CASE: Motion to Reopen
CLIENT: Nigerian
COURT LOCATION: Baltimore, Maryland / New York, NY
RESIDENCE: Brooklyn, NY

Our client came to the United States with valid B-2 visitors visa in 2002, and later married his previous U.S. Citizen wife. He filed his green card application based on his previous marriage, but they separated prior to the interview so he never got notice of his interview, denial and the eventual notice to appear in Court.

Years later, our client married his second U.S. Citizen spouse, and he again filed for his green card application himself. Prior to retaining our firm, he went to his I-130 and adjustment of status interview only to find out that he had a final order many years ago. He did not know about it. So his case was denied. He was told by the officer that he had to reopen his case. We met our client at our New York office and he retained us on August 2010 for the Motion to Reopen.

If an alien does not go to his or her scheduled hearing with the Immigration Court, regardless of the reason, you will on that day have an in absentia order of removal. Once this is triggered, you are susceptible to being detained and subsequently deported by the Department of Homeland Security (DHS). Through a Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive proper notice of the notice to appear. If the Notice to Appear was sent to the wrong address for example, then there’s a good basis for a Motion to Reopen.

On August 31, 2010, our office filed the Motion to Reopen with the Baltimore Immigration Court. Documentation of his address at the date of the final order, a detailed 4-page affidavit regarding his addresses and his circumstances around the final order date, documentation of the last address he provided to the immigration service prior to the final order date, and other supporting documents were submitted. The Department of Homeland Security did not file an opposition or response to our Motion. On November 8, 2010, our office called the Court to follow up and we were informed that the Motion was granted.  Upon approval of the Motion to Reopen, we filed a Motion to Change of Venue as well.  The Baltimore Immigration Court granted our Motion, and later our client’s venue was changed to New York, NY.

Attorney Sung Hee (Glen) Yu from our office accompanied our client at his Master Calendar hearing at the New York Immigration Court in March 2011, and he explained that an I-130 is pending and that a Stokes interview should be scheduled soon. On September 15, 2011,
Attorney JP Sarmiento accompanied our client and his U.S. Citizen wife for their I-130 Stokes interview. The interview went well, and the USCIS officer determined that our client’s marriage to his U.S. citizen wife was bona fide.  On the same day, the I-130 petition was approved.

With the approved I-130 petition, we filed a request to join in a motion to terminate with the DHS.  After review of our client’s application, the DHS agreed to join the motion. On October 22, 2011, the New York Immigration Court granted our Motion to Terminate, so our client’s removal proceedings were terminated.  Thereafter, our client filed an I-485 Adjustment of Status application to the USCIS on October 25, 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 February 13, 2012, our client was interviewed at the New York City, NY USCIS.  We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved on February 28, 2012.

After being in the U.S. for over 10 years and having a final order of removal for about nine years, our client finally has his permanent resident card.

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CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Filipina

LOCATION: Chicago, IL / Los Angeles, CA

Our Filipina client came to the U.S. on a B-2 visitor’s visa in 2001 and overstayed her status. Currently, she resides in Los Angeles, California.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you know, 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. 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 adjust status 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 in Los Angeles.

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 died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client’s US citizen sister was willing to become a substitute sponsor and she met the physical presence requirement. On January 5, 2011, our office filed a request to join in a Motion to Terminate with the Los Angeles DHS. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court. 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 was transferred USCIS Chicago Field Office for adjudication of her I-485 application.

On April 5, 2011, our client appeared at Chicago CIS office for her adjustment interview.  Attorney Yu accompanied her at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained them that the old humanitarian reinstatement standards were not needed anymore.

However, on October 3, 2011, the USCIS issued a Request for Evidence (RFE) for our client. The CIS argued that our client was not able to show humanitarian reasons for reinstatement.

It seemed though that the RFE did not take into account PL 111-83 and the new 2009 law. Under the new law, the Petition survives the death of the Petitioner also in categories of beneficiaries as long as they were residing in the U.S. on the date the Petitioner passed away and continue to reside in the U.S., including married sons and daughters of citizens and green card holders. A substitute sponsor who is a qualifying relative, such a U.S. Citizen sibling, shall still be needed, but the humanitarian factors are not.

Since our client’s case clearly fell under the amendments for INA Section 204(l), our office filed a Response to RFE on October 13, 2011 including a cover brief and 14 exhibits. We attached the law itself and highlighted the relevant parts.  Eventually, our client’s adjustment application was approved by the USCIS on February 15, 2012.  After a long wait, our client is finally a green card holder.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Chicago, IL

Our client came to the United States in March 1994 with an H-4 visa (dependent of an H-1B visa holder) as a minor child from the Philippines. Her mother, who was on H-1B, fell out of status so she also fell out of status. Years later, she married his U.S. Citizen spouse in August 2011 and retained our office on October 20, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 27, 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 February 15, 2012, our client was interviewed at the Chicago, Illinois USCIS.  We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved on the same day.

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CASE: Adjustment of Status at Removal Proceeding
CLIENT: Kenyan
LOCATION: Chicago, IL

Our client came to the United States in August 2005 with an F-1 student visa from Kenya.  He married a U.S. Citizen in January 2010.  Our client’s wife filed an I-130 petition on behalf of our client, and this I-130 petition was approved by the USCIS Milwaukee Field Office in December 2010.  He was placed in removal proceedings for overstaying his F-1 status, so our client contacted our office to seek legal representation for his removal proceedings.

Our client retained us on March 25, 2011.  On April 5, 2011, Attorney Sung Hee (Glen) Yu of our office represented our client at his initial master calendar hearing at the Chicago Immigration Court.  We did pleadings for our client and asked for adjustment of status relief. After the Master Calendar hearing, our office prepared and filed the I-485 Adjustment of Status Application and other supporting documents to the Chicago Immigration Court.

On February 6, 2012, Attorney Yu represented our client at his Individual Hearing for adjustment of status at the Chicago Immigration Court.  After direct and cross examination, the Immigration Judge approved our client’s adjustment of status application. Now, our client is a permanent resident of the United States.

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

Our client came to the United States in January 2004 with an F-1 student visa from Gambia.  She married a U.S. Citizen in July 2011 and retained our office on August 31, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 8, 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 December 5, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well. On February 8, 2012, our client’s green card application was approved.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Filipina
Location: Los Angeles, CA / Cleveland, OH

Our Filipina client came to the United States in 2003 with an H-1B visa to work at a Cleveland Ohio hospital as a registered nurse. Through an attorney, her employer filed an I-140 Petition for her and she eventually filed an adjustment of status application. While her adjustment of status application was pending, our client traveled abroad with an Advanced Parole travel document. While abroad, her I-485 was denied due to unauthorized work lasting over 180 days not for the H-1B company. Though her I-485 was pending during that time, her attorney unfortunately did not file an I-765 application for employment authorization document even though she was eligible. She came back to the United States in February 2007 on the same advance parole document. She was not stopped despite the I-485 denial.

She did not know about the denied I-485 and she was not notified by her attorney, thus she was under the impression the I-485 was still pending and that her advance parole was valid. She later found out about the denied I-485 upon following up with her attorney so she hired a different attorney to re-file it and address all pertinent issues. However, her adjustment of status application was denied again in 2009 and she was placed in removal proceedings with the issuance of a Notice to Appear. Part of the denial focused on her last entry on the advance parole, when she came back when her I-485 was already denied. On her Notice to Appear (“NTA”), due to her entry, she was considered an arriving alien.

Our client married her U.S. citizen spouse after removal proceedings were initiated. Meanwhile, our client’s first hearing was scheduled at the Cleveland Immigration Court.  Our client consulted with our firm to see if there was anything that could be done for them knowing that she had this entry issue involving her I-131 despite a denied I-485, and her deemed illegal work for over 180 days.

We saw from her Notice to Appear that she was considered an arriving alien and based on that, we advised her that we can apply for adjustment of status based on her marriage to a U.S. citizen.  She retained us in June 2011.

An arriving alien can adjust his or her status with the USCIS even though he or she is in removal proceedings or 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.

Under the amended jurisdictional provisions of the interim regulations, the USCIS has been given jurisdiction over adjustment of status 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 with 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).

At the first hearing in Cleveland, Attorney Sung Hee (Glen) Yu accompanied our client, took pleadings, and conceded removability. He explained that since our client is an arriving alien and is married to a U.S. Citizen, that she shall file an I-130 and I-485 with the CIS, since jurisdiction for both lies with the CIS. Our office then prepared and filed the I-130 Petition and I-485 adjustment of status application in accordance with the regulations, including the bona fide marriage exemption letter mandatory for marriages entered into after removal proceedings.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.

Our client’s I-130/I-485 interview was scheduled on January 11, 2012 at the Los Angeles California USCIS field office. Prior to the interview, Attorney Yu thoroughly prepared our client and her husband for their USCIS adjustment of status interview. The preparation lasted for over an hour due to the “arriving alien” issue and other possible concerns with regards to our client’s extensive immigration history.

At the interview, Attorney Yu accompanied our client and her husband at the Los Angeles USCIS office. At the interview, the USCIS officer argued that they did not have jurisdiction to adjudicate the adjustment of status application because removal proceedings were not yet terminated. Attorney Yu argued that the USCIS clearly has jurisdiction for adjudication of our client’s adjustment application, regardless of whether proceedings were terminated. He argued that termination can occur after the adjustment of status approval. The interview lasted two hours and included a meeting between Attorney Yu and the head of the Los Angeles USCIS, as referred by the CIS officer with regard to the jurisdictional issue. After the meeting, the USCIS officer eventually approved the I-130 petition on the same day.  Eventually, our client’s adjustment of status application was approved by the USCIS on January 26, 2012.  After almost ten years in the United States, overcoming two adjustment of status denials, and being placed in removal proceedings, our client is now finally a permanent resident of the United States.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Hungarian
LOCATION: Atlanta, GA

Our client came to the United States in March 2008 as a B-2 visitor from Hungary. Although his authorized stay in the United States expired in September 2008, he remained in the United States.   He married his U.S. Citizen wife in June 2011 and retained our office on September 2, 2011 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 20, 2011.  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 for their interview. On January 26, 2012, our client was interviewed at the Atlanta, Georgia USCIS.   On the same day, his green card application was approved.

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

Our client came to the United States in September 2008 with an H-2 temporary work visa from the Philippines. She eventually overstayed her visa and remained in the United States. She married a U.S. Citizen in October 2011 and retained our office on November 8, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on November 21, 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 January 26, 2012, our client was interviewed at the Cleveland, Ohio USCIS office.  We accompanied them at the interview as well.  On the same day, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Canadian
LOCATION: Baltimore, MD

Our client came to the United States in March 2011 as a visitor from Canada.  She married her U.S. Citizen wife in April 2011 and retained our office on September 9, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 26, 2011.  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.  On January 12, 2012, our client was interviewed at the Baltimore, Maryland USCIS office.  Our attorney accompanied them at the interview as well.  On January 17, 2012, her green card application was approved.

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CASE: Asylee Adjustment of Status
CLIENT: Chinese
LOCATION: Cleveland, OH

Our client came to the United States in October 2010 after she was granted derivative asylum status as the spouse of a person granted asylum.  Her husband was granted asylum in November 2008, and thereafter, our client came to the United States as derivative asylee.

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 October 2011, one year after she entered the United States, our client contacted our office and sought legal assistance for her adjustment of status.  Our office was retained on October 17, 2011, and we prepared and filed her I-485 Adjustment of Status Application on October 28, 2011.  Everything went smoothly and the receipt notice and fingerprint appointment all came on time.  On January 12, 2012, the USCIS approved our client’s Adjustment of Status application. She’s now a permanent resident of the United States.

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