CASE: H-1B Extension
PETITIONER:  Engineering Company
BENEFICIARY: Taiwanese Radio Frequency / Electrical Engineer

Our client is an engineering company that specializes in RFID (Radio Frequency Identification Technology) solutions.  Our client’s office is located near Columbus, Ohio.  They contacted our office in mid-June to seek legal assistance from our office for their foreign employee’s H-1B Extension.  The beneficiary obtained his Bachelor’s degree in Electrical Engineering in Taiwan and completed his Master’s program in the United States. The proffered position for the Beneficiary is a radio frequency / electrical engineer which we argued qualifies as a specialty occupation.  He has been working for the Petitioner for the last three years on a valid H-1B visa.

After retention, our office filed the H-1B visa petition with various supporting documents on July 8, 2014 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on August 28, 2014. Now the Beneficiary can continue for the Petitioner on an H-1B status until September 28, 2017.

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CASE: I-485 based on Approved I-140 (EB-2)

APPLICANT: Indian

 LOCATION: Cleveland, OH

Our client is a Senior Oracle Applications Developer from India, who is currently working at a large chemical company who was willing to petition him for a second-preference petition (I-140).  He has maintained his status as an H-1B visa holder in the United States.  He had an approved I-140 petition which was filed by his current employer and this I-140 petition’s priority date was November 19, 2008.

In February 2012, his priority date became current. He contacted our office and retained us for his and his wife’s I-485 adjustment of status applications. Our office filed I-485 adjustment of status applications for our client on February 17, 2012. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, the EB-2 for Indian Nationals retrogressed.

Eventually, in August 2014, his priority date became current. On August 25, 2014, the USCIS Nebraska Service Center approved our client and his wife’s adjustment of status applications. They are now green card holders.

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CASE: H-1B Change of Employer

PETITIONER: Architectural Design Company

BENEFICIARY: Turkish Architect

LOCATION: New York, NY

Our client is an architectural design firm headquartered in New York City. They contacted our office in May 2014 to seek assistance from our office for their foreign employee. The beneficiary is from Turkey and he obtained his Bachelor’s and Master’s degree in architecture. The proffered position for the Beneficiary is an architect 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 May 20, 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.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on August 25, 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: H-1B Visa Petition

PETITIONER: IT Consulting Company in New Jersey

BENEFICIARY: Indian Systems Analyst in Japan

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

The beneficiary obtained his Bachelor’s degree in Electronic Engineering in India. The beneficiary is currently working in Japan. The proffered position for the Beneficiary is a Systems Analyst which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing. This H-1B petition was selected after the lottery.

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 June 30, 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 August 6, 2014.  Eventually, our client’s H-1B application was approved on August 25, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in Tokyo, Japan, and upon the issuance of visa, he can work for the Petitioner from October 1, 2014 for three years.

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

NATIONALITY: Vietnamese

LOCATION: Houston, Texas

Our client is a citizen of Vietnam who initially came to the U.S. on a J-2 Visa in December 2011. He came with his ex-wife who held a J-1 Visa as a visiting researcher. Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and he eventually got divorced from his ex-wife. In June 2014, our client married his current U.S. citizen wife. She is willing to file an I-130 for our client, but our client cannot file an adjustment of status application without a waiver of the two-year foreign residency requirement.

He contacted our office, and our firm was retained for his J-2 waiver.  On June 18, 2014 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 July 30, 2014, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client to be granted a waiver. On August 25, 2014, the USCIS issued the I-612 waiver approval.

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CASE: J-1 Waiver (No Objection Statement)
NATIONALITY: Philippines
LOCATION: New Mexico

Our client came from the Philippines on a J-1 in July 2011 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement.

In June 2013, 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 March 19, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New Mexico State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in Los Angeles for further authentication.  On May 1, 2014, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On July 21, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on August 19, 2014, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: I-485 (National Interest Waiver)

CLIENT: Taiwanese

LOCATION: Columbus, OH

Our client contacted us about the possibility of doing a National Interest Waiver about a year ago. He is a post-doctorate researcher and scientist in the field of Bionanotechnology and polymer science, and is currently working as a post-doctorate researcher in an academic institution in Columbus, Ohio.

His significant contributions have placed him at the pinnacle of the field of bionanotechnology, biomedical engineering, polymer processing, thermo-fluid science, numerical simulation, and micro/nano technology. He is a leading scientist with an excellent reputation in the development of cell electroporation in micro/nanofluidic systems. He used the nanochannel to carry out electroporation. Our client also does research on DNA stretching dynamics in a modified molecular combining process.

Upon review of his credentials and qualifications, our office determined that he may be 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 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 23-page brief for our client’s NIW filing. Our client also obtained 9 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, 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 OO).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on March 10, 2014 along with his adjustment of status (I-485) application since EB-2 priority dates for Taiwanese nationals were current. On July 17, 2014, the USCIS approved his I-140 petition without any Requests for Evidence.

When we filed our client’s I-140 (NIW) application, we concurrently filed I-485 adjustment of status applications for our client and his wife. Everything went smoothly and the receipt notices and fingerprint appointment came on time. While our client was waiting for the adjudication of his I-140, our client received his work and travel permit from the USCIS.

Eventually, on August 20, 2014, the USCIS Nebraska Service Center approved our client and his wife’s adjustment of status application. Our client and his wife are now green card holders.

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CASE: Velarde Hearing in Immigration Court

CLIENT: Nigerian

LOCATION: New Orleans Immigration Court

Our Nigerian client came to the United States in August 2011 with a valid F-1 student visa to study in a college. However, he did not maintain status and was placed in removal proceedings in July 2012. After he got a Notice to Appear, he appeared at his initial master calendar hearing at the New Orleans Immigration Court without an attorney.

In May, he contacted our office and asked us whether we can take his case. He was married to a US Citizen, but he also had two previous marriages and divorces, also to US Citizens. We told him an I-130 can be filed, but that we need bona fides from his first two marriages also. We explained that the strength of his wife’s I-130 for him would also depend on how he can prove that his first two marriages were in good faith.

He retained our office on May 16, 2014. He married his U.S. wife in May 2014 and our office filed the I-130 petition for our client with a bona fide marriage exemption letter and bona fide marital documents. We organized the exhibits so that bona fide evidence from his first two marriages are also shown. We filed the I-130 application to the USCIS on June 12, 2014.

On June 17, 2014, our attorney Glen Yu appeared at his master calendar hearings via telephonic appearance. Attorney Yu did pleadings for our client, requested adjustment of status relief for our client, and requested a continuance based on a pending I-130 petition. However, the DHS requested a Velarde hearing to the Court. The DHS requested this hearing to determine whether proceedings should be continued to allow USCIS to adjudicate the I-130. DHS argued that our client’s marriage to his U.S. citizen spouse is presumptively invalid under immigration purposes since he married his wife after initiation of removal proceedings.

A Velarde Hearing is a hearing to establish whether good cause exists to continue proceedings for adjudication of a pending I-130 petition. A variety of factors may be considered, including, but not limited to: (1) DHS’ response to the Motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the Respondent’s statutory eligibility for adjustment of status; (4) whether the Respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant factors. Matter of Hashimi, 24 I&N Dec. 785 (BIA 2009).

The Velarde hearing for our client was scheduled for August 18, 2014. Prior to the hearing, our office filed a brief in support and more documents to demonstrate the bona fide nature of our client’s marriage to his U.S. citizen wife.  Attorney Sung Hee Yu from our firm prepared him and his wife extensively via conference calls. He also represented our client at the Velarde Hearing at the New Orleans Immigration Court on August 18, 2014.

The hearing went well and as a result, the Court concluded that our client’s I-130 petition is prima facie approvable. The Immigration Judge granted a continuance based on the pending I-130 petition. His next master calendar hearing is scheduled for October 2015. Until then, and presumable eligible for further continuances, our client and his wife can wait for adjudication of the I-130 petition.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Cleveland, OH

Our Chinese client came to the United States on a F-1 student visa to pursue her graduate degree in 2010. She married a U.S. Citizen in February 2014 and retained our office on March 3, 2014 for her green card application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on March 26, 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 as well. On August 19, 2014, our client was interviewed at the Cleveland, Ohio USCIS office.  Attorney JP Sarmiento from our office accompanied our clients as well. On the same day, her green card application was approved.

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CASE: Adjustment of Status / 245i / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Antiguan

LOCATION: Georgia

Our Antiguan client came to the U.S. on a F-1 student visa in 1996 and later changed to H-1B. His employer did not renew his H-1B status, so he fell out of his status.

Prior to retaining our firm, his father filed an I-130 petition for him back in March 1998 (F2B Classification). The I-130 petition was approved by the INS in 1998.  However, he could not apply for his green card until his priority date became current. Unfortunately, his father (I-130 Petitioner) passed away before he was eligible to apply for his green card.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed a foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation did not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client contacted our office in 2013 and retained our office for his adjustment of status. Our client’s US citizen brother was willing to become a substitute sponsor and he met the physical presence requirement. Once retained, our office filed an I-485 adjustment of status application along with form I-485A and other supporting documents. It was filed on July 24, 2013.

On April 10, 2014, our client appeared at the Atlanta USCIS office for his adjustment interview.  Attorney Yu accompanied him at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore. Eventually, our client’s adjustment of status application was approved by the USCIS on August 14, 2014.  After a long wait, our client is finally a green card holder.

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