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

NATIONALITY: Korean

LOCATION: Ohio

Our client is from South Korea who came to the U.S. on a J-1 Visa in 2010 to pursue her research program. Her J-1 program made her subject to the two-year foreign residence requirement. After her J-1 program was completed, she changed her status to F-1 and continued her Ph.D. studies in the United States. While she was studying, she met her U.S. citizen husband. Her husband intended to file I-130 petition for her along with her I-485 adjustment of status application.  However, she has to get a waiver for her two-year foreign residency requirement before she adjusts her status in the United States.

Our office was retained on June 16, 2015. Once retained, our office promptly prepared and filed a waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Consulate General Office in Atlanta to pursue the waiver for our client.  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 June 24, 2015 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 file an adjustment of status application.

The Korean Consulate General in Atlanta 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 January 22, 2016, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, the USCIS issued an I-612 approval on February 1, 2016.

{ 0 comments }

CASE: Marriage-Based Adjustment of Status

NATIONALITY: Kenyan

LOCATION: Atlanta, GA

Our client is from Kenya who came to the U.S. on a J-1 Visa in August 1998 to pursue his master’s degree.  After he finished his J-1 program, he remained in the United States.

In October 2013, our client married his current U.S. citizen wife. He could not adjust his status at that time unless he got a waiver of his 2-year foreign residency requirement. When he came to the United States in 1998, his program made him subject to the 2-year foreign residency requirement.

Thereafter, our office filed a waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Our office contacted the Kenyan Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver, a clearance letter from the J-1 program sponsor, clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver.

On March 13, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on his marriage to U.S. citizen spouse.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On May 13, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On June 4, 2015, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement.

Once his J-1 waiver was approved, our client retained our office again for his green card application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 17, 2015. 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 through conference calls. On January 28, 2016, our client was interviewed at the Atlanta USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. On the same day, his green card application was approved.

{ 0 comments }

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: Atlanta, GA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in September 2007.  She came with her mother who came on a J-1 Visa for her research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, she completed her high school and was admitted to a University to pursue her bachelor’s degree. She went back to China and got her F-1 student visa at the U.S. Embassy in China and came back to the United States on her F-1 student visa.

She turned 21 in 2012. She now has a U.S. citizen fiancé and they plan to get married soon. Once they get married, her fiancé (will be her husband) will file an I-130 petition for her and she will file her I-485 adjustment of status application. However, because of her two-year foreign residency requirement, our client cannot adjust her status without the fulfillment of the 2-year requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in January 2012.

Our firm was retained to do her J-2 waiver, and on September 16, 2015, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on October 8, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 6, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.

{ 0 comments }

CASE: Termination of Removal Proceedings Based on Approved I-130 Petition

CLIENT: Kenyan

LOCATION OF COURT: Atlanta, GA

LOCATION OF CLIENT: Alabama

Our client is from Kenya who came to the U.S. on a F-1 Student Visa in June 2001. However, she failed to maintain her F-1 status after that.  She was thereafter placed in removal proceedings in Atlanta, Georgia.

Our client married her U.S. citizen husband in May 2013 in Alabama. Her husband filed an I-130 petition on her behalf after they got married. Eventually, our client’s I-130 petition was approved in February 2015. She could not apply for adjustment of status by herself with the CIS, since her removal proceeding is still pending.

She contacted our office around May 2015 to seek legal assistance. She retained our office on June 4, 2015.

After our office was retained, we prepared and filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents to the Atlanta ICE-DHS office. In less than a month, the DHS counsel in Atlanta agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on October 1, 2015. Now, she can file her I-485 adjustment of status application with the CIS.

{ 0 comments }

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

NATIONALITY:Kenyan                                                                                                        

LOCATION: Atlanta, GA

Our client is from Kenya who came to the U.S. on a J-1 Visa in August 1998 to pursue his master’s degree.  After he finished his J-1 program, he remained in the United States.

In October 2013, our client married his current U.S. citizen wife. However, he initially can’t adjust status unless he got a waiver for the 2-year foreign residency program.  When he came to the United States in 1998, his program was clearly subject to the 2-year foreign residency program.

Thereafter, our office prepared a waiver request through the No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regards to the J-1 No Objection Statement waiver.  Our office contacted the Kenyan Embassy in D.C. to pursue the waiver application for our client.  The Embassy requested several documents including a statement of reason for the waiver, the clearance letter from the J-1 program sponsor, Clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver. 

On March 13, 2015, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on his marriage to U.S. citizen spouse.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On May 13, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On June 4, 2015, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can file an I-485 adjustment of status application along with his wife’s I-130 petition. 

{ 0 comments }

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

NATIONALITY: Kenyan

LOCATION: Atlanta, GA

Our client is from Kenya who came to the U.S. on a J-1 Visa in May 2002.  After she finished her J-1 program, she remained in the United States. In February 2009, our client married her current U.S. citizen husband. However, she was not able to adjust her status because she had to get a waiver for the 2-year foreign residency requirements. When she came to the United States in 2002, her program made her subject to the 2-year foreign residency program.

Thereafter, our office promptly prepared the filing of a waiver request through a No Objection Statement (NOS) from the Kenyan Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Our office contacted the Kenyan Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver, the clearance letter from J-1 program sponsor, Clearance certificate from HELB and KSCE in Kenya, and a letter of reason for obtaining J-1 waiver.

On December 9, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Kenyan Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust based on her marriage to U.S. citizen spouse.

Eventually, the Kenyan Embassy issued a No Objection Statement for our client and sent this letter to the State Department’s Waiver Review Division.  On February 18, 2015, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On March 20, 2015, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. Now, our client can file I-485 adjustment of status application along with her husband’s I-130 petition.

{ 0 comments }

CASE: Marriage-Based Adjustment of Status

CLIENT: Ghanaian

LOCATION: Atlanta, GA

Our Ghanaian client came to the United States on a B-2 visitor’s visa in June 2003. She overstayed her status. Later, she married a U.S. Citizen in May 2013. She contacted our office and our client retained our office on September 8, 2014 for the filing of the petition for her and her adjustment of status application.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on October 2, 2014.  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 through conference calls. On January 22, 2015, our client was interviewed at the Atlanta, GA USCIS office.  The interview went well, and our clients answered the questions well and demonstrated the bona fide nature of their marital life. Eventually, on the same day, her green card application was approved.

{ 0 comments }

CASE: Adjustment of Status / 245i / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process)

CLIENT: Antiguan

LOCATION: Georgia

Our Antiguan client came to the U.S. on a F-1 student visa in 1996 and later changed to H-1B. His employer did not renew his H-1B status, so he fell out of his status.

Prior to retaining our firm, his father filed an I-130 petition for him back in March 1998 (F2B Classification). The I-130 petition was approved by the INS in 1998.  However, he could not apply for his green card until his priority date became current. Unfortunately, his father (I-130 Petitioner) passed away before he was eligible to apply for his green card.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed a foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation did not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client contacted our office in 2013 and retained our office for his adjustment of status. Our client’s US citizen brother was willing to become a substitute sponsor and he met the physical presence requirement. Once retained, our office filed an I-485 adjustment of status application along with form I-485A and other supporting documents. It was filed on July 24, 2013.

On April 10, 2014, our client appeared at the Atlanta USCIS office for his adjustment interview.  Attorney Yu accompanied him at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore. Eventually, our client’s adjustment of status application was approved by the USCIS on August 14, 2014.  After a long wait, our client is finally a green card holder.

{ 0 comments }

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: Atlanta, GA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in July 2007.  She came with her father who came on a J-1 Visa for his research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, she completed her high school and was admitted to the University to pursue her bachelor’s degree. In July 2009, she went back to China and got her F-1 student visa at the U.S. Embassy in China and came back to the United States with her F-1 student visa.

She turned 21 in November 2011. She is now married to her Chinese citizen husband and her husband is a recipient of an approved I-526 petition (EB-5 immigrant visa). However, because of her two-year foreign residency requirement, our client could not apply for permanent residency.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in November 2011.

Our firm was retained to do her J-2 waiver on June 2, 2014. On June 10, 2014, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on June 30, 2014 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On August 7, 2014, the USCIS issued an I-612 approval notice for our client’s waiver request.

{ 0 comments }

CASE: Administrative Closure in Removal Proceedings

CLIENT: Mexican

LOCATION: Atlanta, GA

Our client came to the United States in April 1994 from Mexico. When he entered the U.S, he was not inspected and admitted. He has stayed in the United States ever since and never left.  He now lives in Atlanta, GA with two U.S. citizen children. He is a good worker and a good father for his kids.

In 2010, he was picked up and detained by the Immigration and Customs Enforcement (ICE). Moreover, he did not even know he had a final order of removal, so he contacted our office.  With our office’s assistance, he filed a Motion to Reopen in Absentia and this Motion was granted by the Atlanta Immigration Court in 2010.  After that he was placed in removal proceeding again.

On August 25, 2011, Attorney Sung Hee (Glen) Yu from our office represented our client at his master calendar hearing at the Atlanta Immigration Court. We did pleadings and asked for cancellation of removal for non-LPR relief. The individual hearing was scheduled for September 11, 2013.

Our client did not have enough hardships and we understood we were with one of the toughest judges in the country, so with consent from our client, our office sought prosecutorial discretion with the DHS to administratively close our client’s case. We note that our client at this point already obtained his work permit.

Our request was based on John Morton’s Memorandum issued on June 17, 2011. Former USCIS Director John Morton issued a memorandum clarifying and expanding prior Immigration and Customs Enforcement directives regarding prosecutorial discretion.

This memorandum notes that prosecutorial discretion should be exercised in a wide range of situations including “granting deferred action, granting parole, or staying a final order of removal.” ICE now considers nineteen non-exclusive factors, including the following factors relevant to this case:

• The agency’s civil immigration enforcement priorities;
• The person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
• The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• The person’s immigration history, including any prior removal, outstanding order    of removal, prior denial of status, or evidence of fraud;
• Whether the person poses a national security or public safety concern;
• The person’s ties and contributions to the community, including family relationships;
• The person’s ties to the home country and conditions in the country;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

No one factor is determinative and decisions to exercise prosecutorial discretion should be based on the totality of the circumstances.

On July 25, 2013, our office filed a written request to administratively close proceedings for our client. In the brief, we argued that most factors weigh heavily in favor of an exercise of prosecutorial discretion. Our client has been in the U.S. for 19 years, and has two Citizen children. Also, he has never been convicted of any crime, and has always paid taxes. He fully supports his kinds, and sends them to school. We also argued that it would be tough for his family if he was to be deported, considering he is the sole supporter of his two U.S. citizen children throughout their lives.  Our office included numerous letters of support from his co-workers and friends, tax records, criminal record search, and other supporting documents.

On September 11, 2013, at his Individual Hearing, the DHS requested administrative closure for our client’s case based on our request. The court granted the request, and our client’s case is now administratively closed. He can now continue staying in the United States, work legally due to his work permit, and continue renewing it while his case is administratively closed.

{ 0 comments }