CASE:  I-485 Adjustment of Status under the INA 245(i) provision
CLIENT: Chinese
LOCATION: Cleveland, OH

Our client is from Hong Kong, China, who came to the U.S. without inspection and admission in August 2001. He never left the United States since he came.

In March 1990, our client’s uncle filed an I-130 (fourth preference) petition for his mother.  This I-130 petition was approved in April 1990.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Later, our client’s father filed an I-130 petition on behalf of our client in March 2003.  This Petition was approved in June 2005.

Our client contacted us in February of 2012 for consultation. We determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on March 1, 2012.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already began the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Our client was the beneficiary of his father’s petition in March 2003, which is current, but this by itself would not have allowed him to adjust status since this was filed after January 1998 and because he came in 2001, thus not meeting the December 21, 2000 physical presence requirement. However, he was also the beneficiary of a petition filed before January 14, 1998, that of his uncle’s petition for his mother. So it was the two petitions that saved his case, one for 245i, and the other for adjustment eligibility.

Once retained, our office prepared and filed his adjustment of status application under the 245(i) provision. Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  We thoroughly prepared our client prior to his interview.  On June 8, 2012, our client was interviewed at the Cleveland USCIS office. Attorney Sung Hee (Glen) Yu accompanied him at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. On the same day, our client’s I-485 application was approved.  He finally became a green card holder.

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CASE: Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Florence Immigration Court, AZ

Our office was contacted in early March regarding a Chinese individual detained in Florence, Arizona. He tried to enter the United States without valid documents and was incarcerated by immigration officers.

Prior to retention, the Immigration and Customs Enforcement already set a very high bond amount.  Our client wished to have that reduced so we filed a motion for bond redetermination with the Florence Immigration Court in Arizona.  Our office communicated with him and his U.S. resident relative in Pennsylvania, and gathered as much information regarding his relief, equities, criminal record, family ties, and financial ability to post bond.  We also gathered supporting documents from his relative, from proof of their status and residence, to bank statements and tax returns.

On April 6, 2012, Attorney Sung Hee (Glen) Yu represented our client in his Florence Arizona Immigration Court bond re-determination hearing. The DHS proposed a bond but it was too high. During the bond re-determination hearing, we explained to the Court that our client already passed his credible fear interview, was not a flight risk, had established his residence upon release, had established his financial ability to post bond, and had ample family ties in the United States who submitted proof of their residence and immigration status.  Moreover, our office explained that his lack of criminal records, designated address with contact information from his relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  At the end of the hearing, the Immigration Judge took our arguments into account and reduced the bond amount by one third of the original amount.

Our client has been released and is in the process of preparing his asylum application.

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Case: Termination of Proceedings / Adjustment of Status
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in January 2002 with a valid B-1 visa. He has stayed in the United States ever since. He was placed in removal proceedings a few years later. While he was in the United States, his wife, who was a permanent resident, filed an I-130 petition for him. It was approved in June 2010. At the time of the I-130 filing, our client’s wife was a lawful permanent resident, so the priority date for our client was not current. She became a naturalized U.S. citizen on June 17, 2011.

Before our firm was retained, our client already had a scheduled asylum individual hearing in 2013. In August 2011, our client consulted with our office and sought legal assistance. We advised him that we would try to terminate his removal proceedings with the Department of Homeland Security’s (DHS) cooperation. Our office filed a request to join in a Motion to terminate proceedings with a copy of the I-485 application and supporting documents on November 8, 2011. The DHS counsel in Cleveland agreed to terminate our client’s removal proceedings. The Immigration Judge then granted the Motion to terminate without prejudice on December 7, 2011.

After the case got terminated, we filed the I-485 Adjustment of Status application with the United States Citizenship and Immigration Service (USCIS) on December 22, 2011. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared our clients. On March 22, 2012, our client was interviewed at the Cleveland USCIS. We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved the same day of the interview. After ten years in the United States and being through removal proceedings, our client is finally a permanent resident.

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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: Master Calendar / Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Florence Immigration Court AZ

Our office was contacted in the middle of February regarding two Chinese people who were detained in Florence, Arizona. They tried to enter the United States without valid documents and were incarcerated by immigration officers.

Prior to retention, the Immigration and Customs Enforcement set a very high bond amount.  Our client wished to have that reduced so we filed a motion for bond redetermination with the Florence Immigration Court in Arizona.  Our office communicated with them and their U.S. resident relative in Iowa and New York, and gathered as much information regarding their relief, equities, criminal record, family ties, and financial ability to post bond.  We also gathered supporting documents from those relatives, from proof of their status and residence, to bank statements and tax returns.

On February 23 and 24, 2012, we represented our clients at their Florence Arizona Immigration Court master calendar and bond re-determination hearings.  For the Master Calendar hearing, we did pleadings and sought asylum relief. During the bond re-determination hearing, we explained to the Court that our clients already passed their credible fear interviews, were not a flight risk, had established their residence upon release, had established their financial ability to post bond, and that they had ample family ties in the United States who submitted proof of their residence and immigration status.  Moreover, our office explained that their lack of criminal record, designated address with contact information from their relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  At the end of the hearing, the Immigration Judge took our arguments into account and reduced the bond amount.

Our clients have been released, venue has been changed, and they are now in the process of preparing their asylum applications.

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CASE: BIA Appeal
CLIENT: Chinese
LOCATION: Elizabeth, NJ

Our client came to the United States without a valid visa and passport from China. She tried to enter the United States without valid documents, was incarcerated by immigration officers, and detained in Elizabeth, NJ.   Later, she filed for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) before the Immigration Court.  She claimed that she was persecuted back home based on her religious beliefs.

Her individual hearing was conducted on October 17, 2011 at the Elizabeth Immigration Court.  She was represented by her former immigration counsel, and after the hearing, the Immigration Judge denied her applications and had an adverse credibility finding.  She reserved appeal, and her relatives in the United States contacted our office to do her BIA appeal.

Our office was retained on October 27, 2011.  On October 28, 2011, our office filed a Notice to Appeal with the BIA. We then filed a brief in support of our client’s case on December 8, 2011. We argued that the Immigration Judge’s adverse credibility determination was clearly erroneous.  After reviewing the trial transcript, we argued that our client testified in a credible manner and her testimony was largely consistent and plausible, citing specific examples based on the transcript.

On February 24, 2012, the BIA sustained our appeal. The BIA vacated the Immigration Judge’s decision, and remanded our client’s case to the Immigration Court for further fact finding.  The BIA also found that the Immigration Judge’s adverse credibility finding was clearly erroneous because it was based, in large part, on our client’s omission during her testimony.  The BIA requested the Immigration Court to further assess our client’s application for asylum, withholding of removal, and protection under CAT.

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CASE: Asylee Adjustment of Status
CLIENT: Chinese
LOCATION: Cleveland, OH

Our client came to the United States in October 2010 after she was granted derivative asylum status as the spouse of a person granted asylum.  Her husband was granted asylum in November 2008, and thereafter, our client came to the United States as derivative asylee.

Under the Immigration and Nationality Act, an asylee may apply for lawful permanent resident status after he or she has been physically present in the United States for a period of one year after the date he or she was granted asylum status.  Around October 2011, one year after she entered the United States, our client contacted our office and sought legal assistance for her adjustment of status.  Our office was retained on October 17, 2011, and we prepared and filed her I-485 Adjustment of Status Application on October 28, 2011.  Everything went smoothly and the receipt notice and fingerprint appointment all came on time.  On January 12, 2012, the USCIS approved our client’s Adjustment of Status application. She’s now a permanent resident of the United States.

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Case: Marriage in Detention and Custody Release / Review
Client: Chinese
Location: Cleveland Ohio

Our client, a Chinese National, was picked up by ICE in late August 2011 because of an outstanding deportation order. His relative retained our firm to represent him to work on getting his release. After an initial evaluation, we informed our client’s relative that it would be a challenge because he was single with no family ties in the United States and he had no other favorable conditions for release.

Fortunately, our client’s fiancé had applied for asylum and her asylum interview was pending. They were about to get married but our client got detained prior, and they thought they could not get married anymore unless he was released.

We informed them that a request could be made to ICE for marriage-in-detention, and that afterwards we may have an argument that he could become a derivative applicant of his fiancé’s asylum application which could be a basis for requesting his release. We informed them it was a stretch, but based on the prosecutorial memo released last year, it was worth a shot.

Despite the fact that our client was in detention, our firm made arrangements for his fiancé to obtain a marriage license and also contacted ICE for permission for them to get married at the detention facility. Subsequently, we arranged for a minister to conduct the wedding ceremony in jail for our client and his fiancé. We filed the request and after a few days, the Detroit Regional Immigration and Customs Enforcement office approved it.

After their marriage, we immediately filed a “Motion to Stay  Removal” for the client with ICE. Prior to our client’s detention reaching 90 days, we filed a “Request for Release on 90-Day Custody Review”, but unfortunately, ICE issued a decision continuing detention. We negotiated further with ICE and even personally went to their office at the Federal Building. Soon, we were given a chance to submit another “Request for Release – Custody Review” before jurisdiction got transferred to Washington DC. We argued that once his wife’s asylum is approved, she would be able to file an I-730 for our client, who then can file a DHS Request to Join in a Motion to Reopen or a Sua Sponte Motion to Reopen to seek derivative asylee status as the beneficiary of an approved I-730. Simultaneously, we also filed a “Deferred Action Request” pursuant to the recent John Morton memo.

On January 5, 2011, the ICE officer personally called our office to inform us that the Detroit ICE considered our second request and decided to release our client. He was released under order of supervision that same day.

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Case: Request to Join in a Motion to Terminate with DHS and Motion to Terminate with the Cleveland Immigration Court
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in January 2002 with a valid B-1 visa.  He has stayed in the United States ever since. He was placed in removal proceedings a few years later. While he was in the United States, his wife, who obtained her green card through asylum, filed an I-130 petition for him. It was approved in June 2010.  At the time of the I-130 filing, our client’s wife was a Lawful Permanent Resident, so the priority date for our client was not current. She became a naturalized U.S. citizen on June 17, 2011.

Before our firm was retained, our client already had a scheduled asylum individual hearing in 2013.  In August 2011, our client consulted with our office and sought legal assistance. We advised him that we would try to terminate his removal proceedings with the DHS’ cooperation.  Our office filed a request to join in a Motion to terminate proceedings with a copy of the I-485 application and supporting documents on November 8, 2011.  The DHS counsel in Cleveland agreed to terminate our client’s removal proceedings.  The Immigration Judge then granted the Motion to terminate without prejudice on December 7, 2011.

Now that removal proceedings are terminated, he can file an I-485 adjustment of status (green card) application with the USCIS. His case will be at the USCIS Cleveland Office for final adjudication.

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On November 29, 2011, Congress passed H.R. 3012 (The Fairness for High-Skilled Immigrant Act) by a vote of 389-15 with no additional amendments.  The measure now moves on to the Senate for consideration. The Fairness for High-Skilled Immigrant Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) to eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

This passed Bill aims to move away from the current law, under which immigrants from an individual country who are in the U.S. on an employment visa such as an H1-B cannot apply for more than seven per cent of the 140,000 green cards issued annually by the State Department. The Act ultimately eliminates this per country percentage cap. What this implies is that countries that are facing the highest demand-supply mismatch for green cards, among which India ranks first and China second, then Mexico and the Philippines will see a benefit in terms of prospective green card issuance (shorter waiting time for priority dates to be current), whereas the waiting time for other nations would be significantly longer.

Therefore, the Act greatly will improve the processing times for Indian and Chinese green card applicants.  However, an unintended consequence of the Act likely would be the slower processing times for natives of other countries.

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