CASE: Adjustment of Status Based on Approved K-1 Visa

CLIENT: Slovakian

LOCATION: Vermillion, OH

Our client came to the United States in April 2019 as a K-1 visa entrant from Slovakia.  Our client is the beneficiary of an approved I-129F petition. She came to the United States as a K-1 Fiancée of a U.S. Citizen whom she married within 90 days of her entry. By law, if you married your petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible to apply for adjustment of status (green card) in the United States. She married in June of 2019. 

Our client contacted our office initially and consulted with us for her adjustment of status application. She retained our office on July 12, 2019.  After the retention, our firm quickly prepared and filed the I-485 Adjustment of Status Application on September 5, 2019. Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  

Thereafter, the USCIS scheduled an interview for our client’s adjustment of status application.  Prior to the interview, we thoroughly prepared our clients at our office. On January 7, 2020, our clients were interviewed at the Cleveland, Ohio USCIS office. Eventually, on the same day of the interview, her green card application was approved.

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CASE: Adjustment of Status Based on Approved K-1 Visa

CLIENT: British

LOCATION: Mount Vernon, NY

Our client came to the United States in July 2018 as a K-1 visa entrant from the United Kingdom.  Our client is the beneficiary of an approved I-129F petition. He came to the United States as a K-1 Fiancé of a U.S. Citizen whom he married within 90 days of his entry. By law, if you married your petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible to apply for adjustment of status (green card) in the United States. He married in August of 2018. 

Our client contacted our office initially and consulted with us for his adjustment of status application. He retained our office on September 4, 2018. After the retention, our firm prepared and filed the I-485 Adjustment of Status Application on September 6, 2018.  Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  

Thereafter, the USCIS scheduled an interview for our client’s adjustment of status application.  Prior to the interview, we thoroughly prepared our clients via conference call. On January 7, 2020, our clients were interviewed at the New York, NY USCIS office. Eventually, on the same day of his interview, his green card application was approved.

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CASE: I-485 Adjustment of Status / 245(k)

APPLICANT: Filipina Speech Language Pathologist

LOCATION: North Dakota

Our client has a current employer that was willing to petition her for a second-preference petition (I-140).  Our client has a master’s degree in speech language pathology, a valid North Dakota speech language pathologist license, and has worked for her current employer since March 2014. Based on our client’s education and work background, our office determined that she is eligible for EB-2 classification for her I-140 petition.  

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order. On January 29, 2019, we promptly filed PERM. Eventually, on April 26, 2019, the PERM Labor Certification was approved – an EB2 position for the Filipina beneficiary. 

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employee’s most recent W-2 record, and other necessary supporting documents.

The I-140 Petition was filed on May 28, 2019 via regular processing service. Eventually, on August 22, 2019, the I-140 EB2 Petition for our Filipina client was approved without any Request for Evidence (RFE). We filed her I-140 petition and I-485 adjustment of status application concurrently. 

However, our office was informed that our client’s DS-2019 was not extended by her employer and she has continuously worked for her employer without the DHS’ authorization. Thus, she worked without authorization and overstayed her visa status. 

Section 245(k) of the Immigration and Nationality Act can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

1. Failed to maintain, continuously, a lawful status; 
2. Engaged in unauthorized employment; or 
3. Otherwise violated the terms and conditions of his or her admission

INA §245(k). 

An eligible derivative of an alien may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission. 

(See page 2, Neufeld Memorandum July 14, 2008, “Applicability of section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a). 

At least, our client has not accrued over 180 days of “failure to maintain lawful status” nor over 180 days of “unauthorized employment”, and as such, she was still eligible to adjust status based on the I-485 filing through INA 245(k).

As mentioned above, our office filed an I-485 adjustment of status application for our client and her husband along with her I-140 petition. Our office also submitted a detailed cover brief and explained why our client is still eligible for the adjustment of status through 245K subsection despite her overstay and unauthorized employment.  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 January 6, 2020, our client was interviewed at Minneapolis, Minnesota USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Though interview was thoroughly held, on the same day of the interview, their I-485 applications were approved by the USCIS. 

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CASE: Marriage-Based Adjustment of Status

CLIENT: Nigerian

LOCATION: Cleveland, OH

Our client came to the United States from Nigeria with a F-1 student’s visa in August 2017. She married a U.S. Citizen in July 2019 and retained our office on September 6, 2019 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 26, 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 at our office. On January 6, 2020, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney JP Sarmiento from our office also accompanied our clients. Eventually, on the same day of the interview, her green card application was approved.

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CASE: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: Seoul, South Korea

Our client contacted us about the possibility of doing a National Interest Waiver self-petition. He is a researcher in South Korea and he is an exceptional researcher and scientist in the field of Radio Frequency (RF) / microwave engineering and mobile and wireless communication networks research. 

Our client’s significant contributions have placed him at the pinnacle of his field. Throughout his research career, our client has demonstrated his exceptional research ability as a researcher and has contributed significantly to the general progress of the efforts in the secured and special purposed network analysis and applications. Specifically, our client’s outstanding research work has strong values for multiple application spaces including the Fifth-Generation (5G) based smart city communication applications, smart factor infrastructure design and implementation, and military data communication application. Because of his innovative research, our client’s research works were highly evaluated by the 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 21-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication records, presentation records, 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 it 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 April 15, 2019. Eventually, on December 19, 2019, the USCIS approved his I-140 petition without any Requests for Evidence.  He can file his immigrant visa via consular processing.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Thai

LOCATION: Akron, OH

Our client came to the United States from Thailand on a B-2 visitor’s visa in September 2010. He married a U.S. Citizen in March 2018 and retained our office on May 1, 2018 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 21, 2018. 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 October 25, 2018, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. In July 2019, the USCIS issued a Request for Evidence and requested our client to submit more bona fide marriage documents and documents regarding his previous marital relationships with his ex-wife. Our client gathered documents and our office prepared and filed an extensive Response to RFE to the USCIS Cleveland Field Office. Eventually, on December 19, 2019, his green card application was approved.

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CASE: PERM Labor Certification    
EMPLOYER:  Food Company Petitioner in Christiansted, VI
BENEFICIARY: Filipino Warehouse Supervisory Training Specialist

Our client is from the Philippines. His prospective employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Education. After talking to our client, our firm concluded that his employer can petition him as a Warehouse Supervisory Training Specialist. Based on our client’s education and working background, our office determined that he is eligible for EB-3 classification. 

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On January 21, 2019, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on May 10, 2019. On September 7, 2019, we promptly filed PERM. Eventually, on December 18, 2019, the PERM Labor Certification was approved – an EB3 position for the Filipino beneficiary. Now our client can file the I-140 petition. 

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Las Vegas, NV

Our client came from the Philippines on a J-1 in July 2017 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States. 

In June 2019, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On July 19, 2019, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  On September 10, 2019, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On December 12, 2019, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 23, 2019, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Brazilian

LOCATION: Kaneohe, HI

Our client is a registered nurse from Brazil licensed in the state of Hawaii. She came to the United States and worked for the petitioner in the United States with her OPT status.  Her former employer was willing to petition her for a third-preference employment immigrant visa petition (I-140). 

Since she is a registered nurse, she 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 nursing degree and has worked for the sponsor-employer. Our firm told her that her employer can petition her as a Registered Nurse under the schedule A category. Our office was retained on April 4, 2019 and started on her Prevailing Wage Request.

We filed the I-140 application on October 1, 2019 via premium processing. We included the job offer letter, the notice of filing, and other necessary supporting documents.  However, the USCIS issued Request for Evidence on October 9, 2019 and requested our client to submit the Petitioner’s financial record to show ability to pay the proffered wage for our client. We filed the Response to RFE on December 11, 2019 and eventually, on December 21, 2019, the I-140 was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Chinese
LOCATION: Hingham, MA

Our client is a citizen of China who came to the U.S. on a J-2 Visa in January 2015.  She came with her husband (now, her ex-husband) who held a J-1 Visa as an exchange visitor.  Both were subject to the two-year foreign residency requirement. 

Unfortunately, while they are residing in the United States, her marriage did not work out well. Eventually, she got divorced from her ex-husband in January 2016 in China. In September 2019, she married her U.S. citizen spouse. She wanted to file the waiver so that she can file adjustment of status along with her U.S. citizen spouse’s I-130 petition.

Our client contacted our office and retained our firm to do her J-2 waiver on October 16, 2019.  On October 21, 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 December 2, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued I-612 waiver approval notice on December 18, 2019.

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