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

NATIONALITY: Vietnamese

LOCATION: Honolulu, HI

Our client is a citizen of Vietnam who came to the U.S. on a J-2 Visa in July 2004.  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 came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2011. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her 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 December 2011.

Our firm was retained to do his J-2 waiver, and on October 6, 2016, 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 6, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On February 1, 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: Korean

LOCATION: North Carolina

Our client was a citizen of South Korea who came to the U.S. on a J-2 Visa in 2007.  He came with his 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, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2011. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her 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 March 2011.

Our firm was retained to do his J-2 waiver, and on July 12, 2016, 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 August 1, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On January 25, 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: IT Consulting Company in Jacksonville, FL

BENEFICIARY: Indian Systems Analyst in Charlotte, NC

Our client is an IT Consulting Company located in Jacksonville, FL.  They contacted our office in the middle of February last year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Information Technology in Belgium. Beneficiary is currently working in the United States under L-1 status. The proffered position for the Beneficiary is a Systems Analyst which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2016 via regular processing. This H-1B petition was selected after the lottery.

However, on September 29, 2016, the USCIS issued Request for Evidence (RFE) for our client’s H-1B petition. USCIS requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation”, plus additional questions about the “in-house” nature of the employment. Moreover, the RFE requested our client to prove the Beneficiary’s qualification is sufficient to work as a systems analyst.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Furthermore, we included several professional evaluation letters for Beneficiary’s degree and previous work experience to demonstrate that he is qualified. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on December 19, 2016.  Eventually, our client’s H-1B application was approved on January 12, 2017. Now, the beneficiary can work for the Petitioner until August 2019.

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Case: I-130/I-485

Client: British

Location: Miami, FL

Our client entered the United States in November 2013 from the United Kingdom under the visa waiver program. He came here to visit his U.S. citizen girlfriend (now his wife).  As a Visa Waiver Entrant, he was only authorized to remain in the United States only for 90 days.  

Later, in February 2014, our client and his U.S. citizen girlfriend married in the United States. They contacted our office, and retained us after they got married.  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 Miami, FL, 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 February 28, 2014.  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. Prior to the interview, we thoroughly prepared our clients via conference calls. On August 17, 2014, our client was interviewed at the Miami, FL USCIS Field Office.

After the interview, his adjustment of status application was pending for a while. Later in 2015, the USCIS Miami Field Office scheduled an additional interview for our client. On April 10, 2015, Attorney Sung Hee (Glen) Yu accompanied our client and his wife at the Miami, FL USCIS office his second interview. The interview took more than three hours and the officer thoroughly asked our client and his wife about the bona fide nature of the marriage and some martial issues that the officer had suspicions on.

On January 20, 2016, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary is not bona fide.  Moreover, the NOID points out that the submitted documentation of Petitioner and Beneficiary does not establish a bona fide nature of their marriage.

In response to the USCIS’s NOID, our office helped our clients draft an extensive affidavit. Multiple supporting documents and an affidavit from our client were all included as well as letters from their friends and neighbors, joint utility bills, joint insurance, and several pictures of our client and his wife in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on February 5, 2016, we filed the Response to NOID prior to the 30-day deadline.

Nonetheless, the USCIS Miami Field Office scheduled additional interview for our client to appear. On January 12, 2017, Attorney Sung Hee (Glen) Yu accompanied our client and his wife again at the Miami, FL USCIS office his third interview.  Despite the visa waiver issue and the NOID, the USCIS officer finally approved his green card application on the same day.  Now, our client becomes a green card holder.

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CASE: Fiancé Visa

PETITIONER: US Citizen in Cleveland Ohio

BENEFICIARY: Nigerian

PETITION FILED: April 27, 2016

PETITION APPROVED: July 22, 2016

K-1 VISA APPROVED: November 14, 2016

Our client, a US Citizen Petitioner, met her Nigerian fiancé online in 2013. They started their relationship, and she visited Nigeria.  In 2016, the beneficiary proposed and our client decided to file a fiancé petition for her fiancé.  She retained our firm to file a fiancé petition for him on April 15, 2016.

After retention, we informed our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. We helped her and her fiancé draft letters in support of the fiancé petition, and we filed the petition on April 27, 2016.

On July 22, 2016, little after three months of filing, the I-129F fiancée petition was approved. On November 14, 2016, our client’s fiancé appeared at the U.S. Embassy in Lagos, Nigeria for his K-1 visa interview. The interview went well, and on November 14, 2016, the U.S. Embassy issued his K-1 visa.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Exceptional Hardship

NATIONALITY:  Filipina

LOCATION: Seattle, WA

Our client came from the Philippines on a J-1 visa in 2008.  She got her J-1 status as a recipient of the Fulbright Scholarship in the United States and her J-1 status made her subject to the two-year foreign residency requirement. Later, she changed her status from J-1 to F-1 and maintained her non-immigrant visa status. In 2012, she married her U.S. citizen husband. She would like to file her adjustment of status application along with her husband’s I-130 petition for her. However, due to her two-year foreign residency requirement, she has to get the waiver or fulfill the requirement before she files the adjustment of status application.  

Unlike our other J-1 clients, our client could not pursue her waiver under No Objection Statement or Interest Government Agency (IGA). Our client also received government funding (Fulbright Scholarship) for her research programs which made her case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue her J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen husband is experiencing exceptional medical hardships.

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 exceptional 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 an exceptional hardship basis. On September 10, 2015 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared affidavit of our client, 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 September 24, 2015, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to the Philippines for two years.

Eventually, the USCIS approved her I-612 waiver on December 15, 2016. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition.  

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CASE: H-1B Visa Extension Petition
PETITIONER:  Accounting Firm in Baltimore, MD
BENEFICIARY: Staff Auditor from Trinidad and Tobago

Our client is an accounting firm in Baltimore, MD.  They contacted our office in March 2016 to seek legal assistance from our office for their foreign employee’s H-1B extension.  The beneficiary obtained his Bachelor’s Degree in accounting and completed his MBA program in the United States. The proffered position for the Beneficiary is a staff auditor which qualifies as a specialty occupation.  We argued that this position a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in accounting or its equivalent.  Moreover, our office helped this employee’s initial H-1B case in 2013 and it was approved by the USCIS.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on May 11, 2016 via the regular processing service. Eventually, our client’s H-1B application was approved on December 22, 2016.  His H-1B is good until September 13, 2019.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in Jacksonville, FL

BENEFICIARY: Indian Systems Analyst in India

Our client is an IT Consulting Company located in Jacksonville, FL.  They contacted our office in the middle of February this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Computer Science in India. Beneficiary is currently residing at India. The proffered position for the Beneficiary is a Systems Analyst which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2016 via regular processing. This H-1B petition was selected after the lottery.

However, on September 13, 2016, the USCIS issued Request for Evidence (RFE) for our client’s H-1B petition. USCIS requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation”, plus additional questions about the “in-house” nature of the employment.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on November 23, 2016.  Eventually, our client’s H-1B application was approved on December 12, 2016. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in India, and upon the issuance of visa, he can work for the Petitioner.

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

NATIONALITY: Chinese Canadian

LOCATION: Hamilton, Ontario, Canada

Our client was a citizen of Canada who came to the U.S. on a J-2 Visa in June 1993 when she was a Chinese Citizen.  She came with her 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.

Once her father’s program was completed, her family immigrated to Canada. She became a physician in Canada and was offered to a fellowship program in the U.S. hospital. Her prospective employer would like to petition her for H-1B visa; however, because of her two-year foreign residency requirement, she needs to comply with the 2 year rule or gets a 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 April 2009.

She contacted our office and our firm was retained to do her J-2 waiver on October 6, 2016. On October 17, 2016, 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 7, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 23, 2016, 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: Chinese

LOCATION: New York City, NY

Our client was a citizen of China who came to the U.S. on a J-2 Visa in August 2008.  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 came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2014. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her 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 March 2014.

Our firm was retained to do his J-2 waiver, and on October 4, 2016, 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, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 23, 2016, the USCIS issued an I-612 approval notice for our client’s waiver request.

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