CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Chicago, IL

Our client came to the United States in March 1994 with an H-4 visa (dependent of an H-1B visa holder) as a minor child from the Philippines. Her mother, who was on H-1B, fell out of status so she also fell out of status. Years later, she married his U.S. Citizen spouse in August 2011 and retained our office on October 20, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 27, 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 February 15, 2012, our client was interviewed at the Chicago, Illinois USCIS.  We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved on the same day.

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CASE: Adjustment of Status at Removal Proceeding
CLIENT: Kenyan
LOCATION: Chicago, IL

Our client came to the United States in August 2005 with an F-1 student visa from Kenya.  He married a U.S. Citizen in January 2010.  Our client’s wife filed an I-130 petition on behalf of our client, and this I-130 petition was approved by the USCIS Milwaukee Field Office in December 2010.  He was placed in removal proceedings for overstaying his F-1 status, so our client contacted our office to seek legal representation for his removal proceedings.

Our client retained us on March 25, 2011.  On April 5, 2011, Attorney Sung Hee (Glen) Yu of our office represented our client at his initial master calendar hearing at the Chicago Immigration Court.  We did pleadings for our client and asked for adjustment of status relief. After the Master Calendar hearing, our office prepared and filed the I-485 Adjustment of Status Application and other supporting documents to the Chicago Immigration Court.

On February 6, 2012, Attorney Yu represented our client at his Individual Hearing for adjustment of status at the Chicago Immigration Court.  After direct and cross examination, the Immigration Judge approved our client’s adjustment of status application. Now, our client is a permanent resident of the United States.

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CASE: Motion to Stay / Motion to Reopen / Jail Release
CLIENT: Indonesian
LOCATION: Cleveland, OH

Our client came to the United States with a valid B-2 visa from Indonesia in March 2003. He later filed for asylum but was denied by the Immigration Judge in May 2010.  Our client subsequently filed a timely appeal with the Board of Immigration Appeals (BIA), but the BIA also dismissed appeal on October 21, 2011.

In December 2011, our client married his U.S. Citizen wife and through our office, filed an I-130 petition on January 3, 2012.  Once we obtained the I-130 receipt notice, we filed a Motion to Reopen on January 10, 2012, within the 90-day deadline for filing Motions to Reopen with the BIA.

On January 12, 2012 our client was picked up and detained by the Immigration and Customs Enforcement. We visited our client and jail and soon filed a Motion to Stay with the BIA. A stay if approved would prevent deportation pending a pending appeal or motion. Our office argued that the Board should issue a stay of removal pending a decision on the Motion to Reopen.  The Motion to Stay was filed with evidence of a bona fide marriage, however, on January 27, 2012, the BIA denied our request for stay. We immediately called ICE and they already set a deportation date of February 2, 2012. Since there was no limit to the Motions to Stay that one can file, we prepared another Motion to Stay on January 27, 2012, spending the whole day with our client’s wife in putting in more evidence of their bona fide marriage including a broad power of attorney entrusting his wife with the management of his financial, personal, and real property interests, a joint bank account, and numerous letters and photographs from family and friends affirming the bona fide nature of their marriage.  Our office argued that these types of documents submitted with our Motion clearly demonstrate that their marriage was entered into in good faith as the BIA set forth in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). On January 31, 2012, two days before the deportation date, our Motion to Stay was approved, which meant that our client would not be deported on February 2.

Eventually, the BIA granted our client’s Motion to Reopen on February 8, 2012, and remanded it to the Immigration Judge to allow our client to apply for adjustment of status (green card). Upon approval of the Motion to Reopen, we promptly contacted ICE and requested release.  On February 10, 2012, our client finally released from the detention facility. Now he simply has to wait for his I-130 interview and once that is approved, he can apply for adjustment of status.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement
NATIONALITY: Korean
LOCATION: New York City, NY

Our South Korea client came to the U.S. on a J-1 Visa in January 2009.  She came to the U.S. to participate in an international internship program in New York City.  Upon completion of her J-1 internship program, she went back to South Korea in 2010.

While our client was in the United States for her internship, she met her U.S. citizen fiancé.  Later, they got engaged and her fiancé filed an I-129F fiancée visa petition on behalf of her in January 2011.  In May 2011, the I-129F petition was approved, and the related application materials were forwarded to the U.S. Embassy in Seoul to conduct our client’s fiancée visa interview.  In October 2011, our client had her fiancée visa interview at the Embassy.  During the interview, the Consulate officer told her that he cannot adjudicate the fiancée visa unless our client fulfills the two-year foreign residency requirement or obtain a waiver.  Although her visa was not denied, the Consulate officer told her that he would hold the decision for visa approval until client gets a waiver of the two-year foreign residency requirement.

Our client and her fiancé contacted our office in early December of 2011.  Upon consultation, they retained us in December 2, 2011.  Once retained, our office prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in New York City, NY to pursue the waiver for our client.  The Consular office requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On December 6, 2011 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to get a K-1 Fiancé Visa, and will be eligible to adjust in the United States after her K-1 admission and the subsequent marriage to her U.S. Citizen fiancé.

The Korean Consulate General in New York forwarded our client’s documents to the Korean Embassy in DC.  Soon after, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On February 2, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and will issue an I-612 approval shortly.

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

Our client came to the United States in January 2004 with an F-1 student visa from Gambia.  She married a U.S. Citizen in July 2011 and retained our office on August 31, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 8, 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 December 5, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well. On February 8, 2012, our client’s green card application was approved.

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CASE: Motion to Reopen
CLIENT: Senegalese
LOCATION: Baltimore, MD

Our client came to the United States with a valid F-1 student visa from Senegal in 2006.  Later, he married his current U.S. Citizen wife, and retained our office for his adjustment of status case.  We prepared his I-130 petition and I-485 adjustment of status application, and filed the application on March 21, 2011.

However, a week before his I-130 interview, our client’s adjustment of status application was denied.  Unbeknownst to our client and us, our client was placed in removal proceeding and the Immigration Judge issued a final order against our client in 2010.  Our client was very surprised and informed our office that he never knew of his final order, his hearing, nor the fact that he was even placed in removal proceedings.

Our client never received a Notice to Appear, and as such did not know that he was in removal proceedings, did not know that had to go to Court, did not know that he had to inform the Immigration Court through Form EOIR-33 of his change of address, and ultimately did not know that he had a final order for not appearing at his 2010 hearing.  Our client asked us for help in his case and we advised him to file a Motion to Reopen in absentia order of removal.

On June 17, 2011, our office filed a Motion to Reopen with the Baltimore 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 prior to the final order date, and other supporting documents were submitted (39 exhibits).  However, the Department of Homeland Security filed an opposition to our Motion.  In response to the DHS’ brief, our office filed a Response to the Government’s Opposition to Motion on July 8, 2011.

On December 8, 2011, the Baltimore Immigration Court denied our motion. However, our office thought that IJ’s decision was incorrect. In response to the Court’s decision, our office filed a Motion to Reconsider on December 28, 2011. On January 31, 2012, the Baltimore Immigration Court granted our Motion to reconsider and sent our office a new hearing notice for our client. Our client now does not have the final order of removal and may seek relief with the Immigration Court, or seek termination of proceedings for CIS adjudication of his green card.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement
NATIONALITY: Korean
LOCATION: Ohio

Our client is from South Korea who came to the U.S. on a J-1 Visa in August 2008.  He came to the U.S. for a NASA research fellowship, but his J-1 program made him subject to the two-year foreign residence requirement.  He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications.  Before we file his I-140/I-485 application simultaneously, he has to get a waiver for his two-year foreign residency requirement.

Once retained, our office promptly prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Los Angeles (Our client’s program sponsor was in Southern California, so the Korean Consulate General in Los Angeles has jurisdiction for our client’s application) to pursue the waiver for our client.  The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On December 7, 2011 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a National Interest Waiver petition and adjustment of status application.

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On January 10, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and will issue an I-612 approval shortly.  Now, our client can file his adjustment of status application along with his NIW petition.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Filipina
Location: Los Angeles, CA / Cleveland, OH

Our Filipina client came to the United States in 2003 with an H-1B visa to work at a Cleveland Ohio hospital as a registered nurse. Through an attorney, her employer filed an I-140 Petition for her and she eventually filed an adjustment of status application. While her adjustment of status application was pending, our client traveled abroad with an Advanced Parole travel document. While abroad, her I-485 was denied due to unauthorized work lasting over 180 days not for the H-1B company. Though her I-485 was pending during that time, her attorney unfortunately did not file an I-765 application for employment authorization document even though she was eligible. She came back to the United States in February 2007 on the same advance parole document. She was not stopped despite the I-485 denial.

She did not know about the denied I-485 and she was not notified by her attorney, thus she was under the impression the I-485 was still pending and that her advance parole was valid. She later found out about the denied I-485 upon following up with her attorney so she hired a different attorney to re-file it and address all pertinent issues. However, her adjustment of status application was denied again in 2009 and she was placed in removal proceedings with the issuance of a Notice to Appear. Part of the denial focused on her last entry on the advance parole, when she came back when her I-485 was already denied. On her Notice to Appear (“NTA”), due to her entry, she was considered an arriving alien.

Our client married her U.S. citizen spouse after removal proceedings were initiated. Meanwhile, our client’s first hearing was scheduled at the Cleveland Immigration Court.  Our client consulted with our firm to see if there was anything that could be done for them knowing that she had this entry issue involving her I-131 despite a denied I-485, and her deemed illegal work for over 180 days.

We saw from her Notice to Appear that she was considered an arriving alien and based on that, we advised her that we can apply for adjustment of status based on her marriage to a U.S. citizen.  She retained us in June 2011.

An arriving alien can adjust his or her status with the USCIS even though he or she is in removal proceedings or has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.

Under the amended jurisdictional provisions of the interim regulations, the USCIS has been given jurisdiction over adjustment of status applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

At the first hearing in Cleveland, Attorney Sung Hee (Glen) Yu accompanied our client, took pleadings, and conceded removability. He explained that since our client is an arriving alien and is married to a U.S. Citizen, that she shall file an I-130 and I-485 with the CIS, since jurisdiction for both lies with the CIS. Our office then prepared and filed the I-130 Petition and I-485 adjustment of status application in accordance with the regulations, including the bona fide marriage exemption letter mandatory for marriages entered into after removal proceedings.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.

Our client’s I-130/I-485 interview was scheduled on January 11, 2012 at the Los Angeles California USCIS field office. Prior to the interview, Attorney Yu thoroughly prepared our client and her husband for their USCIS adjustment of status interview. The preparation lasted for over an hour due to the “arriving alien” issue and other possible concerns with regards to our client’s extensive immigration history.

At the interview, Attorney Yu accompanied our client and her husband at the Los Angeles USCIS office. At the interview, the USCIS officer argued that they did not have jurisdiction to adjudicate the adjustment of status application because removal proceedings were not yet terminated. Attorney Yu argued that the USCIS clearly has jurisdiction for adjudication of our client’s adjustment application, regardless of whether proceedings were terminated. He argued that termination can occur after the adjustment of status approval. The interview lasted two hours and included a meeting between Attorney Yu and the head of the Los Angeles USCIS, as referred by the CIS officer with regard to the jurisdictional issue. After the meeting, the USCIS officer eventually approved the I-130 petition on the same day.  Eventually, our client’s adjustment of status application was approved by the USCIS on January 26, 2012.  After almost ten years in the United States, overcoming two adjustment of status denials, and being placed in removal proceedings, our client is now finally a permanent resident of the United States.

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CASE: Motion to Reopen
CLIENT: Ivorian (Cote D’Ivoire)
LOCATION: Atlanta, GA

Our client came to the United States with a valid P-1 visa from Cote D’Ivoire in 1997. Later, she married her U.S. Citizen ex-husband and her ex-husband filed an I-130 petition on her behalf. Our client also simultaneously filed an I-485 adjustment of status application.  While the petition and application were pending, our client moved to a different apartment and filed a change of address to the INS.  However, they did not receive any interview notice from the INS for two years, so they hired an immigration attorney to follow-up on their pending application.  Apparently, to no knowledge of Respondent, the INS issued an interview notice, but it was delivered to the wrong address. Only after a decade later through a file request did our client find out about the interview notice. Since our client could not appear at her interview, her adjustment application was deemed abandoned, and she was placed in removal proceedings based on her overstay.

Unfortunately, our client was not aware of the issuance of the Notice to Appear (“NTA”). Based on the file she obtained years later from her file request, the Notice to Appear (NTA) was sent by regular mail and her address was completely wrong.  Our client never lived at the address stated on the NTA and never wrote that address on any form submitted to the USCIS nor the former INS.  Our client thus never received her NTA, never knew about her being in removal proceedings nor her obligations to submit Form EOIR-33.  Because of her absence at the hearing at the Atlanta Immigration Court, the court issued an in absentia order of removal in 2001.

Our client got divorced with her ex-husband five years ago.  She married her current U.S. Citizen husband last year and contacted our office to seek legal assistance for her adjustment of status in November 2011.  After obtaining background information, we informed her that she has a final order of removal since 2001.  Our client was surprised because she actually had an attorney in 2002 to follow up on her case and she was never informed by the immigration service nor by her attorney of this final order.  She told us that she never received an NTA.  We advised her that she needs to file a Motion to Reopen in absentia order of removal.

Through a Motion to Reopen In Absentia Order of Removal, 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 your hearing. If the Notice to Appear was sent to the wrong address for example, and not the last address you provided to the immigration service, then you’d have a good basis for this type of Motion to Reopen.

On December 2, 2011, our office filed the Motion to Reopen with the Atlanta Immigration Court. Documentation of her address at the date of the final order, a detailed affidavit regarding her addresses and the circumstances around the final order date, documentation of the last address she provided to the immigration service prior to the final order, and other supporting documents were submitted (12 exhibits). The Department of Homeland Security filed a non- opposition to our Motion. On December 13, 2011, the Atlanta Immigration Court granted our motion and reopened our client’s case.  Now our client does not have a final order of removal and may seek adjustment of status relief with the Immigration Court upon approval of an I-130, or seek termination of proceedings for the CIS to adjudicate her green card application also upon approval of her I-130.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Hungarian
LOCATION: Atlanta, GA

Our client came to the United States in March 2008 as a B-2 visitor from Hungary. Although his authorized stay in the United States expired in September 2008, he remained in the United States.   He married his U.S. Citizen wife in June 2011 and retained our office on September 2, 2011 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 20, 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 for their interview. On January 26, 2012, our client was interviewed at the Atlanta, Georgia USCIS.   On the same day, his green card application was approved.

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