CASE: Adjustment of Status / 245i / I-140 (EB-3)    
APPLICANT: Ecuadorian BAS/HVAC Controls Technician

LOCATION: New York

Our client is from Ecuador. His current employer was willing to do an immigration petition for him, third-preference. Our client has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that his employer can petition him as a BAS/HVAC Controls Technician. Based on our client’s education and work background, our office determined that he eligible for EB-3 classification and our client eventually retained us in May 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.

However, on April 19, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on May 16, 2018.  

Eventually, on July 11, 2018, the PERM Labor Certification was approved.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, past experience letters, employer’s tax records, and other necessary supporting documents. The I-140 Petition was filed on August 8, 2018 via premium processing service. Eventually, on August 17, 2018, the I-140 EB3 Petition for our client was approved without any Request for Evidence (RFE).

Then, he retained our office for the adjustment of status applications for him and his family members. In fact, our client failed to maintain his status in the United States; nonetheless, he could be eligible to file adjustment of status under the INA Section 245(i). Our client is the derivative beneficiary of an I-130 F4 petition filed by his US Citizen uncle to his father filed back in September 1989 and approved in December 1989. Our client was 10 years old at that time.

INA Section 245(i) allows a person to apply to adjust status notwithstanding the fact that he overstayed his immigration status.  Thus, a person who entered legally but overstayed can adjust status based on an approved and current I-140 EB3 Petition if he paid the special fee required of $1000 and files Supplement A to I-485, as long as he is the beneficiary or derivative beneficiary of any approvable immigrant petition under section 204 (including I-130 F4 Petitions) that was filed on or before April 30, 2001 and proves physical presence as of December 21, 2000. INA 245(i). Beneficiaries or derivative beneficiaries who were petitioned prior to January 14, 1998 do not have to prove physical presence in 2000.

According to the Robert Bach’s “Accepting Applications for Adjustment of Status Under Section 245(i) of the “Immigration and Nationality Act” memorandum (“Bach Memo June 10, 1999).  

“Section 245(i) defines the term “beneficiary” to include a spouse or child eligible to receive a visa under section 203(d) of the Act’ This applies to spouses or children ‘accompanying or following to join’  the principal alien…. The spouse or child of a grandfathered alien as of January 14 is also grandfathered for 245(i) purposes. This means that the spouse or child is grandfathered irrespective of whether the spouse or child adjusts with the principal. The pre-January 15 spouse or child also are grandfathered even after losing the status of spouse or child, such as by divorce or by becoming 21 years of age…

Often, a principal alien who has filed a visa petition or labor certification application will have a “child” who reaches the age of 21, and thus no longer meet the statutory definition of child, before the petition or application is approved or the principal alien adjusts status. However, such an “aged-out” beneficiary will remain a beneficiary for the purpose of determining whether he or she may use section 245(i) to adjust status.”

(Bach Memo June 10, 1999)

Thus, since our client was the derivative beneficiary of an I-130 F4 Petition filed in September 1989, which was before January 14, 1998, he and his family are eligible for adjustment of status by virtue of INA 245(i) despite their overstay.

Our office filed their I-485 adjustment of status applications under the 245(i) category for our client on August 29, 2018.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time. We thoroughly prepared our clients prior to their interviews as well.

On March 20, 2019, our client was interviewed at the Queens, New York USCIS Field Office. Attorney Sung Hee (Glen) Yu, Esq. from our office accompanied our clients as well. Eventually, their green card applications were approved by the USCIS on the same day of the interview.

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CASE: PERM Labor Certification

EMPLOYER: Cosmetic Products Manufacturer

BENEFICIARY: Korean Controller

LOCATION: Cleveland, OH

Our client is currently working as a finance manager and his current employer was willing to petition him for a second-preference petition (I-140).  Our client has a bachelor’s degree in Business Administration and has more than 5 years of experience as a Financial Analyst. After talking to our client, our firm concluded that his employer can petition him as a Controller. Second preference petitions for Koreans are current, which means that if a PERM Labor Certification for a second preference position gets approved, the I-140 and I-485 could be filed simultaneously. Based on our client’s education and work background, our office determined that he is clearly eligible for EB-2 classification for his I-140 petition.  Our client eventually retained us in June 8, 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the foreign degree evaluation report, our office filed the job order on December 8, 2017. On May 7, 2018, we promptly filed PERM.

However, on August 22, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. Moreover, the DOL requested the Petitioner to submit evidence related to bona fide job opportunity which includes Petitioner’s articles of incorporation, quarterly tax, organizational chart, etc. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, recruitment documentation, and other requested documents on September 19, 2018.  

Eventually, on December 13, 2018, the PERM Labor Certification was approved – an EB2 position for the Korean beneficiary. Now our client can file the I-140, I-485 green card application, and I-765 simultaneously.

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CASE: I-485 (EB-3)

APPLICANT: Korean Fashion / Technical Designer

LOCATION: Los Angeles, CA

Our client has a prospective employer that was willing to petition her for a third-preference petition (I-140).  Our client has a bachelor’s degree in a fashion design and has relevant work experience. Based on our client’s education and work background, our office determined that she is clearly eligible for EB-3 classification for her I-140 petition.  Our client eventually retained us in February 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on June 23, 2017. On August 28, 2017, we promptly filed PERM.

However, on January 24, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on February 5, 2018.  Eventually, on May 7, 2018, the PERM Labor Certification was approved – an EB3 position for the Korean beneficiary.

We then proceeded with the I-140 Petition filing. We submitted the “ability to pay” letter for the I-140 petition application. We included the job offer letter, employer’s tax records, and other necessary supporting documents.

The I-140 Petition was filed on May 18, 2018 via premium processing service. Eventually, on June 1, 2018, the I-140 EB3 Petition for our Korean client was approved without any Request for Evidence (RFE).

Once her I-140 petition was approved, she retained our office again and determined to file an adjustment of status application for her. On June 21, 2018, our office filed an I-485 adjustment of status application for our client. 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 November 13, 2018, our client was interviewed at Los Angeles California USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our client as well. Eventually, her I-485 application was approved by the USCIS on November 14, 2018.

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CASE: PERM Labor Certification    
EMPLOYER:  Accounting Company in Akron, OH
BENEFICIARY: Chinese Associate Accountant

Our client is from China. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Accounting. After talking to our client, our firm concluded that his employer can petition him as an Associate Accountant. Based on our client’s education and work background, our office determined that he is eligible for EB-3 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 27, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on June 7, 2018. On September 13, 2018, we promptly filed PERM. Eventually, on November 8, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification    
EMPLOYER:  Architecture Company in Cleveland, OH
BENEFICIARY: Chinese Architectural Designer

Our client is from China. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Architecture. After talking to our client, our firm thought that his employer can petition him as an Architectural Designer. Based on our client’s education and work background, our office thought that he is clearly eligible for EB-3 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 20, 2018, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on June 6, 2018. On August 28, 2018, we promptly filed PERM. Eventually, on October 29, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification    
EMPLOYER:  Research Foundation in Washington, D.C.
BENEFICIARY: French Staff Accountant

Our client is from France. His current employer was willing to do an immigration petition for him, third-preference. Our client has a Bachelor’s degree in Accounting and has worked for his current employer on an H-1B status since 2013. After talking to our client, our firm concluded that his employer can petition him as a Staff Accountant. Based on our client’s educational, professional and work backgrounds, our office determined that he clearly eligible for EB-3 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On December 18, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on April 23, 2018. On July 9, 2018, we promptly filed PERM. Eventually, on August 31, 2018, the PERM Labor Certification was approved – an EB3 position for the French beneficiary. Now our client can file the I-140 petition.

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CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Dayton, Ohio

Our client came to the United States from Mexico in April 2007 without inspection and admission. He married his U.S. citizen wife in April 2016. After they got married, his U.S. Citizen wife filed an I-130 petition for him in June 2016. This I-130 petition was approved on July 29, 2016.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission). He needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

There is a seminal BIA case that deals with this waiver.  In Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999), the BIA identified the factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the alien were denied admission.  Those factors include: the presence of LPR or USC family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of medical hardship. In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident. His wife has ongoing medical hardships and she would not be able to take care of her own needs and the bulk of their family chores, most importantly taking care of their child. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in Mexico in case she joins our client there.

In our brief, we also argued that our client and his wife have maintained strong family ties in the United States, that his wife will have difficulty in finding the same level of employment in Mexico, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On September 19, 2017, we filed the I-601A waiver application which included the brief in support, his wife’s extensive medical examination records, and other documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on May 22, 2018. Now, he can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get his immigrant visa.

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CASE: PERM Labor Certification    
EMPLOYER: Chinese Restaurant
BENEFICIARY: Chinese Cook in Venezuela
LOCATION: Ohio

Our client is a Chinese restaurant in Ohio. They do have a prospective employee from Venezuela and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their prospective employee has more than 2 years of experience as a Chinese cook. After talking to our client, our firm concluded that they can petition him as a Chinese Specialty Cook. Our client eventually retained us on January 27, 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On February 10, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on July 14, 2017. On November 3, 2017, we promptly filed PERM. Eventually, on April 19, 2018, the PERM Labor Certification was approved – an EB3 position for the Chinese beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification    
EMPLOYER: Temperature Control Services
BENEFICIARY: Ecuadorian
LOCATION: New York

Our client is a company which specializes in providing and installing automatic temperature control systems in commercial and industrial buildings. They do have an employee from Ecuador and they were willing to petition him for a skilled worker, third-preference petition (I-140). Their employee has more than 2 years of experience as a HVAC Technician. After talking to our client, our firm concluded that they can petition him as a BAS/HVAC Controls Technician. Our client eventually retained us in May 2017.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On June 2, 2017, the prevailing wage request was filed.  After we got the PW determination, our office filed the job order on August 21, 2017. On October 27, 2017, we promptly filed PERM.

However, on April 19, 2018, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on May 16, 2018.  

Eventually, on July 11, 2018, the PERM Labor Certification was approved – an EB3 position for the Ecuadorian beneficiary. Now our client can file the I-140 petition.

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CASE: PERM Labor Certification    
EMPLOYER: Dental Group in Cleveland, OH
BENEFICIARY: Indian Endodontist

Our client is from India, who is currently working in the United States as an associate endodontist under her OPT. Her current employer is willing to do an immigration petition for her, second-preference. Our client has a dentistry degree in India which is evaluated as an equivalent degree of Doctor of Dental Surgery degree the United States. She also has a license to practice dentistry in the state of Ohio and has 2 years of residency training in endodontics.  After talking to our client, our firm concluded that her employer can petition her as an associate endodontist. Based on our client’s educational, professional and working backgrounds, our office determined that she is clearly eligible for EB-2 classification.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that PERM could be filed at least 60 days from the job posting date or 30 days from the last ad. On August 23, 2017, the prevailing wage request was filed.  After we obtained Prevailing Wage determination, our office filed the job order on November 1, 2017. On February 6, 2018, we promptly filed PERM. Eventually, on June 11, 2018, the PERM Labor Certification was approved – an EB2 position for the Indian beneficiary. Now our client can file the I-140 petition.

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