CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in November 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary School Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2022 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Upon retention, our office filed the H-1B visa petition with various supporting documents on December 23, 2021 via premium processing. On January 13, 2022, the USCIS issued a Request for Evidence for our client’s petition. Our office filed the Response to RFE on the same day. Eventually, our client’s H-1B application was approved on January 25, 2022. She can now work for her employer for three years on an H-1B status.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Haitian

LOCATION: Chantilly, VA

Our client came to the United States with a B-2 visitor’s visa from Haiti in December 2020. He married a U.S. Citizen and retained our office for his petition and adjustment of status application. He also asked us to file his daughter’s (Petitioner’s step-daughter) adjustment of status application.

Our firm prepared and filed the I-130 petition and I-485 adjustment of status application on March 23, 2021. 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 through conference calls. On January 21, 2022, our clients were interviewed at the Fairfax, VA USCIS office. On January 31, 2022, our client and his daughter’s green card applications were approved.

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

CLIENT: Filipina

LOCATION: Akron, OH

Our client came to the United States in September 2021 as a K-1 visa entrant from the Philippines.  Our client is the beneficiary of an approved I-129F petition. She got 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 got married in September of 2021. 

Our client contacted our office initially and consulted with us for her adjustment of status application. She retained our office on September 17, 2021.  After retention, our firm prepared and filed the I-485 Adjustment of Status Application on September 24, 2021.  Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  

Thereafter, the USCIS scheduled an interview for our client’s adjustment of status application.  Prior to the interview, we thoroughly prepared our clients via conference calls. On January 25, 2022, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. On January 26, 2022, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Mexican                                                                                   

LOCATION: Plymouth, OH

Our client is from Mexico who came to the U.S. on a B-2 visa in May 2021. She married her U.S. citizen husband in Mexico prior.  She retained our office on August 6, 2021 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October 1, 2021.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time. Prior to the interview, we prepared our clients via conference call. On January 25, 2022, our client was interviewed at the Cleveland, OH USCIS office. Attorney Sung Hee (Glen) Yu, Esq. accompanied our clients as well. On January 26, 2022, her green card application was approved.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Nepalese

LOCATION: Oxford, MI

Our client contacted us in June 2021 to seek legal representation for his naturalization application. He came to the United States from Nepal and obtained his green card in October 2018 through his marriage to his US Citizen spouse. 

His N-400 application was filed on July 6, 2021, with all supporting documents. Prior to his citizenship interview, our office prepared him via conference calls.  On January 18, 2022, our client appeared at the Detroit, Michigan USCIS office for his naturalization interview. Our client answered all questions correctly and passed his naturalization interview. On January 19, 2022, his application was approved. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipina

LOCATION: Jersey City, NJ

Our client contacted us in November 2020 to seek legal representation for her naturalization. She came to the United States from the Philippines and obtained her green card in December 2017 through her marriage to her US Citizen spouse. 

We filed her N-400 application on November 24, 2020 with all supporting documents. Prior to her citizenship interview, our office prepared her via conference calls.  On November 18, 2021, our client appeared at the Newark, NJ USCIS office for her naturalization interview. Our client answered all questions correctly and passed her naturalization interview. On  January 11, 2022, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: Marriage-Based Green Card (Same Sex Marriage Case)

CLIENT: Vietnamese

LOCATION: Bedford Heights, OH

Our client came from Vietnam in December 2016 on a F-1 student visa. She has a same-sex U.S. Citizen spouse and they married in July 2021 in Ohio.  

On June 26, 2013, the U.S. Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment. United States v. Windsor, 570 U.S. ___ (2013). After the Windsor decision, the USCIS implemented a new policy that the USCIS officer must review immigration via petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. As long as a same-sex couple is married in a U.S. state that recognizes same-sex marriage, their marriage shall be considered a valid marriage under the immigration law. 

Our client contacted our office and retained us on July 21, 2021 for her I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on August 3, 2021. 

Prior to the interview, we thoroughly prepared our clients via conference call. On January 13, 2022, our clients appeared at the USCIS Cleveland Field Office for the interview. Attorney Sung Hee (Glen) Yu accompanied our clients as well. The interview went well and our client’s green card application was approved on January 14, 2022.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Filipina                                                                                      

LOCATION: Cleveland, OH 

Our client is from the Philippines who came to the U.S. on a J-1 visa in October 2019. Her J-1 program was not subject to the two-year foreign residency requirement. In April 2021, our client married her U.S. citizen husband.  She retained our office on April 20, 2021 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 21, 2021.  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 November 16, 2021, our client was interviewed at the Cleveland, OH USCIS office. Attorney Sung Hee (Glen) Yu, Esq. accompanied our clients. However, the USCIS requested an updated I-693 medical record after the interview. Our client got the updated I-693 medical record and submitted it to the USCIS office on November 22, 2021. On January 3, 2022, her green card application was approved.

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

 NATIONALITY:  Iraqi

 LOCATION: Plymouth, NM

Our client came from Iraq as a J-1 visitor in August 2017.  He was subject to the two-year foreign residency requirement. To be eligible for adjustment of status or other forms of visas such as the H-1B, 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). 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 would like to pursue his J-1 waiver based on exceptional hardship. Our client’s U.S. citizen daughter was 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 the exceptional hardship basis. On March 18, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an 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 condition.  On March 20, 2020, our office filed the  I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s daughter would experience exceptional hardship if our client needs to go back to Iraq for two years. 

Eventually, the USCIS approved his I-612 waiver on December 29, 2021.

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

APPLICANT / BENEFICIARY: Guatemalan

LOCATION: Cleveland, Ohio / San Salvador, El Salvador (Visa Interview)

Our client came to the United States from Guatemala in January 2000 without inspection and admission. He married his LPR wife in January 2011. They have a U.S. citizen daughter together.  His LPR wife filed an I-130 petition for him on December 12, 2016. This I-130 petition was approved on May 17, 2018.

Our client cannot file for adjustment of status application due to his ground of inadmissibility. He needs a waiver of inadmissibility to become a green card holder. Our client was placed in removal proceedings, but with our office’s assistance, his removal proceeding was administratively closed in November 2012 to file a provisional waiver application. 

Under the 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 LPR 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, exceptional 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 children. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in Guatemala 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 Guatemala, that our client has good employment in the United States, and that his U.S. citizen child and his wife will face extreme financial and emotional difficulties if he is removed.

On November 14, 2018, 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 August 12, 2019. 

Once his I-601A waiver was approved, he retained our office again for his immigrant visa processing. Our office prepared and filed his immigrant visa application on November 15, 2019. Also, our office filed the Motion to Re-calendar his case to the Cleveland Immigration Court since his case was administratively closed by the Court in the past. Once his case was re-calendared, we represented him at his master calendar hearing on January 21, 2021. We requested pre-conclusion voluntary departure for our client and the Immigration Judge granted our request. Our client left the United States in late May 2021 and went back to Guatemala in order to comply with the voluntary departure order. However, the US Embassy in Guatemala did not schedule his visa interview due to the COVID-19 pandemic issues and its related case backlogs. Our office sent an expedite request inquiry as well. 

In October 2021, the U.S. Embassy in San Salvador, El Salvador informed our office that they scheduled an immigrant visa interview for our client. Our client went to El Salvador to appear at his interview on November 16, 2021. On November 16, 2021, our client appeared at his immigrant visa interview at the Embassy. Eventually, our client’s immigrant visa was approved on January 7, 2022.  

Now, our client can comee back to the United States with an approved immigrant visa and he will get his green card in the mail within two months. 

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