Issue: Arriving Alien / Adjustment of Status

Nationality: Chinese

Location: Cleveland, Ohio

Our client came to the United States in 1991 without any documents (such as a passport or a visa) from China.  Once he arrived at the Los Angeles International Airport, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum relief after he was paroled in, but, his asylum relief was denied by the Immigration Judge in 1993. Thus, he had a final order of removal (exclusion).  

According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.

Despite his final order of removal, our client remained in the United States and his biological daughter became 21 years old in 2020.  Our client consulted with our firm and retained us on August 18, 2020. 

Arriving Aliens can adjust his or her status even though they were subject to removal proceedings previously.   On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review (EOIR)) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment applications of “arriving aliens” in particular. 

The January 12, 2007 USCIS memo states that USCIS can decide an adjustment application of a parolee with a final order under these interim regulations. 

• Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. 

• Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings). 

Thus, our office thoroughly prepared and filed the I-130 Petition and I-485 Adjustment of Status application in accordance with the regulations on September 22, 2020.  Everything went smoothly and the receipt notices, finger print notices, and work authorization all came on time.  Prior to the interview, our office thoroughly prepared our client for their upcoming USCIS adjustment of status interview.

On May 25, 2021, Attorney Yu accompanied our client and his daughter in Cleveland USCIS office.  Though the interview went well, the USCIS issued the Request for Evidence and requested our client to submit a certified copy of our client’s marriage certificate. We submitted it on December 3, 2021. Eventually, the USCIS approved our client’s I-485 adjustment of status application on February 3, 2022. Despite being a parolee and “arriving alien” in the United States for the last 20 years, he finally is a permanent resident of the United States.  

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Chinese                                                                                           

LOCATION: Somerville, MA 

Our client is from China who came to the U.S. on an O-1A visa to work as a researcher. In February 2021, our client married her U.S. citizen husband.  She retained our office on February 12, 2021 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on March 24, 2021.  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 via conference calls. On January 5, 2022, our client was interviewed at the Boston, MA USCIS office. On the same day of her interview, her green card application was approved.

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CASE: I-360 Petition

NATIONALITY: Chinese

LOCATION: Ohio

Our client is from China who came to the U.S. on a F-1 Visa in 2011.  She had a LPR (Green Card Holder) husband who was abusive.  

In 2019, she contacted our office to seek legal representation for her I-360 petition. With her story and other evidence, our office determined that she would be eligible for the VAWA I-360 self-petition as a spouse of an abusive LPR. 

Our client experienced domestic violence and spousal abuse during her marriage. Her husband physically and mentally abused her throughout the years. We prepared and filed her I-360 petition, which included several exhibits and a detailed brief to the USCIS Vermont Service Center on November 4, 2019.  

Finally, on December 17, 2021, the USCIS Vermont Service Center approved our client’s I-360 petition. With the approved I-360, our client can file her I-485 adjustment of status application to the USCIS for her permanent residency.

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CASE: Marriage-Based Adjustment of Status

NATIONALITY: Chinese                                                                                                

LOCATION: Marysville, OH 

Our client is from China who came to the U.S. on a B-2 visitor’s visa in May 2015. Since then, she has remained in the United States. In November 2020, our client married her U.S. citizen husband.  She retained our office on November 13, 2020 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 11, 2020.  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. On November 8, 2021, our client was interviewed at the Columbus, OH USCIS office. Attorney Sung Hee (Glen) Yu accompanied our clients as well. On November 22, 2021, her green card application was approved.

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CASE: Cancellation of Removal for Permanent Residents

CLIENT: Chinese (Green card holder)

LOCATION: Cleveland Immigration Court in Ohio

Our client came to the United States in 1991. He was granted asylum he got his green card in February 1993.  He has been in the US ever since. He has a US Citizen wife, three U.S. Citizen children, and most of his immediate family members are either U.S. Citizens or green card holders. 

Unfortunately he was convicted of felonious assault in 2000. In 2013, he went on an international trip and was stopped by the CBP officer at the port of entry upon his return to the U.S. Because of this conviction, he was inadmissible and was placed in removal proceedings.  In October 2013, our client contacted our office for legal representation. We were retained on October 15, 2013. 

Once retained, we represented our client before Cleveland Immigration Court for his initial master calendar hearing on March 5, 2014. Attorney Sung Hee (Glen) Yu represented him at the hearing and sought cancellation of removal relief for permanent residents.

Under INA Section 240A(a), for a permanent resident to be eligible for Cancellation of Removal, the alien must prove that s/he:

• Has been an LPR (green card holder) for at least five years;
• Has resided in the United States continuously for seven years after having been admitted in any status;
• Has not been convicted of an aggravated felony; and
• Merits a favorable exercise of discretion.

The criteria for favorable exercise of discretion was explained in Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The BIA in C-V-T stated that the factors that the immigration judge must consider when deciding whether to grant cancellation of removal to a lawful permanent resident are as follows:

The positive factors are:

• Family ties in the United States, particularly ties to lawful permanent residents or U.S. citizens;
• Residence of long duration in the U.S. (particularly when the inception of residence occurred at a young age);
• Evidence of hardship to the Respondent and his family if deportation occurs;
• Service in the U.S. armed forces;
• A history of employment;
• Existence of property or business ties;
• Evidence of value and service to the community;
• Proof of genuine rehabilitation if a criminal record exists;
• Other evidence attesting to a Respondent’s good character.

Adverse factors include:

• Nature and underlying circumstances of the grounds of removal;
• The presence of additional significant violations of the Immigration Laws;
• The nature, recency, and seriousness of criminal records; and
• The presence of other evidence has been indicative of a respondent’s bad character or undesirability as a permanent resident of the U.S.

Generally, the immigration judge must weigh the positive factors against the negative factors in exercising her discretion.

After the Master Calendar Hearing, the Court scheduled the individual hearing. However, the case was re-scheduled multiple times and was finally scheduled on October 14, 2021. 

Our firm worked with our client and his friends and family members for the application and supplemental documents. We contacted his family members in other states for supporting documents and letters of support for our client’s case. Some even flew from out of state for the Individual Hearing. 

In preparing our client for the Individual Hearing, Attorney Yu and Ms. Arty Wyneski (our senior paralegal) talked to our client in our office for several hours each time. Obviously the central issue in this case would be whether or not our client’s positive factors outweigh the negative factors. Our firm eventually was able to gather supporting documents and prepared supplemental evidence with multiple exhibits, and arranged them pursuant to the specific elements of Cancellation of Removal eligibility.

At the Individual Hearing on October 14, 2021, Attorney Yu represented our client at the Cleveland Immigration Court in Ohio. Testimony then followed and we questioned our client extensively on the positive factors of his case. Attorney Yu questioned him regarding his length of residence in the U.S., employment history, family issues and hardships to him and his family members (especially his US citizen wife) if he was to be deported to China. Our client was prepared, was very consistent, and was honest in his answers. 

In the end, the Cleveland Immigration Court granted our client’s cancellation of removal relief. It was a tough call and our firm was very happy for our client. He has been here since 1991 but had one bump along the way.  He has reformed and will continue supporting his family.

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CASE: Asylum in Immigration Court

CLIENT: Chinese

LOCATION: Cleveland Immigration Court

Our Chinese client came to the United States on a F-1 visa in July 2011.  She was persecuted and harmed in China based on her religious belief (Christianity), so within one year of her entry, she filed an asylum application (Asylum, Withholding of Removal, and relief under the CAT) to the USCIS with our office’s legal assistance.  She was interviewed at the Asylum Office in Cleveland, OH in April 2013, but her case was referred to an immigration judge. The Notice to Appear was issued and our client was placed in removal proceedings.  

After the case was referred to the Immigration Court, our client retained our office again.

Our client was scared to go back home to China, fearing that she will be persecuted based on her religious belief.  She also had past persecution in China due to her religious activities. We helped her prepare her asylum application and represented her in immigration court hearings. We also asked her to provide more supporting documents corroborating her claim, some of which were a letter from her mother, and colleagues and friends in China. Our firm also did some research on articles related to her claim, and the type of persecution she will experience in China if sent back.

After several years of continuance and re-scheduling, our client’s individual hearing was scheduled on September 23, 2021 at the Cleveland Immigration Court. Attorney Sung Hee (Glen) Yu represented our client at the hearing. During the hearing, our client testified credibly as to her past persecution in China and likelihood of future persecution. After the hearing, the Immigration Judge granted asylum relief for our client. She is now an asylee who will get her work permit soon and will be eligible to apply for permanent residency in one year.

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

NATIONALITY: Chinese

LOCATION: La Jolla, CA

Our client is a citizen of China who came to the U.S. on a J-2 Visa in February 2013.  She came with her father who was on a J-1 Visa. 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.

She turned 21 in December 2020.  By getting a waiver, she would have the ability to be petitioned for H-1B status by her prospective employer. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without fulfilling the requirement or obtaining 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.  

Our firm was retained to do her J-2 waiver and on March 4, 2021, 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 August 31, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On September 2, 2021, the USCIS issued an I-612 approval notice..

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Chinese

LOCATION: Sunnyvale, CA

Our client contacted us in August 2020 to seek legal representation for her naturalization and application. He came to the United States from China and obtained her green card in December 2014.

Upon retention, her N-400 application was filed on September 18, 2020. Prior to her citizenship interview, our office prepared her via conference calls.  On June 15, 2021, our client appeared at the Santa Clara California USCIS office for her naturalization interview. Our client answered all questions correctly and passed her interview. Eventually, on September 8, 2021, her application was approved. Her oath taking is scheduled in which she will become a naturalized U.S. Citizen.

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CASE: N-400 Citizenship / Naturalization
APPLICANT: Chinese
LOCATION: Cleveland, OH

Our client contacted us in October 2020. He came to the United States from China and became a permanent resident in January 2011. He retained our office for his naturalization application. The main issue of his naturalization case was the one long, over six-month trips he had within the past five years. 

According to INA §316(b) and 8 C.F.R. §316.5.(c)(1)(i), an absence between 6 months and 1 year from the United States raises a rebuttable presumption that continuity of residency has been interrupted. That would be an issue in naturalization cases, where continuity of residence is essential. Applicants with this issue should rebut that presumption. 

Our client was out of the United States for almost a year from September 2019 until September 2020. Our client was in Wuhan, China and wanted to stay there for less than 6 months, but he had to stay there more than 6 months due to the Travel Ban /Lockdown due to the COVID-19 pandemic. Our client wanted to rebut the presumption by arguing that his last trip was more than 6 months due to the COVID lockdown and he did intend to maintain his continuity of residency in the U.S. 

The brief and his N-400 application were filed on October 20, 2020 with all necessary supporting documents. Our office prepared him for his interview via conference calls. Our client appeared at the USCIS Cleveland Field Office for his N-400 interview on April 30, 2021. Attorney Sung Hee (Glen) Yu from our office also accompanied our client.  He answered all questions correctly and passed his citizenship interview. Eventually, his N-400 was approved on August 4, 2021. His oath taking is scheduled soon where he will become a U.S. Citizen.

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

NATIONALITY: Chinese

LOCATION: Tucson, AZ

Our client is a citizen of China who came to the U.S. on a J-2 Visa in March 2017.  She came with her mother who was on a J-1 Visa for her research 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.

She turned 21 in August 2020.  By getting a waiver, she would have the ability to be petitioned for H-1B status by her prospective employer. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States fulfilling the requirement or 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 August 2020.  

Our firm was retained to do her J-2 waiver, and on March 2, 2021, 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 June 24, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 2021, the USCIS issued an I-612 approval notice for our client’s waiver request.

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