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

NATIONALITY: Thai

LOCATION: Dallas Texas

Our client is a citizen of Thailand who came to the U.S. on a J-2 Visa in 1990.  He came with his father who came on a J-1 Visa for his research program 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.

He has remained her ever since. He completed his elementary and secondary school and finished his bachelor and graduate programs in the United States as well. He did not know about his overstay until he became a late teenager.

He turned 21 in 2005. Nonetheless, he did not know of the waiver process, lost his I-94 ,and did not have J-2 related documents besides the J-2 visa stamp on his old passport. Later, he became a beneficiary of the Deferred Action for Childhood Arrivals (DACA) program and got his work permit.

Our client married his current U.S. citizen wife in October 2012. He would like to get a waiver because he can get a green card based on his U.S. citizen wife’s I-130 petition. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the requirement or the 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 2005.

Our firm was retained to do his J-2 waiver and replacement of his I-94. We first filed an I-102 application to USCIS on June 12, 2015 in order to obtain his I-94 record replacement. The USCIS issued his replacement I-94 on September 21, 2015. Thereafter, on September 25, 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 October 14, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 25, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: PERM Labor Certification

EMPLOYER: Data Marketing Company

BENEFICIARY: Nepali Computer Systems Analyst

LOCATION: Omaha, NE

Our client is a computer systems analyst from Nepal, who is currently working at a data marketing company in Omaha, Nebraska. They were willing to do an immigration petition him for a second-preference petition (I-140 EB-2).

Our client has a Master of Science degree in Computer Science and has worked for this company since January 2013. He has maintained his status as an H-1B visa holder in the United States.  After talking to our client, our firm concluded that his employer can petition him as a Computer Systems Analyst II. Based on our client’s educational, professional and work background, our office determined that he is clearly eligible for the EB-2 classification for his I-140 petition.

Prior to filing the PERM labor certification, 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 the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad.

After retention, our office filed the prevailing wage request in December 2014.  On May 26, 2015, we filed the PERM labor certification application.  Eventually, on November 19, 2015, less than 6 months from filing, with no audits, the PERM labor certification was approved – an EB2 position for our Nepali Computer Systems Analyst. Now our client can file the I-140 Petition and the I-485 green card application since his priority date is current.

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CASE: I-824 (Follow-to-join) based on approved I-140 and Consular Processing (Immigrant Visa)

CLIENT: Filipina LPR Petitioner; Filipino Beneficiary in the Philippines

LOCATION: Petitioner: Michigan; Beneficiary: Manila, Philippines

Our client is a Lawful Permanent Resident who got her green card under EB-2 category with our office’s legal assistance in 2014.  She has a husband, and our client and her husband married before his adjustment of status application was adjudicated. However, her husband was in the Philippines when she got her green card due to his employment. He could have been a derivative applicant at the time of our client’s green card filing, but he was not in the United States at that time. Nevertheless, we told our client that we can do an I-824 and do consular processing for her husband when he wants to permanently move to the United States.

In October 2014, she contacted our office to do an I-824 follow-to-join application to the USCIS so that her husband can file an immigrant visa and come as a derivative beneficiary of the I-140 petition. She retained our office on October 17, 2014 to help bring her husband to the States.

After we were retained, our office filed an I-824 follow-to-join application to the USCIS on October 31, 2014. After the I-824 was filed, everything went smoothly and the receipt notice came on time. The I-824 application was approved by the USCIS on June 29, 2015 and this case was transferred to the National Visa Center.

After the I-824 approval, we filed the immigrant visa packets to the National Visa Center on August 20, 2015 who in turn forwarded the client’s materials to the U.S. Embassy in Manila, Philippines. An interview notice was set for our client at the U.S. Embassy in Manila. On November 10, 2015, our client’s husband appeared at the U.S. Embassy in Manila, Philippines. The interview went well, and eventually, on the same day, the U.S. Embassy in Manila, Philippines approved and issued his immigrant visa.

With the approved Immigrant visa, our client’s husband can come to the United States. He will get his green card within two months.

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CASE: PERM Labor Certification

EMPLOYER: Home Health Services in Chicago Illinois

BENEFICIARY: Nigerian Director of Business Technology and Strategy

The beneficiary of this labor certification is Nigerian, who is in the U.S on H-4 status. His prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Engineering Management.

Our firm concluded that his employer can petition him as a Director of Business Technology and Strategy. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification.

Prior to filing PERM labor certification, 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 the PERM Labor Certification application could only be filed at least 60 days from the job posting date or 30 days from the last ad.

On October 28, 2014, the prevailing wage request was filed.  On April 17, 2015, we filed the PERM labor certification application.  Eventually, on November 17, 2015, the PERM labor certification was approved – an EB2 position for the Nigerian Director of Business Technology and Strategy. Now our client can file an I-140 Petition and his I-485 adjustment of status application simultaneously.

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CASE: Motion to Terminate Removal Proceedings Based on Criminal Conviction Dismissal

CLIENT: Lebanese

LOCATION: Cleveland, OH

Our client is a Lebanese citizen and who has been a green card holder in the United States for more than 25 years. However, he was placed into removal proceedings in March 2012 due to his previous criminal record; specifically, a drug-related offense that he committed when he was a teenager.  Our client contacted us in March 2012 to seek legal assistance and representation at his removal proceedings.  Our office was retained on April 9, 2012.

According to our client’s Notice to Appear, he was removable for a criminal ground of deportability. Based on his removable charge, our office first sought for relief under Section 212(c) and got an individual hearing date. However, the likelihood of success for our client’s case was quite low. Nevertheless, our office did extensive researche and asked our client whether he was advised before he pled guilty for his charges at the county court.  Our client told us that he did not receive any advisement as required by Ohio criminal statute.

Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the BIA held that “If a court with jurisdiction vacates a conviction based on a defect in underlying criminal proceedings, the Respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A). According to O.R.C Section 2943.031, the court must ask the following before the defendant entered the plea: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

As stated above, our client told us that he never had aforementioned advisement from the court before he pled guilty for his charge.  Thus, we contacted our client’s previous criminal attorney to file a Motion to Vacate conviction based on a defect in underlying criminal proceedings – that of having a lack of advisement or lack of substantial compliance with the advisement provisions of O.R.C. Section 2943.031 from the county court.

On November 13, 2014, the county court granted our client’s Motion to Vacate for his previous criminal conviction.  With that, our office filed a Motion to Terminate Proceedings to the Immigration Court and argued that our client is not removable anymore because the court with jurisdiction vacated convictions based on a defect in underlying criminal proceedings. We included the criminal court judges’ orders and other supporting documents, and argued that our client’s removal proceedings must be terminated.

On November 6, 2015, the Immigration Judge granted our Motion to Terminate Proceedings.  Our client got his green card back. .

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

 NATIONALITY:  Iraqi

 LOCATION: Ohio

Our client came to the U.S. on a J-1 Visa in August 2012 from Iraq.  He came to the U.S. for his Ph.D. program, and his J-1 visa made him subject to the two-year foreign residency requirement. Our client would like to an I-140 self-petition under the National Interest Waiver Category and adjustment of status 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 a No Objection Statement or Interest Government Agency (IGA). Moreover, our client could not pursue his J-1 waiver based on the exceptional hardship standard. Nonetheless, our client could pursue a J-1 waiver under the persecution category since he believes he will be persecuted based on his religion (Shiite Muslim).

A person can file a J-1 waiver under the persecution basis if the person believes that he or she will be persecuted based on his/her race, religion, or political opinion among others, if he or she returns to his or her home country.. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.

Our client believed that he would be persecuted if he goes back to Iraq by ISIS based on his belief. His opinions, beliefs, and religious practice as a Muslim Shiite basically go against the beliefs and objectives of ISIS.  After he retained our firm, we prepared and filed a waiver request through the persecution basis. On May 27, 2015 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 to show that he will be persecuted in Iraq if he goes back. On June 3, 2015, 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 will be persecuted if our client needs to go back to Iraq for two years.

Eventually, the Department of State recommended a waiver for our client on November 2. 2015. Subsequently, the USCIS approved his I-612 waiver on November 4, 2015.

If you have questions, feel free to call Attorney JP Sarmiento at (216) 573-3712 or email us at jp@sarmientoimmigration.com for free consultations.

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CASE: I-140 / EB-11 (Alien of extraordinary ability)

CLIENT: Korean

LOCATION: Seoul, South Korea

Our client contacted us in September 2014 about the possibility of getting an immigrant visa through the EB-11 category. He is a world-renowned Taekwondo coach and is currently working as a coach for a university Taekwondo team in South Korea.  Our client was a coach for Great Britain’s Taekwondo Team in preparation for its Summer Olympic competitions. Also, he wrote one of the first Taekwondo guidance books for Taekwondo instructors. Moreover, he has multiple patents after he invented an effective exercise band for Taekwondo training. Upon review of his credentials and qualifications, our office determined that he was qualified for the EB-11 category, an alien of extraordinary ability.

According to INA Section 203(b:

• Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):

• Aliens with extraordinary – an alien is described in this sub-paragraph if-

• The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
• The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
• The alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability.  See H.R. 723 101^st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991).  The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).

The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field.  Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:

• Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

• Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

• Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

• Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

• Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

• Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

• Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;

• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

• Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After reviewing our client’s credentials and qualifications, we determined that our client meets 5 of the 10 categories, which is more than the 3 required as an alien of extraordinary ability. Our client has made an original contribution to the sport of Taekwondo; has been awarded numerous national and international coaching awards and his student-players have won numerous national and international competitions; has played a critical role for distinguished organizations; has membership in an organization with distinguished reputation that requires outstanding achievement; and our client’s participation as a panel or judge of the elite Taekwondo athletes.

Our office prepared a 16-page brief for our client’s EB-11 filing. Our client also obtained 6 letters of recommendation from the World Taekwondo Federation, Korea Taekwondo Association, a former Olympic champion, Taekwondo head coaches from other national teams, etc. Our office also included his coaching record, awards, media coverage, medals, athletic career record, and other materials to show that he is an alien of extraordinary ability in Taekwondo coaching. His EB-11 I-140 application contained 50 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Nebraska Service Center via premium processing service on July 23, 2015. However, on August 12, 2015, the USCIS Nebraska Service Center issued the Request for Evidence (RFE). In the RFE, the USCIS claimed that our client only meets 2 of the 10 requisite statutory categories of EB-11. In the response brief, our office demonstrated that our client indeed met 5 of the 10 categories and provided more recommendation letters from independent experts, copies of his publication records, copies of his patent certificate, copies of coaching awards, and media coverage. Our office filed the response to RFE on October 28, 2015. Eventually, on November 10, 2015, the USCIS Nebraska Service Center approved his I-140 self-petition.

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

NATIONALITY: Taiwanese

LOCATION: San Jose, California

Our client is a Taiwanese Citizen who came to the U.S. on a J-2 Visa in 2010. She came with her husband who held a J-1 Visa as a Ph.D. student. Both were subject to the two-year foreign residency requirement.

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

She contacted our office, and our firm was retained to do her J-2 waiver on August 28, 2015.

On September 1, 2015 the J-2 Waiver Application along with 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 October 9, 2015, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On November 4, 2015, the USCIS issued the I-612 waiver approval.

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CASE: Marriage-Based I-130 and I-485

CLIENT: Mexican

LOCATION: Cleveland, Ohio

Our client came to the United States from Mexico on a TN visa in June 2015. He has been working for his company in the United States as a TN visa holder for the last several years. He married a U.S. Citizen in July 2015 and retained our office in July 14, 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on August 4, 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 at our office. On October 27, 2015, our client was interviewed at Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on November 6, 2015, his green card application was approved.

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

NATIONALITY: Chinese

LOCATION: Atlanta, GA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in September 2007.  She came with her mother who came on a J-1 Visa for her research program 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 came to the United States, she completed her high school and was admitted to a University to pursue her bachelor’s degree. She went back to China and got her F-1 student visa at the U.S. Embassy in China and came back to the United States on her F-1 student visa.

She turned 21 in 2012. She now has a U.S. citizen fiancé and they plan to get married soon. Once they get married, her fiancé (will be her husband) will file an I-130 petition for her and she will file her I-485 adjustment of status application. However, because of her two-year foreign residency requirement, our client cannot adjust her status without the fulfillment of the 2-year requirement or the 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 January 2012.

Our firm was retained to do her J-2 waiver, and on September 16, 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 October 8, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 6, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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