CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Ohio

Our client came to the United States from Mexico in 1999 without inspection and admission. He married his U.S. citizen wife in 2003. With our firm’s legal assistance, his U.S. Citizen wife filed an I-130 petition for him in 2013. This I-130 petition was approved on January 17, 2014.

Our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission). He needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  His wife has ongoing medical hardships and she would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in Mexico in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in Mexico, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On July 13, 2015, we filed the I-601A waiver application which included the brief in support, his wife’s extensive medical examination records, and other documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on November 23, 2015. Now, he can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get his immigrant visa.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Zambian

LOCATION: Cleveland, Ohio

Our client came to the United States from Zambia on a B-2 Visitor’s visa in May 2010. After his authorization of stay period expired, he remained in the United States.  He married a U.S. Citizen in July 2015 and retained our office for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 14, 2015.  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 in our office. On October 27, 2015, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on November 23, 2015, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came to the United States from China on a F-1 student’s visa in August 2010. She married a U.S. Citizen in August 2015 and retained our office on August 5, 2015 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 3, 2015.  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 as well. On November 23, 2015, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Eventually, on the same day of the interview, her green card application was approved.

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CASE: I-130 (Petition for Mother) and I-485 Adjustment of Status

CLIENT: Filipina

LOCATION: New York, NY

Our client retained us to petition her mother for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States. She contacted our office in late May of 2015 and discussed with us the green card process. After consultation, she retained our office on May 29, 2015.

Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 16, 2015 for her mother.  Everything went smoothly and the receipt notices, fingerprint appointment, and a work permit all came on time. Eventually, on November 18, 2015, without an interview, our client’s mother’s adjustment of status application was approved. Now, she is a green card holder.

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CASE: I-824 (Follow-to-join) based on approved I-140 and Consular Processing (Immigrant Visa)

CLIENT: Filipina LPR Petitioner; Filipino Beneficiary in the Philippines

LOCATION: Petitioner: Michigan; Beneficiary: Manila, Philippines

Our client is a Lawful Permanent Resident who got her green card under EB-2 category with our office’s legal assistance in 2014.  She has a husband, and our client and her husband married before his adjustment of status application was adjudicated. However, her husband was in the Philippines when she got her green card due to his employment. He could have been a derivative applicant at the time of our client’s green card filing, but he was not in the United States at that time. Nevertheless, we told our client that we can do an I-824 and do consular processing for her husband when he wants to permanently move to the United States.

In October 2014, she contacted our office to do an I-824 follow-to-join application to the USCIS so that her husband can file an immigrant visa and come as a derivative beneficiary of the I-140 petition. She retained our office on October 17, 2014 to help bring her husband to the States.

After we were retained, our office filed an I-824 follow-to-join application to the USCIS on October 31, 2014. After the I-824 was filed, everything went smoothly and the receipt notice came on time. The I-824 application was approved by the USCIS on June 29, 2015 and this case was transferred to the National Visa Center.

After the I-824 approval, we filed the immigrant visa packets to the National Visa Center on August 20, 2015 who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for our client at the U.S. Embassy in Manila. On November 10, 2015, our client’s husband appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and eventually, on the same day, the U.S. Embassy in Manila, Philippines approved and issued his immigrant visa.

With the approved Immigrant visa, our client’s husband can come to the United States. He will get his green card within two months.

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CASE: Marriage-Based I-130 and I-485

CLIENT: Mexican

LOCATION: Cleveland, Ohio

Our client came to the United States from Mexico on a TN visa in June 2015. He has been working for his company in the United States as a TN visa holder for the last several years. He married a U.S. Citizen in July 2015 and retained our office in July 14, 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on August 4, 2015.  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. On October 27, 2015, our client was interviewed at Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on November 6, 2015, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: New Mexico

Our client came to the United States from the Philippines on a J-1 exchange visitor’s visa in March 2010. Later, she changed her status from J-1 to H-1B. She was not subject to the 2-year foreign residency requirement (INA Section 212(e)) according to her J-1 visa.

She married a U.S. Citizen in June 2015 and retained our office on June 29, 2015 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 11, 2015.  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 as well. On November 3, 2015, our client was interviewed at Albuquerque, New Mexico USCIS office. Eventually, on the same day of the interview, her green card application was approved.

If you have any questions, feel free to call our office at (216) 573-3712 or email JP Sarmiento at jp@sarmientoimmigration.com for FREE consultations.

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

CLIENT: Filipino

LOCATION: Washington

Our Filipino client came to the U.S. in April 1993 on a valid B-2 visitor’s visa when he was a minor. He has remained in the United States since then. In April 2001, his U.S. citizen brother filed an I-130 petition for him. Thereafter, he married his current wife in April 2011. His wife got an approved EB-2 I-140 petition and she later filed her I-485 adjustment of status.

Our client contacted us around May 2015 for consultation and sought legal assistance for his adjustment of status application. He was not sure whether he could be a derivative applicant of the adjustment of status based on his wife’s I-140 approval since he overstayed his status. Nonetheless, after consultation, we determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on May 26, 2015.

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.

As mentioned above, our client’s U.S. citizen brother filed an I-130 petition for him back in April 2001. Therefore, he was a beneficiary of an immigrant petition filed after January 15, 1998 and before April 30, 2001 and that I-130 petition was approvable when it was filed. Moreover, he was physically present in the United States on December 21, 2000.

On July 2, 2015, our office filed his I-485 adjustment of status application under 245(i).  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  Eventually, on October 19, 2015, without any requests for evidence, our client’s I-485 adjustment of status application was approved.

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CASE: Marriage-Based Green Card

CLIENT: Nigerian

LOCATION: Pittsburgh, Pennsylvania

Our client came to the United States from Nigeria on an F-1 student’s visa in August 2012. He married a U.S. Citizen in October 2014 and retained our office on November 16, 2014 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 26, 2015.  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 as well. On October 21, 2015, our client was interviewed at the Pittsburgh Pennsylvania USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Eventually, on the same day of the interview, his green card application was approved.

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CASE: I-751

APPLICANT: Filipina

LOCATION: Cleveland, OH

Our client contacted our office in late September of 2014 regarding her I-751 application.

She is from the Philippines and married a U.S. citizen in September 2012. Through her marriage, she obtained a 2-year conditional green card in January of 2013. Our office helped her in her green card process.  Her conditional residency terminated in January 2015.

To comply with immigration requirements, our client and her wife had to file an I-751 Joint Petition to Remove Conditions. She retained our office on October 6, 2014 and our office prepared an I-751 application for our client with supporting documents.

On October 7, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, joint lease, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

After the application was filed, a fingerprint notice was issued two weeks later. The USCIS issued a Request for Evidence (RFE) regarding the bona fideness of our client’s marriage with her husband. We filed a Response to RFE to the USCIS with more bona fide documents on March 30, 2015.

Eventually, on October 14, 2015, the USCIS approved our client’s I-751 application.

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