CASE: H-1B Visa Petition Extension

PETITIONER: School District in Mohave Valley, AZ

BENEFICIARY: Filipina Elementary Education Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in February 2020 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary Education Teacher from the Philippines who has been working for this employer for last 5 years under J-1 / H-1B status. She wanted to extend her H-1B status which will be expired at the end of June 2020. 

The proffered position for the Beneficiary is an Elementary Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2021 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B) and it is an extension petition. 

Once retained, our office filed the H-1B visa petition with various supporting documents on March 19, 2020 via regular processing. Eventually, our client’s H-1B application was approved on April 28, 2020 without any Request for Evidence (RFE).  She can now work for her employer for next three years on an H-1B status.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Somerton, AZ

Our client came from the Philippines on a J-1 in August 2017 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. 

In April 2019, she got married to her U.S. citizen husband and later on consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office promptly prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On April 18, 2019, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  On November 26, 2019, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On March 9, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on March 30, 2020, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment status application along with her U.S. Citizen husband’s I-130 petition for her.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Chinle, AZ

Our client came to the United States in August 2016 on a H-1B visa from the Philippines to work as a high school teacher. Later, she married a U.S. Citizen in August 2018 and retained our office for her petition and adjustment of status application. She also asked us to file her minor son’s (Petitioner’s step-son) adjustment of status application.

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on December 5, 2018. 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 via conference calls. On September 18, 2019, our clients were interviewed at the Phoenix Arizona USCIS office. On the same day of their interview, our client and her son’s green card applications were approved.

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CASE: Marriage-Based Green Card (Same Sex Marriage Case)

CLIENT: Filipino

LOCATION: Bullhead City, AZ

Our client came to the United States from the Philippines on a J-1 Exchange Visitor’s visa in 2015. He married his U.S. Citizen same-sex spouse in March 2016.

On June 26, 2013, the U.S. Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment. United States v. Windsor, 570 U.S. ___ (2013). After Windsor decision, the USCIS implemented a new policy that the USCIS officer must review immigration via petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. As long as a same-sex couple is married in a U.S. state that recognizes same-sex marriage, their marriage shall be considered a valid marriage under the immigration law. 

They married in Nevada where the same-sex marriage is recognized. Our client contacted our office and retained us on July 31, 2018 for his 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 August 21, 2018. 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 via conference calls. On August 19, 2019, our client was interviewed at the Phoenix, Arizona USCIS office. The interview went well and his green card application was approved on the same day.

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CASE: H-1B Visa Petition

PETITIONER: School District in Mohave Valley, AZ

BENEFICIARY: Filipina Elementary Education Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in March 2019 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary Education Teacher from the Philippines who has been working for this employer for last 5 years under J-1 status. Though she was subject to INA 212(e), two-year foreign residency requirement, she already obtained a J-1 waiver from the USCIS.

The proffered position for the Beneficiary is an Elementary Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2020 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B).

Once retained, our office filed the H-1B visa petition with various supporting documents on April 29, 2019, via premium processing. However, the USCIS issued the Request for Evidence (RFE) and requested our client to submit her I-612 J-1 waiver approval notice once again. Our office filed the Response to RFE on May 14, 2019. Eventually, our client’s H-1B application was approved on May 23, 2019.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in Mohave Valley, AZ

BENEFICIARY: Filipina Elementary Special Education Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in March 2019 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary Special Education Teacher from the Philippines who has been working for this employer for the last 4 years under J-1 status. Though she was subject to INA 212(e), two-year foreign residency requirement, she already obtained a J-1 waiver from the USCIS.

The proffered position for the Beneficiary is an Elementary Special Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2020 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B).

Once retained, our office filed the H-1B visa petition with various supporting documents on April 19, 2019, via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on May 1, 2019.  She can now work for her employer for three years on an H-1B status.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Canada

LOCATION: Phoenix, AZ

Our client is from Canada who came to the U.S. on a B-2 Visitor Visa in August 2015. In January 2016, our is married his current U.S. citizen wife.  He retained our office for his green card application on February 15, 2016. Our client had a criminal record in Canada – assault causing bodily harm; however, based on Matter of Perez Contreras, our office determined that his conviction record should not be construed as a Crime involving Moral Turpitude (CIMT).

Our firm prepared and filed the I-130 Petition and I-485Adjustment of Status Application on February 22, 2016.  We included an explanatory brief regarding our client’s criminal record – that it does not rise to the level of a CIMT conviction. 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 via conference call as well. On September 19, 2016, our client was interviewed at the Phoenix, Arizona office. Eventually, on November 10, 2016, his green card application was approved.

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CASE: I-485 Approval
CLIENT: Ghanaian
LOCATION: Phoenix, AZ

Our client is a Ghanaian citizen who came to the U.S. on a B-2 Visitor Visa in February 2004. As our previous success story explained, our client had a final order of removal in absentia, but his case was reopened after our office’s successful Motion to Reopen in April 2012.

Our client and his wife married in August 2007 and they have two U.S. citizen children now.

Our office immediately filed an I-130 Petition with bona fide marriage evidence on March 12, 2012. The I-130 petition was approved on August 20, 2012 without an interview. Our client appeared at the Phoenix Immigration Court on August 21, 2012 for his initial master calendar hearing. Attorney Sung Hee (Glen) Yu from our office represented him at the hearing, did pleadings and sought adjustment of status relief.

After the I-130 was approved, our office filed a Motion to Terminate Removal Proceedings with the I-485 application and supporting documents to the Phoenix Immigration Court. The DHS counsel in Phoenix did not oppose the Motion to Terminate Removal Proceedings. Ultimately, the Immigration Judge granted the Motion to Terminate Removal Proceedings without prejudice on October 15, 2012.

After his case was terminated by the Immigration Court, our office prepared and filed the I-485 Adjustment of Status Application on November 24, 2012, together with other necessary forms and supporting documents. 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 over the conference all.

On January 28, 2013, our client was interviewed at the Phoenix CIS office. Our client was fully prepared at the interview went well.  On the same day, his green card application was approved.

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

Our office was contacted in December of 2012 regarding one Chinese person who was 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 set a bond amount of $15,000.  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 New York, 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 our client’s relatives, from proof of their status and residence, to bank statements and tax returns.

On January 11, 2013, we represented our client at his Florence Arizona Immigration Court bond re-determination hearing.  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 that he had ample family ties in the United States who submitted proof of his residence and immigration status.  Moreover, our office explained that his lack of criminal record, 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 to only $6000.

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Show Me Your Papers

U.S. District Judge Susan Bolton ruled that Arizona authorities can enforce the section of the state’s immigration law critics have called the “show me your papers” provision, as reported on CNN. This clears the way for police to carry out the requirement that officers, while enforcing other laws, question the immigration status of those they suspect are in the country illegally. This provision has been in the middle of a two-year legal battle that resulted in a U.S. Supreme Court decision in June upholding the requirement.

Those against the provision pled for Judge Bolton to block the provision, arguing that it would lead to systematic racial profiling and unreasonably long detentions if enforced. Those for the provision argued that racial profiling was simply a speculation. Governor Jan Brewer’s office also said that police have received training to avoid discriminatory practices and that officers must have reasonable suspicion that a person is in the country illegally to trigger the requirement.

Judge Bolton mentioned that her Court will not ignore statements from the Supreme Court that the provision cannot be challenged further on its face until the law takes effect. She confirmed the Supreme Court’s interpretation that the law may still be challenged as unconstitutional on other grounds.

Arizona’s law, SB1070, was passed in 2010. Five other states, Alabama, Georgia, Indiana, South Carolina, and Utah have adopted similar variations.

ICE Detained and Deported A Record Number of Illegals

Immigration and Customs Enforcement (ICE) detained and deported a record number of illegals in 2011 and are on track for similar numbers this year, even though the number of illegals crossing the border dropped to a 40-year low, according to the New York Times.  ICE agents deported 391,953 in 2011, including 188,000 convicted of crimes, which was an all-time high for such deportations.

Citizens of Mexico, Guatemala, Honduras, and El Salvador made up 93% of all people deported last year. To date there are about 366,000 deported through August 31, but they include 191,000 convicted criminals, more than last year. ICE also detained about 429,000 immigrants last year which was another record.

Though the Department of Homeland Security (DHs) had said that they are focusing on illegal immigrants with criminal convictions, the record number of deportations the past two years had a big impact on the Latino community, causing doubt on the Obama administration.

Circuit Cases

• 1st Circuit: Rebenko v. Holder, September 4, 2012. Asylum. Petitioner testified at the IJ level that she experienced mistreatment in Ukraine on account of her Pentecostal faith on four occasions: (1) her arrest in May of 1999; (2) her receipt of threatening phone calls from nationalists following her arrest; (3) the “mockings” she experienced during her graduation in June of 2000; and (4) her beating at the hands of “skinheads”. The 1st Circuit noted that Petitioner did not report any significant mistreatment before May of 1999 or after June of 2000, though she had practiced Pentecostalism since childhood and continued to live in Ukraine until July of 2001. The Court held that the IJ could have reasonably concluded that the mistreatment Petitioner described was not “systematic” but was “reflective of a series of isolated incidents” over the course of a bad year. The Court mentioned that Petitioner describes no nexus between her harassment at her graduation and any government action or omission. Her speculation that the police caused nationalists to make threatening phone calls was not supported by evidence. The Court viewed Petitioner’s May 1999 arrest as a single incident in which Petitioner suffered no injuries requiring medical treatment, and that a reasonable adjudicator would not be compelled to find that this incident rose to the level of persecution.
• 9th Circuit: Sanchez-Avalos v. Holder, September 4, 2012. Criminal. Petitioner petitioned for review the BIA’s decision that he is not eligible for waiver of inadmissibility because he was convicted of an aggravated felony. Petitioner argued that his conviction for sexual battery under California Penal Code § 243.4(a) did not qualify as sexual abuse of minor. The Court applied the categorical and modified categorical approaches. The Court concluded that the crime of sexual battery under California law is categorically broader than the federal generic crime of “sexual abuse of a minor” because the California crime may be committed against a victim of any age, while the federal generic offense requires proof that the victim was a minor. Court held that the crime of sexual battery in California is not categorically an aggravated felony, and that none of the evidence established that the petitioner’s victim was a minor.

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