CASE: Adjustment of Status (I-485) / Joint Motion to Reopen and Termination of Removal Proceedings with an Approved I-130 Petition

CLIENT: Moldovan

LOCATION: Philadelphia, PA; Baltimore, MD (DHS)

Our client is from Moldova who came to the U.S. on a J-1 visa in June 2009. She remained in the United States past her authorized period of stay.  Later, she filed for asylum and withholding of removal in December 2009, but the Immigration Judge at the Baltimore Immigration Court denied all applications for relief.

She filed an appeal with the BIA, but in 2012, the Board affirmed the Immigration Judge’s findings and dismissed the appeal. She then proceeded to appeal her case at the Federal Circuit Court, but was denied.

Our client remained in the United States despite the final order of removal.

She married her current U.S. citizen husband in February 2014. After she married her husband, they consulted with our firm. They wanted to know if she had any viable options for her immigration status.

After careful review, our office determined that we can file a Request to the DHS to join in a Motion to Reopen based on the I-130 approval (if the I-130 petition is approved) and Bo Cooper’s May 17, 2001 Memorandum. After consultation, our client retained our office.

Once retained, our office prepared and filed the I-130 petition. The I-130 petition was filed on July 3, 2014. Her I-130 petition was scheduled for an interview, and they appeared at the USCIS Philadelphia USCIS Field Office on February 12, 2015. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. This was suggested (attorney accompaniment) because she had a final order of removal. The interview went well and the I-130 petition was subsequently approved by the USCIS on February 18. 2015.

Once the I-130 petition was approved, our office prepared and filed a Request to Join in a Motion to Reopen and Terminate to the Baltimore DHS office on March 19, 2015. Our office prepared an extensive brief along with multiple supporting documents to request a favorable exercise of DHS’s discretion on this case.

We argued that DHS should consider the following factors as set forth in Bo Cooper’s May 17, 2001 Memorandum: (1) whether adjustment of status was available at the prior hearing; (2) whether the alien is statutorily eligible for adjustment of status; and (3) whether the alien merits a favorable exercise of discretion. Bo Cooper, Motions to Reopen for Consideration of Adjustment of Status (May 17, 2001). In considering these factors, as delineated in William J. Howard’s October 24, 2005, Memorandum, “Where a motion to reopen for adjustment of status… is filed on behalf of an alien with substantial equities, no serious criminal or immigration violations, and who is legally eligible to be granted relief except that the motion is beyond the 90-day limitation contained in 8 C.F.R. § 1003.23, strongly consider exercising prosecutorial discretion and join in this motion to reopen to permit the alien to pursue such relief to the immigration court.” William J. Howard, Prosecutorial Discretion (October 24, 2005).

Our office argued that if our client’s case is reopened, she will be prima facie eligible to adjust her status. Our client has been living in the United States since 2009, has no criminal record, and has an approved I-130 petition based on the marriage to U.S citizen spouse.

Eventually, the DHS office agreed to join in our Motion to Reopen and Terminate on June 1, 2015. The DHS filed the joint motion to the Board of Immigration Appeals (BIA), and the BIA issued a decision on July 30, 2015 and reopened and terminated our client’s case.

After her case was terminated, she retained our office again for her I-485 adjustment of status application. Our firm prepared and filed the Adjustment of Status Application and the Employment Authorization Document on August 28, 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 client via conference call. On December 10, 2015, our client was interviewed at the Philadelphia, PA USCIS. The interview went well, and on the same day, her green card application was approved.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Fairbanks, Alaska

Our client came from the Philippines on a J-1 in August 2012 to work as a speech teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In May 2015, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On May 20, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Alaska State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippines Consulate General for further authentication.  On July 29, 2015, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On October 8, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 3, 2015, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

Feel free to call us at (216) 573-3712 or email us at jp@sarmientoimmigration.com if you have any questions. Consultations are free.

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

NATIONALITY: Korean

LOCATION: Los Angeles, CA

Our client is from South Korea who came to the U.S. on a J-1 Visa in December 2013.  He came to the U.S as an intern, and his J-1 program subjected him to the two-year foreign residence requirement.  Later, in July 2014, he married his current U.S. citizen wife. His wife was willing to file an I-130 petition for our client’s permanent residency; however, our client has to get a waiver for his two-year foreign residency requirement before the filing the I-130/I-485 applications.

They retained our office on September 22, 2015.

Once retained, our office prepared a waiver request through a No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Los Angeles to pursue the waiver for our client.  The Consulate office requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

His previous immigration counsel already filed the DS-3035 application to U.S. Department of States, but wasn’t able to get a no objection statement. So after retention, on September 25, 2015, our office filed a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on his marriage to his U.S. citizen wife.

The Korean Consulate General in Los Angeles promptly forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 28, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on December 2, 2015, the USCIS issued an I-612 approval notice and waived our client’s 2 year foreign residency requirement. Now our client can file an adjustment of status application along with his wife’s I-130 petition.

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CASE: I-751

APPLICANT: Hungarian

LOCATION: Cleveland, OH

Our client contacted our office in late July of 2014 regarding his I-751 application.

He is from Hungary and he married a U.S. citizen in January 2012. Through his marriage, he obtained a 2-year conditional green card in September of 2012. Our office helped him with his green card application.  His conditional residency terminated in September 2014.

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 August 6, 2014 and our office prepared an I-751 application for our client with other supplemental exhibits.

On August 29, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later. The USCIS issued a Request for Evidence (RFE) to demonstrate the bona fideness of our client’s marriage with his wife. We filed an extensive Response to RFE to the USCIS with more bona fide marital documents on January 15, 2015.

The USCIS then scheduled an interview for our client and his wife. On July 2, 2015, our client and his wife were requested to appear for an interview at the USCIS Cleveland Field Office.  Prior to the interview, our office prepared them thoroughly in our office and also accompanied them at the interview as well. Eventually, on December 7, 2015, the USCIS approved our client’s I-751 application.

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CASE: Fiancée Visa

PETITIONER: US Citizen in Ohio

BENEFICIARY: Colombian

PETITION FILED: March 4, 2015

PETITION APPROVED: April 2, 2015

K-1 VISA APPROVED: November 25, 2015

Our client, a US Citizen Petitioner, met his Colombian fiancée in Colombia in 2013. They started their relationship, and he visited Colombia. In June 2014, he proposed to her during their trip in Mexico. 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 November 5, 2014. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on March 4, 2015.

On April 2, 2015, less than a month after the filing, the I-129F fiancée petition was approved. On November 25, 2015, our client’s fiancée appeared at the U.S. Embassy in Bogota, Colombia for her K-1 visa interview. The interview went well, and on the same day, the U.S. Embassy issued her K-1 visa.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Dallas, Texas

Our client contacted us in July 2014 about the possibility of doing a National Interest Waiver. He is a research professor in the field of electrical engineering and radio frequency research, and is currently working as a research professor in Dallas, Texas.

His significant contributions have placed him at the pinnacle of the field of radio frequency research. He is a leading researcher and engineer in the field; specifically, Radio Frequency Integrated Circuit (RFIC) design and microwave research.  Our client’s research on RFIC has led to important innovations in his field of endeavor. Throughout his career, our client has provided innovative solutions and contributions for various areas of microwave engineering from semiconductor device modeling and measurements to complex system-on-a-chip design which were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 19-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication record, presentation record, 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 46 exhibits (Exhibit A to TT).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 6, 2015. On November 30, 2015, the USCIS approved his I-140 petition without any Requests for Evidence.

Now, with the approved NIW I-140 petition, he can file his adjustment of status application at any time.

For free consultations, feel free to email Glen Yu at glen@sarmientoimmigration.com or call at (216) 573-3712.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Ohio

Our client came to the United States from Mexico in 1999 without inspection and admission. He married his U.S. citizen wife in 2003. 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 January 17, 2014.

Our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission). He 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

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 medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  His wife has ongoing medical hardships and 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 to get the same level of therapy and satisfactory access to medical services in Mexico in case she joins 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 Mexico, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On July 13, 2015, 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 November 23, 2015. Now, he can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get his immigrant visa.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Zambian

LOCATION: Cleveland, Ohio

Our client came to the United States from Zambia on a B-2 Visitor’s visa in May 2010. After his authorization of stay period expired, he remained in the United States.  He married a U.S. Citizen in July 2015 and retained our office for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 14, 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 in our office. On October 27, 2015, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on November 23, 2015, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came to the United States from China on a F-1 student’s visa in August 2010. She married a U.S. Citizen in August 2015 and retained our office on August 5, 2015 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 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 as well. On November 23, 2015, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Eventually, on the same day of the interview, her green card application was approved.

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CASE: I-130 (Petition for Mother) and I-485 Adjustment of Status

CLIENT: Filipina

LOCATION: New York, NY

Our client retained us to petition her mother for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States. She contacted our office in late May of 2015 and discussed with us the green card process. After consultation, she retained our office on May 29, 2015.

Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 16, 2015 for her mother.  Everything went smoothly and the receipt notices, fingerprint appointment, and a work permit all came on time. Eventually, on November 18, 2015, without an interview, our client’s mother’s adjustment of status application was approved. Now, she is a green card holder.

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