Case: I-130/I-485

Potential Issue: Response to Notice of Intent to Deny

Client: Filipina

Location: Cleveland, Ohio

Our client entered the United States in May 2005 from the Philippines with a B-2 visitor visa.  She overstayed and married a U.S. citizen in December 2014. She retained our office on January 5, 2015 for her adjustment of status application.

Our office prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on January 16, 2015.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, our office thoroughly prepared our clients at our office for their USCIS adjustment of status interview.

On April 13, 2015, our client and her husband appeared at the Cleveland, Ohio USCIS office for her adjustment interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client and her husband at their interview. The interview was extensive and at the end of the interview, the officer claimed that he was suspicious regarding the bona fideness of our client’s marriage.

On August 21, 2015, 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 was not bona fide.  Moreover, the NOID pointed out that the submitted documentation of Petitioner and Beneficiary does not establish a bona fide marriage.

In response to the USCIS’s NOID, our office included multiple supporting documents including, joint bank account statements, a joint car purchase agreement, joint utility bills, joint insurance, 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 September 16, 2015, we filed the Response to NOID prior to the 30-day deadline.

Finally, on October 9, 2015, the USCIS approved our client’s case. Both the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay expired, she remained in the United States.

In March 2014, 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 August 29, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippines Consulate General in San Francisco for further authentication.  On November 4, 2014, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  The Waiver Review Committee then forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On March 9, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on April 6, 2015, the USCIS issued an I-612 approval notice.

After 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 I-485 Adjustment of Status Application on May 19, 2014.  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 October 7, 2015, our client was interviewed at the Santa Clara, California USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

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CASE: Termination of Removal Proceedings Based on Approved I-130 Petition

CLIENT: Kenyan

LOCATION OF COURT: Atlanta, GA

LOCATION OF CLIENT: Alabama

Our client is from Kenya who came to the U.S. on a F-1 Student Visa in June 2001. However, she failed to maintain her F-1 status after that.  She was thereafter placed in removal proceedings in Atlanta, Georgia.

Our client married her U.S. citizen husband in May 2013 in Alabama. Her husband filed an I-130 petition on her behalf after they got married. Eventually, our client’s I-130 petition was approved in February 2015. She could not apply for adjustment of status by herself with the CIS, since her removal proceeding is still pending.

She contacted our office around May 2015 to seek legal assistance. She retained our office on June 4, 2015.

After our office was retained, we prepared and filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents to the Atlanta ICE-DHS office. In less than a month, the DHS counsel in Atlanta agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on October 1, 2015. Now, she can file her I-485 adjustment of status application with the CIS.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Texas

Our client came to the United States from Mexico in December 2003 without inspection and admission. She married her U.S. citizen husband in 2007. With our firm’s legal assistance, her U.S. Citizen husband filed an I-130 petition for her on January 13, 2014. This I-130 petition was approved on August 12, 2014.

However, our client cannot file for adjustment of status application due to her ground of inadmissibility (entry without inspection and admission). She cannot also apply for an immigrant visa at once and get it – she has a bar. She 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 wasn’t easy, as the US Citizen husband did not have major medical issues. He had a history of depression though, plus their (the son is not a qualifying relative for the waiver, but we argued it’s a big factor for the husband’s hardship) suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included affidavits and medical records.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.

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

On May 18, 2015, we filed the I-601A waiver application which included the brief in support, her husband’s extensive medical examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

However, on August 17, 2015, the USCIS issued Request for Evidence (RFE) for our client’s case. USCIS explicitly requested our client to submit more evidence to prove extreme hardship to her U.S. citizen husband if she is forced to relocate in Mexico. In response to this RFE, our office prepared a response brief along with more. Our office filed the response to RFE on September 16, 2015.

Eventually, her I-601A waiver was approved on September 25, 2015. Now, she can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get her immigrant visa.

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CASE: Termination of Proceedings / I-751

APPLICANT: Ghanaian

LOCATION: Columbus, OH

Our client contacted our office in July 2014 regarding his removal proceedings representation and I-751 application.

He is from Ghana and he married a U.S. citizen in August 2010. Through his marriage, he obtained a 2-year conditional green card in May 2011.  His conditional residency terminated in May 2013.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. They filed the I-751 application first; however, they failed to appear at the I-751 interview because they were not informed of their interview date.  Our client’s initial I-751 application was thus denied. Later on, our client was placed in removal proceedings and had to appear for his Master Calendar hearing at the Cleveland Immigration Court on August 5, 2014. Our client retained our office on August 4, 2014 and Attorney Sung Hee (Glen) Yu represented our client at his initial Master Calendar Hearing.

After the hearing, our office prepared an I-751 application for our client with other supplemental exhibits including a detailed brief on why they failed to appear at their initial I-751 interview.

On January 29, 2015, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, insurance policies, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later. However, the USCIS issued a Request for Evidence (RFE) in July 2015 and requested our client to submit more bona fide evidence. In response to the RFE, our office prepared and filed the Response to RFE with several supplemental exhibits to the USCIS on August 4, 2015. Eventually, on August 19, 2015, the USCIS approved our client’s I-751 application and our client received his 10-year green card which removed the conditions.

Once our client received his 10-year green card, our office filed a Motion to Terminate proceedings with the Cleveland Immigration Court on August 31, 2015. On September 30, 2015, the Immigration Judge terminated our client’s removal proceedings.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY:  Kenyan

LOCATION: Maryland

Our client came to the U.S. on a J-1 Visa in August 2004 from Kenya.  She came to the U.S. for her study, and her J-1 visa made her subject to the two-year foreign resident requirement. After her J-1 status expired, she has remained in the United States. She married her U.S. citizen husband in 2006.  Our client’s husband intended to do an I-130 petition for her and our client wanted to file an adjustment of status application. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

Our client could not pursue her waiver under the No Objection Statement or Interested Government Agency (IGA) routes. Our client, though, would like to pursue her J-1 waiver based on the exceptional hardship standard. Our client’s U.S. citizen son had some 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 July 23, 2014 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 of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen son’s medical condition.  On October 15, 2014, our office filed an I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needed to go back to Kenya for two years.

Eventually, the Department of State recommended a waiver for our client on January 14, 2015. Subsequently, the USCIS approved her I-612 waiver on January 26, 2015. Once the J-1 waiver was issued, our client retained our office again on February 5, 2015 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 27, 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 via conference calls. On September 24, 2015, our client was interviewed at the Baltimore, Maryland USCIS office. Eventually, on September 30, 2015, her green card was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Ghanaian

LOCATION: Columbus, Ohio

Our client came to the United States from Ghana on a B-2 Visitor’s visa in December 2005. After his authorization of stay period expired, he remained in the United States.  He married a U.S. Citizen in February 2014 and retained our office on April 1, 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 10, 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 via conference calls. On September 1, 2015, our client was interviewed at the , Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on September 21, 2015, his green card application was approved.

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Case: I-130/I-485

Applicant/Beneficiary – Japanese

Location: Cleveland, Ohio

Our client entered the United States in April 2015 from Japan under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) for a couple of months. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Later, in June 2015, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on June 26, 2015.

One main issue in her green card application through marriage was the fact that she 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.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on July 6, 2015.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients at our office. On September 18, 2015, our client was interviewed at the Cleveland, Ohio USCIS Field Office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Despite the visa waiver issue, on the same day of the interview, the USCIS approved her green card application.  Now, our client is a green card holder.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Peruvian

LOCATION: Dallas, TX

Our client came to the United States in July 2009 with a B-2 Visitor’s visa from Peru. Later, she married a U.S. Citizen in June 2014 and retained our office for her petition and adjustment of status application.

She also asked us to file her son’s (Petitioner’s step-son) adjustment of status application.

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 22, 2014. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients through conference calls. On September 15, 2015, our clients were interviewed at the Dallas (Irving), Texas USCIS office. On the same day, our client and her son’s green card applications were approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Guatemalan

LOCATION: Cleveland, OH

Our client came to the United States from Guatemala on a B-2 Visitor’s visa in September 2003. She has remained in the United State since then.  She married a U.S. Citizen in December 2006 and has maintained her marital relationship with her husband.  She contacted our office in May of this year and sought legal assistance for her green card application. Eventually, she retained our office on May 18, 2015 for her green card application.  Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on June 5, 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 September 11, 2015, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney JP Sarmiento from our office accompanied our clients as well.  The interview went well, and on September 11, 2015, her green card application was approved.

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