CASE: Motion to Remand / Reopen based on Pending I-130 Petition
CLIENT: Moldovan
LOCATION: Cleveland, OH

Our client came to the United States with a valid J-1 visa from Romania in June 2007. He remained in the United States for a time longer than permitted. Later, he was placed in deportation proceedings due to his overstay and a Notice to Appear was issued. His asylum relief was denied by the Immigration Judge in April 2012, but an appeal was timely filed.  The BIA appeal was pending when our client contacted our office in March 2014.

While the BIA appeal was pending, our client married his U.S. citizen wife in February 2013. His wife filed an I-130 petition for our client on March 7, 2013.  He contacted our office for legal assistance for a Motion to Remand and possible adjustment of status if the Motion is granted.  We explained to him that the Motion to Remand procedure and he retained our office on April 8, 2014. On April 17, 2014, we prepared and filed a Motion to Remand for Adjustment of Status Based on a Pending I-130 on behalf our client. You typically want the I-130 to be approved prior to filing the Motion to Remand, but by submitting the actual I-130 application itself and its supporting documents attached to the Motion, you can show that it is approvable.

In Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992), the BIA found that a motion to remand must conform to the same standards as a motion to reopen, where the respondent presents new evidence which would likely change the result of the case. In a Motion to Reopen before the BIA, the Applicant must show that the evidence is material, unavailable at time of original hearing, and could not have been discovered or presented at the original hearing. 8 C.F.R. § 1003.2(c)(1). In this case, adjustment of status relief was not available for our client at his previous hearing since he was not married his U.S. Citizen wife.

Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on April 17, 2014. We argued that our client will be eligible for adjustment of status once the I-130 is approved since he had a legal entry to the U.S., has no criminal records, and has no other grounds of inadmissibility. We also attached a lot of bona fide marital evidence between our client and his U.S. citizen wife to demonstrate that  the I-130 petition is approvable.

While his motion was pending before the BIA, he and his wife appeared for the I-130 interview on May 5, 2014. Prior to the interview, we thoroughly prepared our client at our office.  On the day of our client’s I-130 interview, our attorney accompanied them at the Cleveland, OH USCIS. The interview went well, and the I-130 petition was approved.

On June 6, 2014, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.

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CASE: I-751

APPLICANT: Ghanaian

LOCATION: Columbus, OH

Our client contacted our office in January of 2014 regarding his I-751 application.

He is from Ghana and he married a U.S. citizen in 2011. Through his marriage, he obtained a 2-year conditional green card in April of 2012.  His conditional residency terminated in April 2014.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions on his permanent residency. He retained our office on January 29, 2014 and our office prepared an I-751 application with bona fide marriage evidence.

On February 6, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, joint tax records, utility bills, joint lease, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

There was no RFE or interview request for our client’s I-751 application. As a result, on June 2, 2014, the USCIS approved our client’s I-751 application and our client received his 10-year green card.

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CASE: I-485 based on Approved I-140 (EB-3)

 APPLICANT: Korean

 LOCATION: Cleveland, OH

Our client is a chemist from South Korea, who is currently working at a large chemical company which was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor of Science degree and has worked for this company since she completed her undergraduate program. She has maintained her status as an H-1B visa holder in the United States.  She had an approved I-140 petition which was filed by her current employer and this I-140 petition’s priority date was August 9, 2012.

In March of this year, her priority date became current. She contacted our office and retained us for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on March 17, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 27, 2014, the USCIS Nebraska Service Center approved our client’s adjustment of status application. She is now a green card holder.

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CASE: N-400 (Citizenship / Naturalization w/ Rebuttable Presumption and Continuity of Residence Issues)
APPLICANT: Pakistan
LOCATION: New York, NY
ISSUES: Rebuttable Presumption / Continuous Residence

Our client contacted us in December 2013 to seek legal representation for her naturalization application. She came to the United States from Pakistan and obtained her green card through a family petition in 1993. She was abroad for school most of her childhood, but went to the US periodically (and was let in all the time).

She retained our office for her naturalization application on December 2, 2013.

The main issue of her naturalization case was two long, over six-month trips that she had within last five years.

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residence has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption should they wish to apply.

Our client was out of the U.S. more than 180 days twice.  During these trips, she was in Pakistan, but she could not come back to the United States earlier due to her medical condition.  Our client had a motor vehicle accident in Pakistan while she visited there.  In her most recent trip, she had to deliver her baby while she was staying there. Our client intended to have temporary trips of less than six months in those two trips. However, due to her medical condition and related health issues, she could not come back to the United States before his trip due to the advice of her doctors.

Our office drafted an extensive cover brief which explained our client’s medical conditions and argued that she is otherwise eligible for naturalization despite her two long trips to Pakistan.  We included a notarized affidavit from our client and we included our client’s medical records from Pakistan and the U.S.

The brief and his N-400 application were filed on January 9, 2014 with all necessary supporting documents. Our office prepared her for her interview through conference call. Our client appeared at her naturalization interview on May 14, 2014 at the NYC USCIS Field Office.  Our client answered all questions correctly and passed her citizenship interview. Her N-400 was approved on May 28, 2014. Her oath taking is scheduled where she will become a U.S. Citizen.

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CASE: H-1B Visa Petition

PETITIONER:  E-Commerce Merchandiser

BENEFICIARY: Korean Staff Accountant in Dallas, TX

Our client is an E-Commerce Merchandising company located in Dallas, Texas.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained her Bachelor’s degree in Business Administration / Accounting in South Korea and her Associate’s degree in the United States. The proffered position for the Beneficiary is a Staff Accountant 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 service. This H-1B petition was selected after the lottery. Our client’s H-1B application was approved on May 27, 2014.

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CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Illinois

Our Filipino client came on a J-1 visa in April 2010. He has remained in the United States ever since, even past his J-1 program. He was subject to the two-year foreign residency requirement.

He contacted our office after the Windsor (re same-sex) decision passed, and told us that he planned to get married to his U.S. citizen fiancé at that time (same-sex).

He was eligible for adjustment of status based on his marriage to U.S. citizen spouse, but he cannot adjust without a waiver of his two-year foreign residency requirement.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 31, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  Later in September 2013, our client married his U.S. citizen spouse in San Francisco, CA where same sex marriages are recognized. Then, we also sent a request to the Illinois State Government to get authentication for necessary documents.  Later, these authenticated documents and the No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in Chicago and San Francisco for further authentication. On December 12, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.

The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On May 5, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.

Eventually, on May 20, 2014, the USCIS issued an I-612 approval notice for the waiver.

Now, our client can file for his adjustment of status application along with his U.S. Citizen spouse’s I-130 petition.

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CASE: H-1B Visa Petition – Response to Request for Evidence

PETITIONER: Indian Restaurant

BENEFICIARY: Nepali

LOCATION: Ohio

ISSUE: Specialty Occupation / Degree Issues

Our client is an IT Consulting Company which is based in New Jersey. The beneficiary is from India who obtained a Bachelor’s degree in a related field.

The beneficiary had a previous H-1B so the Petitioner employer needed to file a change of employer petition for the beneficiary.  Prior to retaining our firm, the Petitioner-Employer filed an H-1B application on behalf of our client with help of their previous immigration counsel on October 21, 2013.

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 March 10, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.”

Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. 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.

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.

Our office filed a detailed Response to RFE brief with 16 exhibits to the USCIS Vermont Service Center on May 8, 2014.  Eventually, our client’s H-1B application was approved on May 20, 2014.

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CASE: H-1B Visa Petition

PETITIONER:  Beauty Supply Distributing / Retail Company

BENEFICIARY: Korean Product Safety / Quality Assurance Director

Our client is a large beauty supply material distributer / retailer in Cleveland, Ohio. They contacted our office in February of this year to seek legal assistance from our office for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Chemical Engineering in South Korea and is pursuing his Associate’s degree in Accounting in the United States.  The proffered position for the Beneficiary is a Product Safety / Quality Assurance Director. We had to argue that this qualifies as a specialty occupation. We had to show that this position is a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Chemical or Industrial Engineering or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing service. This H-1B petition was selected after the lottery and was thus processed.

Eventually, our client’s H-1B application was approved on May 16, 2014 without any Request for Evidence.  Starting October 1, 2014, he can work for his employer on an H-1B status for the next three years.

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

NATIONALITY:Kenyan

LOCATION: Houston, Texas

Our client is from Kenya who came to the U.S. on a J-1 Visa in August 2001.  After she finished her J-1 program, she remained in the United States.

In July 2010, our client married her current U.S. citizen husband. However, she could adjust her status unless she got a waiver of the 2-year foreign residency program.

Our firm was retained an on January 21, 2014, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on her marriage to a U.S. citizen spouse.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On April 21, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On May 14, 2014, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can file an I-485 adjustment of status application along with her husband’s I-130 petition.

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CASE: H-1B Visa Petition
PETITIONER:  Surface Treatment Solutions Manufacturer
BENEFICIARY: Chinese Operations Research Analyst

Our client is one of the world’s largest surface treatment solutions manufacturing companies in the world. Located in Cleveland Ohio, they contacted our office in March of this year to seek legal assistance from our office for their foreign employee.

The beneficiary obtained her Bachelor’s degree in Management in China and her Master’s degree in Management with specialization in Operations Research and Supply Chain Management in the United States.

The proffered position for the Beneficiary is an operations research analyst which qualifies as a specialty occupation.  This position is a “specialty occupation” because the minimum requirements for this position are a Master’s Degree (even higher than a Bachelor’s degree) in Management or its equivalent.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing service. This H-1B petition was selected after the lottery and was thus processed.

Eventually, our client’s H-1B application was approved on May 13, 2014 without any Request for Evidence.  Starting October 1, 2014, she can work for her employer on an H-1B status for the next three years.

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