CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Texas

Our client came to the United States from Mexico in December 2003 without inspection and admission. She married her U.S. citizen husband in 2007. With our firm’s legal assistance, her U.S. Citizen husband filed an I-130 petition for her on January 13, 2014. This I-130 petition was approved on August 12, 2014.

However, our client cannot file for adjustment of status application due to her ground of inadmissibility (entry without inspection and admission). She cannot also apply for an immigrant visa at once and get it – she has a bar. She needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application wasn’t easy, as the US Citizen husband did not have major medical issues. He had a history of depression though, plus their (the son is not a qualifying relative for the waiver, but we argued it’s a big factor for the husband’s hardship) suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included affidavits and medical records.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.

In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in Mexico, and that her U.S. citizen child and her husband will face extreme emotional difficulties if she is removed.

On May 18, 2015, we filed the I-601A waiver application which included the brief in support, her husband’s extensive medical examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

However, on August 17, 2015, the USCIS issued Request for Evidence (RFE) for our client’s case. USCIS explicitly requested our client to submit more evidence to prove extreme hardship to her U.S. citizen husband if she is forced to relocate in Mexico. In response to this RFE, our office prepared a response brief along with more. Our office filed the response to RFE on September 16, 2015.

Eventually, her I-601A waiver was approved on September 25, 2015. Now, she can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get her immigrant visa.

{ 0 comments }

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

NATIONALITY: Vietnamese

LOCATION: Michigan

Our client is a citizen of Vietnam who initially came to the U.S. on a J-2 Visa in January 2012. She came with her ex-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.  Our client has a U.S. citizen fiancé who was willing to file an I-130 for our client after their marriage, but our client will not be able to file an adjustment of status application without the waiver of the two-year foreign residency requirement.

She contacted our office, and our firm was retained for her J-2 waiver.  On July 22, 2015 the J-2 Waiver 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 August 21, 2015, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On September 24, 2015, the USCIS issued the I-612 waiver approval.

{ 0 comments }

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

NATIONALITY: Korean

LOCATION: Wilmington, DE

Our client is from South Korea who came to the U.S. on a J-1 Visa in February 2015.  He came to the U.S as a visiting scholar, but his J-1 program made him subject to the two-year foreign residency requirement.  He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status.  Before we can file his I-140/I-485 application simultaneously, he has to get a waiver of his two-year foreign residency requirement first.

Once retained, our office prepared and filed 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’s Office in New York 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 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 July 6, 2015, 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 adjust based on NIW.

The Korean Consulate General in Chicago 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 September 3, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on September 16, 2015, the USCIS issued an I-612 approval notice and waived our client’s 2 year foreign residency requirement.

{ 0 comments }

Case: I-130/I-485

Applicant/Beneficiary – Japanese

Location: Cleveland, Ohio

Our client entered the United States in April 2015 from Japan under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) for a couple of months. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Later, in June 2015, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on June 26, 2015.

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.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on July 6, 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 at our office. On September 18, 2015, our client was interviewed at the Cleveland, Ohio USCIS Field Office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Despite the visa waiver issue, on the same day of the interview, the USCIS approved her green card application.  Now, our client is a green card holder.

{ 0 comments }

CASE: H-1B Visa Extension

PETITIONER:  Korean Church in Virginia

BENEFICIARY: Korean Pastor

Our client is a Korean church in Virginia, serving the Korean community at a campus town. They contacted our office in late July of 2015 to seek legal assistance for its foreign beneficiary’s H-1B extension.

The beneficiary is Korean and obtained his Master of Divinity Degree in South Korea.  The proffered position for the Beneficiary was for a Pastor which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Master of Divinity Degree or its equivalent. He has been working for the Petitioner on a valid H-1B visa.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on August 21, 2015 via premium processing. Eventually, without any RFE, our client’s H-1B extension was approved on September 2, 2015. Now, the Beneficiary can continue to work for the Petitioner on an H-1B status until September 20, 2018 (until his duration of H-1B status reaches the 6th year mark).

{ 0 comments }

CASE: H-1B Visa Petition

PETITIONER:  Metal Supply / Manufacturer

BENEFICIARY: Chinese Operations Development Associate in Cleveland, OH

Our client is a Metal Supplier / Manufacturer located in Cleveland, Ohio.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained her Master of Business Administration in the United States.  The proffered position for the Beneficiary is an Operations Development Associate 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, 2015 via regular processing service. This H-1B petition was selected in the lottery. Our client’s H-1B application was approved on August 31, 2015.

{ 0 comments }

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

NATIONALITY: Kenyan

LOCATION: New Jersey

Our client is from Kenya who came to the U.S. on a J-1 Visa in June 2013 to work as a camp counselor.  After she finished her J-1 program, she remained in the United States. In May 2015, our client married her current LPR husband. (Her husband will become a naturalized U.S. citizen soon). However, she will not be able to adjust her status unless she gets a waiver of the 2-year foreign residency program.  When she came to the United States in 2013, her program made her subject to the 2-year foreign residency program.

Our firm filed a waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regards to the J-1 No Objection Statement waiver.  Our office contacted the Kenyan Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver, a clearance letter from the J-1 program sponsor, Clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver.

On June 4, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on her marriage to her spouse.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On August 28, 2015, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can file an I-485 adjustment of status application along with her husband’s I-130 petition once her husband becomes a naturalized U.S. citizen.

{ 0 comments }

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

NATIONALITY: Turkish

LOCATION: Texas

Our client is a citizen of Turkey who came to the U.S. on a J-2 Visa in October 2007.  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 a University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2012. 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 his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the requirement or the getting a waiver approved.

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 October 2012.

Our firm was retained to do his J-2 waiver, and on May 27, 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 July 22, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On August 26, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

{ 0 comments }

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

 NATIONALITY: Malaysian

 LOCATION: Boston, MA

Our Malaysian client came to the U.S. on a J-1 Visa in November 2013.  He came to the United States to work and get training, but his J-1 visa made him subject to the two-year foreign resident requirement.  His workand training program in the U.S. enhanced our client’s interest in his field, and he would like to gain employment in the U.S. beyond his J-1 term. His employer would like to file a petition for him to change his non-immigrant status from J-1 to L-1. However, due to the two-year foreign residency requirement, he had to obtain a waiver first before he could change his current status in the United States.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Malaysian Embassy in the United States.  Our office contacted the Malaysian 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 different documents including a statement of reason for the waiver.

On February 13, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Malaysian 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 change of status application but for the waiver.

The Malaysian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division. 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 August 17, 2015.  Now that our client’s two-year foreign residency requirement is waived, he can be a beneficiary of other non-immigrant visa in the United States without going back to Malaysia for 2 years.

{ 0 comments }

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

NATIONALITY: Indonesian

LOCATION: Texas

Our client is from Indonesia who came to the U.S. on a J-1 Visa in August 2014.  He came to the U.S. for Internship training. His J-1 program made him subject to the two-year foreign residency requirement.

 In May 2015, our client married his U.S. Citizen wife.  He is eligible to get a green card through his marriage to U.S. citizen; however, before he file his I-130/I-485 application simultaneously, he has to get a waiver of his two-year foreign residency requirement. In order to get a waiver of his two-year foreign residency requirement, he consulted with our office and later decided to retain our office on May 15, 2015.

Once retained, our office promptly prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office and our client contacted the Indonesian Embassy in Washington D.C. to pursue the waiver for our client.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of valid Indonesian passport, and a copy of Form DS-3035 application.

On May 28, 2015, 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 is eligible to file a marriage based adjustment of status on an I-130 Petition.

The Indonesian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On July 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS receipted the fee and issued an I-612 approval notice for our client’s waiver of the two-year foreign residency program on August 17, 2015.  Now, our client can file his adjustment of status application along with an I-130 petition.

{ 0 comments }