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

CLIENT: Filipina

LOCATION: Chicago, IL

Our Filipina client came to the U.S. on a B-2 visitor’s visa in May 1993 and overstayed her status

Prior to retaining our firm, her sister filed an I-130 petition for her back in 1990. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The wait is more than 20 years!

The I-130 petition was approved by the INS in 1990.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 20 years in order to even apply for her green card. Unfortunately, her sister (I-130 Petitioner) passed away before she was eligible to apply for her green card. 

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the 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 does 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’s US citizen brother-in-law (husband of deceased petitioner) was willing to become a substitute sponsor and she met the physical presence requirement. On October 19, 2010, our office filed an I-485 adjustment of status application under the 245(i) category. We of course cited PL 111-83. On February 3, 2011, our client appeared at the Chicago CIS office for her adjustment interview.  Attorney JP Sarmiento accompanied her at the interview. Attorney Sarmiento also explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore.

However, the F4 priority date for the Philippines backlogged. Our client had to wait until the priority date became current. In October 2013, her priority date became current. Eventually, our client’s adjustment application was approved by the USCIS on October 7. 2013.  After a long wait, our client is finally a green card holder.

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CASE:  Adjustment of Status / Termination of Removal Proceedings with an Approved I-130 Petition

CLIENT: Kenyan

LOCATION: Cleveland, Ohio (EOIR) / Columbus, Ohio (USCIS)

Our client is a Kenyan citizen who came to the U.S. on an F-1 Student Visa in December 2007 to study at a college in Ohio. In January 2010, she married her U.S. citizen husband, and her husband filed an I-130 petition for her. However, the I-130 petition was denied and our client was placed in removal proceedings due to her failure to maintain F-1 status. After her I-130 was denied, her husband filed a second I-130 petition for her in March 2012.

After she was placed in removal proceedings, she contacted our office and sought legal assistance. She retained our office on June 7, 2012.

Our office prepared and submitted a copy of the I-130 Petition with more bona fide marriage evidence of her marriage to the Cleveland Immigration Court. We wanted to show the Court that despite this second filing, that an approval was feasible, and so we wanted to demonstrate even prior to the Master Hearing that the marriage was bona fide. This was important so that we can get a continuance. The filing also included a bona fide marriage exception letter which was omitted when our client filed the I-130 petition previously.

So while the second I-130 petition was pending, our client appeared at the Cleveland Immigration Court on August 7, 2013 for her initial master calendar hearing.  Attorney Sung Hee (Glen) Yu from our office represented her at the hearing, did pleadings and sought adjustment of status relief upon approval of the I-130 petition. He asked for a continuance and on the basis of the bona fide evidence submitted to the court, argued that this was, despite it being a second I-130, good cause. The continuance was granted.

Our client’s I-130 interview was scheduled on October 9, 2012 at the Columbus USCIS Field Office.  Prior to the interview, our office thoroughly prepared our client and her husband for the interview. Attorney Yu also accompanied them at their interview. The interview lasted more than two hours, our clients were separated, but the I-130 petition was eventually approved on November 14, 2012.

After the I-130 was approved, our office filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents. The DHS counsel in Cleveland agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to terminate without prejudice on January 9, 2013.

Once her case was terminated with the Immigration Court, our office prepared and filed the I-485 Adjustment of Status Application on June 28, 2013, together with other necessary forms and supporting documents. 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 through conference calls.

On September 3, 2013, our client was interviewed at the Columbus, OH USCIS office. The interview went, and on October 11, 2013, our client’s green card application was finally approved.

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CASE: Change of Status from B-2 to F-1

CLIENT: Filipina

LOCATION: Houston, TX

Our client came to the United States on April 23, 2013 from the Philippines with a valid B-2 visitor’s visa. Towards the end of her legal status in the United States, she decided to pursue her education here and wanted to get an F-1 status. She enrolled in a community college for an associate’s degree program. After her school issued the I-20, she contacted our office. She retained our office on July 24, 2013.

Once retained we helped our client obtain supporting documents for the Change of Status. On July 29, 2013, we filed the I-539 Change of Status application to the USCIS. On October 10, 2013, the Change of Status was approved. Our client is now on valid F-1 status.

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CASE: I-360 Petition

NATIONALITY: Mexican

LOCATION: Ohio

Our Mexican client came to the U.S. in June, 2004. He entered the United States without admission and inspection and he has lived in Ohio since then. In May 2012, he contacted our office to seek legal representation for his I-360 petition. According to his story, our client’s marital life was tough and he eventually was abused by his spouse.  With his story and other evidence, our office determined that he would be eligible for I-360 self-petition as a spouse of an abusive U.S. citizen.

Our client experienced domestic violence and spousal abuse during his marriage. His wife physically and mentally abused our client throughout the years. Thus, we prepared and filed his I-360 petition, which included 21 exhibits and a detailed brief to the USCIS Vermont Service Center on July 19, 2012.

Despite our client’s thoroughly prepared I-360 application, in June 2013, the USCIS Vermont Service Center issued a Request for Evidence (RFE).  Specifically, the RFE letter requested our client to submit more documents to prove his good moral character. Our client and our office thoroughly gathered the requested documents, and filed a response to RFE on August 29, 2013.

Finally, on October 7, 2013, the USCIS Vermont Service Center approved our client’s I-360 petition. With the approved I-360, our client can file his I-485 adjustment of status application to the USCIS for his permanent residency.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Belgian

LOCATION: Virginia

Our client came to the United States from Belgium to study on an F-1 student visa in January 2012. Later on, she fell in love and married a U.S. Citizen in August 2012. They retained our office on February 6, 2013 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 23, 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 through conference calls. On September 16, 2013, our client was interviewed at the Fairfax Virginia USCIS office.  On September 26, 2013, her green card application was approved.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Nursing Care Company

BENEFICIARY: Kenyan

LOCATION: Akron, Ohio

Our client is a certified nurse practitioner, who is currently working at a nursing care company in Akron, Ohio under the OPT program. Her employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Nurse Practitioner is included in Schedule A.

Our client has both a Bachelors and Masters degree in nursing. Our office was retained on May 21, 2013 and we started on the Prevailing Wage Determination filing and other related matters.

We filed the I-140 application on September 17, 2013 via premium processing. We included the job offer letter, the notice of filing, her pay stubs, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  On September 30, 2013, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

When we filed her I-140 petition, the priority date for Kenyan nationals was current for the  EB-2 category, thus we also filed her I-485 adjustment of status application concurrently with the I-140 petition. Since the I-140 petition is approved, her I-485 adjustment of status application will likely be approved soon.

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CASE: Asylum in Immigration Court

CLIENT: Cameroonian

LOCATION: Cleveland Immigration Court

Our Cameroonian client came to the United States as an arriving alien in May 2012. She was detained at Eloy Processing Center for three months, and later paroled into the United States. A Notice to Appear was issued and our client was placed in removal proceedings. After she got the Notice to Appear and first Master Calendar hearing notice, she contacted and retained our firm in April 2013.

She was persecuted and harmed in Cameroon based on her political opinion and political activism, so within one year of her entry, she filed an asylum application (Asylum, Withholding of Removal, and relief under the CAT)

Our client was scared to go back home to Cameroon, fearing that she will be persecuted based on her political opinion and her past participation in certain organizational activities. While she was in Cameroon, our client joined marches against the government’s actions and participated in political activities for Southern Cameroonians. As a result, she was arrested and detained multiple times by the Cameroonian police and has experienced harm and mistreatments in numerous occasions.

We helped her file her asylum application and represented her in immigration court hearings. We also asked her to provide supporting documents corroborating her claim, some of which were a letter from her parents, colleagues and friends in Cameroon, Cameroonian medical documents of our client’s injury, and her membership certification with the organization. Our firm also did some research on articles related to her claim, and the type of persecution she will experience in Cameroon if sent back.

Our client’s individual hearing was scheduled on September 30, 2013 at the Cleveland Immigration Court. Attorney Sung Hee Yu from our firm prepared her extensively twice, both of which lasted several hours. He also represented our client at her Individual Hearing.

During the hearing, our client testified credibly as to her past persecution in Cameroon and likelihood of future persecution. After the hearing, the Immigration Judge granted asylum relief for our client. She is now an asylee who will get her work permit in two weeks and will be eligible to apply for permanent residency in one year.

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CASE: I-129F Fiancée Petition and Fiancée Visa

PETITIONER: US Citizen in Gainesville, FL

BENEFICIARY: Filipina

PETITION FILED: March 20, 2013

PETITION APPROVED: July 25, 2013

VISA APPROVED: September 24, 2013

Our client, a US Citizen Petitioner, met his Filipina fiancée online. They developed a relationship and he eventually went to Taiwan to meet her in December 2012. He proposed to her on that visit. Months after his proposal, he retained our firm to file a fiancée petition and get her a fiancé visa.

After retention, we gave our clients a list of supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on February 12, 2013. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on March 20, 2013.

On July 25, 2013, the I-129F fiancée petition was approved. On September 5, 2013, the beneficiary appeared at the American Institute in Taiwan for her fiancé visa interview.  The interview went well, and her fiancé (K-1) visa was approved on September 24, 2013. She will come to the United States and will marry her fiancé within 90 days of her entry.

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CASE: I-130 (Petition for Mother) and Adjustment of Status
CLIENT: Nepalese
LOCATION: Maryland

Our client retained us to petition her mother who came to the U.S. from Nepal as a visitor in 1998. Our client was born and raised in Nepal, but was naturalized in the United States in 2012. She contacted our office in October of 2012 and discussed the possibilities of petitioning her mother. After consultation, she retained our office on October 22, 2012.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 3, 2012 for her mother. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Eventually, on September 13, 2013, our client’s mother’s adjustment of status application was approved. Now, she is a green card holder.

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CASE: Adjustment of Status through EOIR / Motion to Remand / I-130 Approval
CLIENT: Nepalese
LOCATION: Baltimore, MD

Our client came to the United States with a valid B-2 visa from Nepal in January 1998. He remained in the United States for a time longer than permitted.

In November 2009, he was placed in deportation proceedings due to his overstay and a Notice to Appear was issued. His asylum application was denied by the Immigration Judge, but an appeal was timely filed.

While the BIA appeal was pending, our client’s daughter became a naturalized U.S. Citizen in January 2012.

Our office immediately filed an I-130 petition for our client on February 6, 2012. After we received the I-130 receipt notice, 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 his daughter has not become a naturalized U.S. citizen yet.

Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on February 24, 2012. 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. Eventually, on July 10, 2012, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.

While we were waiting for adjudication of the I-130 petition, the USCIS issued a Request for Evidence (RFE) regarding the paternal relationship of our client. Apparently, the birth certificate submitted from Nepal was not enough. So we scheduled a DNA test for our client and this resulted to a 99.99% likelihood of paternity. On September 14, 2012, the USCIS approved the I-130 petition for our client.

Upon approval of the I-130 petition, our client’s removal proceeding was commenced again in the Baltimore Immigration Court. On March 20, 2013, our client was appeared at his Master Calendar hearing at the Baltimore Immigration Court. He was represented by Mr. Sung Hee (Glen) Yu from our office and our attorney explained the procedural history of our client’s case to the immigration judge and sought for adjustment of status relief. The individual hearing was scheduled for September 19, 2013.

Prior to the individual hearing, our office prepared our client for his upcoming hearing over conference call. On September 19, 2013, our client and Mr. Yu appeared at the Baltimore Immigration Court for our client’s individual hearing. Eventually, the Immigration Judge granted our client’s adjustment of status relief. Now, he is a green card holder.

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