CASE: Termination of Removal Proceedings

CLIENT: Filipino

LOCATION: Chicago, IL / Los Angeles, CA

This case is an example of how new immigration regulations applied and helped in a situation where the immigrant beneficiary’s petitioner is deceased before she applied for adjustment of status.  Our client is from the Philippines and came to the U.S. on a B-2 visitor’s visa in 2001.  Since her last admission, she has overstayed in the United States.  Currently, she resides in Chicago, Illinois.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay in the United States. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjustment of status application with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners are deceased prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On January 5, 2011, our office filed a request to join in a Motion to Terminate proceedings with her I-485 application and supporting documents.  Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court (Although she currently resides in Chicago, IL, her NTA was served in Los Angeles and she did not change her venue).

Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings. With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case is now with the USCIS Chicago Office, awaiting adjudication.

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT : Korean

LOCATION: Virginia

ISSUE: I-751 Application Pending Divorce Proceedings

We initially met our client in our Washington DC office when she scheduled a consultation with our office. She is from Korea who came to the United States in the 90s, and has maintained her F-1 status throughout until she married a U.S. citizen in 2006. Through her marriage with a U.S. citizen spouse, she obtained a 2-year conditional green card in May of 2008.  Therefore, her conditional residency was scheduled to terminate in May 2010.  To comply with the immigration requirements, our client and her husband filed an I-751 Joint Petition to Remove Conditions in March 2010.

Unfortunately, their marriage ended in September 2010.  Moreover, our client received the Request for Evidence immediately after her husband initiated divorce proceedings. Eventually, our client contacted our office and retained us to assist her response to her Request for Evidence (RFE).

According to an April 9, 2009 USCIS Memorandum by Director Neufeld, “USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings…  If a Service Center ISO encounters an I-751 petition jointly filed by co-petitioners who are still married but are in divorce proceedings, the ISO issues the Conditional Permanent Resident (CPR) a Request for Evidence with an 87-day response period.  In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree along with a request to have the joint filing petition treated as a waiver petition.  This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refilling.”

Based on this Memorandum and with various supporting documents (over 20 exhibits and an affidavit over 5 pages) to demonstrate their bona fide marriage, on October 15, 2010, our office promptly filed I-751 Response to RFE and Request to convert joint filing to I-751 with waiver of the joint waiver requirement pursuant to the Neufeld April 3, 2009 Memorandum for I-751 Applications pending divorce proceedings.

On January 6, 2010, USCIS approved our request for the removal of conditions on her permanent resident status without even an interview. Now, she has her ten-year green card.

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CASE: I-130 / I-485

POTENTIAL ISSUES: Visa Waiver Entry – Overstay

APPLICANT / BENEFICIARY: French

LOCATION: San Francisco, California

Our client entered the United States on February 5, 2010 from France under the visa waiver program. She married her U.S. Citizen spouse on April 14, 2010.  However, her authorized stay in the United States expired on May 6, 2010.

The critical point of her green card application through a marriage was the fact that she came to the United States under the visa waiver program. On March 31, 2008, the 9th Circuit Court of Appeals in Momeni v. Chertoff issued a decision in a Visa Waiver overstay case that has presented difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status.

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 U.S., to visit and then leave without all the red-tape involved in visa issuance.  In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, and later was taken into custody for having violated the terms of his stay. Eventually, the holding in Momeni made in hard for VWP entrants to adjust their status in the United States after their authorized stays expired.

Our client resides in California, so her application was subject to the holding in Momeni. Despite facing having to potentially deal with this case, our office filed the I-130 Petition and Adjustment of Status Application on July 7, 2010.  In the application, our office requested CIS discretion for our client’s application. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in filing the I-130 and the I-485. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. We prepared our clients over the phone for their interview. On January, 2011, our client was interviewed in San Francisco, CA.  That same day, without any objection, the officer granted our client’s petition and her green card application.  Now, our client is a green card holder and she got it despite filing her adjustment of status application after her VWP overstay.

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CASE: Adjustment of Status – First Preference Petition

CLIENT: Jamaican

LOCATION: Connecticut

Our client has been on F-1 status for many years. He went to colleges in the United States, and has maintained his status lawfully throughout his stay in the United States.  His mother was a naturalized U.S. citizen, and wanted to file her I-130 petition on behalf of her son.  However, since our client was over 21 years old at the time of filing the I-130 petition, our client had to wait 5 years to have a current priority date.

As mentioned before, parents, spouses and children of U.S. citizens are considered “immediate relatives,” and these “immediate relatives” do not need to worry for backlogged priority dates.  However, if children of U.S. citizens are over 21 years old at the time the I-130 petition is filed, then they are not considered “immediate relatives” anymore and would have to wait. They would then fall under the 1^st preference category.  (According to the January 2011 Visa Bulletin, the priority date is January 1, 2005).

Our client’s mother filed an I-130 petition for her son back in January of 2005 and this I-130 petition was approved.  Our client retained us in July of last year and discussed with us his adjustment of status issues. On August 12, 2010, our firm filed the I-485 Adjustment of Status Application and I-765 Work Authorization application.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  There was no Request for Evidence.  On November 15, 2010, our client was interviewed in Hartford, Connecticut.   On December 30, 2010, the USCIS approved his adjustment application. After several years in the U.S., our client if finally a green card holder.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce, I-130, and I-485 Green Card Process

NATIONALITY: Filipino

LOCATION: New Jersey

Our client is a Filipino national who came to the U.S. on a J-2 Visa. He came with his ex-wife who was on a J-1 Visa. Both were subject to the two-year foreign residency requirement, meaning you would have to go back to your home country for two-years before you can apply for permanent residency and some non-immigrant visas. (Please read the article below for more details about J-1 Waiver and 2 year foreign residency requirement).

He got divorced from his wife and later on thought of marrying his U.S. Citizen girlfriend. He consulted with our firm on whether he can apply for a green card upon marriage. We told him he could not because he is still subject to the two-year foreign residency requirement. We first had to do a waiver of this requirement. Our firm was retained to do this J-2 waiver on April 7, 2010. On April 9, 2010 the J-2 Waiver 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 is divorced from the J-1 visa holder. On April 28, 2010 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On May 28, 2010, the USCIS approved the waiver of the 2-year foreign residency requirement.

After our office got his waiver, our client got married in a few months. Our office then filed the I-130 Petition, I-765 Work Authorization Form and I-485 Adjustment of Status Application on September 3, 2010. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. On November 10, 2010, our client got his work authorization card from the USCIS.

In early December, Attorney Sung Hee (Glen) Yu thoroughly prepared our client and his wife for their upcoming USCIS marriage interview. We prepared our clients with potential questions at the interview.  On December 9, 2010, our client was interviewed in Newark, New Jersey. Attorney Sung Hee (Glen)Yu accompanied the clients at the interview as well.  After the interview, on the same day, the USCIS officer granted our client’s adjustment of status application.  Our client finally is now a green card holder.

Pursuant to federal immigration law, our office first obtained a J-2 waiver for our client before we filed the I-130/I-485.  Our client’s J-2 waiver was approved less than two months after we filed it.  Also, it only took three months for our client to get his green card once we filed client’s I-130 and I-485 applications simultaneously.

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CASE: Termination of Removal Proceedings and Adjustment of Status with USCIS

CLIENT: Senegalese

LOCATION: Columbus, OH

Our client is a Senegalese national who came to the U.S. with fraudulent documents many years ago. He resides in Columbus, Ohio.

Prior to retaining our firm, he married a U.S. citizen spouse and filed an I-130 petition, I-485 green card application and I-601 waiver application for his fraudulent entry. The I-130 petition was approved by the CIS, however, his I-485 application and I-601 waiver were denied by the CIS.  Fortunately, his appeal of the 601 waiver  was sustained by the Office of Administrative Appeals later.

In the meantime, he was placed in removal proceedings after the denial of his initial green card application. Thereafter, he consulted with our firm for representation in removal proceedings and adjustment of status. We explained that we can terminate removal proceedings and we can help his adjustment of status application. Our office was retained and within a few days, we filed a Motion to Terminate with the Immigration Court.

The DHS counsel opposed the termination of hearing. The basis was whether his manner of entry should be considered an admission.  A few months later at the scheduled contested Master Hearing, based on the BIA case Matter of Quilantan, Attorney JP Sarmiento argued that our client’s entry is an admission and that he has an approved I-130 and I- 601 waiver. The Immigration Judge granted termination. We then wrote a letter to the Columbus CIS office to reopen our client’s adjustment of status application since removal proceedings have been terminated. Within a few weeks, another green card interview was scheduled for our client. Client had his green card interview on December 6, 2010 in Columbus USCIS office. We prepared our clients before the interview and Attorney JP Sarmiento accompanied them. At the interview, the officer finally approved our client’s green card application.  After the long process, our client eventually obtained his permanent resident card.

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CASE: I-130 and Consular Processing – Marriage-Petition

CLIENT: Indian

LOCATION: Petitioner: Cleveland Ohio; Beneficiary: Pakistan

Our client is a U.S. citizen who married a Pakistani lady in Pakistan. He had his marriage ceremony with his wife in Pakistan, so he wanted to file an Immigrant visa for his wife by filing an I-130 petition.  It is important to note that an alien cannot adjust his or her status (gets a green card) outside U.S. by filing I-130 and I-485 simultaneously. The Petitioner also had questions on the fact that he was married before and filed an I-130 Petition for his previous wife. We explained that as long as that marriage was bona fide and the second one is bona fide (in good faith), there should be no problem.  Since the client’s wife was not in the United States, and their marriage occurred in Pakistan, our office promptly filed the I-130 and I-129K (for the wife’s K-3 visa) to the National Visa Center. 

The I-130 and I-129K were filed on May 21, 2010 to National Visa Center in New Hampshire.  Everything went smoothly and the receipt notices came on time. After the I-130 approval, we filed the immigrant visa packets to the National Visa Center, who in turn forwarded client’s materials to the U.S. Embassy in Islamabad, Pakistan. An interview notice was set for the client at the US Embassy in Islamabad, and we prepared her for her interview. On November 29, 2010, the beneficiary went to her interview in Islamabad, Pakistan and the officer right after informed them that the case was to be approved.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card.

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CASE: Change of Status from H-1B to H-4

CLIENT: Indian

LOCATION: Milwaukee, Wisconsin

Our client has been on H-1B status for two years and held his specialty occupation position. However, his H-1B status expired on September 10, 2010.  Before his H-1B status was expired, our client married his girlfriend who was an H-1B visa holder in the United States living in Cleveland Ohio.  As a family dependent of H-1B visa holder, our client has a chance to change his status from H-1B to H-4 before his H-1B is expired. Our firm was retained and we helped the client obtain supporting documents for the Change of Status before his H-1B was expired. On September 2, 2010, our firm promptly filed the client’s I-539 with detailed exhibits to USCIS Texas Service Center.  On November 24, 2010, the Change of Status was approved. Our client is now on H-4 and can maintain his lawful stay in the United States.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Romania

LOCATION: Arizona

Our client is a Romanian national who came to the U.S. on a J-2 Visa.  She came with her husband who was on a J-1 Visa. Both were subject to the two-year foreign residency requirement, meaning you would have to go back to your home country for two-years before you can apply for permanent residency and some non-immigrant visas such as H, L, and O visas. (Our firm’s blog will explain this two-year residency requirement for J-1 visa holder and possible waiver application process later with further details).  Moreover, if you are subject to the two-year foreign residency requirement, you are not allowed to change some non-immigrant status in the United States.

Unfortunately, her marriage did not work out well after my client and her ex-husband came to the United States.  Eventually, she got divorced from her ex-husband and later married a U.S. citizen husband.  Her new husband petitioned I-130 and I-485 (green card process based on marriage) on behalf of our client, but her green card application was denied due to her failure to fulfill the two-year foreign residency requirement.  As mentioned above, an immigrant beneficiary who is subject to 2-year requirement cannot get his/her green card even if he/she marries a U.S. citizen until he/she fulfills the requirement or gets a waiver.

Once client’s green card application was denied, she contacted our firm and retained us. Our firm was retained to do this J-2 waiver on October 4, 2010. On October 11, 2010 the J-2 Waiver 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 was divorced from the J-1 visa holder.  On October 26, 2010 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Eventually, on November 22, 2010, the USCIS approved the waiver of the 2-year foreign residency requirement. She obtained her waiver within 40 days!  Our client can apply for her green card without having to go back to Romania and be separated from her husband for two years.

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CASE: Adjustment of Status

CLIENT: Filipino

LOCATION: Florida

POTENTIAL ISSUES PRE-RETENTION: Immigrant Intent

Our firm was consulted on June 8, 2010. Our client got married to a U.S. Citizen on December 6, 2009, returned to the Philippines, then came back here as a tourist. They originally met in the Philippines when her husband was stationed there for a few years due to work. When our client last came to the U.S. as a tourist, despite being married to a U.S. Citizen, at that point they intended to actually go back to the Philippines because her US Citizen husband’s employer may start another term and contract with their client in the Philippines. Even the alien beneficiary, who has been working for a Philippine employer, was in the States on a leave of absence, and was not terminated yet by her company. There clearly was no immigrant intent, though an officer may suspect that there was due to her entry as a tourist, application for adjustment of status months later, and her marriage to a U.S. Citizen prior to her most recent entry. Our firm filed the Petition and Adjustment of Status Application on July 9, 2010. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. On September 28, 2010, we prepared our clients for the interview for over an hour, specifically addressing the fact that she had no immigrant intent on her entry, and highlighting their evidence in support of the lack of immigrant intent through factors such as her return ticket, leave of absence, husband’s employer’s contract with a Philippine company etc. On October 6, 2010, our client was interviewed in Jacksonville, Florida. That same day, the officer told them that he was granting the petition and the green card application.

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