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

 NATIONALITY:  Iraqi

 LOCATION: Loveland, CO

Our client came from Iraq as a J-1 Fulbright scholar in January 2015.  She was subject to the two-year foreign residency requirement. Our client would like to file her adjustment of status application along with her US citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue her waiver under the No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for her research program which made her case tougher for the No Objection Statement or IGA waiver route. Our client though would like to pursue her J-1 waiver based on exceptional hardship. 

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 she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On February 26, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit of our client, an extensive brief in support of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen husband’s medical conditions.  On March 9, 2020, our office filed the I-612 application to the USCIS and asked them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to Iraq for two years. 

Eventually, the USCIS approved her I-612 waiver on February 4, 2022. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipino

LOCATION: Colorado Springs, CO

Our client came to the United States from the Philippines and has worked in the U.S. on a valid J-1 status. He married a U.S. Citizen in January 2019 and retained our office on April 17, 2020 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 28, 2020.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients over the phone. On January 14, 2021, our client was interviewed at the Centennial, CO USCIS office. On the same day of the interview, his green card application was approved.

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CASE: I-485 Adjustment of Status / 245(k)

APPLICANT: Filipina High School Math Teacher

LOCATION: Holyoke, CO

Our client has a current employer that was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Mathematics, a valid Colorado Teaching license, and has worked for her current employer since November 2014. Based on our client’s education and workg background, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2018.

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 the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on August 14, 2018.  On December 13, 2018, we filed PERM. 

On April 19, 2019, the Department of Labor issued an audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on April 24, 2019.  

Eventually, on July 15, 2019, the PERM Labor Certification was approved – an EB3 position for the Filipina 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, employee’s most recent W-2 record, and other necessary supporting documents.

The I-140 Petition was filed on July 30, 2019 via regular processing. Eventually, on September 12, 2019, the I-140 EB3 Petition for our Filipina client was approved. 

We filed her I-140 petition and I-485 adjustment of status application concurrently. 

Our client’s DS-2019 was not extended by her employer. Thus, she overstayed and had violated her status for less than 180 days prior to filing the I-485 application. 

Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

Our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).

As mentioned above, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed brief and explained why our client is still eligible for adjustment of status through 245K despite her overstay and unauthorized employment.  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 March 16, 2020, our client was interviewed at the Centennial, CO USCIS office. The interview went well; however, at that time, the priority date for the  Eb-3 category – Philippines was backlogged. Our client had to wait until the priority date became current. In August 2020, her priority date became current. Eventually, her I-485 application was approved by the USCIS on August 27, 2020. 

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CASE: I-130/I-485

NATIONALITY: Kenyan                                                                                                        

LOCATION: Centennial, Colorado

Our client is from Kenya who came to the U.S. on a J-1 Visa in February 2016 to work at a non-profit organization in the U.S.  His program sponsor was willing to sponsor him if he can change his non-immigrant status. However, he will not be able to change his status unless he gets a waiver for the 2-year foreign residency requirement.  When he came to the United States in 2016, his program was clearly subject to the 2-year foreign residency program. 

Thereafter, our office promptly prepared for filing a waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Our office promptly contacted the Kenyan Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver, the clearance letter from J-1 program sponsor, Clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver.  

On March 16, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to change his status if he gets the waiver. 

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On April 14, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On April 24, 2017, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. 

Our client married U.S. citizen in January 2019 and retained our office r again for his adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on April 1, 2019.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. 

On November 14, 2019, our client was interviewed at the Centennial, CO USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients.  The interview went well, and eventually, on the same day of the interview, his green card application was approved.

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CASE: EB-3 I-140

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Math Teacher

LOCATION: Holyoke, CO

Our client has a current employer that was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Mathematics, a valid Colorado Teaching license, and has worked for her current employer since November 2014. Based on our client’s education and work background, our office determined that she clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2018.

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 the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on August 14, 2018. On December 13, 2018, we promptly filed PERM. 

However, on April 19, 2019, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on April 24, 2019.  

Eventually, on July 15, 2019, the PERM Labor Certification was approved – an EB3 position for the Filipina 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, employee’s most recent W-2 record, and other necessary supporting documents.

The I-140 Petition was filed on July 30, 2019 via regular processing service. Eventually, on September 12, 2019, the I-140 EB3 Petition for our Filipina client was approved.

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CASE: PERM Labor Certification

EMPLOYER: Public School District

BENEFICIARY: Filipina High School Math Teacher

LOCATION: Holyoke, CO

Our client has a current employer that was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor’s degree in Mathematics, a valid Colorado Teaching license, and has worked for her current employer since November 2014. Based on our client’s education and work background, our office determined that she is eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in April 2018.

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 the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on August 14, 2018. On December 13, 2018, we promptly filed PERM. 

However, on April 19, 2019, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on April 24, 2019.  

Eventually, on July 15, 2019, the PERM Labor Certification was approved – an EB3 position for the Filipina beneficiary. Our client can file the I-140 petition at any time.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina

LOCATION: Denver, CO

Our client is from the Philippines who came to the U.S. on a B-2 visitor’s visa in April 2018. In June 2018, our client married her current U.S. citizen husband.  She retained our office for her green card application, and our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 23, 2018.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls. On February 28, 2019, our client was interviewed at the Centennial Colorado USCIS office.  Eventually, on the same day of the interview, her green card application was approved.

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CASE: I-485 / I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Denver, CO

Our client contacted us in July 2014 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from South Korea and he is an exceptional researcher and scientist in the field of genetic engineering and apoptosis.

Our client’s significant contributions have placed him at the pinnacle of his field. Throughout his research career, he has made critical research contributions in programmed cell death where he used genetic analysis in the round worm to gain important insights into human cancer. Our client has devoted himself to research in the aforementioned fields for more than 15 years and his outstanding research were highly evaluated by reviewers of various journals and by colleagues and experts in the field.  Moreover, our client’s research works were published in one of the top academic journals in the world. His outstanding works were published in journals such as Science, Nature, and Proceedings of the National Academy of Sciences.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications. (When we filed this case, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) was not issued yet. Thus, we still filed our client’s NIW under NYSDOT standard.)

Our office prepared a 20-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 33 exhibits (Exhibit A to GG).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on November 16, 2016. Eventually, on October 25, 2017, the USCIS approved his I-140 petition without any Requests for Evidence.

When we filed his I-140, he concurrently filed his I-485 adjustment of status application. However, on January 29, 2018, the USCIS Nebraska Service Center issued a request for evidence (RFE) regarding whether our client’s maintenance of his non-immigrant status and updated medical.

The RFE letter from the USCIS requested us to submit evidence showing our client has maintained his non-immigrant status until the filing of his adjustment of status application. Our office filed this response to RFE along with requested evidence and updated medical record on March 7, 2018.

On March 29, 2018, the USCIS Nebraska Service Center approved our client’s adjustment of status application. The derivative applicant of this case (his wife) also received I-485 approval.  Now, our client and his wife become green card holders.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Denver, CO

Our client contacted us in July 2014 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from South Korea and he is an exceptional researcher and scientist in the field of genetic engineering and apoptosis.

Our client’s significant contributions have placed him at the pinnacle of his field. Throughout his research career, he has made critical research contributions in programmed cell death where he used genetic analysis in the round worm to gain important insights into human cancer. Our client has devoted himself to research in the aforementioned fields for more than 15 years and his outstanding research were highly evaluated by reviewers of various journals and by colleagues and experts in the field.  Moreover, our client’s research works were published in one of the top academic journals in the world. His outstanding works were published in journals such as Science, Nature, and Proceedings of the National Academy of Sciences.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications. (When we filed this case, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) was not issued yet. Thus, we still filed our client’s NIW under NYSDOT standard.)

Our office prepared a 20-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 33 exhibits (Exhibit A to GG).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on November 16, 2016. Eventually, on October 25, 2017, the USCIS approved his I-140 petition without any Requests for Evidence.  When we filed his I-140, he concurrently filed his I-485 adjustment of status application. His adjustment of status application will be approved soon as well.

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

NATIONALITY: Kenyan                                                                                                        

LOCATION: Colorado

Our client is from Kenya who came to the U.S. on a J-1 Visa in February 2016 to work at a non-profit organization in the U.S.  His program sponsor was willing to sponsor our client longer if he can change his non-immigrant status. However, he will not be able to change his status unless he gets a waiver of the 2-year foreign residency requirement.  When he came to the United States in 2016, his program made him subject to the 2-year foreign residency program.

Thereafter, our office promptly prepared for filing a waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Our office promptly contacted the Kenyan Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver, the clearance letter from J-1 program sponsor, Clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver. 

On March 16, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to change his status if he gets the waiver.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On April 14, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On April 24, 2017, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can change his status.  

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