CASE: I-751 / Waiver of the Joint Waiver Requirement
APPLICANT: Indian
LOCATION: Kentucky

Our client contacted our office in early May of 2012 regarding his potential I-751 filing. He is from India and he married a U.S. citizen in May 2009 in India.

Through his marriage, he was able to come to the United States with an immigrant visa and obtained a 2-year conditional green card in June of 2010. Thus, his conditional residency terminated in June 2012.

Unfortunately, their marriage ended in February 2011. Our client experienced a lot of difficulties during his marriage with his ex-wife. Thus, our client could not file the I-751 application jointly with his ex-wife.

We advised that we can help him file the I-751 application with a waiver of the joint filing requirement. We requested a waiver because our client entered into the marriage in good faith, but the marriage was terminated through divorce or annulment before they can file a joint petition.

On June 20, 2012, our office filed the I-751 application with various supporting documents (over 18 exhibits and an affidavit over 3 pages) to demonstrate our client’s bona fide marriage with his ex-wife.  Since he did not have a lot of supporting documents regarding joint financial documents and joint living arrangements of him and his ex-wife, we also attached numerous notarized affidavits from our client’s friends and family members.

In May of this year, the USCIS scheduled an I-751 interview for our client. Prior to the interview, our office thoroughly prepared our client over conference calls and discussed with him potential issues at the interview.

On June 6, 2013, our client was interviewed for his I-751 application at the USCIS Louisville, KY Field Office.  Attorney Glen Sung Hee Yu from our office also accompanied our client as well.  The interview went well, and eventually, the USCIS approved his I-751 application on June 12, 2013. Now, he has his ten-year green card.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Indian
LOCATION: Ohio

Our client contacted us in November 2012 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from India and obtained his green card in 2009. He retained our office for his naturalization and citizenship N-400 application on November 13, 2012.

The N-400 application was filed on November 21, 2012 with all supporting documents.

Our office prepared him before his naturalization interview, and Attorney Sung Hee Yu also accompanied him on May 10, 2013 at the Cleveland CIS office.

Our client answered all questions correctly and passed his N-400 interview. Eventually, his naturalization application was approved on June 10, 2013. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: I-485 approval under the INA 245(i) provision
CLIENT: Indian
LOCATION: Kentucky

Our client is from India who came to the U.S. on a B-2 visitor’s visa in September 2002. Since that time, she never left the United States.

In December 1986, our client’s uncle filed an I-130 (fourth preference) petition for her father.  This I-130 petition was approved.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Our client was not able to immigrate on that petition though because she aged out.

Later, our client’s father filed an I-130 petition on her behalf on January 9, 2006.  This Petition was approved in the same year.

Our client contacted us around September of 2010 for consultation and sought legal assistance for her possible adjustment of status application. Attorney Sarmiento met them in the Washington DC area.

After consultation, we determined that she was eligible for adjustment of status under INA 245(i). Our client retained us in October 2010.

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 those other than 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 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 begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits.

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 a petition before January 14, 1998 (as a derivative beneficiary of the F-4 petition filed by her uncle to her father on December 29, 1986), and thus was eligible to adjust under INA Section 245(i) despite her overstay, without any need to show physical presence in the United States in December 14, 2000.

Once retained, our office prepared and filed her 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 her interview as well.

On February 1, 2011, our client was interviewed at the Louisville, Kentucky USCIS Field Office.

Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. The interview went well; however, the priority date retrogressed before her adjustment of status applicant was approved.

Finally, priority dates opened again. On February 4, 2013 our client’s I-485 application was approved.  She finally became a green card holder.

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CASE: H-1B Extension

PETITIONER: Electric Immersion Heater Manufacturer

BENEFICIARY: Indian Procurement Engineer

LOCATION: Cleveland, OH

Our client is a procurement engineer from India who currently works at an electric immersion heating manufacturing company in the greater Cleveland area. He is currently on a valid H-1B visa.

As our previous success stories show, he got his H-1B visa and I-140 petition through our legal assistance. His H-1B status was about to expire when his I-140 petition was approved. He retained our office in late September 2012 again, and sought legal assistance from us for his H-1B 3-year extension.

Ou office prepared his H-1B extension application. The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on November 13, 2012 to the USCIS California Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 30, 2013. The H-1B is good from February 14, 2013 to February 13, 2016.

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CASE: N-336 (Citizenship / Naturalization / Request for a Hearing on a Decision in Naturalization Proceedings)
APPLICANT: Indian
LOCATION: Ohio

Our client filed an N-400 application in June 2012 to the USCIS. He came to the United States from India and obtained his green card in 2001.  However, on September 28, 2012, the USCIS denied his naturalization application due to insufficient submission of his criminal records in the past.

The USCIS informed him that if he believes that he can overcome the grounds for the denial, he can submit a request for a hearing on Form N-336 within 30 calendar days of the issuance of the denial decision.  He retained our office and sought for legal assistance of his N-336 application.

The N-336 application was filed on October 23, 2012 with all supporting documents including all of his previous certified criminal records. Our office prepared him before his N-336 interview, and also accompanied him on December 17, 2012 at the Cleveland CIS office. Our client explained about his previous criminal cases and submitted all of the requested documents. On January 16, 2013, his N-336 application was approved. His oath taking will be scheduled in February in which he will become a naturalized U.S. Citizen.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Indian
LOCATION: Houston, Texas

Our client came to the United States in 2007 with an F-1 student visa from India to pursue his master’s degree in the United States.  He married a U.S. Citizen in July 2012 and retained our office on October 1, 2012 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 17, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On January 15, 2013, our client was interviewed at the Houston, Texas USCIS.  Our attorney Sung Hee (Glen) Yu accompanied our clients as well. On the same day, his green card application was approved.

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CASE: I-140 / I-907 (Premium Processing)
ISSUE: Had to get the I-140 Approved to Be Eligible for 3-Yr H-1B Extension
EMPLOYER: Electric Immersion Heater Manufacturer
BENEFICIARY: Indian Management Analyst
LOCATION: Cleveland, OH

Our client is a management analyst from India, who is currently working at an electric immersion heater manufacturing company in Cleveland Ohio. The company was willing to do an immigration petition him for a second-preference petition (I-140). He is on his sixth year of H-1B, and to extend it for another three years, he’s had to have an I-140 approval before his current H-1B expires.

Our client has an MBA degree and has worked for this company since April 2012. He has maintained his status as an H-1B visa holder in the United States.

After talking to our client, our firm advised that his potential employer can petition him as a Management Analyst. It is a Job Zone 4 position, which typically does not merit an EB2 finding by the Department of Labor, but we thought the position was complex enough to merit an argument. Based on our client’s educational, professional and working background as an engineer and management analyst, our office determined that it’s still worth a shot for the EB-2 classification.

As mentioned on our previous success story, we filed the PERM labor certification application for our client on June 29, 2012. Two months later, on August 30, 2012, the PERM labor certification was approved. Our client retained us again for the I-140 petition.

We then proceeded with the I-140 Petition filing.

We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employment verification letters from our client’s previous employers, and other necessary supporting documents.

The I-140 Petition was filed on September 24, 2012 via premium processing. On October 1, 2012, in only seven days, the I-140 EB2 for our Indian client was approved.

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The October 2012 Visa Bulletin was released on September 10, 2012. October is the start of the fiscal year for immigration purposes. As you may know, the EB2 employment category retrogressed a few months ago, including those in “other countries”, which has almost always been current.

Dates for EB2 India is September 1, 2004 and EB2 China is July 15, 2007. “Other countries”, the Philippines, and Mexico all had January 1, 2012 as EB2 priority dates. These are way under the predictions made for the October priority dates. The expectation for India prior to this release was 2007,  3 years less. For Indians under the EB2 category, in order to apply for a green card, or, if pending, for their green card applications to be adjudicated, the I-140 priority date should be September 1, 2004 or earlier.

Porting from EB3 to EB2 has increased the number applicants for EB2 India, putting the priority dates way back. The demand data which was released on September 10 shows that for EB2 India, there are 1,350 applicants with a priority date before January 1, 2007, 5,500 before January 1, 2008, and 20,000 before January 1, 2009.

Source: www.travel.state.gov

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CASE: PERM Labor Certification
EMPLOYER: Electric Immersion Heater Manufacturer
BENEFICIARY: Indian Management Analyst
LOCATION: Cleveland Ohio

The beneficiary is a management analyst from India, who is currently working at an electric immersion heater manufacturing company in Cleveland Ohio. The company / petitioner was willing to petition him for a green card, in the second-preference category (EB2).  Our client has an MBA degree and has worked for this company since April 2012. He has maintained his status as an H-1B visa holder in the United States.  After talking to our client, our firm advised that his potential employer can petition him as a Management Analyst. It is a Job Zone 4 position, which typically does not merit an EB2 finding by the Department of Labor, but we thought the position was complex enough to merit an argument. Based on our client’s educational, professional and working background as an engineer and management analyst, our office determined that he is clearly eligible for the EB-2 classification for his I-140 petition.

Prior to filing the PERM labor certification application, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  On June 29, 2012, we filed the PERM labor certification application. Two months later, on August 30, 2012, the PERM labor certification was approved – an EB2 position for a Job Zone 4 Position – Management Analyst – without an audit!

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Two of the elements that a potential naturalization applicant should meet are the continuous residence and physical presence requirements. If you obtained your permanent residency through marriage, the residency requirement is three years, assuming you are still living with your spouse. If you obtained your permanent residency through other means, such as employment or through a different family member, then the residency requirement is five years. You should then be physically present in the U.S. for at least one-half of the last five years (or one-half of the last three years if you got your green card through marriage) before applying for naturalization.

An absence between six months and one year during those last three or five years raises a rebuttable presumption that continuity of residence has been interrupted. INA § 316(b). Thus, if you’ve had trips abroad which lasted between six months and one year, even though you meet the physical presence requirement, the continuity of residence requirement might have been disrupted.

You should be able to properly document your trips and reasons for such when you apply for naturalization, and explain this at your interview, to rebut the presumption of disruption.

Some factors which may establish continuity of residence as stated in 8 C.F.R. § 316.5(c)(1)(ii) include:

1. Not terminating employment in the U.S.
2. Presence of immediate family in the U.S.
3. Retention of full access to a U.S. home, and
4. Not obtaining employment abroad.

Permanent residents who studied abroad with trips between six months and a year can also rebut this presumption. Li v. Chertoff, 490 F.Supp.2d 130 (D.Mass.2007), holds that study abroad does not result in abandonment of residency. Our firm recently represented an Indian client with this issue, and he was able to naturalize. (Click Here for the Success Story). We also cited this case for another client of ours whose husband was the one who studied abroad (Click Here for the Success Story), in which she, at that time the permanent resident, accompanied her husband.

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