CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in New Jersey.  They contacted our office in early July of this year to seek legal assistance for possible H-1B petitions for a prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Mechanical Engineering in India.  The proffered position for the Beneficiary was a Systems Analyst which we argued qualifies as a specialty occupation. The beneficiary had an H-1B before and he started to work for his previous employer in 2007, but his employment was terminated though in August 2007 when he left for India 3 weeks from the initial H-1B date. His previous H-1B was valid until April 10, 2010 so our office argued that his unused H-1b time can be recaptured and his H-1B petition can be under a change of employer basis which means no cap limitation.

Upon retention, our office prepared and eventually filed the H-1B change of employer petition with various supporting documents on July 10, 2014 via regular processing. However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on September 15, 2014, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on October 17, 2014.  Eventually, our client’s H-1B application was approved on November 10, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner.

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CASE: Marriage-Based Petition and Adjustment of Status

CLIENT: Filipino

LOCATION: Houston, TX

Our Filipino client came to the United States on a H-4 visa in May 2004. Later, he changed his status to H-1B. He married his U.S. citizen wife in September 2013 when his spouse was a Lawful Permanent Resident. She became a naturalized U.S. Citizen in June 2014. Once she was naturalized, our client retained our office on August 4, 2014 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on August 22, 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 via conference calls. On November 12, 2014, our client was interviewed at the Houston, TX USCIS. On the same day, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Pakistani

LOCATION: New York, NY

Our Pakistani client came to the United States on a B-2 visitor visa in May 2014. He married his U.S. citizen wife in December 2011 in Pakistan when his spouse was a Lawful Permanent Resident. She became a naturalized U.S. Citizen in June 2014. Once she was naturalized, our client retained our office on June 9, 2014 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on June 18, 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 via conference calls. On November 7, 2014, our client was interviewed at the New York City USCIS. On the same day, his green card application was approved.

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

CLIENT: Indonesian
LOCATION: Boston, MA

Our client is from Indonesia who came to the U.S. on a B-2 visitor’s visa in March 2004. After she entered to the United States, she has remained in the United States even after her authorized stay expired.

Later, she filed for asylum and withholding of removal in April 2006, but the Immigration Judge in San Francisco, CA denied all applications for relief. She filed an appeal to the BIA, but in June 2007, the Board affirmed the Immigration Judge’s findings and dismissed the appeal. She then proceeded to appeal her case in Federal Circuit Court, was denied, and she even filed a Motion to Reopen which was denied in January 2013.

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

She then married her current U.S. citizen husband in August 2012. Her husband filed an I-130 petition in November 2012, which was subsequently approved by the USCIS in November 2013.

Our client and her husband were wondering whether she has any viable option for her immigration status.  After careful review, our office determined that we can file a Request to Joint in a Motion to Reopen based on the I-130 approval and Bo Cooper’s May 17, 2001 Memorandum. Our client retained our office on December 4, 2013.

Once retained, our office prepared and filed a Request to Join in a Motion to Reopen and Terminate to the San Francisco DHS office on February 21, 2014. Our office prepared an extensive brief along with several 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 2004, has no criminal record, and has an approved I-130 petition based on the marriage to U.S citizen spouse.

As a result, the DHS office agreed to join in our Motion to Reopen and Terminate on April 21, 2014. The DHS filed the joint motion to the San Francisco Immigration Court, and our client case was reopened and terminated by the San Francisco Immigration Court on July 8, 2014.

Once 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 application on July 22, 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 client via conference call. On November 3, 2014, our client was interviewed at the Boston, MA USCIS.  The interview went well, and on the same day, her green card application was approved.

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CASE:   I-601 Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: I-130 petitioner is in Pittsburgh, PA and I-601 beneficiary is in Juarez, Mexico

Our client came to the United States from Mexico in February 2002 without inspection and admission. Later, he married his U.S. citizen wife in April 2012. In July 2012, his U.S. Citizen wife filed an I-130 petition for him and his biological children (Petitioner’s step-children) who were residing in Mexico. These I-130 petitions were approved on March 7, 2013. At the time of I-130 petition filing, they did not receive legal assistance from lawyers. Therefore, our client went back to Mexico to appear at his immigrant visa interview despite the fact that he had entry bar because of his unlawful presence and illegal entry to the U.S.

In February 2014, our client and his two children had an interview at the U.S. Consulate Office in Mexico. The step-children’s immigrant visas were approved. However, for our client, he was asked to file a 601 waiver of inadmissibility, due to his illegal entry in 2002 and illegal stay in the United States.  To get legal assistance for this I-601 waiver for our client, our client’s wife contacted our office in February and retained our office on February 27, 2014.

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

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 type of 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-601 application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of financial, medical, and psychological hardships. In the I-601 brief and supporting documents, our office included extensive documentation to support her hardship. 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 hardships and she would not be able to take care of her own needs and the bulk of their family chores. Also, it would be extremely difficult for her to get the financial ability 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, that our client has good employment in the United States, and that his U.S. citizen wife will face extreme financial and emotional difficulties if he cannot come back to the United States.

On April 16, 2014, we filed the I-601 waiver application which included a brief in support and supporting documents that demonstrated hardship to his wife if our client is not able to come back to the United States.  However, on August 11, 2014, the USCIS issued a Request for Evidence (RFE) to our client and requested more supplemental documents to demonstrate the hardship that our client’s US citizen wife will face if he is barred to come back to the United States.  In response to the RFE, our office prepared a detailed Response to RFE brief along with our client’s affidavit and other documents to show his wife’s hardships. Our office filed the Response to RFE to the USCIS on October 20, 2014.

Eventually, his I-601 waiver was approved on October 25, 2014.

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CASE: PERM Labor Certification

EMPLOYER: Consulting Company

BENEFICIARY: Chinese Financial Analyst

LOCATION: New York, NY

Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.

After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 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 be filed at least 60 days from the job posting date or 30 days from the last ad.

Within a week from our retention, the prevailing wage request was filed.  On June 13, 2014, we filed the PERM labor certification application.  Eventually, on October 31, 2014, exactly four months from filing, the PERM labor certification was approved – an EB3 position for the Chinese Financial Analyst. Now our client can file an I-140 Petition.

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CASE: Asylum in Immigration Court

CLIENT: Syrian

LOCATION: Cleveland Immigration Court

Our Syrian clients (husband and wife) came to the United States in August 2012. They are Christians who have lived in Syria, and they came to the United States since they were in fear in Syria.

With help from their previous attorney, our clients filed their I-589 asylum application to the USCIS in November 2012.  Our client was threatened and was in danger in Syria based on his religion. However, after the USCIS asylum interview, their asylum cases were referred to the Cleveland Immigration Court.  A Notice to Appear was issued and our clients were placed in removal proceedings. After they got the Notice to Appear and hearing notices for their Master Calendar hearing, they contacted and retained our firm in October 2013.

Our clients were scared to go back home to Syria, fearing that they will be persecuted based on their religion. While our clients were in Syria, our clients’ family members were kidnapped. Our client also received some threats.

We supplemented the asylum applications represented them in immigration court hearings. We also asked them to provide supporting documents corroborating their claim, some of which were a letter from their family members, colleagues and friends in Syria and in the United States.  Our firm also did some research on articles related to their claims, and the type of persecution they will experience in Syria if sent back.

Our clients’ individual hearing was scheduled on October 27, 2014 at the Cleveland Immigration Court. Attorney Sung Hee Yu from our firm prepared them extensively twice. He also represented our clients at their Individual Hearing.

During the hearing, our clients testified credibly as to their past persecution in Syria and likelihood of future persecution. After the hearing, the Immigration Judge granted asylum relief for our clients. They are now asylees who will get their work permits in two weeks and will be eligible to apply for permanent residency in one year.

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CASE: H-1B Change of Employer

PETITIONER: Software Development and IT Staffing Company

BENEFICIARY: Indian Computer Systems Analyst

LOCATION: Jacksonville, FL

Our client is a fast growing software developing and IT consulting company located in Jacksonville, FL. They contacted our office in September 2014 to seek assistance from our office for their foreign employee. The beneficiary is from India and he obtained his Master of Science degree in Computer Information Systems.  The proffered position for the Beneficiary is a Computer Systems Analyst which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had his H-1B from his previous employer which was in a similar industry.  His H-1B status was not yet expired, and he wanted to extend his H-1B status on a change of employer basis.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on October 6, 2014 via regular processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  Thus, we could file it even after the quotas are gone.  Later, our client wished to upgrade his case to premium processing services by submitting Form I-907 and paying $1225 to the USCIS. We made an upgrade request on October 17, 2014. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on October 30, 2014.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for the next three years.

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

 NATIONALITY: Thai

 LOCATION: Ohio

Our Thai client came to the U.S. on a J-1 Visa in August 2008.  She came to the U.S. for research training, and her J-1 visa made her subject to the two-year foreign resident requirement.

In February 2014, our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Thai Embassy in the United States.  On April 15, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request with supporting documents to the Thai Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Thai Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 10, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on October 27, 2014.  Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband’s I-130 petition.

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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 July 2003 without inspection and admission. When he made his entry to the U.S., he was only 16 year old.

He married his U.S. citizen wife in 2011 and they have a U.S. citizen child together. Through our office’s assistance, his U.S. Citizen wife filed an I-130 petition for him on July 19, 2013. This I-130 petition was approved on January 15, 2014.

However, 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.

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

Last year, 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. Also, his U.S. citizen son has medical hardships as well (can’t me the qualifying relative, but still an argument that could be imputed to his US Citizen wife).

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 husband 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 young 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, 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 August 14, 2014, we filed the I-601A waiver application which included a 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 October 22, 2014. 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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