CASE: Marriage-Based Adjustment of Status

NATIONALITY: Indian                                                                                                        

LOCATION: Cleveland, OH

Our client is from India who came to the U.S. on a F-1 Student’s Visa in August 2011.  In May 2016, our client married his current U.S. citizen wife.  He retained our office on May 20, 2016 for his green card application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on July 5, 2016.  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 at our office as well. On October 14, 2016, our client was interviewed at Cleveland Ohio USCIS office. Attorney Sung Hee (Glen) Yu accompanied our clients as well. Eventually, on October 17, 2016, his green card application was approved.

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CASE: EB-2 / I-140

EMPLOYER: IT Consulting Company

BENEFICIARY: Indian Computer Systems Analyst

LOCATION: Jacksonville, FL

Our client is a computer systems analyst from India, who is currently working at an IT consulting company in Jacksonville, Florida who was willing to do an immigration petition for him for a second-preference petition (I-140 EB-2).  Our client has a Master of Science degree in Computer Information Systems and has worked for this company under H-1B status.  After talking to our client, our firm concluded that his employer can petition him as a Computer Systems Analyst II. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for the EB-2 classification for his I-140 petition.

Prior to filing PERM labor certification, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad. Once retained, our office filed the prevailing wage request in April 2015.  On October 16, 2015, we filed the PERM labor certification application.  Eventually, on March 24, 2016, less than 6 months from filing, the PERM labor certification was approved – an EB2 position for the Indian Computer Systems Analyst.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on August 2, 2016 via regular processing service. Eventually, on October 6, 2016, the I-140 EB-2 Petition for our Indian client was approved without any Request for Evidence (RFE). Our client can file his I-485 adjustment of status application once his priority date becomes current.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Indian

LOCATION: Cleveland, OH

Our client came to the United States from India on a B-2 visitor’s visa in December 2015. He married a U.S. Citizen in June 2015 in India and came to the United States with his wife to visit his in-laws. Later, they changed their plan and decided to stay in the United States. They contacted and retained our office for his green card application. They were concerned about possible immigrant intent issues due to the entry on a B-2 visa despite getting married in India prior to this entry. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 9, 2016.  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 at our office.  On August 15, 2016, our client was interviewed at Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our clients as well. Eventually, after the interview, his green card application was approved.

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CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Indian

LOCATION:  Cleveland, OH

Our client contacted us in February 2016 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from India and obtained his green card in May 2011 through his previous marriage to a US Citizen. He retained our office on February 10, 2016.

The N-400 application was filed on March 22, 2016 with all supporting documents. Prior to his citizenship interview, our office prepared him in our office. On June 13, 2016, our client appeared at the Cleveland, OH USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved on June 17, 2016. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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CASE: PERM Labor Certification    
EMPLOYER: Consulting Company in New Jersey
BENEFICIARY: Indian Bioinformaticist
LOCATION: New Jersey

Our client is from India, who is currently working in the United States as a post doctorate researcher under H-1B status. He has a prospective employer who was willing to do an immigration petition for him, second-preference. Our client has a Master’s degree in Science (Plant Genetics). After talking to our client, our firm concluded that his employer can petition her as a Bioinformaticist. Based on our client’s educational, professional and working background, our office determined that he is clearly eligible for EB-2 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On August 7, 2015, the prevailing wage request was filed.  After we obtained foreign degree evaluation report and Prevailing Wage determination, our office filed the job order on October 19, 2015.  On February 3, 2016, we filed PERM.  Eventually, on June 3, 2016, the PERM Labor Certification was approved – an EB2 position for the Indian beneficiary. Now our client can file the I-140 petition.

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

NATIONALITY: Indian

LOCATION: Chicago, IL

Our client was a citizen of India who came to the U.S. on a J-2 Visa in December 1992.  She came with her father who came on a J-1 Visa as an alien physician 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’s father’s J-1 program was completed, the family immigrated to Canada. Our client came to the United States on an F-1 student visa in 2010 to pursue her doctoral program. In 2014, she married her U.S. citizen husband. Her husband will file an I-130 petition for her and she will file her adjustment of status application. However, because of her two-year foreign residency requirement, our client cannot adjust her status without the fulfilling the requirement or getting a 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 December 2009.
Our firm was retained to do her J-2 waiver, and on December 21, 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 January 19, 2016 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On April 25, 2016, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-751

APPLICANT: Indian

LOCATION: New Jersey

Our client contacted our office in May of 2015 regarding his I-751 application.

He is from India and he married a U.S. citizen in September 2012. Through his marriage, he obtained a 2-year conditional green card in August of 2013.  His conditional residency was terminated in August 2015.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office on May 4, 2015 and our office prepared an I-751 application for our client with bona fide marriage evidence.

On June 3, 2015, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, joint bank statements, joint tax returns, utility bills, joint lease, and photos of our client and his wife to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on April 20, 2016, the USCIS approved our client’s I-751 application and our client received his 10-year green card.

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CASE: PERM Labor Certification

EMPLOYER: IT Consulting Company

BENEFICIARY: Indian Computer Systems Analyst

LOCATION: Jacksonville, FL

Our client is a computer systems analyst from India, who is currently working at an IT consulting company in Jacksonville, Florida which was willing to do an immigration petition him for a second-preference position (I-140 EB-2).  Our client has a Master of Science degree in Computer Information Systems and has worked for this company under H-1B status.  After talking to our client, our firm concluded that his employer can petition him as a Computer Systems Analyst II. Based on our client’s education and professional background, our office determined that he is clearly eligible for the EB-2 classification for his I-140 petition.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM Labor Certification application could be filed at least 60 days from the job posting date or 30 days from the last ad. Once retained, our office filed the prevailing wage request in April 2015.  On October 16, 2015, we filed the PERM labor certification application.  Eventually, on March 24, 2016, less than 6 months from filing, the PERM labor certification was approved – an EB2 position for the Indian Computer Systems Analyst. Now our client can file the I-140 Petition.

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CASE: Adjustment of Status (I-485) / EB-11 (Alien of extraordinary ability)

CLIENT: Indian Plant Biotechnologist

LOCATION: Raleigh, NC

Our client contacted us in March 2014 about the possibility of getting an immigrant visa through the EB-11 category. He is an internationally well-known plant biotechnologist and is currently working as a researcher in Raleigh, NC.  Our client has written numerous internationally recognized scholarly articles in his field of endeavor. Upon review of his credentials and qualifications, our office determined that he was qualified for the EB-11 category, an alien of extraordinary ability.

According to the INA Section 203(b) states, in pertinent part, that:

• Priority workers – visas shall first be made available… to qualified immigrants who are aliens described in any of the following sub-paragraphs (A) through (C):

• Aliens with extraordinary – an alien is described in this sub-paragraph if-

• The alien has extraordinary ability in the sciences, arts, education, business, or athletes which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
• The alien seeks to enter the United States to continue work in the area of extraordinary ability, and
• The alien’s entry into the United States will substantially benefit prospectively the United States.

USCIS has consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of extraordinary ability.  See H.R. 723 101^st Cong.2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991).  The term “extraordinary ability” refers only to those individuals in that small percentage who have risen to the very top of the field of endeavor. Id. And 8 C.F.R. § 204.5(h)(2).

The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim and the recognition of his or her achievements in the field.  Such acclaim and achievements must be established either through evidence of a one-time achievement (that is, a major international recognized award) or through meeting at least three of the following ten categories of evidence:

• Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

• Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

• Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

• Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

• Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

• Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

• Evidence of the display of the alien’s work in the field at an artistic exhibitions or showcases;

• Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

• Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

• Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After reviewing our client’s credentials and qualifications, we determined that our client meets 3 of the 10 categories. Our client has made an original scientific contribution to the plant genetic engineering and plant biology; has authorship of scholarly articles in his professional field of endeavor; and has participated as a judge of the work of others in the same or an allied field of specialization for which classification is sought.

Our office prepared a 24-page brief for our client’s EB-11 filing. Our client also obtained 11 letters of recommendation from internationally well-known scholars in his field of endeavor. Our office also included his record of publications, citations, conference proceedings and invited talks, journal reviewer invitation evidence and other materials to show that he is an alien of extraordinary ability in plant engineering research. His EB-11 I-140 application contained 52 exhibits.

Our office filed his I-140 (EB-11) petition to the USCIS Texas Service Center via regular processing on July 30, 2014.

However, on April 13, 2015, the USCIS issued a Request for Evidence (RFE). In the RFE, the USCIS claimed that our client only met 2 of the 10 requisite statutory categories of EB-11. In the response brief, our office demonstrated that our client indeed meets 3 of the 10 categories and provided more letters of recommendations, citation record, and his recent research record.  Our office filed the response to RFE on June 18, 2015.  Eventually, on September 15, 2015, the USCIS Texas Service Center approved his I-140 self-petition.

Once his I-140 was approved, our client retained our office again for his family and his I-485 adjustment of status applications. Our office filed an I-485 adjustment of status applications for our client and his family members on October 7, 2015. Everything went smoothly and the receipt notices and fingerprint appointment came on time. Eventually, on January 20, 2016, the USCIS Texas Service Center approved our client’s and his family members’ adjustment of status applications. Now, he finally is a green card holder.

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CASE: Family Based Adjustment of Status (F2B) / 245(i)

CLIENT: Indian

LOCATION: Cleveland, OH

Our client came to the U.S. from India and applied for his permanent residency three times in the past. His past efforts were unsuccessful and applications were denied due to numerous and complex issues (aging out, unlawful presence, priority dates). His U.S. citizen uncle filed an I-130 petition for his father in February 1989. With this I-130 petition, his parents came to the United States and became green card holders. Although our client was a derivative beneficiary of this I-130 petition, at the time of his adjustment of status, our client’s application was denied due to the “aging out” issue. After the first denial, our client’s father filed an I-130 F2B petition for our client and our client’s employer also filed an EB-2 I-140 petition as well. Nevertheless, our client’s adjustment of status application was denied due to the “unlawful presence” that he incurred unbeknownst to him (he changed his status in the U.S. from B-2 to H-1B, but there was a gap).

Our client contacted us around July of 2015 for consultation and sought legal assistance for his adjustment of status. After consultation, we determined that he is eligible for adjustment of status under INA 245(i) since his uncle’s I-130 petition grand-fathered our client’s case. Our client retained us on July 29, 2015.

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.

As mentioned above, our client, despite “aging-out” and despite not having physical presence in December 2000, is eligible to adjust status based on the approved I-130 F2b Petition filed by his father because he is INA 245(i) eligible as the “beneficiary” of an I-130 Petition filed by his uncle to his father in February 1989. We also argued that our client was specifically listed as a derivative beneficiary of this I-130.  Therefore, he is grandfathered under 245(i) and even though he “aged-out”, he remains a beneficiary for purposes of 245(i). Moreover, since the I-130 Petition was filed in February, 1989, which is before January 14, 1998, he does not need to prove physical presence in December 2000.

On August 6, 2015, our office filed his I-485 adjustment of status application under the 245(i) category for our client.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  Prior to the interview, we thoroughly prepared our client as well. On January 7, 2016, our client was interviewed at the Cleveland, Ohio USCIS office.  Attorney JP Sarmiento from our office accompanied our client. Eventually, on January 13, 2016, our client’s I-485 adjustment of status application was approved.

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