CASE: Marriage-Based Adjustment of Status
CLIENT: Filipino
LOCATION: Cleveland, OH

Our client came to the United States in January 2010 with an H-2B temporary work visa from the Philippines. She married a U.S. Citizen in January 2011 and retained our office in February of 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 15, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On May 10, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On May 16, 2011, her green card application was approved, and our client obtained her green card.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Kenyan
LOCATION: Cleveland, OH

Our client came to the United States in 2009 with an F-1 student visa from Kenya.  However, she later became out of status did not reinstate her F-1 status. She married a U.S. Citizen in August 2010 and retained our office in January of 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on January 24, 2010.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On April 29, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On May 5, 2011, our client obtained her green card.

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Case: Immigrant Visa Appeal / Consulate Processing
Applicant/Beneficiary: Tunisian
Location: Tunisia

Our client contacted our office in January of 2011.  She was from Washington DC and was seeking help regarding her husband’s immigration matter.  Her husband was in Tunisia, and the U.S. Embassy in Tunisia denied his Immigrant Visa application by stating that the couple’s marriage is not bona fide.  She previously filed an I-130 petition on behalf of her husband in Tunisia.  This I-130 petition was approved by the USCIS, but at the Embassy interview in Tunisia, the consul denied the immigrant visa application of her husband.

She retained our office on January 19, 2011 and our office first contacted the Tunisian Embassy. We explained that our client would like another opportunity to prove their relationship. Typically, one would have to re-file and go through the entire process, but they were nice enough to schedule another interview for our client, and allow him to provide more documents this time with the help of us as his attorneys. We prepared an extensive brief in support of their marriage, all the while communicating with our client to provide details about their relationship, and we also attached numerous evidence of bona fide marriage, documents of which were not submitted at his previous interview. We sent this packet to our client and had him present this at his interview.

On February 8, 2011, our client’s Tunisian husband had his interview for his Immigrant Visa application.  The interview went smoothly, and as a result, on April 12, 2011, the U.S. Embassy in Tunisia decided to issue an Immigrant Visa for her husband. It’s always good to communicate with the Embassy first, introduce yourself as newly retained lawyers, and explain the case, as they may provide you an alternative procedure which may save your client and your firm both time and money.

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Case: I-130/I-485
Potential Issue: Visa Waiver Entry – Overstay / Response to Notice of Intent to Deny
Applicant/Beneficiary – Spanish
Location: Cleveland, Ohio

Our client entered the United States on April 11, 2010 from Spain under the visa waiver program.  When he entered the United States, he did not have any intention to get married.  In fact, he came to the United States to obtain a divorce from his former wife who was residing in the United States, and wished to come back home soon after.  As a Visa Waiver Entrant, he was only authorized to remain in the United States until July 10, 2010.

After he got divorced from his former wife in the United States, our client married his U.S. citizen spouse on June 2, 2010. 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.

Since our client resided in Cleveland, Ohio, his application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will question the validity of the marriage between our client and his wife because of the existing language barrier between the couple. The US Citizen spouse speaks really little Spanish while the Spanish beneficiary speaks little English.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 3, 2010.  Our office requested  the CIS to exercise favorable discretion in granting adjustment of status despite the filing date falling beyond the expiration of the visa waiver. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in the filing of the applications.

Prior to the interview, Attorney Sung Hee (Glen) Yu from our office thoroughly prepared our client for their USCIS adjustment of status interview.  On December 20, 2010, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office for his adjustment interview.  The interview took two and a half hours and the officer thoroughly asked our client and his wife about the bona fide nature of the marriage and the language barrier issue.

On March 9, 2011, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary is not bona fide.  As expected, the language barrier issue between our client and his wife was critical. They also pointed out the short time difference between the beneficiary’s divorce and subsequent marriage.

In response to the USCIS’s NOID, our office re-interviewed both the Petitioner and the Beneficiary, addressing the issues pointed out in the NOID and drafting an extensive affidavit. Multiple supporting documents  and a six-page affidavit from our client were all included as well as letters from the U.S Citizen wife’s family members, joint bank statements, joint lease, utility bills, and several pictures of our client and his wife in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on March 31, 2011, we filed the Response to NOID prior to the 30-day deadline.

On April 5, 2011, less than a week from our Response, the USCIS approved our client’s case. We overcame both the visa waiver overstay and the bona fide marriage issues and as a result, both the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.

For more success stories, please click here. Also feel free to contact our office for a free consultation.

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Our client retained us to petition his parents in China. He was born and raised in China, but was recently naturalized in the United States. He consulted about the timeline and process of bringing his parents over here, and we explained that these types of cases are faster than sibling petitions or those where a parent petitions a son or daughter over 21.

A petition such as the above-mentioned is an example of an immediate relative petition. The main benefit of immediate relative petitions is that visa numbers are always available and not subject to a quota. You don’t have to check the visa bulletin every month to see if the U.S. Consul or the CIS can now process your case. It is already in process. The types of immediate relative petitions are as follows:

• US Citizen spousal petition
• US Citizen parent petitioning a child under 21
• US Citizen son or daughter petitioning a parent (such as this case)

On November 17, 2010, our firm filed the I-130 Petition to the CIS. There were no Requests for Evidence throughout the pendency of the petition. On April 1, 2011, the I-130 Petition was approved. We now move to the immigrant visa processing phase of trying to get his parents over to the United States.

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Our client is a Pakistani national who was on valid H-B Status when we met him at our New York office in September 2010. He was married to a US Citizen and wanted to apply for a marriage-based immigrant petition and green card application. He retained our firm, we prepared all the paperwork, and on October 14, 2010 the I-130 Petition and I-485 Application were filed. On December 9, 2010, our client’s work authorization card was issued and approved. There were no Requests for Evidence for his case. On February 16, 2011, the CIS issued an interview notice scheduled for March 15, 2011 in New York City. Prior to their interview, we prepared them extensively on possible questions the officer may ask. The interview was then held on March 15, 2011 and on that same day, the CIS officer issued an I-130 approval notice. On March 31, 2011, our client’s I-485 approval notice was then issued. He is now a permanent resident of the United States.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Chinese
Location: Cleveland, Ohio

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  Once he arrived at the Miami International Airport, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002. Thus, he had a final order of removal.

According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”

Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. citizen spouse. Our client and his wife consulted with our firm to see if there’s anything that could be done for them knowing that they already have a final order. We reviewed their file, learned that he was an arriving alien despite the final order, and thus advised them that we can apply for adjustment of status. They retained us in November, 2010.

An arriving alien can adjust his or her status even though he or she has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.

The January 12, 2007 USCIS memo states that the USCIS can adjudicate an adjustment of stauts application of a parolee with a final order under these interim regulations. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord wit
h this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

Thus, our office thoroughly prepared and filed the I-130 Petition and Adjustment of Status application in accordance with the regulations.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.  There was no request for additional evidences.

Prior to the interview, Attorney Sung Hee (Glen) Yu with the help of Arty Wynieski from our office thoroughly prepared our client for their USCIS adjustment of status interview. The preparation lasted for several hours because of  the “arriving alien” issue and other possible concerns with regard to our client’s case.

On the interview day, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office.  The interview went well, and our client eventually got his green card on March 28, 2010.  Despite having a final order since 2002, our client finally became a permanent resident of the United States.

For more success stories in the deportation and marriage areas of immigration, feel free to browse our website and for further questions, please do not hesitate to contact our office for a free consultation.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Moroccan
LOCATION: Cleveland, OH

Our client came to the United States in 1996 with B-2 visa from Morocco.  However, she overstayed in the United States ever since without any change of status.  Our client got married to a U.S. Citizen in December 2010 and our client retained our office immediately to get assistance for her adjustment of status.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on December 30, 2010. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Attorney Sung Hee (Glen) Yu from our office thoroughly prepared our clients for their USCIS interview. On March 17, 2010, our client was interviewed in Cleveland, Ohio.  Attorney Yu accompanied them at the interview as well.  The interview went very well, and less than a week later, our client obtained her green card. For more success stories on our marriage-based green card cases, please click here. Also feel free to contact our office for questions.

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CASE: Adjustment of Status
CLIENT: Filipino
LOCATION: Fresno, California

Our client retained us twice for his immigration-related matters.  Back in May, 2010, he contacted our office to get assistance for his H-1B visa petition. He was from the Philippines and was working as a general surgeon for a hospital in Pennsylvania.  Once retained, our office filed his H-1B visa petition on May 5, 2010.  There were no Requests for Evidence with the filing from the USCIS.  His H-1B case was approved on July 12, 2010.  The H-1B was good from October 1, 2010 to September 30, 2013.

Our client retained us once again after he got married to his U.S. Citizen wife.  Our firm filed the I-130 Petition and Adjustment of Status Application on November 3, 2010. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. He moved from Pennsylvania to California so we submitted a change of address. Our firm thoroughly prepared them for their USCIS interview. On March 8, 2011, our client was interviewed at the CIS office in Fresno, California. That same day, the officer told them that he was granting the petition and the green card application. One week later, he obtained his green card.

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CASE: I-130 Motion to Reopen Nunc Pro Tunc
CLIENT: Indian
LOCATION: Ohio

Our client is a naturalized U.S. citizen who resides in Ohio. In April 2001, our client filed an I-130 petition for his brother who is in India.  About a year later, our client received mail from the USCIS requesting him to submit his brother’s birth records.  Upon receipt of the letter, our client timely mailed the requested documents to the Nebraska Service Center.  However, he had not heard from the USCIS with regard to the status of the I-130 petition.

In November, 2003, our client contacted the CIS Nebraska Service Center to ask about the status of the I-130 petition.  In response to his request, USCIS informed him that his records were located at the Cleveland District Office.  Thereafter, he contacted the Cleveland District office.  However, he never got a response from the District office.  While disappointed, he kept sending letters to the CIS Nebraska Center to request the status of the I-130 petition.  Despite his efforts, he did not get any response from the USCIS.  Moreover, from the time he filed the I-130 in 2001 to 2006, he never moved to a different address.

On September 16, 2010, after following up again with the CIS Nebraska Service Center, Petitioner received an email and the Service informed him that the I-130 petition was administratively closed on September 22, 2005 and the petition was no longer pending. Our client became so disappointed and sought legal assistance to resolve this matter.  He retained our office on October 13, 2010 and Attorney Sung Hee (Glen) Yu promptly prepared and filed a Motion to Reopen to the USCIS and asked the Service to exercise its discretion in re-opening nun pro tunc the case beyond the filing deadline since our client has never been served nor informed by the CIS with regard to the administrative closure of the I-130 petition.

Moreover, the Motion requested the CIS to summarily approve the I-130 petition for our client’s brother because our client and his brother have been waiting for the CIS decision for more than 9 years, and since he also responded to the purported Request for Evidence.  The Motion noted that it would be extremely unfortunate and unfair for our client and his brother if he has to re-file the I-130 petition again since the priority date will be moved and he would have to wait another ten years.

After we filed the Motion, his case was transferred to the Nebraska Service Center.  On March 1, 2011, the USCIS Nebraska Center informed us that the USCIS moved to reopen the matter, and also approved the I-130.  Our client’s 9-years pending I-130 petition finally got an approval, and once priority dates become current, his brother can file an Immigrant Visa in India, without having to re-file another I-130 and wait 10 more years.

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