CASE: Marriage-Based Adjustment of Status

CLIENT: Venezuelan

LOCATION: Lakewood, OH

Our client came from Venezuela and came to the U.S. as a J-1 researcher. Her J-1 status made her subject to the two-year foreign resident requirement. Our client would like to file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under the No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for her programs which made her case pretty much impossible for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue her J-1 waiver based on exceptional hardship. 

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.” 

Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 

After she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On March 15, 2018, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen husband’s medical conditions.  On March 20, 2018, our office filed an I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to Venezuela for two years. Eventually, the USCIS approved his I-612 waiver on August 19, 2019.  

After her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October 1, 2019.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On August 24, 2020, our client was interviewed at the Cleveland Ohio USCIS office.  Attorney Sung Hee (Glen) Yu, Esq. from our office also accompanied our clients. The interview went well, and eventually, on August 25, 2020, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Ivorian

LOCATION: Streetsboro, OH

Our client came to the United States from Ivory Coast on a F-1 student’s visa. He married a U.S. Citizen in July 2019 and retained our office on August 28, 2019 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October September 20, 2019.  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 as well. On August 21, 2020, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, on the same day of the interview, his green card application was approved.

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CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Nursing / Rehabilitation Center
BENEFICIARY: Filipino
LOCATION: Des Plaines, IL

Our client is a registered nurse in the Philippines.  His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Since he is a registered nurse, he is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included on Schedule A.

Our client has a nursing degree and has several years of related experience. During the consultation, our firm concluded that his prospective employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on July 8, 2019 and we started on the prevailing wage request. 

We filed the I-140 application on March 18, 2020 via regular processing. We included the job offer letter, the notice of filing, his degrees and a nursing license, and other necessary supporting documents.  Eventually, on August 18, 2020, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition when his priority date becomes current.

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CASE: Adjustment of Status / EB-1A
NATIONALITY: Brazilian
LOCATION: Glendale, CA

Our client is a citizen of Brazil who came to the U.S. on a J-2 Visa in September 2011.  He came with his wife (now, his ex-wife) who held a J-1 Visa as an exchange visitor.  Both were subject to the two-year foreign residency requirement. 

Unfortunately, he got divorced from his ex-wife in January 2019. Prior to their divorce, our client got an approved I-140 EB-1A self-petition. He wanted to file a waiver so that he can file an adjustment of status application once his priority date becomes current.

Our client contacted our office and retained our firm to do his J-2 waiver on June 13, 2019.  On June 28, 2019, the J-2 Waiver (DS-3035) 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 was divorced from the J-1 visa holder.  Eventually, on July 22, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued the I-612 waiver approval notice on August 7, 2019. 

Once the J-2 waiver was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application on November 19, 2020. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on August 13, 2020, the USCIS National Benefits Center approved our client’s adjustment of status application without an interview. Now he is a green card holder.

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CASE: I-485 Adjustment of Status  / National Interest Waiver

CLIENT: Korean

LOCATION: Port Jefferson, NY

Our client contacted us in November 2018 about the possibility of doing a National Interest Waiver self-petition. He is a Ph.D. student from South Korea and he has a Master’s Degree in Chemistry. Though he is a Ph.D. student, he is already considered as an exceptional researcher and scientist in the field of synthetic organic chemistry and pharmaceutical research. 

Our client’s significant contributions have placed him at the pinnacle of his field. He has made important contributions in synthesizing chalcone-based small molecules and its biological data.  His research work is very important to the field of Parkinson’s disease therapy. Moreover, our client synthesized more than 100 small molecules targeting Receptor Interacting Protein Kinase (RIPK) enzymes for the treatment of dry Age-related Macular Degeneration (dry AMD).  Because of his innovative experimental research, our client’s works were highly evaluated by reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id. 

Our office prepared a 22-page brief for our client’s NIW filing. Our client also obtained 7 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication record, presentations, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to his field of endeavor, that he is well positioned to advance the proposed endeavor, and that  would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client. 

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on March 20, 2019. Eventually, on September 6, 2019, the USCIS approved his I-140 petition without any Requests for Evidence.  

Once his I-140 petition was approved, he retained our office again and to file an adjustment of status application for him, his wife and daughter. On October 7, 2019, our office filed an I-485 adjustment of status application for our client and his family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference calls as well. On August 20, 2020, our client was interviewed at the Holtsville New York USCIS office. The interview went well, our client and his family members’ adjustment of status applications were approved by the USCIS on the same day of the interview. 

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CASE: H-1B Visa Petition

PETITIONER: School District in Eagle Butte, SD

BENEFICIARY: Filipino Junior High Math Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in March 2020 to seek legal assistance from our office for their foreign employee. The beneficiary is a Junior High Math Teacher from the Philippines who has been working for this employer for the last 5 years under a J-1 status. Though he was subject to the INA 212(e), two-year foreign residency requirement, he already obtained a J-1 waiver from the USCIS. 

The proffered position for the Beneficiary is a Junior High Math Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2021 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B). 

Once retained, our office filed the H-1B visa petition with various supporting documents on August 7, 2020 via premium processing. Eventually, our client’s H-1B application was approved on August 19, 2020 without any RFE.  He can now work for his employer for three years on an H-1B status.

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Case: I-130/I-485
Applicant/Beneficiary – British
Location: Parma, OH

Our client entered the United States in April 2019 from the United Kingdom under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States only for 90 days.  She has a  U.S. citizen husband whom she married in August 2018. After she last entered the United States in April 2019, she had not left. 

In June 2019, they contacted our office to consult about the adjustment of status process. After the consultation, they retained our office on June 6, 2019.  One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  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 United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on July 20, 2019.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and the work permit all came on time. Prior to the interview, we thoroughly prepared our clients at our office. On July 27, 2020, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  Attorney Sung Hee (Glen)Yu, Esq. accompanied our clients. Eventually, the USCIS approved her adjustment of status application on August 13, 2020.  She is now a green card holder. 

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CASE: I-140 (EB-3 Category) / Schedule A 

EMPLOYER: Hospital

BENEFICIARY: Filipina Registered Nurse

LOCATION: Crosby, ND

Our client’s beneficiary is a registered nurse from the Philippines who is currently working in UAE. Her prospective U.S. employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

Since he is a registered nurse, he is eligible for “Schedule A” classification. The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included in Schedule A.

Our client has a Bachelor’s of Nursing degree and has passed the NCLEX exam. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on January 14, 2020, and we started on her Prevailing Wage Request.

We filed the I-140 application on June 9, 2020 via regular processing. We included the job offer letter, the notice of filing, and other necessary supporting documents. On July 17, 2020, upon our client’s request, we upgraded her processing to premium processing by filing a I-907 application with the required fee. 

On July 27, 2020, the USCIS issued a Request for Evidence (RFE) regarding our clients name change (married name). Our office filed the RFE responses immediately. On August 14, 2020, the I-140 was approved. Now, our client can file an immigrant visa application based on the approved I-140 petition when her priority date becomes current.

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CASE: I-140 (EB-3 Category) / Schedule A
EMPLOYER: Nursing / Rehabilitation Center
BENEFICIARY: Filipino
LOCATION: Des Plaines, IL

Our client is a registered nurse, who is currently working at a large nursing and rehabilitation facility in Des Plaines, Illinois. His employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Since he is a registered nurse, he is eligible for “Schedule A” classification. 

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the USCIS without first going to the DOL for labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Professional Nurses is included on Schedule A.

Our client has a nursing degree and has several years of related experience. During consultation, our firm concluded that his employer can petition him as a Registered Nurse under the schedule A category. Our office was retained on July 31, 2019 and then we started to work on the Prevailing Wage Determination filing and other related procedures. 

We filed the I-140 application on March 18, 2020 via regular processing. We included the job offer letter, the notice of filing, his H-1B status approval notices, and other necessary supporting documents.  On July 24, 2020, upon our client’s request, we upgraded his processing to premium processing by filing a I-907 application with required fees. On August 11, 2020, the I-140 was approved. Now, our client can file an I-485 adjustment of status application based on the approved I-140 petition when his priority date becomes current.

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

NATIONALITY: Indonesian                                                                                                     

LOCATION: Jacksonville, FL

Our client is from Indonesia who came to the U.S. on a J-1 Visa in April 2007.  He. for work training, and his J-1 program subjected him to the two-year foreign residency requirement.  After his J-1 program was completed, he remained in the United States. 

In March 2019, our client married his U.S. Citizen wife.  He is eligible to get a green card through his marriage to a U.S. citizen; however, before we can file his I-130/I-485 application simultaneously, he has to get a waiver of theis two-year foreign residency requirement. He consulted with our office retained us on December 20, 2019. 

Upon retention, our office prepared the waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  We contacted the Indonesian Embassy in Washington D.C. to pursue the waiver. The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of his valid Indonesian passport, and a copy of the Form DS-3035 application.  

On January 2, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a marriage based adjustment of status. 

The Indonesian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 24, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and issued an I-612 approval notice for our client’s waiver of two-year foreign residency program on August 7, 2020.  Now, our client can file his adjustment of status application along with the I-130 petition.

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