Case: I-130/I-485

Applicant/Beneficiary – Portuguese

Location: Cleveland, OH

Our client entered the United States in December 2014 from Portugal under the visa waiver program. He came here to visit his U.S. citizen girlfriend (now his wife) for a couple months. As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. However, our client did not leave the United States after his authorized period of stay expired.

Later, in June 2015, our client and his U.S. citizen girlfriend married in the United States. His U.S. citizen wife filed an I-130 petition for him first. However, they contacted our office for the filing of his adjustment of status application. They retained us on August 13, 2015.

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.

Our office filed the I-485 Adjustment of Status Application on September 3, 2015.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients in our office. On November 23, 2015, our client was interviewed at the Cleveland Ohio USCIS Field Office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients. Despite the visa waiver issue, on December 16, 2015, the USCIS approved his green card application.  Now, our client is a green card holder.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Fairbanks, Alaska

Our client came from the Philippines on a J-1 in August 2012 to work as a speech 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 May 2015, 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 May 20, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the Alaska State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippines Consulate General for further authentication.  On July 29, 2015, 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 October 8, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 3, 2015, 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.

Feel free to call us at (216) 573-3712 or email us at jp@sarmientoimmigration.com if you have any questions. Consultations are free.

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

NATIONALITY: Korean

LOCATION: Los Angeles, CA

Our client is from South Korea who came to the U.S. on a J-1 Visa in December 2013.  He came to the U.S as an intern, and his J-1 program subjected him to the two-year foreign residence requirement.  Later, in July 2014, he married his current U.S. citizen wife. His wife was willing to file an I-130 petition for our client’s permanent residency; however, our client has to get a waiver for his two-year foreign residency requirement before the filing the I-130/I-485 applications.

They retained our office on September 22, 2015.

Once retained, our office prepared a waiver request through a 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 Los Angeles to pursue the waiver for our client.  The Consulate office 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 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.

His previous immigration counsel already filed the DS-3035 application to U.S. Department of States, but wasn’t able to get a no objection statement. So after retention, on September 25, 2015, our office filed 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 adjust based on his marriage to his U.S. citizen wife.

The Korean Consulate General in Los Angeles promptly 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 October 28, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on December 2, 2015, the USCIS issued an I-612 approval notice and waived our client’s 2 year foreign residency requirement. Now our client can file an adjustment of status application along with his wife’s I-130 petition.

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CASE: Fiancée Visa

PETITIONER: US Citizen in Ohio

BENEFICIARY: Colombian

PETITION FILED: March 4, 2015

PETITION APPROVED: April 2, 2015

K-1 VISA APPROVED: November 25, 2015

Our client, a US Citizen Petitioner, met his Colombian fiancée in Colombia in 2013. They started their relationship, and he visited Colombia. In June 2014, he proposed to her during their trip in Mexico. After his proposal, he retained our firm to file a fiancée petition for her.

After retention, we informed our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on November 5, 2014. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on March 4, 2015.

On April 2, 2015, less than a month after the filing, the I-129F fiancée petition was approved. On November 25, 2015, our client’s fiancée appeared at the U.S. Embassy in Bogota, Colombia for her K-1 visa interview. The interview went well, and on the same day, the U.S. Embassy issued her K-1 visa.

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

NATIONALITY: Thai

LOCATION: Dallas Texas

Our client is a citizen of Thailand who came to the U.S. on a J-2 Visa in 1990.  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 has remained her ever since. He completed his elementary and secondary school and finished his bachelor and graduate programs in the United States as well. He did not know about his overstay until he became a late teenager.

He turned 21 in 2005. Nonetheless, he did not know of the waiver process, lost his I-94 ,and did not have J-2 related documents besides the J-2 visa stamp on his old passport. Later, he became a beneficiary of the Deferred Action for Childhood Arrivals (DACA) program and got his work permit.

Our client married his current U.S. citizen wife in October 2012. He would like to get a waiver because he can get a green card based on his U.S. citizen wife’s I-130 petition. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the 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 2005.

Our firm was retained to do his J-2 waiver and replacement of his I-94. We first filed an I-102 application to USCIS on June 12, 2015 in order to obtain his I-94 record replacement. The USCIS issued his replacement I-94 on September 21, 2015. Thereafter, on September 25, 2015, 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 14, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 25, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

 NATIONALITY:  Iraqi

 LOCATION: Ohio

Our client came to the U.S. on a J-1 Visa in August 2012 from Iraq.  He came to the U.S. for his Ph.D. program, and his J-1 visa made him subject to the two-year foreign residency requirement. Our client would like to an I-140 self-petition under the National Interest Waiver Category and adjustment of status application.  However, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under a No Objection Statement or Interest Government Agency (IGA). Moreover, our client could not pursue his J-1 waiver based on the exceptional hardship standard. Nonetheless, our client could pursue a J-1 waiver under the persecution category since he believes he will be persecuted based on his religion (Shiite Muslim).

A person can file a J-1 waiver under the persecution basis if the person believes that he or she will be persecuted based on his/her race, religion, or political opinion among others, if he or she returns to his or her home country.. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.

Our client believed that he would be persecuted if he goes back to Iraq by ISIS based on his belief. His opinions, beliefs, and religious practice as a Muslim Shiite basically go against the beliefs and objectives of ISIS.  After he retained our firm, we prepared and filed a waiver request through the persecution basis. On May 27, 2015 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 to show that he will be persecuted in Iraq if he goes back. On June 3, 2015, our office filed the I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client will be persecuted if our client needs to go back to Iraq for two years.

Eventually, the Department of State recommended a waiver for our client on November 2. 2015. Subsequently, the USCIS approved his I-612 waiver on November 4, 2015.

If you have questions, feel free to call Attorney JP Sarmiento at (216) 573-3712 or email us at jp@sarmientoimmigration.com for free consultations.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Taiwanese

LOCATION: San Jose, California

Our client is a Taiwanese Citizen who came to the U.S. on a J-2 Visa in 2010. She came with her husband who held a J-1 Visa as a Ph.D. student. Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and she eventually got divorced from her ex-husband. She was still subject to the two-year foreign residency requirement, and she would like to change her status in the United States. Until she gets a waiver of the 2-year foreign residency requirement, she cannot change her status in the United States.

She contacted our office, and our firm was retained to do her J-2 waiver on August 28, 2015.

On September 1, 2015 the J-2 Waiver Application along with Form 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.

On October 9, 2015, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On November 4, 2015, the USCIS issued the I-612 waiver approval.

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

NATIONALITY: Chinese

LOCATION: Atlanta, GA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in September 2007.  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 completed her high school and was admitted to a University to pursue her bachelor’s degree. She went back to China and got her F-1 student visa at the U.S. Embassy in China and came back to the United States on her F-1 student visa.

She turned 21 in 2012. She now has a U.S. citizen fiancé and they plan to get married soon. Once they get married, her fiancé (will be her husband) will file an I-130 petition for her and she will file her I-485 adjustment of status application. However, because of her two-year foreign residency requirement, our client cannot adjust her status without the fulfillment of the 2-year 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 January 2012.

Our firm was retained to do her J-2 waiver, and on September 16, 2015, 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 8, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 6, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

 NATIONALITY:  Egyptian

 LOCATION: Virginia

Our client came to the U.S. on a J-1 Visa in December 2009 from Egypt.  He came to the U.S. for his research program, and his J-1 visa made him subject to the two-year foreign resident requirement. Our client would like to file an I-140 self-petition under the National Interest Waiver Category, and eventually file an Adjustment of Status (Green Card) Application.  However, due to the two-year foreign residency requirement, he 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 received government funding for his research program which made his case tougher for a No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship. The argument was that our client’s U.S. citizen son 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 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 he retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On February 12, 2015 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 his U.S. citizen son’s medical condition.  On February 26, 2015, our office filed the I-612 application to the USCIS and asked them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Egypt for two years.

Eventually, the Department of State recommended a waiver for our client on October 7. 2015. Subsequently, the USCIS approved his I-612 waiver on October 14, 2015. Now that our client’s two-year foreign residency requirement is waived, he can file an I-140 NIW application along with his adjustment of status application in the United States.

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CASE: I-751

APPLICANT: Filipina

LOCATION: Cleveland, OH

Our client contacted our office in late September of 2014 regarding her I-751 application.

She is from the Philippines and married a U.S. citizen in September 2012. Through her marriage, she obtained a 2-year conditional green card in January of 2013. Our office helped her in her green card process.  Her conditional residency terminated in January 2015.

To comply with immigration requirements, our client and her wife had to file an I-751 Joint Petition to Remove Conditions. She retained our office on October 6, 2014 and our office prepared an I-751 application for our client with supporting documents.

On October 7, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, utility bills, joint lease, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

After the application was filed, a fingerprint notice was issued two weeks later. The USCIS issued a Request for Evidence (RFE) regarding the bona fideness of our client’s marriage with her husband. We filed a Response to RFE to the USCIS with more bona fide documents on March 30, 2015.

Eventually, on October 14, 2015, the USCIS approved our client’s I-751 application.

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