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Post image for J2 IGA (Over 21) Waiver of Two-Year Foreign Residency Requirement, Interested Government Agency Approval for Chinese Client in New York

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: New York, NY

Our client is a citizen of China who came to the U.S. on a J-2 Visa in November 1996.  She came with her father who came on a J-1 Visa for his research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, she was attending a school and her family moved back to Canada after her father’s research scholar period was ended. Our client came back to the United States in 2014.

She turned 21 in March 2009. This year, her employer wants to file an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without the fulfillment of requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in March 2009.

Our firm was retained to do his J-2 waiver, and on December 14, 2016, the J-2 Waiver application (Form DS-3035 and supporting documents) 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 reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on January 23, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On February 15, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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Post image for I-751 Removal of Conditions Approval for Indian Client in Long Island New York

CASE: I-751

APPLICANT: Indian

LOCATION: Long Island, NY

Our client contacted our office in January of 2016 regarding his I-751 application.

He is from India and he married a U.S. citizen in June 2013. Through his marriage, he obtained a 2-year conditional green card in March 2014.  His conditional residency was terminated in March 2016.

To comply with immigration requirements, our client and his wife had to file an I-751 Joint Petition to Remove Conditions. He retained our office on January 4, 2016 and our office prepared an I-751 application for our client with bona fide marriage evidence.

On January 11, 2016, our office filed an I-751 application to the USCIS with multiple affidavits from his friends and family members, a copy of birth certificate of their child, joint bank statements, joint tax records, utility bills, joint lease, and photos of our client and his wife 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 January 25, 2017, the USCIS approved our client’s I-751 application and our client received his 10-year green card.

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Post image for Marriage Based I-130 and I-485 Green Card Approval for South African Client in New York

CASE: Marriage-Based Adjustment of Status

CLIENT: South African

LOCATION: New York

Our client came to the United States in August 2015 on a B-2 visitor’s visa from South Africa. Later, she married a U.S. Citizen in February 2016 and retained our office for her petition and adjustment of status application.

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

Once retained, our firm prepared and filed the I-130 petition and I-485 adjustment of status application on August 4, 2016. 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 January 18, 2017, our clients were interviewed at the Latham, New York USCIS office. The interview went well, and our client and her son’s green card applications were approved on the same day of the interview.

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Post image for Asylum Approval for Chinese Client (Political Opinion) at the New York Immigration Court

CASE: Asylum in Immigration Court

CLIENT: Chinese

LOCATION: New York Immigration Court

Our Chinese client came to the United States on a F-1 visa in July 2012.  He was persecuted and harmed in China based on his political opinion and political activism, so within one year of his entry, he filed an asylum application (Asylum, Withholding of Removal, and relief under the CAT) to the USCIS with our office’s legal assistance.  He was interviewed at the Asylum Office in Lyndhurst, NJ in February 2013, but his case was referred to an immigration judge. The Notice to Appear was issued and our client was placed in removal proceedings.  

After the case was referred to the Immigration Court, our client retained our office again.

Our client was scared to go back home to China, fearing that he will be persecuted based on his political opinion and his past political speech. While our client was in China, he made political speech in public and expressed his ideas regarding democracy in China. As a result, he was arrested and detained by the Chinese police and has experienced harm and mistreatments in numerous occasions.  

We helped him prepare his asylum application and represented him in immigration court hearings. We also asked him to provide supporting documents corroborating his claim, some of which were a letter from his father, colleagues and friends in China and medical documents of our client’s psychological health. Our firm also did some research on articles related to his claim, and the type of persecution he will experience in China if sent back.

Our client’s individual hearing was scheduled on December 19, 2016, at the New York Immigration Court. Attorney Sung Hee (Glen) Yu represented our client at the hearing. During the hearing, our client testified credibly as to his past persecution in China and likelihood of future persecution. After the hearing, the Immigration Judge granted asylum relief for our client. He is now an asylee who will get his work permit soon and will be eligible to apply for permanent residency in one year.

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Post image for J2 IGA (Over 21) Waiver of Two-Year Foreign Residency Requirement, Interested Government Agency Approval for Chinese Client in New York

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Chinese

LOCATION: New York City, NY

Our client was a citizen of China who came to the U.S. on a J-2 Visa in August 2008.  He came with his father who came on a J-1 Visa for his research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, he completed his high school and was admitted to the University to pursue his bachelor’s degree. He changed his status from J-2 to F-1.

He turned 21 in 2014. He would like to get a waiver because his prospective employer will file an I-129 petition for our client’s H-1B visa. However, because of her two-year foreign residency requirement, our client cannot change his status in the United States without the fulfillment of requirement or the waiver.

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in March 2014.

Our firm was retained to do his J-2 waiver, and on October 4, 2016, the J-2 Waiver application (Form DS-3035 and supporting documents) 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 reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on November 10, 2016, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On November 23, 2016, the USCIS issued an I-612 approval notice for our client’s waiver request.

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Post image for H-1B Nurse Practitioner Extension Approval for Physician’s Office in New York, Chinese Beneficiary in New York

CASE: H-1B Visa Extension

PETITIONER:  Physician’s Office in Flushing, NY

BENEFICIARY: Chinese Nurse Practitioner

Our client is a dermatology clinic in Flushing, NY which provides cosmetic and dermatologic treatments for its patients. They contacted our office in July of 2016 to seek legal assistance for its foreign beneficiary’s H-1B extension.

The beneficiary is from China and obtained her Master of Nursing Degree in the United States. She also has a valid Nurse Practitioner License in the State of New York. The proffered position for the Beneficiary was for a Nurse Practitioner which we argued qualified as a specialty occupation. We proffered that the minimum requirement for this position is a Master of Nursing Degree or its equivalent. Moreover, Nurse Practitioner needs the state license as well.  She has been working for the Petitioner on a valid H-1B visa.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on August 16, 2016 via regular processing. Eventually, without any RFE, our client’s H-1B extension was approved on November 22, 2016. Now, the Beneficiary can continue to work for the Petitioner on an H-1B status until September 1, 2019 (until her duration of H-1B status reaches the 6th year mark).

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Post image for 601A Provisional Hardship Waiver Approved for Guyanese Client in Albany New York

CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Guyanese

LOCATION: Albany, NY

Our client came to the United States from Guyana in 2005 on a C1/D crew visa. He married his U.S. citizen wife in 2007.  Thereafter, his U.S. Citizen wife filed an I-130 petition for him in 2008. This I-130 petition was approved on November 23, 2009.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility (entry without inspection and admission as a crewman). He needs a waiver of inadmissibility to become a green card holder.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return to the United States

In 2013, the USCIS announced of new policy called the provisional unlawful presence waiver. Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

INA § 212(i) provides for a discretionary waiver of the entry without inspection inadmissibility ground. To qualify for the waiver, the alien must establish that his or her US Citizen spouse would suffer extreme hardship if the alien were denied admission. INA § 212(i)(1). In addition to the equities presented, the USCIS may consider the nature of the inadmissibility ground.

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 the 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 filed I-601A application before with a different immigration counsel, but it was denied in October 2014. Nevertheless, he had since gather more evidence, financial and medical, to have a stronger re-file case.

Our client’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of hardship. Moreover, their U.S. citizen children suffer from great degree of medical hardships. Although their U.S. citizen children are not considered as “qualifying relatives” for the I-601A, we argued that children’s medical hardship is also hardship to our client’s U.S. citizen wife, by virtue of having to take care of them (children with medical / special needs) is an extreme hardship to her. In the I-601A brief and supporting documents, our office included extensive medical reports of his children.  We argued that if he was removed from the United States, extreme hardship to his wife is clearly foreseeable and evident.  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 child. Also, it would be extremely difficult for her and their kids to get the same level of therapy and satisfactory access to medical services in Guyana in case they join 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 Guyana, and that his U.S. citizen child and his wife will face extreme emotional difficulties if he is removed.

On April 28, 2016, we filed the I-601A waiver application which included the brief in support, his wife’s extensive medical examination records, and other documents that demonstrated hardship to his wife if he is removed from the United States. Eventually, his I-601A waiver was approved on October 13, 2016. Now, he can file packet 3 and 4 here in the United States, and would go to Guyana shortly to get his immigrant visa.

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Post image for Physical Therapist I-140 EB-2 Schedule A Approval for Taiwanese Beneficiary and Physician’s Office Petitioner in Brooklyn New York

CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Physician’s Office

BENEFICIARY: Taiwanese

LOCATION: Brooklyn, NY

Our client is a physical therapist. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a physical therapist, she was eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has Master’s degrees in Rehabilitation Science and is a licensed physical therapist in the State of New York. Our office was retained on February 22, 2016 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on June 24, 2016 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  

However, on July 7, 2016, the USCIS issued Request for Evidence (RFE) for her I-140 case. The USCIS requested our client’s employer to explain its multiple locations and our client’s potential place of employment. We filed the Response to RFE on August 11, 2016. Eventually, on August 24, 2016, the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Taiwanese national will be current in October 2016 for the EB-2 category, she is eligible to file her adjustment of status application in October 2016.

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Post image for Registered Nurse  RN Green Card Approval on Approved EB-3 I-140 (Schedule A) for Canadian Registered Nurse

CASE: I-485 Adjustment of Status Based on Approved I-140 (EB-3 Category) / Schedule A
APPLICANT: Canadian Registered Nurse
LOCATION: New York, NY

Our client is a registered nurse who is currently working at a large hospital in New York City, NY. The company was willing to petition her for a third-preference employment immigrant visa petition (I-140).  Our client was eligible for “Schedule A” classification for her I-140 petition.  The Department of Labor (DOL) maintains a schedule of occupations in its regulations for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification application to the Department of Labor.  However, for Schedule A cases, the employer does not have to go through the labor certification process.  The position of Professional Nurses is included in Schedule A.

Our client has a nursing degree and has more than 5 years of related experience. Her employer filed the I-140 petition for her before; however, it was denied due to a prevailing wage issue.  After talking to our client, our firm concluded that her potential employer can petition her again as a Registered Nurse under schedule A category. 

Once we were retained in March of 2011, we proceeded with the I-140 Petition filing. We filed I-140 application on September 9, 2011 via regular processing. We included the job offer letter, employment verification letters from our client’s previous employers, her TN status approval notices, and other necessary supporting documents.  On February 29, 2012, the USCIS Texas Service Center issued a Request for Evidence regarding the “ability to pay” issue. One of the main requirements for the I-140 is that the petitioning company must show that it has the ability to pay the proffered wage for the beneficiary’s position. In response to the RFE, we attached a letter from the petitioner’s financial officer which establishes the petitioner’s ability to pay the proffered wage.  We filed the RFE response on May 3, 2012.  On May 14, 2012, the I-140 was finally approved.

She retained our office again for her I-485 adjustment of status application. We prepared and filed her adjustment of status application along with supporting documents to the USCIS on January 20, 2016 once her priority date became current.

Eventually, our client’s adjustment application was approved by the USCIS on August 1, 2016.  After a long wait, our client is finally a green card holder.

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Post image for EB-2 Nurse Practitioner Schedule A Green Card Approval for Taiwanese in Brooklyn New York

CASE: I-485 Adjustment of Status  / Schedule A

APPLICANT: Taiwanese

LOCATION: Brooklyn, NY

Our client is a family nurse practitioner. Her current employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she was a family nurse practitioner, she was eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has a Bachelor’s and Master’s degrees in nursing and is a certified Nurse Practitioner. Our office was retained on December 17, 2015 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on March 17, 2016 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  On March 25, 2016, without any Request for Evidence (RFE), the USCIS Nebraska Service Center approved her EB-2 I-140 petition.

Once the I-140 petition was approved, our client retained our office again for her I-485 adjustment of status application. Our office filed an I-485 adjustment of status application for our client on April 21, 2016. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on June 30, 2016, the USCIS Texas Service Center approved our client’s adjustment of status application. Now, she finally is a green card holder.

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