CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: New York, NY

Our client came to the United States in December 2008 with an F-1 student visa from the Philippines. She married her U.S. Citizen husband in October 2010 and retained our office in the middle of April of 2011 for her adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on July 29, 2011. 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 February 9, 2012, our client was interviewed at the New York City, NY USCIS.  On March 5, 2012, her green card application was approved.

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CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Filipina
LOCATION: Chicago, Illinois

Our client contacted us in October 2011 to seek legal assistance for her naturalization application.  She came to the United States from the Philippines and obtained her green card in 2006.  She retained our office on October 17, 2011 to assist in her citizenship application.

The application was filed on October 26, 2011 with all required supporting documents.   Our office prepared her before the interview, and our client was scheduled to appear before the Chicago USCIS office on March 5, 2012.  On the same day, her naturalization application (N-400) was approved.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Des Plaines, IL

Our client came to the United States in 2001 with an H-1B visa to work as a registered nurse. Her previous employer filed an I-140 petition under the EB-3 classification on her behalf.  The petition was later approved, and our client’s priority date was August 2001.  Thereafter, she maintained her status as an H-1B visa holder and has extended her H-1B status.

In November 2011, our client sought legal assistance from our office regarding her adjustment of status application.  After reviewing her documents and the Department of State’s visa bulletin, we determined that her priority date was current and that we could apply for her adjustment of status application.  She retained our office on November 14, 2011 and our firm prepared and filed the I-485 Adjustment of Status Application and I-765 Employment Authorization Documentation on November 27, 2011.  Everything went smoothly and the receipt notices and fingerprint appointment came on time.  On February 27, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  After a long wait, our client finally became a green card holder.

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

CLIENT: Filipina

LOCATION: Chicago, IL / Los Angeles, CA

Our Filipina client came to the U.S. on a B-2 visitor’s visa in 2001 and overstayed her status. Currently, she resides in Los Angeles, California.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you know, priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjust status with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security in Los Angeles.

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 sister was willing to become a substitute sponsor and she met the physical presence requirement. On January 5, 2011, our office filed a request to join in a Motion to Terminate with the Los Angeles DHS. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court. Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings.

With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case was transferred USCIS Chicago Field Office for adjudication of her I-485 application.

On April 5, 2011, our client appeared at Chicago CIS office for her adjustment interview.  Attorney Yu accompanied her at the interview, and the interview went pretty smoothly. Attorney Yu explained the new regulations and explained them that the old humanitarian reinstatement standards were not needed anymore.

However, on October 3, 2011, the USCIS issued a Request for Evidence (RFE) for our client. The CIS argued that our client was not able to show humanitarian reasons for reinstatement.

It seemed though that the RFE did not take into account PL 111-83 and the new 2009 law. Under the new law, the Petition survives the death of the Petitioner also in categories of beneficiaries as long as they were residing in the U.S. on the date the Petitioner passed away and continue to reside in the U.S., including married sons and daughters of citizens and green card holders. A substitute sponsor who is a qualifying relative, such a U.S. Citizen sibling, shall still be needed, but the humanitarian factors are not.

Since our client’s case clearly fell under the amendments for INA Section 204(l), our office filed a Response to RFE on October 13, 2011 including a cover brief and 14 exhibits. We attached the law itself and highlighted the relevant parts.  Eventually, our client’s adjustment application was approved by the USCIS on February 15, 2012.  After a long wait, our client is finally a green card holder.

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CASE: Marriage-Based Adjustment of Status
CLIENT: Filipina
LOCATION: Chicago, IL

Our client came to the United States in March 1994 with an H-4 visa (dependent of an H-1B visa holder) as a minor child from the Philippines. Her mother, who was on H-1B, fell out of status so she also fell out of status. Years later, she married his U.S. Citizen spouse in August 2011 and retained our office on October 20, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on October 27, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On February 15, 2012, our client was interviewed at the Chicago, Illinois USCIS.  We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved on the same day.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Filipina
Location: Los Angeles, CA / Cleveland, OH

Our Filipina client came to the United States in 2003 with an H-1B visa to work at a Cleveland Ohio hospital as a registered nurse. Through an attorney, her employer filed an I-140 Petition for her and she eventually filed an adjustment of status application. While her adjustment of status application was pending, our client traveled abroad with an Advanced Parole travel document. While abroad, her I-485 was denied due to unauthorized work lasting over 180 days not for the H-1B company. Though her I-485 was pending during that time, her attorney unfortunately did not file an I-765 application for employment authorization document even though she was eligible. She came back to the United States in February 2007 on the same advance parole document. She was not stopped despite the I-485 denial.

She did not know about the denied I-485 and she was not notified by her attorney, thus she was under the impression the I-485 was still pending and that her advance parole was valid. She later found out about the denied I-485 upon following up with her attorney so she hired a different attorney to re-file it and address all pertinent issues. However, her adjustment of status application was denied again in 2009 and she was placed in removal proceedings with the issuance of a Notice to Appear. Part of the denial focused on her last entry on the advance parole, when she came back when her I-485 was already denied. On her Notice to Appear (“NTA”), due to her entry, she was considered an arriving alien.

Our client married her U.S. citizen spouse after removal proceedings were initiated. Meanwhile, our client’s first hearing was scheduled at the Cleveland Immigration Court.  Our client consulted with our firm to see if there was anything that could be done for them knowing that she had this entry issue involving her I-131 despite a denied I-485, and her deemed illegal work for over 180 days.

We saw from her Notice to Appear that she was considered an arriving alien and based on that, we advised her that we can apply for adjustment of status based on her marriage to a U.S. citizen.  She retained us in June 2011.

An arriving alien can adjust his or her status with the USCIS even though he or she is in removal proceedings or has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.

Under the amended jurisdictional provisions of the interim regulations, the USCIS has been given jurisdiction over adjustment of status applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

At the first hearing in Cleveland, Attorney Sung Hee (Glen) Yu accompanied our client, took pleadings, and conceded removability. He explained that since our client is an arriving alien and is married to a U.S. Citizen, that she shall file an I-130 and I-485 with the CIS, since jurisdiction for both lies with the CIS. Our office then prepared and filed the I-130 Petition and I-485 adjustment of status application in accordance with the regulations, including the bona fide marriage exemption letter mandatory for marriages entered into after removal proceedings.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.

Our client’s I-130/I-485 interview was scheduled on January 11, 2012 at the Los Angeles California USCIS field office. Prior to the interview, Attorney Yu thoroughly prepared our client and her husband for their USCIS adjustment of status interview. The preparation lasted for over an hour due to the “arriving alien” issue and other possible concerns with regards to our client’s extensive immigration history.

At the interview, Attorney Yu accompanied our client and her husband at the Los Angeles USCIS office. At the interview, the USCIS officer argued that they did not have jurisdiction to adjudicate the adjustment of status application because removal proceedings were not yet terminated. Attorney Yu argued that the USCIS clearly has jurisdiction for adjudication of our client’s adjustment application, regardless of whether proceedings were terminated. He argued that termination can occur after the adjustment of status approval. The interview lasted two hours and included a meeting between Attorney Yu and the head of the Los Angeles USCIS, as referred by the CIS officer with regard to the jurisdictional issue. After the meeting, the USCIS officer eventually approved the I-130 petition on the same day.  Eventually, our client’s adjustment of status application was approved by the USCIS on January 26, 2012.  After almost ten years in the United States, overcoming two adjustment of status denials, and being placed in removal proceedings, our client is now finally a permanent resident of the United States.

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

Our client came to the United States in September 2008 with an H-2 temporary work visa from the Philippines. She eventually overstayed her visa and remained in the United States. She married a U.S. Citizen in October 2011 and retained our office on November 8, 2011 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on November 21, 2011.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On January 26, 2012, our client was interviewed at the Cleveland, Ohio USCIS office.  We accompanied them at the interview as well.  On the same day, her green card application was approved.

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CASE: B-2 Visa Extension / I-539
NATIONALITY: Filipino
LOCATION: Cleveland, Ohio

Our clients came from the Philippines on B-2 visitor visas. They came to the United States in early June of 2011 to attend a Math competition in Las Vegas Nevada. Their visas were single entry ones good for only a month, but their tourist status upon entry was good for six months. .  They wanted to visit their grandmother from Ohio so after the competition, they visited her in Ohio. They consulted with our firm about a week before the expiration of their B-2 status. They wanted to extend their visit for six months to spend more time with their grandmother.

Upon retention, we went into detail with their reasons for requesting extension. We made sure all addresses, contact information, and dates on their statements were complete and accurate. We made sure all their plans were supported by corroborating evidence as exhibits to the application to avoid a possible Request for Evidence from the CIS.  Our office submitted letters from family members in the United States and financial statements from the Philippines. We also submitted school ties from the Philippines as proof of their intention to retain. We also submitted return tickets prior to the expiration of the requested extension. Our firm filed the I-539 Extension Application on December 1, 2011, a day before the expiration of their status. On January 9, 2012, their B-2 status extensions were approved with no Requests for Evidence.  Now they can stay in the United States for six more months with their grandmother.

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CASE: H-1B Extension
PETITIONER: Hospital
BENEFICIARY: Physician, Filipino
LOCATION: Erie, Pennsylvania

Our client is a physician from the Philippines who currently works at a hospital in Erie, Pennsylvania with a valid H-1B visa.  His H-1B status was about to expire before he retained our office on July 21, 2011.  Our client sought legal assistance from us for his H-1B 3-year extension.

Once we were retained, our office promptly prepared his H-1B extension application.  The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on August 12, 2011 to the USCIS Vermont Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 6, 2012. The H-1B is good from September 22, 2011 to September 21, 2014.

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

Our client came to the United States in June 2008 with a B-2 tourist visa from the Philippines. She married a U.S. Citizen in June 2011 and retained our office in late August for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on September 20, 2011.  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 December 22, 2011, our client was interviewed at the Cleveland, Ohio USCIS.  Attorney Sung Hee Yu accompanied them at the interview as well.  On the same day, her green card application was approved.

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