CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement

NATIONALITY: Korean

LOCATION: Los Angeles, CA

Our client is from South Korea who came to the U.S. on a J-1 Visa in December 2013.  He came to the U.S as an intern, and his J-1 program subjected him to the two-year foreign residence requirement.  Later, in July 2014, he married his current U.S. citizen wife. His wife was willing to file an I-130 petition for our client’s permanent residency; however, our client has to get a waiver for his two-year foreign residency requirement before the filing the I-130/I-485 applications.

They retained our office on September 22, 2015.

Once retained, our office prepared a waiver request through a No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Los Angeles to pursue the waiver for our client.  The Consulate office requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

His previous immigration counsel already filed the DS-3035 application to U.S. Department of States, but wasn’t able to get a no objection statement. So after retention, on September 25, 2015, our office filed a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on his marriage to his U.S. citizen wife.

The Korean Consulate General in Los Angeles promptly forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 28, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on December 2, 2015, the USCIS issued an I-612 approval notice and waived our client’s 2 year foreign residency requirement. Now our client can file an adjustment of status application along with his wife’s I-130 petition.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Taiwanese

LOCATION: San Jose, California

Our client is a Taiwanese Citizen who came to the U.S. on a J-2 Visa in 2010. She came with her husband who held a J-1 Visa as a Ph.D. student. Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and she eventually got divorced from her ex-husband. She was still subject to the two-year foreign residency requirement, and she would like to change her status in the United States. Until she gets a waiver of the 2-year foreign residency requirement, she cannot change her status in the United States.

She contacted our office, and our firm was retained to do her J-2 waiver on August 28, 2015.

On September 1, 2015 the J-2 Waiver Application along with Form DS-3035 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 was divorced from the J-1 visa holder.

On October 9, 2015, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On November 4, 2015, the USCIS issued the I-612 waiver approval.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay expired, she remained in the United States.

In March 2014, 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 August 29, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippines Consulate General in San Francisco for further authentication.  On November 4, 2014, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  The Waiver Review Committee then forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement.

On March 9, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on April 6, 2015, the USCIS issued an I-612 approval notice.

After her J-1 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 19, 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 through conference calls. On October 7, 2015, our client was interviewed at the Santa Clara, California USCIS office.  The interview went well, and eventually, on the same day of the interview, 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: Chinese

LOCATION: California

Our client was a citizen of China who came to the U.S. on a J-2 Visa in October 2007.  He came with his 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, he completed his high school and was admitted to a University to pursue his bachelor’s degree. He went back to China and got his F-1 student visa at the U.S. Embassy in China and came back to the United States with his F-1 student visa.

He turned 21 in 2010. This year, his employer filed an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the 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. Our client turned 21 in July 2010.

Our firm was retained to do his J-2 waiver, and on March 12, 2015, 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 April 11, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On May 22, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period expired, she remained in the United States.

In December 2012, 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 December 9, 2015, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippines Government) were sent to the Philippines Consulate General in San Francisco for further authentication.  On February 16, 2015, 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 April 16, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on May 19, 2015, 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: I-140 / National Interest Waiver

CLIENT: Korean

LOCATION: California

Our client contacted us in August 2014 about the possibility of doing a National Interest Waiver. He is a software development engineer in the field of network distribution system research, and is currently working as a software development engineer in a company in Silicon Valley.

His significant contributions have placed him at the pinnacle of the field of computer science and network and distributed system. He is a leading researcher and engineer in the field; specifically, energy management of mobile devices, network performance and management in wireless networks.  Our client’s research on network and distributed systems has led to important innovations in his field of endeavor. His research solutions have successfully deployed, and provide Hotspot services enabling reliable internet connectivity to several cities over multiple countries. He is highly regarded by his peers, and is routinely sought after by other scientists for collaborations and technical reviews.

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 21-page brief for our client’s NIW filing. Our client also obtained 8 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 32 exhibits (Exhibit A to FF).

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on December 10, 2014. On April 28, 2015, the USCIS approved his I-140 petition without any Requests for Evidence.  Now, with the approved NIW I-140 petition, he can file his adjustment of status application at any time. 

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

NATIONALITY: Chinese

LOCATION: San Francisco, California

Our client was a citizen of Canada who came to the U.S. on a J-2 Visa in January 1992 when she was a Chinese Citizen.  She came with her mother who came on a J-1 Visa for her 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.

Once her mother’s program was completed, her family immigrated to Canada. In 1999, our client came back to the U.S. on a TD visa (dependent of TN visa holder) with her parents. She finished her high school and went back to Canada for her undergraduate degree. In 2009, she came back to the U.S. on an F-1 student visa to pursue her degree. Later, she married her current husband and she filed her adjustment of status application as a derivative applicant of her husband’s application.

She turned 21 in 2005. However, because of her two-year foreign residency requirement, the USCIS requested her to show whether she has complied with the 2 year foreign residency rule. She was not aware of this requirement since she was so young when she came to the United States in 1992.

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 December 2005.

In order to obtain aJ-2 waiver before her RFE deadline, she contacted our office. Our firm was retained to do her J-2 waiver on March 2, 2015. On March 4, 2015, 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 April 9, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On May 4, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-130 (Petitions for Mother) and Adjustment of Status

CLIENT: Filipina

LOCATION: Irvine, CA

Our client retained us to petition his mother for a green card. Our client was born and raised in the Philippines, but was naturalized in the United States in 2014 through our firm’s legal assistance. He contacted our office in late April of 2014 and discussed with us the green card process for his mother. After consultation, he retained our office again on May 1, 2014.

Once retained, our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 23, 2014. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Eventually, on April 20, 2015, our client’s mother’s adjustment of status application was approved. Now, she is a green card holder

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Case: I-130/I-485

Applicant/Beneficiary – Korean

Location: San Francisco, CA

Our client entered the United States in September 2014 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) for a couple of months. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.

Later, in November 2014, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on November 20, 2014.

One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability; it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on December 10, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On April 8, 2015, our client was interviewed at the San Francisco, California USCIS Field Office.  Despite the visa waiver issue, on the same day, the USCIS approved her green card application.  Now, our client is a green card holder.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: California

Our client came from the Philippines on a J-1 in September 2007 to work as a trainee. According to her DS-2019, she was subject to the two-year foreign residency requirement. After her authorized stay period was expired, she has remained in the United States.

In March 2014, 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 August 29, 2014, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the California State Government to get authentication for the necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate General in San Francisco for further authentication.  On November 4, 2014, 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, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on April 6, 2015, 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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