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

NATIONALITY: Chinese Canadian

LOCATION: Hamilton, Ontario, Canada

Our client was a citizen of Canada who came to the U.S. on a J-2 Visa in June 1993 when she was a Chinese Citizen.  She came with her father who came on a J-1 Visa for his 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.

Once her father’s program was completed, her family immigrated to Canada. She became a physician in Canada and was offered to a fellowship program in the U.S. hospital. Her prospective employer would like to petition her for H-1B visa; however, because of her two-year foreign residency requirement, she needs to comply with the 2 year rule or gets a waiver.

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 2009.

She contacted our office and our firm was retained to do her J-2 waiver on October 6, 2016. On October 17, 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 November 7, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 23, 2016, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Asylum in Immigration Court

CLIENT: Chinese

LOCATION: New York Immigration Court

Our Chinese client came to the United States on a F-1 visa in July 2012.  He was persecuted and harmed in China based on his political opinion and political activism, so within one year of his entry, he filed an asylum application (Asylum, Withholding of Removal, and relief under the CAT) to the USCIS with our office’s legal assistance.  He was interviewed at the Asylum Office in Lyndhurst, NJ in February 2013, but his case was referred to an immigration judge. The Notice to Appear was issued and our client was placed in removal proceedings.  

After the case was referred to the Immigration Court, our client retained our office again.

Our client was scared to go back home to China, fearing that he will be persecuted based on his political opinion and his past political speech. While our client was in China, he made political speech in public and expressed his ideas regarding democracy in China. As a result, he was arrested and detained by the Chinese police and has experienced harm and mistreatments in numerous occasions.  

We helped him prepare his asylum application and represented him in immigration court hearings. We also asked him to provide supporting documents corroborating his claim, some of which were a letter from his father, colleagues and friends in China and medical documents of our client’s psychological health. Our firm also did some research on articles related to his claim, and the type of persecution he will experience in China if sent back.

Our client’s individual hearing was scheduled on December 19, 2016, at the New York Immigration Court. Attorney Sung Hee (Glen) Yu represented our client at the hearing. During the hearing, our client testified credibly as to his past persecution in China and likelihood of future persecution. After the hearing, the Immigration Judge granted asylum relief for our client. He is now an asylee who will get his work permit soon and will be eligible to apply for permanent residency in one year.

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CASE: I-751

APPLICANT: Sri Lankan

LOCATION: Cleveland, OH

Our client contacted our office in early March this year regarding his I-751 application.

He is from Sri Lanka and married a U.S. citizen in October 2013. Through his marriage, he obtained a 2-year conditional green card in July of 2014.  His conditional residency terminated in July 2016.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office again on March 16, 2016 and our office prepared an I-751 application for our client with other supplemental exhibits.

On April 4, 2016, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint tax records, joint bank statements, utility bills, insurance policies, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later. There was no RFE issuance or interview request for our client’s I-751 application. As a result, on December 14, 2016, the USCIS approved our client’s I-751 application and our client received his 10-year green card which removed the conditions.

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CASE: I-751

APPLICANT: Burmese

LOCATION: Fresno, CA

Our client contacted our office in early April this year regarding her I-751 application.

She is from Myanmar and married a U.S. citizen in June 2013. Through her marriage, she obtained a 2-year conditional green card in July of 2014.  Her conditional residency terminated in July 2016.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office again on April 4, 2016 and our office prepared an I-751 application for our client with other supplemental exhibits.

On April 25, 2016, our office filed an I-751 application to the USCIS with multiple affidavits from her friends and family members, joint tax records, 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. There was no RFE issuance or interview request for our client’s I-751 application. As a result, on December 6, 2016, the USCIS approved our client’s I-751 application and our client received her 10-year green card which removed the conditions.

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

APPLICANT: Filipina Nurse Practitioner

LOCATION: Chicago, IL

Our client is a family nurse practitioner. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a family nurse practitioner, she was eligible for “Schedule A” classification.

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 first going to the DOL for a labor certification. 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. The position of Nurse Practitioner is included in Schedule A.

Our client has Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on October 19, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 22, 2016 via premium processing. We included the 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 nurse practitioners must fall under the Schedule A designation.  On February 3, 2016, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for her and her husband’s I-485 adjustment of status applications. Our office filed an I-485 adjustment of status applications for our client and her husband on February 12, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

However, on August 22, 2016, the USCIS issued Request for Evidence (RFE) and requested our client to submit her Visa Screen document. In response to RFE, our office filed her Visa Screen document on November 14, 2016.  Eventually, on December 5, 2016, the USCIS Nebraska Service Center approved our clients’ adjustment of status applications. Now, she finally is a green card holder.

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

NATIONALITY: Chinese

LOCATION: New York City, NY

Our client was a citizen of China who came to the U.S. on a J-2 Visa in August 2008.  He came with his father who came on a J-1 Visa for his 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 our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2014. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the waiver.

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 March 2014.

Our firm was retained to do his J-2 waiver, and on October 4, 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 November 10, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 23, 2016, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-485 Adjustment of Status / Schedule A

EMPLOYER: Physician’s Office

APPLICANT: Polish Nurse Practitioner

LOCATION: New Jersey

Our client is a certified nurse practitioner. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for “Schedule A” classification.

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 first going to the DOL for a labor certification. 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. The position of Nurse Practitioner is included in Schedule A.

Our client has Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Once our office was retained, we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on August 1, 2016 via premium processing. We included the 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 nurse practitioners must fall under the Schedule A designation.  However, on August 15, 2016, the USCIS issued Request for Evidence (RFE) and requested our client to submit the missing copy of prevailing wage determination document. Our office immediately responded back to USCIS.  Eventually, on August 29, 2016, the USCIS approved her EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on October 4, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on December 5, 2016, the USCIS approved our client’s adjustment of status application. Now, she finally becomes a green card holder.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                                        

LOCATION: Houston, TX

Our client is from the Philippines who came to the U.S. on a B-2 Visitor’s Visa in April 2011.  In September 2015, our client married her current U.S. citizen husband.  She retained our office in October 2015 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 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 via conference calls as well. On December 8, 2016, 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 December 9, 2016, her green card application was approved.

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CASE: I-140 (EB-3)
EMPLOYER: Beauty Supply Distributing / Retail Company in Cleveland, OH
BENEFICIARY: Korean Product Safety / Quality Assurance Director

Our client is from South Korea, who is currently working in the U.S. on his H-1B status. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor of Chemical Engineering Degree and has worked for the current employer as a Product Safety / Quality Assurance Director. After talking to our client, our firm concluded that his employer can petition him as a Product Safety / Quality Assurance Director. Based on our client’s educational, professional and working backgrounds, our office determined that he is clearly eligible for EB-3 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 5, 2016, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on May 5, 2016.  On August 1, 2016, we promptly filed PERM.  Eventually, on October 24, 2016, the PERM Labor Certification was approved – an EB3 position for the Korean beneficiary.

We then proceeded with the I-140 Petition filing. We submitted a cover brief with the “ability to pay” argument 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 November 29, 2016 via premium processing service. Eventually, on December 5, 2016, the I-140 EB-3 Petition for our Korean client was approved without any Request for Evidence (RFE). Our client can file his I-485 adjustment this month.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Exceptional Hardship

NATIONALITY:  Iran

LOCATION: Montana

Our client came from Iran and has maintained his J-1 status from February 2013.  He got his J-1 status as a research scholar and was receiving government funding for his research.  His J-1 status made him subject to the two-year foreign residency requirement. Our client would like to file his adjustment of status application along with his I-140 NIW application; however, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under No Objection Statement or Interest Government Agency (IGA). As mentioned above, our client also received government funding for his research programs which made his case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen daughter is experiencing exceptional medical hardships. Moreover, they will experience other hardships (economic and security) once they go back to Iran.

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 extreme 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 an exceptional hardship basis. On April 19, 2016 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared affidavit of our client, extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen daughter’s medical conditions.  On April 29, 2016, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client’s daughter would experience exceptional and economic hardship if our client needs to go back to Iran for two years.

Eventually, the USCIS approved his I-612 waiver on November 28, 2016. Now that our client’s two-year foreign residency requirement is waived, he can file his adjustment of status application along with his NIW I-140 self-petition in the United States.  

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