CASE: I-601 Hardship Waiver of Inadmissibility
APPLICANT / BENEFICIARY: Cambodia
LOCATION: Phnom Penh, Cambodia

Our client’s wife is a U.S. citizen who resides in Columbus Ohio.  She contacted our office in September of 2011 about her husband’s immigrant visa application which needed an I-601 waiver for his inadmissibility. They married in December 2008 and our client filed an immigrant visa petition for her husband which was then denied in 2011 due to his inadmissibility. Our client’s husband was found inadmissible because he misrepresented his information when he applied for a visitor’s visa to come to the United States in 2003.  He used a different name when he applied for a visitor’s visa and this incident made him inadmissible under Section 212(a)(6)(C)(i) of the INA. (Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible).  Thus, in order to obtain an immigrant visa, our client’s husband needed to have an approved I-601 waiver.

Our client retained us on September 26, 2011 for the I-601 waiver. Our firm thoroughly analyzed whether the I-601 waiver application will likely be successful. Based on her story and surrounding circumstances (hardship to U.S. citizen wife [our client] if our client’s husband is deported or if his wife would accompany him to Cambodia), our office determined that her husband has a good chance of winning the I-601 application.

If someone is found to be inadmissible under Section 212(a)(6)(C)(i) of the INA, INA Section 212(i) provides for a discretionary waiver of the fraud or misrepresentation inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA Section 212(i)(l). In addition to the equities presented, the USCIS may consider the nature of the fraud or misrepresentation.

In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission. Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s husband’s I-601 application had a good chance since our client’s U.S. Citizen wife from Columbus Ohio suffers from Hepatitis B, Chronic Hepatitis, Bronchitis, and has been going to doctors and hospitals since July 2007.  She also suffers from depression, anxiety, and insomnia due to the hardship of not having a father for her son or a husband to help with the expenses of raising their son.  In the I-601 brief and supporting documents, our office included extensive medical reports from our client. We argued that if our client’s husband is barred to enter the United States, extreme hardship to her is clearly foreseeable and evident. Our client’s wife is required to have continuous medical check-ups with her doctors for her Hepatitis B, Chronic Hepatitis, and Bronchitis. Also, it would be extremely difficult for her to get the same level of medical attention and satisfactory access to medical services in Cambodia in case our client’s wife joins her husband there. Our office also included the U.S. Department of State Travel Advisory Section for Cambodia to highlight the extremely poor medical services in Cambodia.

In our brief, we also argued that our client has maintained strong family ties in the United States, that she will have difficulty in finding the same level of employment in Cambodia, and that their U.S. Citizen son and our client will face extreme financial and emotional difficulties if he is barred to enter to the United States or if our client is forced to relocate to Cambodia with her son.

On February 7, 2012, we submitted our I-601 waiver application to the U.S. Embassy in Phnom Penh, Cambodia which included the brief in support, our client’s medical records, and other documents that demonstrated hardship to her if her husband is barred from coming to the United States.  This application was transferred to the USCIS Field Office in Bangkok, Thailand for adjudication. The I-601 waiver for our client’s husband was approved on March 21, 2012.  Now, without any inadmissible grounds, our client’s husband becomes eligible and will get an immigration visa to come to the United States. Now he can be together with his wife and their son in Columbus Ohio.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Electric Manufacturing Company
BENEFICIARY: Procurement Engineer

Our client is an electric immersion heater manufacturing company in Ohio. They contacted our office in late February to seek legal assistance from our office for their foreign employee.  The beneficiary is from India who obtained his Bachelor’s degree in Industrial Engineering in the United States. The proffered position for the Beneficiary is a procurement engineer which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case had his H-1B from his previous employer. He was on his sixth year in H-1B which expires in September 2012, unfortunately, he was terminated in December 2011. So he looked for another employer and found one in February 2012. Since he was terminated from his H-1B employer in December 2011, he could not change status in the U.S. But he was still within the 180 day unlawful presence period, so he did not have a 3-year bar. He also wanted to extend his H-1B status not just up to September 2012, but to 5 months more by recapturing all the time he was out of the United States, and the remaining period that he was not on an H-1B. So we explained in our cover letter that the Beneficiary is eligible to recapture his remaining period of H-1B from the time of his termination from his previous employer, plus all those times that he was abroad on vacations.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 20, 2011 via premium processing. The supporting documents included those for our recapture argument, such as copies of stamps on his passport, plane tickets, and the termination letter from his previous employer. Since this petition was based on a change in employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  After 7 days, our client’s H-1B Petition was approved on March 27, 2011. That H-1B was valid until February 2013, which meant that the CIS granted our request for recapture. Now the Beneficiary can have an interview for his H-1B visa at the U.S. Embassy in India, and once admitted, he can work for his Petitioner-Employer as an H-1B visa holder up to February 2013.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Indian
LOCATION: Cincinnati, OH

Our client came to the United States in January 2008 with a B-2 visitor visa from India.  He married a U.S. Citizen in February 2011 and retained our office on August 15, 2011 for his adjustment of status application. He was hesitant at first due to his criminal records. He wanted to check if some are classified as crimes of moral turpitude and if it would hurt his case. After doing research, we confirmed that it would not affect his case. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 23, 2011. The application included certified copies of his criminal record, both from Court and the police. 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. On December 9, 2011, our client was interviewed at the Cincinnati, Ohio USCIS office.  Attorney Sung Hee Glen Yu from our office accompanied them at the interview as well, and explained to the officer our position on his criminal records and why he still should be eligible for adjustment of status. On March 26, 2012, his green card application was approved, and our client obtained his green card.

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CASE: Adjustment of Status / J-1 Waiver
NATIONALITY: Jordanian
LOCATION: Ohio

Our client is from Jordan who initially came to the U.S. on a J-1 Visa in 2009.  After the completion of her program, she went back to Jordan. She then married a U.S. Citizen in Jordan, and then came to the United States with a B-2 visitor visa in January 2011.

According to her DS-2019, she was subject to the two-year foreign residency requirement, so she could not adjust until she got a waiver.   In March 2011, she consulted with our firm for her adjustment of status and waiver of the two-year foreign residency requirement.

After we were retained, our office prepared and filed a waiver request through a No Objection Statement (NOS) from the Jordanian Embassy in the United States.  We also filed the I-130 petition for our client as well. The I-130 petition was approved on September 14, 2011.

On May 3, 2011 the J-1 Waiver was filed to the Department of State.  We sent a request to the Jordanian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust if she obtains the waiver.  The Jordanian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  Thereafter, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on October 4, 2011, the USCIS issued an I-612 approval notice for the waiver.

After the waiver was issued, our office filed the I-485 Adjustment of Status Application on November 14, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. We thoroughly prepared our clients prior to the interview.   On March 22, 2012, our client was interviewed at the Cleveland USCIS office.  We accompanied them at the interview as well.  On the same day, her green card application was approved, and our client obtained her green card.

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Case: Termination of Proceedings / Adjustment of Status
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in January 2002 with a valid B-1 visa. He has stayed in the United States ever since. He was placed in removal proceedings a few years later. While he was in the United States, his wife, who was a permanent resident, filed an I-130 petition for him. It was approved in June 2010. At the time of the I-130 filing, our client’s wife was a lawful permanent resident, so the priority date for our client was not current. She became a naturalized U.S. citizen on June 17, 2011.

Before our firm was retained, our client already had a scheduled asylum individual hearing in 2013. In August 2011, our client consulted with our office and sought legal assistance. We advised him that we would try to terminate his removal proceedings with the Department of Homeland Security’s (DHS) cooperation. Our office filed a request to join in a Motion to terminate proceedings with a copy of the I-485 application and supporting documents on November 8, 2011. The DHS counsel in Cleveland agreed to terminate our client’s removal proceedings. The Immigration Judge then granted the Motion to terminate without prejudice on December 7, 2011.

After the case got terminated, we filed the I-485 Adjustment of Status application with the United States Citizenship and Immigration Service (USCIS) on December 22, 2011. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared our clients. On March 22, 2012, our client was interviewed at the Cleveland USCIS. We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved the same day of the interview. After ten years in the United States and being through removal proceedings, our client is finally a permanent resident.

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CASE: Motion to Reopen
CLIENT: El Salvadorian
LOCATION: Cleveland, OH

Our client came to the United States without inspection and admission from El Salvador in 2004. When he was crossing the border, the Customs and Border Patrol (CBP) officials picked him up and placed him in a minor house as he was only 17 at that time.  Later, our client went to the Phoenix Immigration Court for his first hearing, and later on his venue was changed to Cleveland as he informed the Court that he was moving to Cleveland to live with his brother, who was on Temporary Protected Status (TPS).  He then appeared for his first hearing before the Cleveland Immigration Court. At the hearing, they scheduled a date for his next hearing, but also informed him that the hearing will change, and that he will get a notice in the mail. Our client has lived in Cleveland with his brother who has TPS status since. He never got the hearing notice.

On February 1, 2012, our client’s brother got a phone call from the Immigration Service and they asked him about our client.  The brother asked them what our client did wrong, and to his surprise, he was informed that our client had a final order of removal in November 2006. He was told that his brother should go to the Immigration and Customs Enforcement (ICE) on a specific date “to be processed”.

Our client and his brother immediately sought our help, and upon our check of our client’s A number with the court system, found that his final order was issued in November 2006 in Cleveland, OH.  We told him that he has a final order of removal and because of that, when he goes to ICE on his appointment date, he might get picked up. We told them that he has to file a Motion to Reopen before he goes to ICE for his appointment, and show them that the Motion was filed. He was already deportable, and the Motion would stay deportation and lessen the chance that he gets detained.

So our client retained our office the day before his appointment with ICE (Immigration and Customs Enforcement). We met him extensively to prepare the affidavit and on the same day, our office prepared and filed the Motion to Reopen with the Cleveland Immigration Court. We also gave our client a copy so that he could show ICE that he had an automatic stay with the pending Motion to Reopen.  Our client never received his hearing notice; moreover, his prior appearances in Court show that he previously complied with immigration appointments.

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 prior to the final order date, and other supporting documents were submitted.  In the Motion, we also explained that our client feared going back to El Salvador and that he intended to file asylum if the case is reopened.

When our client went to ICE, he showed the Motion to Reopen and fortunately, he was not detained. He was also issued an Order of Supervision, which was an added bonus since he became eligible to file a work permit.

Then, on March 13, 2012, the Cleveland Immigration Court granted our motion and reopened our client’s case. Our client now does not have a final order of removal and may seek relief with the Immigration Court.

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Our client came from India and has two approved I-140 petitions, one under the EB-2 category, and before that from the EB-3 category. He filed his I-485 adjustment of status application in 2007 when his EB-3 I-140 priority date was current.   In 2011, our client got another I-140 approval under the EB-2 category.

Our client retained our office on October 6, 2011 for an interfile request to the USCIS so that his I-485 application may be processed according to the availability of immigrant visas in the EB-2 category. At that point the priority date he had would have been current if based on the EB-2 category, which meant that his green card application would be adjudicated soon.

According to the CIS Adjudicator’s Field Manual Chapter 23.2(I)(2)(L):

“In order to convert an adjustment application to a new basis involving a preference classification, the alien must be the beneficiary of an approved visa petition (pertaining to that new basis) which has a current visa availability date. With limited exceptions, a priority date is NOT transferrable from one preference category to another or from one petition to another.

Note: The request for conversion of the adjustment application is a totally separate issue from the priority date determination. Priority dates for preference visa categories are determined in accordance with the provisions of 8 CFR 204.1(c) and (d) for family-based petitions or 8 CFR 204.5(d), (e) and (f) for employment-based petitions and are generally not transferable. The only exceptions to this general rule are:

• Conversion within the first three employment based categories (sections 203(b)(1), (2), and (3), as provided in 8 CFR 204.5(e)”

Since employment based priority dates for the first three preference petitions are transferable, such cases fall within the “limited exceptions” specified in the CIS manual. This provision suggests that substitutions involving different employment preference classifications are permissible, as it is in our client’s case.

The CIS Adjudicator’s Field Manual, in Chapter 23.2(I)(2), sets forth certain specific rules, including:

(C) The request must be made in writing. Verbal requests for conversion are unacceptable.
(D) There must be no break in the underlying eligibility prior to the conversion request.

Section 23.2(I)(C) and (D) of the Adjudicator’s Field Manual provides that an I-485 adjustment application may be converted from one eligibility basis to another if the request is made in writing and there is no break in the continuity of the underlying eligibility for adjustment prior to submission of the conversion request.

With the above standards cited, our office sent an interfile request to the USCIS Nebraska Service Center for our client and his three dependents.  Since our client is the beneficiary of multiple approved I-140 petitions; we requested that the basis of his pending I-485 application be converted to the EB-2 I-140 petition approved on his behalf.  We asked the USCIS to interfile our client’s second approved I-140 petition with his pending I-485 application and process his adjustment application, using his EB-3 priority date but according to the availability of immigrant visas in the EB-2 category, to make his I-485 application available for adjudication.

Eventually, on March 16, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  After a long wait, our client, his wife, and his two children finally became green card holders.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Chinese
LOCATION: Oklahoma

Our client is a citizen of China who came to the U.S. on a J-2 Visa.  He came with his father who came on a J-1 Visa for his research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, he finished high-school as a J-2 visa holder and later pursued his Bachelor’s degree.  Our client initially started his bachelor’s program as a J-2 visa holder, but in April 2001, he changed his status from J-2 to F-1 through the U.S. Consulate in Mexico. He had to change his status from J-2 to F-1 because he turned 21 in January 2011.  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.

Our client contacted our office in January 2012, and sought advice regarding his chances of applying for permanent residency.  He has an approved I-130 petition; however, without a waiver of the 2-year foreign residency requirement, our client would not be able to adjust his status in the United States.  Our office explained that we can apply for his J-2 waiver application through the Interested Government Agency (IGA) route.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case.

Our firm was retained to do his J-2 waiver on January 19, 2012. On January 31, 2012, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on February 21, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On March 16, 2012, the USCIS issued an I-612 approval notice for our client’s waiver request. Now, our client can file his I-485 adjustment of status application with the approved I-130 petition and I-612 waiver approval. He can now apply for his green card.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Costa Rican
LOCATION: Houston, Texas

Our client came to the United States on a B-1 visa in September 1991 when he was a minor. Although his authorized stay in the U.S. expired in October 1991, he has stayed in the United States ever since. In May 2011, he married his U.S. Citizen wife and retained our office in the middle of August of 2011 for his adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 24, 2011. 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 over the conference call. On January 23, 2012, our client was interviewed at the Houston, Texas USCIS. Our attorney accompanied them as well.  On March 12, 2012, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: New York, NY

Our client came to the United States in December 2008 with an F-1 student visa from the Philippines. She married her U.S. Citizen husband in October 2010 and retained our office in the middle of April of 2011 for her adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on July 29, 2011. 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 February 9, 2012, our client was interviewed at the New York City, NY USCIS.  On March 5, 2012, her green card application was approved.

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