CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, No Objection Statement

 NATIONALITY: Nepalese

 LOCATION: Bothell, WA

Our Nepalese client came to the U.S. on a J-1 exchange visitor’s visa for his research program. Abroad, he changed his status from J-1 to F-1 to finish his Ph.D. program in the United States. His employer intended to file an I-129 H-1B petition for him. However, his J-1 visa made him subject to the two-year foreign resident requirement. Due to the two-year foreign residency requirement, he had to obtain a waiver first before his H-1B process.  

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Nepalese Embassy in the United States.  Our office contacted the Nepalese Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested numerous documents including a statement of reason for the waiver, the applicant’s resume, a copy of his valid Nepalese passport, a copy of DS-2019, and a copy of Third Party Bar Code Page

On February 22, 2022, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Nepalese Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file an H-1B petition but for the waiver.

The Nepalese Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On May 4, 2022, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on July 6, 2022.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Nepalese

LOCATION: Blacklick, OH 

Our Nepalese client came to the U.S. on a F-1 student visa in August 2015. In August 2021, our client married his U.S. citizen wife.  He retained our office on September 7, 2021 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October 12, 2021.  Everything went smoothly and the receipt notices and fingerprint appointment came on time. Prior to the interview, we thoroughly prepared our clients via conference call. On June 23, 2022, our client was interviewed at the Columbus, OH USCIS office. On June 24, 2022, his green card application was approved.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Nepalese

LOCATION: Oxford, MI

Our client contacted us in June 2021 to seek legal representation for his naturalization application. He came to the United States from Nepal and obtained his green card in October 2018 through his marriage to his US Citizen spouse. 

His N-400 application was filed on July 6, 2021, with all supporting documents. Prior to his citizenship interview, our office prepared him via conference calls.  On January 18, 2022, our client appeared at the Detroit, Michigan USCIS office for his naturalization interview. Our client answered all questions correctly and passed his naturalization interview. On January 19, 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: Marriage-Based Adjustment of Status

NATIONALITY: Nepalese

LOCATION: Akron, OH 

Our client is from Nepal who came to the U.S. on a B-2 visitor’s visa in October 2014. Since then, he has remained in the United States.  In March 2021, our client married his current U.S. citizen wife.  He retained our office on June 24, 2021 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 7, 2021.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we thoroughly prepared our clients at our office via conference calls. On December 7, 2021, our client was interviewed at the Cleveland, OH USCIS office. Attorney Sung Hee (Glen) Yu accompanied our clients as well. On December 10, 2021, his green card application was approved.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Physician’s Office

BENEFICIARY: Nepalese Nurse Practitioner

LOCATION: Bridgeport, CT

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for EB2 and “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 and we filed the Prevailing Wage Determination.

We filed the I-140 application on March 4, 2021 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.  On March 17, 2021, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Nepalese nationals is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Nepalese

LOCATION: Strongsville, OH

Our client contacted us in October 2020 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from Nepal and obtained her green card in June 2015. 

Her N-400 application was filed on October 23, 2020 with all supporting documents. Prior to her citizenship interview, our office prepared her via phone call.  On January 8, 2021, our client appeared at the Cleveland CIS office. Our client answered all questions correctly and passed her naturalization interview. Eventually, on the same day of her interview, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: Change of Status from F-2 to F-1

CLIENT: Nepalese

LOCATION: Kent, OH

Our client came from Nepal on a valid F-2 visa. Later, she decided to study further in the United States and got admitted to a college. She retained our office for her I-539 Change of Status application from F-2 to F-1. 

After retention, we helped our client obtain supporting documents for the Change of Status. We filed the I-539 Change of Status application along with supporting documents to the USCIS on January 6, 2020. In the application, we fully explained her financial ability to pursue her studies in the U.S., and reasons for her studies.

On May 26, 2020, the USCIS issued a Request for Evidence (RFE) asking for a  new I-20 record. Our office filed the Response to RFE on June 2, 2020. Eventually, on July 27, 2020, the Change of Status was approved. Our client is now on F-1 and can start her program.

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CASE: I-140 (Skilled Worker) / Schedule A 

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Nepalese

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from Nepal and licensed in the state of Texas. She came to the United States and currently works in the United States with her TPS (Temporary Protected Status).  Her current employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

Since she is a registered nurse, 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 Professional Nurses is included in Schedule A.

Our client has an Associate of nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on June 15, 2018 and started on her Prevailing Wage Request.

We filed the I-140 application on January 14, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. However, on January 23, 2019, the USCIS issued Request for Evidence and asked our client to submit the copy of petitioner’s most recent tax return. Our office filed the response to USCIS on January 25, 2019.  Eventually, on February 7, 2019, the I-140 was approved. 

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her. On March 1, 2019, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client at via conference calls as well. On October 7, 2019, our client was interviewed at Houston Texas USCIS office. Eventually, on January 28, 2020, her green card application was approved.

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CASE: I-485 Adjustment of Status / Schedule A 

APPLICANT: Nepalese Registered Nurse

LOCATION: Lincoln, NE

Our client is a registered nurse from Nepal licensed in the state of Nebraska. She came to the United States and currently works in the United States with her TPS status.  Her current employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

Since she is a registered nurse, 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 Professional Nurses is included in Schedule A.

Our client has a nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 12, 2018 and started on her Prevailing Wage Request.

We filed the I-140 application on July 31, 2018 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  However, the USCIS issued Request for Evidence on August 8, 2018 and requested our client to submit the Petitioner’s financial record to show ability to pay the proffered wage for our client. We filed the Response to RFE on August 21, 2018 and eventually, on September 1, 2018, the I-140 was approved. 

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her and her husband. On October 15, 2018, our office filed an I-485 adjustment of status application for our client and her husband. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference calls as well. On August 8, 2019, our client was interviewed at Omaha Nebraska USCIS office. Though their interview went well, the visa numbers were not available for their cases in August and September of 2019. Nevertheless, on October 30, 2019, their I-485 applications were approved by the USCIS. 

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship

NATIONALITY:  Nepalese

LOCATION: South Dakota

Our Nepalese client came to the U.S. as a J-1 scholar with a Fulbright scholarship in 2014.  His J-1 status made him subject to the two-year foreign resident requirement. Our client would like to file his adjustment of status application along with his I-140 NIW application; however, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under No Objection Statement or Interest Government Agency (IGA). Our client also received government funding (Fulbright scholarship) for his research programs which made his case pretty much impossible for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen son is experiencing exceptional medical hardships.

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.”

Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

After he retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On October 3, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared affidavit of our client, extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen son’s medical conditions.  On October 20, 2017, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Nepal for two years.

However, the USCIS issued Request for Evidence on July 25, 2018 and requested more hardship evidence from our client. Our office filed Response to RFE on August 29, 2018.

Eventually, the USCIS approved his I-612 waiver on March 13, 2019. Now that our client’s two-year foreign residency requirement is waived, he can file his adjustment of status application along with his NIW I-140 self-petition in the United States.  

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