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

NATIONALITY:  Indonesia

LOCATION: New Jersey

Our client came from Indonesia in 2007 with a valid J-1 visa.  She got her J-1 status as a student for her graduate studies, and she was a recipient of a Fulbright scholarship for her studies.  Her J-1 status made her subject to the two-year foreign resident requirement. Once her J-1 program was completed, she remained in the United States and pursued her Ph.D. program under F-1 status. Later, she married her current U.S. citizen husband and became a mother of a U.S. citizen child. Our client would like to file her adjustment of status application along with her husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue her waiver under No Objection Statement or Interest Government Agency (IGA). As mentioned above, our client also received government funding (Fulbright Scholarship) for her studies which made her case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue her J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen daughter is experiencing exceptional medical hardships.

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 she retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On November 24, 2015, 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 her U.S. citizen daughter’s medical conditions.  On December 17, 2015, 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 hardship if our client needs to go back to Indonesia for two years.

Eventually, the USCIS approved her I-612 waiver on November 28, 2016. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition in the United States.  

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT: Belgian

LOCATION: San Francisco, CA

Our client contacted our office in early September of 2015 regarding her I-751 filing. She came to the United States from Belgium and she married a U.S. Citizen (her ex-husband) in August 2012. Through her marriage, she was able to obtain a 2-year conditional green card in December of 2013. Our office represented and assisted our client’s initial green card process. Her conditional residency terminated in December 2015. However, our client experienced a lot of difficulties in her marital life with her ex-husband. Unfortunately, their marriage ended in December 2015.  Thus, our client could not file the I-751 application jointly with her ex-husband.

Once our office was retained, we requested a waiver because our client entered into the marriage in good faith, but the marriage was terminated through divorce or annulment before they can file a joint petition. We focused on the supporting documents that he can show and helped her draft an extensive affidavit about their marriage, and why it ended the way it did.

On November 20, 2015, our office filed the I-751 application with various supporting documents (including an affidavit over 3 pages) to demonstrate our client’s bona fide marriage with her ex-husband.

In October 2016, the USCIS scheduled an I-751 interview for our client. Prior to the interview, our office thoroughly prepared our client and informed her of potential issues at the interview.

On November 22, 2016, our client was interviewed for her I-751 application at the USCIS San Francisco, CA Field Office. The interview was very extensive.  Nevertheless, the USCIS approved our client’s I-751 application on December 1, 2016. Now, she has her ten-year green card.

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

Our client is a Lawful Permanent Resident (Green card holder) who married his wife in Seoul, South Korea in December 2014.  After the marriage, he came back to the United States to work and retained our office for the I-130 and immigrant visa processing for his wife. With our assistance, the I-130 (F-2A category) petition was filed for his wife in South Korea in February 2015. This I-130 Petition was approved by the USCIS in November 2015

Once her priority date became current, we filed the immigrant visa packets to the National Visa Center on July 18, 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 December 2, 2016, the interview was conducted.  Eventually, after the interview, the U.S. Embassy in Seoul, South Korea approved and issued her immigrant visa.

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

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Cleveland, Ohio

Our client contacted us in April 2016 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from China and obtained her green card in May 2011. She retained our office for her naturalization and citizenship N-400 application on April 5, 2016. Our client had health concerns and we argued was eligible for N-648 certification (medical certification for disability exceptions).

The naturalization and citizenship N-400 application was filed on April 26, 2016 with all supporting documents. Our office prepared her before her naturalization interview, and also accompanied her on November 28, 2016 at the Cleveland CIS office. Our client’s history test was waived since her N-648 was granted by the office. Our client did her N-400 interview. Eventually, her naturalization application was approved on November 29, 2016. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: Asylum in Immigration Court

CLIENT: Cameroonian

LOCATION: Cleveland Immigration Court

Our Cameroonian client came to the United States on a B-2 visitor’s visa in November 2013 with her minor daughter.  She was persecuted and harmed in Cameroon based on her political opinion and political activism, so within one year of her entry, she filed an asylum application (Asylum, Withholding of Removal, and relief under the CAT) to the USCIS.  She was interviewed at the Asylum Office, but her case was referred to an immigration judge. The Notice to Appear was issued and our client was placed in removal proceedings.  The USCIS thought that our client’s testimony was different from that of her written statement.

After the case was referred to the Immigration Court, our client contacted our office in early January of 2015, and eventually retained our office on January 20, 2015.  

Our client was scared to go back home to Cameroon, fearing that she will be persecuted based on her political opinion and her past participation with human rights activist groups. While our client was a student in Cameroon, she became a human rights activist involved in educating and informing fellow students on campus for their basic fundamental rights. Our client organized some student movement activities, joined student marches against government’s actions and participated in political activities.  As a result, she was arrested and detained multiple times by the Cameroonian police and has experienced harm and mistreatments in numerous occasions.  Moreover, her father was arrested and detained due to his political opinion.

We helped her prepare her asylum application and represented her in immigration court hearings. We also asked her to provide supporting documents corroborating her claim, some of which were a letter from her family members, colleagues and friends in Cameroon, Cameroonian medical documents of our client’s injury, and her membership certification with the different organizations. Our firm also did some research on articles related to her claim, and the type of persecution she will experience in Cameroon if sent back.

Our client’s individual hearing was scheduled on July 24, 2015 at the Cleveland Immigration Court. Attorney Sung Hee (Glen) Yu represented our client at the hearing. During the hearing, our client testified credibly as to her past persecution in Cameroon and likelihood of future persecution.

However, during the cross-examination, the DHS attorney raised an issue of “firm resettlement.” Congress has mandated by statute numerous exceptions and exclusions to the grant of asylum, one being that the applicant has been firmly resettled in another country prior to arriving in the U.S. 8 C.F.R. §§ 2208.13(c)(2)(i)(B). The applicant will be deemed firmly resettled if, prior to arriving in the U.S., he or she entered another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement. 8 C.F.R. § 208.15. The offer must be must be for permanent, not temporary, residence in a third country where the applicant lived peacefully and without restriction. Maharaj v. Gonzales, 450 F.3d 961, 969 (9th Cir. 2006).

In fact, prior to her entry to the U.S., our client lived in Denmark for one year. The DHS alleged that she had a permanent residency in Denmark. Nevertheless, our office filed the brief and supporting documents. In the brief, we argued that our client’s visa and “residence cards” in Denmark were all indications of a temporary status, and based on she not being able to meet the permanent residency requirements, she is clearly was never “firmly resettled”, nor was a permanent resident, nor was offered permanent residency in Denmark.

Eventually, on November 25, 2016, the Immigration Judge granted asylum relief for our client. She is now an asylee who will get her work permit in two weeks and will be eligible to apply for permanent residency in one year.

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CASE: I-140 / EB-11 (Alien of extraordinary ability)

CLIENT: Indian Chemist

LOCATION: Massachusetts

Our client contacted us in December 2016 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally well-known chemist and is currently working as a researcher in Boston, MA.  Our client has written numerous internationally recognized scholarly articles in his field of endeavor.  However, he filed his EB-11 I-140 petition by himself previously, and got a denial. Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the EB-11 category, an alien of extraordinary ability.

According to the INA Section 203(b) states, in pertinent part, that:

1. Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):

1. Aliens with extraordinary – an alien is described in this sub-paragraph if-

1. The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
2. The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
3. The alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability.  See H.R. 723 101st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991).  The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).

The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field.  Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:

1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

1. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

1. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.  Such evidence shall include the title, date, and author of the material, and any necessary translation;

1. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

1. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

1. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

1. Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;

1. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

1. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

1. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the review of our client’s credentials and qualifications, we determined that our client meets 3 of the 10 categories. Our client has made original scientific contributions of significance to the field of nuclear medicine and molecular imaging, in particular in the areas of cardiovascular diseases and imaging, cancer research, neurological disorders, and pharmaceutical sciences. He has authorship of scholarly articles in his professional field of endeavor. Lastly, our client has participated as a judge of the work of others in the same or an allied field of specialization for which classification is sought.

Our office prepared a 36-page brief for our client’s EB-11 filing. Our client also obtained 7 letters of recommendation from internationally well-known scholars in his field of endeavor. Our office also included his record of publications, citations, conference proceedings and invited talks, journal reviewer invitation evidence and other materials to show that he is an alien of extraordinary ability in plant engineering research. His EB-11 I-140 application contained 90 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Texas Service Center via regular processing on May 25, 2016. Eventually, without any RFE, the USCIS Texas Service Center approved his I-140 self-petition on November 23, 2016.

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CASE: H-1B Visa Extension

PETITIONER:  Physician’s Office in Flushing, NY

BENEFICIARY: Chinese Nurse Practitioner

Our client is a dermatology clinic in Flushing, NY which provides cosmetic and dermatologic treatments for its patients. They contacted our office in July of 2016 to seek legal assistance for its foreign beneficiary’s H-1B extension.

The beneficiary is from China and obtained her Master of Nursing Degree in the United States. She also has a valid Nurse Practitioner License in the State of New York. The proffered position for the Beneficiary was for a Nurse Practitioner which we argued qualified as a specialty occupation. We proffered that the minimum requirement for this position is a Master of Nursing Degree or its equivalent. Moreover, Nurse Practitioner needs the state license as well.  She has been working for the Petitioner on a valid H-1B visa.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on August 16, 2016 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on November 22, 2016. Now, the Beneficiary can continue to work for the Petitioner on an H-1B status until September 1, 2019 (until her duration of H-1B status reaches the 6th year mark).

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CASE: I-485 / National Interest Waiver

CLIENT: Korean

LOCATION: Colorado

Our client contacted us in May 2015 about the possibility of doing a National Interest Waiver. He is a researcher from South Korea and he is an exceptional researcher and scientist in the field of photophysical sciences; specifically, solar energy conversion sciences.

His significant contributions have placed him at the pinnacle of the field of photophysical research. His research regarding solid-state morphology in electron transfer processes of organic solar energy conversion devices has shown that the combination of two versatile spectroscopic techniques can bring new insights for complex material systems. Moreover, our client has discovered the electronically excited triplet state of single-walled carbon nanotubes (SWNTs) which 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 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. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 18-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, and conference materials in the NIW application. We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 35 exhibits (Exhibit A to II).

We filed his I-140(NIW) petition to the USCIS Nebraska Service Center on September 11, 2015. Eventually, on June 26, 2016, the USCIS approved his I-140 petition without any Requests for Evidence.  

Our office filed his I-485 application along with his I-140 petition concurrently. However, on October 21, 2016, the USCIS issued Request for Evidence (RFE) and requested our client to submit updated vaccination records. Our client promptly submitted their updated vaccination records (I-693) to USCIS. Eventually, on November 22, 2016, the USCIS approved his I-485 application as well. Now, he is a green card holder.

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CASE: PERM Labor Certification    
EMPLOYER: Hydraulic Pumps and Motors Manufacturing Company in WV
BENEFICIARY: Kenyan Sales Manager

Our client is from Kenya, 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 Business Administration Degree and has worked for the current employer as a Sales Manager. After talking to our client, our firm concluded that his employer can petition him as a Sales Manager. Based on our client’s education, professional and work background, our office determined that he was 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 July 6, 2016.  On September 27, 2016, we promptly filed PERM.  Eventually, on November 22, 2016, the PERM Labor Certification was approved – an EB3 position for the Kenyan beneficiary. Now our client can file the I-140 petition.

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CASE: I-751

APPLICANT: Korean

LOCATION: Dayton, OH

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

She is from South Korea and married a U.S. citizen in February 2014. 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 25, 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 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 November 10, 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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