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

NATIONALITY: Chinese

LOCATION: Cincinnati, OH

Our client is a citizen of China who came to the U.S. on a J-2 Visa in 2009.  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.

He turned 21 in 2011. He would like to get a waiver because he has a prospective employer who will file an H-1B petition for him next year. However, because of his 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. In fact, our client turned 21 in November 2011.

Our firm was retained to do his J-2 waiver, and on April 12, 2018, 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 May 4, 2018, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On May 29, 2018, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

NATIONALITY: Chinese

LOCATION: New York, NY

Our client is a citizen of China who came to the U.S. on a J-2 Visa in January 1998.  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.

After our client came to the United States, she was attending a school and changed her status to F-1.

She turned 21 in August 2012. She has a U.S. citizen fiancé who will file I-130 petition for her after they get married.  However, because of her two-year foreign residency requirement, our client cannot adjust her 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. In fact, our client turned 21 in August 2012.

Our firm was retained to do her J-2 waiver, and on December 19, 2017, 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 February 5, 2018, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On April 4, 2018, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: PERM Labor Certification    
EMPLOYER:  E-Commerce Merchandiser Employer

BENEFICIARY: Korean Operations Research Analyst

Our client is from South Korea and his prospective employer was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Business Administration. After talking to our client, our firm concluded that his employer can petition him as an Operations Research Analyst. Based on our client’s education and work background, our office determined that he is clearly eligible for EB-2 classification.

Prior to filing PERM, 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 PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On May 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on August 8, 2017. On October 11, 2017, we promptly filed PERM. Eventually, on March 19, 2018, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification

EMPLOYER: Church

BENEFICIARY: Korean Education Pastor

LOCATION: Tampa, FL

Our client’s current employer was willing to petition him for a second-preference petition (I-140).  Our client has a master’s degree in divinity in the United States and currently works for a church on an R-1 visa. Based on our client’s education and work background, our office determined that he is eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us on January 3, 2017.

Prior to filing PERM, 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 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.  After we obtained the PW determination, our office filed the job order on April 5, 2017. On June 26, 2017, we promptly filed PERM.

However, on October 2, 2017, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on October 17, 2017.  

Eventually, on March 7, 2018, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary. Since his priority date is current, our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: I-140 (EB-3 Category) / Schedule A / Request to retain earlier priority date

EMPLOYER: Physicians’ Office

BENEFICIARY: Chinese Nurse Practitioner

LOCATION: Pennsylvania

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a certified nurse practitioner, she was eligible for “Schedule A” classification. With our office’s help, on July 25, 2017, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

However, since she is a Chinese national her priority date is later than the other Chinese nationals who have third-preference I-140 petition approval. Thus, our client would like to downgrade her approved EB-2 petition to the third preference so that she can file the adjustment of status application earlier. After the consolation with our office, she and her prospective employer decide to file the third I-140 petition while retain her old priority date.  

According to 8 C.F.R. § 204.5(e):

A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

Our client retained our office again on October 5, 2017. On October 13, 2017, our office filed the I-140 EB-3 petition for our client.  In the cover brief, we citied aforementioned statutory language, and explained that our client is eligible for retaining old priority date for this subsequent I-140 petition, requesting the Eb3 classification based on the same labor certification which was also filed by the same petitioner.  

However, on December 15, 2017, the USCIS issued the Request for Evidence (RFE) and requested the Petitioner’s most recent tax return document to determine its ability to pay. On January 26, 2018, our office filed the Response to Request for Evidence along with the Petitioner’s most recent tax return. Eventually, on February 12, 2018, the USCIS approved our client’s I-140 EB-3 petition with old priority date.

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

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came from China on an F-1 student visa. She has a same-sex U.S. Citizen spouse and they married in August 2017 in California.

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.

Our client contacted our office and retained us on September 15, 2017 for her 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 October 30, 2017. 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 at our office. On February 13, 2018, our clients appeared at USCIS Cleveland Field Office for the interview. Attorney Sung Hee (Glen) Yu accompanied our clients as well. The interview went well and our client’s green card application was approved on February 14, 2018.

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CASE:   I-601A Provisional Unlawful Presence Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Chinese

LOCATION: Cleveland, Ohio

Our client came to the United States from China in October 1999 without inspection and admission. He married his U.S. citizen wife in 2010. They have two U.S. citizen children together.  His U.S. Citizen wife filed an I-130 petition for him on August 26, 2016. This I-130 petition was approved on December 8, 2016.

Our client cannot file for adjustment of status application due to his ground of inadmissibility. He needed a waiver of inadmissibility to become a green card holder. Moreover, our client was placed in removal proceedings and he has a final order of removal in absentia. Nevertheless, his I-212 (permission to reapply for admission into the United States) was approved on July 21, 2017.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States.

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffer from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  His wife has ongoing medical hardships and she would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their children. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in China in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in China, that our client has good employment in the United States, and that his U.S. citizen child and his wife will face extreme financial and emotional difficulties if he is removed.

On August 21, 2017, we filed the I-601A waiver application which included the brief in support, his wife’s extensive medical examination records, and other documents that demonstrated hardship to her husband if she is removed from the United States. Eventually, without any RFE, her I-601A waiver was approved on December 19, 2017. Now, he can file packet 3 and 4 here in the United States, and would go to China shortly to get his immigrant visa.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Chinese
LOCATION: China

Our client is a citizen of China who came to the U.S. on a J-2 Visa in April 2016.  She came with her husband who held a J-1 Visa as an exchange visitor.  Both were subject to the two-year foreign residency requirement.

Unfortunately, while they are residing in the United States, her marriage did not work out well. Eventually, she got divorced from her ex-husband in July 2017 in China. Our client has a U.S. citizen fiancé who would like to file I-129F fiancé visa for her, but could not be approved unless she fulfills two year foreign residency requirement or obtains a waiver.

Our client contacted our office and retained our firm to do her J-2 waiver on July 31, 2017. On August 2, 2017, the J-2 Waiver (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.  Eventually, on August 21, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued I-612 waiver approval notice on January 4, 2018.

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

NATIONALITY: Chinese

LOCATION: Mountain View, CA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in September 1996.  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’s father’s J-1 program was completed, his family moved to Canada.

He turned 21 in 2015. He would like to get a waiver because he has a prospective employer who will file the H-1b petition for me next year. However, because of his 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. In fact, our client turned 21 in June 2015.

Our firm was retained to do his J-2 waiver, and on October 20, 2017, 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 November 10, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On December 10, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Chinese                                                                                                        

LOCATION: Cleveland, Ohio

Our client is from China who came to the U.S. on a B-2 visitor’s visa in March 2017. In July 2017, our client married her current U.S. citizen husband.  After their marriage, she retained our office for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 14, 2017.  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 at our office as well. On November 29, 2017, our client was interviewed at the Cleveland Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients. Eventually, on the same day of her interview, her green card application was approved.

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