CASE: H-1B Visa Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: MDS Coordinator, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is 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 filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on August 30, 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 a lengthy 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 the organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 31, 2013. Eventually, our client’s H-1B application was approved on January 6, 2014. Now the Beneficiary can work for the Petitioner on an H-1B status until September 14, 2016 as a MDS Coordinator.

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CASE: H-1B Petition

PETITIONER: Nursing Home Facility in Texas

BENEFICIARY: Nurse Manager, Filipina

Our client is a Nursing Home Facility near Houston, TX. They contacted our office in late February to seek legal assistance for their prospective foreign employee.

The beneficiary obtained her Bachelor’s degree in Nursing in the Philippines. The proffered position for the Beneficiary is a Nurse Manager. 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. We emphasized that Nurse Manager position is clearly different from a registered nurse because the Nurse Manager will be responsible for both managerial and clinical duties.

After retention, our office prepared and filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing. However, the USCIS California Service Center issued a Request for Evidence (RFE) on July 25, 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 a 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.  We also included a detailed statement regarding the number of registered nurses the Beneficiary will supervise. Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. Furthermore, we included an organization chart for the department where the beneficiary will be assigned.

Our office filed the response to the USCIS Vermont Service Center on October 16, 2013. Eventually, our client’s H-1B application was approved on December 23, 2013. Now the Beneficiary can work for the Petitioner on an H-1B status until September 13, 2016 as a Nurse Manager.

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CASE: Cancellation of Removal for Permanent Residents

CLIENT: Guatemalan (Green card holder)

LOCATION: El Paso Immigration Court in Texas

Our client came to the United States in 1987 when she was a child. Through INA Section 245i, she got her green card in 2001.  She has been in the US ever since. She has seven U.S. Citizen children and most of her immediate family members are either U.S. Citizen or green card holders.

Unfortunately she was convicted of aiding and abetting someone’s illegal entry in early 2013. Because of this conviction, she was inadmissible and was placed in removal proceedings.  In late March of this year, our client contacted our office for legal representation. We were retained on April 1, 2013. The case at the onset was tough because her conviction may constitute an aggravated felony; however, after the careful review, her conviction did not rise to the level of aggravated felony, and so it was not alleged on her Notice to Appear. This was critical and made her eligible to apply for Cancellation of Removal.

Once retained, we represented our client before the El Paso Immigration Court at her initial master calendar hearing on July 8, 2013. Attorney Sung Hee (Glen) Yu represented her at the hearing and sought cancellation of removal relief for permanent residents.

Under INA Section 240A(a), for a permanent resident to be eligible for Cancellation of Removal, the alien must prove that s/he:

• Has been an LPR (green card holder) for at least five years;

• Has resided in the United States continuously for seven years after having been admitted in any status;

• Has not been convicted of an aggravated felony; and

• Merits a favorable exercise of discretion.

The criteria for favorable exercise of discretion was explained in Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The BIA in C-V-T stated that the factors that the immigration judge must consider when deciding whether to grant cancellation of removal to a lawful permanent resident are as follows:

The positive factors are:

• Family ties in the United States, particularly ties to lawful permanent residents or U.S. citizens;
• Residence of long duration in the U.S. (particularly when the inception of residence occurred at a young age);
• Evidence of hardship to the Respondent and his family if deportation occurs;
• Service in the U.S. armed forces;
• A history of employment;
• Existence of property or business ties;
• Evidence of value and service to the community;
• Proof of genuine rehabilitation if a criminal record exists;
• Other evidence attesting to a Respondent’s good character.

Adverse factors include:

• Nature and underlying circumstances of the grounds of removal;
• The presence of additional significant violations of the Immigration Laws;
• The nature, recency, and seriousness of criminal records; and
• The presence of other evidence has been indicative of a respondent’s bad character or undesirability as a permanent resident of the U.S.

Generally, the immigration judge must weigh the positive factors against the negative factors in exercising her discretion.

After the Master Calendar Hearing, the Court scheduled the individual hearing date on December 11, 2013.

Our firm worked with our client and her friends and family members for the application and its supplemental documents. We contacted her family members in other states for supporting documents and letters of support.

Our firm eventually was able to gather supporting documents and prepared supplemental evidence with multiple exhibits, and arranged them pursuant to the specific elements of Cancellation of Removal eligibility.

In preparing our client for the Individual Hearing, Attorney Yu talked to our client over conference calls several hours each time. Obviously the central issue in this case would be whether or not our client’s positive factors outweigh the negative factors, with the alien smuggling conviction looming as a very big negative factor.

At the Individual Hearing on December 11, 2013, Attorney Yu represented our client at the El Paso Immigration Court in Texas. Testimony then followed and we questioned our client extensively on the positive factors of her case. Attorney Yu questioned her regarding her length of residence in the U.S., employment history, educational history, family issues and hardships to her and her family members (especially her seven U.S. citizen children) if she was to be deported to Guatemala. Our client was prepared, was very consistent, and was honest in her answers.  After direct examination, the DHS counsel only asked three more questions and agreed to not oppose the grant of her relief.

In the end, the El Paso Immigration Court granted our client’s cancellation of removal relief. It was a tough call and our firm was very happy for our client. She has been here since 1987 but had one bump along the way.  She has reformed, will finish her studies, and will continue supporting her seven kids. It was obviously an emotional moment as her parents, sisters, and friends were in Court.

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CASE: Termination of Removal Proceedings

CLIENT: Cameroonian

LOCATION: Client: Houston, TX / EOIR: Cleveland, OH

Our client came to the United States from Cameroon in 2000.  He entered legally on an F-1 visa.

In 2002, he filed for asylum with the USCIS.  He was interviewed at the CIS office, but his asylum application was referred to the Immigration Court in New Orleans.  After his first master calendar hearing, he requested for a change of venue to Hartford, CT.

In 2004, our client married his U.S. citizen wife and she filed an I-130 on behalf of our client. Our client filed the I-485 adjustment of status application simultaneously with the I-130 petition even though he was in removal proceedings. He had no legal representation at that time.

However, with the help of the Immigration Judge and DHS counsel, he served copies of the I-130 and I-485 application and informed the court that he filed the adjustment of status application. When he served the copies of his I-130/I-485 application, the DHS attorney told our client that she will try to re-route the I-485 application he filed to the CIS to the court. Our client assumed that given that he had been in clear communication with the Court and the DHS attorney, that everything will be fine with his case and that both files will be merged.

Later in August 2004, our client moved to Cleveland, Ohio due to his new employment and his case venue was changed from Hartford, CT to Cleveland, OH as well.  He attended his master calendar hearings in Cleveland, and in December 2005, our client and his wife attended their green card interview at the USCIS Cleveland Field office.  After the interview, our client eventually got his conditional green card in the mail and he was under the assumption that if he was given a green card, then he must have done everything right and that the removal case had been dropped.

While he resided in the Cleveland area, he moved to a different addresses and he had always promptly notified both Immigration Court and the USCIS by filing change of address forms.  In April 2006, he went to his master calendar hearing which he got in his new address.  However, our client was told to go home and that he will get a letter in the mail with a re-scheduled master hearing date.  He never received anything else from Court since then.

As mentioned above, our client got his green card and he filed an I-751 application two years later to remove conditions on the green card. He also got this. He had foreign trips and on one of his entries, the issue of his final order came up but he eventually was let go and his green card was even given back to him.

Later, he filed an N-400 naturalization application and during his N-400 interview the final order of removal in absentia which was issued in November 2006 was brought up again. He was stunned and contacted a local immigration attorney in Houston, Texas where he currently resides. However, his attorney never filed the Motion to the court.

Our client contacted our office in late April 2013 and sought 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 May 9, 2013, our office filed a 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, copies of his green card and immigration related documentation, 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 (14 exhibits).

On June 19, 2013, the Cleveland Immigration Court granted our motion and reopened our client’s case.  Once his case was reopened, his master calendar hearing was scheduled on September 24, 2013 at the Cleveland Immigration Court. Prior to the master calendar hearing, our office filed a Motion to Terminate with the Cleveland Immigration Court.

On September 24, 2013, our client appeared at the Cleveland Immigration Court for his master calendar hearing. Attorney Sung Hee (Glen) Yu of our firm represented him at his Master Calendar hearing. During the Master Calendar hearing, our attorney sought for termination of proceedings, but the Immigration Judge continued his case to allow the DHS to respond to our Motion to Terminate.

Eventually, the DHS did not oppose our Motion to Terminate. As a result of that, on December 2, 2013, the Immigration Judge issued her order to terminate our client’s removal proceedings.

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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-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Chinese

LOCATION: Houston, Texas

Our client is a citizen of China who came to the U.S. on a J-2 Visa in January 2003. She came with her husband who held a J-1 Visa as a visiting scholar. Both were subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and she eventually got divorced from her ex-husband. She lost her J-2 status and she was still subject to the two-year foreign residency requirement.

She remained in the United States and pursued her education. She is now enrolled into a Ph.D. program in Nursing.

Her prospective employer is willing to file an H-1B I-129 petition for her, but until she gets a waiver of the 2-year foreign residency requirement, she cannot change her status.

She contacted our office, and our firm was retained to do her J-2 waiver on August 16, 2013.

On August 26, 2013 the J-2 Waiver 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.

On September 27, 2013, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On October 16, 2013, the USCIS issued the I-612 waiver approval.

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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: 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-130 and Consular Processing (Immigrant Visa) – Marriage-Petition

Our client is a U.S. citizen who married his wife in Tbilisi, Georgia in December 2012.  After the marriage, he came back to the United States and contacted our office in early January 2013 and retained us to bring his wife to the States.

Our office prepared and filed the I-130 to the USCIS in January 8, 2013. After the I-130 was filed, everything went smoothly, there were no requests for evidence, and the receipt notices came on time.

The I-130 Petition was approved on March 11, 2013.

After the I-130 approval, we filed the immigrant visa packets to the National Visa Center on May 24, 2013, who in turn forwarded our client’s materials to the U.S. Embassy in Tbilisi, Georgia. An interview notice was set for the client at the US Embassy in Tbilisi, and we prepared her for the interview. On August 7, 2013, the interview was conducted.  Eventually, on August 30, 2013, the U.S. Embassy in Tbilisi, Georgia approved and issued her immigrant visa.

With the approved Immigrant visa, our client’s wife can come to the United States immediately, and she will get her green card within two weeks of entry.

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CASE: J-1 No Objection Statement Waiver
NATIONALITY: Indian
LOCATION: Austin, TX

Our Indian client came to the U.S. on a J-1 Visa in December 2006.  He came to the U.S. for business training, and his J-1 visa made him subject to the two-year foreign resident requirement.

After his J-1, he changed status to H-1B and maintained his status in the United States.

In April 2013, our client got engaged with his U.S. citizen fiancée and they planned to get married in October 2013. His fiancée eventually will file an I-130 petition for our client and our client will simultaneously file an I-485 adjustment of status application. But due to the two-year foreign residency requirement, he had to obtain a waiver first.

After he retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indian Embassy in the United States.  Our office made sure we knew all the requirements needed for their office to issue a no objection statement.

On June 3, 2013 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would be eligible to file a marriage based adjustment of status application but for the waiver.

The Indian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On August 6, 2013, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on August 13, 2013.  Now that our client’s two-year foreign residency requirement is waived, he can file an adjustment of status application with his wife’s I-130 petition once they get married.

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