CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Ukraine
LOCATION: Cleveland, OH

Our client contacted us in March 2011 to seek legal assistance for his naturalization application. His main issue was his English language skills. Despite obtaining his green card in 1993, he said he did not speak good English.  He came to the United States from Ukraine and obtained his green card in 1993.  He retained our office on March 28, 2012 to assist in his citizenship application.

Our client was born in 1955. He became a Permanent Resident of the United States in1993. Under INA Section 312(b)(2) and 8 U.S.C. Section 1423(b)(2), the English language requirement shall not apply to (1) persons who are over 50 and have lived in the U.S. for 20 years in LPR status; or (2) persons who are over 55 and have lived in the United States for 15 years in LPR status.

When our firm was retained and prior to filing, our client was 57 years old and had lived in the United States as a green card holder for more than 18 years. Accordingly, we argued based on the said statute that he sufficiently met the waiver of the English Language Test, and that he was also permitted to take the civics test in his own language. Attorney Sung Hee Yu accompanied our client at the interview, and his naturalization interview was conducted in his native language.  On July 26, 2012, his naturalization application (N-400) was approved. His oath taking will be scheduled soon in which he will be a naturalized Citizen.

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CASE: N-400 Citizenship / Naturalization
APPLICANT: Indian
LOCATION: Cleveland, Ohio
ISSUEs: Rebuttable Presumption / Continuous Residence

Our client contacted us in late April of 2012. He came to the United States from India as a derivative beneficiary of his father’s immigrant visa in 2007 and became a permanent resident. He retained our office for his naturalization application on May 3, 2012. The main issue of his naturalization case was the two long, over six-month trips that he had within the past four 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 residence 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 should they wish to apply.

Our client was out of the United States for almost a year in two consecutive years. Our client was in India during those times to completion his undergraduate studies.  In our brief, we cited Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007), which held that in cases where an applicant left the country to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. We asked the CIS to also apply this to our client’s case since the facts in the Li case is very analogous to our client’s.

The brief and his N-400 application were filed on May 14, 2012 with all necessary supporting documents. Our office prepared him for his interview, and also accompanied him on July 24, 2012 at the Cleveland CIS office. Our client answered all questions correctly and passed his citizenship interview. We emphasized the brief as well and her reasons for his long trips to India. His N-400 was approved after the interview. His oath taking is scheduled soon where he will become a U.S. Citizen.

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CASE: I-751 / Waiver of the Joint Waiver Requirement
APPLICANT : Swedish
LOCATION: Ohio

Our client contacted our office in early January of this year regarding his potential I-751 filing. He is from Sweden and married a U.S. citizen in November 2009. Through his marriage with a U.S. citizen spouse, he obtained a 2-year conditional green card in April of 2010. Therefore, his conditional residency terminated in April 2012.

Unfortunately, their marriage ended in December 2011. Thus, our client could not file I-751 application jointly with his ex-wife. After the consultation, we advised that we can help him file the I-751 application with a waiver of the joint filing requirement. We requested a waiver because our client entered into the marriage in good faith, but the marriage was terminated through divorce or annulment before they can file a joint petition.

On January 26, 2012, our office filed the I-751 application with various supporting documents (over 20 exhibits and an affidavit over 3 pages) to demonstrate our client’s bona fide marriage with his ex-wife.  On July 12, 2012, the USCIS approved our request for the removal of conditions on his permanent resident status without even an interview. Now, he has her ten-year green card.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: South Korean
LOCATION: Cleveland, OH

Our client contacted us to seek legal assistance for his naturalization matters.   He came to the United States from South Korea and obtained his green card in 1999.  However, he was concerned for his naturalization due to his failure to register for Selective Service during the required time period.  He retained our office to assist in his citizenship application.

After we were retained, our office contacted the Selective Service office and requested a status letter for our client.  We explained that our client became a green card holder when he was a minor and no one informed him of the Selective Service registration requirements. Thus, his failure to register was not knowing and willful. The Selective Service issued a status letter for our client, thereby allowing him to apply for naturalization.

The N-400 application was filed on May 1, 2012 with all required supporting documents.  We included a brief explaining that our client’s failure to register for Selective Service was not willful.  Although the Military Selective Service Act provides for civil penalties for failure to register, Section 12 of the Military Service Act also provides some relief from the adverse civil effects of failure to register:

(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 if:

(1) The requirement for the person to so register has terminated or become inapplicable to the person; and
(2) The person shows by a preponderance of the evidence that the failure of the person to register was not a knowing and willful failure to register.

Our client’s registration requirement has become inapplicable due to his age.  Moreover, he has never been informed by anyone during 11 years of his residence in the U.S. with regard to the selective service system registration requirement.  Therefore, our client clearly did not knowingly and willfully fail to register during the requested period of time.

Our office prepared him before the interview, and our client was scheduled to appear before the Cleveland USCIS office on July 13, 2012.   Our attorney Sung Hee yu accompanied him as well.  Our client answered all questions correctly and passed him citizenship interview.   Eventually, his N-400 was approved. His oath taking will be scheduled soon in which he will be a naturalized Citizen.

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Case: I-130/I-485
Applicant/Beneficiary – Indian
Location: Cleveland, Ohio

Our client entered the United States in May 2011 from India with B-2 visitor visa. He married a U.S. citizen in October 2011 and retained our office on October 31, 2011 for his adjustment of status application.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on November 9, 2011.  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 January 26, 2012, our client was interviewed at the Cleveland, OH USCIS.

On February 29, 2012, the USCIS issued a Request for Evidence (RFE) for our client. The CIS requested more documents that will demonstrate the bona fide nature of our client’s marital relationship with his wife.  In response to that, our office filed a Response to RFE on April 24, 2012.  We submitted several notarized affidavits from Petitioner’s ex-husband, family, mutual friends and neighbors. Eventually, on June 28, 2012, the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.

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

Our client came to the United States in June 2009 with an F-1 Student visa from Sweden.  He married a U.S. Citizen in March 2012 and retained our office on March 27, 2012 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 11, 2012.  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 June 28, 2012, our client was interviewed at the Cleveland, OH USCIS.  On the same day, his green card application was approved.

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CASE: I-90
APPLICANT: Cuban
LOCATION: Cleveland, OH

Our Cuban client has been a green card holder since 1973.  However, his card expired in January 2011, and he did not renew it until he contacted our office in January 2012. He retained our office for his green card renewal on January 26, 2012. One day after our retention, our office filed an I-90 extension/renewal application on January 27, 2012.    Our client was fingerprinted and a background check was conducted for him. Eventually, his I-90 was approved on June 18, 2012 and his green card was extended for ten years.

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CASE:  I-130
CLIENT: Mexican
LOCATION: Cleveland, OH

Our client is from Mexico who came to the U.S. without inspection and admission in 1988 with her parents. Since that time, she never left the United States.

In November 1991, our client’s father filed an I-130 (F2A) petition for her mother.  This I-130 petition was approved in March 1992.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. However, our client’s parents divorced in 2007.  Furthermore, our client was placed in removal proceeding in December 2009.

Around November 2010, our client contacted our office to represent her at removal proceedings. After we reviewed her previous immigration documents, we determined that she might be eligible to adjust her status under INA 245(i) and the Child Status Protection Act (CSPA).  She retained our office on December 1, 2010 and our attorney represented her at her master calendar hearing.  Cancellation of Removal relief was requested and we preserved possible adjustment of status relief through INA 245(i) and CSPA.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

Section 3 of CSPA, codified in section 203(h) of the INA, provides that “If the age of the alien is determined to be 21 years of age or older… the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Our client was the derivative beneficiary of her father’s petition for her mother in November, 1991.  Our client is now older than 21. According to Section 3 of CSPA, a new I-130 petition by our client’s father on behalf of our client should automatically retain the priority date of the original I-130 petition, which was November 1991, in which our client was a derivative beneficiary. If this new I-130 is approved with a November 1991 priority date, our client would be eligible to adjust under 245(i) since the priority date is current and the petition was filed before January 1998.  So it was two petitions that saved her case, one for 245i, and the other for adjustment eligibility, retaining the old priority date under CSPA.

On January 11, 2012, our office filed the I-130 Petition with a cover brief (citing the CSPA provision) and other supporting documents.  Her I-130 was approved by the USCIS California Service Center on June 14, 2012 with the old priority date (November 1991).  Now, we can work on terminating her proceedings for CIS adjustment of status.

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

Our client came to the United States in June 2008 with a J-1 exchange visitor visa from Ukraine.  She married a U.S. Citizen in December 2011 and retained our office on January 9, 2012 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 28, 2012.  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. On June 18, 2012, our client was interviewed at the Cleveland, Ohio USCIS office.  We accompanied them at the interview as well.  On the same day, her green card application was approved.

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The July 2012 Visa Bulletin is out, and please be informed that the EB2 Category is not current anymore for Mexico, Philippines, and “Other Countries”. India and China actually have an “unavailable” priority date and it will likely be “unavailable” until the October 2012 Visa Bulletin comes out.  Whereas other countries including the Philippines and Mexico have always been current on the EB2 category, now, based on the visa bulletin for July 2012, the priority date is January 1, 2009. This means that for Mexico, Philippines, and other countries, even if EB2 labor certifications are approved, the I-140 could not be filed simultaneous to the I-485 adjustment of status application. Even if the I-140 is approved, with the priority date listed as 2009, it may take close to 3 years before one can even file the adjustment of status application. For China and India, even those with I-140s approved and priority dates of 2008, 2009, and 2010 could not even file I-485s until the visa numbers become available, and their priority dates current.  Thus, it is very important to maintain non-immigrant status until the priority date becomes current again.

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