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

Our client is a citizen of China who came to the U.S. on a J-2 Visa.  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 finished high-school as a J-2 visa holder and later pursued his Bachelor’s degree.  Our client initially started his bachelor’s program as a J-2 visa holder, but in April 2001, he changed his status from J-2 to F-1 through the U.S. Consulate in Mexico. He had to change his status from J-2 to F-1 because he turned 21 in January 2011.  After he graduated, he married his current U.S. Citizen wife in October 2009 and his wife filed an I-130 petition on behalf of our client.  The I-130 petition was approved in February 2011.

Our client contacted our office in January 2012, and sought advice regarding his chances of applying for permanent residency.  He has an approved I-130 petition; however, without a waiver of the 2-year foreign residency requirement, our client would not be able to adjust his status in the United States.  Our office explained that we can apply for his J-2 waiver application through the Interested Government Agency (IGA) route.

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.

Our firm was retained to do his J-2 waiver on January 19, 2012. On January 31, 2012, 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 February 21, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On March 16, 2012, the USCIS issued an I-612 approval notice for our client’s waiver request. Now, our client can file his I-485 adjustment of status application with the approved I-130 petition and I-612 waiver approval. He can now apply for his green card.

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CASE: J-1 Waiver of  the Two-Year Foreign Residency Requirement, No Objection Statement
NATIONALITY: Indonesian
LOCATION: Cleveland, OH

Our Indonesian client came to the U.S. on a J-1 Visa in April 2008.  He came to the U.S. for business training, and his J-1 visa made him subject to the two-year foreign resident requirement.  In October 2011, our client married his U.S. Citizen wife and he wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, he had to obtain a waiver first.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  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 his valid Indonesian passport, and a copy of Form DS-3035.

On January 10, 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 February 16, 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 March 7, 2012.  Now that our client’s two-year foreign residency requirement is waived, we can prepare and eventually file his petition and adjustment of status application.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Ukraine
LOCATION: Indianapolis, IN

Our client is a citizen of Ukraine who came to the U.S. on a J-2 Visa.  He came with his father who was on a J-1 Visa to pursue his Ph.D. 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 H, L, and O.

After our client came to the United States, he completed his high-school as a J-2 visa holder and later went to college.  Our client initially started his bachelor’s program in a J-2 status, but in January 2011, he changed his status from J-2 to an F-1 student visa through the U.S. Embassy in Canada.  He had to change his status from J-2 to F-1 because he turned 21 in January 2011. After graduation, he applied for OPT (Optional Practical Training), later got a job offer, and started to work for this company in Indianapolis.

Our client contacted our office in December 2011, and sought legal advice regarding the J-2 waiver process.  His OPT will be expired in July 2012, and his current employer was willing to sponsor his H-1B visa.  However, without a waiver of the 2-year foreign residency requirement, our client would not be able to change his status to H-1B.  Our office explained to him that we can do the J-2 waiver application through the Interested Government Agency (IGA) route.

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 this 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.

Our firm was retained to do his J-2 waiver on December 20, 2011. On January 9, 2012, 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 is not a dependent of the J-1 visa holder anymore.  Eventually, on January 27, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On February 29, 2012, the CIS granted the J-2 waiver.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement
NATIONALITY: Korean
LOCATION: New York City, NY

Our South Korea client came to the U.S. on a J-1 Visa in January 2009.  She came to the U.S. to participate in an international internship program in New York City.  Upon completion of her J-1 internship program, she went back to South Korea in 2010.

While our client was in the United States for her internship, she met her U.S. citizen fiancé.  Later, they got engaged and her fiancé filed an I-129F fiancée visa petition on behalf of her in January 2011.  In May 2011, the I-129F petition was approved, and the related application materials were forwarded to the U.S. Embassy in Seoul to conduct our client’s fiancée visa interview.  In October 2011, our client had her fiancée visa interview at the Embassy.  During the interview, the Consulate officer told her that he cannot adjudicate the fiancée visa unless our client fulfills the two-year foreign residency requirement or obtain a waiver.  Although her visa was not denied, the Consulate officer told her that he would hold the decision for visa approval until client gets a waiver of the two-year foreign residency requirement.

Our client and her fiancé contacted our office in early December of 2011.  Upon consultation, they retained us in December 2, 2011.  Once retained, our office prepared and filed a waiver request through the 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 New York City, NY to pursue the waiver for our client.  The Consular 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 December 6, 2011 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 get a K-1 Fiancé Visa, and will be eligible to adjust in the United States after her K-1 admission and the subsequent marriage to her U.S. Citizen fiancé.

The Korean Consulate General in New York forwarded our client’s documents to the Korean Embassy in DC.  Soon after, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On February 2, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and will issue an I-612 approval shortly.

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

Our client is from South Korea who came to the U.S. on a J-1 Visa in August 2008.  He came to the U.S. for a NASA research fellowship, but his J-1 program made him subject to the two-year foreign residence requirement.  He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications.  Before we file his I-140/I-485 application simultaneously, he has to get a waiver for his two-year foreign residency requirement.

Once retained, our office promptly prepared and filed a waiver request through the 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 (Our client’s program sponsor was in Southern California, so the Korean Consulate General in Los Angeles has jurisdiction for our client’s application) to pursue the waiver for our client.  The Consulate 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 December 7, 2011 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 file a National Interest Waiver petition and adjustment of status application.

The Korean Consulate General in Chicago 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 January 10, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and will issue an I-612 approval shortly.  Now, our client can file his adjustment of status application along with his NIW petition.

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

Our client is from Kenya who came to the U.S. on a J-1 Visa in 2004.  She was later on placed in removal proceedings and she retained our office for legal representation. We filed her I-360 self-petition which was since considered prima facie approvable and is now awaiting adjudication.   However, even if she gets the approved I-360 petition, she will not be able to adjust her status unless she gets a waiver of the 2-year foreign residence requirement, which she had from her J-1 program.

Our office filed a J-1 waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States.  As mentioned in a previous success story, every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement. Our office contacted the Kenyan Embassy in D.C. to request a no objection statement. 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 the HELB and KSCE in Kenya, and a letter of reason for obtaining the J-1 waiver, among others.

On November 21, 2011 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 pending approval of the I-360 petition.

On January 3, 2012 the Kenyan Embassy issued a No Objection Statement for our client, who also sent this letter to the State Department’s Waiver Review Division.  On January 23, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has receipted the fee and has issued an I-612 approval.

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CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Software Distributor
BENEFICIARY: Nepali
LOCATION: Omaha, Nebraska
ISSUE: Specialty Occupation / Degree Issues

Our client is a nationwide stocking wholesaler of voice, data, and outside plant products in Nebraska. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his previous employer under an H-1B.  The Petitioner-Employer filed an H-1B application (Change of employer) on behalf of our client on November 2.  However, on December 1, 2011, the USCIS issued a 5-page 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.”

The USCIS was skeptical and argued that the proffered “Web Developer” position in Petitioner’s business did not qualify as a “Specialty Occupation”. The main issue for the client’s H-1B application was whether the “Web/Software Developer” position for the Petitioner required a bachelor’s degree or its equivalent to make this position a “specialty occupation.”

After Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client consulted with our firm and eventually retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on their 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 Web/Software Developer is a common position required by similarly sized software developer or distributor companies with similar annual incomes. We provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Web/Software developers.  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 9-page Response to RFE brief with 13 exhibits to the USCIS California Service Center on December 28, 2011.  On January 11, 2011 our client’s H-1B petition was approved.  Now our client can work for the petitioner on an H-1B status for the next 3 years.

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CASE: B-2 Visa Extension / I-539
NATIONALITY: Filipino
LOCATION: Cleveland, Ohio

Our clients came from the Philippines on B-2 visitor visas. They came to the United States in early June of 2011 to attend a Math competition in Las Vegas Nevada. Their visas were single entry ones good for only a month, but their tourist status upon entry was good for six months. .  They wanted to visit their grandmother from Ohio so after the competition, they visited her in Ohio. They consulted with our firm about a week before the expiration of their B-2 status. They wanted to extend their visit for six months to spend more time with their grandmother.

Upon retention, we went into detail with their reasons for requesting extension. We made sure all addresses, contact information, and dates on their statements were complete and accurate. We made sure all their plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS.  Our office submitted letters from family members in the United States and financial statements from the Philippines. We also submitted school ties from the Philippines as proof of their intention to retain. We also submitted return tickets prior to the expiration of the requested extension. Our firm filed the I-539 Extension Application on December 1, 2011, a day before the expiration of their status. On January 9, 2012, their B-2 status extensions were approved with no Requests for Evidence.  Now they can stay in the United States for six more months with their grandmother.

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CASE: H-1B Visa Petition
PETITIONER:  Online Grocery Store in Washington, D.C.
BENEFICIARY: Singaporean Business Development Director

Our client is an online grocery business and is one of the first D.C-based businesses to present a selection of locally and seasonally sourced products on a user-friendly website, combining a simple ordering process with a highly professional, same-day delivery service. They contacted our office in late July of 2011 to seek legal assistance and we met them at our Washington DC satellite office prior to retention.

The beneficiary obtained his Bachelors degree in Economics in the United States and completed his Masters degree in Georgetown University. The proffered position for the Beneficiary was for a business development director which we argued qualified as a specialty occupation.  We proffered that the minimum requirement for this position is a Bachelor’s Degree in Economics or its equivalent.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on September 27, 2011 via premium processing service.  The USCIS Vermont Service Center then issued a Request for Evidence (RFE) on October 13, 2011.  The USCIS argued that the proffered position does not qualify as a “specialty occupation.” They claimed that the business was too small, with only 6 employees, and that a Bachelors degree was not required for this position for “grocery” businesses. In response to the RFE, our office asserted in an 8-page response brief with 23 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelors degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. We explained that running an online grocery business is more complex than running a small convenience store or small grocery, especially since our client specialized in high-end products.

Our office filed the response to the USCIS Vermont Service Center on January 6, 2012.  Our client’s H-1B application was approved 11 days later on January 17, 2012.  Now the Beneficiary can work for the Petitioner on an H-1B status until September 30, 2014.

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

Our client is from South Korea who came to the U.S. on a J-1 Visa two years ago.  With Attorney Sung Hee (Glen) Yu’s assistance, this client got his I-140 self-petition (National Interest Waiver Category) in August 2011.  He came to the U.S. to work as a visiting professor.  After he received his approved I-140, but before he filed his I-485 adjustment of status application, he went back to Korea and had a J-1 visa interview.  At the interview, the Consulate officer informed him that he is now subject to the two-year foreign residency requirement since his program code is now subject to the requirement in the new skills list.  Thus, unless he fulfills the requirement in Korea or obtains a waiver, he is not able to adjust his status in the United States..

Before he had a visa interview, to clarify the uncertainty, our office checked with the State Department by filing an advisory opinion request.  According to the Department of State, “if you are not sure whether the two year foreign residence applies to you, you may make a written request for an advisory opinion for the applicability of the residence requirement to your situation.”  Our office promptly filed this advisory opinion request on August 24, 2011 to the Waiver Review Division of the Department of State.

Unfortunately, the decision of the Department of State stated that our client is subject to the two-year foreign residency requirement. After our office received this decision from the Department of State, Attorney Sung Hee (Glen) Yu prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Yu contacted the Korean Consulate General Office in Chicago 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.

On October 11, 2011 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 with an approved I-140 if he obtains the waiver.

The Korean Consulate General in Chicago 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 December 2, 2011, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued an I-612 approval notice on January 12, 2012. Now, our client can file his adjustment of status application along with the approved I-140 petition and I-612 J-1 waiver approval.

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