CASE: H-1B Visa Petition

PETITIONER:  Functional Food Company in Dallas Texas

BENEFICIARY: Indian Industrial Engineer

Our client is a global healthy functional food company in Dallas, TX. They contacted our office in later February of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained her Master of Science in Industrial Engineering in the United States. The proffered position for the Beneficiary is an Industrial Engineer which clearly qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 30, 2018 via regular processing service. This H-1B petition was selected after the lottery. Our client’s H-1B application was approved on June 21, 2018 without any Request for Evidence (RFE).

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Chinese

LOCATION: Cleveland, OH

Our client is from China who came to the U.S. on an H-1B visa. In May 2017, our client married her current U.S. citizen husband.  She retained our office for her green card application in June 2017. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on June 27, 2017.  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 June 4, 2018, our client was interviewed at Cleveland Ohio USCIS office.  Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Eventually, on June 5, 2018, her green card application was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: Cincinnati, OH

Our client is a citizen of China who came to the U.S. on a J-2 Visa in 2009.  He came with his father who came on a J-1 Visa for his research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

He turned 21 in 2011. He would like to get a waiver because he has a prospective employer who will file an H-1B petition for him next year. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in November 2011.

Our firm was retained to do his J-2 waiver, and on April 12, 2018, the J-2 Waiver application (Form DS-3035 and supporting documents) 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 reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on May 4, 2018, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On May 29, 2018, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Change of Employer

PETITIONER: Waste Management Company

BENEFICIARY: Indian Chief Financial Officer

LOCATION: St. Louis, MO

Our client is a wastewater treatment and management company in St. Louis, MO area. They contacted our office in early September 2017 to seek a legal assistance from our office for their foreign employee. The beneficiary is from India and she obtained her Master’s degree in Business Administration. The proffered position for the Beneficiary is a Chief Financial Officer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Master’s Degree in Business Administration or its equivalent.  

The foreign beneficiary in this case already had her H-1B visa from her previous employer.  However, her H-1B visa was not expired yet, and she wanted to extend her H-1B status on the change of employer basis.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on September 27, 2017. Since this petition was based on the change of employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to the April 1. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B Petition was approved on April 24, 2018. Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for next three years.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: New York, NY

Our client is a citizen of China who came to the U.S. on a J-2 Visa in January 1998.  She came with her mother who came on a J-1 Visa for her research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, she was attending a school and changed her status to F-1.

She turned 21 in August 2012. She has a U.S. citizen fiancé who will file I-130 petition for her after they get married.  However, because of her two-year foreign residency requirement, our client cannot adjust her status in the United States without the fulfillment of requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in August 2012.

Our firm was retained to do her J-2 waiver, and on December 19, 2017, the J-2 Waiver application (Form DS-3035 and supporting documents) 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 reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on February 5, 2018, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On April 4, 2018, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Extension

PETITIONER: Elementary School

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: New Mexico

Our client is a public grant elementary school for Native Indians in New Mexico. They contacted our office to seek assistance for their foreign employee. The beneficiary is from the Philippines and she obtained her Bachelor’s degree in English. The proffered position for the Beneficiary is an elementary school teacher which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case already had her H-1B from our client last year.  She also has an approved I-140 petition which allows her to get three year extension. Her H-1B status was not yet expired, and she wanted to extend her H-1B status.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on December 13, 2017 via regular processing.  Since this petition was based on an extension, this petition was exempt from the annual cap of the H-1B. Thus, we could file prior to April 1, 2018.  Eventually, our client’s H-1B Petition was approved on March 8, 2018 without any RFE. Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can continuously work there.

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2015 from South Korea under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.  However, after her authorized stay period expired, our client remained in the United States.

Later, in August of 2015, our client and her U.S. citizen boyfriend married in the United States. They contacted our office, and retained our office on November 6, 2017.  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.

Since our client resided in Cleveland, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny her application because of her visa waiver entry.  

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on December 1, 2017.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. 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 February 22, 2018, our client was interviewed at the Cleveland, Ohio USCIS Field Office. Attorney Sung Hee (Glen) Yu accompanied them at the interview as well.  Despite the visa waiver issue, the USCIS approved her green card application on March 6, 2018.  Now, our client becomes a green card holder.

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

NATIONALITY: Thai

LOCATION: Dallas, TX

Our Thai client came to the U.S. on a J-1 Visa in November 1991, and his J-1 visa made him subject to the two-year foreign resident requirement. After completion of the J-1 program, he remained in the United States. His wife became a naturalized U.S. citizen, but our client could not file his adjustment of status application due to his two-year foreign residency requirement. He had to obtain a waiver first.

He contacted our office and retained our office in April 2017. After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Thai Embassy in the United States.  Our office contacted the Thai Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested several different documents including a statement of reason for the waiver, a notarized copy of the marriage certificate, a notarized copy of his US citizen Wife’s US passport Biographic Page, a notarized copy of his valid Thai passport, and a copy of Form DS-3035.

On May 15, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Thai Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Thai Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 10, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on January 29, 2018.  Now that our client’s two-year foreign residency requirement is waived, he can file an adjustment of status application with his wife’s I-130 petition.

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

NATIONALITY: Nepalese

LOCATION: Portland, OR

Our Nepalese client came to the U.S. on a J-1 exchange visitor’s visa for his research program. Thereafter, he changed his status from J-1 to O-1 to work in the United States. His employer intended to file an I-140 petition for him, and with the I-140 petition, our client plans to file adjustment of status application in the U.S.  However, his J-1 visa made him subject to the two-year foreign resident requirement. Due to the two-year foreign residency requirement, he had to obtain a waiver first before he can file an adjustment of status application.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Nepalese Embassy in the United States.  Our office contacted the Nepalese Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested numerous documents including a statement of reason for the waiver, the applicant’s resume, a copy of his valid Nepalese passport, a copy of DS-2019, and a copy of Third Party Bar Code Page

On April 20, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Nepalese Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file an employment-based adjustment of status application but for the waiver.

The Nepalese Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On June 12, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on January 31, 2018.

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

NATIONALITY: Korean

LOCATION: Columbus, OH

Our client is from South Korea who came to the U.S. on a J-1 Visa in 2010 to work as a researcher. Her J-1 program made her subject to the two-year foreign residence requirement. After her J-1 program was completed, she went back to South Korea and got her F-1 student visa. With her F-1 status, she finished her Ph.D. degree and started to work as a post-doctoral researcher. She retained our office to seek legal assistance for her I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications. However, our client completely forgot about her J-1 status in the past and was not fulfilled the 2-year foreign residency requirement. Thus, before we file her I-485 application, she has to get a waiver for her 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 Chicago 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 October 27, 2017, 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 December 22, 2017, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on January 19, 2018, the USCIS issued I-612 approval notice and waived our client’s 2 year foreign residency requirement.

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