CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, No Objection Statement
NATIONALITY: Indonesian
LOCATION: New York, NY
FILED: August 2, 2012
DOS RECOMMENDATION: September 24, 2012
I-612 APPROVAL: October 5, 2012

Our Indonesian client came to the U.S. on a J-1 Visa in September 2000. She came to the U.S. for business training, and her J-1 visa made her subject to the two-year foreign resident requirement. She overstayed, and worked various jobs in New York.

In June 2012, our client married her U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in Washington DC. Our office contacted the Indonesian 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 nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of her valid Indonesian passport, and a copy of Form DS-3035.

On August 2, 2012 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 would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division. On September 24, 2012, 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 October 5, 2012. Now that our client’s two-year foreign residency requirement is waived, she can file for adjustment of status application with her husband’s I-130 petition.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Kenyan
LOCATION: Texas
FILED: August 23, 2012
DOS RECOMMENDATION: September 24, 2012
APPROVED:
Our client is a citizen of Kenya who came to the U.S. on a J-2 Visa in 2002. She came with her husband who held a J-1 Visa as a graduate 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 lost her J-2 status and she was still subject to the two-year foreign residency requirement.

She remained in the United States and fell in love with who would be her current U.S. Citizen husband. They got married in July 2012.

He wanted to file an I-130 petition for her, but she could not file for adjustment of status because of the 2 year foreign residency requirement.

In August of this year, our client’s relative contacted our office. She wanted us to help our client obtain a waiver so she can eventually file for her green card.

Our firm was retained to do her J-2 waiver on August 16, 2012. On August 23, 2012 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 September 24, 2012, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On October 10, 2012, the USCIS issued the I-612 waiver approval.

Now, our client’s U.S. citizen husband can file an I-130 petition for our client and our client can file her green card application with the waiver approval.

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CASE: Visa Waiver Overstay Marriage Green Card
ISSUES: Visa Waiver Overstay, Age Gap, Previous Divorces
CLIENT: Hungarian
LOCATION: Cleveland Ohio

Our client came to the United States in November 2009 as a visa waiver entrant from Hungary.  He married a U.S. Citizen in January 2012 and retained our office on February 21, 2012 for his adjustment of status application They were hesitant at first because he was a visa waiver overstay, and cases they’ve seen on the internet on visa waiver overstays were not too good. Both of them also have previous divorces. They also have a big age gap. So they were concerned about their chances of winning.

We reviewed their supporting documents and listened to their story, of how they met and fell in love. We also explained and showed a recent CIS memorandum on visa waiver overstays, more of a FAQ memo, stating that adjustment applications based on marriage to a US Citizen for visa waiver overstays should be adjudicated. Prior to this memorandum the CIS were split, granting some visa waiver overstay adjustments while some issue denials resulting to deportation without a removal hearing (for visa waiver, you waiver your right to contest removability in Court).

Our firm then prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 27, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients at our office. On July 20, 2012, our client was interviewed at the Cleveland Ohio USCIS office accompanied by Attorney Sung Hee (Glen) Yu. The visa waiver memorandum was once again presented to avoid any possible issues. Supporting documents of their bona fide relationship were also submitted. On September 6, 2012, his green card application was approved.

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CASE: Marriage-Based Adjustment of Status.
NATIONALITY: Indonesian
LOCATION: Cleveland, OH

The marriage-based green card approval we got recently was for an Indonesian client who came to the U.S. on a J-1 Visa in April 2008.  He came to the U.S. for business training, but his J-1 program subjected him to the two-year foreign residency requirement. In October 2011, our client married his U.S. Citizen wife.  He had to get a waiver of his two-year foreign residency requirement so he consulted with our office and later retained us on January 4, 2012.

As explained in a previous success story, our office worked on our client’s J-1 waiver.  Eventually, the Indonesian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On February 16, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and issued an I-612 approval notice for our client’s waiver of the two-year foreign residency requirement on March 7, 2012.

After we received the I-612 waiver, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on April 24, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.  Prior to the interview, we thoroughly prepared our clients at our office.  On August 9, 2012, our client was interviewed at the Cleveland USCIS office.  We accompanied our client at his interview as well.  On August 10, 2012, his green card application was approved.

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CASE: H-1B Visa Petition
PETITIONER:  Hospital / Medical Research Center
BENEFICIARY: Strategic Planning Analyst
ISSUES: Cap-Exempt, Research Organization

Our client is a large hospital and medical research center located in Columbus, OH. They contacted our office in the middle of June to seek legal assistance from our office for their foreign employee. The beneficiary obtained her MBA degree in the United States. The proffered position for the Beneficiary is a strategic planning analyst. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Business related curriculum or its equivalent.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was reached.  Our client was very disappointed and thought they would have to wait until April 1, 2013. We told our client that we can argue that they are qualified for cap-exempt petitions and emphasize that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Cases have gone both ways for hospitals, but we thought that if the research aspect of their work is highlighted, that chances of approval are high.

INA Section 214(g)(5) says “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

According to the June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on the Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), it outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Our office argued that the Petitioner was primarily engaged in applied research, and was thus qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Once retained, our office filed the H-1B visa petition with various supporting documents on June 28, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on July 13, 2012.  She can now work for her employer for three years on an H-1B status starting October 1, 2012.  She will continue to work there on an OPT in the meantime.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Indian
LOCATION: Washington, D.C.

Our client came to the United States in May 2008 with an F-1 Student visa from India.  He married a U.S. Citizen in December 2011 and retained our office on December 12, 2011 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 1, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On May 17, 2012, our client was interviewed at the Fairfax, VA USCIS office.  On the same day, his green card application was approved.

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Case: I-130/I-485
Issue: Visa Waiver Entry
Applicant/Beneficiary – Italian
Location: Cleveland, Ohio

Our client entered the United States from Italy in January 2012 under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days. However, she has remained in the United States ever since.

Our client is a doctor, and she mentioned that she came on a J-1 visa before. So even though old visas and passports were not required, we asked her to show us those, together with her old DS-2019, so that we could check if she was subject to the 2-year foreign residency requirement. Our first inclination was that she was subject, as most J-1 entrants who are physicians are. When we saw the J-1 documents, we found out that she indeed was not subject. And so we proceeded with the adjustment of status case.

She married her U.S. Citizen spouse in September 2011 in Italy and her U.S. citizen husband filed an I-130 petition on October 4, 2011.  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 a 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 March 5, 2012. Our office requested the CIS to exercise favorable discretion in granting adjustment of status despite her visa waiver entry.  Everything went smoothly and the receipt notices, fingerprint appointment, and the work permit all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared our clients. On May 15, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office. We accompanied them at the interview as well. Despite the visa waiver entry and subsequent adjustment of status issue, the USCIS officer approved her green card application on the same day. Now, our client is a green card holder.

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CASE: H-1B Visa Petition
PETITIONER:  Financial Investment Management Company
BENEFICIARY: Associate Financial Analyst

Our client is a financial investment management company located in Indianapolis, IN.  They contacted our office in late March to seek legal assistance from our office for their foreign employee.  Their foreign employee was a former client of ours, and he got a J-2 waiver approval through our representation before. The beneficiary obtained his Bachelor’s degree in Business/Finance in the United States. The proffered position for the Beneficiary is an associate financial analyst.  We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelors Degree in Business / Finance or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 1, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on May 12, 2012, only 11 days from the date of filing. He can now work for his employer for three years on an H-1B status starting October 1, 2012. He will continue to work there on an OPT in the meantime.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Electric Manufacturing Company
BENEFICIARY: Procurement Engineer

Our client is an electric immersion heater manufacturing company in Ohio. They contacted our office in late February to seek legal assistance from our office for their foreign employee.  The beneficiary is from India who obtained his Bachelor’s degree in Industrial Engineering in the United States. The proffered position for the Beneficiary is a procurement engineer which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case had his H-1B from his previous employer. He was on his sixth year in H-1B which expires in September 2012, unfortunately, he was terminated in December 2011. So he looked for another employer and found one in February 2012. Since he was terminated from his H-1B employer in December 2011, he could not change status in the U.S. But he was still within the 180 day unlawful presence period, so he did not have a 3-year bar. He also wanted to extend his H-1B status not just up to September 2012, but to 5 months more by recapturing all the time he was out of the United States, and the remaining period that he was not on an H-1B. So we explained in our cover letter that the Beneficiary is eligible to recapture his remaining period of H-1B from the time of his termination from his previous employer, plus all those times that he was abroad on vacations.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 20, 2011 via premium processing. The supporting documents included those for our recapture argument, such as copies of stamps on his passport, plane tickets, and the termination letter from his previous employer. Since this petition was based on a change in employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  After 7 days, our client’s H-1B Petition was approved on March 27, 2011. That H-1B was valid until February 2013, which meant that the CIS granted our request for recapture. Now the Beneficiary can have an interview for his H-1B visa at the U.S. Embassy in India, and once admitted, he can work for his Petitioner-Employer as an H-1B visa holder up to February 2013.

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CASE: Adjustment of Status / J-1 Waiver
NATIONALITY: Jordanian
LOCATION: Ohio

Our client is from Jordan who initially came to the U.S. on a J-1 Visa in 2009.  After the completion of her program, she went back to Jordan. She then married a U.S. Citizen in Jordan, and then came to the United States with a B-2 visitor visa in January 2011.

According to her DS-2019, she was subject to the two-year foreign residency requirement, so she could not adjust until she got a waiver.   In March 2011, she consulted with our firm for her adjustment of status and waiver of the two-year foreign residency requirement.

After we were retained, our office prepared and filed a waiver request through a No Objection Statement (NOS) from the Jordanian Embassy in the United States.  We also filed the I-130 petition for our client as well. The I-130 petition was approved on September 14, 2011.

On May 3, 2011 the J-1 Waiver was filed to the Department of State.  We sent a request to the Jordanian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust if she obtains the waiver.  The Jordanian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  Thereafter, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on October 4, 2011, the USCIS issued an I-612 approval notice for the waiver.

After the waiver was issued, our office filed the I-485 Adjustment of Status Application on November 14, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. We thoroughly prepared our clients prior to the interview.   On March 22, 2012, our client was interviewed at the Cleveland USCIS office.  We accompanied them at the interview as well.  On the same day, her green card application was approved, and our client obtained her green card.

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For other J-1 waiver success stories, please click here.

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