CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: New Mexico

Our client came to the United States from the Philippines on a J-1 exchange visitor’s visa in March 2010. Later, she changed her status from J-1 to H-1B. She was not subject to the 2-year foreign residency requirement (INA Section 212(e)) according to her J-1 visa.

She married a U.S. Citizen in June 2015 and retained our office on June 29, 2015 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 11, 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 3, 2015, our client was interviewed at Albuquerque, New Mexico USCIS office. Eventually, on the same day of the interview, her green card application was approved.

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

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Argentinian

LOCATION: Ohio

Our client contacted us in April 2014 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from Argentina and obtained his green card in March 1995. He retained our office for his naturalization and citizenship N-400 application. He was concerned about his multiple DUI convictions and traffic violations. Moreover, our client has health concerns and wanted to include an N-648 medical exemption application (medical certification for disability exceptions).

The naturalization and citizenship N-400 application was filed on July 22, 2015 with all supporting documents. Our office prepared him before his naturalization interview, and also accompanied him on September 29, 2015 at the Cleveland CIS office. Though he has a lot of DUIs in the past, most were before 2008. We argued that he had the requisite good moral character for the statutory 5-year period preceding the N-400 application.

Our client’s history test was waived since his N-648 was granted by the office. Our client passed his English test and did his N-400 interview. The USCIS officer asked our client to submit a certified copy of a criminal record that was previously expunged. We filed the RFE response to the Cleveland USCIS Field Office on October 8, 2015.

Eventually, his naturalization application was approved on October 30, 2015. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

If you have any questions, feel free to contact our office for free consultations with Attorney JP Sarmiento at jp@sarmientoimmigration.com or (216) 573-3712.

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CASE: Employment Based Adjustment of Status (Derivative Applicant) / 245(i)

CLIENT: Filipino

LOCATION: Washington

Our Filipino client came to the U.S. in April 1993 on a valid B-2 visitor’s visa when he was a minor. He has remained in the United States since then. In April 2001, his U.S. citizen brother filed an I-130 petition for him. Thereafter, he married his current wife in April 2011. His wife got an approved EB-2 I-140 petition and she later filed her I-485 adjustment of status.

Our client contacted us around May 2015 for consultation and sought legal assistance for his adjustment of status application. He was not sure whether he could be a derivative applicant of the adjustment of status based on his wife’s I-140 approval since he overstayed his status. Nonetheless, after consultation, we determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on May 26, 2015.

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.

As mentioned above, our client’s U.S. citizen brother filed an I-130 petition for him back in April 2001. Therefore, he was a beneficiary of an immigrant petition filed after January 15, 1998 and before April 30, 2001 and that I-130 petition was approvable when it was filed. Moreover, he was physically present in the United States on December 21, 2000.

On July 2, 2015, our office filed his I-485 adjustment of status application under 245(i).  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  Eventually, on October 19, 2015, without any requests for evidence, our client’s I-485 adjustment of status application was approved.

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

EMPLOYER: Nursing Care Facility

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client is 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 was a health services manager at the nursing care facility, the petitioner wanted to try going for a “Schedule A” and EB2 classification. A “nurse-related” position 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 has more than five years of experience as a clinical director or a midwife. 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 September 5, 2014 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 the health services manager position falls under a Schedule A and EB2 designation.

However, on September 19, 2014, the USCIS issued a Notice of Intent to Deny. The USCIS argued that they cannot approve her I-140 petition because the proffered position, Health Services Manager, does not fall under Schedule A designation and it is not an EB-2 classified position. In our response brief, we cited the AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Health Services Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to the EB-2 classification argument, our office argued that the proffered position has a supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experience under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed the Response to Notice of Intent to Deny to the USCIS Texas Service Center on October 8, 2014. Eventually, on October 22, 2014, 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 October 31, 2014, 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.

However, on April 16, 2015, the USCIS issued a Request for Evidence (RFE) and requested our client’s CGFNS Visa Screen document. We prepared the Response and filed it on June 30, 2015. Eventually, on October 22, 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: N-400 (Citizenship / Naturalization)

APPLICANT: Sudanese

LOCATION: Ohio

Our client contacted us in May 2015 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from Sudan and obtained his green card in January 1996. However, due to his “Good Moral Character” issue, specifically polygamy, his previous N-400 application was denied in 2006. Nevertheless, after consulting with our office, he retained our office on May 13, 2015.

The N-400 application was filed on June 9, 2015 with all supporting documents. Moreover, our office filed brief regarding the circumstances of our client’s past regarding his marriages, from explaining timing circumstances to incorporating home country culture, basically addressing the reasons which led to the denial of his previous N-400 application.

Prior to his citizenship interview, our office prepared him via conference calls. On October 19, 2015, our client appeared at the Cleveland, OH USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved on October 20, 2015. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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

 NATIONALITY:  Egyptian

 LOCATION: Virginia

Our client came to the U.S. on a J-1 Visa in December 2009 from Egypt.  He came to the U.S. for his research program, and his J-1 visa made him subject to the two-year foreign resident requirement. Our client would like to file an I-140 self-petition under the National Interest Waiver Category, and eventually file an Adjustment of Status (Green Card) 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 the No Objection Statement or Interest Government Agency (IGA). Our client received government funding for his research program which made his case tougher for a No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship. The argument was that our client’s U.S. citizen son is 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 extreme 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 February 12, 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. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen son’s medical condition.  On February 26, 2015, our office filed the I-612 application to the USCIS and asked them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Egypt for two years.

Eventually, the Department of State recommended a waiver for our client on October 7. 2015. Subsequently, the USCIS approved his I-612 waiver on October 14, 2015. Now that our client’s two-year foreign residency requirement is waived, he can file an I-140 NIW application along with his adjustment of status application in the United States.

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CASE: I-751

APPLICANT: Filipina

LOCATION: Cleveland, OH

Our client contacted our office in late September of 2014 regarding her I-751 application.

She is from the Philippines and married a U.S. citizen in September 2012. Through her marriage, she obtained a 2-year conditional green card in January of 2013. Our office helped her in her green card process.  Her conditional residency terminated in January 2015.

To comply with immigration requirements, our client and her wife had to file an I-751 Joint Petition to Remove Conditions. She retained our office on October 6, 2014 and our office prepared an I-751 application for our client with supporting documents.

On October 7, 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, joint lease, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

After the application was filed, a fingerprint notice was issued two weeks later. The USCIS issued a Request for Evidence (RFE) regarding the bona fideness of our client’s marriage with her husband. We filed a Response to RFE to the USCIS with more bona fide documents on March 30, 2015.

Eventually, on October 14, 2015, the USCIS approved our client’s I-751 application.

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Case: I-130/I-485

Potential Issue: Response to Notice of Intent to Deny

Client: Filipina

Location: Cleveland, Ohio

Our client entered the United States in May 2005 from the Philippines with a B-2 visitor visa.  She overstayed and married a U.S. citizen in December 2014. She retained our office on January 5, 2015 for her adjustment of status application.

Our office prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on January 16, 2015.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, our office thoroughly prepared our clients at our office for their USCIS adjustment of status interview.

On April 13, 2015, our client and her husband appeared at the Cleveland, Ohio USCIS office for her adjustment interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client and her husband at their interview. The interview was extensive and at the end of the interview, the officer claimed that he was suspicious regarding the bona fideness of our client’s marriage.

On August 21, 2015, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary was not bona fide.  Moreover, the NOID pointed out that the submitted documentation of Petitioner and Beneficiary does not establish a bona fide marriage.

In response to the USCIS’s NOID, our office included multiple supporting documents including, joint bank account statements, a joint car purchase agreement, joint utility bills, joint insurance, and several pictures of our client and his wife in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on September 16, 2015, we filed the Response to NOID prior to the 30-day deadline.

Finally, on October 9, 2015, the USCIS approved our client’s case. Both the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.

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CASE: I-140 (EB-3 Category) / Schedule A

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. He came to the United States and is currently studying here on an F-1 visa.  His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140) as a registered nurse.

Since he is a registered nurse, he 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.

Our client has a nursing degree. Our firm told him that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on March 12, 2015 and started on his Prevailing Wage Request.

We filed the I-140 application on June 3, 2015 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. Without any Request for Evidence (RFE), on October 7, 2015, the I-140 was approved. Now, our client can file an I-485 adjustment of status application based on the approved I-140 petition when the priority date becomes current.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay expired, she remained in the United States.

In March 2014, 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 August 29, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California 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 in San Francisco for further authentication.  On November 4, 2014, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  The Waiver Review Committee then forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On March 9, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on April 6, 2015, the USCIS issued an I-612 approval notice.

After her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 19, 2014.  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 October 7, 2015, our client was interviewed at the Santa Clara, California USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

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