CASE: H-1B Extension

PETITIONER: Architectural Design Company

BENEFICIARY: Turkish Architect

LOCATION: New York, NY

Our client is an architectural design firm headquartered in New York City. They contacted our office in March 2017 to seek assistance from our office for their foreign employee’s H-1B extension. The beneficiary is from Turkey and he obtained his Bachelor’s and Master’s degree in architecture. The proffered position for the Beneficiary is architect which we argued qualifies as a specialty occupation. He got his H-1B status through our office’s help in 2014.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on March 24, 2017 via premium processing. We also gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.

Moreover, in our brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Architect.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.

Eventually, our client’s H-1B application was approved by the USCIS Nebraska Service Center on March 28, 2017. He can work for his employer until May 2020.  

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

NATIONALITY: Korean

LOCATION: Blacksburg, VA

Our client is from South Korea who came to the U.S. on a J-1 Visa in 2001 to work as a term appointed, non-paid Guest Scientist. His J-1 program made him subject to the two-year foreign residence requirement. After his J-1 program was completed, he went back to South Korea and got his F-1 student visa. With his F-1 status, he finished his Ph.D. degree and started to work as a post-doctoral researcher. He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications. However, our client completely forgot about his J-1 status in the past and was not fulfilled the 2-year foreign residency requirement. Thus, before we file his I-485 application, he has to get a waiver for his 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 November 17, 2016, 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 February 15, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on March 22, 2017, the USCIS issued I-612 approval notice and waived our client’s 2 year foreign residency requirement.

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CASE: Adjustment of Status Based on Approved K-1 Visa

CLIENT: Italian

LOCATION: Cleveland, OH

Our client came to the United States in July 2016 as a K-1 visa entrant from Italy.  Our client is the beneficiary of an approved I-129F petition. He came to the United States as a K-1 Fiancé of a U.S. Citizen whom he married within 90 days of his entry. By law, if you married your petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible to apply for adjustment of status (green card) in the United States.

Our client contacted our office initially in August 2016 and consulted with us for his adjustment of status application. After the retention, our firm quickly prepared and filed the I-485 Adjustment of Status Application on August 19, 2016.  Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  

It is not mandatory to have an adjustment of status interview for an applicant who entered on a K-1 visa.  However, the USCIS may require an interview to test the validity and bona fide nature of the marriage between the Petitioner and Beneficiary. The USCIS did not require an adjustment interview for our client. On March 20, 2017, his green card application was finally approved.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipino                                                                                                        

LOCATION: Houston, TX

Our client is from the Philippines who came to the U.S. on an H-4 visa in July 2004. Later, he changed his status from H-4 to F-1 and he studied in the United States.  In February 2015, our client married his current U.S. citizen wife.  He retained our office in March 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 20, 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 via conference calls. On November 24, 2015, our client was interviewed at Houston Texas USCIS office.  In September 2016, the USCIS issued Request for Evidence and requested our client to do updated medical / vaccination check-up with the USCIS approved civil surgeon. Our client did it and submitted the sealed result to the USCIS Houston Field Office in November 2016. Eventually, on March 20, 2017, his green card application was approved.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino Nurse Manager in the Philippines

LOCATION: Houston, TX

Our client is in the Philippines. His prospective employer-sponsor is willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he has a registered nurse license and the proffered position for him is a nurse manager at the nursing care facility, the petition wanted to try going 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 registered nurse. He 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 March 6, 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 21, 2017, the USCIS Texas Service Center approved his EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), he can file his immigrant visa application.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Ohio

Our client came to the United States from Mexico in 2009 without inspection and admission. He married his U.S. citizen wife in November 2011. With our firm’s legal assistance, his U.S. Citizen wife filed an I-130 petition for him in April 2016. This I-130 petition was approved on August 11, 2016.

However, 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 October 17, 2016, 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 March 14, 2017. 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: I-130 and Consular Processing (Immigrant Visa) – Petition for Parents

Our client is a U.S. Citizen who wanted to petition his mother for her immigrant visa. He retained our office for the I-130 and immigrant visa processing for his mother in January 2016. With our assistance, the I-130 (immediate relative) petition was filed for his mother in South Korea on February 18, 2016. This I-130 Petition was approved by the USCIS in May 2016.

Once the I-130 was approved, we filed the immigrant visa packets to the National Visa Center on November 8, 2016, who in turn forwarded our client’s materials to the U.S. Embassy in Seoul, South Korea. An interview notice was set for the client at the US Embassy in Seoul, and we prepared her for the interview. On March 6, 2017, the interview was conducted.  Eventually, after the interview, the U.S. Embassy in Seoul, South Korea approved and issued her immigrant visa on March 20, 2017.

With the approved immigrant visa, our client’s mother can come to the United States immediately, and she will get her green card within two months of entry.

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CASE: Fiancé Visa

PETITIONER: US Citizen in Cleveland Ohio

BENEFICIARY: Filipina

PETITION FILED: December 9, 2015

PETITION APPROVED: January 25, 2016

K-1 VISA APPROVED: March 6, 2017

Our client, a US Citizen Petitioner, met his Filipina fiancé in the Philippines in 2012. They started their relationship, and he visited the Philippines. His fiancé became pregnant and their son was born in May 2013 in the Philippines.  He proposed to her in the Philippines. After his proposal, he retained our firm to file a fiancé petition for her and immigrant visa petition for his son.

After retention, we informed our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on November 24, 2015. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the I-129F petition on December 9, 2015.

On January 25, 2016, after a month of the filing, the I-129F fiancée petition was approved. Our office also prepared and filed I-130 immigrant visa petition on December 23, 2015 and this I-130 petition was approved by the USCIS on June 7, 2016.

On November 17, 2016, our client’s son appeared at the U.S. Embassy in Manila, Philippines for his immigrant visa interview. After the interview, our son’s immigrant visa was issued. Later, our client’s fiancée appeared at the U.S. Embassy in Manila, Philippines for her K-1 visa interview. The interview went well, and on March 6, 2017, the U.S. Embassy issued her K-1 visa.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Kenyan

LOCATION: Wyoming

Our client is a citizen of Kenya who came to the U.S. on a J-2 Visa in August 2001. She came with her mother who came on a J-1 Visa for her research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After her mother’s J-1 program ended, our client remained in the United States.

She turned 21 in 2011. She would like to get a waiver because she has a U.S. citizen husband who already filed an I-130 for her after their marriage. This I-130 petition was approved by the USCIS.  However, because of her two-year foreign residency requirement, our client cannot adjust her status in the United States without fulfilling the waiver requirement.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in April 2011.

Our firm was retained to do her J-2 waiver, and on September 8, 2016, the J-2 Waiver application (Form DS-3035 and supporting documents) 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 reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on September 27, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On March 8, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-485 based on Approved I-140 (EB-3)

APPLICANT: Kyrgyz

LOCATION: Chicago, IL

Our client is a registered nurse from Kyrgyzstan, who is currently working at a Nursing Care Facility who was willing to petition her for a third-preference petition (I-140).  She has maintained her status as an F-1 and F-2 visa holder in the United States.  She had an approved I-140 petition which was filed by her current employer and this I-140 petition’s priority date was June 10, 2016.

In September 2016, she contacted our office and retained us for her and her husband’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status application for our client and her husband on October 3, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on December 14, 2016, the USCIS issued Request for Evidence for our client and her husband’s adjustment of status application. The USCIS requested our clients to submit more evidence to demonstrate their lawful maintenance in the United States after their last admission to the U.S.  Our office prepared and filed the Response to RFE to USCIS on February 20, 2017 along with documentary evidence that our clients provided.

Eventually, on March 8, 2017, the USCIS Nebraska Service Center approved our client’s and her husband’s adjustment of status applications. They are now green card holders.

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