CASE: I-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Cleveland, OH

Our client contacted us in March 2011 about the possibility of doing a National Interest Waiver. He is a researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, and is currently working as a visiting professor in an academic institution in Cleveland, Ohio.  Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since one would not need an employer nor family member to petition for them for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. The landmark immigration case that discusses the standards for NIWs is Matter of New York State Department of Transportation , 22 I&N Dec. 215 (Comm.1998). This case held that the qualifying applicant must show the following elements in his or her I-140 NIW petition: First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U. S. worker having the same minimum qualifications.

Our office prepared a 15-page brief for our client’s NIW filing. We asked our client to obtain 10 or more letters of recommendation.  Our office also included his publication records, patents, and conference materials in the NIW application.  We demonstrated the intrinsic merit of our client’s research in the United States, the national scope of his research, and asserted that our client would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. His NIW application contained 67 exhibits (Exhibit A to OOO).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 2, 2011.  On August 19, 2011, the USCIS approved his I-140 petition without any Requests for Evidence.

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CASE: I-130 Response to an Intent to Revoke
CLIENT: Chinese
LOCATION: Sacramento, California; Guangzhou China

Our Chinese client contacted our office in the middle of May. He was a U.S. Citizen living in California and sought legal assistance for his wife’s case in China. The USCIS, based on a request from the U.S. Embassy in Guangzhou, issued an intent to revoke his I-130 petition.

Our client married his Chinese citizen wife back in November 2008. This was the first marriage for both him and his wife. He mentioned that he never even had a girlfriend before, all the time consumed with work and school here in the United States. He is a civil engineer in Sacramento California.

Our client filed an I-130 petition for his wife in January 2009.  On March 20, 2009, the Director of the California Service Center approved the I-130 petition and his wife was eventually interviewed at the U.S. Embassy in Guangzhou. Her U.S. Citizen husband was even there during the interview. However, the U.S. Embassy denied her immigrant visa application, citing five reasons: failure to show a continuous bona fide relationship; their work, educational, and income discrepancy; the fact that they met through a “third party”; the lack of a wedding reception after the wedding; and the immediacy of the wedding from the U.S. Citizen’s entry to China. The approved I-130 petition was subsequently returned to the California Service Center by the Department of State for further review and action. The USCIS then issued a Notice of Intent to Revoke.

On its Notice of Intent to Revoke, the CIS specifically addressed the five issued brought up by the U.S. Embassy.  After our office received the Notice, our office spoke several times at length with our client. We obtained in detail their history, how they met, how many times they’ve seen each other, who in their respective families do they both know and who among them could provide affidavits attesting to their relationship, how they continue to communicate with each other and if documentation can be provided to prove those, etc. Our client realized that there were so many possible evidence to support his case, evidence he was not able to think of prior to his wife’s interview.

We then prepared a response brief, clearly separating our explanations and the respective supporting documents to address each of the five issues. We also worked with our client in obtaining supporting documents and affidavits, making sure we were as thorough and complete as possible, considering how strict the U.S. Embassy in Guangzhou is.

In our 14-page response brief, we addressed each of the issues thoroughly. We went through Respondent’s background and how his personality fits the simple and traditional nature of his Chinese wife, backed by affidavits from his own parents and family members. We emphasized the four trips our client had spanning the past 3 years, and attached over 100 pictures of him and his wife on several occasions with both their families and friends. Documentation about money wire transfers, gifts sent by international mail, detailed phone bills showing the international phone number of his wife and the local phone number of her husband in Sacramento, and over 10 affidavits from friends and families. We explained the reasons why they did not have a reception immediately after, and showed that 3 post-wedding “receptions” were actually held.
Our response to the Notice of Intent to Revoke contained 59 exhibits (Exhibits A to GGG) in support of the response brief.

Our office filed the Response to Intent to Revoke on July 7, 2011 with the USCIS California Service Center.  On July 21, 2011, the USCIS determined that they will not to revoke our client’s I-130 petition.  Since the I-130 petition remains approved, finally, after two and half years of separation since their marriage, our client’s wife can now obtain her Immigrant Visa in China, come to the United States, and obtain permanent residency.

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CASE: Bond Hearing
APPLICANT: Chinese
LOCATION: Eloy, AZ

Our firm was contacted in the middle of May regarding a Chinese individual detained in Eloy, Arizona.  She tried to enter the United States without valid documents and was incarcerated thereafter by immigration officers. She was then given credible fear interviews which she eventually passed.

Upon our retention, we immediately submitted documents to the Immigration and Customs Enforcement to inquire about the status of the bond. To our and our client’s surprise, they set a very high bond of $20,000. Our client wished to have that reduced so we filed a bond redetermination with the Eloy Arizona Immigration Court. Despite her being in jail in Eloy, we communicated with her and tried to gather as much information regarding her relief, equities, criminal record, family, and financial ability to post bond. We contacted our client’s several relatives and friends in New York. We also gathered supporting documents from those relatives, from proofs of their status, residences, to bank statements and tax returns. We also obtained notarized affidavits from them.

On June 15, 2011, we represented our client for the Eloy Arizona Immigration Court bond hearing. At oral arguments, we said that our client was eligible for asylum relief, passed his credible fear interview, was not a flight risk, had established her residence upon release, had established her financial ability to post bond, and that she had ample family ties in the United States who submitted proofs of their residence and copies of their immigration status.  As mentioned previously, the government’s position was a $20,000 bond. Our office argued that a bond of $5,000 would be reasonable in light of the factors under Matter of Patel.  Our office contended that her lack of criminal record, designated address with contact information from her relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that $5,000 would be reasonable.  The Judge took our arguments and evidence into consideration and a bond of $5,000 was granted. Our client’s relative has thereafter posted bond and she is now out of detention to pursue her asylum claim.

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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: Bond Hearing
APPLICANTS: Chinese
LOCATION: Florence, AZ

Our firm was contacted in early April regarding two Chinese individuals detained in Florence, Arizona.  They tried to enter the United States without valid documents and were incarcerated thereafter by immigration officers. They were then given credible fear interviews which they eventually passed.

Upon our retention, we immediately filed bond hearings for our two clients. Despite them being in jail in Florence, we communicated with them and tried to gather as much information regarding their relief, equities, criminal record, family, and financial ability to post bond. We contacted our clients’ several relatives and friends in New York and Alabama. We also gathered supporting documents from those relatives, from proofs of their status, residences, to bank statements and tax returns. We also obtained notarized affidavits from them.

On April 26 and 27, 2011, we represented our clients for the Florence Arizona Immigration Court bond hearings. We argued that our client was eligible for asylum relief, passed credible fear interviews, were not flight risks, 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 proofs of their residence and copies of their immigration status. The Judge took our arguments into consideration and a bond was granted thereafter. Our clients’ relatives have thereafter posted bond and they are now out of detention to pursue their asylum claims.

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Our client retained us to petition his parents in China. He was born and raised in China, but was recently naturalized in the United States. He consulted about the timeline and process of bringing his parents over here, and we explained that these types of cases are faster than sibling petitions or those where a parent petitions a son or daughter over 21.

A petition such as the above-mentioned is an example of an immediate relative petition. The main benefit of immediate relative petitions is that visa numbers are always available and not subject to a quota. You don’t have to check the visa bulletin every month to see if the U.S. Consul or the CIS can now process your case. It is already in process. The types of immediate relative petitions are as follows:

• US Citizen spousal petition
• US Citizen parent petitioning a child under 21
• US Citizen son or daughter petitioning a parent (such as this case)

On November 17, 2010, our firm filed the I-130 Petition to the CIS. There were no Requests for Evidence throughout the pendency of the petition. On April 1, 2011, the I-130 Petition was approved. We now move to the immigrant visa processing phase of trying to get his parents over to the United States.

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Green card applications based on employment petitions rely on the visa bulletin to determine whether one can already apply. The visa bulletin is updated monthly, and is categorized into India, China, Mexico, and “Other Countries” corresponding to different types of employment-based petitions such as the EB-1, EB-2, EB-3 etc.  The availability and priority dates of these are determined by quotas, availabilities, and backlogs in the immigration service.

Charlie Oppenheim, the chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, recently pointed out that there has been a decline in filings for the EB-1 category. He mentioned that this decline started in October 2010 and he does not anticipate any changes in the future. This led to at least 12,000 visa numbers being available to be disbursed to other visa categories. In particular, he specified  that the EB-2 category for India will be advanced in May and may also lead down the road to EB-3 advancement.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Chinese
Location: Cleveland, Ohio

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  Once he arrived at the Miami International Airport, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002. Thus, he had a final order of removal.

According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”

Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. citizen spouse. Our client and his wife consulted with our firm to see if there’s anything that could be done for them knowing that they already have a final order. We reviewed their file, learned that he was an arriving alien despite the final order, and thus advised them that we can apply for adjustment of status. They retained us in November, 2010.

An arriving alien can adjust his or her status even though he or she has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.

The January 12, 2007 USCIS memo states that the USCIS can adjudicate an adjustment of stauts application of a parolee with a final order under these interim regulations. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord wit
h this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

Thus, our office thoroughly prepared and filed the I-130 Petition and Adjustment of Status application in accordance with the regulations.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.  There was no request for additional evidences.

Prior to the interview, Attorney Sung Hee (Glen) Yu with the help of Arty Wynieski from our office thoroughly prepared our client for their USCIS adjustment of status interview. The preparation lasted for several hours because of  the “arriving alien” issue and other possible concerns with regard to our client’s case.

On the interview day, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office.  The interview went well, and our client eventually got his green card on March 28, 2010.  Despite having a final order since 2002, our client finally became a permanent resident of the United States.

For more success stories in the deportation and marriage areas of immigration, feel free to browse our website and for further questions, please do not hesitate to contact our office for a free consultation.

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CASE: Jail Release
NATIONALITY: Chinese
LOCATION: Virginia
ISSUE: Bond and Release Jurisdiction

Our client’s niece retained us to release her aunt from immigration custody in Virginia. She retained us within one week of her scheduled Master Hearing with the Arlington Immigration Court. Our client came with a fake Singapore passport and after the Immigration and Customs Enforcement (ICE) interrogated her, she was placed in asylum only proceedings. She had a master hearing in less than a week with the Arlington Immigration Court. Since Singapore is a visa waiver country, and she came in with a fake passport from Singapore, possible bond and release rest on the jurisdiction of ICE, not with the Immigration Judge. Prior to the hearing, we gathered as much information as possible regarding her asylum claim. We took pleadings at the Master Hearing on March 2, 2011 and a Master Reset was scheduled in May for submission of the application. Afterwards, we coordinated with the Immigration and Customs Enforcement to request our client’s release. We sent proof of residence documents upon release, an affidavit from the person whom she would live with, financial documents from her sponsor, a summary of her asylum claim, a brief in support of her release, and other documents. We followed up with the officers multiple times, leaving voice mails and sending emails almost daily. Finally, on March 23, 2011, ICE informed us that based on the information they received, they decided to allow the release of our client on no bond. She is now out of jail and is better equipped to prepare for her asylum case.

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CASE: Bond Hearing

APPLICANTS: Chinese

LOCATION: Houston Texas

Our firm was contacted in early November regarding 4 Chinese individuals detained in Houston. They entered with fake documents at the George Bush International airport and was detained thereafter by immigration officers. The government informed them and they confirmed with us that it was a “no bond” situation. That meant they would not be released by the Department of Homeland Security even on a bond.

The only recourse was to argue their eligibility for a bond with the Immigration Judge in Houston. Upon our retention, we immediately filed bond hearings for our 4 clients. Despite them being in jail in Houston, we communicated with them and tried to gather as much information regarding their reliefs, equities, family, and financial ability to post bond. We contacted our clients’ several relatives and friend in Philadelphia and New York. We also gathered supporting documents from those relatives, from proofs of their status to bank statements and tax returns. In order to clearly show the Judge our clients’ eligibility for relief, we worked with our clients to prepare an asylum application even though it was not due, just to attach it as an exhibit and present the government and the Judge what their claims are about.

On November 20, Attorney Glen Yu represented our clients for the Houston Immigration Court bond hearing. He argued that our client was eligible for asylum relief, were not flight risks, 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 proofs of their residence and copies of their immigration status. The Judge took our arguments into consideration and a bond was granted thereafter. On November 24, the bonds were posted and all of our clients are now out of jail. They can now better prepare for their asylum cases as they are now not detained.

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