Case: Motion to Reopen / Terminate with the BIA
Nationality: Chinese
Location: Cleveland, OH

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  After he arrived at the port of entry, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002.  He appealed with the BIA and that too was denied. Thus, he had a final order of removal.

Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. Citizen spouse.  As we stated in a previous success story, this client ultimately obtained his permanent residency through adjustment of status with the USCIS as an arriving alien.

After he obtained his permanent residency, he retained our office again to terminate his final order of removal.  Since he had a final order of removal, our office filed a Motion to Terminate Proceedings to the Board of Immigration Appeals (BIA) on August 26, 2011.  Although the DHS opposed our motion, the BIA granted our Motion to Terminate on September 30, 2011. Our client now does not have a final order of removal on his records.

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CASE: I-140 / National Interest Waiver
CLIENT: Korean
LOCATION: Cleveland, OH

Our client contacted us in March 2011 about the possibility of doing a National Interest Waiver. He is a researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, and is currently working as a visiting professor in an academic institution in Cleveland, Ohio.  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 one would not need an employer nor family member to petition for them for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which 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 15-page brief for our client’s NIW filing. We asked our client to obtain 10 or more letters of recommendation.  Our office also included his publication records, patents, 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 67 exhibits (Exhibit A to OOO).

Our office filed his I-140(NIW) petition to the USCIS Texas Service Center on May 2, 2011.  On August 19, 2011, the USCIS approved his I-140 petition without any Requests for Evidence.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Brazilian
LOCATION: Cleveland, OH

Our client came to the United States in November 2010 with a B-2 tourist visa from Brazil. She married a U.S. Citizen in March 2011 and retained our office around the same time for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on May 18, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On August 4, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On May 10, 2011, her green card application was approved.

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CASE: Termination of Removal Proceedings / Adjustment of Status
ISSUES: 245i; Deceased Petitioner
CLIENT: Filipino
LOCATION: Cleveland, Ohio

This case involves a situation where the beneficiaries had to wait over ten years for priority dates to be current, only to have the petitioner die prior to that happening. Our client, his wife and son, are from the Philippines and came to the U.S. on B-2 visitor’s visas back in 2002. They overstayed their tourist status and have been out of status ever since.

Prior to retaining our firm, our client’s mother filed an I-130 petition for him back in 1992.  As some of you may know, the 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 1992.  However, our client could not apply for his green card until his priority date became current. He had to wait for almost 20 years in order to even apply for his green card.

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

Once he contacted our office, we explained that an October 2009 law can help his entire family obtain a green card. We can terminate removal proceedings and apply for adjustment of status application with a substitute sponsor – his U.S. Citizen sister. We also informed him that Section 245i would make him eligible to adjust despite his overstay.

Our office was retained in August 2010, and we later filed his I-485 Adjustment of Status application with a substitute sponsor (his US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security before his immigration hearing. We explained this to the Judge and government attorney at the Cleveland Immigration Court.

As we explained in a previous Success Story, the regulation in 2009, Public Law 111-83 (2009), eased the high 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 there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On September 27, 2010, our office filed a request to join in a Motion to Terminate Proceedings with the family’s I-485 applications and supporting documents.  Thereafter, with the government’s agreement, the Immigration Judge terminated our client’s removal proceedings on September 28, 2010.  With the Judge’s Order, our office filed our client’s I-485 Adjustment of Status applications with the USCIS on October 7, 2010.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time.

On January 3, 2011, our clients had their I-485 interview at the USCIS Cleveland Office.  Our lawyer accompanied our client and his family members for the interview. The Interview went smoothly, but our client could not get his green card right away due to a slight retrogression of priority dates.  Fortunately, in July 2011, his priority date became current, and the USCIS immediately approved his entire family’s Adjustment of Status application. After a 19 year wait from the time our client’s mother filed an I-130 petition, to a 9 year wait from the time his family entered the United States, finally, our client’s family all have their green cards.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Kenyan
LOCATION: Cleveland, OH

Our client came to the United States in 2009 with an F-1 student visa from Kenya.  However, she later became out of status did not reinstate her F-1 status. She married a U.S. Citizen in August 2010 and retained our office in January of 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on January 24, 2010.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On April 29, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On May 5, 2011, our client obtained her green card.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Chinese
Location: Cleveland, Ohio

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  Once he arrived at the Miami International Airport, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002. Thus, he had a final order of removal.

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 for the next nine years and eventually married his U.S. citizen spouse. Our client and his wife consulted with our firm to see if there’s anything that could be done for them knowing that they already have a final order. We reviewed their file, learned that he was an arriving alien despite the final order, and thus advised them that we can apply for adjustment of status. They retained us in November, 2010.

An arriving alien can adjust his or her status even though he or she has a final order. 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 of status applications of “arriving aliens” in particular.

The January 12, 2007 USCIS memo states that the USCIS can adjudicate an adjustment of stauts 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 wit
h 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 Adjustment of Status application in accordance with the regulations.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.  There was no request for additional evidences.

Prior to the interview, Attorney Sung Hee (Glen) Yu with the help of Arty Wynieski from our office thoroughly prepared our client for their USCIS adjustment of status interview. The preparation lasted for several hours because of  the “arriving alien” issue and other possible concerns with regard to our client’s case.

On the interview day, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office.  The interview went well, and our client eventually got his green card on March 28, 2010.  Despite having a final order since 2002, our client finally became a permanent resident of the United States.

For more success stories in the deportation and marriage areas of immigration, feel free to browse our website and for further questions, please do not hesitate to contact our office for a free consultation.

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CASE: Change of Status from J-1 to B-2 Visitor
NATIONALITY: Filipino (Philippines)
LOCATION: Ohio

Our client is a Filipino national who came to the U.S. on a J-1 Visa. She consulted with our firm a few weeks before the expiration of her J-1 status. She wanted to continue to stay in the United States for a few more months to visit her relatives and see what her options were. We explained to her that CIS has been more stringent on Visitor status applications. We also explained that a Change of Status from a J-1 is even harder than an Visitor extension application. Upon retention, we asked her to prepare a statement on her plans after the expiration of her J-1 program. We asked her to provide as much detail as possible as we reviewed her drafts several times. We made sure all addresses, contact information, and dates on her statements were complete and accurate. We made sure all her plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence by the CIS. Letters from family and friends all over the country were obtained, as well as financial and employment documents from the Philippines. We filed the Application and in a few weeks, her change of status to B-2 visitor was approved with no Requests for Evidence.

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