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

CLIENT: Indian Plant Biotechnologist

LOCATION: Raleigh, NC

Our client contacted us in March 2014 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally well-known plant biotechnologist and is currently working as a researcher in Raleigh, NC.  The National Interest Waiver option would have been the best chance of approval, because EB-11s are ALWAYS tough. But as an Indian, EB2s are not current, and EB-11s are. So he gave the EB-11 route a chance.

Our client has written numerous internationally recognized scholarly articles in his field of endeavor. 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 the INA Section 203(b) states, in pertinent part, that:

• 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 mets 3 of the 10 categories. Our client has made an original scientific contribution to the plant genetic engineering and plant biology field; has authorship of scholarly articles in his professional field of endeavor; and has participated as a judge of the work of others in the same or an allied field of specialization for which classification is sought.

Our office prepared a 24-page brief for our client’s EB-11 filing. Our client also obtained 11 letters of recommendation from internationally well-known scholars in his field of endeavor. Our office also included his record of publications, citations, conference proceedings and invited talks, journal reviewer invitation evidence and other materials to show that he is an alien of extraordinary ability in plant engineering research. His EB-11 I-140 application contained 52 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Texas Service Center via regular processing on July 30, 2014.

However, on April 13, 2015, the USCIS issued the Request for Evidence (RFE). In the RFE, the USCIS claims 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 mets 3 of the 10 categories and provided more letters of recommendations, citation records, and his recent research records.  Our office filed the response to RFE on June 18, 2015.  Eventually, on September 15, 2015, the USCIS Texas Service Center approved his I-140 self-petition.

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CASE: Termination of Removal Proceedings Based on Approved I-130 Petition

CLIENT: Kenyan

LOCATION OF COURT: Atlanta, GA

LOCATION OF CLIENT: Alabama

Our client is from Kenya who came to the U.S. on a F-1 Student Visa in June 2001. However, she failed to maintain her F-1 status after that.  She was thereafter placed in removal proceedings in Atlanta, Georgia.

Our client married her U.S. citizen husband in May 2013 in Alabama. Her husband filed an I-130 petition on her behalf after they got married. Eventually, our client’s I-130 petition was approved in February 2015. She could not apply for adjustment of status by herself with the CIS, since her removal proceeding is still pending.

She contacted our office around May 2015 to seek legal assistance. She retained our office on June 4, 2015.

After our office was retained, we prepared and filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents to the Atlanta ICE-DHS office. In less than a month, the DHS counsel in Atlanta agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on October 1, 2015. Now, she can file her I-485 adjustment of status application with the CIS.

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CASE: I-485 Based on Approved I-140 / National Interest Waiver

CLIENT: Honduran

LOCATION: Washington, D.C.

Our client contacted us in 2014 about the possibility of doing a National Interest Waiver. He is a researcher in the field of agriculture and geography research, and is currently working as a Research Analyst / Geospatial Analyst at one of the International NGOs in Washington, D.C.

His significant contributions have placed him at the pinnacle of the field of agriculture and geography research; specifically, advancement in finding policy solutions for food and nutrition security in developing areas domestically and developing countries through the application of geographical analysis tools and approaches. Throughout his research career, our client has provided innovative solutions for determining measurable geographical features that relates to different levels of West Nile virus transmission and vector abundance. Although our client does not have a Ph. D. degree (He has Master’s Degree), our client’s work were highly evaluated by the reviewers of various journals and by colleagues and experts in his field of endeavor.

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 22-page brief for our client’s NIW filing. Our client also obtained 9 letters of recommendation from his colleagues and internationally-recognized researchers in his field. 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 36 exhibits (Exhibit A to JJ).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on June 16, 2014. On May 6, 2015, the USCIS approved his I-140 petition without any Requests for Evidence.

Once the I-140 petition was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on June 22, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on October 1, 2015, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Texas

Our client came to the United States from Mexico in December 2003 without inspection and admission. She married her U.S. citizen husband in 2007. With our firm’s legal assistance, her U.S. Citizen husband filed an I-130 petition for her on January 13, 2014. This I-130 petition was approved on August 12, 2014.

However, our client cannot file for adjustment of status application due to her ground of inadmissibility (entry without inspection and admission). She cannot also apply for an immigrant visa at once and get it – she has a bar. She 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 wasn’t easy, as the US Citizen husband did not have major medical issues. He had a history of depression though, plus their (the son is not a qualifying relative for the waiver, but we argued it’s a big factor for the husband’s hardship) suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included affidavits and medical records.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.

In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in Mexico, and that her U.S. citizen child and her husband will face extreme emotional difficulties if she is removed.

On May 18, 2015, we filed the I-601A waiver application which included the brief in support, her husband’s extensive medical examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

However, on August 17, 2015, the USCIS issued Request for Evidence (RFE) for our client’s case. USCIS explicitly requested our client to submit more evidence to prove extreme hardship to her U.S. citizen husband if she is forced to relocate in Mexico. In response to this RFE, our office prepared a response brief along with more. Our office filed the response to RFE on September 16, 2015.

Eventually, her I-601A waiver was approved on September 25, 2015. Now, she can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get her immigrant visa.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY:  Kenyan

LOCATION: Maryland

Our client came to the U.S. on a J-1 Visa in August 2004 from Kenya.  She came to the U.S. for her study, and her J-1 visa made her subject to the two-year foreign resident requirement. After her J-1 status expired, she has remained in the United States. She married her U.S. citizen husband in 2006.  Our client’s husband intended to do an I-130 petition for her and our client wanted to file an adjustment of status application. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

Our client could not pursue her waiver under the No Objection Statement or Interested Government Agency (IGA) routes. Our client, though, would like to pursue her J-1 waiver based on the exceptional hardship standard. Our client’s U.S. citizen son had some 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 July 23, 2014 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 of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen son’s medical condition.  On October 15, 2014, our office filed an I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needed to go back to Kenya for two years.

Eventually, the Department of State recommended a waiver for our client on January 14, 2015. Subsequently, the USCIS approved her I-612 waiver on January 26, 2015. Once the J-1 waiver was issued, our client retained our office again on February 5, 2015 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 27, 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 via conference calls. On September 24, 2015, our client was interviewed at the Baltimore, Maryland USCIS office. Eventually, on September 30, 2015, her green card was approved.

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

NATIONALITY: Vietnamese

LOCATION: Michigan

Our client is a citizen of Vietnam who initially came to the U.S. on a J-2 Visa in January 2012. She came with her ex-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.  Our client has a U.S. citizen fiancé who was willing to file an I-130 for our client after their marriage, but our client will not be able to file an adjustment of status application without the waiver of the two-year foreign residency requirement.

She contacted our office, and our firm was retained for her J-2 waiver.  On July 22, 2015 the J-2 Waiver 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 August 21, 2015, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On September 24, 2015, the USCIS issued the I-612 waiver approval.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipina

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. She is still in the Philippines and her prospective employer was willing to petition her for a third-preference employment immigrant visa petition (I-140).

Since she is a registered nurse, she 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 and has a registered nursing license in the state of Texas. Our firm told her that her prospective employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 6, 2015 and started on her Prevailing Wage Request.

We filed the I-140 application on August 25, 2015 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  However, on September 9, 2015, the USCIS Texas Service Center issued the Request for Evidence (RFE). According to the RFE, the USCIS requested our client to submit her degree evaluation report. Our office filed the Response to RFE with our client’s degree evaluation report on September 15, 2015. Eventually, on September 24, 2015, the I-140 was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Ghanaian

LOCATION: Columbus, Ohio

Our client came to the United States from Ghana on a B-2 Visitor’s visa in December 2005. After his authorization of stay period expired, he remained in the United States.  He married a U.S. Citizen in February 2014 and retained our office on April 1, 2015 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 10, 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 via conference calls. On September 1, 2015, our client was interviewed at the , Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on September 21, 2015, his green card application was approved.

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

NATIONALITY: Korean

LOCATION: Wilmington, DE

Our client is from South Korea who came to the U.S. on a J-1 Visa in February 2015.  He came to the U.S as a visiting scholar, but his J-1 program made him subject to the two-year foreign residency requirement.  He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status.  Before we can file his I-140/I-485 application simultaneously, he has to get a waiver of his two-year foreign residency requirement first.

Once retained, our office prepared and filed 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’s Office in New York 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 the 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.

On July 6, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent 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 NIW.

The Korean Consulate General in Chicago 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 September 3, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on September 16, 2015, the USCIS issued an I-612 approval notice and waived our client’s 2 year foreign residency requirement.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Pakistani

LOCATION: Cleveland, Ohio

Our client contacted us in December 2014 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from Pakistan and obtained her green card in January 2011. She retained our office on December 16, 2014.

The N-400 application was filed on January 30, 2015 with all supporting documents. Prior to her citizenship interview, our office prepared her at our office. On September 14, 2015, our client appeared at the Cleveland, OH USCIS office for her naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. Our client answered all questions correctly and passed her naturalization and citizenship interview. Eventually, her application was approved on September 17, 2015. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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