CASE: Change of Status from B1 / B2 to H-4, Same-Sex Marriage

CLIENT: Filipino

LOCATION: Oregon

Our client came to the United States in November 2013 with a valid B-2 visitor’s visa from the Philippines. Later, in March 2014, he married his same-sex spouse in Washington where the same-sex couple’s marriage is legally recognized. His spouse is an H-1B visa holder.

As a family dependent of an H-1B visa holder, our client can change his status from B1 / B2 to H-4. Our firm was retained and on April 14, 2014, we filed our client’s I-539 with all supporting documents to the USCIS. There were no requests for evidence. On July 2, 2014, the Change of Status was approved. Our client is now on H-4 and is with his spouse in Oregon.

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

NATIONALITY: Chinese

LOCATION: New Mexico

Our client is a citizen of China who initially came to the U.S. on a J-2 Visa in April 2004. She came with her ex-husband who held a J-1 Visa as a visiting researcher. Both were subject to the two-year foreign residency requirement. Later, she changed her status from J-2 to F-1 by pursuing her Ph.D. degree program. However, she was still 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 remained in the United States and has continuously pursued for her Ph.D. degree under an F-1 student visa. She also has a U.S. citizen fiancé who is willing to file an I-130 petition for her once they get married.

She contacted our office, and our firm was retained to do his J-2 waiver on April 30, 2014.

On May 16, 2014 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 June 5, 2014, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On July 10, 2014, the USCIS issued the I-612 waiver approval.

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CASE: Fiancé Visa

PETITIONER: US Citizen in Ohio

BENEFICIARY: Nigerian Beneficiary in Spain

PETITION FILED: November 26, 2013

PETITION APPROVED: February 4, 2014

K-1 VISA APPROVED: June 20, 2014

Our client, a US Citizen Petitioner, met her Nigerian fiancé in March 2007 in Nigeria.  Over time, they started their relationship, and she went to Spain multiple times in 2012 and in 2013 after her fiancé moved to Spain.  When she visited his fiancé in July 2012, her fiancé proposed to her. Months after his proposal, she retained our firm to file a fiancé petition for him.

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 October 14, 2013. We helped her and her fiancé draft letters in support of the fiancé petition, and we filed the petition on November 26, 2013.

On February 4, 2014, the I-129F fiancé petition was approved. On June 20, 2014, our client’s fiancé appeared at the U.S. Embassy in Madrid, Spain for his K-1 visa interview. The interview went well, and on the same day, the U.S. Embassy issued his K-1 visa.

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CASE: F-1 Reinstatement

APPLICANT: Senegalese

LOCATION: Ohio

Our client came from Senegal in 2013 to pursue her Bachelor’s Degree Program. She was first enrolled at an ESL program in the U.S. for a semester and she applied for a 4-year Bachelors program at a different school.  Unfortunately, extreme and exceptional circumstances occurred, due to school’s rejection of her admission based on her religious beliefs, which caused her to fail 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 what’s called an F-1 reinstatement if they meet the certain requirements. It starts by talking to the new potential 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 late March of 2014, 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 April 21, 2014 to USCIS.

On June 25, 2014, our office was notified by the USCIS that our client’s F-1 reinstatement was granted.  Now, our client has a chance to pursue her Bachelor’s program in the United States.

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CASE: Change of Status from H-1B to F-2

CLIENT: Korean

LOCATION: Akron, Ohio

Our client was a part-time instructor who has taught in the University in Akron under an H-1B status. His wife was studying at a local community college under an F-1 status. Before he contacted our office, he and his employer decided not to renew his contract. Our client, thus, would like to change his status from H-1B to F-2 once his H-1B is expired.

Our firm was retained on April 24, 2014, and on May 6, 2014, we filed our client’s I-539 with all supporting documents to the USCIS. We included our client’s bank statements, joint tax records, and other relevant financial documentations of our client and his wife to show that they have enough financial ability to finish our client’s wife’s degree program and support their daily life in the United States until her degree is completed.

After the change of status application was filed, there were no requests for evidence. On June 17, 2014, the Change of Status was approved. Our client is now on F-2 and can stay in the United States with his wife until the duration of his wife’s F-1 status.

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CASE: I-485 based on Approved I-140 (EB-3)

 APPLICANT: Korean

 LOCATION: Cleveland, OH

Our client is a chemist from South Korea, who is currently working at a large chemical company which was willing to petition her for a third-preference petition (I-140).  Our client has a Bachelor of Science degree and has worked for this company since she completed her undergraduate program. She has maintained her status as an H-1B visa holder in the United States.  She had an approved I-140 petition which was filed by her current employer and this I-140 petition’s priority date was August 9, 2012.

In March of this year, her priority date became current. She contacted our office and retained us for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on March 17, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on May 27, 2014, the USCIS Nebraska Service Center approved our client’s adjustment of status application. She is now a green card holder.

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CASE: H-1B Visa Petition

PETITIONER:  E-Commerce Merchandiser

BENEFICIARY: Korean Staff Accountant in Dallas, TX

Our client is an E-Commerce Merchandising company located in Dallas, Texas.  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 Bachelor’s degree in Business Administration / Accounting in South Korea and her Associate’s degree in the United States. The proffered position for the Beneficiary is a Staff Accountant 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, 2014 via regular processing service. This H-1B petition was selected after the lottery. Our client’s H-1B application was approved on May 27, 2014.

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CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Illinois

Our Filipino client came on a J-1 visa in April 2010. He has remained in the United States ever since, even past his J-1 program. He was subject to the two-year foreign residency requirement.

He contacted our office after the Windsor (re same-sex) decision passed, and told us that he planned to get married to his U.S. citizen fiancé at that time (same-sex).

He was eligible for adjustment of status based on his marriage to U.S. citizen spouse, but he cannot adjust without a waiver of his two-year foreign residency requirement.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 31, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  Later in September 2013, our client married his U.S. citizen spouse in San Francisco, CA where same sex marriages are recognized. Then, we also sent a request to the Illinois State Government to get authentication for necessary documents.  Later, these authenticated documents and the No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in Chicago and San Francisco for further authentication. On December 12, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.

The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On May 5, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.

Eventually, on May 20, 2014, the USCIS issued an I-612 approval notice for the waiver.

Now, our client can file for his adjustment of status application along with his U.S. Citizen spouse’s I-130 petition.

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CASE: H-1B Visa Petition – Response to Request for Evidence

PETITIONER: Indian Restaurant

BENEFICIARY: Nepali

LOCATION: Ohio

ISSUE: Specialty Occupation / Degree Issues

Our client is an IT Consulting Company which is based in New Jersey. The beneficiary is from India who obtained a Bachelor’s degree in a related field.

The beneficiary had a previous H-1B so the Petitioner employer needed to file a change of employer petition for the beneficiary.  Prior to retaining our firm, the Petitioner-Employer filed an H-1B application on behalf of our client with help of their previous immigration counsel on October 21, 2013.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on March 10, 2014. The USCIS requested the Petitioner to submit more evidence regarding whether similar businesses in the same industry require a degree or its equivalent for the proffered position.

The USCIS was skeptical and argued that the proffered “Systems Analyst” position in Petitioner’s business did not qualify as a “Specialty Occupation”. They mentioned that the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “Systems Analyst” position for this IT Consulting Company Petitioner required a bachelor’s degree or an equivalent to make this position a “specialty occupation.”

Once Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client retained us to prepare the response. 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.

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.

Our office filed a detailed Response to RFE brief with 16 exhibits to the USCIS Vermont Service Center on May 8, 2014.  Eventually, our client’s H-1B application was approved on May 20, 2014.

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CASE: H-1B Visa Petition

PETITIONER:  Beauty Supply Distributing / Retail Company

BENEFICIARY: Korean Product Safety / Quality Assurance Director

Our client is a large beauty supply material distributer / retailer in Cleveland, Ohio. They contacted our office in February of this year to seek legal assistance from our office for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Chemical Engineering in South Korea and is pursuing his Associate’s degree in Accounting in the United States.  The proffered position for the Beneficiary is a Product Safety / Quality Assurance Director. We had to argue that this qualifies as a specialty occupation. We had to show that this position is a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Chemical or Industrial Engineering or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing service. This H-1B petition was selected after the lottery and was thus processed.

Eventually, our client’s H-1B application was approved on May 16, 2014 without any Request for Evidence.  Starting October 1, 2014, he can work for his employer on an H-1B status for the next three years.

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