CASE: EB-2 I-140
PETITIONER: International Trading Company
BENEFICIARY: Vietnamese
LOCATION: San Diego, CA

Our Vietnamese client from San Diego contacted our office in December 2011. She had an approved PERM Labor Certification and she would like to retain us for her I-140/I-485 application. Her current employer is located in San Diego and they wish to file an I-140 petition for her as a market research analyst. Our client had questions regarding possible issues they may face, the employer’s “ability to pay” issue in particular.

Once retained, our office prepared her I-140 petition and I-485 adjustment of status application. One of the main requirements for the I-140 is that the petitioning company must show that it has the ability to pay the proffered wage for the beneficiary’s position. Despite the negative taxable income, we provided all schedules of Petitioner’s tax return and argued that their net current assets were over and above the proffered wage. We provided the calculation on the cover letter, cited a CIS internal memo on the “ability to pay” issue, and attached the tax return schedule that showed the net current assets. We also prepared our client’s I-485 application and explained that the priority date for EB-2 Vietnam (“Other Countries”) is current.

Our office simultaneously filed the I-140 / I-485 applications on January 26, 2012 and on April 19, 2012, the I-140 petition for our client was approved with no Requests for Evidence.

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CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Filipina

LOCATION: Chicago, IL / Los Angeles, CA

Our Filipina client came to the U.S. on a B-2 visitor’s visa in 2001 and overstayed her status. Currently, she resides in Los Angeles, California.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjust status with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security in Los Angeles.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client’s US citizen sister was willing to become a substitute sponsor and she met the physical presence requirement. On January 5, 2011, our office filed a request to join in a Motion to Terminate with the Los Angeles DHS. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court. Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings.

With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case was transferred USCIS Chicago Field Office for adjudication of her I-485 application.

On April 5, 2011, our client appeared at Chicago CIS office for her adjustment interview.  Attorney Yu accompanied her at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained them that the old humanitarian reinstatement standards were not needed anymore.

However, on October 3, 2011, the USCIS issued a Request for Evidence (RFE) for our client. The CIS argued that our client was not able to show humanitarian reasons for reinstatement.

It seemed though that the RFE did not take into account PL 111-83 and the new 2009 law. Under the new law, the Petition survives the death of the Petitioner also in categories of beneficiaries as long as they were residing in the U.S. on the date the Petitioner passed away and continue to reside in the U.S., including married sons and daughters of citizens and green card holders. A substitute sponsor who is a qualifying relative, such a U.S. Citizen sibling, shall still be needed, but the humanitarian factors are not.

Since our client’s case clearly fell under the amendments for INA Section 204(l), our office filed a Response to RFE on October 13, 2011 including a cover brief and 14 exhibits. We attached the law itself and highlighted the relevant parts.  Eventually, our client’s adjustment application was approved by the USCIS on February 15, 2012.  After a long wait, our client is finally a green card holder.

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CASE: I-130 and Consular Processing – Marriage-Petition
CLIENT: US Citizen Petitioner; Chinese Beneficiary
LOCATION: Petitioner: Sacramento, CA; Beneficiary: Hubei, China

Our Chinese client contacted our office in the middle of May 2011. He is 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, and 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.

After our office was retained, we filed a Response to Intent to Revoke on July 7, 2011 with the USCIS California Service Center. Over 200 pages of documents and 30 exhibits were submitted in our response. On July 21, 2011, the USCIS determined that they will not to revoke our client’s I-130 petition.   After the affirmation of the I-130 petition, the US Consulate in Guangzhou, China set another interview date for our client’s wife for her immigrant visa.  On November 9, 2011, the U.S. Consulate in Guangzhou, China conducted the immigrant visa interview for our client’s wife and simultaneously approved and issued her immigrant visa on the same day.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card within two weeks of entry. She finally would be able to be with her husband.

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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: H-1B Visa Petition (Change of Employer)
PETITIONER:  Advertising Media Company
BENEFICIARY: Web / Graphic Designer

Our client is an advertising media company in California. They contacted our office in early March to seek legal assistance from our office for their foreign employee.  The beneficiary is from Kenya and obtained his Bachelor’s degree in Interactive Multimedia in the United States. The proffered position for the Beneficiary is a Web / Graphic 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 Graphic Design or its equivalent.  It almost has become a necessity and in order for companies to have these competent Graphic Designers, some with a Bachelor’s Degree in Graphic Design or its equivalent is a must.  Our office has helped several foreign graphic designers’ H-1B petitions, so we clearly explained to the USCIS with numerous supporting documents that the proffered position is a specialty occupation.

The foreign beneficiary in this case already had his H-1B visa from his previous employer in a similar industry.  However, his H-1B visa was not expired yet, and he wanted to extend his H-1B status based on a change in employer.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on March 25, 2011 via regular processing service.  Since this petition was based on a change in employer, this petition was exempted from the annual H-1B cap.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on May 10, 2011.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder and he can work there for next three years.

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CASE: Adjustment of Status
CLIENT: Filipino
LOCATION: Fresno, California

Our client retained us twice for his immigration-related matters.  Back in May, 2010, he contacted our office to get assistance for his H-1B visa petition. He was from the Philippines and was working as a general surgeon for a hospital in Pennsylvania.  Once retained, our office filed his H-1B visa petition on May 5, 2010.  There were no Requests for Evidence with the filing from the USCIS.  His H-1B case was approved on July 12, 2010.  The H-1B was good from October 1, 2010 to September 30, 2013.

Our client retained us once again after he got married to his U.S. Citizen wife.  Our firm filed the I-130 Petition and Adjustment of Status Application on November 3, 2010. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence. He moved from Pennsylvania to California so we submitted a change of address. Our firm thoroughly prepared them for their USCIS interview. On March 8, 2011, our client was interviewed at the CIS office in Fresno, California. That same day, the officer told them that he was granting the petition and the green card application. One week later, he obtained his green card.

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CASE: F-1 Reinstatement

APPLICANT: Indian

LOCATION: Los Angeles, California

Our client came from India in 2009 to pursue his Master’s in Computer Science degree in California. Unfortunately, extreme and exceptional hardships related to his family caused him to drop a course in his third semester which caused him to fail to maintain his F-1 visa status.

There are many reasons why some F-1 students fall out of status. In limited circumstances, they could still apply for F-1 reinstatement if they meet the requirements. It starts by talking to the school’s international student immigration representative. Upon providing all the necessary documentation, your immigration advisor should issue you a new I-20 with a reinstatement endorsement.  Each school has its own guidelines on what you need to show. Typically you should explain the exceptional circumstances which led you to not maintain full-time courseload.

For the USCIS to grant reinstatement, the standards are as follows:

• The student became out of status due to circumstances beyond the student’s control, or the student would suffer extreme hardship if not reinstated
• The student intends to pursue full-time study
•  No other grounds of removability (criminal cases, for example) apply to the student other than the overstay or status violation
•  The student has not worked illegally off-campus
•  The period being out of status is not more than five months, or there were exceptional circumstances for being out of status longer and the application was filed as soon as possible
•  The student does not have a record of repeated immigration violations

In early September of 2010, our client contacted our office to do his F-1 reinstatement application. Our office promptly prepared his application with various supporting documents to demonstrate that he became out of status due to circumstances beyond his control and that he would suffer extreme hardship if not reinstated.  Moreover, our office explained that our client never had any status violations prior to this incident and never engaged in unauthorized employment.

On January 12, 2011, our office was notified by the USCIS that our client’s F-1 reinstatement is granted.  Now, our client has a chance to finish his Master’s Degree.

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CASE: H-1B Visa Petition – Response to Request for Evidence

PETITIONER: Advertising Media Company

BENEFICIARY: Albanian

LOCATION: California

ISSUE: Specialty Occupation

Our client is an advertising media company in California. The beneficiary is from Albania, obtained both a Bachelors and Masters degree in the United States and worked for her employer under the OPT program.  The Petitioner-Employer filed an H-1B application on behalf of our client on June 21, 2010 by themselves.  However, USCIS mailed a 5-page Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualifies as a “Specialty Occupation.”

The USCIS was skeptical and argued that the proffered “Graphic Designer” position does not qualify as a “Specialty Occupation” under the federal immigration law.  Indeed, the law clearly states that an H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The main issue for the client’s H-1B application was whether the “graphic designer” position requires a bachelor’s degree in graphic design or an equivalent degree which makes this position a “specialty occupation.”  Once Petitioner-Employer received the Request for Evidence (RFE) the from USCIS, our client retained us to prepare for the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on the advertising media industry to demonstrate that a bachelor’s degree is commonly required for graphic designer positions industry-wide.

Attorney Sung Hee (Glen) Yu prepared a detailed cover letter to the USCIS with 15 exhibits (supporting documents) as a response to the RFE.  The exhibits included information regarding the Petitioner-Employer, a detailed letter from Petitioner-Employer regarding the position and past employment practices, advertisements for “graphic designers” proving that a Bachelor’s degree in graphic design or the like is required, etc.

Our office filed the response to RFE with the USCIS California Service Center on November 2, 2010.  Our client’s H-1B application was approved on December 6, 2010.  Now our client can work for her employer as an H-1B visa holder and she can work there for next three years.

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