CASE: Fiancée Visa

PETITIONER: US Citizen in Cleveland Ohio

BENEFICIARY: Filipina

PETITION FILED: August 13, 2015

PETITION APPROVED: September 8, 2015

K-1 VISA APPROVED: April 26, 2016

Our client, a US Citizen Petitioner, met his Filipina fiancée in the Philippines in 2011. They started their relationship, and he visited the Philippines. In 2014, he proposed to her during his trip in the Philippines. After his proposal, he retained our firm to file a fiancée petition for her.

After retention, we informed our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on June 6, 2015. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on August 13, 2015.

On September 8, 2015, less than a month after the filing, the I-129F fiancée petition was approved. On April 16, 2016, our client’s fiancée appeared at the U.S. Embassy in Manila, Philippines for her K-1 visa interview. The interview went well, and on April 26, 2016, the U.S. Embassy issued her K-1 visa.

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

CLIENT: Ukrainian

LOCATION: Cleveland, OH

Our client came to the United States in December 2015 as a K-1 visa entrant from Ukraine.  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 the petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible to apply for adjustment of status (green card) in the United States.

Our client contacted our office initially in the middle of January 2016 and consulted with us for her adjustment of status application. After retention, our firm prepared and filed the I-485 Adjustment of Status Application on January 29, 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 April 22, 2016, her green card application was approved.

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

EMPLOYER: Physician’s Office

BENEFICIARY: South Korea

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. Since the priority date for South Korean national is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: Change of Status / I-539
NATIONALITY: Filipina
LOCATION: Cleveland, OH

Our client is from the Philippines who came to the U.S. on a J-1 exchange visitor visa to work at Holiday Inn as an intern. She consulted with our firm a few weeks before the expiration of her J-1 status. She wanted to continue to stay in the United States for six more months to spend more time here and to travel.  We explained to her that CIS has been more stringent on Visitor status change. Upon retention, we prepare a statement based on her plans if her change of status request is granted. We asked her to provide as much detail as possible as we drafted the statement. We made sure all addresses, contact information, and dates on her statement were complete and accurate. We made sure all her plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence by the CIS.  Our office submitted financial documents from her parents in the Philippines as well. We filed the I-539 Change of Status Application on December 8, 2015 and her B-2 status extension was approved on April 4, 2016 with no Requests for Evidence.

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

NATIONALITY: Indian

LOCATION: Chicago, IL

Our client was a citizen of India who came to the U.S. on a J-2 Visa in December 1992.  She came with her father who came on a J-1 Visa as an alien physician 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’s father’s J-1 program was completed, the family immigrated to Canada. Our client came to the United States on an F-1 student visa in 2010 to pursue her doctoral program. In 2014, she married her U.S. citizen husband. Her husband will file an I-130 petition for her and she will file her adjustment of status application. However, because of her two-year foreign residency requirement, our client cannot adjust her status without the fulfilling the requirement or getting 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 December 2009.
Our firm was retained to do her J-2 waiver, and on December 21, 2015, 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 January 19, 2016 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On April 25, 2016, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-751

APPLICANT: Indian

LOCATION: New Jersey

Our client contacted our office in May of 2015 regarding his I-751 application.

He is from India and he married a U.S. citizen in September 2012. Through his marriage, he obtained a 2-year conditional green card in August of 2013.  His conditional residency was terminated in August 2015.

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 on May 4, 2015 and our office prepared an I-751 application for our client with bona fide marriage evidence.

On June 3, 2015, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, joint tax returns, utility bills, joint lease, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on April 20, 2016, the USCIS approved our client’s I-751 application and our client received his 10-year green card.

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CASE: Adjustment of Status / 245(i)

CLIENT: Filipino

LOCATION: North Carolina

Our Filipino client came to the U.S. on a B-2 visa in March 2015. Later, his authorized status expired and he overstayed his status. In September 2015, his wife came to the United States on a valid B-2 visa and at the time of her adjustment of status filing, she was still in status.

Our client contacted us around September of 2015 for consultation and sought legal assistance for their adjustment of status. After consultation, we determined that he is eligible for adjustment of status under INA 245(i) and the priority date for his case was current in September 2015.

His brother filed an I-130 petition for him back in 1992. As some of you know, priority dates for Philippine nationals under the family-based immigration category F4 are more retrogressed than other countries. The I-130 petition was approved by the INS in 1992.  However, he could not apply for his green card until his priority date became current.  Therefore, he had to wait for more than 20 years in order to even apply for his green card.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

On September 30, 2015, our office filed an I-485 adjustment of status application under 245(i) for our client and his wife. 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. On April 18, 2016, our clients were interviewed at the Charlotte, North Carolina USCIS office. After the interview, our client and his wife’s green card applications were approved.

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CASE: I-485 Adjustment of Status /  I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. She came to the United States in 2013 and now she holds her F-1 student status, and 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 July 2007.

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. Our office was retained on July 28, 2014 and started on her Prevailing Wage Request.

We filed the I-140 application on September 12, 2014 via premium processing. We included the job offer letter, the notice of filing, her previous I-140 approval notice, and other necessary supporting documents.  Eventually, on September 24, 2014, the I-140 was approved and it retained our client’s old priority date.

Then, we proceeded with our client’s I-485 adjustment of status application. We prepared and filed our client’s adjustment of status application along with supporting documents to USCIS on December 12, 2014.

The priority dates of the Eb-3 category for Philippine nationals backlogged. Our client had to wait until the priority date became current. In April 2016, her priority date became current. Eventually, our client’s adjustment application was approved by the USCIS on April 13, 2016.  After a long wait, our client is finally a green card holder.

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CASE: PERM Labor Certification    
EMPLOYER: Taekwondo (Martial Arts) School
BENEFICIARY: Korean
LOCATION: Cleveland, Ohio

Our client is a former Taekwondo athlete, and currently studies in the United States. He had a Taekwondo school which was willing to petition him for a third-preference petition (I-140).  Our client has a bachelor’s degree in a related field. After talking to our client, our firm concluded that his potential employer can petition him as a Taekwondo Coach. Based on our client’s education, professional and work background, our office determined that he is clearly eligible for EB-3 classification for his I-140 petition.  Our client eventually retained us on January 20, 2015.

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 25, 2015, the prevailing wage request was filed.  After we obtained a foreign degree evaluation report, our office filed the job order on April 21, 2015.  On July 15, 2015, we filed PERM.  Eventually, on January 19, 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 the “ability to pay” letter 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 April 8, 2016 via premium processing. Eventually, on April 13, 2016, the I-140 EB3 Petition for our Korean client was approved without any Requests for Evidence (RFE).

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CASE:  Request to Join in a Motion to Reopen and Terminate Proceedings
CLIENT: Pakistanis
LOCATION: Philadelphia, PA

Our clients are a Pakistani couple who currently reside in Philadelphia, PA. They were granted withholding of removal years ago.  Our client entered the United States on a valid L-1 and L-2 visa in November 2000.  Later, they were granted withholding of removal in July 2006 by the Philadelphia Immigration Court.  They have remained in the United States thereafter.

In November 2013, our clients’ son became a naturalized U.S. citizen. However, for them to get a green card, their case should first be reopened in the Immigration Court for them to apply for adjustment of status either with the Court, or with the CIS should proceedings be terminated after reopening.

In May 2015, our clients contacted our office and sought legal assistance for their immigration matter. After consultation, our client retained us on May 14, 2015.  Upon retention, we first prepared and filed their U.S. citizen son’s I-130 petitions for them. We filed the I-130 petitions to the USCIS on May 20, 2015 and the USCIS approved the I-130s on October 5, 2015. Once the I-130s were approved, we filed a Request to Join in a Motion to Reopen for our client to USICE-DHS office in Philadelphia.  Our cover brief explained how they got their withholding of removal status, approved of I-130, and their prima facie eligibility to apply for adjustment of status.

On April 11, 2016, the DHS office in Philadelphia agreed to join in the Motion to Reopen and Terminate Proceedings. The Joint Motion was then filed to the Philadelphia Immigration Court and upon reopening and termination, their adjustment of status applications can then be filed to the USCIS.

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