CASE: Termination of Removal Proceedings with an Approved I-130 Petition / I-485 Adjustment of Status / Response to Notice of Intent to Revoke

CLIENT: Nigerian

LOCATION: New Orleans, LA

Our Nigerian client came to the United States in August 2011 with a valid F-1 student visa to study in a college. However, he did not maintain status and was placed in removal proceedings in July 2012. After he got a Notice to Appear, he appeared at his initial master calendar hearing at the New Orleans Immigration Court without an attorney.

In May of 2014, he contacted our office and asked us whether we can take his case. He was married to a US Citizen, but he also had two previous marriages and divorces, also to US Citizens. We told him an I-130 can be filed, but that we need bona fides from his first two marriages also. We explained that the strength of his wife’s I-130 for him would also depend on how he can prove that his first two marriages were in good faith.

He retained our office on May 16, 2014. He married his U.S. wife in May 2014 and our office filed the I-130 petition for our client with a bona fide marriage exemption letter and bona fide marital documents. We organized the exhibits so that bona fide evidence from his first two marriages were also shown. We filed the I-130 application to the USCIS on June 12, 2014.

On June 17, 2014, our attorney Glen Yu appeared at his master calendar hearings via telephonic appearance. Attorney Yu did pleadings for our client, requested adjustment of status relief for our client, and requested a continuance based on a pending I-130 petition. However, the DHS requested a Velarde hearing to the Court. The DHS requested this hearing to determine whether proceedings should be continued to allow USCIS to adjudicate the I-130. DHS argued that our client’s marriage to his U.S. citizen spouse is presumptively invalid under immigration purposes since he married his wife after initiation of removal proceedings.

A Velarde Hearing is a hearing to establish whether good cause exists to continue proceedings for adjudication of a pending I-130 petition. A variety of factors may be considered, including, but not limited to: (1) DHS’ response to the Motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the Respondent’s statutory eligibility for adjustment of status; (4) whether the Respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant factors. Matter of Hashimi, 24 I&N Dec. 785 (BIA 2009).

The Velarde hearing for our client was scheduled for August 18, 2014. Prior to the hearing, our office filed a brief in support and more documents to demonstrate the bona fide nature of our client’s marriage to his U.S. citizen wife.  Attorney Sung Hee Yu from our firm prepared him and his wife extensively via conference calls. He also represented our client at the Velarde Hearing at the New Orleans Immigration Court on August 18, 2014.

The hearing went well and as a result, the Court concluded that our client’s I-130 petition is prima facie approvable. After the Velarde hearing, the USCIS scheduled the I-130 interview for our client and his U.S. citizen wife. Our office prepared them for their interview. On December 31, 2014, our client and his wife appeared at the USCIS New Orleans Field Office for their I-130 interview. The interview went well, and the USCIS approved the I-130 petition for our client on the same day.

Once his I-130 was approved, our office filed a request to join in a Motion to terminate proceedings with the I-485 application and supporting documents. The DHS counsel in New Orleans agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to terminate without prejudice on August 14, 2015.

After his removal proceeding was terminated, our client retained us again for his I-485 adjustment of status application.  Our firm prepared and filed the I-485 Adjustment of Status Application on September 14, 2015. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients via conference call. On December 1, 2015, our client was interviewed at the New Orleans, LA USCIS.  Attorney Sung Hee (Glen) Yu from our office accompanied our clients.

Although the interview went well, the USCIS New Orleans office issued Notice of Intent to Revoke our client’s I-130 petition. In the Notice of Intent to Revoke, the USCIS argued that our client’s marriage to her U.S. citizen spouse was in violation of Louisiana law so that the marriage is invalid. However, after careful review of related marital laws and local statutes, we determined that our client’s marriage to his wife was valid. Our office promptly filed the Response to Notice of Intent to Revoke on December 15, 2015. Eventually, on January 13, 2016, his I-485 application was approved.  Now, our client is a green card holder.

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CASE: Consular Processing (Immigrant Visa)

 CLIENT: US Citizen Petitioner Daughter; Filipina Beneficiary Mother in the Philippines

 LOCATION: Houston, TX; Beneficiary: Philippines

 IV APPROVED: December 15, 2015

Our client retained us to bring her mother over from the Philippines. She was born and raised in the Philippines, but was naturalized in the United States. Prior to retaining our office, our client already filed the I-130 petition for her mother and this I-130 Petition was approved by the USCIS. Once we were retained, we then started the immigrant visa processing phase of trying to get her mother over to the United States.

On April 29, 2015, we filed the immigrant visa packets to the National Visa Center who in turn forwarded our client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for our client’s mother at the U.S. Embassy in Manila, and we prepared her for her interview.  She did her interview on September 21, 2015. Eventually, on December 15, 2015, the U.S. Embassy in Manila, Philippines approved and issued her immigrant visa.

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

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CASE: Marriage-Based Immigrant Petition and Adjustment of Status

CLIENT: Indian

LOCATION: Columbus, OH

Our client came to the United States from India on an H-1B visa in May 2013. He married a U.S. Citizen in September 2015 and retained our office on September 30, 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October 6, 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 as well. On January 12, 2016, our client was interviewed at Columbus, Ohio USCIS office. Eventually, on the same day, his green card application was approved.

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Case: I-130/I-485

Applicant/Beneficiary – Korean

Location: Columbus, OH

Our client entered the United States in July 2015 from South Korea under the visa waiver program. He married his U.S. citizen wife in March 2015 in South Korea. He came to the United States as a visitor with his wife and first intended to help his wife who just began her graduate studies in the United States.  As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. While he was staying in the United States, he was informed that he could file adjustment of status in the United States even though he entered as a visa waiver entrant.  He contacted our office, and they retained us on August 31, 2015.

One main issue in his green card application through marriage was the fact that he came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability; it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on October 7, 2015.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients at our office. On January 8, 2016, our client was interviewed at the Columbus Ohio USCIS Field Office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients for the interview. Despite the visa waiver issue, on the same day of the interview, the USCIS approved his green card application.  Now, our client is a green card holder.

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

APPLICANT: Korean Nurse Practitioner

LOCATION: Florida

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 May 5, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on July 20, 2015 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  However, on July 29, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) and asked to submit Petitioner’s entire tax record and an explanation regarding the place of employment. Our office prepared the Response to RFE and filed it to the USCIS on August 10, 2015. Eventually, on August 19, 2015, 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 (green card) application. Our office filed an I-485 adjustment of status application for our client and her husband on August 21, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on January 6, 2016, the USCIS approved our client and her husband’s adjustment of status applications. Now, they finally are green card holders.

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CASE: Motion to Reopen and Rescind an In Absentia Order of Removal Based on Exceptional Circumstances
CLIENT: Bahamian
LOCATION: Miami, Florida

Our client was from the Bahamas and is a lawful permanent resident.  She was placed into removal proceedings due to a criminal conviction which she has tried to vacate for the last couple years. After removal proceedings were initiated, our client attended her master calendar hearings.

However, in July 2015, our client was in a great deal of pain and was admitted to the emergency room for a week.  Our client got very sick, especially on the master calendar hearing date. Eventually, she did not appear before the Court on her master calendar hearing date.   Because of her absence, an order of removal was issued against her. Once she learned about the order of removal, she immediately contacted our office and explained to us that why she was not able to attend the hearing.

Our client contacted and retained our office on August 20, 2015 for the Motion to Reopen and Rescind an in absentia order.  After we analyzed her story and the surrounding circumstances, our office determined that the Immigration Court will likely grant our client’s Motion to Reopen and Rescind an in absentia order based on exceptional circumstances.

In the Motion, we contended that our client could not attend the hearing due to her medical condition and her absence was inevitable due to the medical condition.  Our office included supporting documents such as a doctor’s letter, copy of prescription, and other supporting documents.  Eventually, our office filed the Motion on September 30, 2015 within the statutory time frame.  On November 3, 2015, the Miami Immigration Court granted our client’s Motion and rescinded the order of removal.  Our client’s case is re-opened, and she can now pursue her relief again.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipino

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client was in the Philippines when we started his case. His prospective employer-sponsor was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he has a registered nurse license and the proffered position for him is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a clinical nurse. He also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on March 16, 2015 via premium processing. We included a 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 the nurse manager position falls under a Schedule A and EB2 designation.

Eventually, on March 26, 2015, the USCIS Texas Service Center approved his EB-2 I-140 petition.

While his I-140 petition was pending, he came to the United States to visit his family members as a B-2 visitor’s visa. He intended to come home after but while he was in the United States, his I-140 petition was approved. After consultation with our office, and assessing that he did not have immigrant intent, he retained our office again and to file an adjustment of status application in the United States.

On June 23, 2015, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on December 28, 2015, the USCIS approved our client’s I-485 adjustment of status application. Now, he is a green card holder.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Beneficiary: Philippines / Petitioner: Houston, TX

Our client came from the Philippines. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a nurse manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).

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 having to file a Labor Certification with the Department of Labor. 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. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.

Our client has a Bachelor’s degree in nursing and 5 years of experience as a staff nurse. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.

Once the prevailing wage was determined, we filed the I-140 application on July 30, 2015 via premium processing. We included a 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 the nurse manager position falls under a Schedule A and EB2 designation.

However, on August 7, 2015, the USCIS Texas Service Center issued a Request for Evidence (RFE) for our client’s I-140 petition. In the RFE letter, the USCIS requested our client to demonstrate her past experience and Petitioner’s new tax records. In response to RFE, our office prepared and filed the Response to RFE on August 25, 2015 including our client’s past experience letter from the Philippines and the Petitioner’s tax documents.  Eventually, on August 31, 2015, the USCIS Texas Service Center approved her EB-2 I-140 petition.

Once her I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. On September 4, 2015, our office filed an I-485 adjustment of status application for our client. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

As a result, on December 30, 2015, the USCIS approved our client’s I-485 adjustment of status application. Now, she is a green card holder.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, No Objection Statement

 NATIONALITY: Indonesian

 LOCATION: Providence, RI

Our Indonesian client came to the U.S. on a J-1 Visa in June 2012.  She came to the U.S. for her post-doctoral research program, and her J-1 visa made her subject to the two-year foreign resident requirement.  Her research and higher education enhanced her interest in the field, and she would like to further her future research and development projects through a possible National Interest Waiver application.  However, since most of the research projects that interest her will take a longer time, she anticipates that most employers will eventually wish to petition her for an alternate form of visa such as H-1B. However, due to the two-year foreign residency requirement, she had to obtain a waiver first before she could change her current status in the United States.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office contacted the Indonesian Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of her valid Indonesian passport, and a copy of Form DS-3035.

On September 17, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a change of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On November 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on December 21, 2015.  Now that our client’s two-year foreign residency requirement is waived, she can be a beneficiary of other non-immigrant visa in the United States without going back to Indonesia for 2 years. She can also file an EB2 I-140 NIW Petition and be eligible for adjustment of status.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Chinese

LOCATION: Cleveland, OH

Our client is a Chinese Citizen who came to the U.S. on a J-2 Visa in 2008. He came with his wife who held a J-1 Visa as a researcher. Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and he eventually got divorced from his ex-wife. He was still subject to the two-year foreign residency requirement, and he would like to change his status in the United States. Until he gets a waiver of the 2-year foreign residency requirement, he cannot change his status in the United States.

He contacted our office, and our firm was retained to do his J-2 waiver on October 14, 2015.

On November 6, 2015 the J-2 Waiver Application along with the Form DS-3035 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 was divorced from the J-1 visa holder.

On November 30, 2015, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On December 23, 2015, the USCIS issued the I-612 waiver approval.

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