CASE: Marriage-Based Adjustment of Status

CLIENT: Korean

LOCATION: New York, NY

Our client came to the United States from South Korea on a H-1B visa to work as an attorney in the U.S. She married a U.S. Citizen in November 2019 and retained our office for her green card application on November 13, 2019.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 20, 2019.  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. On December 23, 2020, our client was interviewed at the New York, NY USCIS office. Eventually, on the same day of her interview, 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: Ukrainian

LOCATION: New York, NY

Our client is a citizen of Ukriane who came to the U.S. on a J-2 Visa in July 2002.  He came with his father who was on a J-1 Visa for his research program. 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 attended a school and his family moved to Canada after his father’s research scholar period ended. Our client came back to the United States with an H-1B visa.

He turned 21 in April 2014. Early this year, his employer told him that they wanted to file an I-140 petition for him. However, because of his two-year foreign residency requirement, our client cannot adjust his status in the United States without the fulfillment of the requirement or 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 April 2014.

Our firm was retained and on July 2 2020, 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 September 28, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 9, 2020, the USCIS issued an I-612 approval notice.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Japanese

LOCATION: New York, NY

Our client came to the United States from Japan and has worked as an engineer on his H-1B visa. He married a U.S. Citizen in June 2019 and retained our office on June 26, 2019 for his green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 22, 2019.  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 via conference calls. On September 30, 2020, our client was interviewed at the New York, NY USCIS office. Eventually, on the same day of the interview, his green card application was approved.

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CASE: I-485 Adjustment of Status  / National Interest Waiver

CLIENT: Korean

LOCATION: Port Jefferson, NY

Our client contacted us in November 2018 about the possibility of doing a National Interest Waiver self-petition. He is a Ph.D. student from South Korea and he has a Master’s Degree in Chemistry. Though he is a Ph.D. student, he is already considered as an exceptional researcher and scientist in the field of synthetic organic chemistry and pharmaceutical research. 

Our client’s significant contributions have placed him at the pinnacle of his field. He has made important contributions in synthesizing chalcone-based small molecules and its biological data.  His research work is very important to the field of Parkinson’s disease therapy. Moreover, our client synthesized more than 100 small molecules targeting Receptor Interacting Protein Kinase (RIPK) enzymes for the treatment of dry Age-related Macular Degeneration (dry AMD).  Because of his innovative experimental research, our client’s works were highly evaluated by reviewers of various journals and by colleagues and experts in the field.

Upon review of his credentials and qualifications, our office determined that he was definitely qualified for the National Interest Waiver (NIW) category. Being qualified for NIW is beneficial since you would not need an employer nor family member to petition for you for green card purposes. You’d be eligible for a self-petition and unless you are from China or India, in which case you’d still have to wait for priority dates to be current, you would be eligible to apply for adjustment of status (green card) immediately without any lag in priority dates.

As a primer, NIW applicants must have a master’s or higher degree. While we prepared his case, the AAO set the new standards for NIW cases in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under the new standard, the petitioner must demonstrate that the foreign national’s proposed endeavor has both substantial merit and national importance. Next, it must be shown that he or she is well positioned to advance the proposed endeavor. Finally, the petitioner seeking the waiver needs to demonstrate that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Id. 

Our office prepared a 22-page brief for our client’s NIW filing. Our client also obtained 7 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication record, presentations, and conference materials in the NIW application. We demonstrated that our client is one of the few elite researchers who have made significant and substantial contributions to his field of endeavor, that he is well positioned to advance the proposed endeavor, and that  would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification for our client. 

Our office filed his I-140(NIW) petition to the USCIS Nebraska Service Center on March 20, 2019. Eventually, on September 6, 2019, the USCIS approved his I-140 petition without any Requests for Evidence.  

Once his I-140 petition was approved, he retained our office again and to file an adjustment of status application for him, his wife and daughter. On October 7, 2019, our office filed an I-485 adjustment of status application for our client and his family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Prior to the interview, we thoroughly prepared our client via conference calls as well. On August 20, 2020, our client was interviewed at the Holtsville New York USCIS office. The interview went well, our client and his family members’ adjustment of status applications were approved by the USCIS on the same day of the interview. 

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

NATIONALITY: Russian

LOCATION: Brooklyn, NY

Our client is a citizen of Russia who came to the U.S. on a J-2 Visa in February 1998.  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.

He turned 21 in November 2010. This year, his employer wanted to file an I-140 petition for him. The I-140 was possible, but the eventual I-485 adjustment of status (green card) was not possible due to the two year foreign residency requirement.

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 November 2010.

Our firm was retained to do her J-2 waiver, and on March 3, 2020, 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 June 29, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

NATIONALITY: Chinese

LOCATION: Yonkers, NY

Our client was a citizen of China who came to the U.S. on a J-2 Visa in November 2015.  He came with his mother who came on a J-1 Visa for her 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.

He turned 21 in May 2016. This year, his employer wanted to file an I-129 petition for his H-1B visa. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without the 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 May 2016.

Our firm was retained to do her J-2 waiver, and on March 9, 2020, 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 June 29, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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

NATIONALITY: Chinese

LOCATION: Long Island City, NY

Our client was a citizen of China who came to the U.S. on a J-2 Visa in April 2007.  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.

He turned 21 in August 2014. This year, he wanted to change his status to H-4 based on his spouse’s H-1B status. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the 2-year requirement or getting a waiver application approved.

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 August 2014.

Our firm was retained to do her J-2 waiver. On March 9, 2020, 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 June 29, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship

 NATIONALITY:  Indian

 LOCATION: New York City, NY

Our client came from India to the U.S. as a J-1 post-doctoral scholar in 2016. His J-1 program made him subject to the two-year foreign resident requirement. Our client would like to file his adjustment of application along with his I-140 EB-1A application; however, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for his research programs which made his case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen son is experiencing exceptional medical hardships. 

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.” 

Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 

After he retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On June 10, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared affidavit of our client, extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen daughter’s medical conditions.  On June 11, 2019, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client’s daughter would experience exceptional hardship if our client needs to go back to India for two years. 

Eventually, the USCIS approved his I-612 waiver on April 29, 2020 without any Request for Evidence.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Macau

LOCATION: Brooklyn, NY

Our client is a physical therapist. His current employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he is a physical therapist, he 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 first going to the DOL for a labor certification. 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. The position of Nurse Practitioner is included in Schedule A.

Our client has Master’s degrees in Rehabilitation Science and is a licensed physical therapist in the State of New York. Our office was retained on October 28, 2019, and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on March 17, 2020 via premium processing. We included the job offer letter, the notice of filing, employment letter, 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.  

Eventually, on March 21, 2020, the USCIS Nebraska Service Center approved his EB-2 I-140 petition. Since the priority date for EB-2 Macau national is current, he can file his adjustment of status application at any time.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipino
LOCATION: Elmhurst, NY 

Our client came to the United States in September 2013 with a J-1 Exchange Visitor visa from the Philippines.  His J-1 visa was not subject to the two-year foreign residency requirement, so he could apply for adjustment of status in the United States without a waiver.  He married a U.S. Citizen in July 2019 and retained our office on August 21, 2019 for his adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on August 26, 2019.  Everything went smoothly and the receipt notices, fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients via conference calls. On March 6, 2020, our client was interviewed at the New York, NY USCIS Field Office.  Eventually, on the same day of his interview, his green card application was approved. 

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