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

 NATIONALITY:  Iraqi

 LOCATION: Plymouth, NM

Our client came from Iraq as a J-1 visitor in August 2017.  He was subject to the two-year foreign residency requirement. To be eligible for adjustment of status or other forms of visas such as the H-1B, 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 for his research programs which made his case tougher for the No Objection Statement or IGA waiver route. Our client would like to pursue his J-1 waiver based on exceptional hardship. Our client’s U.S. citizen daughter was 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 exceptional 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 the exceptional hardship basis. On March 18, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an 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 daughter’s medical condition.  On March 20, 2020, our office filed the  I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s daughter would experience exceptional hardship if our client needs to go back to Iraq for two years. 

Eventually, the USCIS approved his I-612 waiver on December 29, 2021.

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

NATIONALITY: Korean

LOCATION: St. Paul, MN

Our client is from South Korea who came to the U.S. on a J-1 Visa. He entered in August 2018 to work as a researcher. His J-1 program made him subject to the two-year foreign residence requirement. In September 2020, he married his LPR spouse. He retained our office to seek legal assistance for his I-130 Petition and I-485 Adjustment of Status applications. However, before we file his I-485 application, he had to get a waiver of his two-year foreign residency requirement. 

Upon retention, our office prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Chicago to pursue the waiver for our client.  The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On September 30, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file an adjustment of status application based on his wife’s I-130 petition. 

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On March 19, 2021, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on July 1, 2021, the USCIS issued I-612 approval notice and waived our client’s 2 year foreign residency requirement.

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CASE: Asylee Adjustment of Status
CLIENT: Saudi Arabian
LOCATION: Lakeville MN

Our client came to the United States from Saudi Arabia and, he was granted asylee status in May 2019.

Under the Immigration and Nationality Act, an asylee may apply for lawful permanent resident status after he or she has been physically present in the United States for a period of one year after the date he or she was granted asylum status. Around March 2020, our client contacted our office again and sought legal assistance for his adjustment of status application.  We prepared and filed his I-485 Adjustment of Status Application on April 21, 2020. Everything went smoothly and the receipt notice and fingerprint appointment all came on time.

Eventually, on November 20, 2020, the USCIS approved our client’s Adjustment of Status application without an interview. He is now a permanent resident of the United States.

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CASE: Asylum

CLIENT: Saudi Arabian

LOCATION: Minneapolis MN

Our client, a Saudi Arabian asylum seeker from Minneapolis, retained us on January 12, 2015 to help him with his asylum case. He wanted to seek asylum relief with the US Citizenship and Immigration Service.

While he was in Saudi Arabia, he was persecuted by his religious denomination and later being an atheist. He is scared to go back home to Saudi Arabia, fearing that he will be clearly persecuted again.

We helped him to prepare for his asylum application, going over several drafts until his claim was as detailed as possible. Names, addresses, dates, and all possible issues relevant to his asylum claim were addressed. We also asked him to provide supporting documents corroborating his claims. Our firm also did some research on articles pertaining to his particular claim, and the type of persecution that you would suffer in Saudi Arabia if you are not Sunni Muslim.

The asylum application was filed in February 11, 2015. In October 2017, his interview was scheduled.  Prior to his interview, our office prepared him thoroughly for his case over the conference calls to make sure he was able to address questions the asylum officer would ask. Attorney Sung Hee (Glen) Yu from our office also accompanied our client at his interview at the USCIS Field Office in Minneapolis, MN on October 31, 2017.

Eventually, on May 17, 2019, the USCIS Chicago Asylum Office approved our client’s asylum case.

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CASE: I-485 based on Approved I-140 (EB-3)

APPLICANT: Nepalese

LOCATION: Minnesota

Our client is a chemist from Nepal, who is currently working at an IT consulting company who was willing to petition him for a third-preference petition (I-140).  He has maintained his status as an H-1B visa holder in the United States.  He had an approved I-140 petition which was filed by his current employer and this I-140 petition’s priority date was December 22, 2014.

In June 2016, he contacted our office and retained us for his and his wife’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our client and his wife on July 19, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on September 30, 2016, the USCIS issued Request for Evidence for our client and his wife’s adjustment of status application. The USCIS requested our clients to submit more evidence to demonstrate their lawful maintenance in the United States after their last admission to the U.S.  Our office prepared and filed the Response to RFE to USCIS on December 13, 2016 along with documentary evidence that our clients provided.

Eventually, on January 12, 2017, the USCIS Nebraska Service Center approved our client’s and his wife’s adjustment of status applications. They are now green card holders.

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CASE: PERM Labor Certification    
EMPLOYER: Culture Center / Culture School
BENEFICIARY: Chinese
LOCATION: St. Paul, MN

Our client is from China, who is currently staying in the United States on an F-2 status. She has a prospective employer who was willing to do an immigration petition for her, third-preference. Our client has a Bachelor’s degree in Arts Education. After talking to our client, our firm concluded that her employer can petition her as an Early Childhood Creative Programs Director. Based on our client’s educational, professional and working backgrounds, our office determined that she is 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 April 16, 2015, the prevailing wage request was filed.  After we obtained foreign degree evaluation report and Prevailing Wage determination, our office filed the job order on August 11, 2015.  On October 27, 2015, we promptly filed PERM.  Eventually, on March 28, 2016, the PERM Labor Certification was approved – an EB3 position for the Chinese 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 financial records, and other necessary supporting documents. The I-140 Petition was filed on July 11, 2016 via premium processing service. However, the USCIS issued Request for Evidence (RFE) on July 25, 2016 and requested the Petitioner’s tax record to demonstrate whether Petitioner has sufficient net current asset to pay proffered wage of beneficiary. On September 29, 2016, our office filed the Response to RFE to USCIS along with Petitioner’s 2015 federal tax record. Eventually, on October 5, 2016, the I-140 EB-3 Petition for our Chinese client was approved. Our client can file her I-485 adjustment of status application once her priority date becomes current.

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CASE: PERM Labor Certification    
EMPLOYER: Culture Center / Culture School
BENEFICIARY: Chinese
LOCATION: St. Paul, MN

Our client is from China, who is currently staying in the United States on F-2 status. She has a prospective employer who was willing to do an immigration petition for her, third-preference. Our client has a Bachelor’s degree in Arts Education. After talking to our client, our firm concluded that her employer can petition her as an Early Childhood Creative Programs Director. Based on our client’s education, professional and working background, our office determined that she 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 April 16, 2015, the prevailing wage request was filed.  After we obtained the foreign degree evaluation report and Prevailing Wage determination, our office filed the job order on August 11, 2015.  On October 27, 2015, we promptly filed PERM.  Eventually, on March 28, 2016, the PERM Labor Certification was approved – an EB3 position for the Chinese beneficiary. Now our client can file an I-140 petition.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Kenya

LOCATION: Minnesota

Our client is a certified nurse practitioner. His prospective employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he was a certified nurse practitioner, he was 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 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 immediately.

We filed the I-140 application on September 23, 2014 via regular processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. Moreover, we filed our client’s I-485 adjustment of status application concurrently with the I-140 petition.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  On March 26, 2015, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved his EB-2 I-140 petition. His I-485 adjustment of status application will be approved as well.

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