrant intent. When someone comes on a non-immigrant status or visa waiver, there shouldn’t be any intent on that entry to apply for adjustment of status. In their case though, despite the marriage, at that point they weren’t set on actually living in the United States. Thus, there was no immigrant intent upon entry.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on December 26, 2013.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay expired. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. Prior to the interview, we thoroughly prepared our clients.

On April 10, 2014, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver and potential immigrant intent issue, on the same day, the USCIS approved her green card application.  Now, our client is a green card holder.

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CASE: H-1B Visa Petition

PETITIONER: Research Foundation in Washington, D.C.

BENEFICIARY: French Staff Accountant

ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research associations for the advancement, health, and sustainability of student affairs and education in the United States. Its National Headquarter in D.C. contacted our office in early December 2013 to seek legal assistance from our office for their foreign employee. The beneficiary is a Staff Accountant for this organization who has been working for Petitioner under the OPT program.

The beneficiary is a citizen of France, and has a Bachelor’s degree from the United States. The proffered position for the Beneficiary is a Staff Accountant. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Accounting or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, we believed our client is qualified for cap-exempt petitions since it is arguable that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

After retention, our office filed the H-1B visa petition with various supporting documents on December 27, 2013 via premium processing. This included an extensive brief arguing that our client was cap-exempt. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on January 3, 2014.  He can now work for his employer for three years on an H-1B status, and he did not have to wait for April 1 for the petition filing, nor October 1 to start working.

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CASE: I-130 / I-485

POTENTIAL ISSUES: Visa Waiver Entry – Overstay

APPLICANT / BENEFICIARY: French

LOCATION: San Francisco, California

Our client entered the United States on February 5, 2010 from France under the visa waiver program. She married her U.S. Citizen spouse on April 14, 2010.  However, her authorized stay in the United States expired on May 6, 2010.

The critical point of her green card application through a marriage was the fact that she came to the United States under the visa waiver program. On March 31, 2008, the 9th Circuit Court of Appeals in Momeni v. Chertoff issued a decision in a Visa Waiver overstay case that has presented difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status.

Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S., to visit and then leave without all the red-tape involved in visa issuance.  In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, and later was taken into custody for having violated the terms of his stay. Eventually, the holding in Momeni made in hard for VWP entrants to adjust their status in the United States after their authorized stays expired.

Our client resides in California, so her application was subject to the holding in Momeni. Despite facing having to potentially deal with this case, our office filed the I-130 Petition and Adjustment of Status Application on July 7, 2010.  In the application, our office requested CIS discretion for our client’s application. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in filing the I-130 and the I-485. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. We prepared our clients over the phone for their interview. On January, 2011, our client was interviewed in San Francisco, CA.  That same day, without any objection, the officer granted our client’s petition and her green card application.  Now, our client is a green card holder and she got it despite filing her adjustment of status application after her VWP overstay.

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