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Green Card Approval Through Marriage, Visa Waiver Entry for Korean Client in Cleveland, OH

by JP Sarmiento on February 12, 2017

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Case: I-130/I-485
Applicant/Beneficiary – Korean
Location: Cleveland, OH

Our client entered the United States in August 2016 from South Korea under the visa waiver program. She came here to visit her U.S. citizen boyfriend (now her husband) during summer. As a Visa Waiver Entrant, she was only authorized to remain in the United States only for 90 days.  

Later, in September of 2016, our client and her U.S. citizen boyfriend married in the United States. Her husband contacted our office, and they retained our office on September 27, 2016.  One main issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Since our client resided in Cleveland, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny his application because of her visa waiver entry.  

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on October 11, 2016.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status and argued that the application was filed before her authorized stay period was expired. Everything went smoothly and the receipt notices, the fingerprint appointment, and the work permit all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On January 30, 2017, our client was interviewed at the Cleveland, Ohio USCIS Field Office. Attorney Sung Hee (Glen) Yu accompanied them at the interview as well.  Despite the visa waiver issue, the USCIS officer approved her green card application on February 9, 2017.  Now, our client becomes a green card holder.

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