CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                                      

LOCATION: Cleveland, Ohio

Our client is from the Philippines who came to the U.S. on a J-1 exchange visitor’s visa in November 2016. Her J-1 program did not subject her to the 2-year foreign residency requirement (INA Section 212(e)).  In October 2017, our client married her current U.S. citizen husband.  Once she married, she retained our office for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 20, 2017.  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 as well. On February 1, 2018, our client was interviewed at the Cleveland Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients as well. Eventually, on the same day of her interview, her green card application was approved.

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CASE: I-485 Adjustment of Status / I-140 (EB-2 Category) / Schedule A

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client is in the United States on an H-4 visa. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to go for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on February 22, 2017 via premium processing. We included a job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the nurse manager position falls under a Schedule A and EB2 designation. Eventually, on March 8, 2017, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her and her husband. On April 5, 2017, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client at via conference calls as well. On January 24, 2018, our client was interviewed at Houston Texas USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients as well. Eventually, on January 25, 2018, her green card application was approved. Her husband’s green card was approved as well.

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CASE: I-130 / BIA Remand / Stokes Interview

CLIENT: Sierra Leone

LOCATION: Cleveland OH

Our client came from Sierra Leone in January 2011 as a visitor. She married her U.S. Citizen husband in September 2013. Her authorized stay period was expired at the time of her marriage. Due to her overstay, our client was placed in removal proceedings in December 2013.  She retained our office in January 2014 for legal assistance for her removal proceedings and I-130 filing.

Unfortunately, on November 5, 2015, the USCIS Cleveland office denied our client’s I-130 petition, after an almost three-hour Stokes interview. Before and at the interview, extensive evidence of bona fide marriage covering 2 years of marriage was submitted. The couple was able to answer a majority of the questions in the two and half hour interview, and the grounds and discrepancies relied upon by the USCIS in denying the I-130 compared to the majority and relevance of the correctly answered questioned together with the extensive evidence is relatively minor.

In response to this denial decision, our client timely filed a Notice of Appeal to the Board of Immigration Appeals from a decision of a USCIS officer on December 5, 2015 through the assistance of our office.  The BIA appeal was pending for a long time. Eventually, on July 8, 2016, the BIA found that a remand is warranted for our client’s case.  As a result, on September 26, 2017, our client and her U.S. Citizen husband appeared at the USCIS Cleveland Field Office for the I-130 follow-up interview after this case was remanded to the USCIS.

Even after the second interview, the I-130 was pending without any issuance of RFE or Notice of Intent to Deny. In the meanwhile, our client filed Motion for Continuance for her Master Calendar hearing appearance based on pending I-130 petition. The Cleveland Immigration Court kept granting our Motions. Nevertheless, the I-130 petition was still pending.

The USCIS Cleveland Field Office finally approved our client’s I-130 petition on January 23, 2018. Now, our client can file the adjustment of status application if the Immigration Court grants our Motion to Terminate without prejudice.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement

NATIONALITY: Korean

LOCATION: Columbus, OH

Our client is from South Korea who came to the U.S. on a J-1 Visa in 2010 to work as a researcher. Her J-1 program made her subject to the two-year foreign residence requirement. After her J-1 program was completed, she went back to South Korea and got her F-1 student visa. With her F-1 status, she finished her Ph.D. degree and started to work as a post-doctoral researcher. She retained our office to seek legal assistance for her I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications. However, our client completely forgot about her J-1 status in the past and was not fulfilled the 2-year foreign residency requirement. Thus, before we file her I-485 application, she has to get a waiver for her two-year foreign residency requirement.

Once retained, our office promptly prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Chicago to pursue the waiver for our client.  The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On October 27, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a National Interest Waiver petition and adjustment of status application.

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On December 22, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on January 19, 2018, the USCIS issued I-612 approval notice and waived our client’s 2 year foreign residency requirement.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Virginia

Our client contacted us in October 2016 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from South Korea and he is an exceptional researcher and scientist in the field of high-energy particle physics research.

Our client’s significant contributions have placed him at the pinnacle of his field. He has been an outstanding scientist whose work is of critical importance in the neutrino physics community for the next generation of neutrino oscillation experiments. He investigated rare neutrino interactions called the neutrino-electron elastic scattering and used the measured quantities to constrain the NuMI neutrino beam flux. His research results showed his process could be used to determine neutrino flux in a relatively inexpensive neutrino detector. Because of his innovative experimental research, our client’s research works were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id.

Our office prepared a 22-page brief for our client’s NIW filing. Our client also obtained 9 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to his field of endeavor, that he is well positioned to advance the proposed endeavor, and it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client. His NIW application contained 51 exhibits (Exhibit A to YY).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on July 6, 2017. Eventually, on January 20, 2018, the USCIS approved his I-140 petition without any Requests for Evidence.  When we filed his I-140, he concurrently filed his I-485 adjustment of status application. His adjustment of status application will be approved soon as well.

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CASE: I-140 (EB-2)
EMPLOYER: Dental Group in Cleveland, OH
BENEFICIARY: Korean Dentist

Our client is from South Korea, who is currently working in the United States as an associate dentist under H-1B status. Her current employer was willing to do an immigration petition for her, second-preference. Our client has a Doctor of Dental Medicine degree in the United States. After talking to our client, our firm concluded that her employer can petition her as an associate dentist. Based on our client’s education, professional and work background, our office determined that she is eligible for EB-2 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 10, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on May 16, 2017.  On August 4, 2017, we promptly filed PERM.  Eventually, on December 21, 2017, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on January 11, 2018 via premium processing service. Eventually, on January 22, 2018, the I-140 EB-2 Petition for our Korean client was approved without any Request for Evidence (RFE).

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CASE: F-1 Reinstatement

APPLICANT: Korean

LOCATION: Anaheim, CA

Our client came from South Korea in 2012 to pursue her Pre-Med Program. Later, she enlisted at the US Army through the MAVNI program. The contract was valid for 2 years supposedly for deployment. While waiting, and to further her studies, she applied for and was issued an I-20 to obtain her Bachelor’s program in Biology. But delays over delays occurred which weren’t her fault, and thus, she was not able to be shipped out for deployment. As such, her I-20 expired in February 16, 2016. She continued on fully expecting her MAVNI application to be approved. She obtained a fingerprint notice on January 20, 2017 for fingerprinting at February 1, 2017. However, delays after delays then eventually a cancellation of her deployment happened. Thus, she failed to maintain her F-1 visa status.

There are many reasons why some F-1 students fall out of status. In limited circumstances, they could still apply for F-1 reinstatement if they meet the requirements. It starts by talking to the school’s international student immigration representative. Upon providing all the necessary documentation, your immigration advisor should issue you a new I-20 with a reinstatement endorsement.  Each school has its own guidelines on what you need to show. Typically you should explain the exceptional circumstances which led you to not maintain full-time course load.

For the USCIS to grant reinstatement, the standards are as follows:

• The student became out of status due to circumstances beyond the student’s control, or the student would suffer extreme hardship if not reinstated
• The student intends to pursue full-time study
• No other grounds of removability (criminal cases, for example) apply to the student other than the overstay or status violation
• The student has not worked illegally off-campus
• The period being out of status is not more than five months, or there were exceptional circumstances for being out of status longer and the application was filed as soon as possible
• The student does not have a record of repeated immigration violations

In July of 2017, our client contacted our office to do her F-1 reinstatement application. Our office promptly prepared her application with various supporting documents to demonstrate that she became out of status due to circumstances beyond her control and that she would suffer extreme hardship if not reinstated.  Moreover, our office explained that our client never had any status violations prior to this incident and never engaged in unauthorized employment. Our office filed her F-1 reinstatement application on August 15, 2017 to USCIS.

However, in November 22, 2017, the USCIS issued Request for Evidence and asked our client to submit Form I-134 from her financial sponsor. We filed the response to RFE along with I-134 form on December 6, 2017.

On January 4, 2018, our office was notified by the USCIS that our client’s F-1 reinstatement is granted.  Now, our client has a chance to pursue her Bachelor’s program in the United States.

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CASE: I-130 and Consular Processing (Immigrant Visa) – Marriage-Petition

Our client is a Lawful Permanent Resident (Green card holder) from the Philippines. He got his green card through family petition; however, his wife and children did not get the green cards back then. In August 2015, he retained our office to bring his wife and two children to the States via consular processing. Once retained, our office filed the I-130 petition on October 22, 2015 and this petition was approved by the USCIS on August 5, 2016.

Once the priority date became current, we filed the immigrant visa packets to the National Visa Center on March 7, 2017, who in turn forwarded our clients’ materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the US Embassy in Manila, and we prepared them for the interview. On November 20, 2017, the interview was conducted.  Eventually, after the interview, the U.S. Embassy in Manila, Philippines approved and issued their immigrant visas.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Korean Client in Dayton, OH

As our office explained before on our website, the USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases.  According to the USCIS Deferred Action Memorandum issued in August 2012, an individual who meets the following criteria may apply for deferred action:

• Was under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching his/her 16th birthday;
• Has continuously resided in the U.S. since June 15, 2007, up to the present time;
• Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
• Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

As of June 15, 2012, our client was twenty (20) years old.   Also, our client was studying at a college in Dayton, Ohio. Our client went to grade school, middle school and graduated from high school in the United States.  Also, since his last entry to the United States in December 2000, our client never left the United States.  Moreover, he was physically present in the United States on June 15, 2012 and has continuously resided in the United States since December, 2000.  Lastly, our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.  So, our client was clearly eligible for this deferred action case. Eventually, he retained our office and we filed for the deferred action and his DACA was approved in November 2012. He retained us again in 2014 for his DACA renewal and it was extended until December 2017.

In September of 2017, he retained our office for the renewal of his DACA application again. Despite the elimination of the DACA program at that time, he was still eligible for the renewal. Our client sent us supporting documents that prove our client’s education history, physical presence in the United States, and his initial entry to the United States.  Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On September 25, 2017, our office filed his I-821D and I-765 to the USCIS.  Eventually, on January 11, 2018, the USCIS approved our client’s I-821D and I-765. His DACA status is extended to January 2020.

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CASE:   I-601A Provisional Unlawful Presence Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Chinese

LOCATION: Cleveland, Ohio

Our client came to the United States from China in October 1999 without inspection and admission. He married his U.S. citizen wife in 2010. They have two U.S. citizen children together.  His U.S. Citizen wife filed an I-130 petition for him on August 26, 2016. This I-130 petition was approved on December 8, 2016.

Our client cannot file for adjustment of status application due to his ground of inadmissibility. He needed a waiver of inadmissibility to become a green card holder. Moreover, our client was placed in removal proceedings and he has a final order of removal in absentia. Nevertheless, his I-212 (permission to reapply for admission into the United States) was approved on July 21, 2017.

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 suffer 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 children. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in China 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 China, that our client has good employment in the United States, and that his U.S. citizen child and his wife will face extreme financial and emotional difficulties if he is removed.

On August 21, 2017, 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 her husband if she is removed from the United States. Eventually, without any RFE, her I-601A waiver was approved on December 19, 2017. Now, he can file packet 3 and 4 here in the United States, and would go to China shortly to get his immigrant visa.

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