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

APPLICANT / BENEFICIARY: Chinese

LOCATION: Cleveland, Ohio / Guangzhou, China (Visa Interview)

Our client came to the United States from China in August 2001 without inspection and admission. She married her U.S. citizen husband in 2007. They have two U.S. citizen children together.  Her U.S. Citizen husband filed an I-130 petition for her on August 1, 2012. This I-130 petition was approved on March 29, 2013.

Our client cannot file for adjustment of status application due to her ground of inadmissibility. She needs a waiver of inadmissibility to become a green card holder. Moreover, our client was placed in removal proceedings, but with our office’s assistance, her removal proceedings were administratively closed in April 2015 to file a provisional waiver application.

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 husband and son suffer from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of her husband and her son.  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 medical hardships 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 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 good employment in the United States, and that his U.S. citizen child and her husband will face extreme financial and emotional difficulties if she is removed.

On October 15, 2015, we filed the I-601A waiver application which included the brief in support, her husband and son’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 February 2, 2016.

Once her I-601A waiver was approved, she retained our office again for her immigrant visa processing. First, our office filed the Motion to Re-Calendar / Terminate Removal Proceedings to the Cleveland Immigration Court to do our client immigrant visa processing work. The Motion was filed on February 16, 2016. The Immigration Court granted our Motion on March 14, 2106.

Thereafter, our office prepared and filed her immigrant visa application on July 25, 2016. Later, the U.S. Embassy in Guangzhou, China informed our office that they scheduled an immigrant visa interview for our client. Our client went back to China to appear at her interview on September 8, 2016. On September 8, 2016, our client appeared at her immigrant visa interview at the Consulate, and the Consulate officer approved her immigrant visa on the same day.

Now, our client can come back to the United States with an approved immigrant visa and she will get her green card in a mail within two months of her entry to the United States.  

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CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early March to seek legal assistance from our office for their foreign employee’s H-1B Extension.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license. With our office’s legal assistance, she got her H-1B in May 2013.

Her H-1B extension is quite unique due to the nature of her employment. The Petitioner is qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment. We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa extension petition with various supporting documents on March 15, 2016.

Eventually, our client’s H-1B application was approved on September 22, 2016 without any Request for Evidence (RFE).  She can now work for her employer for three more years.

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CASE: I-485 based on Approved I-140 (EB-2)

APPLICANT: Chinese Nurse Practitioner

LOCATION: Houston, Texas

Our client is a nurse practitioner from China, who is currently working at a large hospital which was willing to petition her for a second-preference petition (I-140). She has maintained her status as an H-1B 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 December 31, 2007.

In July 2016, she contacted our office and retained us for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on July 22, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on September 22, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. She is now a green card holder.

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CASE: Immigrant Visa / I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina Registered Nurse in the Philippines

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, she is working at a hospital in the Philippines as a nurse. Her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of March 2009.

Since she is a registered nurse, she is 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 Professional Nurses is included in Schedule A.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told her that her potential employer can petition her as a Registered Nurse under the schedule A category. More importantly, since the priority date of her previous I-140 was current, she can eventually apply for her immigrant visa via consular processing. Our office was retained on October 3, 2014 and we started on her Prevailing Wage Request.

We filed the I-140 application on December 9, 2014 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on December 22, 2014, the I-140 was approved and it retained our client’s old priority date.  

Once her I-140 was approved, our client retained our office again for her immigrant visa processing. Once we were retained, our office filed the immigrant visa packets to the National Visa Center on February 23, 2016, who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for the client at the U.S. Embassy in Philippines. On August 23, 2016, our client appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and the Embassy approved and issued her immigrant visa.

With the approved Immigrant Visa, our client can come to the United States immediately, and she will get her green card within two months of entry.

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

NATIONALITY:  Egyptian

LOCATION: Maryland

Our client came from Egypt and has maintained his J-1 status from May 2011.  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 resident 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.

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 exceptional 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 February 18, 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 March 4, 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 hardship if our client needs to go back to Egypt for two years.

Eventually, the USCIS approved his I-612 waiver on September 21, 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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Case: I-130/I-485, BIA Appeal

Client: China

Location: Pittsburgh, PA

Our client entered the United States in May 2012 from China with a B-2 visitor visa.  Later, he married his U.S. citizen wife in September 2012. He retained our office on September 12, 2012 for his and his sons’ (petitioner’s two step-sons) adjustment of status applications.

Our office prepared and filed the I-130 Petition and I-485 Adjustment of Status Applications on October 9, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, our attorney thoroughly prepared our client via conference calls for their USCIS adjustment of status interview.

On December 19, 2012, our client, his two sons, and his U.S. citizen wife appeared at the Pittsburgh, PA USCIS office for their adjustment interview. The interview was extensive, and the officer was suspicious regarding the bona fideness of our client’s marriage.

On January 14, 2014, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary is not bona fide.  Moreover, the NOID points out that the submitted documentation of Petitioner and Beneficiary does not establish a bona fide nature of their marriage.

In response to the USCIS’s NOID, our office helped our clients draft an extensive affidavit. Multiple supporting documents and an affidavit from our client were all included as well as letters from their friends and neighbors, joint utility bills, joint insurance, and several pictures of our client and his wife in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on February 10, 2014, we filed the Response to NOID prior to the 30-day deadline.

However, the USCIS denied our client’s adjustment of status cases in April 2014. Our clients were frustrated. Their marriage was bona fide. Nevertheless, they decided to re-file their adjustment of status applications. Our office filed the applications again on May 13, 2014.

The USCIS scheduled another interview for our clients. On October 29, 2014, our client, his two sons, and his U.S. citizen wife appeared at the Pittsburgh, PA USCIS office for their adjustment interview again. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. The USCIS claimed that the relationship between our client and his U.S. citizen wife is not bona fide and was suspicious regarding the purpose of this marriage. The NOID was issued again after the interview, and despite our extensive response, the USCIS denied our clients’ cases again.

After two denials, our client decided to file the appeal to the Board of Immigration Appeals (BIA). Our office was retained again, and we filed the appeal to the BIA on March 24, 2015. In our appeal brief, we extensively argued that our client’s marriage to his wife was not entered for immigration purpose. We included several documentations to show that they have maintained their marital life well since the inception of their marriage.

Moreover, our office also filed the I-130/I-485 applications once again on January 8, 2016 before we filed the BIA appeal.

On April 12, 2016, the BIA sustained our appeal and approved the I-130 petition for our client. The BIA disagreed with the USCIS that “the evidence of the record reflects that the Petitioner did not establish that the marriage on which the visa petition is based is genuine. Rather, on the whole, the record contains sufficient evidence of a joint life, and, in general, discrepancies and inconsistencies were satisfactorily explained.”

Eventually, on August 25, 2016, the USCIS approved our client’s I-485 adjustment of status application without the additional interview. The USCIS also approved our client’s two sons’ adjustment of status applications. Now they are green card holders.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Cleveland, OH

Our client contacted us in April 2016 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from China and obtained his green card in September 2007.

Once retained, his N-400 application was filed on April 16, 2016 with all supporting documents. Prior to his citizenship interview, our office prepared him. On August 29, 2016, our client appeared at the Cleveland, OH USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved on September 1, 2016. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: I-140 (EB-2)    
EMPLOYER: Korean Church
BENEFICIARY: Korean Pastor
LOCATION: Virginia

Our client is a senior pastor of a Korean church in Virginia, and currently does his ministry at this church under the H-1B status.  This church is willing to petition him for a second-preference petition (I-140).  Our client has a master’s degree in Divinity. After talking to our client, our firm concluded that his employer can petition him as a Pastor.  Second preference petitions for Koreans are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s educational, professional and working backgrounds, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us on December 15, 2014.

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 March 4, 2015, the prevailing wage request was filed.  After we obtained foreign degree evaluation report, our office filed the job order on May 4, 2015.  On July 29, 2015, we promptly filed PERM.  Eventually, on January 28, 2016, 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 financial records, and other necessary supporting documents. The I-140 Petition was filed on June 14, 2016 via premium processing service. However, the USCIS issued Request for Evidence (RFE) on June 29, 2016 and requested the Petitioner’s audited balance sheet to demonstrate whether Petitioner has sufficient net current asset to pay proffered wage of beneficiary. On September 8, 2016, our office filed the Response to RFE to USCIS along with Petitioner’s 2015 audited balance sheet. Eventually, on September 16, 2016, the I-140 EB-2 Petition for our Korean client was approved. Our client can file his I-485 adjustment of status application once his priority date becomes current in October 2016.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Guatemalan

LOCATION: Cleveland, OH

Our client came to the United States from Guatemala in 2003 without inspection and admission. He married his U.S. citizen wife in 2007. With our firm’s legal assistance, his U.S. Citizen wife filed an I-130 petition for him in 2013. This I-130 petition was approved on July 1, 2014.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission). He needed 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 hardship. Moreover, their U.S. citizen children suffer from great degree of medical hardships. Although their U.S. citizen children are not considered as “qualifying relatives” for the I-601A, we argued that children’s medical hardship is also hardship to our client’s U.S. citizen wife, by virtue of having to take care of them (children with medical / special needs) is an extreme hardship to her. In the I-601A brief and supporting documents, our office included extensive medical reports of his children.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  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 and their kids to get the same level of therapy and satisfactory access to medical services in Guatemala in case they join 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 Guatemala, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On March 11, 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 September 6, 2016. Now, he can file packet 3 and 4 here in the United States, and would go to Guatemala shortly to get his immigrant visa.

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

CLIENT: Filipina

LOCATION: Cleveland, OH

Our client came to the United States in January 2016 as a K-1 visa entrant from the Philippines.  Our client is the beneficiary of an approved I-129F petition. She came to the United States as a K-1 Fiancée of a U.S. Citizen whom she married within 90 days of her 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. She also has a minor child who came with her with valid K-2 visa.

Our client contacted our office initially in May 2016 and consulted with us for her and her child’s adjustment of status application. After the retention, our firm quickly prepared and filed the I-485 Adjustment of Status Applications on May 6, 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 August 28, 2016, her green card application was finally approved. Her child (U.S. citizen’s step-child)’s adjustment of status application was also approved.

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