CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Illinois

Our Filipino client came on a J-1 visa in April 2010. He has remained in the United States ever since, even past his J-1 program. He was subject to the two-year foreign residency requirement.

He contacted our office after the Windsor (re same-sex) decision passed, and told us that he planned to get married to his U.S. citizen fiancé at that time (same-sex).

He was eligible for adjustment of status based on his marriage to U.S. citizen spouse, but he cannot adjust without a waiver of his two-year foreign residency requirement.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 31, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  Later in September 2013, our client married his U.S. citizen spouse in San Francisco, CA where same sex marriages are recognized. Then, we also sent a request to the Illinois State Government to get authentication for necessary documents.  Later, these authenticated documents and the No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in Chicago and San Francisco for further authentication. On December 12, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.

The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On May 5, 2014, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.

Eventually, on May 20, 2014, the USCIS issued an I-612 approval notice for the waiver.

Now, our client can file for his adjustment of status application along with his U.S. Citizen spouse’s I-130 petition.

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CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Illinois

BENEFICIARY: MDS Coordinator, Filipino

Our client is a Nursing Home Facility in Illinois. They contacted our office in early March to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing. The proffered position for the Beneficiary is a MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents in April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on August 14, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included that Petitioner previously employed and petitioned for an H-1B for the same position.

Our office filed the response to the USCIS Vermont Service Center on October 29, 2013. Our client’s H-1B petition was approved on December 2, 2013.

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

NATIONALITY: Chinese

LOCATION: Illinois

Our client is a citizen of China who came to the U.S. on a J-2 Visa.  He came with his 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, he finished high-school as a J-2 visa holder and later pursued his Bachelor’s degree. Prior to the commencement of his Bachelor’s program, our client changed his status from J-2 to F-1 through the U.S. Consulate in Shanghai, China. He is still in school, but he would like to apply for a J-2 waiver so that he would not have any problem for his future change of status in the United States when his prospective employer files an I-129 petition for him in 2014.

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 December 2012.

Our firm was retained to do his J-2 waiver on September 10, 2013. On October 4, 2013, 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 28, 2013 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 14, 2013, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

CLIENT: Filipina

LOCATION: Chicago, IL

Our Filipina client came to the U.S. on a B-2 visitor’s visa in May 1993 and overstayed her status

Prior to retaining our firm, her sister filed an I-130 petition for her back in 1990. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The wait is more than 20 years!

The I-130 petition was approved by the INS in 1990.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 20 years in order to even apply for her green card. Unfortunately, her sister (I-130 Petitioner) passed away before she was eligible to apply for her green card. 

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the 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 does 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’s US citizen brother-in-law (husband of deceased petitioner) was willing to become a substitute sponsor and she met the physical presence requirement. On October 19, 2010, our office filed an I-485 adjustment of status application under the 245(i) category. We of course cited PL 111-83. On February 3, 2011, our client appeared at the Chicago CIS office for her adjustment interview.  Attorney JP Sarmiento accompanied her at the interview. Attorney Sarmiento also explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore.

However, the F4 priority date for the Philippines backlogged. Our client had to wait until the priority date became current. In October 2013, her priority date became current. Eventually, our client’s adjustment application was approved by the USCIS on October 7. 2013.  After a long wait, our client is finally a green card holder.

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CASE: Termination of Removal Proceedings with an Approved I-130 Petition
CLIENT: Kenyan
LOCATION: Chicago, IL (EOIR) / Durham, NC (USCIS)

Our client is from Kenya who came to the U.S. on an F-1 Student Visa in August 2007. While in the United States, she failed to maintain her F-1 status due to family’s issues in Kenya. Because of her overstay, she was placed in removal proceedings in Chicago, IL.

Our client married her Lawful Permanent Resident (LPR) husband in September 2010 in Wisconsin. Soon after, they moved to the Raleigh, NC area.

Her husband filed an I-130 petition for her after they got married. Eventually, our client’s I-130 petition was approved in February 2012 after their I-130 interview at the USCIS Durham Field Office.  Glen Yu from our office accompanied them at the interview.

Her individual hearing was scheduled on August 13, 2013 at the Chicago Immigration Court as well.

In June 2013, our office filed a written request to administratively close our client’s removal proceedings to the DHS Chicago Office.  In a written brief, our office fully explained that our client’s case is not DHS’s priority for deportation and explained that our client has an I-130 approval, no criminal records, has paid taxes, and has family ties in the United States. Our office attached an I-485 application along with the brief, and its supporting documents as well.

After review, the DHS counsel in Chicago contacted our office and was willing to terminate our client’s removal proceedings. The DHS counsel filed a Joint Motion to Terminate on August 2, 2013 to the Chicago Immigration Court. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on August 12, 2013, a day before the Individual Hearing Now, she can file her I-485 adjustment of status application to USCIS to obtain her green card when her husband naturalizes early next year.

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CASE: Motion to Remand based on Pending I-130 Petition
CLIENT: Romanian
LOCATION: Chicago, IL

Our client came to the United States with a valid J-1 visa from Romania in July 2002. He remained in the United States for a time longer than permitted.

Later on, he was placed in removal proceedings due to his overstay and a Notice to Appear was issued. His cancellation of removal application was denied by the Immigration Judge in April 2011, but an appeal was timely filed.  The BIA appeal was denied March 15, 2013.

While the BIA appeal was pending, our client married his U.S. citizen wife in September 2012. His wife filed an I-130 petition for our client on November 5, 2012.  He contacted our office for legal assistance for a Motion to Remand.  We explained to him the Motion to Remand procedure and he retained our office on April 1, 2013.

On April 5, 2013, we prepared and filed the Motion to Remand for Adjustment of Status Based on a Pending I-130 on behalf our client.  We had to file this Motion within 90 days of the Board decision to make it timely. You typically want the I-130 to be approved prior to filing the Motion to Remand, but by submitting the actual I-130 application itself and its supporting documents attached to the Motion, even though it is still pending, you can show that it is approvable.

In Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992), the BIA found that a motion to remand must conform to the same standards as a motion to reopen, where the respondent presents new evidence which would likely change the result of the case. In a Motion to Reopen before the BIA, the Applicant must show that the evidence is material, unavailable at time of original hearing, and could not have been discovered or presented at the original hearing. 8 C.F.R. § 1003.2(c)(1). In this case, adjustment of status relief was not available for our client at his previous hearing since he was not married to his U.S. Citizen wife.

Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on April 5, 2013. We argued that our client will be eligible for adjustment of status once the I-130 is approved since he had a legal entry to the U.S., has no criminal records, and has no other grounds of inadmissibility.

We also attached a lot of bona fide marital evidence between our client and his U.S. citizen wife to demonstrate that the I-130 petition was approvable. Eventually, on May 30, 2013, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.

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CASE: Marriage-Based Petition and Adjustment of Status
CLIENT: Filipina
LOCATION: Chicago, IL

Our client came to the United States in November 2010 with an H-1B work visa from the Philippines.

She married a U.S. Citizen in June 2012 and retained our office on November 22, 2012 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on December 5, 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 through conference calls.

On March 13, 2013, our client was interviewed at the Chicago, IL USCIS office.  Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. On the same day, her green card application was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Kenyan
LOCATION: St. Louis, MO

Our client came to the United States in August 1999 with an F-1 Student visa from Kenya. He overstayed past his visa and remained in the US for the next ten plus years.

He eventually met and later married a U.S. Citizen in January 2010, someone he met at work. They lived together for a while but due to employment reasons, he had to move to Kansas City for a while. That was the main issue for his case when he consulted. He was afraid that their living arrangements would hurt their case.

We understood that living arrangements is a factor that CIS delves into, however, legitimate reasons backed up by other bona fide evidence could overcome this. We thought, considering they maintained joint finances, had occasional visits to each other considering the 4 hour drive, and based on the fact that he had to move due to work, that their case was plausible.

He retained our firm and we prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on February 20, 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 through conference calls. We explained that they have to emphasize the reason why they had to live separately, which is because of work. We also explained and asked them to bring documentation of the fact that despite them living separately, that they visited each other on certain occasions. We asked them to remember specific details of each visit, and we were certain the officer would ask about this. More importantly, we asked them to bring concrete evidence of their visits, and commingling of finances despite living separately due to work.

On June 19, 2012, our client was interviewed at the St. Louis, MO USCIS office.  As expected, it was not approved immediately and the officer issued a request for evidence. Our firm submitted a response to the request for evidence and another interview was scheduled on November 14, 2012 in St. Louis. Attorney JP Sarmiento from our office accompanied them at this interview. The focus was not when and how they met this time, but solely on the living arrangements, and occasional visits of our client.

On March 4, 2013, the I-130 petition and I-485 adjustment of status application were both approved.

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CASE: H-1B Extension

PETITIONER: Nursing Home Facility

BENEFICIARY: MDS Coordinator, Filipina

LOCATION: Illinois

Our client is an MDS Coordinator from the Philippines who currently works at a Nursing Care Facility in the greater Chicago area on a valid H-1B visa. Her H-1B status was about to expire before she retained our office in early June of 2012.  Our client sought legal assistance from us for her H-1B 3-year extension.

Once we were retained, our office prepared her H-1B extension application.  The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on July 18, 2012 to the USCIS California Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 11, 2013. The H-1B is good from October 1, 2012 to September 30, 2015.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Chicago, IL

Our client came to the United States in January 1994 with an H-1B visa from the Philippines. Although her authorized stay expired on December 29, 1994, she remained in the United States. She married a U.S. Citizen in January 2011 and retained our office a few months later.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on April 17, 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 through conference call. On July 11, 2012, our client was interviewed at the Chicago, IL USCIS.  We accompanied our client at her interview as well.  On the same day, her green card application was approved.

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