CASE: H-1B Extension

PETITIONER: Nursing Home Facility

BENEFICIARY: MDS Coordinator, Filipina

LOCATION: Illinois

Our client is an MDS Coordinator from the Philippines who currently works at a Nursing Care Facility in the greater Chicago area on a valid H-1B visa. Her H-1B status was about to expire before she retained our office in early June of 2012.  Our client sought legal assistance from us for her H-1B 3-year extension.

Once we were retained, our office prepared her H-1B extension application.  The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on July 18, 2012 to the USCIS California Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 11, 2013. The H-1B is good from October 1, 2012 to September 30, 2015.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Ghanaian
LOCATION: Cleveland, OH

Our client came to the United States in 2010 with an F-1 student visa from Ghana to pursue her bachelor’s degree in the United States.  She married a U.S. Citizen in September 2012 and retained our office on October 5, 2012 for her adjustment of status application.

They did not live together, but visit each other every week. This was because the US Citizen spouse lived and worked in Cleveland, while her spouse was studying in Wooster Ohio.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 25, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients at our office.

On January 8, 2013, less than three months from the time filing, our client was interviewed at the Cleveland, OH USCIS office. Our attorney accompanied our clients as well. Despite not living together, because of other bona fide evidence and their answers and demeanor at the interview, her green card application was approved on the same day.

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

PETITIONER:  Electric Engine / Turbine Manufacturing Company

BENEFICIARY: Global Sales Application Engineer

Our client is an Electric Engine/Turbine Manufacturing Company in Ohio. They contacted our office in early December to seek legal assistance for their foreign employee.

The beneficiary is from South Korea and obtained her Bachelor’s degree in Mechanical Engineering. The proffered position for the Beneficiary is a Global Sales Application Engineer which qualifies as a specialty occupation – the minimum requirement for this position is a Bachelor’s Degree in Mechanical Engineering or its equivalent.

The foreign beneficiary in this case already had her H-1B visa from her previous employer which was in a similar industry. Her H-1B visa has not yet expired, but she wanted to extend her H-1B status on the change of employer basis.

Once retained, our office filed the H-1B visa petition with various supporting documents on December 14, 2012 via premium processing. Since this petition was based on a change in employer, this petition was exempted from the annual cap of the H-1B. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on December 22, 2012.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for next three years.

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

NATIONALITY: Indonesian

LOCATION: San Francisco, CA

Our Indonesian client came to the U.S. on a J-1 Visa in September 2007.  He came to the U.S. for his research program, and his J-1 visa had him subject to the two-year foreign residency requirement.

He wished to take advanced studies to pursue his Master’s degree in the United States and got a student visa in Indonesia. He came back to the United States in 2011, completed his master’s program and thereafter applied for OPT.

His research and higher education enhanced his interest in the field, and he wanted to further his research and development acumen. However, since most of the research projects that interest him will take a longer time, and since some of the projects he has discussed have resulted in the employers/institutions inquiring whether he is eligible to work beyond his OPT, he anticipated that most employers will eventually wish to petition him for an alternate form of visa such as an H-1B.

However, due to the two-year foreign residency requirement, he had to obtain a waiver first before he could change his current status in the United States.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  We included nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of his valid Indonesian passport, and a copy of Form DS-3035.

On November 2, 2012 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a change of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.

On December 6, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on December 18, 2012.  Now that our client’s two-year foreign residency requirement is waived, he can be a beneficiary of other non-immigrant visa petitions in the United States without having to go back to Indonesia for 2 years.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Cleveland, OH

Our client came to the United States in November 2007 with a B-2 visitors visa from the Philippines. She overstayed her visa and remained in the United States.

She fell in love with a US Citizen and got married in September 2012. She then retained our office on October 1, 2012 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 19, 2012.  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 3, 2013, our client was interviewed at the Cleveland, OH USCIS.  Attorney Sung Hee Yu from our office accompanied our clients as well. On the same day, her green card application was approved.

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

Our Filipina client came on a J-1 visa in October 2011. Upon completion of her J-1 program, she remained in the United States and overstayed. She was subject to the two-year foreign residency requirement.

In March 2012, she got married to her U.S. citizen husband and later consulted with our firm for her J-1 visa waiver. She has to do his first before becoming eligible to adjust status.

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

On August 15, 2012, 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 Philippine Government) were sent to the Philippine Consulate in Los Angeles for further authentication.  On November 26, 2012, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines. The Waiver Review Committee 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 December 6, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 28, 2012, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment of status application along with her U.S. Citizen husband’s I-130 petition.

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2012 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for only 90 days.

Later, in September, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on September 10, 2012.  One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 18, 2012.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay expired. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On December 21, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver issue, on December 26, 2012, the USCIS approved her green card application.  Now, our client is a green card holder.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Chinese Client in Cleveland, OH

As our office explained before on our website, the USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases (DACA). According to the USCIS Deferred Action Memorandum issued in August 2012, an individual who meets the following criteria may apply for deferred action:

• Was under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching his/her 16th birthday;
• Has continuously resided in the U.S. since June 15, 2007, up to the present time;
• Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
• Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

Our client initially came to the United States in March 2000 without admission and inspection by the CBP officers when she was only 15 years old.  As of June 15, 2012, our client was twenty-eight (27) years old. Our client was able to enroll in high school in 2001, but she did not finish.  However, she is currently enrolled in the ABLE program and she goes to class at the local high school in the Cleveland area.  Also, since her last entry to the United States in March 2000, our client never left the United States.

She was physically present in the United States on June 15, 2012 and has continuously resided here since March of 2000. Moreover, our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Our client retained us on August 15, 2012. We informed her of all supporting documents we would need. Our client and her family members sent us supporting documents that proved our client’s education history, physical presence in the United States, and her initial entry to the United States. Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On October 9, 2012, our office filed her I-821D and I-765 to the USCIS. Our client went to the ASC Appointment (Biometric appointment) at the Cleveland, OH USCIS office on November 1, 2012. On December 13, 2012, the USCIS approved our client’s I-821D and I-765, good for two years.

Our client can now work and study in the United States lawfully.

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CASE: Motion to Reopen

CLIENT: Central African Republic

LOCATION: Cincinnati, OH

Our client came to the United States from the Central Republic of Africa in 2004.  One month after, he filed for asylum with the USCIS.  He was interviewed at the CIS office, but his asylum application was referred to the Cleveland Immigration Court.  He went to his first hearing in Cleveland, and appeared at his previous master hearings as well.

He went to his last hearing in September 2010 in Cleveland Ohio where he both submitted a Form EOIR-33 (change of address) and was given an Individual Hearing date of January 9, 2013.

Our client moved a few months later but did not submit another EOIR-33. He did write his new address when he renewed his work permit though and submitted an AR-11 with the CIS.

Our client has always renewed his work permit application since 2005 and has reported his current address at those applications.

Last August, he applied for his work permit renewal with his new address, but his work permit renewal got denied.  The denial stated that our client’s case was abandoned when he missed his hearing on January 26, 2012.

This was the first time that our client learned of the final order.  In fact, he was under the assumption that his next hearing was on January 9, 2013.

Our client was surprised and contacted our office for 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 November 8, 2012, our office filed the 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, 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 (9 exhibits).

On December 10, 2012, the Cleveland Immigration Court granted our motion and reopened our client’s case.  Our client now does not have the final order of removal and may continue to seek his relief under asylum with the Immigration Court. He may also renew his work permit as the asylum clock resumed.

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CASE: Request to Join in a Motion to Reopen with the DHS

CLIENT: Chinese

LOCATION: New York, NY

Our client came to the United States from China with valid B-2 visitor’s visa in 1996. Within one year of his entry, he filed an I-589 Application for Asylum.

In January 1998, our client had his asylum interview in Rosedale, New York. After the interview, his asylum application was referred to the New York Immigration Court and the Notice to Appear was issued for our client.

Respondent attended his first hearing, but missed his second hearing in December 1998. Respondent said he did not know of his second hearing, and that his attorney never informed him of such. Thus, he missed it.

Our client has remained in the U.S. ever since to take care and raise his U.S. Citizen daughter. He was with his wife who is now a lawful permanent resident.  Over the past decade, his wife had suffered from several medical issues.

Our client then became the beneficiary of an approved I-130 petition filed by his U.S. Citizen daughter. However, he could not adjust his status based on this I-130 petition due to his final order of removal.

Prior to retaining our office, our client tried to reopen his case with the Immigration Court through two other immigration lawyers in New York; however, both were not successful.

We reviewed his case and informed him that reopening will be tough because previous lawyers have tried twice and were denied. We told him that if we were to do it, we plan to emphasize the medical hardships of his wife and also technically address the ineffective assistance of counsel issue, by having him do all necessary steps, from the bar complaint, to proper notification, and others. He agreed.

On December 8, 2011, our client retained our office to do another Request to Join in a Motion to Reopen.

Once retained, our office extensively prepared and gathered documents for our client’s request to join in a Motion to Reopen with the DHS.  As set for forth in Bo Cooper’s May 17, 2001 Memorandum, in determining whether to join in a Motion to Reopen, the INS (now the DHS) should consider the following factors: (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.

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. Section 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.”

Thus, we argued that if our client’s case is reopened, he will be prima facie eligible to adjust his status.  In our brief, we argued that our client had substantial equities considering the medical records of his wife and legal status of both his wife and daughter.

Our client had no criminal records and his immigration violation was for overstaying his legal entry.  Despite his overstay, our client still filed for asylum within one year of his entry to the United States. We pointed out that our client was not informed of his immigration hearing due to the ineffective assistance of his previous immigration counsel. We also pointed out that his daughter is a world class pianist who has perfumed in several prestigious events.

On July 11, 2012, our office filed the Request to Join in a Motion to Reopen to the Office of Chief Counsel in New York, NY.  In an 11-page brief, we pointed out several factors from his detailed affidavit regarding his immigration history and equities. Several affidavits from his family members were also included.

We also included over 200 pages of supporting documents to show his wife’s medical issues, his prima facie eligibility for adjustment of status if his case was reopened, and Lozada compliance documents.

On December 4, 2012, after two tries by our client with two other lawyers, the New York DHS-ICE office agreed to join in the motion to reopen for the sole purpose of having the Court terminate the case without prejudice to allow our client to seek adjustment of status.

Now, our client’s case can be reopened and terminated in Court. He then can file for adjustment of status based on the approved I-130 filed by his U.S. Citizen daughter.

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