CASE: Marriage-Based Adjustment of Status

CLIENT: Egyptian

LOCATION: Indianapolis, IN

Our client came to the United States from Egypt on an F-1 visa. He married a U.S. Citizen in November 2018 and retained our office on December 10, 2019, for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 12, 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 via conference calls. On November 10, 2020, our client was interviewed at the Indianapolis, IN USCIS office. On February 8, 2021, his green card application was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: Bloomington, IN

Our client was a citizen of China who came to the U.S. on a J-2 Visa in August 2008.  She came with her mother who came on a J-1 Visa for her research work in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

She turned 21 in August 2017.  She has a prospective employer that was willing to file an H-1B petition for her. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without the fulfillment of requirement or the waiver. 

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in August 2017.

Our firm was retained to do her J-2 waiver, and on January 3, 2020, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on February 5, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On March 2, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Mexican Client in Butler, IN

As our office explained before on our website, the USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases.  According to the USCIS Deferred Action Memorandum issued in August 2012, an individual who meets the following criteria may apply for deferred action:

• Was under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching his/her 16th birthday;
• Has continuously resided in the U.S. since June 15, 2007, up to the present time;
• Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
• Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

Our client initially came to the United States in August 1995 without inspection and admission through the U.S. / Mexico border when he was only 6 years old.

As of June 15, 2012, our client was twenty-three (23) years old.

Our client also finished high school in the United States in 2008.

Also, since his last entry to the United States in August 1995, our client never left the United States.

He was physically present in the United States on June 15, 2012 and has continuously resided here since August of 1995.

Our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Accordingly, our client was eligible for this relief.

In July of 2019, he retained our office for the renewal of his DACA application again. Despite the elimination of the DACA program at that time, he was still eligible for the renewal. Our client sent us supporting documents that prove our client’s education history, physical presence in the United States, and his initial entry to the United States.  Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On July 26, 2019, our office filed his I-821D and I-765 to the USCIS.  Eventually, on September 3, 2019, the USCIS approved our client’s I-821D and I-765. His DACA status is extended to September 2021.

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CASE: Marriage-Based Green Card (I-130 / I-485)

NATIONALITY: Philippines

LOCATION: Indianapolis, IN

Our client came from the Philippines on a J-1 visa in August 2016 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement.

In August 2017, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On February 14, 2018, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Montana State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in Chicago for further authentication.  On April 2, 2018, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines. Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On July 23, 2018, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 7, 2018, the USCIS issued an I-612 approval notice for the waiver.

Once her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 4, 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 through conference calls. On January 31, 2019, our client was interviewed at the Indianapolis, Indiana USCIS office.  The interview went well, and eventually, on February 11, 2019, her green card application was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: Indiana

Our client was a citizen of China who came to the U.S. on a J-2 Visa in 1999.  She came with her mother who came on a J-1 Visa for her research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

She turned 21 in August 2018. She would like to get a waiver because she has a prospective employer who will file the H-1B petition for her next year. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without the fulfillment of requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in August 2018.

Our firm was retained to do her J-2 waiver, and on November 6, 2018, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on December 3, 2018, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On December 14, 2018, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                                      

LOCATION: Indiana

Our client is from the Philippines who came to the U.S. on a J-1 exchange visitor’s visa in October 2014. She was not subject to the 2-year foreign residency requirement (INA Section 212(e)).  In September 2016, our client married her U.S. citizen husband. She retained our office for her green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 21, 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 at our office via conference calls. On May 31, 2018, our client was interviewed at the Indianapolis, Indiana USCIS office. Eventually, on December 12, 2018, her green card application was approved.

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CASE: Employment Based Adjustment of Status (Derivative Applicant) / 245(i)

CLIENT: Filipino

LOCATION: Indiana

Our Filipino client came to the U.S. in June 2001 with a valid B-2 visitor’s visa. He has remained in the United States since then. He married his current spouse in June 2002 and she obtained her permanent residency in 2016 through an employment petition. Our client’s wife was the beneficiary of labor certification that was filed before April 30, 2001 and she was physically present in the United States before December 2000.

Our client contacted us around November of 2016 for consultation and sought legal assistance for his adjustment of status. He was not sure whether he could be a derivative applicant of the adjustment of status based on his wife’s I-140 approval and his eligibility under INA 245(i). Nonetheless, after consultation, we determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on December 1, 2016.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

However, aforementioned requirements were not met for our client since he was not a beneficiary of any I-130 / I-140 petition which was filed prior to April 30, 2001. He was not also physically present in the United States prior to December 2000. Nonetheless, there is a controlling BIA case for our client’s situation. In Matter of Estrada and Estrada, 26 I&N Dec. 180 (BIA 2013), the BIA held that:

“Although not grandfathered, qualifying after-acquired spouses and children are still able to benefit from section 245(i) of the Act in certain circumstances. The Supplementary Information to the interim rule clarifies that a dependent spouse or child – if eligible under section 203(d) of the Act  – who is accompanying or following to join a grandfathered adjustment applicant is “considered to be grandfathered” if the qualifying relationship existed before the grandfathered alien adjusts his or her status…. Such spouses and children are able to benefit from section 245(i) of the Act by virtue of their status as dependents under section 203(d), which provides that a spouse or child who is accompanying or following to join a principal beneficiary of an immigrant visa is entitled to the same status as that alien. Thus, when a grandfathered alien applies for adjustment of status under section 245(i) as the principal adjustment applicant, his or her dependent spouse or children are eligible to adjust status under that section notwithstanding the fact that they are not grandfathered aliens.

As mentioned above, our client married his wife in June 2002. His wife filed her adjustment of status application by virtue of an approved and current I-140 petition filed for her and invoked INA 245(i) in the process as the principal beneficiary. By virtue of 245(i), our client’s wife obtained her permanent residency in September 2016. Thus, based on Matter of Estrada and Estrada, our office argued that our client is able to benefit from section 245(i) by virtue of his status as spouse who is following to join a principal beneficiary under 245(i) since the qualifying relationship (their marriage in 2002) existed before the grandfathered alien (our client’s wife) adjusted her status (adjustment in 2016 through 245(i).

On December 20, 2016, our office filed his I-485 adjustment of status application and I-485 Supplement A under the 245(i) category for our client.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  Eventually, on July 19, 2017, our client’s I-485 adjustment of status application was approved.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, IGA

NATIONALITY: Ukrainian

LOCATION: Indiana

Our client is from Ukraine who came to the U.S. on a J-1 Visa in June 2003 to pursue his research program.  He has been extending his J-1 status since then.  In 2014, our client departed to Ukraine and his prospective-employer (university) contacted him to work as a Consultant. His prospective employer plans to file an H-1B petition for our client as his research project was of interest to a federal governmental agency (Department of Defense). However, he cannot get his H-1B visa unless he gets a waiver of the 2-year foreign residency requirement. Moreover, the Ukrainian Embassy does not intend to issue a No Objection statement for our client’s possible J-1 visa waiver.

The Department of State rules have stated that the J-1 visa holder (who is subject to a 2 year foreign residency require) need not work directly for the requested interested government agency, but if the exchange visitor is working on a project that is of interest to a government agency and that agency has determined that the visitor’s departure for two years to fulfill the foreign residence requirement will be detrimental to the agency’s interest, that agency may request an interested government agency waiver.

Once retained, our office prepared a waiver request through the IGA route. On November 19, 2014, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also included letters from his prospective employer to the federal governmental agency and asked them to be an interested government agency based on the research project that our client was involved in.

Eventually, on May 8, 2015, the Waiver Review Division issued a favorable recommendation based on the IGA letter. On June 5, 2015, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can get an H-1B visa to work on his research in the United States.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Mexican Client in Indiana

The USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases (DACA). According to the USCIS Deferred Action Memorandum, an individual who meets the following criteria may apply for deferred action:

·         Was under the age of 31 as of June 15, 2012;

·         Came to the U.S. before reaching his/her 16th birthday;

·         Has continuously resided in the U.S. since June 15, 2007, up to the present time;

·         Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;

·         Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;

·         Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and

·         Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

Our client initially came to the United States in August 1995 without inspection and admission through the U.S. / Mexico border when he was only 6 years old.

As of June 15, 2012, our client was twenty-three (23) years old.

Our client also finished high school in the United States in 2008.

Also, since his last entry to the United States in August 1995, our client never left.

He was physically present in the United States on June 15, 2012 and has continuously resided here since August of 1995.

Our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Accordingly, our client was eligible for this relief.

After he retained our office, we informed him of all supporting documents we would need. Our client sent us supporting documents that proved our client’s education, physical presence in the United States, and his initial entry to the United States. Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On November 12, 2014, our office filed her I-821D and I-765 to the USCIS. However, on February 5, 2015, the USCIS issued Request for Evidence (RFE) and requested our client to submit more evidence to establish that he has continuously resided in the United States during the 5-year period immediately before June 15, 2102 and up to the time of filing. Our office prepared and filed the Response to RFE with more evidence to the USCIS on April 21, 2015. Eventually, on May 11, 2015, the USCIS approved our client’s I-821D and I-765, good for two years.

Our client can now work and study in the United States lawfully.

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CASE: I-485 Adjustment of Status / 245(k) / I-140 (EB-2 Category) / Schedule A

APPLICANT: Ghanaian Psychiatric Mental Health Nurse Practitioner

LOCATION: Indiana

Our client is a certified nurse practitioner. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a certified nurse practitioner, 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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Nurse Practitioner is included in Schedule A.

Our client has both a Bachelor’s and Master’s degrees in nursing. She has a Registered Nurse license and has an ANCC Psychiatric-Mental Health Nurse Practitioner Certificate.  Our office was retained on June 17, 2014 and we started the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on October 24, 2014 via premium processing. We included the job offer letter, the notice of filing, her pay stubs, 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.

However, on November 8, 2014, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) and requested our client’s CGFNS certificate. Our office prepared the response to RFE and filed it along with CGFNS certificate on November 20, 2014 to the USCIS. On November 28, 2014, the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

When we filed her I-140 petition, our client simultaneously filed her I-485 adjustment of status application as well. We also included an extensive brief to argue that our client is eligible to adjust under the INA Section 245(k).

Section 245(k) of the INA 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:

(A)Failed to maintain, continuously, a lawful status;

(B)  Engaged in authorized employment; or

(C)  Otherwise violated the terms and conditions of his or her admission.

Our client maintained lawful F-1 status, and maintained full-time student status, up until May 2014. However, she did not extend her F-1 status or changed to other non-immigrant status in the United States before the filing of her I-485 adjustment of status application. Nevertheless, 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 is still eligible to adjust status based on her approved I-140.

However, on April 20, 2015, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) and requested our client’s CGFNS certificate again. Our office prepared the response to RFE and filed it along with CGFNS certificate on April 24, 2015 to the USCIS.

Finally, the USCIS approved our client’s I-485 adjustment of status application on May 8, 2015. Now, our client becomes a green card holder. 

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