CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Chinese

LOCATION: Cleveland, OH

Our client came to the United States from China in March 2001 without inspection and admission. She made an illegal entry and was inadmissible. She applied for Asylum and Withholding of Removal, and she was granted Withholding of Removal. She married her U.S. citizen husband in 2006 and had U.S. citizen children together. Through our office, she applied for a Motion to Reopen and the Cleveland Immigration Court granted our Motion and reopened our client’s case in 2015. After reopening, with our office’s assistance, her removal proceeding was administratively closed in November 2015 to file a provisional waiver application.

Her U.S. Citizen husband filed an I-130 petition for our client and this I-130 petition was approved in 2009.

However, our client cannot file her adjustment of status application due to her ground of inadmissibility. She 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

The USCIS announced of new policy called 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 and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

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. Thus, our client would like to apply so called I-601A provisional waiver.

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 husband suffers from great degree of psychological hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of her husband.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.  Her husband has ongoing psychological hardship and he would not be able to take care of his own needs and the bulk of their family chores, most importantly taking care of their infant children. Also, it would be extremely difficult for him to get the same level of therapy and satisfactory access to medical services in China in case he joins our client there. 

In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in China, that our client has a good employment in the United States, and that her U.S. citizen children and her husband will face extreme financial and emotional difficulties if she is removed.

On May 20, 2016, our client submitted our I-601A waiver application which included the brief in support, her husband’s extensive psychological examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

Eventually, her I-601A waiver was approved on November 16, 2016. Now, she can file packet 3 and 4 here in the United States, and goes to China for her immigrant visa interview.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Canada

LOCATION: Phoenix, AZ

Our client is from Canada who came to the U.S. on a B-2 Visitor Visa in August 2015. In January 2016, our is married his current U.S. citizen wife.  He retained our office for his green card application on February 15, 2016. Our client had a criminal record in Canada – assault causing bodily harm; however, based on Matter of Perez Contreras, our office determined that his conviction record should not be construed as a Crime involving Moral Turpitude (CIMT).

Our firm prepared and filed the I-130 Petition and I-485Adjustment of Status Application on February 22, 2016.  We included an explanatory brief regarding our client’s criminal record – that it does not rise to the level of a CIMT conviction. 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 call as well. On September 19, 2016, our client was interviewed at the Phoenix, Arizona office. Eventually, on November 10, 2016, his green card application was approved.

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CASE: I-485 Adjustment of Status / National Interest Waiver

CLIENT: Korean

LOCATION: Dallas, TX

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 renewable energy technology.

His significant contributions have placed him at the pinnacle of his field of endeavor. Throughout his research career, our client has made critical research contributions and developed an innovative algorithm to forecast the future variability of long-term wind power scenarios by analyzing the power spectral density of wind power outputs. Moreover, our client suggested an innovative stochastic storage operation algorithm based on his probabilistic wind power forecasting algorithm in order to limit the severe ramp rates of wind power. His expertise in probabilistic renewable energy forecasting is 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 19-page brief for our client’s NIW filing. Our client also obtained 7 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 34 exhibits (Exhibit A to HH).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on July 7, 2016. Eventually, on October 3, 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. On November 17, 2016, the USCIS approved his I-485 application as well. Now, he is a green card holder.

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CASE: Follow-to-join based on approved I-140 for husband and I-485 adjustment of status

CLIENT: Filipina Client in Miami, FL

Our client contacted our office in November 2014 for her adjustment of status case. Her husband was a beneficiary of an EB-3 I-140 petition from his prospective employer, and got his green card in July 2014. Our client and her husband have been married since May 2010 before her husband got his permanent residency. Thus, she was eligible follow-to-join and adjustment of status based on her husband’s I-140.

She came to the United States in October 2014 on a valid B-2 visitor’s visa. She did not know that she was eligible for the adjustment of status when she came to the United States, but later learned that she would be eligible for the adjustment of status filing. After the consultation with our office, she retained our office on December 18, 2014.

Once retained, we prepared and file our client’s adjustment of status application along with supporting documents to USCIS on December 22, 2014.  However, the priority date of Eb-3 category for the Philippines national backlogged. Our client had to wait until the priority date becomes current. In October 2016, her priority date becomes current. The USCIS requested our client to submit her new immigration medical record and our office submitted it to the USCIS on October 20, 2016. Eventually, our client’s adjustment application was approved by the USCIS on November 14, 2016.  After a long wait, our client is finally a green card holder.

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CASE: H-1B Change of Employer

PETITIONER: Waste Management Company

BENEFICIARY: Indian Chief Financial Officer

LOCATION: St. Louis, MO

Our client is a wastewater treatment and management company in the St. Louis, MO area. They contacted our office in early July 2016 to seek a legal assistance from our office for their foreign employee. The beneficiary is from India and obtained her Master’s degree in Business Administration. The proffered position for the Beneficiary is a Chief Financial Officer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Master’s Degree in Business Administration or its equivalent.  

The foreign beneficiary in this case already had her H-1B visa from her previous employer.  However, her H-1B visa was not expired yet, and she wanted to extend her H-1B status on the change of employer basis.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on July 21, 2016. Since this petition was based on the change of employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to the April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on November 15, 2016.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for next three years.

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

APPLICANT: Indian

LOCATION: Ohio

Our client contacted our office in early September of 2014 regarding her potential I-751 filing. She came to the United States from India and she married a U.S. Citizen (her ex-husband) in July 2013.

Through her marriage, she was able to obtain a 2-year conditional green card in March of 2014. Thus, her conditional residency terminated in March 2016.

Unfortunately, their marriage ended in October 2014. Our client experienced a lot of difficulties during her marriage with her ex-husband. Thus, our client could not file the I-751 application jointly with her ex-husband.

Once 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 she can show and helped her draft an extensive affidavit about their marriage, and why it ended the way it did.

On October 15, 2014, our office filed the I-751 application with various supporting documents (over 26 exhibits and an affidavit over 7 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 at our office and informed them of potential issues at the interview.

On October 13, 2016, our client was interviewed for her I-751 application at the USCIS Cleveland, OH Field Office.  Attorney JP Sarmiento from our office accompanied our client.  The interview was very extensive.  Nevertheless, the USCIS approved our client’s I-751 application on November 9, 2016. Now, she has her ten-year green card.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Antigua and Barbuda                                                   

LOCATION: Illinois (residence) / Des Moines, IA (USCIS Interview)

Our client is from Antigua and Barbuda who came to the U.S. on a F-1 Student Visa in August 2013. He is still pursuing his undergraduate program in the U.S. In November 2015, our client is married his current U.S. citizen wife.  He retained our office for his green card application on November 30, 2015.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 3, 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 call as well. On November 7, 2016, our client was interviewed at the Des Moines, IA USCIS office. The interview went well, and eventually, on November 8, 2016, his green card application was approved.

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

NATIONALITY: Malaysian

LOCATION: Lincoln, NE

Our client is a citizen of Malaysia who came to the U.S. on a J-2 Visa in 1990.  She came with her step-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, she remained here beyond the expiration of her authorized period of stay. She completed her secondary schools and pursued her graduate program in the United States as well.

He turned 21 in 1997. Nonetheless, she did not know of the waiver process, and just stayed in the United States without any legal status.

Our client married her current U.S. citizen husband in August 2015. She would like to get a waiver because she can get a green card based on her U.S. citizen husband’s I-130 petition. However, because of her two-year foreign residency requirement, our client cannot change her 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 1997.

Our firm was retained to do her J-2 waiver in August 2016. On August 5, 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 August 26, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 4, 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 / I-140 (EB-2 Category) / Schedule A

APPLICANT: South Korean Nurse Practitioner

LOCATION: Atlanta, GA

Our client is a certified nurse practitioner. Her prospective 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 a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on December 15, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on April 13, 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 April 25, 2016, without any Request for Evidence (RFE), the USCIS Texas Service Center 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 June 6, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on November 1, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Cote D’Ivoire                                                                                                        

LOCATION: Atlanta, GA

Our client is from Cote D’Ivoire who came to the U.S. on a J-1 Exchange Visitor’s Visa in August 2013.  Her J-1 program was not subject to the INA 212(e) two-year foreign residency requirement. In August 2014, our client married her current U.S. citizen husband.  She retained our office for her green card application in 2016.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 7, 2016.  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 call as well. On September 29, 2016, our client was interviewed at Atlanta Georgia USCIS office. Eventually, on October 24, 2016, her green card application was approved.

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