On June 11, 2012, the SCIS received a sufficient number of petitions to reach the statutory cap for FY 2013.  On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  According to the USCIS’ Website, the USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 (normally October 1, 2012) that are received after June 11, 2012.

Nevertheless, USCIS will continue to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

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

Our client came to the United States in December 2000 as an H-4 visa holder from India.  Although her authorized stay in the U.S. expired in January 2004, she has stayed in the United States since then. In September 2011, she married her U.S. Citizen husband and retained our office on October 11, 2011 for her adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 24, 2011. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On February 10, 2012, our client was interviewed at the Cleveland, OH USCIS. Our attorney accompanied them as well.

However, after the interview, the CIS office issued a Form I-72 asking for: a civil marriage certificate / abstract for our client and his previous husband, and an explanation as to why this marriage was not listed nor acknowledged during the interview. We reviewed the documents that she provided us after and realized that her previous marriage was only a religious marriage and not registered in the state of Ohio. Under immigration law, a religious marriage is considered a valid marriage for immigration purposes only if it is recognized by the sovereign in that country or state as a valid marriage.  Matter of Ceballos, 16 I&N Dec. 765 (BIA 1979).  Since our client’s previous religious marital ceremony was not registered in Ohio, it is not a valid marriage for immigration purposes. On May 8, 2012, our office filed a response to the Request for Evidence which included an affidavit from our client.

On May 30, 2012, our client’s I-485 adjustment of status application was approved. After 12 years in the United States, she is finally a permanent resident.

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CASE:  I-485 Adjustment of Status under the INA 245(i) provision
CLIENT: Chinese
LOCATION: Cleveland, OH

Our client is from Hong Kong, China, who came to the U.S. without inspection and admission in August 2001. He never left the United States since he came.

In March 1990, our client’s uncle filed an I-130 (fourth preference) petition for his mother.  This I-130 petition was approved in April 1990.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Later, our client’s father filed an I-130 petition on behalf of our client in March 2003.  This Petition was approved in June 2005.

Our client contacted us in February of 2012 for consultation. We determined that he is eligible for adjustment of status under INA 245(i). Our client retained us on March 1, 2012.

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 began 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.

Our client was the beneficiary of his father’s petition in March 2003, which is current, but this by itself would not have allowed him to adjust status since this was filed after January 1998 and because he came in 2001, thus not meeting the December 21, 2000 physical presence requirement. However, he was also the beneficiary of a petition filed before January 14, 1998, that of his uncle’s petition for his mother. So it was the two petitions that saved his case, one for 245i, and the other for adjustment eligibility.

Once retained, our office prepared and filed his adjustment of status application under the 245(i) provision. Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  We thoroughly prepared our client prior to his interview.  On June 8, 2012, our client was interviewed at the Cleveland USCIS office. Attorney Sung Hee (Glen) Yu accompanied him at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. On the same day, our client’s I-485 application was approved.  He finally became a green card holder.

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Case: TPS Extension
Client: Salvadoran
Location: Cleveland, OH

The Secretary of Homeland Security may designate a foreign country for Temporary Protected Status due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS. The Secretary may designate a country for TPS due to the following temporary conditions in the country: 1) Ongoing armed conflict (such as civil war); 2) An environmental disaster (such as earthquake or hurricane), or 3) an epidemic or other extraordinary and temporary condition. During the designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible): are not removable from the United States, can obtain an employment authorization document (EAD), may be granted travel authorization

Once TPS is granted, the individual also cannot be detained by DHS on the basis of his or her immigration status in the United States.

Our client first entered the United States in 1990 and has resided in the U.S. ever since. He had obtained TPS and work permits for a long time. He contacted our office in February 2012 for his TPS re-registration and work permit. He previously tried to re-register his TPS extension, but it was denied previously. He has not had a work permit for over 2 years. Our client retained us on February 23, 2012. On February 29, 2012, our office filed his TPS Application and Work Permit with a brief regarding his eligibility. We explained that our client has continued residence in the United States and continued physical presence since 1999. On May 15, 2012, the USCIS approved his TPS and issued a valid work permit for our client.

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Case: I-130/I-485
Issue: Visa Waiver Entry
Applicant/Beneficiary – Italian
Location: Cleveland, Ohio

Our client entered the United States from Italy in January 2012 under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days. However, she has remained in the United States ever since.

Our client is a doctor, and she mentioned that she came on a J-1 visa before. So even though old visas and passports were not required, we asked her to show us those, together with her old DS-2019, so that we could check if she was subject to the 2-year foreign residency requirement. Our first inclination was that she was subject, as most J-1 entrants who are physicians are. When we saw the J-1 documents, we found out that she indeed was not subject. And so we proceeded with the adjustment of status case.

She married her U.S. Citizen spouse in September 2011 in Italy and her U.S. citizen husband filed an I-130 petition on October 4, 2011.  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 a 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.

Our office filed the I-485 Adjustment of Status Application on March 5, 2012. Our office requested the CIS to exercise favorable discretion in granting adjustment of status despite her visa waiver entry.  Everything went smoothly and the receipt notices, fingerprint appointment, and the work permit all came on time. There was no Request for Evidence. Prior to the interview, we thoroughly prepared our clients. On May 15, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office. We accompanied them at the interview as well. Despite the visa waiver entry and subsequent adjustment of status 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 Adjustment of Status
CLIENT: From Madagascar
LOCATION: Cleveland, OH

Our client came to the United States in June 1998 with an F-1 student visa to study in the United States. She overstayed her F-1 status and remained in the United States. She married a U.S. Citizen in August 2008 and retained our office on September 14, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 8, 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 May 8, 2012, three months from filing the application, our client was interviewed at the Cleveland, Ohio USCIS. Attorney Sung Hee (Glen) Yu accompanied them at the interview as well.  On the same day, her green card application was approved.

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

Our client came to the United States in January 2010 with an H-2 temporary work visa from Philippines. She married a U.S. Citizen in September 2011 and retained our office on November 8, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on January 9, 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 April 13, 2012, our client was interviewed at the Cleveland, Ohio USCIS.  We accompanied them at the interview as well.  On April 24, 2012, her green card application was approved, and our client obtained her green card a week later.

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

Our client came to the United States in June 2009 with a J-1 exchange visitor visa from Ghana. He married a U.S. Citizen in September 2011 and retained our office on January 9, 2012 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 27, 2012.  Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time.  Prior to the interview, we thoroughly prepared our clients at our office.  On April 30, 2012, our client was interviewed at the Cleveland, Ohio CIS office.  Attorney Sung Hee (Glen) Yu accompanied them at the interview as well.  On the same day, his green card application was approved.

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

Our client contacted us in March 2011 and inquired about his chances of winning a National Interest Waiver self-petition. He is an extraordinary researcher and scientist in the field of Macromolecular Science and Engineering, a professor in Korea, who currently works as a visiting professor in an academic institution in Cleveland, Ohio.  Upon review of his credentials and qualifications, our office determined that he is a good candidate for the National Interest Waiver (NIW) category.

After our firm was retained, we prepared the application and coordinated with our client with his recommendation letters and supporting documents. We eventually prepared a 15-page cover letter for our client’s NIW filing, which included at least 10 letters of recommendation, his publication record, patents, and conference materials. In our brief, our office 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 Request for Evidence.  Once his I-140 was approved, our office worked on his J-1 waiver of the 2-year foreign residency requirement.

Attorney Yu contacted the Korean Consulate General Office in Chicago to pursue our client’s waiver. The Consulate requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver. Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On October 11, 2011 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust with an approved I-140 if he obtains the waiver.

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC. After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division. On December 2, 2011, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued an I-612 approval notice on January 12, 2012.

On January 24, 2012, our office filed an I-485 adjustment of status application for our client and his derivative family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time. However, on April 6, 2012, the USCIS Nebraska Service Center issued a request for evidence (RFE) on whether our client continued to be engaged in the occupation that is the basis of his national interest waiver. They mentioned that our client’s visiting professorship term ended three weeks after we filed his I-485 application and his employment with his home institution in South Korea was still ongoing.

The RFE letter from the USCIS requested us to submit evidence which established that the Applicant continued to be engaged in the occupation that is the basis of his national interest waiver. In our response brief, we noted that he is still engaged in the field which formed the basis of his National Interest Waiver. After the I-140 was approved, he proceeded to author more important publications, and was invited to several conferences and presentations in the world.  We also explained that his employment relationship with his home institution and the institution of his visiting professorship in Cleveland, OH, and explained why he applied for adjustment of status in the United States – to continue as a professor, researcher and scientist in the field of Macromolecular Science and Engineering / Chemistry / Polymer Science (Fiber System Engineering).  In our response to RFE, we included our client’s recent publications, invitation letters for upcoming conferences in the United States, and his on-going memberships with professional associations. Our office filed this response to RFE on April 16, 2012.

On April 26, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application. The derivative applicants of this case (his immediate family members) also received the I-485 approval.  Now, our client and his family members are finally green card holders.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Electric Manufacturing Company
BENEFICIARY: Procurement Engineer

Our client is an electric immersion heater manufacturing company in Ohio. They contacted our office in late February to seek legal assistance from our office for their foreign employee.  The beneficiary is from India who obtained his Bachelor’s degree in Industrial Engineering in the United States. The proffered position for the Beneficiary is a procurement engineer which we argued qualifies as a specialty occupation.

The foreign beneficiary in this case had his H-1B from his previous employer. He was on his sixth year in H-1B which expires in September 2012, unfortunately, he was terminated in December 2011. So he looked for another employer and found one in February 2012. Since he was terminated from his H-1B employer in December 2011, he could not change status in the U.S. But he was still within the 180 day unlawful presence period, so he did not have a 3-year bar. He also wanted to extend his H-1B status not just up to September 2012, but to 5 months more by recapturing all the time he was out of the United States, and the remaining period that he was not on an H-1B. So we explained in our cover letter that the Beneficiary is eligible to recapture his remaining period of H-1B from the time of his termination from his previous employer, plus all those times that he was abroad on vacations.

Once retained, our office filed the H-1B visa petition with various supporting documents on March 20, 2011 via premium processing. The supporting documents included those for our recapture argument, such as copies of stamps on his passport, plane tickets, and the termination letter from his previous employer. Since this petition was based on a change in employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  After 7 days, our client’s H-1B Petition was approved on March 27, 2011. That H-1B was valid until February 2013, which meant that the CIS granted our request for recapture. Now the Beneficiary can have an interview for his H-1B visa at the U.S. Embassy in India, and once admitted, he can work for his Petitioner-Employer as an H-1B visa holder up to February 2013.

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