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: 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: 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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CASE: I-130 / I-485

POTENTIAL ISSUES PRE-RETENTION: Immigrant Intent

APPLICANT / BENEFICIARY: Canadian

LOCATION: Dallas Texas

Our client last entered the United States on January 23, 2010. She has been going back and forth from Canada to the U.S. to visit his boyfriend. She had no intention to marry her husband preceding her last entry but a few weeks after her last entry, her husband proposed to her and they got married. It is important to show that there was no immigrant intent on your last entry and in this case, there was none. The officer may have doubts though due to the closeness of the marriage date to the date of entry. Our firm was retained to process the paperwork and prepare the couple for the interview. The I-130 and I-485 was filed on June 28, 2010. The receipt notices and fingerprint appointments were issued immediately and on August 31, 2010, our client received her work permit. Interview notices were issued on August 13, 2010 and our office prepared them prior to the interview, specifically addressing the immigrant intent issue. On September 20, 2010, they went to their interview in Dallas and the officer right after informed them that their case was to be approved. The CIS officially issued the I-485 approval on September 22, 2010, less than 3 months from filing the application and petition.

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CASE: Removal Proceedings, Adjustment of Status

APPLICANT / BENEFICIARY: Senegalese

LOCATION: Ohio

Our client entered the U.S. using his brother’s passport back in 2001. He presented this at the airport customs and was let in by the officer. The officer checked the passport and asked a few questions to our client, as is customary, and he was able to enter despite using his brother’s passport.

Several years later, our client married a U.S. Citizen. Knowing than an I-601 hardship waiver was needed for his green card application due to his fraudulent entry with his brother’s passport, he filed everything together with the 601 waiver. The I-130 petition was approved, which means that the government believed the marriage was in good faith. The green card application though was denied, as well as the I-601 waiver. The denial pointed out that there was not enough hardship to meet the standards for the 601 waiver.

An appeal was filed to the AAO for the 601 waiver and after almost a year, the 601 was approved. However, our client was issued a Notice to Appear and was scheduled for a removal hearing with the Cleveland Immigration Court.

Our office was retained to represent him for removal proceedings. Days before the hearing, the government changed the Notice to Appear and alleged him as an “alien present in the United States who has not been admitted or paroled” under section 212(a)(6)(A)(i). With this charge, even with the approval of the I-601 hardship waiver, our client would not be eligible for his green card. The government’s position was that our client’s entry with his brother’s passport was not an “admission” and that since he was not admitted, he can’t be eligible to adjust status as a permanent resident under INA § 245A.

At the Master hearing, we denied that allegation and the charge of removability. The Judge then set the case for a hearing on the issue. There were a line of cases addressing the issue, with arguments for both the government’s position and our position. Matter of Areguillin and Matter of Orozco were the two main cases at that time. Matter of Areguillin held that it’s the “procedural regularity” of the entry which results in “admission”.  The Orozco case though held that an entry on someone’s passport, such as our case, cannot be an admission, and thus people in this situation would not be able to adjust to permanent resident status despite an I-601 waiver.

Between the Master hearing and the Individual Hearing, the Board of Immigration Appeals issued an interim decision, Matter of Quilantan, which was on point with our case. It reaffirmed Areguillin in that procedural regularity is all that’s needed to be admitted in a particular status, and not the substance of the entry. Thus, someone who entered through customs, was questioned, inspected, and eventually let in despite a fake passport is considered “admitted”.

Prior to the scheduled hearing, we submitted documents to Court and to the government pertaining to our position that our client is in fact admitted and thus, with the waiver of inadmissibility granted despite our client’s fraudulent entry, should be eligible to to apply for permanent residency. At the hearing itself, we had a pre-hearing discussion with the government in which of Matter of Quilantan was discussed. The government agreed with our position and decided to terminate the case without even going through a hearing. The Immigration Judge discussed the issues and eventually terminated removal proceedings for our client.

Jurisdiction for his green card application now goes back to the USCIS in Columbus, Ohio, where his green card should be issued soon.

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CASE: I-130 / I-485

APPLICANT: Filipino

LOCATION: Nevada

ISSUES: Immigrant Intent

Our client was married to a U.S. Citizen before she entered the United States as a tourist. On her last entry, she intended to visit and spend Christmas with his husband, and then come back to the Philippines and get petitioned over there. She even had her return ticket. When she was at the port of entry in Las Vegas, she was inspected and admitted as a tourist, and she was honest in telling the officer that she was visiting her husband. No other questions and she was let in. After a few months with her husband, they both decided to pursue adjustment of status here and first consulted with our firm. We informed them prior to retention that immigrant intent will be the major issue. We had to prove despite her marriage in the Philippines before entry on a tourist visa that her intent on that last entry was to visit, and not to eventually immigrate. They understood and were firm on their case – the beneficiary really did not intend to immigrate when she last entered the U.S. Our firm was retained pro bono and the I-130 Petition and I-485 Adjustment of Status application were filed. Within 60 days our client got her work permit. Prior to their interview, our firm prepared both husband and wife for the interview. We focused on the bona fide marriage and immigrant intent issues. On August 18, 2010, both were interviewed at the Las Vegas CIS office. They both did well and the officer gave our client a stamped approval at the conclusion of the interview. She will receive her green card in a week.

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CASE: Adjustment of Status Based on Marriage
NATIONALITY: Filipino
LOCATION: Ohio

Our client is a Filipino national who came to the U.S. on an tourist visa back in 2002 and overstayed. On August 2003 he married a permanent resident. A petition was filed for her however since he was not a citizen yet, she could not apply for her green card. In the meantime to support herself she did various work, from hair and beauty to cleaning. Eventually her husband became a U.S. Citizen and she retained our office for her adjustment of status. One of her issues was that she was caught speeding and beating the red light on separate occasions, which led to Driving Without a License arrests and charges. She did not have the records nor any recollection of the disposition on those cases, nor did she know how many she had.  An immigration provision may make her ineligible for a green card with 3 Driving Without a License convictions. However, “Traffic Violations” do not make a green card applicant inadmissible. So our office obtained the court documents for our client, making phone calls and going all the municipal courts that adjudicated her case. Upon reviewing the documents, we deemed these were indeed traffic violations that should not prevent her from obtaining a green card.  She also only had one conviction for the no license charge as the others were dismissed. The green card application was filed in February 18, 2010. To avoid delays and potential Requests for Evidence, we included the traffic records with a notation that they were only traffic records which should not be an issue and that the others were dismissed. The case indeed did not have any delays nor Requests for Evidence, and our client was scheduled for her interview in May 27, 2010. Prior to the interview, despite the marriage petition already approved, our office prepared both the client and her US Citizen husband in case both are interviewed. Note that the I-485 interview notice did not stipulate that the husband would also be interviewed.  At the interview in Cleveland, the officer actually interviewed both the husband and the wife, and asked them questions on separate occasions regarding the validity of the marriage. It was a good thing they were both prepared. The interview thus went smoothly. On June 7, 2010, 10 days after the interview, and 8 years after she first arrived in the United States, our client finally received her green card.

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