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

NATIONALITY: Chinese

LOCATION: Pittsburgh, PA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in March 2007.  He came with his 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, 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 2011. 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. In fact, our client turned 21 in March 2011.

Our firm was retained to do his J-2 waiver, and on March 25, 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 27, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On May 21, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client has been on H-1B status for many years and has worked in the United States. In late 2014, she decided to study further in the United States and got admitted. She filed her I-539 Change of Status application to change status from H-1B to F-1 to USCIS.

However, she received a Request for Evidence for her application and the RFE letter was very extensive and involved multiple issues. In order to receive legal assistance from us, she contacted our office in early April of this year for the response to RFE. Eventually, she retained our office on April 7, 2015.

Once retained, we helped our client obtain supporting documents for the Change of Status and prepared the response brief for the RFE. We fully explained her financial ability to pursue her studies in the U.S., her ties to her home country, and maintenance of status.

The start date of her program on the I-20 was AFTER her last day at work on H-1B, but it was within 30 days of it. Plus, she filed the change of status before her last day at H-1B.

On April 21, 2015, we filed the Response to RFE for her I-539 Change of Status with an extensive response brief and numerous supporting documents.

On May, 1, 2015, 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: Adjustment of Status Based on Approved K-1 Visa
CLIENT: Chinese
LOCATION: Columbus, OH

Our client came to the United States in March 2014 as a K-1 visa entrant from China.  Our client is a beneficiary of an approved I-129F petition and came to the United States as a K-1 Fiancée of a U.S. Citizen whom she married within 90 days of entry.  By law, if you married your petitioner-fiancé within 90 days of your K-1 visa entry, you are eligible for adjustment of status.   

Our client contacted our office initially in the middle of May 2014 and consulted with us for her adjustment of status application.  Eventually, she retained our office, and our firm quickly prepared and filed the I-485 Adjustment of Status Application on June 6, 2014 a few days before her K-1 authorized stay period expired.  Things went smoothly and the receipt notices, and the fingerprint appointment all came on time.  Her Work Authorization Card was issued as well.

It is not mandatory for having an adjustment interview for an adjustment applicant based on K-1 visa entry.  However, the USCIS may require an interview to test the validity and bona fide nature of marriage between the Petitioner and Beneficiary.  Fortunately, the USCIS did not ask for an adjustment interview for our client.  On December 4, 2015, 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: 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: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Cleveland, OH

Our client contacted us in December 2014 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from China and obtained his green card in March 2012 through marriage to his U.S. Citizen wife. He retained our office on January 2, 2015.

The N-400 application was filed on January 12, 2015 with all supporting documents. Prior to his citizenship interview, our office prepared him in our office. On March 27, 2015, our client appeared at the Cleveland, OH USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved on April 3, 2015. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Ohio

Our client contacted us in October 2014 to seek legal representation for her naturalization and citizenship N-400 application. She came to the United States from China and obtained her green card in September 2009. She retained our office for her naturalization application on October 20, 2014.

The N-400 application was filed on October 20, 2014 with all supporting documents. Our office prepared her before her naturalization interview via conference calls.

On January 12, 2015, our client appeared for her interview at the Cleveland CIS office.  Our client answered all questions correctly and passed. Eventually, her naturalization application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: I-140 (EB-3)

EMPLOYER: Consulting Company

BENEFICIARY: Chinese Financial Analyst

LOCATION: New York, NY

Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.

After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 classification.

Prior to filing PERM labor certification, 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 Labor Certification 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.  On June 13, 2014, we filed the PERM labor certification application.  Eventually, on October 31, 2014, exactly four months from filing, the PERM labor certification was approved.

Once the PERM was certified, we then proceeded with the I-140 petition filing.

Our office submitted the “ability to pay” letter for the I-140 petition application on November 26, 2014 via regular processing. We included the job offer letter, employer’s tax records, and other necessary supporting documents. Later on, we upgraded our client’s I-140 petition filing to “premium processing” by filing an I-907 form. However, on December 31, 2014, the USCIS Texas Service Center issued a Request for Evidence (RFE) for our client’s I-140 petition. According to the RFE, the USCIS requested the Petitioner to prove “ability to pay” for beneficiary’s proposed salary.

In response to that, our office showed the beneficiary’s previous and current pay stubs show that he is “currently being paid” above the proffered wage for his proposed position. According to the William R. Yates May 4, 2004 CIS Memorandum on the “Determination of Ability to Pay under 8 C.F.R.  204.5(g)(2): CIS adjudicators should make a positive ability to pay determination in any of the following circumstances:… (3)  Employment of the beneficiary…”, It should be shown that “the record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid OR is currently paying at least the proffered wage…”

Our client’s recent W2 salary is NOT above the proffered wage, but a calculation of his CURRENT salary if multiplied to a yearly amount DOES. Hence we emphasized the “or is currently paying” clause from the memo. Our office filed the Response to RFE with a brief and supporting evidence to overcome the CIS’ arguments on February 6, 2015.

Eventually, the USCIS approved the I-140 petition on February 12, 2015. Now, with the approved EB-3 I-140 petition, our client can file his adjustment of status application when his priority becomes current.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Cleveland, OH

Our client came to the United States in May 2014 with a B-2 visitors visa from China. She married a U.S. Citizen in June 2014 and retained our office for her petition and adjustment of status application.

She also asked us to file her 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 October 1, 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 in our office. On January 16, 2015, our clients were interviewed at the Cleveland USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied them at their interview as well. On January 30, 2015, our client and her son’s green card applications were approved.

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CASE: PERM Labor Certification

EMPLOYER: Consulting Company

BENEFICIARY: Chinese Financial Analyst

LOCATION: New York, NY

Our client is a financial analyst from China, who is currently working at a consulting company in New York City. The company was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Economics.

After talking to our client, our firm concluded that his potential employer can petition him as a Financial Analyst. Based on our client’s educational, professional and working background as a financial analyst, our office determined that he is clearly eligible for EB-3 classification.

Prior to filing PERM labor certification, 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 Labor Certification 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.  On June 13, 2014, we filed the PERM labor certification application.  Eventually, on October 31, 2014, exactly four months from filing, the PERM labor certification was approved – an EB3 position for the Chinese Financial Analyst. Now our client can file an I-140 Petition.

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