CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Santa Clara, California

Our Filipina client came to the United States on a B-2 visitor visa in July 2014. Later, she married a U.S. Citizen in September 2014 and retained our office on November 10, 2014 for her green card application. She had previous J-1 visas, but she was not subject. BOTH her DS-2019 and visa stated that she was not subject to the 2-year rule.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 13, 2014.  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 as well. On March 3, 2015, our client was interviewed at the Santa Clara, California USCIS office. Eventually, on the same day, her green card application was approved.

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

NATIONALITY: Korean

LOCATION: Los Angeles, California

Our client is a citizen of South Korea who came to the U.S. on a J-2 Visa in August 2005.  She came with her 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 completed her ESL courses and was admitted to the University to pursue her bachelor’s degree. In July 2006, she went back to South Korea and got her F-1 student visa at the U.S. Embassy in Seoul, and came back to the United States with her F-1 student visa.

She turned 21 in 2007. This year, she would like to change her status from F-1 to H-1B if her prospective employer files an I-129 petition for her in April. Moreover, she also has an approved I-140 petition and currently is waiting for her priority date to be current. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without fulfilling the requirement or getting a waiver.

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 March 2007.

Our firm was retained to do her J-2 waiver on December 11, 2014. On December 12, 2014, 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 January 9, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On January 20, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Motion to Reopen (I-290B) / H-1B Visa Petition

PETITIONER: Healthcare Staffing Company

BENEFICIARY: Filipino Pharmacist Intern

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early March to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist in the Philippines who obtained his Doctor of Pharmacy degree in the Philippines. The proffered position for the Beneficiary is a Pharmacist Intern because he does not have any U.S. Pharmacist license. Still, we showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree.

When our client contacted us, the numerical cap of H-1B visas for fiscal year 2014 was not available. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue).

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacist Interns) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 7, 2013 via premium processing.

However, the USCIS California Service Center issued Requests for Evidence (RFE) on May 22, 2014 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the definition of cap-exempt purposes. Also, the USCIS requested additional information regarding the qualifications of Beneficiary for the proffered position.

The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that he could not get a license in Ohio due to what we claimed on the initial application as a lack of social security / status.

Once we received the RFE request, our office prepared the response for the RFE and argued that the prospective places of employment for Beneficiary are non-profit medical research organizations and Beneficiary’s work will be similar to Pharmacist Interns in those hospitals.

We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We also included why he could not take the Board exam (since he does not have a social security number) and did not get a license.We filed this Response to the RFE on May 29, 2014.

Unfortunately, the USCIS denied this case in June 2014. They agreed with our position on the “cap-exempt” issues, however, they did not accept the Ohio Pharmacy Board requirements proof that we submitted showing that they needed a social security number, and that our client did not have one. They instead wanted a deficiency letter.

So our client applied for a license with knowledge that they won’t give it to him, just so that the CIS will be satisfied with the evidence. He indeed got a deficiency letter from Ohio, which we submitted in a Motion to Reopen.

We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow him to obtain a social security number which will lead him to get his license.

Our office filed a Form I-290B (Motion to Reopen) and a detailed brief with exhibits to the USCIS California Service Center on July 9, 2014.  Eventually, our client’s Motion to Reopen was granted by the USCIS on September 15, 2014. Subsequently, his H-1B application was approved on October 1, 2014. Now, the beneficiary can work for the Petitioner from October 1, 2014 for one year.

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CASE: H-1B Visa Petition

PETITIONER: Pharmacy in California

BENEFICIARY: British Pharmacist Intern in the United Kingdom

Our client is a pharmacy located in California.  They contacted our office in early March of this year to seek legal assistance for a possible H-1B petition for a prospective foreign employees.

The beneficiary obtained his Bachelor’s degree in Pharmacy in the United Kingdom. Also, the beneficiary is a licensed pharmacist in the U.K. and she is currently residing in the U.K. The proffered position for the Beneficiary is a Pharmacist Intern which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2014 via regular processing. This H-1B petition was selected after the lottery.

However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence for the qualifications of Beneficiary for the proffered position. The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that she could not get a license in California due to what we claimed on the initial application as a lack of social security / status.

The USCIS was skeptical and argued that Beneficiary is not qualified for Pharmacist Intern position because she did not have a California Pharmacy license yet. We thus had the beneficiary submit further documents to the California State Board, including fees, in order to receive the deficiency letter (print-outs regarding California’s requirements were initially submitted showing that a social security is needed, but these days, CIS wants an actual deficiency letter… they want you to actually pay and submit an actual application even though your requirements are missing, so that the deficiency letter can serve as your evidence in the H-1B petition) on Beneficiary’s license application from the California State Board of Pharmacy to explain why she could not get her license (she could not get a license because she does not have a social security number).

In the response brief, our office argued that the beneficiary did apply for the California License but she does not have a license yet due to a deficiency in her social security number. We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow her to obtain a social security number which will lead her to get her license. Moreover, our office submitted the documents to demonstrate Petitioner’s business viability (tax return and quarterly wage report) and other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with exhibits to the USCIS California Service Center on September 3, 2014.  Eventually, our client’s H-1B application was approved on September 18, 2014. Now, the beneficiary can apply for an H-1B visa at the U.S. Embassy in London, U.K, and upon the issuance of visa, she can work for the Petitioner from October 1, 2014 for one year.

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CASE: Change of Status from H-1B to F-1

CLIENT: Filipina

LOCATION: California

Our client has been on H-1B status for many years and has worked as a data architect in the United States.

This year, she decided to pursue an advanced accounting proficiency program in the United States and got admission.

She contacted our office in mid-July of this year to change her status from H-1B to F-1.

On July 15, 2014 our firm was retained for the Change of Status. On July 25, 2014, we filed the I-539 Change of Status for our client with supporting documents including her I-20, SEVIS fee receipt, and recent pay stubs from her employer.

On September 8, 2014 the Change of Status was approved. Our client is now on F-1 and can start her accounting program soon.

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT: Chinese

LOCATION: San Diego, CA

Our client contacted our office in early December of 2012 regarding her potential I-751 filing. She came to the United States from China in October 2010, after she married a U.S. Citizen (her ex-husband).

Through her marriage, she was able to obtain a 2-year conditional green card in March of 2011. Thus, her conditional residency terminated in March 2013.

Unfortunately, their marriage ended in December 2012. Our client experienced a lot of difficulties during her marriage with her ex-husband. Thus, our client could not file the I-751 application jointly with her ex-husband.

Once retained, 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. We focused on the supporting documents that she can show and helped her draft an extensive affidavit about their marriage, and why it ended the way it did.

On December 19, 2012, our office filed the I-751 application with various supporting documents (over 24 exhibits and an affidavit over 5 pages) to demonstrate our client’s bona fide marriage with her ex-husband.  We also attached numerous notarized affidavits from our client’s friends.

However, on July 15, 2013, the USCIS issued a Request for Evidence (RFEs) to demonstrate the bona fideness of our client’s marriage with her ex-husband. We filed an extensive Response to RFE to the USCIS with more bona fide marital documents on September 19, 2013.

In January 2014, the USCIS scheduled an I-751 interview for our client.

Prior to the interview, our office thoroughly prepared our client via conference call and informed them of potential issues at the interview.

On January 28, 2014, our client was interviewed for her I-751 application at the USCIS Chula Vista, CA Field Office.  Attorney Glen Sung Hee Yu from our office accompanied our client.  The interview was very extensive.  Nevertheless, the USCIS approved our client’s I-751 application on June 24, 2014. Now, she has her ten-year green card.

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CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Illinois

Our Filipino client came on a J-1 visa in April 2010. He has remained in the United States ever since, even past his J-1 program. He was subject to the two-year foreign residency requirement.

He contacted our office after the Windsor (re same-sex) decision passed, and told us that he planned to get married to his U.S. citizen fiancé at that time (same-sex).

He was eligible for adjustment of status based on his marriage to U.S. citizen spouse, but he cannot adjust without a waiver of his two-year foreign residency requirement.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 31, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  Later in September 2013, our client married his U.S. citizen spouse in San Francisco, CA where same sex marriages are recognized. Then, we also sent a request to the Illinois State Government to get authentication for necessary documents.  Later, these authenticated documents and the No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in Chicago and San Francisco for further authentication. On December 12, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.

The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On May 5, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.

Eventually, on May 20, 2014, the USCIS issued an I-612 approval notice for the waiver.

Now, our client can file for his adjustment of status application along with his U.S. Citizen spouse’s I-130 petition.

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CASE: I-485 Based on Approved I-140 / National Interest Waiver

CLIENT: Korean

 LOCATION: Stanford, California

Our client contacted us in December 2012 about the possibility of doing a National Interest Waiver self-petition. He is a post-doctorate researcher and scientist in the field of Aerospace Engineering and Science, and is currently working as a post-doctorate researcher in an academic institution in Stanford, California.

Our client is an extraordinary researcher and engineer in the field of Aerospace Engineering Research; specifically, new aerospace propulsion technology such as SCRAM-JET, supersonic flow control, and plasma physics. His significant contributions have placed him at the pinnacle of the field of Aerospace engineering. Our client’s expertise is in the fields of plasma aided flow control, supersonic/hypersonic compressible flow and plasma assisted combustion. Throughout his research career, our client has provided innovative solutions for practical plasma flow control applications in supersonic and subsonic flows which were highly evaluated by the reviewers of various journals and by colleagues and experts in the field.

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 you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case 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 19-page brief for our client’s NIW filing. Our client also obtained 7 letters of recommendation from his colleagues and internationally-recognized scientists. Our office also included his publication records, presentation records, 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 41 exhibits.

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on July 18, 2013.  Eventually, on October 24, 2013, the USCIS Nebraska Service Center approved our client’s I-140 petition.

Once the I-140 petition was approved, our client retained our office again for his I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on February 10, 2014. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on April 28, 2014, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Now, he finally is a green card holder.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Filipino
LOCATION: Irvine, California

Our client contacted us in October 2013 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from the Philippines and obtained his green card in February 2009. He retained our office for his naturalization and citizenship N-400 application on October 9, 2013.

The naturalization and citizenship N-400 application was filed on November 5, 2013 with all supporting documents. Our office prepared him before his naturalization interview through conference calls. On April 14, 2014, our client appeared for his N-400 interview at the Santa Ana CIS office. Our client answered all questions correctly and passed his naturalization and citizenship N-400 interview. Eventually, his naturalization application was approved on April 28, 2014. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: I-130 Motion to Reopen Nunc Pro Tunc

CLIENT: U.S. Citizen Petitioner in California / Indian Beneficiaries in India

LOCATION: California

Our client is a naturalized U.S. citizen who resides in California. In August 2004, our client filed three I-130 petitions for her siblings who are in India.  Shortly after the filing of the I-130 petitions, our client received a receipt notice from the USCIS. Since the time that our client filed the I-130s, she has never moved and has never received any Requests for Evidence or decisions in the mail.

After she filed the petition, for the next nine years, she has always called the USCIS Customer Service Center to inquire about the status of the I-130 petitions. The CIS customer service personnel have always told our client that there were all in process. Petitioner has contacted the USCIS Customer Service Center throughout the last 9 years (from 2004 to 2013), and the only answer she got from the USCIS was that the Petition was still pending.

In August of 2013, our client made an Infopass appointment with the local USCIS office and went. When she went to the Infopass appointment, the officer there informed her that one of her cases was denied due to abandonment in 2009 and two of her I-130 petition cases were administratively closed in 2009 as well.

Over the past 9 years, our client and her siblings were waiting for the CIS decision with regard to the I-130 petition. Our client timely filed all requested documents at the time of initial filing of the I-130. There were no Requests for Evidence or denial decisions received in the mail. Despite her efforts, our client never received any succeeding notice about the I-130 petition. Only in August 2013 did she find out about the real processing status of the 3 Petitions when she went for an Infopass.

Our client became so disappointed and sought legal assistance to resolve this matter.

She retained our office on September 18, 2013 and our office promptly prepared and filed a Motion to Reopen to the USCIS the three petitions and asked the Service to exercise its discretion in re-opening nun pro tunc the cases beyond the filing deadline since our client has never been served nor informed by the CIS with regard to the administrative closure of the I-130 petitions.

Moreover, our Motion requested the CIS to summarily approve the I-130 petition for our client’s siblings because our client and her siblings have been waiting for the CIS decision for more than 9 years, without any decision from the USCIS.

The Motion noted that it would be extremely unfortunate and unfair for our client and her siblings if she has to re-file the I-130 petitions again since the priority date will be moved and they would have to wait another ten years.

Our office filed the Motions with Form I-290Bs on September 24, 2013.

On February 17, 2014, the USCIS California Center informed us that the cases are transferred to National Visa Center.

On February 25, 2014, the USCIS moved to reopen the matter, and also approved the two of her three I-130s with the old priority date.

Two of client’s 9-year pending I-130 petitions finally got an approval, and once priority dates become current, her siblings can file an Immigrant Visa in India, without having to re-file another I-130 and wait 10 more years.

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