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

NATIONALITY:Kenyan

LOCATION: Houston, Texas

Our client is from Kenya who came to the U.S. on a J-1 Visa in August 2001.  After she finished her J-1 program, she remained in the United States.

In July 2010, our client married her current U.S. citizen husband. However, she could adjust her status unless she got a waiver of the 2-year foreign residency program.

Our firm was retained an on January 21, 2014, 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 a U.S. citizen 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 April 21, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On May 14, 2014, 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.

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CASE: H-1B Visa Petition
PETITIONER:  Surface Treatment Solutions Manufacturer
BENEFICIARY: Chinese Operations Research Analyst

Our client is one of the world’s largest surface treatment solutions manufacturing companies in the world. Located in Cleveland Ohio, they contacted our office in March of this year to seek legal assistance from our office for their foreign employee.

The beneficiary obtained her Bachelor’s degree in Management in China and her Master’s degree in Management with specialization in Operations Research and Supply Chain Management in the United States.

The proffered position for the Beneficiary is an operations research analyst which qualifies as a specialty occupation.  This position is a “specialty occupation” because the minimum requirements for this position are a Master’s Degree (even higher than a Bachelor’s degree) in Management or its equivalent.

Once retained, our office promptly 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 13, 2014 without any Request for Evidence.  Starting October 1, 2014, she can work for her employer on an H-1B status for the next three years.

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CASE: I-129F Fiancée Petition and Fiancée Visa

PETITIONER: US Citizen in Columbus, OH

BENEFICIARY: Ghanaian

PETITION FILED: April 7, 2014

PETITION APPROVED: May 5, 2014

Our client, a US Citizen Petitioner, met his Ghanaian fiancée in March 2013. They started their relationship, and he went to Ghana in November 2014 to see her. He proposed to his fiancée in February 2014. Shortly 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 March 20, 2014. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on April 7, 2014.

On May 5, 2014, the I-129F fiancée petition was approved.

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CASE: H-1B Visa Petition
PETITIONER:  Consulting Company
BENEFICIARY: Bulgarian Management Analyst

Our client is a consulting company located 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 her Bachelor’s degree in Finance in Bulgaria and her MBA degree in the United States. The proffered position for the Beneficiary is a management analyst which qualifies as a specialty occupation.  This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Business / Finance or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 31, 2014 via premium processing service. This H-1B petition was selected after the lottery and was processed. Our client’s H-1B application was approved on May 7, 2014.

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

NATIONALITY: Chinese

LOCATION: South Dakota

Our client is a Chinese national and a naturalized Canadian Citizen who came to the U.S. on a J-2 Visa in 1994. She came with her husband who held a J-1 Visa as a visiting scholar. 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 lost her J-2 status and she was still subject to the two-year foreign residency requirement. After that, she moved to Canada, pursued her education, and became a naturalized Canadian Citizen.

She came back to the United States and eventually got an I-140 EB2 approval from her employer. However, even with the approved I-140 petition, until she gets a waiver of the 2-year foreign residency requirement, she cannot file for adjustment of status.

She contacted our office, and our firm was retained to do her J-2 waiver on March 28, 2014.

Our client did not have any of her ex-husband’s IAP-66s, but we submitted several documents pertaining to information that may be helpful to the DOS. They requested more documents, and we provided them what the applicant had and an brief that included the program number, program sponsor, dates, program name, etc.

On April 7, 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 April 30, 2014, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client to be granted a waiver. On May 5, 2014, the USCIS issued the I-612 waiver approval.

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CASE: H-1B Change of Employer

PETITIONER: Elementary School

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: New Mexico

Our client is a public grant elementary school for native Indians in New Mexico. They contacted our office to seek assistance from for their foreign employee. The beneficiary is from the Philippines and she obtained her Bachelor’s degree in English. The proffered position for the Beneficiary is an elementary school teacher which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had her H-1B from her previous employer which was in a similar industry.  She also has an approved I-140 petition which allows her to get a three year extension. Her H-1B status was not yet expired, and she wanted to extend her H-1B status on a change of employer basis.

After retention, our office filed the H-1B visa petition with various supporting documents on January 20, 2014 via premium processing.  Since this petition was based on a change of employer, this petition was exempt from the annual cap of the H-1B.  Thus, we could file prior to April 1, 2014.

However, the USCIS issued a Request for Evidence for this petition on January 30, 2014. The USCIS requested the beneficiary to submit her teaching license, employment verification with her most recent employer, and W-2 and pay stubs from her most recent employer. Our office helped the beneficiary and filed a Response to RFE to USCIS on April 25, 2014. Eventually, our client’s H-1B Petition was approved on April 28, 2014.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for the next three years.

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

NATIONALITY: Australian

LOCATION: Houston, Texas

Our client is a citizen of Australia who came to the U.S. on a J-2 Visa in November 1999.  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.

After our client came to the United States, she started to attend a community college in the Dallas area as a J-2 visa holder. In August 2000, she filed an I-539 change of status application to the USCIS, and this application was granted. She changed her status from J-2 to F-1. She completed her associate’s degree and proceeded to a Bachelor’s degree at a different academic institution. However, after she graduated in 2005, she failed to maintain her non-immigrant status in the United States.

She turned 21 in 2002.

She eventually got married to a U.S. citizen husband and her husband filed an I-130 petition for our client in April 2010. This I-130 petition was approved in July 2010. However, because of her two-year foreign residency requirement, our client could not apply for permanent residency.

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 August 2002.

Our firm was retained to do her J-2 waiver on February 28, 2014. On March 17, 2014, 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 April 2, 2014 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On April 28, 2014, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Belgian
LOCATION: Cleveland, OH

Our client came to the United States in October 2013 from Belgium 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 for only 90 days.

Within two weeks of his entry to the United States, our client and his U.S. citizen girlfriend got married. They were planning to move to the Netherlands, so he did not have any immigrant intent when he initially came to the United States. However, things changed, and they decided to settle in the United States, so he and his wife filed an I-130 petition and I-485 adjustment of status application in January 2014.

Nevertheless, our client was worried about the potential immigrant intent issue so they contacted our firm in early April of 2014 for preparation and accompaniment at his green card interview. He retained our office on April 8, 2014. Prior to the interview, we thoroughly prepared our client at our office. On April 17, 2014, our client was interviewed at the Cleveland USCIS.  We accompanied our client at his interview as well.  On the same day, his green card application was approved.

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CASE: R-1 Religious Visa Petition

PETITIONER: Christian Church in Ohio

BENEFICIARY: Chinese Director of Music Performance

Our client is an F-1 student from China who is currently pursuing his DMA (Doctor of Music) degree. He contacted our office in October 2013 for his R-1 visa petition.

The R-1 religious worker visa allows ministers and others with a traditional religious occupation or vocation to work in the United States for a maximum five-year stay. By law, the requirements for an R-1 visa petition are the following:

• The R-1 sponsoring organization is a bona fide religious organization with a 501(c)(3) tax-exempt status, either by itself or through a group ruling. If the sponsoring organization was not granted tax-exempt status as a religious organization, it must be affiliated with a religious denomination;
• The R-1 visa applicant must have belonged to the religious denomination of the organization for at least two years;
• The applicant must be coming to work for at least 20 hours a week on average for the petitioner.

Our client’s position is Director of Music Performance. Although he is not a minister, our argument was that he is still eligible to file his R-1 visa petition because his job position falls under the definition of “Religious Occupations.”

According to 8 C.F.R. Section 214.2(r)(2), a religious occupation is an activity which relates to a traditional religious function, e.g., “cantors, liturgical workers, translators, religious broadcasters, workers in religious hospitals, but not if they are performing lay work.”  Our client will not perform lay work, and his job duties are more akin to the “cantor” example in the regulations as he is an essential part of the musical department of the petitioner church.

Our client has also belonged in the religious denomination of the organization for more than two years. He has worked as a pianist and church organist for the last two years as well.

After retention, our office prepared his R-1 visa application extensively. We included documents regarding the petitioner church (including IRS Tax exemption letter, denomination determination letter, church’s weekly bulletin and church constitution), employment contract with detailed job descriptions, and documents regarding beneficiary’s qualification.

We filed the R-1 visa petition with various supporting documents on January 22, 2014.

Eventually, our client’s R-1 Visa application was approved on April 4, 2014 without any requests for evidence. Now the Beneficiary can work for the Petitioner on an R-1 visa status until October 2016.

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Case: I-130/I-485

Applicant/Beneficiary – French

Location: Cleveland, OH

Our client entered the United States in November 2013 from France under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now husband). As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Less than a month after her entry, in late November 2013, our client and her U.S. citizen boyfriend got married in the United States.

Afterwards, she contacted our office, and they retained us.

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.  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.

Another potential issue was immigrant intent. When someone comes on a non-immigrant status or visa waiver, there shouldn’t be any intent on that entry to apply for adjustment of status. In their case though, despite the marriage, at that point they weren’t set on actually living in the United States. Thus, there was no immigrant intent upon entry.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on December 26, 2013.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay 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.

On April 10, 2014, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver and potential immigrant intent issue, on the same day, the USCIS approved her green card application.  Now, our client is a green card holder.

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