CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: Akron, Ohio

Our client came to the United States in April 2013 with a B-2 Visitor’s Visa from China. She married a U.S. Citizen in October 2013.  Our client retained our office for her I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on October 16, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office. On January 9, 2014, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  On January 13, 2014, her green card application

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CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came to the United States from China and he is currently pursuing his Master’s degree in Cleveland Ohio on an F-1 student visa. He married his current wife, who is a green card holder, in August 2013.

Our client retained our office on August 20, 2013 for his I-130 petition and I-485 adjustment of status application. Although the Petitioner is a green card holder, we could file the I-130 / I-485 simultaneously because the priority date for F2A category was current in August and September 2013. Our office prepared and filed an I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on September 3, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. The priority date of our client was September 6, 2013.

Prior to the interview, we thoroughly prepared our clients at our office. On January 2, 2014, our client was interviewed at the Cleveland, OH USCIS office. Our attorney Sung Hee (Glen) Yu accompanied them at their interview as well. The interview went well, and the priority date for our client was current at the time of the interview as well. Eventually on January 8, 2014, his green card application was approved.

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CASE: Marriage Based Green Card

CLIENT: Thai

LOCATION: Cleveland, Ohio

Our client married his current U.S. citizen husband in May 2013 in Thailand. After that, his U.S. citizen husband filed an I-130 petition in Thailand. However, while it was pending, our client’s US Citizen husband had to come back to the United States for his employment.

Though the I-130 was pending, our client (beneficiary of the I-130) came to the United States in June 2013 with a B-2 Visitor’s Visa. Consular processing was their intent, however, while they were staying in the United States, our client and her husband changed their mind and wanted to pursue our client’s adjustment of status process in the United States. The tricky factor in their case was that there was already an I-130 pending, and yet she came to the United States on a non-immigrant visa. It was thus very important to prove non-immigrant intent despite the background of their case.

Our client contacted our office and retained us on September 4, 2013. We decided to re-file the I-130 here in the United States, file it together with an adjustment of status application, and explain RIGHT AT THE FILING STAGE (instead of waiting for the interview) that our client did not have any immigrant intent on her recent entry, despite the pending I-130 petition.

Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents including documents and an affidavit which demonstrated that she had an intention to return to Thailand when she came to the U.S. in June 2013.

We filed the applications on October 17, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office, especially on any possible “immigrant intent” issue. This was very important, as a denial on those grounds would not simply be a denial, but would add a possible requirement for a hardship waiver should a re-file be done. It they deny it, it’s as if our client would’ve been better off, sans the expensive cost of going back, pursuing consular processing.

On January 10, 2014, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  The interview went well, and Attorney Yu explained that our client did not have any immigrant intent at the time of her most recent entry to the United States. On the same day, her green card application was approved.

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CASE: Marriage-Based Green Card (Same Sex Marriage Case / LGBT / DOMA)

CLIENT: Australian

LOCATION: Cleveland, Ohio

Our client came to the United States in May 2005 with a B-2 Visitor’s Visa from Australia. Later that year, he changed his status from B-2 to F-1 to pursue his degree in the United States. He has maintained his status in the United States as an F-1 student after that. Since 2005, our client and his current U.S. citizen spouse were in a relationship.

On June 26, 2013, the U.S. Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment. United States v. Windsor, 570 U.S. ___ (2013). After the Windsor decision, the USCIS implemented a new policy that the USCIS officer must review immigration via petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. As long as a same-sex couple is married in a U.S. state that recognizes same-sex marriage, their marriage shall be considered a valid marriage under the immigration law.

After DOMA was struck down, our client and his current U.S. citizen spouse, decided to get married. They married in New York in July 2013 where same-sex marriages are recognized.

Our client contacted our office and retained us on August 5, 2013 for his I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on August 12, 2013. 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 at our office. On January 2, 2014, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  Eventually, on January 8, 2014, his green card application was approved.

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CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, Filipino

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is a Nurse Manager. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent. We emphasized that Nurse Manager position is clearly different from a registered nurse because Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on September 9, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  We also included a detailed statement regarding the number of registered nurses that the Beneficiary will supervise. Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 30, 2013. Eventually, our client’s H-1B application was approved on January 8, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 12, 2016 as a Nurse Manager.

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CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: MDS Coordinator, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on August 30, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in a lengthy response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 31, 2013. Eventually, our client’s H-1B application was approved on January 6, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 14, 2016 as a MDS Coordinator.

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CASE: BIA Motion to Reopen and Termination of Removal Proceedings with an Approved I-130 Petition

CLIENT: Peruvian
LOCATION: Cleveland, OH

Our client is from Peru who came to the U.S. on a B-2 visitor’s visa in July 2002 with his family. When he came to the United States, he was a only a minor.

Later, his father filed for asylum and withholding of removal, but the Immigration Judge in Cleveland denied all applications for relief in February 2010. Accordingly, our client’s asylum relief (our client was a derivate applicant of his father’s asylum application) was denied as well.

His father filed an appeal to the BIA, but in May 2012, the Board affirmed the Immigration Judge’s findings and dismissed the appeal. Unfortunately, our client’s father was deported soon after the BIA appeal was dismissed.

Our client remained in the United States despite the final order of removal. He was under order of supervision. He married his current U.S. citizen wife in September 2012, and he inquired on whether he has any viable option for his immigration status.  After careful review, our office determined that we can file a Request to Join 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 September 11, 2012.

Once retained, our client’s wife filed the I-130 petition for our client on September 18, 2012. Our office prepared and filed the petition. The I-130 interview was scheduled and prior to the interview, we thoroughly prepared our clients at our office. On March 5, 2013, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied them as well. Eventually, on April 17, 2013, the I-130 petition was approved.

While the I-130 was pending, our office also filed Request to Join in a Motion to Reopen and Terminate to the Cleveland DHS office on October 1, 2012. Our office prepared an extensive brief along with multiple 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, he will be prima facie eligible to adjust his status. Our client has been living in the United States since 2002, has no criminal record, was a minor at the time of the entry to the U.S., and has an approved I-130 petition.

As a result, the DHS office agreed to join in our Motion to Reopen and Terminate. The DHS filed the joint motion to the BIA in September 2013. Finally, the BIA ordered our client’s case to be reopened and terminated our client’s case on November 26, 2013. Now, he can file an I-485 adjustment of status application to the USCIS for his permanent residency.

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CASE: H-1B Visa Petition

PETITIONER: Research Foundation in Washington, D.C.

BENEFICIARY: French Staff Accountant

ISSUES: Cap-Exempt, Research Organization

Our client is one of the leading research associations for the advancement, health, and sustainability of student affairs and education in the United States. Its National Headquarter in D.C. contacted our office in early December 2013 to seek legal assistance from our office for their foreign employee. The beneficiary is a Staff Accountant for this organization who has been working for Petitioner under the OPT program.

The beneficiary is a citizen of France, and has a Bachelor’s degree from the United States. The proffered position for the Beneficiary is a Staff Accountant. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Accounting or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2014 was already reached. However, we believed our client is qualified for cap-exempt petitions since it is arguable that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Under the provisions of INA Section 214(g)(5), “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

The June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Thus, our office argued that our client-company is qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

After retention, our office filed the H-1B visa petition with various supporting documents on December 27, 2013 via premium processing. This included an extensive brief arguing that our client was cap-exempt. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on January 3, 2014.  He can now work for his employer for three years on an H-1B status, and he did not have to wait for April 1 for the petition filing, nor October 1 to start working.

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CASE: Dependency Hearing at Juvenile Court

CLIENT: Guatemalan

LOCATION: Cleveland, OH

Our client came to the United States in September 2012 from Guatemala. He came to the United States without the inspection and admission and was caught at the border. After that the DHS released him, but he was placed in removal proceedings. He came to Cleveland, OH to be reunited with his older brother who resides in the Cleveland area.

He retained our office in April 2013 for representation at his deportation proceedings. On June 4, 2013, our client appeared at the Cleveland Immigration Court for his master calendar hearing. Attorney Yu from our office represented him, did pleadings and sought asylum relief. After the hearing, our office also sought other options for our client since he was a minor.

Section 203(b)(4) of the INA allocates a percentage of immigrant visas to individuals considered “special immigrants” under section 101(a)(27) of the INA, including those aliens classified as special immigrant juveniles under Section 101(a)(27)(J). “Special Immigrant Juvenile” includes only those juveniles deemed eligible for long-term foster care based on abuse, neglect, or abandonment.  To be eligible as a SIJ, the DHS’ express consent to the juvenile court’s dependency order is required. Then, the approved SIJ petition (Form I-360) makes a minor petitioner immediately eligible to adjust status by filing an adjustment of status application.

Our client was 17 years old when he contacted our office. In fact, our client was not supported by his parents and had to work in farms to support himself since he was 8 years old in Guatemala. Our client’s sister-in-law, who is a U.S. citizen and lives with our client, would like to be a legal guardian of our client. With our help, she filed a complaint for him to be deemed a neglected child to Cuyahoga County Juvenile Court on October 10, 2013.

The Juvenile court hearing was scheduled on November 26, 2013. Attorney JP Sarmiento represented our client and his sister-in-law at the hearing. Eventually, on the same day, the court found that our client is neglected and dependent and our client’s sister-in-law was appointed legal guardian.

After that, our office filed the I-360 application on December 2, 2013 to the USCIS. The application was supported by a court order declaring dependency by the juvenile court, court order deeming the juvenile eligible for long-term foster care due to abuse, neglect, or abandonment, determination from the juvenile court that it is in our client’s interest not to be returned to Guatemala, and his birth certificate.

Our client’s I-360 interview is scheduled for January 10, 2014 at the Cleveland USCIS Field Office. If the USCIS grants his I-360 application, our office can terminate his proceedings with the Immigration Court. Once it is terminated, our client can file his adjustment of status application.

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CASE: H-1B Visa Petition (Change of Employer)

PETITIONER:  Environmental Engineering Consulting Firm

BENEFICIARY: Principal Consulting Environmental / Water Engineer

Our client is an Environmental Engineering Consulting Company in Fairfax, VA. They contacted our office in late November 2013 to seek legal assistance from our office for their foreign employee.  The beneficiary is from India and obtained his Bachelor’s degree and Master’s Degree in Civil / Environmental Engineering from Stanford.

The proffered position for the Beneficiary is a Principal Consulting Environmental / Water Engineer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Civil / Environmental Engineering or its equivalent.

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

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on December 12, 2013 via premium processing service.  Since this petition was based on a change of employer, this petition was exempted from the annual H-1B cap.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on December 27, 2013.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder.

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