Case: I-130/I-485

Potential Issue: Response to Notice of Intent to Deny

Client: Nigerian

Location: Fairfax, VA

Our client entered the United States in May 2008 from Nigeria with a B-2 visitor visa.  Later, she married her U.S. citizen husband in April 2012. She retained our office on February 12, 2013 for her adjustment of status application.

Our office prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on March 15, 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 client via conference calls for their USCIS adjustment of status interview.

On June 14, 2013, our client and her husband appeared at the Fairfax, VA USCIS office for her adjustment interview. The interview was extensive, and at the end of the interview, the USCIS officer scheduled another interview for them. The officer was suspicious regarding the bona fideness of our client’s marriage.

On September 5, 2013, Attorney JP Sarmiento accompanied our client and her husband again at the Fairfax, VA USCIS office her second interview. The interview took more than one hour and the officer thoroughly asked our client and her husband about the bona fide nature of the marriage and some martial issues that the officer had suspicions on.

On April 26, 2014, the USCIS issued a Notice of Intent to Deny (NOID).  The NOID claimed that there was substantial and probative evidence that the marital union between the Petitioner and Beneficiary is not bona fide.  Moreover, the NOID points out that the submitted documentation of Petitioner and Beneficiary does not establish a bona fide nature of their marriage. Lastly, the NOID claimed that there were no third party affidavits for their marital relationship.

In response to the USCIS’s NOID, our office helped our clients draft an extensive affidavit. Multiple supporting documents and an affidavit from our client were all included as well as letters from their friends and neighbors, joint utility bills, joint insurance, and several pictures of our client and his wife in several occasions with different people.  Several legal authorities were cited based on particular issues discussed, and on May 22, 2014, we filed the Response to NOID prior to the 30-day deadline.

Finally, on November 7, 2014, the USCIS approved our client’s case. Both the I-130 Petition and I-485 Green Card Application were approved. Our client is now a green card holder.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship

 NATIONALITY:  Jordanian

 LOCATION: Virginia

Our client came to the U.S. on a J-1 Visa in September 2007 from Jordan.  He came to the U.S. for his research program, and his J-1 visa made him subject to the two-year foreign resident requirement. Our client would like to file an I-140 self-petition under the National Interest Waiver Category and also an adjustment of status application.  However, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Our client could not pursue his waiver under the No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for his research program which made his case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on the exceptional hardship standard. In fact, our client’s U.S. citizen son is experiencing exceptional medical hardships.

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.”

Some of the factors in analyzing exceptional hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

After he retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On April 8, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an extensive brief in support of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen son’s medical conditions.  On April 17, 2014, our office filed an I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Jordan for two years.

Eventually, the Department of State recommended a waiver for our client on November 7. 2014. Subsequently, the USCIS approved his I-612 waiver on November 12, 2014. Now that our client’s two-year foreign residency requirement is waived, he can file an I-140 NIW application along with his adjustment of status application in the United States (technically the I-140 NIW petition could have been filed, but the I-485 adjustment of status application could not be filed unless the waiver was approved).

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CASE: I-751

APPLICANT: Cameroonian

LOCATION: Virginia

Our client contacted our office in January of 2014 regarding her I-751 application.

She is from Cameroon and she married a U.S. citizen in 2011. Through her marriage, she obtained a 2-year conditional green card in April of 2012.  Her conditional residency terminated in April 2014.

To comply with immigration requirements, our client and her husband had to file an I-751 Joint Petition to Remove Conditions. She retained our office on January 29, 2014 and our office prepared an I-751 application for our client with bona fide marriage evidence.

On March 17, 2014, our office filed an I-751 application to the USCIS with multiple affidavits from her friends and family members, joint bank statements, joint tax records, utility bills, and photos of our client and her husband to demonstrate the bona fideness of their marriage.

There was no RFE issuance or interview request for our client’s I-751 application. As a result, on September 22, 2014, the USCIS approved our client’s I-751 application and our client received her 10-year green card.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce

NATIONALITY: Russian

LOCATION: Virginia

Our client is a citizen of Russia who initially came to the U.S. on a J-2 Visa in February 1995. He came with his ex-wife who held a J-1 Visa as a visiting researcher. Both were subject to the two-year foreign residency requirement. Later, both of them started to work at International Governmental Organizations in the United States under G-4 visas. However, they were still subject to the two-year foreign residency requirement.

Unfortunately, their marriage did not work out and he eventually got divorced from his ex-wife. He remained in the United States and has continuously worked for his employer under a G-4 visa.

In September 2011, our client married his U.S. citizen wife. She wanted to file an I-130 petition for him, but he could not file for adjustment of status because of the two-year foreign residency requirement.

He contacted our office, and our firm was retained to do his J-2 waiver on February 12, 2014.

On February 19, 2014 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 March 17, 2014, the DOS sent a recommendation to the United States Citizenship and Immigration Service (USCIS) for our client be granted a waiver. On April 1, 2014, the USCIS issued the I-612 waiver approval.

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CASE: Adjustment of Status / 245(i)

CLIENT: Filipina

LOCATION: Virginia

Our Filipina client came to the U.S. on an H-1B visa in February 2000. After August 2003, her H-1B visa expired and she overstayed her status. Currently, she resides in Virginia.

Our client contacted us around October of 2010 for consultation and sought legal assistance for her and her minor son’s adjustment of status. After consultation, we determined that she is eligible for adjustment of status under INA 245(i) and the priority date for her case was current for November 2010. Our client retained us on October 14, 2010.

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 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.

Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.

Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.

On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.

On November 10, 2010, our office filed their I-485 adjustment of status applications under the 245(i) category for our client and her son.  However, the priority date for the F4 category Philippines backlogged. She got work permits though throughout the duration of the 485’s pendency. Our client had to wait until the priority date becomes current. In February 2014, her priority date became current. Eventually, our client and her son’s adjustment application were approved by the USCIS on February 6. 2014.  After a long wait, our client is finally a green card holder.

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CASE: H-1B Visa Petition (Change of Employer)

PETITIONER:  Environmental Engineering Consulting Firm

BENEFICIARY: Principal Consulting Environmental / Water Engineer

Our client is an Environmental Engineering Consulting Company in Fairfax, VA. They contacted our office in late November 2013 to seek legal assistance from our office for their foreign employee.  The beneficiary is from India and obtained his Bachelor’s degree and Master’s Degree in Civil / Environmental Engineering from Stanford.

The proffered position for the Beneficiary is a Principal Consulting Environmental / Water Engineer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Civil / Environmental Engineering or its equivalent.

The foreign beneficiary in this case already had his H-1B visa from his previous employer which was in a similar industry.  However, his H-1B status was not expired yet, and he wanted to extend his H-1B status on a change of employer basis.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on December 12, 2013 via premium processing service.  Since this petition was based on a change of employer, this petition was exempted from the annual H-1B cap.  Thus, we could file prior to April 1.  There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on December 27, 2013.  Now the Beneficiary can work for his Petitioner-Employer as an H-1B visa holder.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Belgian

LOCATION: Virginia

Our client came to the United States from Belgium to study on an F-1 student visa in January 2012. Later on, she fell in love and married a U.S. Citizen in August 2012. They retained our office on February 6, 2013 for her adjustment of status application.

Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on May 23, 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 16, 2013, our client was interviewed at the Fairfax Virginia USCIS office.  On September 26, 2013, her green card application was approved.

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CASE: I-485 approval after the Termination of Proceedings

CLIENT: Moldovan

LOCATION: Baltimore, MD (EOIR) / Fairfax, VA (USCIS)

Our client came to the United States from Moldova in 2008 with her ex-husband.  While they were residing at the Baltimore area, her ex-husband filed an asylum application to the USCIS.  Our client was a derivative applicant for this asylum application.  Later this case was referred to the Baltimore Immigration Court and removal proceedings were initiated against our client and her ex-husband.  While this asylum application was pending at the Immigration Court, our client and her ex-husband got a divorce due to marital difficulties.  Her previous immigration lawyer filed a Motion to Deconsolidate, but our client never got a response from her previous attorney nor the Court regarding the possible deconsolidation.

Her individual hearing was scheduled in May 2011, but she was not informed of this date.  She later learned that she had a final order of removal because of her absence from her ex-husband.  Once she learned about that, she contacted our office for legal assistance. We advised her that we can file a Motion to Reopen in absentia order of removal based on exceptional circumstances. She retained our office on August 15, 2011.

To rescind the final order, she has to get her 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 August 18, 2011, our office filed the Motion to Reopen with the Baltimore Immigration Court. Documentation of her address at the date of the final order, a detailed affidavit regarding her addresses and her circumstances around the final order date, documentation of her medical appointment on the day of hearing, the last address she provided to the immigration service and to the Immigration Court prior to the final order date, and other supporting documents were submitted (12 exhibits). Eventually, on September 23, 2011, the Baltimore Immigration Court granted our motion and reopened our client’s case.

Our client’s divorce was finalized on August 11, 2011.  After her case was reopened, she married her current U.S. citizen husband in July 2012.  Her U.S. citizen husband filed an I-130 petition on behalf of our client on August 16, 2012 with our legal assistance and they appeared at the I-130 interview on December 18, 2012 at the Fairfax, VA USCIS Field Office.  Prior to the interview, our office thoroughly prepared our client and her husband for the interview.  Although the interview was intensive, on January 9, 2013, the I-130 petition was approved.

After the I-130 was approved, our office filed a Motion to Terminate proceedings with an attached I-485 application and its supporting documents on January 30, 2013.  On February 13, 2013, our client appeared at the Baltimore Immigration Court for her initial master calendar hearing after the reopening of her case.  Attorney Sung Hee (Glen) Yu from our office represented our client at the hearing and sought termination before the Immigration Judge.  The Immigration Judge granted our Motion to Terminate and eventually terminated our client’s case without prejudice on the same day.

Once her case was terminated with the Immigration Court, our office prepared and filed the I-485 Adjustment of Status Application on March 7, 2013, together with other necessary forms and supporting documents. 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 May 22, 2013, our client was interviewed at the Fairfax, Virginia USCIS office. Our client was fully prepared and the interview went well.  On the same day, her green card application was approved.

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CASE:  I-601 Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Argentinian

LOCATION: Washington, D.C.

Our client came to the United States from Argentina as an F-1 student, and later got a job after graduation, eventually getting an H-1B visa.

He later married a U.S. citizen wife and his wife filed an I-130 petition for him. He concurrently filed an I-485 adjustment of status application in 2012.

The I-130 petition was approved; however, the USCIS issued a Notice to Intent to Deny on December 8, 2012 and requested our client to submit an I-601 waiver application because he was found inadmissible due to his previous criminal conviction.

In 2007, our client was convicted of a minor drug possession case in the United States. This conviction made him ineligible for adjustment of status.  As a result of this conviction, he was found to be inadmissible pursuant to Section 212(a)(2)(A)(i)(II) of the INA.  (Criminal ground of inadmissibility).

After the Notice of Intent to Deny was issued, our client contacted our office in December 2012 to pursue his I-601 waiver. Based on his story and surrounding circumstances (hardship to his U.S. citizen wife if he is deported), our office determined that he had a good chance of winning.  Eventually, he retained our office on December 12, 2012.

Section 212(h) of the Immigration and Nationality Act provides a waiver of INA § 212(a)(2)(A)(i)(II) if the crime relates to a single offense of possession of 30 grams or less of marijuana and the Applicant has a U.S. Citizen spouse who would suffer extreme hardship if he or she was denied admission into the United States. In Matter of Martinez-Espinoza, 25 I & N Dec. 118 (BIA 2009), the BIA held that a 212(h) waiver may be sought for a drug paraphernalia conviction that relates to a single offense of simple possession of marijuana. INA § 212(h) provides for a discretionary waiver of the criminal inadmissibility ground. To qualify for the waiver, the alien must establish that his or her U.S. Citizen or lawful permanent resident spouse would suffer extreme hardship if the alien were denied admission. INA § 212(h).

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 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-601 application had a good chance since our client’s U.S. Citizen wife suffers from the misalignment of her foot and related surgeries due to a past incident. In the I-601 brief and supporting documents, our office included extensive medical reports from 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 needs consistent and continuous physical therapy to help deal with her pain 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 infant child. Also, it would be extremely difficult for her to get the same level of physical therapy and satisfactory access to medical services in Argentina 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 Argentina, that our client has good employment in the United States, and that his U.S. citizen child and his wife will face extreme financial and emotional difficulties if he is removed.

On December 18, 2012, we filed the I-601 waiver application which included the brief in support, his wife’s medical records, and other documents that demonstrated hardship to his wife if he is removed from the United States.

On May 15, 2013, his I-601 waiver was approved. Now, his I-485 green card application will be considered again and will likely be approved.

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CASE: Derivative Asylee Adjustment of Status

CLIENT: Malaysian

LOCATION: Virginia

Our client and her family members came to the United States from China with a B-2 visa and through our representation, her husband was granted asylum on February 2011 by the USCIS.

Under the Immigration and Nationality Act, an asylee may apply for lawful permanent resident status after he or she has been physically present in the United States for a period of one year after the date he or she was granted asylum status.

Around February 2012, one year after she and her husband got their asylee status in the United States, our client contacted our office again and sought legal assistance for her and her family members’ adjustment of status.

We prepared and filed her I-485 Adjustment of Status Application on March 7, 2012. Everything went smoothly and the receipt notice and fingerprint appointment all came on time. On March 4, 2013, the USCIS approved our client’s husband’s Adjustment of Status application. On April 15, 2013, her Adjustment of Status application was approved by the USCIS as well.  She is now permanent resident of the United States.

FREE CONSULTATIONS

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

For other asylum success stories, please click here.

For other success stories, please click here.

Also feel free to contact our office anytime for free consultations.

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