CASE: N-336 (Citizenship / Naturalization / Request for a Hearing on a Decision in Naturalization Proceedings)
APPLICANT: Indian
LOCATION: Ohio

Our client filed an N-400 application in June 2012 to the USCIS. He came to the United States from India and obtained his green card in 2001.  However, on September 28, 2012, the USCIS denied his naturalization application due to insufficient submission of his criminal records in the past.

The USCIS informed him that if he believes that he can overcome the grounds for the denial, he can submit a request for a hearing on Form N-336 within 30 calendar days of the issuance of the denial decision.  He retained our office and sought for legal assistance of his N-336 application.

The N-336 application was filed on October 23, 2012 with all supporting documents including all of his previous certified criminal records. Our office prepared him before his N-336 interview, and also accompanied him on December 17, 2012 at the Cleveland CIS office. Our client explained about his previous criminal cases and submitted all of the requested documents. On January 16, 2013, his N-336 application was approved. His oath taking will be scheduled in February in which he will become a naturalized U.S. Citizen.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Ghanaian
LOCATION: Cleveland, OH

Our client came to the United States in 2010 with an F-1 student visa from Ghana to pursue her bachelor’s degree in the United States.  She married a U.S. Citizen in September 2012 and retained our office on October 5, 2012 for her adjustment of status application.

They did not live together, but visit each other every week. This was because the US Citizen spouse lived and worked in Cleveland, while her spouse was studying in Wooster Ohio.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 25, 2012.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients at our office.

On January 8, 2013, less than three months from the time filing, our client was interviewed at the Cleveland, OH USCIS office. Our attorney accompanied our clients as well. Despite not living together, because of other bona fide evidence and their answers and demeanor at the interview, her green card application was approved on the same day.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Cleveland, OH

Our client came to the United States in November 2007 with a B-2 visitors visa from the Philippines. She overstayed her visa and remained in the United States.

She fell in love with a US Citizen and got married in September 2012. She then retained our office on October 1, 2012 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 19, 2012.  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 at our office. On January 3, 2013, our client was interviewed at the Cleveland, OH USCIS.  Attorney Sung Hee Yu from our office accompanied our clients as well. On the same day, her green card application was approved.

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2012 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for only 90 days.

Later, in September, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained us on September 10, 2012.  One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 18, 2012.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay expired. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On December 21, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver issue, on December 26, 2012, the USCIS approved her green card application.  Now, our client is a green card holder.

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CASE: I-821D Application for Consideration for Deferred Action of Childhood Arrivals / I-765 Employment Authorization Document

APPLICANT / BENEFICIARY: Chinese Client in Cleveland, OH

As our office explained before on our website, the USCIS issued a memorandum in August 2012 regarding deferred action of childhood arrivals cases (DACA). According to the USCIS Deferred Action Memorandum issued in August 2012, an individual who meets the following criteria may apply for deferred action:

• Was under the age of 31 as of June 15, 2012;
• Came to the U.S. before reaching his/her 16th birthday;
• Has continuously resided in the U.S. since June 15, 2007, up to the present time;
• Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
• Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

Our client initially came to the United States in March 2000 without admission and inspection by the CBP officers when she was only 15 years old.  As of June 15, 2012, our client was twenty-eight (27) years old. Our client was able to enroll in high school in 2001, but she did not finish.  However, she is currently enrolled in the ABLE program and she goes to class at the local high school in the Cleveland area.  Also, since her last entry to the United States in March 2000, our client never left the United States.

She was physically present in the United States on June 15, 2012 and has continuously resided here since March of 2000. Moreover, our client has never been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Our client retained us on August 15, 2012. We informed her of all supporting documents we would need. Our client and her family members sent us supporting documents that proved our client’s education history, physical presence in the United States, and her initial entry to the United States. Our office also prepared Form I-821D and I-765, and drafted a detailed cover letter demonstrating why our client should merit this relief.

On October 9, 2012, our office filed her I-821D and I-765 to the USCIS. Our client went to the ASC Appointment (Biometric appointment) at the Cleveland, OH USCIS office on November 1, 2012. On December 13, 2012, the USCIS approved our client’s I-821D and I-765, good for two years.

Our client can now work and study in the United States lawfully.

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CASE: Motion to Reopen

CLIENT: Central African Republic

LOCATION: Cincinnati, OH

Our client came to the United States from the Central Republic of Africa in 2004.  One month after, he filed for asylum with the USCIS.  He was interviewed at the CIS office, but his asylum application was referred to the Cleveland Immigration Court.  He went to his first hearing in Cleveland, and appeared at his previous master hearings as well.

He went to his last hearing in September 2010 in Cleveland Ohio where he both submitted a Form EOIR-33 (change of address) and was given an Individual Hearing date of January 9, 2013.

Our client moved a few months later but did not submit another EOIR-33. He did write his new address when he renewed his work permit though and submitted an AR-11 with the CIS.

Our client has always renewed his work permit application since 2005 and has reported his current address at those applications.

Last August, he applied for his work permit renewal with his new address, but his work permit renewal got denied.  The denial stated that our client’s case was abandoned when he missed his hearing on January 26, 2012.

This was the first time that our client learned of the final order.  In fact, he was under the assumption that his next hearing was on January 9, 2013.

Our client was surprised and contacted our office for legal assistance. We advised him that we can file a Motion to Reopen in absentia order of removal.

To rescind the final order, he has to get his case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order.  Based on this Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive proper notice of the hearing. If the Notice to Appear or hearing notice was sent to the wrong address for example, and not the last address you provided to the immigration service, then there’s a good basis for a Motion to Reopen.

On November 8, 2012, our office filed the Motion to Reopen with the Cleveland Immigration Court. Documentation of his address at the date of the final order, a detailed affidavit regarding his addresses and his circumstances around the final order date, documentation of the last address he provided to the immigration service and to the Immigration Court prior to the final order date, and other supporting documents were submitted (9 exhibits).

On December 10, 2012, the Cleveland Immigration Court granted our motion and reopened our client’s case.  Our client now does not have the final order of removal and may continue to seek his relief under asylum with the Immigration Court. He may also renew his work permit as the asylum clock resumed.

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in June 2012 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during the summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States for only 90 days.

Later, in August, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained our office on August 22, 2012.

One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program. As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Since our client resided in Cleveland, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny his application because of her visa waiver entry.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on August 27, 2012.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized period of stay expired.

Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. There was no Request for Evidence.

Prior to the interview, we thoroughly prepared our clients. On December 10, 2012, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  We accompanied them at the interview as well.  Despite the visa waiver issue, the USCIS officer approved her green card application on the same day.  Now, our client is a green card holder.

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CASE: Marriage-Based Green Card
CLIENT: Romanian
LOCATION: Cleveland, Ohio

Our client came to the United States in March 2012 with a B-2 visitor’s visa from Romania. She married a U.S. Citizen in July 2012.  Our client retained our office on August 16, 2012 for her petition and adjustment of status application.

Our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 17, 2012 before her B-2 authorized stay expired. 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 at our office. On December 6, 2012, our clients were interviewed at the Cleveland Ohio USCIS office. Attorney Sung Hee Yu accompanied them as well. On the same day, her green card application was approved.

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CASE: Motion to Terminate Removal Proceedings Based on Criminal Conviction Dismissal

CLIENT: Croatian

LOCATION: Cleveland, OH

Our client is a Croatian citizen and who has been a green card holder in the United States for more than 10 years. His parents and sister are all US Citizens.

However, he was placed in removal proceedings in July 2012 due to his previous criminal convictions, specifically drug-related offenses. He had two possession of drug paraphernalia convictions, a conviction for drug abuse due to heroin, and a marijuana conviction. He was thus removable due at least one controlled substance violation.

He was picked up by ICE officers and was detained.  Our client’s family member contacted us in early August to seek legal assistance and representation at his removal proceedings.  Our office was retained on August 3, 2012.

Based on his removable charges, there was no available relief for our client except relief under the Convention Against Torture (CAT). Respondent wished to apply for CAT.

We then asked our client whether he was advised before he pled guilty for his charges at his previous criminal hearings. Our client told us that he did not receive any advisement as required by Ohio criminal statutes.

Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the BIA held that “If a court with jurisdiction vacates a conviction based on a defect in underlying criminal proceedings, the Respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A).”

According to O.R.C Section 2943.031, the court must ask the following before the defendant entered the plea: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

As stated above, our client told us that he never had the aforementioned advisement from the court before he pled guilty to his charges.  Thus, we contacted our client’s previous criminal attorney to file Motion to Withdraw Guilty Plea and Vacate Conviction based on a defect in underlying criminal proceedings – that of having a lack of advisement or lack of substantial compliance with the advisement provisions of O.R.C. Section 2943.031 from the criminal courts.

By November 9, 2012, the courts involved vacated and dismissed the two drug paraphernalia convictions and the heroin / drug abuse conviction. He thus only has one conviction for marijuana possession left. There was no evidence that the amount of marijuana involved was over 30 grams.

With that, our office filed a Motion to Terminate Proceedings to the Immigration Court and argued that our client is not removable anymore because the respective courts have vacated his plea and dismissed his convictions based on a defect in underlying criminal proceedings. We cited the law that provides that he is not removable based on a single conviction of marijuana possession if the amount involved is 30 grams or less. Since it’s the government’s burden to show removability, and since there was no evidence of the amount of marijuana involved, despite this conviction he was not removable anymore.

We included the criminal court judges’ orders and other supporting documents, including, when necessary, a certified copy of the motion filed by the criminal attorney (the government sometimes wants to see this to make sure the dismissal was not for immigration purposes, but based on a lack of advisement) and argued that our client’s removal proceedings must be terminated.

On November 28, 2012, on the day of our client’s Individual Hearing, the Immigration Judge granted our Motion to Terminate Proceedings.

Our client is now released. He got his green card back and can continuously reside in the United States.

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CASE: H-1B Visa Petition
PETITIONER: Healthcare staffing firm
BENEFICIARY: Pharmacist
ISSUES: Cap-Exempt, Research Organization, Off-Site Employment

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics.

They contacted our office in late of October to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist who obtained his Doctor of Pharmacy degree in the United States. The proffered position for the Beneficiary is a Pharmacist. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree with a registered Pharmacist license.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was already reached. Our client was very disappointed and thought they would have to wait until April 1, 2013. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue). At that point our client thought it was impossible to file at this point.

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment. We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacists) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on November 13, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on November 27, 2012. He can now work for his employer for three years on an H-1B status starting November 27, 2012.

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