Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2012 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for only 90 days.

Later, in August, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained our office on August 22, 2012.

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.

Since our client resided in Cleveland, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny his application because of her visa waiver entry.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on August 27, 2012.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay expired.

Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. There was no Request for Evidence.

Prior to the interview, we thoroughly prepared our clients. On December 10, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver issue, the USCIS officer approved her green card application on the same day.  Now, our client is a green card holder.

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CASE: Marriage-Based Green Card
CLIENT: Romanian
LOCATION: Cleveland, Ohio

Our client came to the United States in March 2012 with a B-2 visitor’s visa from Romania. She married a U.S. Citizen in July 2012.  Our client retained our office on August 16, 2012 for her petition and adjustment of status application.

Our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 17, 2012 before her B-2 authorized stay expired. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients at our office. On December 6, 2012, our clients were interviewed at the Cleveland Ohio USCIS office. Attorney Sung Hee Yu accompanied them as well. On the same day, her green card application was approved.

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CASE: Motion to Terminate Removal Proceedings Based on Criminal Conviction Dismissal

CLIENT: Croatian

LOCATION: Cleveland, OH

Our client is a Croatian citizen and who has been a green card holder in the United States for more than 10 years. His parents and sister are all US Citizens.

However, he was placed in removal proceedings in July 2012 due to his previous criminal convictions, specifically drug-related offenses. He had two possession of drug paraphernalia convictions, a conviction for drug abuse due to heroin, and a marijuana conviction. He was thus removable due at least one controlled substance violation.

He was picked up by ICE officers and was detained.  Our client’s family member contacted us in early August to seek legal assistance and representation at his removal proceedings.  Our office was retained on August 3, 2012.

Based on his removable charges, there was no available relief for our client except relief under the Convention Against Torture (CAT). Respondent wished to apply for CAT.

We then asked our client whether he was advised before he pled guilty for his charges at his previous criminal hearings. Our client told us that he did not receive any advisement as required by Ohio criminal statutes.

Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the BIA held that “If a court with jurisdiction vacates a conviction based on a defect in underlying criminal proceedings, the Respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A).”

According to O.R.C Section 2943.031, the court must ask the following before the defendant entered the plea: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

As stated above, our client told us that he never had the aforementioned advisement from the court before he pled guilty to his charges.  Thus, we contacted our client’s previous criminal attorney to file Motion to Withdraw Guilty Plea and Vacate Conviction based on a defect in underlying criminal proceedings – that of having a lack of advisement or lack of substantial compliance with the advisement provisions of O.R.C. Section 2943.031 from the criminal courts.

By November 9, 2012, the courts involved vacated and dismissed the two drug paraphernalia convictions and the heroin / drug abuse conviction. He thus only has one conviction for marijuana possession left. There was no evidence that the amount of marijuana involved was over 30 grams.

With that, our office filed a Motion to Terminate Proceedings to the Immigration Court and argued that our client is not removable anymore because the respective courts have vacated his plea and dismissed his convictions based on a defect in underlying criminal proceedings. We cited the law that provides that he is not removable based on a single conviction of marijuana possession if the amount involved is 30 grams or less. Since it’s the government’s burden to show removability, and since there was no evidence of the amount of marijuana involved, despite this conviction he was not removable anymore.

We included the criminal court judges’ orders and other supporting documents, including, when necessary, a certified copy of the motion filed by the criminal attorney (the government sometimes wants to see this to make sure the dismissal was not for immigration purposes, but based on a lack of advisement) and argued that our client’s removal proceedings must be terminated.

On November 28, 2012, on the day of our client’s Individual Hearing, the Immigration Judge granted our Motion to Terminate Proceedings.

Our client is now released. He got his green card back and can continuously reside in the United States.

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CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics.

They contacted our office in late of October to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was already reached. Our client was very disappointed and thought they would have to wait until April 1, 2013. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file at this point.

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment. We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on November 13, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on November 27, 2012. He can now work for his employer for three years on an H-1B status starting November 27, 2012.

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

NATIONALITY: Indonesian

LOCATION: Cleveland, Ohio

Our Indonesian client came to the U.S. on a J-1 Visa in July 2007.  He came to the U.S. for business training, and his J-1 visa made him subject to the two-year foreign resident requirement.

In June 2012, our client married his U.S. Citizen wife and he wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, he had to obtain a waiver first.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office contacted the Indonesian Embassy in Washington D.C. to make sure we knew all the requirements needed for their office to issue a no objection statement.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of his valid Indonesian passport, and a copy of Form DS-3035.

On July 10, 2012 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On August 16, 2012, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on November 19, 2012.  Now that our client’s two-year foreign residency requirement is waived, he can file for adjustment of status application with his wife’s I-130 petition.

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CASE: I-130 (Response to Notice of Intent to Revoke)

CLIENT: US Citizen Petitioner; Cambodian Beneficiary

LOCATION: Petitioner: Cleveland, Ohio; Beneficiary: Cambodia

Our Chinese client contacted our office in the summer of 2011. He is a U.S. Citizen living in Cleveland, Ohio and sought legal assistance for his wife’s case in Cambodia. When he contacted our office, his wife already had an immigrant visa interview at the U.S. Embassy in Cambodia.  However, her interview did not go well, and the Embassy returned the petition to the USCIS for further review and action on November 1, 2011.  Eventually, the USCIS, based on a request from the U.S. Embassy in Phnom Penh, Cambodia, issued a Notice of intent to revoke his I-130 petition on September 7, 2012.

Our client married his Cambodian citizen wife back in May 2010. Our client met his wife through his sister in March 2010.  Once he married, our client filed an I-130 petition for his wife in June 2010.  On February 7, 2011, the Director of the California Service Center approved the I-130 petition and his wife was eventually interviewed at the U.S. Embassy in Phnom Penh, Cambodia. However, the U.S. Embassy denied her immigrant visa application, and the approved I-130 petition was subsequently returned to the California Service Center by the Department of State for further review and action, and as stated above, the USCIS then issued a Notice of Intent to Revoke.

After our office was retained, we filed a Response to Intent to Revoke on October 3, 2012 with the USCIS California Service Center. Over 200 pages of documents and 20 exhibits were submitted in our response.

In our response brief, we rebutted each and every question that was raised by the USCIS regarding the bona fide nature of our client’s marriage to his wife in Cambodia. As a result, on November 15, 2012, the USCIS determined that they will not revoke our client’s I-130 petition.

Now, after the reaffirmation of the I-130 petition, our client’s wife will get her immigrant visa, and will be reunited with his husband after almost two years.

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CASE: Termination of Removal Proceedings Based on Approved I-130 Petition
CLIENT: Indonesian
LOCATION: Cleveland, Ohio

Our client came to the U.S. on a valid B-2 visa from Indonesia in March 2003. He later filed for asylum but was denied by the Immigration Judge in May 2010. Our client subsequently filed a timely appeal with the Board of Immigration Appeals (BIA), but the BIA also dismissed the appeal on October 21, 2011. In December 2011, our client married his U.S. Citizen wife and through our office, filed an I-130 petition on January 3, 2012. After we obtained the I-130 receipt notice, we filed a Motion to Reopen on January 10, 2012, within the 90-day deadline for filing Motions to Reopen with the BIA.

Eventually, the BIA granted our client’s Motion to Reopen on February 8, 2012, and remanded it to the Immigration Judge to allow our client to apply for adjustment of status (green card).

Our client’s I-130 interview was scheduled on July 23, 2012 at Cleveland USCIS Field Office. Prior to the interview, our office thoroughly prepared our client and his wife for the interview. Attorney Sarmiento also accompanied them for their interview. The I-130 petition was eventually approved the next day.

After the I-130 was approved, our office filed a request to join in a Motion to Terminate proceedings with a copy of the I-485 application and supporting documents. The DHS counsel in Cleveland agreed to terminate our client’s proceedings at our client’s Master Calendar hearing on November 7, 2012. Ultimately, the Immigration Judge granted the Motion to terminate without prejudice. Now, he can file his I-485 adjustment of status application to USCIS for his green card.

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CASE: I-140 / I-907 (Premium Processing)
ISSUE: Had to get the I-140 Approved to Be Eligible for 3-Yr H-1B Extension
EMPLOYER: Molded Component Manufacturer
BENEFICIARY: British Engineering Manager
LOCATION: Cleveland, OH

Our client is an engineering manager from the United Kingdom, who is currently working at a molded component manufacturing company in the greater Cleveland area. The company/petitioner was willing to petition him for a green card, in the second-preference category (EB2).

Our client has a Bachelor’s degree and has more than 5 years of related work experience. He has maintained his status as an H-1B visa holder in the United States. The issue is that he can only renew his H-1B after an I-140 petition is approved.

After talking to our client, our firm advised that his potential employer can petition him as an Engineering Manager, specifically, Liquid Injection Molding (LIM) Process Engineering Manager.

Prior to filing the PERM labor certification application, 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. As mentioned on our previous success story, we filed the PERM labor certification application for our client on August 8, 2012. Two months later, on October 10, 2012, the PERM labor certification was approved. There were no audits in this application. Our client retained us again for the I-140 petition.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employment verification letters from our client’s previous employers, and other necessary supporting documents.

The I-140 Petition was filed on October 31, 2012 via premium processing. On November 8, 2012, in only eight days, the I-140 EB2 for our British client was approved.

Now, not only can he file for a green card (could have been filed simultaneously, but priority dates were not current back in October), but he is also eligible for an H-1B 3 year extension.

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CASE: I-485 / I-140 (National Interest Waiver)
NATIONALITY: Korean
LOCATION: Ohio

Our South Korean client came to the U.S. on a J-1 Visa in August 2008. He was here for a NASA research fellowship, but his J-1 program made him subject to the two-year foreign residency requirement. He retained our office for his J-1 waiver, I-140 National Interest Waiver Classification (NIW) and I-485 Adjustment of Status applications.

We got his J-1 waiver approved on February 6, 2012, details of which are in a previous success story. Afterwards, we started working on his NIW application. Our client is a researcher and scientist in the field of Aerospace Science and Engineering, and is currently working as a research specialist at NASA. Upon review of his credentials and qualifications, our office determined that he was qualified for the National Interest Waiver (NIW) category. The NIW is beneficial because one would not need an employer nor family member to petition for you.

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 19-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, presentation records, and conference materials. 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 64 exhibits (Exhibit A to LLL). Our office filed his I-140(NIW) petition with the USCIS on April 6, 2012. On September 7, 2012, the USCIS approved his I-140 petition without any Requests for Evidence.

When we filed our client’s I-140 (NIW) application, we concurrently filed an I-485 adjustment of status application for our client and his wife. Everything went smoothly and the receipt notices and fingerprint appointment came on time. While our client was waiting for the adjudication of his I-140, our client received his work permit and travel permit from the USCIS on June 4, 2012.

Eventually, on November 8, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application. Our client’s wife also received the I-485 approval as a derivative applicant of this case. They are now both green card holders.

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CASE: Marriage-Based Green Card
CLIENT: Korean
LOCATION:Ohio

Our client came to theUnited Statesin 2010 with an F-1 student visa fromSouth Koreato study in theUnited States. He married a U.S. Citizen in December 2011 and retained our office on January 26, 2012 for his petition and adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application on February 24, 2012. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence. Prior to the interview, we thoroughly prepared our clients at our office. On May 15, 2012, our client was interviewed at theCleveland,OhioUSCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. On November 5, 2012, his green card application was approved.

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