Case: I-130/I-485
Issue: Visa Waiver Overstay
Applicant/Beneficiary – Argentinean
Location: Columbus, Ohio

Our client entered the United States in 2001 from Argentina under the visa waiver program.  When he entered the United States, he was a minor and came with his parents.  As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days. However, he has remained in the United States ever since.

Several years later, he married his U.S. citizen wife on March 25, 2011. One main issue in his green card application through marriage was the fact that he 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.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on July 21, 2010.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status despite the filing date falling beyond the expiration of the visa waiver. Everything went smoothly and the receipt notices, the 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 October 14, 2011, our client was interviewed at the Columbus, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver / overstay issue, the USCIS officer approved his green card application on the same day.  Now, our client is a green card holder.

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CASE: Adjustment of Status / 245(i)
CLIENT: Chinese
LOCATION: Columbus, Ohio

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI). 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.

Our clients came from China and had approved I-130 petitions (F-4 category) filed by our client’s U.S. Citizen brother in 1987.  Now that their son (over 21 years old) is a U.S. Citizen, we also filed an I-130 petitioned by their son on their behalf.  However, they have an EWI (Entry without Inspection and Admission) record in 2008. Since our clients are beneficiaries of an approved I-130 F4 petition filed in 1987, they can still adjust status through INA § 245(i) despite their entry issue. Also, since the F-4 petition was filed before January 14, 1998, physical presence in December 2000 was not required.

Our office was retained on May 23, 2011. We prepared and filed the Adjustment of Status Application with Form I-485 Supplement A on July 9, 2011.  Everything went smoothly and the receipt notices, the 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 with our Chinese speaking staff.   On October 11, 2011, our client was interviewed at the Columbus, Ohio USCIS office.  We accompanied them at the interview as well. Prior to the interview, we submitted a brief pertaining to the INA § 245(i) issue, including documents evidencing the fact that an I-130 was filed in 1987. The petition and green card applications were approved on the same day.

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CASE: Termination of Removal Proceedings and Adjustment of Status with USCIS

CLIENT: Senegalese

LOCATION: Columbus, OH

Our client is a Senegalese national who came to the U.S. with fraudulent documents many years ago. He resides in Columbus, Ohio.

Prior to retaining our firm, he married a U.S. citizen spouse and filed an I-130 petition, I-485 green card application and I-601 waiver application for his fraudulent entry. The I-130 petition was approved by the CIS, however, his I-485 application and I-601 waiver were denied by the CIS.  Fortunately, his appeal of the 601 waiver  was sustained by the Office of Administrative Appeals later.

In the meantime, he was placed in removal proceedings after the denial of his initial green card application. Thereafter, he consulted with our firm for representation in removal proceedings and adjustment of status. We explained that we can terminate removal proceedings and we can help his adjustment of status application. Our office was retained and within a few days, we filed a Motion to Terminate with the Immigration Court.

The DHS counsel opposed the termination of hearing. The basis was whether his manner of entry should be considered an admission.  A few months later at the scheduled contested Master Hearing, based on the BIA case Matter of Quilantan, Attorney JP Sarmiento argued that our client’s entry is an admission and that he has an approved I-130 and I- 601 waiver. The Immigration Judge granted termination. We then wrote a letter to the Columbus CIS office to reopen our client’s adjustment of status application since removal proceedings have been terminated. Within a few weeks, another green card interview was scheduled for our client. Client had his green card interview on December 6, 2010 in Columbus USCIS office. We prepared our clients before the interview and Attorney JP Sarmiento accompanied them. At the interview, the officer finally approved our client’s green card application.  After the long process, our client eventually obtained his permanent resident card.

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CASE: H-1B Extension With Potential Specialty Occupation Issues
TYPE OF PETITIONER: Hotel
POSITION: Hotel General Manager
LOCATION: Ohio

Our client is a Pakistani national who has been on H-1B status for over 8 years. His H-1B had been extended for one year at a time for the past two years. Within the past year, an I-140 Petition was approved with him as the beneficiary. He consulted with our office regarding filing an extension. Our office reviewed his documents and with the approved I-140, informed him that the H-1B extension would be a 3-year extension. Another issue is his position – that of a hotel general manager. For this year, the position is deemed under ONET classifications as a Job Zone 3 position which does not require a bachelor’s degree. Unless we can persuade the USCIS that a hotel general manager for the Petitioner is a “specialty occupation” the H-1B may be denied. Upon discussing the case with the Petitioner regarding the specific description of the position, we prepared a detailed employment letter together with a more extensive cover letter to argue upfront that the hotel general manager in this instance is a specialty occupation, that the position is so complex that it requires someone possessing at least a Bachelors Degree. The I-140 approval was also attached and a portion of the cover letter cited the AC-21 regulation allowing for a 3-year extension. On April 15, 2010, the H-1B extension was filed. 3 weeks later, our client informed us that new ownership has taken over the petitioner. They were wondering if the filing fees submitted were useless as they assumed an amendment should now be filed. Our office assured them that no amendment is needed and sent a letter together with a citation of INA § 214(c)(10) which specifically addressed this issue. On June 16, 2010, with no Requests for Evidence by the CIS addressing the issue of whether the position was a specialty occupation, our client’s 3-year H-1B extension was approved.

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