CASE: I-140 / National Interest Waiver

CLIENT: Mexican

LOCATION: Raleigh, NC

Our client contacted us in April 2016 about the possibility of doing a National Interest Waiver self-petition. He is a researcher from Mexico and he is an exceptional researcher and scientist in the field of plant developmental biology research.

Our client’s significant contributions have placed him at the pinnacle of his field. His research has contributed to the advancing of our understanding of the mechanisms that control plant growth and development, and how plants respond to geminivirus infection, thus enabling the development of new plant breeding technologies for food production improvement.  Because of his innovative experimental research, our client’s research works were highly evaluated by the 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 20-page brief for our client’s NIW filing. Our client also obtained 6 letters of recommendation from his colleagues and internationally-recognized researchers. Our office also included his publication records, presentation records, 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 it 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 Texas Service Center on December 20, 2017. Eventually, on April 13, 2018, the USCIS approved his I-140 petition without any Requests for Evidence.  Now, he can file his adjustment of status application.

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CASE: Termination of Removal Proceedings with an Approved I-130 Petition

CLIENT: Algerian
LOCATION: North Carolina

Our client is from Algeria who came to the U.S. on a F-1 Student Visa in 2010. After he graduated, he overstayed his status. Because of his overstay, he was placed in removal proceedings in Charlotte, NC. His case was administratively closed in August 2014.  

Our client married her U.S. citizen wife in August 2016 in North Carolina. In December 2016, he contacted our office to seek legal assistance for his I-130 petition, representation of his removal proceedings, termination of removal proceedings, and his adjustment of status application with the USCIS.

After we were retained, our office prepared and filed the I-130 petition for our client and filed it to the USCIS on February 27, 2017. This I-130 petition was approved by the USCIS on July 31, 2017 without an interview. Then, 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 Charlotte, NC agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on September 21, 2017. Now, he can file his I-485 adjustment of status application to the USCIS to obtain his green card.

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CASE: I-751

APPLICANT: Filipina

LOCATION: North Carolina

Our client contacted our office in June of 2016 regarding her I-751 application.

She is from the Philippines and she married a U.S. citizen in December 2013. Through her marriage, she obtained a 2-year conditional green card in June of 2014. Our office helped her in the green card process.  Her conditional residency terminated in June 2016.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office on June 7, 2016, and our office prepared an I-751 application for our client with other supplemental exhibits.

On June 17, 2016, our office filed an I-751 application to the USCIS with multiple affidavits from her friends and family members, joint bank statements, utility bills, joint leasing documents, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

Once the application was filed, the fingerprint notice was issued two weeks later. Eventually, on June 2, 2017, the USCIS approved our client’s I-751 application without any Request for Evidence (RFE).

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CASE: I-130/I-485 Marriage Based Adjustment of Status

NATIONALITY: Korean

LOCATION: Durham, North Carolina

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

After our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2011. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or 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 March 2011.

Our firm was retained to do his J-2 waiver, and on July 12, 2016, 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 August 1, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On January 25, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

While we were pursing his J-2 waiver case, our client married to his U.S. citizen wife. Once his J-2 waiver was approved, our client retained our office again for his adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on February 14, 2017.  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 as well. On May 25, 2017, our client was interviewed at the Durham, North Carolina USCIS office.  The interview went well, and eventually, on the same day of the interview, his 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: Korean

LOCATION: North Carolina

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

After our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2011. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or 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 March 2011.

Our firm was retained to do his J-2 waiver, and on July 12, 2016, 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 August 1, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On January 25, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Visa Petition

PETITIONER: IT Consulting Company in Jacksonville, FL

BENEFICIARY: Indian Systems Analyst in Charlotte, NC

Our client is an IT Consulting Company located in Jacksonville, FL.  They contacted our office in the middle of February last year to seek legal assistance for a possible H-1B petition for their foreign employee.

The beneficiary obtained his Bachelor’s degree in Information Technology in Belgium. Beneficiary is currently working in the United States under L-1 status. The proffered position for the Beneficiary is a Systems Analyst which we argued qualifies as a specialty occupation.

Upon retention, our office prepared and eventually filed the H-1B visa petition with various supporting documents on March 31, 2016 via regular processing. This H-1B petition was selected after the lottery.

However, on September 29, 2016, the USCIS issued Request for Evidence (RFE) for our client’s H-1B petition. USCIS requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation”, plus additional questions about the “in-house” nature of the employment. Moreover, the RFE requested our client to prove the Beneficiary’s qualification is sufficient to work as a systems analyst.

We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting company.  Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Furthermore, we included several professional evaluation letters for Beneficiary’s degree and previous work experience to demonstrate that he is qualified. Other documents pertaining to an in-house project was also submitted.

Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on December 19, 2016.  Eventually, our client’s H-1B application was approved on January 12, 2017. Now, the beneficiary can work for the Petitioner until August 2019.

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CASE: Marriage-Based Green Card

CLIENT: Pakistani

LOCATION: Durham, NC

Our client came to the United States from Pakistan on an F-1 student visa. She married her current husband, who is a green card holder, in December 2014.  After marriage, her husband filed an I-130 petition on behalf of our client in December 2014. This I-130 petition was approved in April 2015. Our office helped in our client’s I-130 petition process.

Our client retained our office again on September 22, 2015 for her I-485 adjustment of status application. We could file the I-485 application because the priority date for F2A category was current at the time of filing. Our office prepared and filed an I-485 adjustment of status application, together with all necessary supporting documents, on September 29, 2015. 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 call. On December 7, 2016, our client was interviewed at the Durham, NC USCIS office. The interview went well, and the priority date for our client was current at the time of the interview as well. Eventually, on December 19, 2016, her green card application was approved.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Egypt
LOCATION: North Carolina

Our client is a citizen of Egypt who came to the U.S. on a J-2 Visa in February 2010.  He came with his wife who held a J-1 Visa as a researcher.  Both were subject to the two-year foreign residency requirement.

Unfortunately, while they were residing in the United States, his marriage did not work out well. Eventually, he got divorced from his ex-wife.  Before he divorced with his ex-wife, he changed his status from J-2 to F-1. However, he was still subject to the two-year foreign residency requirement.  Our client pursued his Ph.D. degree in the United States, and intends to file the I-140 NIW Self-Petition with adjustment of status application. Nevertheless, he could not file adjustment of status in the U.S. and changed his status to other non-immigrant visa in the United States because of the 2 year foreign residency requirement.

In August of this year, our client contacted our office. He retained our firm to do his J-2 waiver. On August 11, 2016 the J-2 Waiver (DS-3035) 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.  Eventually, on August 29, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued I-612 waiver approval notice on October 17, 2016.  Now, our client can file an adjustment of status application (I-485) along with his NIW I-140 self-petition for his green card with a waiver.

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CASE: Adjustment of Status / 245(i)

CLIENT: Filipino

LOCATION: North Carolina

Our Filipino client came to the U.S. on a B-2 visa in March 2015. Later, his authorized status expired and he overstayed his status. In September 2015, his wife came to the United States on a valid B-2 visa and at the time of her adjustment of status filing, she was still in status.

Our client contacted us around September of 2015 for consultation and sought legal assistance for their adjustment of status. After consultation, we determined that he is eligible for adjustment of status under INA 245(i) and the priority date for his case was current in September 2015.

His brother filed an I-130 petition for him back in 1992. As some of you know, priority dates for Philippine nationals under the family-based immigration category F4 are more retrogressed than other countries. The I-130 petition was approved by the INS in 1992.  However, he could not apply for his green card until his priority date became current.  Therefore, he had to wait for more than 20 years in order to even apply for his green card.

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.

On September 30, 2015, our office filed an I-485 adjustment of status application under 245(i) for our client and his wife. 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 April 18, 2016, our clients were interviewed at the Charlotte, North Carolina USCIS office. After the interview, our client and his wife’s green card applications were approved.

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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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