CASE: Joint Motion to Reopen and Termination of Removal Proceedings with an Approved I-130 Petition

CLIENT: Pakistani
LOCATION: Indiana; San Francisco (EOIR)

Our client is from Pakistan who came to the U.S. on a B-2 visitor’s visa in May 2010. He remained in the United States even after his authorized stay expired.  Later, he filed for asylum and withholding of removal. However, he could not attend his hearing due to an emergency medical issue. He even notified the immigration court but his submission was procedurally incorrect (this was used as an exhibit in our motion). Subsequently, he received an order of removal in absentia. A few months later, his jewelry store got robbed too, leaving them with no money at that time to afford a lawyer for a proper Motion to Reopen.

Our client remained in the United States with the final order of removal. He married his current U.S. citizen wife. His wife filed an I-130 petition in April 2014 with help from of our office, which was subsequently approved by the USCIS in November 2014.

Our client and his wife were wondering whether he has any viable option for his immigration situation.  After careful review, our office determined that we can file a Request to Join in a Motion to Reopen based on the I-130 approval and Bo Cooper’s May 17, 2001 Memorandum.

Once retained, our office filed a Request to Join in a Motion to Reopen and Terminate to the San Francisco DHS office on February 13, 2015. Our office prepared an extensive brief along with multiple supporting documents to request a favorable exercise of DHS’s discretion on this case. We argued that DHS should consider the following factors as set forth in Bo Cooper’s May 17, 2001 Memorandum: (1) whether adjustment of status was available at the prior hearing; (2) whether the alien is statutorily eligible for adjustment of status; and (3) whether the alien merits a favorable exercise of discretion. Bo Cooper, Motions to Reopen for Consideration of Adjustment of Status (May 17, 2001). In considering these factors, as delineated in William J. Howard’s October 24, 2005, Memorandum, “Where a motion to reopen for adjustment of status… is filed on behalf of an alien with substantial equities, no serious criminal or immigration violations, and who is legally eligible to be granted relief except that the motion is beyond the 90-day limitation contained in 8 C.F.R. § 1003.23, strongly consider exercising prosecutorial discretion and join in this motion to reopen to permit the alien to pursue such relief to the immigration court.” William J. Howard, Prosecutorial Discretion (October 24, 2005).

Our office argued that if our client’s case is reopened, he will be prima facie eligible to adjust his status. Our client has been living in the United States since 2010, has no criminal record, and has an approved I-130 petition based on his marriage to his U.S citizen spouse.

As a result, the DHS office agreed to join in our Motion to Reopen and Terminate. The DHS filed the joint motion to the San Francisco Immigration Court, and the San Francisco Immigration Court re-opened and terminated our client’s case on March 3, 2015. Now he can file for adjustment of status and work permit with the CIS.

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CASE: Marriage-Based Adjustment of Status.
NATIONALITY: Ukrainian
LOCATION: Indianapolis, IN

Our client came to the United States with J-2 visa when he was a child. Later, he changed his J-2 visa to F-1 when he started his undergraduate program. As explained in a previous success story, our office worked on our client’s J-2 visa waiver through the Interested Government Agency (IGA) route.  Eventually, the CIS issued an I-612 approval notice for our client’s waiver of the two-year foreign residency requirement in 2012. Our office also helped him in  his H-1B visa petition in 2012.

In July 2014, our client married his U.S. citizen wife.  He retained us again and sought legal assistance for his I-485 adjustment of status application. Our firm prepared and filed the I-130 Petition and the I-485 adjustment of status application on October 6, 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 December 29, 2014, our client was interviewed at the Indianapolis USCIS office. On the same day, his green card application was approved.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Mental Health Care Service Provider

BENEFICIARY: Ghanaian Psychiatric Mental Health Nurse Practitioner

LOCATION: Indiana

Our client is a certified nurse practitioner. Her prospective employer-sponsor was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a certified nurse practitioner, she is eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Nurse Practitioner is included in Schedule A.

Our client has both a Bachelor’s and Master’s degrees in nursing. She has a Registered Nurse license and has an ANCC Psychiatric-Mental Health Nurse Practitioner Certificate.  Our office was retained on June 17, 2014 and we started the Prevailing Wage Determination filing and other related matters.

After  the prevailing wage was determined, we filed the I-140 application on October 24, 2014 via premium processing. We included the job offer letter, the notice of filing, her pay stubs, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.

However, on November 8, 2014, the USCIS Nebraska Service Center issued a Request for Evidence (RFE) and requested our client’s CGFNS certificate. Our office prepared the response to RFE and filed it along with CGFNS certificate on November 20, 2014 to the USCIS. On November 28, 2014, the USCIS Nebraska Service Center approved her EB-2 I-140 petition. When we filed her I-140 petition, our client simultaneously filed her I-485 adjustment of status application as well. With the approved I-140 petition, her adjustment of status application will be approved soon.

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CASE: Marriage-Based Green Card

CLIENT: Korean

LOCATION: Indianapolis, Indiana

Our client came to the United States in April 2010 with an F-1 Student Visa from South Korea to do her Bachelor’s program in the United States. She finished her Bachelor’s program in August 2013 and applied for OPT.

She married a U.S. Citizen in September 2013.  Our client retained our office on October 16, 2013 for her I-130 petition and I-485 adjustment of status application. Our firm prepared and filed the I-130 petition and I-485 adjustment of status application, together with all necessary supporting documents, on November 1, 2013. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There were no requests for evidence.

Prior to the interview, we thoroughly prepared our clients through conference calls. On January 21, 2014, our client was interviewed at the Indianapolis, Indiana USCIS office. Attorney Sung Hee (Glen) Yu accompanied them as well.  On the same day, her green card application was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Ukraine
LOCATION: Indianapolis, IN

Our client is a citizen of Ukraine who came to the U.S. on a J-2 Visa.  He came with his father who was on a J-1 Visa to pursue his Ph.D. 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 H, L, and O.

After our client came to the United States, he completed his high-school as a J-2 visa holder and later went to college.  Our client initially started his bachelor’s program in a J-2 status, but in January 2011, he changed his status from J-2 to an F-1 student visa through the U.S. Embassy in Canada.  He had to change his status from J-2 to F-1 because he turned 21 in January 2011. After graduation, he applied for OPT (Optional Practical Training), later got a job offer, and started to work for this company in Indianapolis.

Our client contacted our office in December 2011, and sought legal advice regarding the J-2 waiver process.  His OPT will be expired in July 2012, and his current employer was willing to sponsor his H-1B visa.  However, without a waiver of the 2-year foreign residency requirement, our client would not be able to change his status to H-1B.  Our office explained to him that we can do the J-2 waiver application through the Interested Government Agency (IGA) route.

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 this 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.

Our firm was retained to do his J-2 waiver on December 20, 2011. On January 9, 2012, 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 is not a dependent of the J-1 visa holder anymore.  Eventually, on January 27, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On February 29, 2012, the CIS granted the J-2 waiver.

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