CASE: Termination of Removal Proceedings

CLIENT: Filipino

LOCATION: Chicago, IL / Los Angeles, CA

This case is an example of how new immigration regulations applied and helped in a situation where the immigrant beneficiary’s petitioner is deceased before she applied for adjustment of status.  Our client is from the Philippines and came to the U.S. on a B-2 visitor’s visa in 2001.  Since her last admission, she has overstayed in the United States.  Currently, she resides in Chicago, Illinois.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay in the United States. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjustment of status application with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners are deceased prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On January 5, 2011, our office filed a request to join in a Motion to Terminate proceedings with her I-485 application and supporting documents.  Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court (Although she currently resides in Chicago, IL, her NTA was served in Los Angeles and she did not change her venue).

Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings. With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case is now with the USCIS Chicago Office, awaiting adjudication.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Jordanian

LOCATION: Ohio

ISSUES: Permanent Residency Based on Marriage

Our client contacted us in November 2010.  She came to the United States from Jordan and married her U.S. citizen spouse eight years ago and through this marriage, she was able to obtain a green card in the United States.  She retained our office to assist her citizenship application.

Their marriage was bona fide, but a major issue was the separation of the couple years after the marriage. Although their marriage was not terminated, they physically reside in different places.  Our client was concerned about this issue because it might create an adverse effect on her naturalization application. After our initial consultation with the client, our office advised her that this issue will not be problematic since her marriage was bona fide at the inception of the marriage.  Moreover, she successfully removed the condition after two years of her marriage. She was also not applying around three years from the time her permanent residency was issued (in which case she still should be living with her US Citizen spouse), she was applying three months prior to the five-year anniversary of her permanent residency issuance (thus no need for her to be living with her husband for naturalization purposes).Therefore, it should not be a problematic issue.

The application was filed on November 23, 2010 with supporting documents. Attorney Sung Hee (Glen) Yu of our office prepared her before the interview, and was also accompanied by him on February 1, 2011 at the Cleveland CIS office.  Our client answered all questions correctly and passed her citizenship interview.  On February 7, 2011 her N-400 was approved. Her oath taking is scheduled for February 18, 2011 in which she will be a U.S. Citizen.

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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 six years ago.  She came to the U.S. to work at her internship program. Before her J-1 visa was expired, she managed to get an F-1 visa and continuously pursued her studies in Ohio.  According to her DS-2019, she was subject to the two-year foreign residency requirement, meaning you would have to go back to your home country for two-years before you can apply for permanent residency and some non-immigrant visas.

Last year, she got married to her U.S. citizen husband and later on consulted with our firm for her adjustment of status (obtaining a green card). Her situation was unique because her passport’s visa page states that she is not subject to the two-year foreign residency requirement.  However, her DS-2019 was clearly marked with the two-year foreign residency requirement.

To clarify the uncertainty, our office checked with the State Department by filing an advisory opinion request.  According to the Department of State, “if you are not sure whether the two year foreign residence applies to you, you may make a written request for an advisory opinion for the applicability of the residence requirement to your situation.”  Our office promptly filed this advisory opinion request on July 27, 2010 to the Waiver Review Division of the Department of State.

Unfortunately, the decision of the Department of State stated that our client is subject to the two-year foreign residency requirement. After our office received this decision from the Department of State, our office promptly prepared for filing a waiver request through a No Objection Statement (NOS) from the Korean Embassy in the United States.

As mentioned in a previous blog article, every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Attorney Sung Hee (Glen) Yu from our office promptly contacted the Korean Consulate General Office in Chicago to pursue the waiver for our client.  The Consulate 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 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 November 24, 2010 the J-1 Waiver 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 adjust if she obtains the waiver.

The Korean Consulate General in Chicago promptly forwarded our client’s documents to the Korean Embassy in DC.  On January 18, 2011, 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 28, 2011, 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 her adjustment of status application along with her husband’s I-130 petition.

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CASE: F-1 Reinstatement

APPLICANT: Indian

LOCATION: Los Angeles, California

Our client came from India in 2009 to pursue his Master’s in Computer Science degree in California. Unfortunately, extreme and exceptional hardships related to his family caused him to drop a course in his third semester which caused him to fail to maintain his F-1 visa status.

There are many reasons why some F-1 students fall out of status. In limited circumstances, they could still apply for F-1 reinstatement if they meet the requirements. It starts by talking to the school’s international student immigration representative. Upon providing all the necessary documentation, your immigration advisor should issue you a new I-20 with a reinstatement endorsement.  Each school has its own guidelines on what you need to show. Typically you should explain the exceptional circumstances which led you to not maintain full-time courseload.

For the USCIS to grant reinstatement, the standards are as follows:

• The student became out of status due to circumstances beyond the student’s control, or the student would suffer extreme hardship if not reinstated
• The student intends to pursue full-time study
•  No other grounds of removability (criminal cases, for example) apply to the student other than the overstay or status violation
•  The student has not worked illegally off-campus
•  The period being out of status is not more than five months, or there were exceptional circumstances for being out of status longer and the application was filed as soon as possible
•  The student does not have a record of repeated immigration violations

In early September of 2010, our client contacted our office to do his F-1 reinstatement application. Our office promptly prepared his application with various supporting documents to demonstrate that he became out of status due to circumstances beyond his control and that he would suffer extreme hardship if not reinstated.  Moreover, our office explained that our client never had any status violations prior to this incident and never engaged in unauthorized employment.

On January 12, 2011, our office was notified by the USCIS that our client’s F-1 reinstatement is granted.  Now, our client has a chance to finish his Master’s Degree.

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT : Korean

LOCATION: Virginia

ISSUE: I-751 Application Pending Divorce Proceedings

We initially met our client in our Washington DC office when she scheduled a consultation with our office. She is from Korea who came to the United States in the 90s, and has maintained her F-1 status throughout until she married a U.S. citizen in 2006. Through her marriage with a U.S. citizen spouse, she obtained a 2-year conditional green card in May of 2008.  Therefore, her conditional residency was scheduled to terminate in May 2010.  To comply with the immigration requirements, our client and her husband filed an I-751 Joint Petition to Remove Conditions in March 2010.

Unfortunately, their marriage ended in September 2010.  Moreover, our client received the Request for Evidence immediately after her husband initiated divorce proceedings. Eventually, our client contacted our office and retained us to assist her response to her Request for Evidence (RFE).

According to an April 9, 2009 USCIS Memorandum by Director Neufeld, “USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings…  If a Service Center ISO encounters an I-751 petition jointly filed by co-petitioners who are still married but are in divorce proceedings, the ISO issues the Conditional Permanent Resident (CPR) a Request for Evidence with an 87-day response period.  In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree along with a request to have the joint filing petition treated as a waiver petition.  This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refilling.”

Based on this Memorandum and with various supporting documents (over 20 exhibits and an affidavit over 5 pages) to demonstrate their bona fide marriage, on October 15, 2010, our office promptly filed I-751 Response to RFE and Request to convert joint filing to I-751 with waiver of the joint waiver requirement pursuant to the Neufeld April 3, 2009 Memorandum for I-751 Applications pending divorce proceedings.

On January 6, 2010, USCIS approved our request for the removal of conditions on her permanent resident status without even an interview. Now, she has her ten-year green card.

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CASE: I-130 / I-485

POTENTIAL ISSUES: Visa Waiver Entry – Overstay

APPLICANT / BENEFICIARY: French

LOCATION: San Francisco, California

Our client entered the United States on February 5, 2010 from France under the visa waiver program. She married her U.S. Citizen spouse on April 14, 2010.  However, her authorized stay in the United States expired on May 6, 2010.

The critical point of her green card application through a marriage was the fact that she came to the United States under the visa waiver program. On March 31, 2008, the 9th Circuit Court of Appeals in Momeni v. Chertoff issued a decision in a Visa Waiver overstay case that has presented difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status.

Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S., to visit and then leave without all the red-tape involved in visa issuance.  In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, and later was taken into custody for having violated the terms of his stay. Eventually, the holding in Momeni made in hard for VWP entrants to adjust their status in the United States after their authorized stays expired.

Our client resides in California, so her application was subject to the holding in Momeni. Despite facing having to potentially deal with this case, our office filed the I-130 Petition and Adjustment of Status Application on July 7, 2010.  In the application, our office requested CIS discretion for our client’s application. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in filing the I-130 and the I-485. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. We prepared our clients over the phone for their interview. On January, 2011, our client was interviewed in San Francisco, CA.  That same day, without any objection, the officer granted our client’s petition and her green card application.  Now, our client is a green card holder and she got it despite filing her adjustment of status application after her VWP overstay.

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CASE: Adjustment of Status – First Preference Petition

CLIENT: Jamaican

LOCATION: Connecticut

Our client has been on F-1 status for many years. He went to colleges in the United States, and has maintained his status lawfully throughout his stay in the United States.  His mother was a naturalized U.S. citizen, and wanted to file her I-130 petition on behalf of her son.  However, since our client was over 21 years old at the time of filing the I-130 petition, our client had to wait 5 years to have a current priority date.

As mentioned before, parents, spouses and children of U.S. citizens are considered “immediate relatives,” and these “immediate relatives” do not need to worry for backlogged priority dates.  However, if children of U.S. citizens are over 21 years old at the time the I-130 petition is filed, then they are not considered “immediate relatives” anymore and would have to wait. They would then fall under the 1^st preference category.  (According to the January 2011 Visa Bulletin, the priority date is January 1, 2005).

Our client’s mother filed an I-130 petition for her son back in January of 2005 and this I-130 petition was approved.  Our client retained us in July of last year and discussed with us his adjustment of status issues. On August 12, 2010, our firm filed the I-485 Adjustment of Status Application and I-765 Work Authorization application.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  There was no Request for Evidence.  On November 15, 2010, our client was interviewed in Hartford, Connecticut.   On December 30, 2010, the USCIS approved his adjustment application. After several years in the U.S., our client if finally a green card holder.

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CASE: H-1B Visa Petition

PETITIONER:  Law Firm

BENEFICIARY: Lawyer

Our client is a boutique law firm. The beneficiary  obtained his Juris Doctor (J.D.) degree in the United States and is admitted in a State Bar to practice law. The proffered position for the Beneficiary is an associate attorney which clearly qualifies as a specialty occupation. One could not work as an associate attorney without having a bar license, which one could not even apply for without a law degree (which equates to a “Master’s Degree or Higher” standard for H-1B petitions).

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on December 14, 2010 via premium processing service. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on December 27, 2010 which was within two weeks.  Now our client can work as an associate attorney for his employer as an H-1B visa holder and he can work there for next three years.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company

BENEFICIARY: Mexican

LOCATION: Ohio

ISSUE: Third-Party Placement / Consulting Company Issue

Our client is an IT consulting company in Ohio. The beneficiary is a Mexican who obtained a Bachelor of Engineering degree.  The proffered position for the Beneficiary was a computer systems analyst which qualifies as a specialty occupation.  Previously, the petitioner filed an H-1B visa petition on behalf of the beneficiary, but it was denied by the USCIS due to third-party placement issue.

Thereafter, our office promptly filed the H-1B visa petition with various supporting documents on November 10, 2010 via premium processing service. On November 24, 2010, the USCIS requested the petitioner to submit additional evidence to rebut the third-party placement issue.  This issue of “in-house” employment was the main reason why the beneficiary’s previous H-1B visa petition was denied. This issue has been prevalent since a memorandum was issued over a year ago targeting IT and Business Consulting companies, as they typically act as a bridge to eventually place their employees under the control of their clients – a third party.

Upon our receipt of the RFE from the USCIS, Attorney Sung Hee (Glen) Yu prepared a detailed response with several exhibits as a response to the RFE.  The exhibits included information regarding the Petitioner-Employer, a detailed letter from Petitioner-Employer regarding the beneficiary’s In-House Employment, and various charts and spreadsheets detailing the particular in-house project of the position. In the cover letter to the USCIS, Attorney Yu explained the nature of the in-house employment setting between the Petitioner and the Beneficiary with a detailed explanation of specific projects that the beneficiary will work on at the Petitioner’s own site. Our firm also submitted various supporting documents to illustrate to the CIS the complexity of beneficiary’s project.

Our office filed the response to RFE with the USCIS California Service Center on December 21, 2010.  Our client’s H-1B application was approved on December 28, 2010.  It was approved within a week after the response to RFE was filed.  Now our client can work for his employer as an H-1B visa holder and he can work there. His wife’s I-539 H-4 application was also approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce, I-130, and I-485 Green Card Process

NATIONALITY: Filipino

LOCATION: New Jersey

Our client is a Filipino national who came to the U.S. on a J-2 Visa. He came with his ex-wife who was on a J-1 Visa. Both were subject to the two-year foreign residency requirement, meaning you would have to go back to your home country for two-years before you can apply for permanent residency and some non-immigrant visas. (Please read the article below for more details about J-1 Waiver and 2 year foreign residency requirement).

He got divorced from his wife and later on thought of marrying his U.S. Citizen girlfriend. He consulted with our firm on whether he can apply for a green card upon marriage. We told him he could not because he is still subject to the two-year foreign residency requirement. We first had to do a waiver of this requirement. Our firm was retained to do this J-2 waiver on April 7, 2010. On April 9, 2010 the J-2 Waiver 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 is divorced from the J-1 visa holder. On April 28, 2010 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On May 28, 2010, the USCIS approved the waiver of the 2-year foreign residency requirement.

After our office got his waiver, our client got married in a few months. Our office then filed the I-130 Petition, I-765 Work Authorization Form and I-485 Adjustment of Status Application on September 3, 2010. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. On November 10, 2010, our client got his work authorization card from the USCIS.

In early December, Attorney Sung Hee (Glen) Yu thoroughly prepared our client and his wife for their upcoming USCIS marriage interview. We prepared our clients with potential questions at the interview.  On December 9, 2010, our client was interviewed in Newark, New Jersey. Attorney Sung Hee (Glen)Yu accompanied the clients at the interview as well.  After the interview, on the same day, the USCIS officer granted our client’s adjustment of status application.  Our client finally is now a green card holder.

Pursuant to federal immigration law, our office first obtained a J-2 waiver for our client before we filed the I-130/I-485.  Our client’s J-2 waiver was approved less than two months after we filed it.  Also, it only took three months for our client to get his green card once we filed client’s I-130 and I-485 applications simultaneously.

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