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

Our South Korean client came to the U.S. on a J-1 Visa six years ago. Before her J-1 visa expired, she managed to get an F-1 visa and she continued her studies in Ohio.  According to her DS-2019, she was subject to the two-year foreign residency requirement.

Last year, she got married to her U.S. citizen husband and later on consulted with our firm for her adjustment of status (obtaining a green card). Her situation was unique because her passport’s visa page stated that she was not subject to the two-year foreign residency requirement.  However, her DS-2019 was clearly marked with the two-year foreign residency requirement.

To clarify the uncertainty, our office checked with the State Department by filing an advisory opinion request.  Our office promptly filed this advisory opinion request on July 27, 2010 to the Waiver Review Division of the Department of State.

Unfortunately, DOS stated that our client is subject to the two-year foreign residency requirement. After receiving this decision, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Korean Embassy in the United States.

On November 24, 2010 the J-1 Waiver 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 was eligible to adjust if she obtains the waiver.

The Korean Consulate General in Chicago promptly forwarded our client’s documents to the Korean Embassy in DC.  On January 18, 2011, 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 28, 2011, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on February 23, 2011, the USCIS issued an I-612 approval notice for the waiver.

Once the waiver was issued, our office filed the I-130 Petition and I-485Adjustment of Status Application on April 20, 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 July 8, 2011, our client was interviewed at the Cleveland USCIS office.  We accompanied them at the interview as well.  On July 11, 2011, her green card application was approved, and our client obtained her green card.

From having the two-year foreign residency requirement, our firm effectively helped her get a J-1 waiver before she adjusted her status.  She did not have to go to Korea for 2 years before she got her permanent residency in the United States. She’s now a green card holder.

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CASE: H-1B Visa Petition
PETITIONER:  Engineering Company
BENEFICIARY: Radio Frequency / Electrical Engineer

Our client is an engineering company that specializes in RFID (Radio Frequency Identification Technology) solutions.  Our client’s office is located near Columbus, Ohio.  They contacted our office in mid-March to seek legal assistance from our office for their foreign employee.  The beneficiary obtained his Bachelor’s Degree in Electrical Engineering in Taiwan and completed his Master’s program in the United States. The proffered position for the Beneficiary is a radio frequency / electrical engineer which qualifies as a specialty occupation.  We argued that this position a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Electrical Engineering or its equivalent.  Moreover, the applicant for this position must have experience or specific training in RFID technology.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on April 7, 2011 via the regular processing service. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on June 8, 2011.  On October 1, 2011, he can work for his employer for the next three years on his H-1B status.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Advertising Media Company
BENEFICIARY: Web / Graphic Designer

Our client is an advertising media company in California. They contacted our office in early March to seek legal assistance from our office for their foreign employee.  The beneficiary is from Kenya and obtained his Bachelor’s degree in Interactive Multimedia in the United States. The proffered position for the Beneficiary is a Web / Graphic Designer 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 Graphic Design or its equivalent.  It almost has become a necessity and in order for companies to have these competent Graphic Designers, some with a Bachelor’s Degree in Graphic Design or its equivalent is a must.  Our office has helped several foreign graphic designers’ H-1B petitions, so we clearly explained to the USCIS with numerous supporting documents that the proffered position is a specialty occupation.

The foreign beneficiary in this case already had his H-1B visa from his previous employer in a similar industry.  However, his H-1B visa was not expired yet, and he wanted to extend his H-1B status based on a change in employer.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on March 25, 2011 via regular processing service.  Since this petition was based on a change in employer, this petition was exempted from the annual H-1B cap.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on May 10, 2011.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for next three years.

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CASE: H-1B Visa Petition
PETITIONER:  E-Book Publishing Company
BENEFICIARY: E-Book / Web Designer

Our client is a large E-Book publishing company in the United States. They contacted our office in early March to seek legal assistance from our office for their foreign employee.  The beneficiary obtained his Bachelor’s degree in Computer Science in China and completed his Masters program in the United States. The proffered position for the Beneficiary is an E-Book / Web Designer 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 Computer Science or its equivalent.  It has become a necessity and in order for companies to have these competent Web Designers, a Bachelor’s Degree is a must.  A Bachelor’s Degree in this field is affirmation that a candidate is well equipped with the skills needed to publish, design and maintain functional, attractive, practical, and useful E-Book Publication for E-Book publishing companies.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on April 1, 2011 via regular processing service. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on May 3, 2011. The approval only took a month despite filing the Petition through regular processing.

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CASE: I-612 J-1 Hardship Waiver
APPLICANT: Kenyan
LOCATION: Missouri

Our client contacted us in March 2010 to inquire about applying for a J-1 hardship waiver. She intends to apply for adjustment of status afterwards.  She came to the United States from Kenya in July 1999 on a J-1 visa. She was subject to the two-year foreign residency requirement.

Her husband left her while she was pregnant. He son was born in 2004. She raised him by herself. Her son has suffered from multiple medical issues, from asthma to allergies to severe skin problems.

Our client retained our firm and on April 21, 2010, we filed the I-612 J-1 Waiver application based on exceptional hardship. Our firm drafted an extensive 10-page brief with over 20 exhibits and submitted these with the application.

In May 3, 2011, after over 5 follow up letters, the J-1 waiver based on exceptional hardship was approved.

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Case: I-130/I-485
Potential Issue: Visa Waiver Entry – Overstay / Response to Notice of Intent to Deny
Applicant/Beneficiary – Spanish
Location: Cleveland, Ohio

Our client entered the United States on April 11, 2010 from Spain under the visa waiver program.  When he entered the United States, he did not have any intention to get married.  In fact, he came to the United States to obtain a divorce from his former wife who was residing in the United States, and wished to come back home soon after.  As a Visa Waiver Entrant, he was only authorized to remain in the United States until July 10, 2010.

After he got divorced from his former wife in the United States, our client married his U.S. citizen spouse on June 2, 2010. One main issue in his green card application through  marriage was the fact that he 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.

Since our client resided in Cleveland, Ohio, his application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will question the validity of the marriage between our client and his wife because of the existing language barrier between the couple. The US Citizen spouse speaks really little Spanish while the Spanish beneficiary speaks little English.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 3, 2010.  Our office requested  the CIS to exercise favorable discretion in granting adjustment of status despite the filing date falling beyond the expiration of the visa waiver. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in the filing of the applications.

Prior to the interview, Attorney Sung Hee (Glen) Yu from our office thoroughly prepared our client for their USCIS adjustment of status interview.  On December 20, 2010, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office for his adjustment interview.  The interview took two and a half hours and the officer thoroughly asked our client and his wife about the bona fide nature of the marriage and the language barrier issue.

On March 9, 2011, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary is not bona fide.  As expected, the language barrier issue between our client and his wife was critical. They also pointed out the short time difference between the beneficiary’s divorce and subsequent marriage.

In response to the USCIS’s NOID, our office re-interviewed both the Petitioner and the Beneficiary, addressing the issues pointed out in the NOID and drafting an extensive affidavit. Multiple supporting documents  and a six-page affidavit from our client were all included as well as letters from the U.S Citizen wife’s family members, joint bank statements, joint lease, utility bills, and several pictures of our client and his wife in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on March 31, 2011, we filed the Response to NOID prior to the 30-day deadline.

On April 5, 2011, less than a week from our Response, the USCIS approved our client’s case. We overcame both the visa waiver overstay and the bona fide marriage issues and as a result, both the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.

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

Our client is a citizen of Ukraine who came to the U.S. on a J-2 Visa.  He came with his wife who was on a J-1 Visa. Both were subject to the two-year foreign residency requirement, meaning you would have to go back to your home country for two-years before you can apply for permanent residency or some non-immigrant visas such as H, L, and O. Moreover, if you are subject to the two-year foreign residency requirement, you are not allowed to change some non-immigrant status in the United States.

Once his wife’s government-sponsored program was completed in the United States, our client and his wife went back to Ukraine together.  Unfortunately, his marriage did not work out well after they went back to Ukraine.  Eventually, he got divorced from his ex-wife.  Thereafter, our client got a job offer from a multi-national corporation which was willing to sponsor our client for his L-1 visa.  However, as mentioned above, an alien who is subject to the 2-year requirement cannot get his/her L or H visa until he/she fulfills the requirement or gets a waiver.

After he read several blog articles from our website, he contacted us from Ukraine.  Our firm was retained to do his J-2 waiver on December 15, 2010. On December 17, 2010 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.  Eventually, on March 8, 2011 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Now, his employer can petition an L-1 visa on behalf of our client.

This J-2 waiver case was somewhat different from the previous J-2 cases that our office handled.  First of all, the applicant of the J-2 waiver was outside the United States – specifically in Ukraine.  Moreover, the J-1 program was sponsored by the government, rather than private entities.  Nevertheless, our office successfully got a waiver for our client in less than 3 months.

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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 six years ago.  She came to the U.S. to work at her internship program. Before her J-1 visa was expired, she managed to get an F-1 visa and continuously pursued her studies in Ohio.  According to her DS-2019, she was subject to the two-year foreign residency requirement, meaning you would have to go back to your home country for two-years before you can apply for permanent residency and some non-immigrant visas.

Last year, she got married to her U.S. citizen husband and later on consulted with our firm for her adjustment of status (obtaining a green card). Her situation was unique because her passport’s visa page states that she is not subject to the two-year foreign residency requirement.  However, her DS-2019 was clearly marked with the two-year foreign residency requirement.

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 July 27, 2010 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, our office promptly prepared for filing a waiver request through a No Objection Statement (NOS) from the Korean Embassy in the United States.

As mentioned in a previous blog article, every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Attorney Sung Hee (Glen) Yu from our office promptly 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 November 24, 2010 the J-1 Waiver 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 if she obtains the waiver.

The Korean Consulate General in Chicago promptly forwarded our client’s documents to the Korean Embassy in DC.  On January 18, 2011, 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 28, 2011, 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 her adjustment of status application along with her husband’s I-130 petition.

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CASE: F-1 Reinstatement

APPLICANT: Indian

LOCATION: Los Angeles, California

Our client came from India in 2009 to pursue his Master’s in Computer Science degree in California. Unfortunately, extreme and exceptional hardships related to his family caused him to drop a course in his third semester which caused him to fail to maintain his 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 F-1 reinstatement if they meet the requirements. It starts by talking to the 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 courseload.

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 early September of 2010, our client contacted our office to do his F-1 reinstatement application. Our office promptly prepared his application with various supporting documents to demonstrate that he became out of status due to circumstances beyond his control and that he 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.

On January 12, 2011, our office was notified by the USCIS that our client’s F-1 reinstatement is granted.  Now, our client has a chance to finish his Master’s Degree.

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CASE: I-130 / I-485

POTENTIAL ISSUES: Visa Waiver Entry – Overstay

APPLICANT / BENEFICIARY: French

LOCATION: San Francisco, California

Our client entered the United States on February 5, 2010 from France under the visa waiver program. She married her U.S. Citizen spouse on April 14, 2010.  However, her authorized stay in the United States expired on May 6, 2010.

The critical point of her green card application through a marriage was the fact that she came to the United States under the visa waiver program. On March 31, 2008, the 9th Circuit Court of Appeals in Momeni v. Chertoff issued a decision in a Visa Waiver overstay case that has presented difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status.

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 U.S., to visit and then leave without all the red-tape involved in visa issuance.  In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, and later was taken into custody for having violated the terms of his stay. Eventually, the holding in Momeni made in hard for VWP entrants to adjust their status in the United States after their authorized stays expired.

Our client resides in California, so her application was subject to the holding in Momeni. Despite facing having to potentially deal with this case, our office filed the I-130 Petition and Adjustment of Status Application on July 7, 2010.  In the application, our office requested CIS discretion for our client’s application. We also argued that the marriage occurred prior to the expiration of the visa waiver status and that extraneous circumstances caused the delay in filing the I-130 and the I-485. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. We prepared our clients over the phone for their interview. On January, 2011, our client was interviewed in San Francisco, CA.  That same day, without any objection, the officer granted our client’s petition and her green card application.  Now, our client is a green card holder and she got it despite filing her adjustment of status application after her VWP overstay.

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