CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Illinois

BENEFICIARY: MDS Coordinator, Filipino

Our client is a Nursing Home Facility in Illinois. They contacted our office in early March to seek legal assistance for their prospective foreign employee.

The beneficiary obtained his Bachelor’s degree in Nursing. The proffered position for the Beneficiary is a MDS Coordinator. We argued that this position is a “specialty occupation” and that the minimum requirement for this position is a Bachelor’s Degree in Nursing or its equivalent.

After retention, our office promptly filed the H-1B visa petition with various supporting documents in April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on August 14, 2013.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in response brief with  multiple exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included that Petitioner previously employed and petitioned for an H-1B for the same position.

Our office filed the response to the USCIS Vermont Service Center on October 29, 2013. Our client’s H-1B petition was approved on December 2, 2013.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Houston, TX

Our client came to the United States in June 12 with an F-1 Student visa from the Philippines. Later, she married a U.S. Citizen in July 2013 and retained our office for her petition and adjustment of status application.

She also asked us to file her daughter’s (Petitioner’s step-daughter) adjustment of status application.

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on September 6, 2013. 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 through conference calls. On December 3, 2013, our clients were interviewed at the Houston, Texas USCIS office. Attorney Sung Hee (Glen) Yu from our office accompanied them at their interview as well. On December 4, 2013, our client and her daughter’s green card applications were approved.

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CASE: J-1 Visa Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: New York, NY

Our Filipina client came on a J-1 visa in July 2005. Upon completion of her J-1 program, she remained in the United States and changed her status to H-1B. However, she was subject to the two-year foreign residency requirement.

In April 2013, she got married to her U.S. citizen husband and later consulted with our firm for her J-1 visa waiver. She had to do this first before becoming eligible to adjust status.

Upon retention, our office prepared and filed a waiver request based on a possible No Objection Statement (NOS) from the Philippine Embassy in the United States.

On July 15, 2013, the J-1 Visa Waiver Application (Form DS-3035) was filed to the Department of State.  We also sent a request to the New York State Government to get authentication for necessary documents.  Later, these authenticated documents and No Objection Application (for the Philippine Government) were sent to the Philippine Consulate in New York for further authentication. On August 2, 2013, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines. The Waiver Review Committee eventually approved the No Objection request and forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement to the U.S. Department of State.

On November 26, 2013, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on December 2, 2013, the USCIS issued an I-612 approval notice for the waiver. Now, our client can file for her adjustment of status application along with her U.S. Citizen husband’s I-130 petition.

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CASE:  Termination of Removal Proceedings / Motion to Reopen
CLIENT: Filipino
LOCATION: Pennsylvania / Immigration Court: Philadelphia Immigration Court

Our client came to the United States on a valid K-1 fiancé visa in 2004. He married his U.S. citizen fiance within two months of his entry, and then he eventually filed an I-485 adjustment of status application.

In May 2005, our client received his conditional permanent resident card. However, his I-751 application was denied in December 2007 due to his troubled marriage and he got divorced with his U.S. Citizen wife in April 2008.

Unbeknownst to our client, a Notice to Appear was issued against him and it was sent to his previous address in June 2008.  Thus, our client did not know of the issuance of his NTA and his initial Master Calendar hearing. Eventually, he missed the hearing and the Immigration Court issued an order of removal against our client in June 2008.  Later, our client got married again with his ex-wife. After the re-marriage, his U.S. citizen wife filed an I-130 petition for our client and this was approved in June 2009.

Due to his confusion on what to do after the approved I-130 (the approval mentioned something about consular processing) our client left the United States and went to the Philippines to apply for an immigrant visa. During the interview, our client learned of his final order of removal in absentia and he was asked to file a waiver. Unfortunately, his waiver application was denied because there was no waiver for inadmissibility under 212(a)(6)(B), which provided, based on the letter, that “any alien who without reasonable cause fails to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure of removal is inadmissible.”

Thus, our client needed to reopen his case and get a termination order from the court to file his waiver.

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 notice of the hearing.

On August 14, 2013, our office filed the Motion to Reopen with the Philadelphia Immigration Court. Documentation of his address at the date of the final order, a detailed affidavit regarding his addresses and the circumstances around the final order date, documentation of the last address he provided to the immigration service prior to the final order date, and other supporting documents were submitted (20 exhibits). On September 24, 2013, the Philadelphia Immigration Court granted our motion and reopened our client’s case.

After his case was reopened, our office filed a Motion to Terminate Proceedings to the Philadelphia Immigration Court. As a result, on October 21, 2013, the Immigration Judge in the Philadelphia Immigration Court granted our Motion to Terminate for our client. Our client’s removal proceeding is now terminated, and he can file a waiver application for his immigrant visa.

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CASE: Adjustment of Status / Public Law 111-83 / INA Section 204(l) Amendment Issue (less stringent humanitarian reinstatement process) / 245(i)

CLIENT: Filipina

LOCATION: Chicago, IL

Our Filipina client came to the U.S. on a B-2 visitor’s visa in May 1993 and overstayed her status

Prior to retaining our firm, her sister filed an I-130 petition for her back in 1990. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The wait is more than 20 years!

The I-130 petition was approved by the INS in 1990.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 20 years in order to even apply for her green card. Unfortunately, her sister (I-130 Petitioner) passed away before she was eligible to apply for her green card. 

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners died prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as they meet certain qualifications such as having physical presence in the U.S. at the time of the petitioner’s death and also having a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible to adjust.

Our client’s US citizen brother-in-law (husband of deceased petitioner) was willing to become a substitute sponsor and she met the physical presence requirement. On October 19, 2010, our office filed an I-485 adjustment of status application under the 245(i) category. We of course cited PL 111-83. On February 3, 2011, our client appeared at the Chicago CIS office for her adjustment interview.  Attorney JP Sarmiento accompanied her at the interview. Attorney Sarmiento also explained the new regulations and explained to them that the old humanitarian reinstatement standards were not needed anymore.

However, the F4 priority date for the Philippines backlogged. Our client had to wait until the priority date became current. In October 2013, her priority date became current. Eventually, our client’s adjustment application was approved by the USCIS on October 7. 2013.  After a long wait, our client is finally a green card holder.

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CASE: Change of Status from B-2 to F-1

CLIENT: Filipina

LOCATION: Houston, TX

Our client came to the United States on April 23, 2013 from the Philippines with a valid B-2 visitor’s visa. Towards the end of her legal status in the United States, she decided to pursue her education here and wanted to get an F-1 status. She enrolled in a community college for an associate’s degree program. After her school issued the I-20, she contacted our office. She retained our office on July 24, 2013.

Once retained we helped our client obtain supporting documents for the Change of Status. On July 29, 2013, we filed the I-539 Change of Status application to the USCIS. On October 10, 2013, the Change of Status was approved. Our client is now on valid F-1 status.

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CASE: I-129F Fiancée Petition and Fiancée Visa

PETITIONER: US Citizen in Gainesville, FL

BENEFICIARY: Filipina

PETITION FILED: March 20, 2013

PETITION APPROVED: July 25, 2013

VISA APPROVED: September 24, 2013

Our client, a US Citizen Petitioner, met his Filipina fiancée online. They developed a relationship and he eventually went to Taiwan to meet her in December 2012. He proposed to her on that visit. Months after his proposal, he retained our firm to file a fiancée petition and get her a fiancé visa.

After retention, we gave our clients a list of supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on February 12, 2013. We helped him and his fiancée draft letters in support of the fiancé petition, and we filed the petition on March 20, 2013.

On July 25, 2013, the I-129F fiancée petition was approved. On September 5, 2013, the beneficiary appeared at the American Institute in Taiwan for her fiancé visa interview.  The interview went well, and her fiancé (K-1) visa was approved on September 24, 2013. She will come to the United States and will marry her fiancé within 90 days of her entry.

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CASE: Marriage Based I-130 petition and I-485 Adjustment of Status
CLIENT: Filipina
LOCATION: Houston, TX

Our client came to the United States in September 2010 with a B-2 visitor’s visa from the Philippines.

She later changed her status from B-2 to F-1 when she enrolled in school.

She then married a U.S. Citizen in March 2013 and retained our office on May 2, 2013 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on May 21, 2013.  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 through conference calls.

On September 9, 2013, our client was interviewed at the Houston, Texas USCIS office.  Attorney Sung Hee (Glen) 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-751 / Response to RFE

APPLICANT: Filipina

LOCATION: Ohio

Our client contacted our office in the middle of March this year regarding a Response to RFE for her I-751 application filing. She is from the Philippines and got her 2-year conditional green card through her marriage to her U.S. citizen husband.  She obtained a 2-year conditional green card in June of 2010, and her conditional residency terminated in June 2012.

To comply with immigration requirements, our client and her husband filed an I-751 Joint Petition to Remove Conditions before June 2012. However, she did not have an attorney back then, and did not submit sufficient evidence to prove the bona fideness of her marriage to her U.S. citizen husband. As a result of that, on February 14, 2013, the USCIS issued a Request for Evidence (RFE) for our client’s I-751 filing.

After consulting, she retained our office on March 27, 2013.

We reviewed the CIS’ RFE letter and prepared our response.  On May 7, 2013, our office filed the Response to RFE to the USCIS with multiple affidavits from her friends and family members, joint bank statements, utility bills, insurance policies, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

After that, there was no interview request for our client’s I-751 application. Instead, on August 26, 2013, the USCIS approved our client’s I-751 application and our client received her 10-year green card which removed the condition.

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CASE: I-129F Fiancé Petition and Fiancé Visa
PETITIONER: US Citizen in St. Louis, MO
BENEFICIARY: Filipino
PETITION FILED: November 8, 2012
PETITION APPROVED: June 3, 2013
VISA APPROVED: July 31, 2013

Our client, a US Citizen Petitioner, met her Filipino fiancé in the Philippines in 2008 and 2010. Her fiancé also visited our client in the United States in 2010 and 2012. When he visited our client in May 2012, he proposed to our client. Months after his proposal, our client retained retained our firm to file a fiancé petition for him.

After retention, we told our client about the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on September 26, 2012. We helped her and her fiancé draft letters in support of the fiancé petition, and we filed the petition on November 8, 2012.

There were no requests for evidence, and eventually, on June 3, 2013, the I-129F fiancé petition was approved. On July 31, 2013, the beneficiary appeared at the U.S. Embassy in Manila, Philippines for her fiancé visa interview.  The interview went well, and her fiancé (K-1) visa was approved on the same day. She will come to the United States and will marry to her fiancé within 90 days of her entry to the United States.

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