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: Asylum in Immigration Court

CLIENT: Chinese

LOCATION: Philadelphia Immigration Court

Our Chinese client came to the United States in January 2009 without inspection and admission. After that, he filed an asylum application in July 2009 to the USCIS, but his case was referred to the immigration court. Thereafter, a Notice to Appear was issued and our client was placed in removal proceedings. After he got the Notice to Appear, he appeared at his initial master calendar hearing at the Los Angeles Immigration Court with his previous attorney.

In July 2012, he moved to West Virginia from California. He contacted our office and asked us whether we can take his case. He retained our office on August 27, 2012.

We then filed a Change of Venue Motion to the Los Angeles Immigration Court which was later granted by the court. His venue was changed from Los Angeles, CA to Philadelphia, PA. Our attorney Glen Yu appeared at his master calendar hearings and his individual hearing was scheduled on March 28, 2014 at the Philadelphia Immigration Court.

Our client was persecuted and harmed in China based on his Christian belief. Our client was scared to go back home to China, fearing that he will be persecuted based on his religious belief. While he was in China, our client attended several home church meetings. As a result, he was arrested and detained by the Chinese police and he experienced harm and mistreatment in numerous occasions.

We helped him file his asylum application and represented him in immigration court hearings. We also asked him to provide supporting documents corroborating his claim, some of which were a letter from her family, colleagues and friends in China. Our firm also did some research on articles related to his claim, and the type of persecution he will experience in China if sent back.

Our client’s individual hearing was scheduled on March 28, 2014 at the Philadelphia Immigration Court. Attorney Sung Hee Yu from our firm prepared him extensively. He also represented our client at his Individual Hearing at the Philadelphia Immigration Court.

Prior to the hearing, Immigration Judge held a pre-trial conference with Attorney Yu and the DHS counsel. It was a 90-minute conference, and all of the possible issues were examined. At the conclusion of the conference, withholding of removal was granted.

After the hearing, the Immigration Judge granted Withholding of Removal for our client based on his past persecution in China. His removal will be withheld and our client can get his Employment Authorization Document and will not be deported.

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CASE: H-1B Change of Employer (Cap Exempt to Non Cap Exempt)

PETITIONER: Industrial Material Company

BENEFICIARY: Chinese Industrial Material Research Scientist

LOCATION: Ohio

Our client is an industrial material company focused on the production and commercialization of high-performance / non-immunogenic biomaterials for use in the medial and consumer healthcare arenas. They are located in Wooster, Ohio. They contacted our office in early January 2014 to seek legal assistance from our office for their foreign employee. The beneficiary is from China and he obtained his Master’s degree in Plant Pathology in the United States. The proffered position for the Beneficiary is an industrial material research scientist which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Science/Engineering or its equivalent.

The foreign beneficiary in this case already had his H-1B visa from his previous employer.  However, his H-1B visa was not yet expired, and he wanted to extend his H-1B status on a change of employer basis. His H-1B at that time was with his first petitioner, which was a cap-exempt organization – a university.

There were articles online noting that when a change of employer is done from a cap-exempt organization to a non cap-exempt organization, that the change of employer may be subject to the cap. But there was no specific law on that. We simply based the application on the fact that it was a change of employer, and thus the petition should be exempted from the annual cap of the H-1B.

Once retained, our office filed the H-1B visa petition with various supporting documents on January 29, 2014 via regular processing.  Since this petition was based on a change of employer, we argued that this petition was exempt 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.  Our client did not even want to do premium processing. But in approximately two weeks, our client’s H-1B Petition was approved on February 14, 2014.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for the next three years.

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CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: Cleveland, Ohio

Our client came to the United States in May 2003 with a B-1 Visa from China. After his authorized stay expired, he remained in the United States. He married a U.S. Citizen in August 2013.  Our client retained our office for his I-130 petition and I-485 adjustment of status application on October 8, 2013. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on November 25, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office. On February 14, 2014, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  On the same day, his green card application was approved.

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CASE: J2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: Seattle, WA

Our client was a citizen of China (now, he is a naturalized Canadian Citizen) who came to the U.S. on a J-2 Visa in 1997.  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. In 2000, he went to Canada and stayed there as a Canadian Permanent Resident. Later, he pursued his bachelor’s and master’s degrees in Canada and became a naturalized Canadian Citizen. In 2007, he came back to the U.S. as a TN visa holder to work for Microsoft in Seattle, Washington.  Currently, he is working for Microsoft on a TN visa, but he would like to apply for a J-2 waiver so that he would not have any problems for his future change of status in the United States when his employer files an I-129 petition for him this year.

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 client turned 21 in June 2002.

Our firm was retained to do his J-2 waiver on December 4, 2013. On December 19, 2013, 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 3, 2014 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On February 7, 2014, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

NATIONALITY: Chinese

LOCATION: Philadelphia, PA

Our client is a citizen of China who came to the U.S. on a J-2 Visa.  She 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, she finished high-school as a J-2 visa holder and later pursued her Bachelor’s degree. Prior to the commencement of her Bachelor’s program, our client changed his status from J-2 to F-1 through the U.S. Embassy in Beijing, China. Currently, she is working for her employer under an OPT,  but she would like to apply for a J-2 waiver so that she would not have any problem for her future change of status in the United States when her prospective employer files an I-129 petition for her in 2014.

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 November 2011.

Our firm was retained to do her J-2 waiver on October 24, 2013. On November 1, 2013, 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 December 5, 2013 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On January 29, 2014, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Chinese

LOCATION: Cleveland, OH

Our client came to the United States from China in March 2000 without inspection and admission. When she made her entry to the U.S., she was only 15 year old.

She married her U.S. citizen husband in 2006 and they have a U.S. citizen child together. Through our office, she applied for deferred action (I-821D) and the USCIS approved her application on December 13, 2012.  Once her I-821D was approved, her U.S. Citizen husband an I-130 petition for her on February 4, 2013. This I-130 petition was approved on March 25, 2013.

However, our client cannot file for adjustment of status application due to her ground of inadmissibility. She needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

Last year, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen husband suffers from a great degree of psychological hardship. Also, his U.S. citizen mother (our client’s mother-in-law) has a mental disease which requires special attention from our client’s husband. In the I-601A brief and supporting documents, our office included extensive medical reports of her husband.  We argued that if she was removed from the United States, extreme hardship to her husband is clearly foreseeable and evident.  Her husband has ongoing psychological hardships and he would not be able to take care of his own needs and the bulk of their family chores, most importantly taking care of their infant children. Also, it would be extremely difficult for him to get the same level of therapy and satisfactory access to medical services in China in case he joins our client there.

In our brief, we also argued that our client and her husband have maintained strong family ties in the United States, that her husband will have difficulty in finding the same level of employment in China, that our client has good employment in the United States, and that his U.S. citizen child and her husband will face extreme financial and emotional difficulties if he is removed.

On October 3, 2013, we file the I-601A waiver application which included the brief in support, her husband’s extensive psychological examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States.

Eventually, her I-601A waiver was approved on January 27, 2014. Now, she can file packet 3 and 4 here in the United States, and would go to China shortly to get her immigrant visa.

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CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: Akron, Ohio

Our client came to the United States in April 2013 with a B-2 Visitor’s Visa from China. She married a U.S. Citizen in October 2013.  Our client retained our office for her I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on October 16, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office. On January 9, 2014, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  On January 13, 2014, her green card application

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CASE: Marriage-Based Green Card

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came to the United States from China and he is currently pursuing his Master’s degree in Cleveland Ohio on an F-1 student visa. He married his current wife, who is a green card holder, in August 2013.

Our client retained our office on August 20, 2013 for his I-130 petition and I-485 adjustment of status application. Although the Petitioner is a green card holder, we could file the I-130 / I-485 simultaneously because the priority date for F2A category was current in August and September 2013. Our office prepared and filed an I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on September 3, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. The priority date of our client was September 6, 2013.

Prior to the interview, we thoroughly prepared our clients at our office. On January 2, 2014, our client was interviewed at the Cleveland, OH USCIS office. Our attorney Sung Hee (Glen) Yu accompanied them at their interview as well. The interview went well, and the priority date for our client was current at the time of the interview as well. Eventually on January 8, 2014, his green card application was approved.

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CASE: I-130 and Consular Processing (Immigrant Visa)

CLIENT: Chinese LPR Petitioner in Ohio; Chinese Beneficiary Wife and Daughter in China

LOCATION: Petitioner: Ohio; Beneficiaries: China

Our client retained us to bring his wife and daughter from China to the United States. He is a permanent resident and got married to his wife in 2011. Initially, he retained our office in July 2011 to file the I-130 petitions for his wife. After we were retained, we prepared and filed the I-130 petition for our client’s wife on July 28, 2011. Eventually, this I-130 petition was approved by the USCIS on April 16, 2012.

In April of this year, he retained our office again after the priority date became current for the immigrant visa processing for his wife and his newly born daughter. He retained our office on April 10, 2013.

On June 28, 2013, we filed the immigrant visa packets to the National Visa Center who in turn forwarded our client’s materials to the U.S. Consulate in Guangzhou, China. An interview notice was set for our client’s wife at the U.S. Consulate in Guangzhou, and we prepared her for her interview. On November 20, 2013, after the interview, the U.S. Consulate in Guangzhou, China approved and issued her and her daughter’s immigrant visas.

With the approved immigrant visa, our client’s wife and daughter can come to the United States immediately, and she will get her green card within two weeks of entry.

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