CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Burmese / Myanmar
LOCATION: Ohio

Our client contacted us in May 2013 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from Myanmar and obtained his green card in May 2006. He retained our office for his naturalization and citizenship N-400 application on May 21, 2013. He was concerned about his petty theft conviction and arrest for alleged “cheating” in his driver’s license application.

The naturalization and citizenship N-400 application was filed on June 20, 2013 with all supporting documents. Our office prepared him before his naturalization interview, and also accompanied him on September 3, 2013 at the Cleveland CIS office. Our client passed his naturalization and citizenship N-400 interview. However, his N-400 case remained pending due to his former criminal convictions. The USCIS officer asked our client to submit a certified copy of his criminal record and appear at a second interview.

On November 4, 2013, our client appeared at his second N-400 interview at the Cleveland USCIS Field Office with the certified record. Our attorney accompanied him as well. He answered all eligibility questions correctly during the interview. Eventually, his naturalization application was approved on December 23, 2013. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: H-1B Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, 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 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 the Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office prepared and filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on July 25, 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 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 an organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 16, 2013. Eventually, our client’s H-1B application was approved on December 23, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 13, 2016 as a Nurse Manager.

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CASE: H-1B Visa Extension Petition

PETITIONER:  Taekwondo Academy in Hartford, CT

BENEFICIARY: Master Level Taekwondo Coach from South Korea

Our client is a Taekwondo Academy (martial arts school) located near Harford, Connecticut.  They contacted our office in late-October to seek legal assistance for their foreign employee’s H-1B extension.

The beneficiary obtained his Bachelor’s Degree in Physical Education. The proffered position for the Beneficiary is a Master Level Taekwondo Coach.  He has been working for the Petitioner for last three years with a valid H-1B visa. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Physical Education or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on November 8, 2013 via premium processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on November 25, 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 an 5-page response brief with 8 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 letters from experts to demonstrate that the bachelor’s degree is a minimum educational qualification for Taekwondo coach positions in the industry and illustrate the complexity of the position.

Our office filed the response to the USCIS Vermont Service Center on December 19, 2013. Our client’s H-1B application was approved on December 24, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until December 31, 2016

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CASE: VAWA (Violence Against Women Act) Cancellation of Removal

CLIENT: Colombian

LOCATION: New York Immigration Court in New York City, NY

Our client came to the United States in 1994 with a valid J-1 visa from Colombia. After her J-1 status expired, she remained in the United States. She married her U.S. citizen husband in October 2006. However, her marriage to her ex-husband turned to be very abusive and her marriage ended in divorce in 2009.

She suffered a lot throughout her marriage due to the physical violence and mental abuse she experienced from her ex-husband. She has longstanding medical issues as well. She has low thyroid function due to an auto-immune disorder which requires regular supplementation of the thyroid hormone. Our client also has Systemic Lupus Erythematosus, a very serious auto-immune disorder which in her case has manifested as a severe and sometimes disabling inflammatory arthritis. She is also diagnosed with thyroid cancer which appeared in 2006.  She already had three surgeries for her cancer and she is taking medication and mild chemo-therapy. She was having a hard time without any valid immigration status.

She contacted our office in July 2011 when she was served a Notice to Appear (NTA) for her immigration law violation. After careful review of her case, we determined that she is eligible for VAWA cancellation relief at the immigration court.

INA Section 240A(b)(2) provides that the applicant for VAWA cancellation of removal must:

• Have been battered or suffered extreme cruelty by a spouse who is or was a USC or LPR;
• Have been present physically in the United States for three years before applying;
• Be a person of good moral character during the period of physical presence;
• Not have been convicted of an aggravated felony;
• Not be inadmissible or deportable due to certain criminal, security, or marriage fraud violations; and
• Demonstrate that removal would result in extreme hardship to the applicant.

The case originated in Buffalo, NY, but venue was later changed to New York City. Our client appeared at the New York Immigration Court on January 13, 2012 for her initial master calendar hearing. Our attorney represented her at the hearing, did pleadings and sought for VAWA cancellation relief. After the Master Calendar Hearing, the Court scheduled an individual hearing date on April 30, 2013.

Our firm worked with our client and her friends and family members for the application and supplemental documents. We gathered a lot of her documents regarding her former spouse’s abuse, medical documents and extensively worked on our client’s affidavit. We also contacted our client’s friends for supporting documents and letters of support.

In preparing our client for the Individual Hearing, Attorney Yu talked to our client through conference calls several hours each time. Our firm eventually was able to gather supporting documents and prepared supplemental evidence with multiple exhibits, and arranged them pursuant to the specific elements of VAWA Cancellation.

At the Individual Hearing on April 30, 2013, Attorney Yu represented our client at the New York Immigration Court in New York City, NY. Testimony then followed and we questioned our client extensively on the abuse and hardship factors of her case. Attorney Yu questioned her regarding her length of residence in the U.S., her medical condition, physical and mental suffering that she experienced from her previous marriage, employment history, educational history, family issues and hardships to her and her family members if she was to be deported to Colombia. Our client was prepared, was very consistent, and was honest in her answers.  After direct examination, the DHS counsel only asked a few more questions.

After the hearing, the Immigration Judge determined that he could not issue a decision due to the unavailability of the quota.  Under INA Section 240A(e)(1), Congress limited the number of cancellation applicants who may adjust status to lawful permanent residence each year to only 4,000. Thus, she had to wait until October 2013 when the annual quota resets.

In the end, the New York Immigration Court granted our client’s VAWA cancellation of removal relief on December 2, 2013. It was a tough call and our firm was very happy for our client. She has been here since 1994 and suffered a lot in the past. Nevertheless, she finally is a green card holder.

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CASE: I-130 and Consular Processing (Immigrant Visa)

CLIENT: Chinese LPR Petitioner in Ohio; Chinese Beneficiary Wife and Daughter in China

LOCATION: Petitioner: Ohio; Beneficiaries: China

Our client retained us to bring his wife and daughter from China to the United States. He is a permanent resident and got married to his wife in 2011. Initially, he retained our office in July 2011 to file the I-130 petitions for his wife. After we were retained, we prepared and filed the I-130 petition for our client’s wife on July 28, 2011. Eventually, this I-130 petition was approved by the USCIS on April 16, 2012.

In April of this year, he retained our office again after the priority date became current for the immigrant visa processing for his wife and his newly born daughter. He retained our office on April 10, 2013.

On June 28, 2013, we filed the immigrant visa packets to the National Visa Center who in turn forwarded our client’s materials to the U.S. Consulate in Guangzhou, China. An interview notice was set for our client’s wife at the U.S. Consulate in Guangzhou, and we prepared her for her interview. On November 20, 2013, after the interview, the U.S. Consulate in Guangzhou, China approved and issued her and her daughter’s immigrant visas.

With the approved immigrant visa, our client’s wife and daughter can come to the United States immediately, and she will get her green card within two weeks of entry.

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CASE: I-130

CLIENT: LPR Father; Chinese Beneficiary Sons in China

LOCATION: Petitioner: Ohio; Beneficiary: China

I-130 FILED: July 25, 2013

I-130 APPROVED: November 14, 2013

Our client came to the United States with an immigrant visa after his US Citizen daughter petitioned him through consular processing. As a result, he got his immigrant visa on June 3, 2013 and came to the United States shortly after.

Once he came to the United States, he wanted to I-130 petitions for his two minor sons in China. So, he retained us on July 18, 2013 to bring his sons over from China.  On July 25, 2013, our firm filed the I-130 Petitions to the USCIS. There were no Requests for Evidence throughout the pendency of the petition. Eventually, on November 14, 2013, the I-130 Petitions were approved.

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CASE: Change of Status / I-539

NATIONALITY: Filipina

LOCATION: Los Angeles, CA

DATE FILED: September 11, 2013

DATE APPROVED: December 14, 2013

Our client came from the Philippines on an E-2 visa (Dependent of E-2). She was about to turn 21 years old, wanted to maintain valid status, and attend a college in the U.S. Her father was still on an E-2 in Los Angeles, CA. In early August, 2013, our client contacted us to get legal assistance for her change of status from E-2 to F-1.

Upon retention, we went into detail with their reasons for requesting a change of status. We made sure all addresses, contact information, and dates on their statements were complete and accurate. We made sure the SEVIS fees were paid and we obtained the I-20 document from our client. We prepared a brief that explained our client’s financial ability to go to school in the U.S.

The application was supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS. Our firm filed the I-539 Extension Application on September 11, 2013. Eventually, on December 14, 2013, her change of status application was approved by the USCIS. Now she can stay in the United States and go to college as an F-1 student.

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CASE: Cancellation of Removal for Permanent Residents

CLIENT: Guatemalan (Green card holder)

LOCATION: El Paso Immigration Court in Texas

Our client came to the United States in 1987 when she was a child. Through INA Section 245i, she got her green card in 2001.  She has been in the US ever since. She has seven U.S. Citizen children and most of her immediate family members are either U.S. Citizen or green card holders.

Unfortunately she was convicted of aiding and abetting someone’s illegal entry in early 2013. Because of this conviction, she was inadmissible and was placed in removal proceedings.  In late March of this year, our client contacted our office for legal representation. We were retained on April 1, 2013. The case at the onset was tough because her conviction may constitute an aggravated felony; however, after the careful review, her conviction did not rise to the level of aggravated felony, and so it was not alleged on her Notice to Appear. This was critical and made her eligible to apply for Cancellation of Removal.

Once retained, we represented our client before the El Paso Immigration Court at her initial master calendar hearing on July 8, 2013. Attorney Sung Hee (Glen) Yu represented her at the hearing and sought cancellation of removal relief for permanent residents.

Under INA Section 240A(a), for a permanent resident to be eligible for Cancellation of Removal, the alien must prove that s/he:

• Has been an LPR (green card holder) for at least five years;

• Has resided in the United States continuously for seven years after having been admitted in any status;

• Has not been convicted of an aggravated felony; and

• Merits a favorable exercise of discretion.

The criteria for favorable exercise of discretion was explained in Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The BIA in C-V-T stated that the factors that the immigration judge must consider when deciding whether to grant cancellation of removal to a lawful permanent resident are as follows:

The positive factors are:

• Family ties in the United States, particularly ties to lawful permanent residents or U.S. citizens;
• Residence of long duration in the U.S. (particularly when the inception of residence occurred at a young age);
• Evidence of hardship to the Respondent and his family if deportation occurs;
• Service in the U.S. armed forces;
• A history of employment;
• Existence of property or business ties;
• Evidence of value and service to the community;
• Proof of genuine rehabilitation if a criminal record exists;
• Other evidence attesting to a Respondent’s good character.

Adverse factors include:

• Nature and underlying circumstances of the grounds of removal;
• The presence of additional significant violations of the Immigration Laws;
• The nature, recency, and seriousness of criminal records; and
• The presence of other evidence has been indicative of a respondent’s bad character or undesirability as a permanent resident of the U.S.

Generally, the immigration judge must weigh the positive factors against the negative factors in exercising her discretion.

After the Master Calendar Hearing, the Court scheduled the individual hearing date on December 11, 2013.

Our firm worked with our client and her friends and family members for the application and its supplemental documents. We contacted her family members in other states for supporting documents and letters of support.

Our firm eventually was able to gather supporting documents and prepared supplemental evidence with multiple exhibits, and arranged them pursuant to the specific elements of Cancellation of Removal eligibility.

In preparing our client for the Individual Hearing, Attorney Yu talked to our client over conference calls several hours each time. Obviously the central issue in this case would be whether or not our client’s positive factors outweigh the negative factors, with the alien smuggling conviction looming as a very big negative factor.

At the Individual Hearing on December 11, 2013, Attorney Yu represented our client at the El Paso Immigration Court in Texas. Testimony then followed and we questioned our client extensively on the positive factors of her case. Attorney Yu questioned her regarding her length of residence in the U.S., employment history, educational history, family issues and hardships to her and her family members (especially her seven U.S. citizen children) if she was to be deported to Guatemala. Our client was prepared, was very consistent, and was honest in her answers.  After direct examination, the DHS counsel only asked three more questions and agreed to not oppose the grant of her relief.

In the end, the El Paso Immigration Court granted our client’s cancellation of removal relief. It was a tough call and our firm was very happy for our client. She has been here since 1987 but had one bump along the way.  She has reformed, will finish her studies, and will continue supporting her seven kids. It was obviously an emotional moment as her parents, sisters, and friends were in Court.

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CASE: Termination of Removal Proceedings

CLIENT: Cameroonian

LOCATION: Client: Houston, TX / EOIR: Cleveland, OH

Our client came to the United States from Cameroon in 2000.  He entered legally on an F-1 visa.

In 2002, he filed for asylum with the USCIS.  He was interviewed at the CIS office, but his asylum application was referred to the Immigration Court in New Orleans.  After his first master calendar hearing, he requested for a change of venue to Hartford, CT.

In 2004, our client married his U.S. citizen wife and she filed an I-130 on behalf of our client. Our client filed the I-485 adjustment of status application simultaneously with the I-130 petition even though he was in removal proceedings. He had no legal representation at that time.

However, with the help of the Immigration Judge and DHS counsel, he served copies of the I-130 and I-485 application and informed the court that he filed the adjustment of status application. When he served the copies of his I-130/I-485 application, the DHS attorney told our client that she will try to re-route the I-485 application he filed to the CIS to the court. Our client assumed that given that he had been in clear communication with the Court and the DHS attorney, that everything will be fine with his case and that both files will be merged.

Later in August 2004, our client moved to Cleveland, Ohio due to his new employment and his case venue was changed from Hartford, CT to Cleveland, OH as well.  He attended his master calendar hearings in Cleveland, and in December 2005, our client and his wife attended their green card interview at the USCIS Cleveland Field office.  After the interview, our client eventually got his conditional green card in the mail and he was under the assumption that if he was given a green card, then he must have done everything right and that the removal case had been dropped.

While he resided in the Cleveland area, he moved to a different addresses and he had always promptly notified both Immigration Court and the USCIS by filing change of address forms.  In April 2006, he went to his master calendar hearing which he got in his new address.  However, our client was told to go home and that he will get a letter in the mail with a re-scheduled master hearing date.  He never received anything else from Court since then.

As mentioned above, our client got his green card and he filed an I-751 application two years later to remove conditions on the green card. He also got this. He had foreign trips and on one of his entries, the issue of his final order came up but he eventually was let go and his green card was even given back to him.

Later, he filed an N-400 naturalization application and during his N-400 interview the final order of removal in absentia which was issued in November 2006 was brought up again. He was stunned and contacted a local immigration attorney in Houston, Texas where he currently resides. However, his attorney never filed the Motion to the court.

Our client contacted our office in late April 2013 and sought legal assistance. We advised him that we can file a Motion to Reopen in absentia order of removal.

To rescind the final order, he has to get his case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order.  Based on this Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive proper notice of the hearing. If the Notice to Appear or hearing notice was sent to the wrong address for example, and not the last address you provided to the immigration service, then there’s a good basis for a Motion to Reopen.

On May 9, 2013, our office filed a Motion to Reopen with the Cleveland Immigration Court. Documentation of his address at the date of the final order, a detailed affidavit regarding his addresses and his circumstances around the final order date, copies of his green card and immigration related documentation, documentation of the last address he provided to the immigration service and to the Immigration Court prior to the final order date, and other supporting documents were submitted (14 exhibits).

On June 19, 2013, the Cleveland Immigration Court granted our motion and reopened our client’s case.  Once his case was reopened, his master calendar hearing was scheduled on September 24, 2013 at the Cleveland Immigration Court. Prior to the master calendar hearing, our office filed a Motion to Terminate with the Cleveland Immigration Court.

On September 24, 2013, our client appeared at the Cleveland Immigration Court for his master calendar hearing. Attorney Sung Hee (Glen) Yu of our firm represented him at his Master Calendar hearing. During the Master Calendar hearing, our attorney sought for termination of proceedings, but the Immigration Judge continued his case to allow the DHS to respond to our Motion to Terminate.

Eventually, the DHS did not oppose our Motion to Terminate. As a result of that, on December 2, 2013, the Immigration Judge issued her order to terminate our client’s removal proceedings.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Santa Clara, California

Our client contacted us in June 2013 about the possibility of doing a National Interest Waiver application for him. He is a post-doctorate researcher and scientist in the field of Aerospace Engineering and Science, and was working as a research fellow for NASA at the time of his filing.

Our client is an extraordinary researcher and engineer in the field of Aerospace Engineering Research; specifically, computational fluid dynamics (CFD) and flow control.

His significant contributions have placed him at the pinnacle of the field of Aerospace engineering. Our client’s expertise is in the development of computational fluid dynamics (CFD) which meets the contemporary requirements for not only conventional development but also revolutionary aircraft design. He has been helping a U.S. aircraft company investigate the feasibility of their designs under consideration by performing very complex CFD analysis and suggesting alternative optimal new configurations.

Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for the 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 19-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 45 exhibits. Our office filed his I-140(NIW) petition at the USCIS Nebraska Service Center on July 29, 2013 along with his I-485 adjustment of status application.

However, on September 16, 2013, the USCIS issued a Request for Evidence for his I-140 petition. In response to the RFE request, our office prepared a brief which included notes from scientists in the field regarding updates of his work and the importance of his past work in physics-based turbulence model and computational fluid dynamics research.  We also emphasized our client’s past accomplishments and the benefits of his work. Our Response to RFE was filed on November 13, 2013.

Eventually, on December 6, 2013, the USCIS Nebraska Service Center approved our client’s I-140 petition. Now, our client can wait for his I-485 adjustment of status decision which will be adjudicated soon.

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