CASE: Termination of Removal Proceedings with an Approved I-130 Petition / I-485 under the INA 245(i) provision
CLIENT: St. Lucian
LOCATION: New York, NY

Our client is from St. Lucia who came to the U.S. on a B-2 visitors visa in December 2003. Since that time, she never left the United States.  Because of her overstay, removal proceedings was initiated against her in September 2010.

In May 1986, our client’s aunt filed an I-130 (fourth preference) petition for her father.  This I-130 petition was approved in August 1986.  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 February 1998.  This Petition was approved in November of that year.

Our client contacted us around December of 2010 for consultation and sought legal assistance for her removal proceedings. After the consultation, we determined that she is eligible for adjustment of status under INA 245(i). Our client retained us on January 13, 2011.

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.

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

Once retained, our office promptly filed a Motion to Change Venue from Buffalo to New York.  This was granted and on April 1, 2011, our office filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents. The DHS counsel in New York agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to Terminate without prejudice on August 17, 2011.

Once her case was terminated, the USCIS New York scheduled an I-485 interview for our client. Prior to the interview, we thoroughly prepared our client through conference call. On May 1, 2012, our client was interviewed at the New York City USCIS office. Attorney JP Sarmiento accompanied her 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 May 30, 2012, our client’s I-485 application was approved.  She finally became a green card holder.

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CASE: EB-2 I-140 / I-485
PETITIONER: International Trading Company
BENEFICIARY: Vietnamese
LOCATION: San Diego, CA

Our Vietnamese client from San Diego contacted our office in December 2011. She had an approved PERM Labor Certification and she would like to retain us for her I-140/I-485 application. Her current employer is located in San Diego and they wish to file an I-140 petition for her as a market research analyst. Our client had questions regarding possible issues they may face, the employer’s “ability to pay” issue in particular.

Once retained, our office prepared her I-140 petition and I-485 adjustment of status application. One of the main requirements for the I-140 is that the petitioning company must show that it has the ability to pay the proffered wage for the beneficiary’s position. Despite the negative taxable income, we provided all schedules of Petitioner’s tax return and argued that their net current assets were over and above the proffered wage. We provided the calculation on the cover letter, cited a CIS internal memo on the “ability to pay” issue, and attached the tax return schedule that showed the net current assets. We also prepared our client’s I-485 application and explained that the priority date for EB-2 Vietnam (“Other Countries”) is current.

Our office simultaneously filed the I-140 / I-485 applications on January 26, 2012 and on April 19, 2012, the I-140 petition for our client was approved with no Requests for Evidence.  Once the I-140 petition was approved, her I-485 adjustment of status application was subsequently approved by the USCIS on May 24, 2012.  While we were waiting for I-485 approval, our client informed us that he needed to travel abroad.  Thus, we filed an I-131 advance parole application on February 10, 2012.  The I-131 advance parole document was also approved by the USCIS Nebraska Service Center on May 24, 2012 as well.

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CASE: H-1B Visa Petition
PETITIONER:  Financial Investment Management Company
BENEFICIARY: Associate Financial Analyst

Our client is a financial investment management company located in Indianapolis, IN.  They contacted our office in late March to seek legal assistance from our office for their foreign employee.  Their foreign employee was a former client of ours, and he got a J-2 waiver approval through our representation before. The beneficiary obtained his Bachelor’s degree in Business/Finance in the United States. The proffered position for the Beneficiary is an associate financial analyst.  We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelors Degree in Business / Finance or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 1, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on May 12, 2012, only 11 days from the date of filing. He can now work for his employer for three years on an H-1B status starting October 1, 2012. He will continue to work there on an OPT in the meantime.

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CASE: Master Calendar / Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Eloy Immigration Court, AZ

Our office was contacted in early September regarding a Chinese individual detained in Eloy, Arizona. This person tried to enter the United States without valid documents and was incarcerated by immigration officers.

Prior to retention, the Immigration and Customs Enforcement already set a very high bond amount.  Our client wished to have that reduced so we filed a motion for bond redetermination with the Eloy Immigration Court in Arizona.  Our office communicated with her and her U.S. resident relative in Connecticut, and gathered as much information regarding her relief, equities, criminal record, family ties, and financial ability to post bond.  We also gathered supporting documents from those relatives, from proof of their status and residence, to bank statements and tax returns.

On October 3, 2011, we represented our client for her Eloy Arizona Immigration Court master calendar hearing and bond re-determination hearing simultaneously.  During the Master Calendar hearing, we did pleadings for our client, and requested asylum relief.  During the bond re-determination hearing, we explained to the Court that our client already passed her credible fear interview, was not a flight risk, had established her residence upon release, had established her financial ability to post bond, and that she had ample family ties in the United States who submitted proof of their residence and immigration status.  Moreover, our office explained that her lack of criminal record, designated address with contact information from his relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  We also emphasized that our client is a young female individual, and explained briefly the nature of her asylum claim. At the end of the hearing, the Immigration Judge took our arguments into account and reduced the bond to only one-third of the  amount the DHS originally set it for.

Our client has been released and is in the process of preparing her asylum application.

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CASE: Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Florence Immigration Court, AZ

Our office was contacted in late August regarding a Chinese individual detained in Florence, Arizona. This Chinese client tried to enter the United States without valid documents and was incarcerated by immigration officers.

Prior to retention, the Immigration and Customs Enforcement already set a very high bond amount.  Our client wished to have that reduced so we filed a motion for bond redetermination with the Florence, Arizona Immigration Court.  Our office communicated with him and his U.S. resident relative in New York, and gathered as much information regarding his relief, equities, criminal record, family ties, and financial ability to post bond.  We also gathered supporting documents from those relatives, from proof of their status and residence, to bank statements and tax returns.

On September 15, 2011, we represented our client for his first Master Calendar hearing.  Our client did pleadings, requested asylum relief, and requested a bond re-determination hearing.  The Immigration Judge set a bond re-determination hearing on September 27, 2011.

On September 27, 2011, we represented our client for his Florence Arizona Immigration Court bond re-determination hearing.  During the hearing, we contended that our client was eligible for asylum relief, passed his credible fear interview, was not a flight risk, had established his residence upon release, had established his financial ability to post bond, and that he had ample family ties in the United States who submitted proof of their residence and immigration status.  Our office emphasized that his lack of criminal record, designated address with contact information from his relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  The Judge took our arguments into account and reduced the bond amount by a substantial amount.

Our client has been released and is in the process of preparing his asylum application.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Chinese
LOCATION: Philadelphia, PA

Our client is a citizen of China who came to the U.S. on a J-2 Visa in 1996.  She came with her husband who held a J-1 Visa as a doctor.  Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out well and she got divorced from her ex-husband.  She lost her J-2 status in the United States and she was still subject to the two-year foreign residency requirement.  She could not change her status to other non-immigrant visas because of the requirement.

In August of this year, our client’s U.S. citizen son contacted our office.  He wanted us to help his mother obtain a waiver so that he can petition our client for a green card. Our firm was retained to do her J-2 waiver on August 12, 2011. On August 17, 2011 the J-2 Waiver 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 was divorced from the J-1 visa holder.

On August 24, 2011, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. The USCIS issued the I-612 waiver approval notice on September 16, 2011, less than a month from the date we filed the waiver.

Finally, after 15 years in the United States, our client can apply for her green card. Our client’s son can file an I-130 petition for our client and she can file an adjustment of status application (I-485) as well.

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CASE: Bond Redetermination Hearing
APPLICANT: Chinese
LOCATION: Florence, AZ

A family relative of a Chinese individual detained in Florence, Arizona contacted our office at the end of August.  This Chinese client tried to enter the United States without valid documents and was incarcerated by immigration officers. He was given a credible fear interview which he eventually passed.

Prior to retention, the Immigration and Customs Enforcement already set a very high bond amount. Our client wished to have that reduced so we filed a motion for bond redetermination with the Florence, Arizona Immigration Court.  Despite being in jail in Florence, we communicated with him and gathered as much information regarding his relief, equities, criminal record, family ties, and financial ability to post bond. We contacted our client’s several relatives and friends in Atlanta, Georgia. We also gathered supporting documents from those relatives, from proof of their status and residence, to bank statements and tax returns.

On September 1, 2011, we represented our client for his Florence Arizona Immigration Court bond hearing. At oral arguments, we explained that our client was eligible for asylum relief, passed his credible fear interview, was not a flight risk, had established his residence upon release, had established his financial ability to post bond, and that he had ample family ties in the United States who submitted proof of their residence and immigration status.  Our office contended that his lack of criminal record, designated address with contact information from his relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that the bond should be reduced.  The Judge took our arguments and evidence into consideration and reduced the bond amount in half. Our client’s relative has thereafter posted bond and he is now out of detention to pursue his asylum claim.

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CASE: B-2 Visa Extension / I-539
NATIONALITY: Korean
LOCATION: Cleveland, Ohio

Our client is a Korean national who came to the U.S. on a B-2 visitor visa. She wanted to visit her daughter who is studying in the United States. She consulted with our firm a few weeks before the expiration of her B-2 status. She wanted to extend her visit for six months to visit her sister and be with her daughter for a longer time.  We explained that the CIS has been more stringent on visitor status extensions.

Upon retention, we went into detail with her reasons for requesting extension. Her daughter was entering her senior year in high school, and our client wanted to be there as her daughter chooses a college and prepares for applications. We made sure all addresses, contact information, and dates on her statements were complete and accurate. We made sure all her plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS.  Our office submitted letters from family members in the United States, an employment verification letter for her husband in South Korea, as well as financial documents from Korea. We filed the I-539 Extension Application on July 26, 2011 and her B-2 status extension was approved on August 11, 2011 with no Requests for Evidence.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Albanian
LOCATION: Chicago / Washington DC
ISSUES: J-1 2-Year Foreign Residency Requirement

Our client came to the United States in February 2001 with a J-1 visa. He was only 16 years old at that time. He was on an exchange visitor program and lived with his host parents in New Hampshire. As he went to college, he was able to switch to an F-1 visa. He moved to Chicago and later on met her future wife while in college. They got married in December 2009.

He had spoken to several lawyers to pursue adjustment of status, but was turned back to due to the tough policy of Albania when it came to no objection statements. Upon consulting with us, we told him we can try obtaining the no objection statement, and in case that does not work, go for the interested government agency route. He retained our firm on January 2010.

We initially filed the waiver through the no objection statement. We were in contact with the Albanian Embassy in DC. The officer claimed that they’re policy in the Embassy was to not issue no objection statements, and that the only way was through the Ministry of Foreign Affairs in Albania. The officer stated that they have not issued no objection statements since 2006.

We thus tried the Ministry of Foreign Affairs in Albania. After several months waiting for their decision, they too stated that they do not issue no objection statements.

And so we filed another waiver, requesting the Department of State to be an interested government agency. We explained in detail our client’s history, the fact that he came here when he was only 16, and that he was able to change status to F-1 in April 2002. We pointed out that the change of status was approved despite his submission of his I-94 and visa page copy which both indicated that he was subject to the 2-year foreign residency requirement. We explained that it would be unfair to have the couple be separated for something that was not his fault. If he did not waive his 2-year requirement and the change of status was still approved, he should not be penalized later on now that he is married to his spouse.

On February 2011, the Department of State issued a finding that the applicant was not subject to the two-year foreign residency requirement (despite the IAP-66 and Visa indicating he was) and that it was not necessary to process a waiver for his case anymore.

After filing the applications and accompanying our client to their interview in Chicago for the I-130 (Petition) and I-485 (Green Card Application), the CIS finally approved his green card on August 13, 2011. He had to wait a few more months because they moved to Washington D.C., but finally they got it.

10 years since our client entered the U.S. on a J-1 Visa with a 2-year foreign residency requirement as a 16-year old exchange student, after having to go through the tough policy by the Albanian Embassy regarding their non-issuance of no objection statements, our client finally has his green card. He had been waiting to go back home to visit his family. He had been telling us that his mom was sick and he wanted to visit her. But prior to the green card issuance, even if an advance parole travel document, we could not let him leave as he might be subject to a bar and not be able to come back. After 10 years of not being able to visit his family, he finally is able to come back.

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CASE: Change of Status from J-1 to B-2 Visitor
NATIONALITY: Filipino (Philippines)
LOCATION: Ohio

Our client is a Filipino national who came to the U.S. on a J-1 Visa. She consulted with our firm a few weeks before the expiration of her J-1 status. She wanted to continue to stay in the United States for a few more months to visit her relatives and see what her options were. We explained to her that CIS has been more stringent on Visitor status applications. We also explained that a Change of Status from a J-1 is even harder than an Visitor extension application. Upon retention, we asked her to prepare a statement on her plans after the expiration of her J-1 program. We asked her to provide as much detail as possible as we reviewed her drafts several times. We made sure all addresses, contact information, and dates on her statements were complete and accurate. We made sure all her plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence by the CIS. Letters from family and friends all over the country were obtained, as well as financial and employment documents from the Philippines. We filed the Application and in a few weeks, her change of status to B-2 visitor was approved with no Requests for Evidence.

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