CASE:  I-130
CLIENT: Mexican
LOCATION: Cleveland, OH

Our client is from Mexico who came to the U.S. without inspection and admission in 1988 with her parents. Since that time, she never left the United States.

In November 1991, our client’s father filed an I-130 (F2A) petition for her mother.  This I-130 petition was approved in March 1992.  At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. However, our client’s parents divorced in 2007.  Furthermore, our client was placed in removal proceeding in December 2009.

Around November 2010, our client contacted our office to represent her at removal proceedings. After we reviewed her previous immigration documents, we determined that she might be eligible to adjust her status under INA 245(i) and the Child Status Protection Act (CSPA).  She retained our office on December 1, 2010 and our attorney represented her at her master calendar hearing.  Cancellation of Removal relief was requested and we preserved possible adjustment of status relief through INA 245(i) and CSPA.

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.

Section 3 of CSPA, codified in section 203(h) of the INA, provides that “If the age of the alien is determined to be 21 years of age or older… the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Our client was the derivative beneficiary of her father’s petition for her mother in November, 1991.  Our client is now older than 21. According to Section 3 of CSPA, a new I-130 petition by our client’s father on behalf of our client should automatically retain the priority date of the original I-130 petition, which was November 1991, in which our client was a derivative beneficiary. If this new I-130 is approved with a November 1991 priority date, our client would be eligible to adjust under 245(i) since the priority date is current and the petition was filed before January 1998.  So it was two petitions that saved her case, one for 245i, and the other for adjustment eligibility, retaining the old priority date under CSPA.

On January 11, 2012, our office filed the I-130 Petition with a cover brief (citing the CSPA provision) and other supporting documents.  Her I-130 was approved by the USCIS California Service Center on June 14, 2012 with the old priority date (November 1991).  Now, we can work on terminating her proceedings for CIS adjustment of status.

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On June 15, 2012, the Secretary of DHS, Janet Napolitano, issued a memorandum on new prosecutorial discretion standards pertaining to certain illegal aliens. She started by stating that immigrants who were illegally brought to the United States as children “lacked the intent to violate the law” and pose few national security risks.  If the individual meets the following criteria, that person will not be deported or removed from the United States as a result of the prosecutorial discretion.

• Came to the United States under the age of sixteen;
• Has continuously resided in the United States for a least five years preceding the date of this memorandum and is present  in the United States on the date of this memorandum;
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• Is not above the age of thirty.

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company

BENEFICIARY: Mexican

LOCATION: Ohio

ISSUE: Third-Party Placement / Consulting Company Issue

Our client is an IT consulting company in Ohio. The beneficiary is a Mexican who obtained a Bachelor of Engineering degree.  The proffered position for the Beneficiary was a computer systems analyst which qualifies as a specialty occupation.  Previously, the petitioner filed an H-1B visa petition on behalf of the beneficiary, but it was denied by the USCIS due to third-party placement issue.

Thereafter, our office promptly filed the H-1B visa petition with various supporting documents on November 10, 2010 via premium processing service. On November 24, 2010, the USCIS requested the petitioner to submit additional evidence to rebut the third-party placement issue.  This issue of “in-house” employment was the main reason why the beneficiary’s previous H-1B visa petition was denied. This issue has been prevalent since a memorandum was issued over a year ago targeting IT and Business Consulting companies, as they typically act as a bridge to eventually place their employees under the control of their clients – a third party.

Upon our receipt of the RFE from the USCIS, Attorney Sung Hee (Glen) Yu prepared a detailed response with several exhibits as a response to the RFE.  The exhibits included information regarding the Petitioner-Employer, a detailed letter from Petitioner-Employer regarding the beneficiary’s In-House Employment, and various charts and spreadsheets detailing the particular in-house project of the position. In the cover letter to the USCIS, Attorney Yu explained the nature of the in-house employment setting between the Petitioner and the Beneficiary with a detailed explanation of specific projects that the beneficiary will work on at the Petitioner’s own site. Our firm also submitted various supporting documents to illustrate to the CIS the complexity of beneficiary’s project.

Our office filed the response to RFE with the USCIS California Service Center on December 21, 2010.  Our client’s H-1B application was approved on December 28, 2010.  It was approved within a week after the response to RFE was filed.  Now our client can work for his employer as an H-1B visa holder and he can work there. His wife’s I-539 H-4 application was also approved.

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CASE: Jail Case

CLIENT: Mexican

LOCATION: Ohio

CLIENT’S RESIDENCE: New Jersey

Our firm was retained on September 29, 2010 to have a Mexican national released on bond. He was detained in Seneca County Jail in Tiffin Ohio. Our contact was his employer in New Jersey. Prior to retention, we already told the contact what we needed. Our client came in the United States illegally in March 1999, had no criminal records, was employed, had a permanent home in the U.S., and had two U.S. Citizen children. Upon retention, we immediately contacted the Immigration and Customs Enforcement and explained that our client was not a flight risk. We showed documents including his bank statement, proof of lease, and birth certificates of his U.S. Citizen children. We explained that our client would be prima facie eligible for Cancellation of Removal. The next day, ICE granted our client’s release on a $5000 bond. We immediately spoke with our client’s contact in New Jersey and guided him in the process of posting a bond. We did our own research to look for specific bond companies in New Jersey to aid our client. Our office had to call ICE and the bond company several time to coordinate the information and make sure systems were updated regarding the bond posting. Our client’s contact was hoping he gets released before the weekend, or else he would have to spend an extra two days in jail. On October 1, 2010 Friday, at around 1:45pm, our client was released. He currently is in New Jersey awaiting his hearing where he would apply for cancellation for removal.

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