CASE: Immigrant Visa Application
ISSUES: Overage, Patriot Act
NATIONALITY: Filipino
LOCATION: California / Philippines

Our Filipina client came to the United States in December 2001 on a tourist visa. Her son was left back in the Philippines. Our client was on her way to permanent residency. Her U.S. Citizen father filed an I-130 petition for her back in 1987, and it was approved in the same year. So priority dates were getting current, and with the law on her side, she was on her way to getting a green card and bringing her son as a derivative.

However in May 2004, the petitioner father died. Our client already overstayed for over a year, and so coming back to the Philippines would give her a ten year bar. She went through several lawyers and was placed in deportation proceedings in Chicago and Los Angeles. She was losing hope.

She retained our firm in November 2010 and through INA 204(l) and Public Law 204(l), after representing her in Chicago and Los Angeles for interviews and court, she finally got her green card on February 15, 2012. Her case was complex, and it was indeed a success story. (Please click here for the success story). So after she got her green card, it was time to bring her son over here. Her son whom she has not seen in over eleven years.

There was a big problem though. Consular processing in Manila takes time. The filing parts are easy. We do those all the time. Other lawyers too. It’s the waiting that takes time – how long Manila schedules an interview. Our client’s son was born July 23, 1991, which meant that he was going to turn 21 in July 23, 2012. He would get a visa soon if immigration still considered him a “child” (under 21 years old). If he was over 21, then the preference category would change, and thus delay the process by a good seven years. So at that point we had to hurry, or come up with a novel argument.

We filed everything that could be filed as quickly as possible. From the I-824, to the immigrant visa payment process, to the immigrant visa application. We called the embassy for interview scheduling, but he was scheduled for August14, 2012. At that point he would be over 21.

So we had to brief the consul about one of the provisions of the Patriot Act, a provision that would still make our client’s son a “child” despite being over 21. This was different from the Child Status Protection Act. Under Section 424 of the Patriot Act, an alien whose 21st birthday occurred after September 2001, and who is the beneficiary of a petition or application filed on or before September 11, 2001, will be considered a “child” for 45 days after the alien”s 21st birthday. Thus, immigrant visa applicants who would otherwise lose status upon attaining 21 but who meet the conditions of section 424 may be issued visas up to 45 days after their 21st birthday.

August 14, 2012 was within 45 days of our client’s son’s 21st birthday, so he was in. We sent a brief to the consul to inform them of our client’s eligibility despite being over 21. We also sent a brief to our client. Unfortunately due to a delay in St. Luke’s processing of his medicals, they had to reschedule his interview. This was frustrating because he was already within the Patriot Act. A rescheduled date past September 6, 2012 (45 day mark) would delay the process by over seven years.

We did everything we can to urge the Consul to schedule an interview before September 6. We called and emailed, even though we knew this was not the how it’s done. We mailed them another packet, explaining the Patriot Act. Finally after about a week, they scheduled the interview on September 4, 2012. He made it by two days.

But his case wasn’t over. He went to his interview the morning of September 4, 2012, and unfortunately was assigned to an officer who had no idea what the Patriot Act is. Fortunately we told our client’s son to bring a copy of the brief, supplementing his supporting documents. The officer said he was not eligible, but took the brief we prepared. He was asked to come back in the afternoon.

We knew he should be in. We knew he should have gotten it. But that’s what you get in consular processing cases, it really depends on which officer you get.

I would not know first hand if he got approved. It was him who will find out once he got back to the consul that afternoon.

I got a call early that morning from his mother. She was so thankful for our work. Her son’s immigrant visa was approved. After eleven years, she’ll finally see her son.

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CASE: I-140 / National Interest Waiver

NATIONALITY: Korean

LOCATION: Ohio

Our South Korean client came to the U.S. on a J-1 Visa in August 2008.  He was here for a NASA research fellowship, but his J-1 program made him subject to the two-year foreign residence requirement.  He retained our office for his J-1 waiver, I-140 National Interest Waiver Classification (NIW) and I-485 Adjustment of Status applications.

We got his J-1 waiver approved on February 6, 2012, details of which are in a previous success story. Afterwards, we started working on his NIW application. Our client is a researcher and scientist in the field of Aerospace Science and Engineering, and is currently working as a research specialist at NASA.  Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. The NIW is beneficial because one would not need an employer nor family member to petition for you.

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. We asked our client to obtain 10 or more letters of recommendation.  Our office also included his publication records, presentation records, and conference materials.  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 64 exhibits (Exhibit A to LLL).  Our office filed his I-140(NIW) petition to the USCIS on April 6, 2012.  On September 7, 2012, the USCIS approved his I-140 petition without any Requests for Evidence.

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CASE: Visa Waiver Overstay Marriage Green Card
ISSUES: Visa Waiver Overstay, Age Gap, Previous Divorces
CLIENT: Hungarian
LOCATION: Cleveland Ohio

Our client came to the United States in November 2009 as a visa waiver entrant from Hungary.  He married a U.S. Citizen in January 2012 and retained our office on February 21, 2012 for his adjustment of status application They were hesitant at first because he was a visa waiver overstay, and cases they’ve seen on the internet on visa waiver overstays were not too good. Both of them also have previous divorces. They also have a big age gap. So they were concerned about their chances of winning.

We reviewed their supporting documents and listened to their story, of how they met and fell in love. We also explained and showed a recent CIS memorandum on visa waiver overstays, more of a FAQ memo, stating that adjustment applications based on marriage to a US Citizen for visa waiver overstays should be adjudicated. Prior to this memorandum the CIS were split, granting some visa waiver overstay adjustments while some issue denials resulting to deportation without a removal hearing (for visa waiver, you waiver your right to contest removability in Court).

Our firm then prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 27, 2012.  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 July 20, 2012, our client was interviewed at the Cleveland Ohio USCIS office accompanied by Attorney Sung Hee (Glen) Yu. The visa waiver memorandum was once again presented to avoid any possible issues. Supporting documents of their bona fide relationship were also submitted. On September 6, 2012, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status.
NATIONALITY: Chinese
LOCATION: Oklahoma

The marriage-based green card approval we got recently was for an Indonesian client who came to the U.S. on a J-2 Visa in 2001. He came with his father who was on a J-1 visa. Years later, our client changed his status from J-2 to F-1 student through the U.S. Consulate in Mexico to pursue his undergraduate program. After he graduated, he married his current U.S. citizen wife in October 2009 and his wife filed an I-130 petition on behalf of our client. The I-130 petition was approved in February 2011.

As explained in a previous success story, our office worked on our client’s J-2 visa waiver through the Interested Government Agency (IGA) route.  The CIS issued an I-612 approval notice for our client’s waiver of the two-year foreign residency requirement on March 16, 2012.

He retained us again and sought legal assistance for his I-485 adjustment of status application. Our firm prepared and filed the I-485 adjustment of status application on May 3, 2012. 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 6, 2012, our client was interviewed at the Oklahoma USCIS office. On the same day, his green card application was approved.

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CASE: Asylee Adjustment of Status
CLIENT: Chinese
LOCATION: Virginia

Our client came to the United States in January 2011 after she was granted derivative asylum status as the spouse of an asylee. Her husband was granted asylum in February 2010.

Under the Immigration and Nationality Act, an asylee may apply for lawful permanent resident status after he or she has been physically present in the United States for a period of one year after the date he or she was granted asylum status. This also applies for derivatives.

In February 2012, one year after she entered the United States, our client contacted our office and sought legal assistance for her adjustment of status application. Our office was retained on February 8, 2012, and we prepared and filed her I-485 Adjustment of Status Application on February 29, 2012. Everything went smoothly and the receipt notice and fingerprint appointment all came on time. On August 30, 2012, the USCIS approved our client’s Adjustment of Status application. She’s now a permanent resident of the United States.

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CASE: PERM Labor Certification
EMPLOYER: Electric Immersion Heater Manufacturer
BENEFICIARY: Indian Management Analyst
LOCATION: Cleveland Ohio

The beneficiary is a management analyst from India, who is currently working at an electric immersion heater manufacturing company in Cleveland Ohio. The company / petitioner was willing to petition him for a green card, in the second-preference category (EB2).  Our client has an MBA degree and has worked for this company since April 2012. He has maintained his status as an H-1B visa holder in the United States.  After talking to our client, our firm advised that his potential employer can petition him as a Management Analyst. It is a Job Zone 4 position, which typically does not merit an EB2 finding by the Department of Labor, but we thought the position was complex enough to merit an argument. Based on our client’s educational, professional and working background as an engineer and management analyst, our office determined that he is clearly eligible for the EB-2 classification for his I-140 petition.

Prior to filing the PERM labor certification application, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  On June 29, 2012, we filed the PERM labor certification application. Two months later, on August 30, 2012, the PERM labor certification was approved – an EB2 position for a Job Zone 4 Position – Management Analyst – without an audit!

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Case: I-130
Client: Ghanaian
Location: Phoenix, AZ

Our client came to the United States on a valid B-2 visa from Ghana in 2004 to visit his aunt in Maryland. Later, he decided to stay in the United States, and did not leave. He worked illegally, and on June 2004, our client got picked up at work by immigration officers and was issued a Notice to Appear.

The Notice to Appear did not have a hearing date and time. He was told he would get a hearing notice in the mail. He never moved for the next two years, yet he never received any hearing notice. Our client thought that the immigration court just closed his case due to his young age at that time. Apparently his hearing was scheduled and since he did not show up, he was ordered removed in absentia.

More than three years later, he married his U.S. Citizen wife and moved to Arizona. They had two U.S. citizen children. After a few years raising their children, our client decided to work on his immigration status. He contacted our office and we found out through his A number that he already had a final order of removal, and thus could not apply for adjustment of status. So our office filed a Motion to Reopen with the Arlington Immigration Court in Virginia and the Court granted our Motion. We then filed a Motion to Change of Venue to Phoenix, Arizona and the Motion was granted as well.

Prior to filing the Motion to Reopen, our office filed an I-130 petition based on our client’s marriage to his U.S. citizen wife. The I-130 petition was filed on March 5, 2012.  Generally, if someone is a beneficiary of an I-130 petition while he or she is in removal proceedings, the USCIS schedules what’s called a Stokes interview, in which both husband and wife are interviewed separately for intensive questioning. This is to make sure the marriage is in good faith, and not entered into for the purpose of avoiding deportation.

The I-130 petition we filed though included various supporting documents which demonstrated the bona fide nature of our client’s marriage. We also emphasized the fact that they have been married for 5 years and have two U.S. citizen children. As a result, the USCIS approved the I-130 petition for our client without requesting an interview at the local office. The I-130 was actually approved the day before his scheduled Master Hearing in Phoenix.

Attorney Sung Hee (Glen) Yu from our firm accompanied our client at his Phoenix hearing. The Judge and DHS attorney were informed of the I-130 approval, and they both took note of our intention to have the case terminated for CIS adjudication of his adjustment of status application.

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For other marriage-based green card success stories, please click here.

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CASE: Motion to Reopen
CLIENT: Chinese
LOCATION: Cleveland, OH / Immigration Court: Detroit Immigration Court

Our client came to the United States on a valid B-2 visa from China in 2002.  Later, she changed her status to F-1 and remained in the United States. She filed an I-485 application as a derivative applicant of her ex-husband in 2007.  However, while the application was pending, our client and her ex-husband got separated.  Unfortunately, in 2008, her I-485 adjustment of status application was denied.   She never received the denial notice from the USCIS since she moved to a different city in Ohio before her case was denied.  Thus, our client never received the Notice to Appear and was not apprised of the fact that she was placed in removal proceedings.  Accordingly, the Detroit Immigration Court issued an in absentia order of removal for our client in August 2010.

In January 2012, our client was picked up by ICE officers.  She was surprised to find out that she was being held because she had a final order of removal and missed her hearing in August 2010.  She explained her situation, so she was not detained, and was placed on an order of supervision. Our client contacted our firm and eventually retained us in March 2012.  Once we were retained, we asked our client to check with her ex-husband or her relatives whether they received the Notice to Appear for her.  We told her that we have to reopen her case first before she can even apply for relief at the Immigration Court.

To rescind the final order, she has to get her 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 notice of the hearing.

On July 31, 2012, our office filed the Motion to Reopen with the Detroit Immigration Court. Documentation of her address at the date of the final order, a detailed affidavit regarding her addresses and her circumstances around the final order date, documentation of the last address she provided to the immigration service prior to the final order date, and other supporting documents were submitted (20 exhibits). On August 16, 2012, the Detroit Immigration Court granted our motion and reopened our client’s case. Our client now does not have the final order of removal anymore and will seek asylum, withholding of removal and relief under the CAT with the Immigration Court.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipino
LOCATION: Houston, TX

Our client came to the United States in October 2011 with a B-2 visitor visa from the Philippines.  He married a U.S. Citizen in April 2012 and retained our office on May 3, 2012 for his petition and adjustment of status application.  Our firm prepared and filed the I-130 petition and I-485 adjustment of status application on May 30, 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 over the phone. On August 13, 2012, our client was interviewed at the Houston, Texas USCIS office.  Attorney Sung Hee (Glen) Yu from our office accompanied our client as well.  On August 22, 2012, his green card application was approved.

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CASE: N-400 (Citizenship / Naturalization w/ Rebuttable Presumption and Continuity of Residence Issues)
APPLICANT: Iranian
LOCATION: Cleveland, Ohio
ISSUES: Rebuttable Presumption / Continuous Residence

Our client contacted us in March 2012 to seek legal representation for his naturalization application. He came to the United States from Iran and obtained his green card through his U.S. Citizen son’s petition in March 2007. He retained our office for his naturalization application on March 23, 2012. The main issue of his naturalization case was two long, over six-month trips that he had within the past four years.

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

Our client was out of the U.S. more than 180 days twice.  During these trips, he was in Iran, but he could not come back to the United States earlier due to his medical condition.  Our client intended to have temporary trips of less than six months in those two trips. However, due to his medical condition and related health issues, he could not come back to the United States before his trip due to the advice of his doctors.  Moreover, our client already had chronic high blood pressures and heart-diseases in the United States as well.

Our office drafted an argument which explained our client’s medical conditions and argued that he is otherwise eligible for naturalization despite his two long trips to Iran.  We included two notarized affidavits from our client and his U.S. Citizen son, and included our client’s medical records from Iran and the U.S.

The brief and his N-400 application were filed on April 12, 2012 with all necessary supporting documents. Our office prepared him for his interview, and also accompanied him on August 7, 2012 at the Cleveland CIS office. Our client answered all questions correctly and passed his citizenship interview. We emphasized the brief as well and his reasons for his long trips to Iran. His N-400 was approved after the interview. His oath taking is scheduled soon where he will become a U.S. Citizen.

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