CASE: Adjustment of Status / 245(i)
CLIENT: Chinese
LOCATION: Columbus, Ohio

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Our clients came from China and had approved I-130 petitions (F-4 category) filed by our client’s U.S. Citizen brother in 1987.  Now that their son (over 21 years old) is a U.S. Citizen, we also filed an I-130 petitioned by their son on their behalf.  However, they have an EWI (Entry without Inspection and Admission) record in 2008. Since our clients are beneficiaries of an approved I-130 F4 petition filed in 1987, they can still adjust status through INA § 245(i) despite their entry issue. Also, since the F-4 petition was filed before January 14, 1998, physical presence in December 2000 was not required.

Our office was retained on May 23, 2011. We prepared and filed the Adjustment of Status Application with Form I-485 Supplement A on July 9, 2011.  Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients with our Chinese speaking staff.   On October 11, 2011, our client was interviewed at the Columbus, Ohio USCIS office.  We accompanied them at the interview as well. Prior to the interview, we submitted a brief pertaining to the INA § 245(i) issue, including documents evidencing the fact that an I-130 was filed in 1987. The petition and green card applications were approved on the same day.

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Case: Motion to Reopen / Terminate with the Immigration Court
Nationality: Chinese
Location: Newark, NJ

Our client had a final order of exclusion from the Newark Immigration Court in 1992. He was considered an arriving alien, was inspected by the DHS officer, and was paroled into the United States.  Despite his final order of exclusion, our client remained in the United States and eventually married his U.S. Citizen spouse.  In 2008, this client ultimately obtained his permanent residency through adjustment of status with the USCIS as an arriving alien.

After he obtained his permanent residency, he retained our office to terminate his final order of exclusion.  Since he had a final order of exclusion from the Newark Immigration Court, our office filed a Sua Sponte Motion to Reopen and Terminate to the Newark Immigration Court on September 13, 2011.  In the Motion, we contended that our client’s case should be re-opened and terminated since our client already obtained his permanent residency.  Our client wanted his order of exclusion terminated to avoid potential issues or confusion with the immigration service, such as when he travels abroad and comes back through one of the port of entries.  We also noted that Respondent is not disputing the validity of his permanent resident card, but asked for removal proceedings to be terminated.

As a result, the Newark Immigration Court granted our Sua Sponte Motion to Reopen and Terminate on October 3, 2011. Our client now does not have a final order of exclusion on his records.

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CASE: Master Calendar / Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Eloy Immigration Court, AZ

Our office was contacted in early September regarding a Chinese individual detained in Eloy, Arizona. This person tried to enter the United States without valid documents and was incarcerated by immigration officers.

Prior to retention, the Immigration and Customs Enforcement already set a very high bond amount.  Our client wished to have that reduced so we filed a motion for bond redetermination with the Eloy Immigration Court in Arizona.  Our office communicated with her and her U.S. resident relative in Connecticut, and gathered as much information regarding her relief, equities, criminal record, family ties, and financial ability to post bond.  We also gathered supporting documents from those relatives, from proof of their status and residence, to bank statements and tax returns.

On October 3, 2011, we represented our client for her Eloy Arizona Immigration Court master calendar hearing and bond re-determination hearing simultaneously.  During the Master Calendar hearing, we did pleadings for our client, and requested asylum relief.  During the bond re-determination hearing, we explained to the Court that our client already passed her credible fear interview, was not a flight risk, had established her residence upon release, had established her financial ability to post bond, and that she had ample family ties in the United States who submitted proof of their residence and immigration status.  Moreover, our office explained that her lack of criminal record, designated address with contact information from his relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  We also emphasized that our client is a young female individual, and explained briefly the nature of her asylum claim. At the end of the hearing, the Immigration Judge took our arguments into account and reduced the bond to only one-third of the  amount the DHS originally set it for.

Our client has been released and is in the process of preparing her asylum application.

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Case: Motion to Reopen / Terminate with the BIA
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  After he arrived at the port of entry, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002.  He appealed with the BIA and that too was denied. Thus, he had a final order of removal.

Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. Citizen spouse.  As we stated in a previous success story, this client ultimately obtained his permanent residency through adjustment of status with the USCIS as an arriving alien.

After he obtained his permanent residency, he retained our office again to terminate his final order of removal.  Since he had a final order of removal, our office filed a Motion to Terminate Proceedings to the Board of Immigration Appeals (BIA) on August 26, 2011.  Although the DHS opposed our motion, the BIA granted our Motion to Terminate on September 30, 2011. Our client now does not have a final order of removal on his records.

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CASE: Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Florence Immigration Court, AZ

Our office was contacted in late August regarding a Chinese individual detained in Florence, Arizona. This Chinese client tried to enter the United States without valid documents and was incarcerated by immigration officers.

Prior to retention, the Immigration and Customs Enforcement already set a very high bond amount.  Our client wished to have that reduced so we filed a motion for bond redetermination with the Florence, Arizona Immigration Court.  Our office communicated with him and his U.S. resident relative in New York, and gathered as much information regarding his relief, equities, criminal record, family ties, and financial ability to post bond.  We also gathered supporting documents from those relatives, from proof of their status and residence, to bank statements and tax returns.

On September 15, 2011, we represented our client for his first Master Calendar hearing.  Our client did pleadings, requested asylum relief, and requested a bond re-determination hearing.  The Immigration Judge set a bond re-determination hearing on September 27, 2011.

On September 27, 2011, we represented our client for his Florence Arizona Immigration Court bond re-determination hearing.  During the hearing, we contended that our client was eligible for asylum relief, passed his credible fear interview, was not a flight risk, had established his residence upon release, had established his financial ability to post bond, and that he had ample family ties in the United States who submitted proof of their residence and immigration status.  Our office emphasized that his lack of criminal record, designated address with contact information from his relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  The Judge took our arguments into account and reduced the bond amount by a substantial amount.

Our client has been released and is in the process of preparing his asylum application.

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CASE: Asylum in Immigration Court
CLIENT: Chinese
LOCATION: Elizabeth, New Jersey Immigration Court

Our client, through his relative in the United States, retained us in May 2011 to help him with his asylum case. He is from China and came to the United States with a fraudulent passport.  He was not inspected nor admitted into the United States, and was detained in the Elizabeth New Jersey CDF facility.  He passed his credible fear interview and at his Master Hearing, with our firm representing him, he applied for asylum, withholding of removal and relief under CAT.  Our client is scared to go back home to China, fearing that he will be persecuted on account of his political opinion against the “one-child policy (forced family planning)” in China.

Our client lived in China with his wife and son.  However, he learned that his wife was pregnant again early this year.  Fearing forced abortion against her, our client told his wife to hide and did not report her pregnancy to the local Family Planning Office. According to our client, forced abortions and sterilization surgeries are common in his village in China.   Later, the Family Planning Office personnel came to his house and looked for his wife several times.  When they could not find her, they forced to take our client for sterilization surgery.  Our client opposed the Family Planning Office and its personnel, and he had a physical altercation with them.  The officials punched and beat him.  Eventually, our client managed to escape and fled his home town.  He left China and arrived in the U.S. in April 2011.

Once retained, we helped him prepare his asylum application.  We also asked him to provide supporting documents corroborating his claim, some of which were a letter from his wife, the notarial birth certificate of his son, medical records of his wife, and a family planning procreation and birth healthcare service booklet for his wife.  Our firm also did some research on articles pertaining to his particular claim, and the type of persecution he will experience in China if sent back.

Our client’s individual hearing was scheduled on September 12, 2011 at the Elizabeth Immigration Court in New Jersey. Attorney Sung Hee Yu represented our client at the hearing. During the hearing, our client testified credibly as to his past persecution in China and likelihood of future persecution. On September 20, 2011, the Immigration Judge granted asylum relief for our client and our client was subsequently released. He is now an asylee and will be eligible to apply for permanent resident status in one year. He also would obtain his work permit in about two weeks.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Hotel-Chain Company
BENEFICIARY: Hotel General Manager

Our client is the nation’s fastest-growing extended hotel stay chain company in Ohio. They contacted our office in early June to seek legal assistance from our office for their foreign employee.  The beneficiary is from Pakistan and has extensive work history in the United States as a General Manager in one of the leading brand hotels for 13 years.  This proffered position is a “specialty occupation” because the minimum requirement for this position are a Bachelor’s Degree in Business Administration / Hotel Management or equivalent.

The foreign beneficiary in this case already had his H-1B visa from his previous employer in a similar industry.  However, his H-1B visa was not expired yet, and he wanted to extend his H-1B status based on a change in employer.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on June 20, 2011 via regular processing.  Since this petition was based on a change in employer, it was exempted from the annual H-1B cap.  On August 12, 2011, the USCIS issued a Request for Evidence (RFE) regarding his past pay stubs to evidence his continued H-1B status. During the validity of his previous H-1B status, his previous employer was acquired but everything pertaining to his position, from the duties to the location to the salary, stayed the same. But he did not file an amendment of his H-1B.  In response to that issue, our office promptly filed a Response to the RFE on August 30, 2011 which included the paystubs from the previous two employers. We cited INA § 214(c)(9)(A)(ii) which states that “an amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.”

Eventually, our client’s H-1B Petition was approved on September 20, 2011.  Moreover, the Beneficiary’s wife and minor son’s H-4 status was properly changed as well. Now the Beneficiary can continue working for his Petitioner-Employer as an H-1B visa holder until 2013.

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CASE: Motion to Reopen and Rescind an In Absentia Order of Removal Based on Exceptional Circumstances
CLIENT: Moldovan
LOCATION: Baltimore, Maryland

Our Moldovan client came to the United States in 2008 with a J-1 visa.  Her ex-husband filed for asylum and she was a derivative applicant for this asylum application. After the application was filed, our client attended all necessary appointments related to her immigration applications.  She went to the CIS office to do her fingerprinting, and attended her asylum interview at the Arlington Asylum office.  Our client also attended her first Master Calendar hearing on March 2010 after her ex- husband’s asylum case was referred to the Baltimore Immigration Court.  Eventually, Respondent and her ex-husband’s individual hearing dates were scheduled on May 19, 2011.

Due to marital difficulties between our client and her ex-husband, her previous lawyer filed a Motion to Deconsolidate in October 2010.  Since our client was a derivative asylum applicant with her ex-husband, the Motion stated that she had her own independent grounds for seeking asylum relief.  Nonetheless, since she filed the Motion to Deconsolidate, she never got a response from her previous attorney nor the Court regarding the possible deconsolidation.

From May 16, 2011 to May 24, 2011, our client was in a great deal of pain with headaches, fever, and other symptoms that resulted from the extraction of her tooth on April 30, 2011.  On the days leading up to the hearings, our client got very sick, including May 19, 2011, the individual hearing date. Thus she did not appear before the Court on her individual hearing date.

She later learned about her order of removal on August 3, 2011.  On that day, the divorce between our client and her ex-husband was finalized.  When our client met her ex-husband, he informed her that she was ordered removed on May 19, 2011 because of her absence at the hearing. Her ex-husband was in that hearing and actually won his asylum case. Once she learned about the order of removal, she immediately contacted her previous attorney and explained to him that she was not able to attend her hearing due to illness.  Our client never received anything pertaining to her order of removal.  She intended to attend Court on May 19, 2011 but was too sick to do so.

Our client contacted and retained our office on August 15, 2011 for the Motion to Reopen and Rescind her in absentia order.  After listening to her reasons and learning the surrounding circumstances pertaining to her non-appearance in Court, our office determined that the Immigration Court will most likely grant our client’s Motion to Rescind an in absentia order based on exceptional circumstances.

We contended that our client could not attend at the hearing due to her medical condition and her absence was inevitable due to her sickness.  Our office included supporting documents such as a doctor’s letter, copies of her medical prescriptions, a letter from her employer stating her absence from work around the time of the Individual Hearing, etc.  Our office filed the Motion on August 18, 2011 within the statutory time frame.  The DHS, however, opposed our Motion, so we filed a response on August 31, 2011.   On September 20, 2011, the Baltimore Immigration Court granted our client’s Motion and rescinded the order of removal.  Our client’s case is re-opened, and she can now pursue her asylum claim.

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

Our client came to the United States in May 2009 with a J-1 Exchange Visitor visa from Moldova.  She was not subject to the two-year foreign residency requirement, so she could apply for adjustment of status in the United States without a waiver.  She married a U.S. Citizen in December 2010 and retained our office in May 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on June 7, 2011.  Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On September 1, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On September 16, 2011, her green card application was approved.

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CASE:  Adjustment of Status, I-601 Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: From Grenada

LOCATION: New York, NY

Our client entered the U.S. in 2000 as a tourist.  Later, she married to U.S. citizen husband and her husband filed an I-130 petition for her and she concurrently filed an I-485 adjustment of status application in 2010.  Our client also filed an I-601 hardship waiver application with her adjustment of status with the help of her previous immigration lawyer.  She needed to file an I-601 waiver because she was found inadmissible due to her previous immigration law violation.

In 1992, our client tried to come to the United States from Canada with someone else’s passport.  She encountered the border patrol officer and the officer denied her entry.  As a result of her this, she was found to be inadmissible pursuant to 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).

In 2010, her green card application was denied due to this fraud, and because the I-601 that should have waived the fraud inadmissibility was denied.  The denial pointed out that there was not enough hardship to meet the standards for the I-601 waiver application. She filed an appeal to AAO and this was denied as well.

Our client contacted our office in January 2011 to pursue her I-601 waiver once again. She was not yet in removal proceedings so she re-filed her green card application. Our firm thoroughly analyzed why her previous I-601 waiver application was denied.  Based on her story and surrounding circumstances (hardship to her U.S. citizen husband if she is deported), our office determined that she has a good chance to win I-601 application as long as it is extensively prepared.  Our client already re-filed her I-485 adjustment of status application, but she sought legal assistance from our office for her I-601 waiver.  Eventually, she retained our office on February 8, 2011.

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.

There is a seminal BIA case that deals with this waiver.  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 I-601 application had a good chance since our client’s U.S. Citizen husband suffers from chronic severe pain in his bone muscles due to an past incident in which he was shot in the leg. In the I-601 brief and supporting documents, our office included extensive medical reports of her husband.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.  Her husband needs consistent and continuous physical therapy to help deal with his pain. Also, it would be extremely difficult for him to get the same level of physical therapy and satisfactory access to medical services in Grenada in case he joins our client there.  Our office also included the U.S. Department of State Travel Advisory Section for Grenada to highlight the extremely poor medical services in Grenada.

In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in Grenada, and that her LPR daughter and her husband will face extreme financial and emotional difficulties if she is removed.

In April 2011, our client had her second I-485 adjustment of status interview in New York.  On April 7, 2011, the CIS NY office requested our client to submit an amended extreme hardship statement and supporting documents for her I-601 waiver application.  On April 22, 2011, our client submitted our I-601 waiver application which included the brief in support, her husband’s medical records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

Her I-601 waiver and I-485 green card application were approved on September 14, 2011. She is finally a green card holder and her inadmissibility has been completely waived.

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