CASE: F-1 Reinstatement

APPLICANT: Korean

LOCATION: Anaheim, CA

Our client came from South Korea in 2012 to pursue her Pre-Med Program. Later, she enlisted at the US Army through the MAVNI program. The contract was valid for 2 years supposedly for deployment. While waiting, and to further her studies, she applied for and was issued an I-20 to obtain her Bachelor’s program in Biology. But delays over delays occurred which weren’t her fault, and thus, she was not able to be shipped out for deployment. As such, her I-20 expired in February 16, 2016. She continued on fully expecting her MAVNI application to be approved. She obtained a fingerprint notice on January 20, 2017 for fingerprinting at February 1, 2017. However, delays after delays then eventually a cancellation of her deployment happened. Thus, she failed to maintain her 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 course load.

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 July of 2017, our client contacted our office to do her F-1 reinstatement application. Our office promptly prepared her application with various supporting documents to demonstrate that she became out of status due to circumstances beyond her control and that she 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. Our office filed her F-1 reinstatement application on August 15, 2017 to USCIS.

However, in November 22, 2017, the USCIS issued Request for Evidence and asked our client to submit Form I-134 from her financial sponsor. We filed the response to RFE along with I-134 form on December 6, 2017.

On January 4, 2018, our office was notified by the USCIS that our client’s F-1 reinstatement is granted.  Now, our client has a chance to pursue her Bachelor’s program in the United States.

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

Our client is a citizen of China who came to the U.S. on a J-2 Visa in April 2016.  She came with her 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 July 2017 in China. Our client has a U.S. citizen fiancé who would like to file I-129F fiancé visa for her, but could not be approved unless she fulfills two year foreign residency requirement or obtains a waiver.

Our client contacted our office and retained our firm to do her J-2 waiver on July 31, 2017. On August 2, 2017, 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 August 21, 2017, 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 January 4, 2018.

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CASE: H-1B Extension

PETITIONER:  Environmental Engineering Consulting Company

BENEFICIARY: Indian Principal Consulting Environmental / Water Engineer

Our client is an Environmental Engineering Consulting Company in Fairfax, VA. They contacted our office in November 2017 to seek legal assistance from our office for their foreign employee’s H-1B Extension.  The beneficiary is from India and obtained his Bachelor’s degree and Master’s Degree in Civil / Environmental Engineering. The proffered position for the Beneficiary is a Principal Consulting Environmental / Water Engineer which we argued qualifies as a specialty occupation.  He has been working for the Petitioner on a valid H-1B visa. The beneficiary already used his H-1B status for 6 years, but he is entitled to get 3 year extension since he has an approved I-140 petition for him. Our office helped his previous H-1B extension and his H-1B extension was granted in December 2014.

After retention, our office filed the H-1B visa petition with various supporting documents on December 5, 2017 via premium processing. Eventually, without any RFE, our client’s H-1B extension was approved on December 13, 2017. Now the Beneficiary can continue for the Petitioner on an H-1B status until December 2020.

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

NATIONALITY: Chinese

LOCATION: Mountain View, CA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in September 1996.  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.

After our client’s father’s J-1 program was completed, his family moved to Canada.

He turned 21 in 2015. He would like to get a waiver because he has a prospective employer who will file the H-1b petition for me 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 June 2015.

Our firm was retained to do his J-2 waiver, and on October 20, 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 November 10, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On December 10, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

NATIONALITY: Filipino

LOCATION: San Francisco, CA

Our client is a citizen of the Philippines who came to the U.S. on a J-2 Visa in November 2015.  He came with his mother who came on a J-1 Visa for her teaching 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, F, and O visas.

After our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He wanted to change his status from J-2 to F-1 in the United States.

He turned 21 in September 2017. He would like to get a waiver because he wanted to change his status from J-2 to F-1. 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 September 2017.

Our firm was retained to do his J-2 waiver, and on September 22, 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 October 16, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 14, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Visa Petition

PETITIONER: School in New Mexico

BENEFICIARY: Filipina Middle School Math Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a non-profit organization affiliated with five institutions of higher education. They contacted our office in September 2017 to seek legal assistance from our office for their foreign employee. The beneficiary is a Middle School Math Teacher from the Philippines.  

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

In the first week of April, the numerical cap of H-1B visas for fiscal year 2018 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 October 13, 2017, via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on October 18, 2017.  She can now work for her employer for three years on an H-1B status.

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

NATIONALITY: Indonesian

LOCATION: Ohio

Our Indonesian client came to the U.S. on a J-1 Visa in May 2016.  She came to the U.S. for an internship, and her J-1 visa made her subject to the two-year foreign resident requirement.  In March 2017 our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office contacted the Indonesian 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 nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of her valid Indonesian passport, and a copy of Form DS-3035.

On March 22, 2017, 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 would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On August 7, 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 October 20, 2017. Now that our client’s two-year foreign residency requirement is waived, she can file adjustment of status application with her husband I-130 petition.

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

Our client entered the United States in February 2017 from the United Kingdom under the visa waiver program. As a Visa Waiver Entrant, he was only authorized to remain in the United States only for 90 days.  In October 2016, our client and his U.S. citizen girlfriend married in the United States. Our client went back to the United Kingdom and came back to visit his wife in February 2017.

In March 2017, they contacted our office and consulted with us regarding the adjustment of status. After the consultation, they retained our office on March 21, 2017.  One main issue in his green card application through marriage was the fact that he 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 Dayton, Ohio, his 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 his application because of his visa waiver entry.  

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on May 2, 2017.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before his authorized stay period was expired. 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 via conference call. On September 28, 2017, our client was interviewed at the Cincinnati, Ohio USCIS Field Office.  Despite the visa waiver issue, the USCIS officer approved his green card application on the same day of the interview.  Now, our client becomes a green card holder.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Pakistani
LOCATION: Pakistan

Our client is a citizen of Pakistan who came to the U.S. on a J-2 Visa in August 2015.  He came with his wife who held a J-1 Visa as a medical resident.  Both were subject to the two-year foreign residency requirement.

Unfortunately, his marriage did not work. Eventually, he got divorced from his ex-wife in November 2016. Our client had a pending I-129 H-1B petition for him, but it could not be approved unless he fulfilled his two year foreign residency requirement or obtain a waiver.

In June of this year, our client contacted our office. He retained our firm to do his J-2 waiver. On June 22, 2017, 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 14, 2017, 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 September 26, 2017.

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CASE: Immigrant Visa / Family-Based Petition

CLIENT: Thai

LOCATION: Bangkok, Thailand

Our client was in the United States on an F-1 status. He overstayed. Our client’s mother became a U.S. citizen and filed an I-130 petition for our client. This I-130 petition was approved, but he could not file adjustment of status due to his F-1 overstay. He was over 21.

Our client retained our office on May 4, 2016 for his immigrant visa application. He went home to Thailand as this was the only way he can immigrate through his mother. We had to argue that he had no unlawful presence despite his overstay because he was an F-1 overstay. Our office prepared and filed the immigrant visa packets, together with all necessary supporting documents, on June 20, 2016. Our office also prepared and drafted a brief to explain the eligibility of his immigrant visa despite his F-1 overstay.

Under 9 FAM 40,92 N1 on “Unlawful Presence: (b)(2):

DHS has interpreted ‘period of stay authorized by the Secretary of Homeland Security’ as used in the construction of unlawful presence in INA 212(a)(9)(B)(ii) to include… (2) For aliens inspected and admitted for ‘duration of status’ (DOS), any period of presence in the United States, unless DHS or an immigration judge or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding.”

Though our client overstayed his F-1 status, he never incurred any unlawful presence due to the “Duration of Status” clause implied on his F-1 entry, and the DHS, immigration judge, or the BIA never made any formal finding of a status violation on his part. Our client is also not inadmissible on any of the grounds laid out in INA 212(a).

Therefore, since our client is not subject to the unlawful presence bar and any of the inadmissibility statutes on INA § 212(a), he is eligible for an immigrant visa, based on the I-130 Petition filed by his U.S. citizen mother.

Prior to the interview, we thoroughly prepared our client. On October 5, 2016, our client was interviewed at the U.S. Embassy in Bangkok, Thailand. After the interview, our office filed another brief to the U.S. Embassy in Bangkok, Thailand for his eligibility for the immigrant visa. Eventually, on September 22, 2017, his immigrant visa was approved and issued by the U.S. Embassy in Bangkok, Thailand.  

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