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Post image for Thailand J-1 Waiver on No Objection Statement Approval for Client in Ohio

CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, No Objection Statement

 NATIONALITY: Thai

 LOCATION: Ohio

Our Thai client came to the U.S. on a J-1 Visa in August 2008.  She came to the U.S. for research training, and her J-1 visa made her subject to the two-year foreign resident requirement.

In February 2014, our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Thai Embassy in the United States.  On April 15, 2014 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request with supporting documents to the Thai Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Thai Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 10, 2014, 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 October 27, 2014.  Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband’s I-130 petition.

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Post image for 601A Provisional Hardship Waiver Approval for Mexican Client in Ohio

CASE:   I-601A Hardship Waiver of Inadmissibility

APPLICANT / BENEFICIARY: Mexican

LOCATION: Ohio

Our client came to the United States from Mexico in July 2003 without inspection and admission. When he made his entry to the U.S., he was only 16 year old.

He married his U.S. citizen wife in 2011 and they have a U.S. citizen child together. Through our office’s assistance, his U.S. Citizen wife filed an I-130 petition for him on July 19, 2013. This I-130 petition was approved on January 15, 2014.

However, our client cannot file for adjustment of status application due to his ground of inadmissibility. 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

Last year, 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’s I-601A application had a good chance since our client’s U.S. Citizen wife suffers from a great degree of medical hardship. Also, his U.S. citizen son has medical hardships as well (can’t me the qualifying relative, but still an argument that could be imputed to his US Citizen wife).

In the I-601A brief and supporting documents, our office included extensive medical reports of his wife.  We argued that if he was removed from the United States, extreme hardship to his husband is clearly foreseeable and evident.  His wife has ongoing medical hardships 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 young child. Also, it would be extremely difficult for her to get the same level of therapy and satisfactory access to medical services in Mexico 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 Mexico, 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 August 14, 2014, we filed the I-601A waiver application which included a 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 22, 2014. Now, he can file packet 3 and 4 here in the United States, and would go to Mexico shortly to get his immigrant visa.

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Post image for Approved Naturalization N-400 for Israeli Client with multiple DUI Convictions in Cleveland Ohio

CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Israeli

LOCATION: Ohio

Our client contacted us in 2013 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from Israel and obtained his green card in June 2002. He retained our office for his naturalization and citizenship N-400 application. He was concerned about his multiple DUI convictions and disorderly conduct charge. He also had a drug case which was dismissed. Nevertheless, our client had a clean record since 2008, so he we told him we can use this as argument for his good moral character (5 years is the rule, but CIS can go past 5 years to make this good moral character assessment).

The naturalization and citizenship N-400 application was filed on January 6, 2014 with all supporting documents. Our office prepared him before his naturalization interview, and also accompanied him on June 2, 2014 at the Cleveland CIS office. Our client passed his naturalization and citizenship N-400 interview. However, his N-400 case remained pending due to his former criminal convictions. The USCIS officer asked our client to submit a certified copy of his criminal records and an affidavit from his former spouse. We filed the RFE response to the Cleveland USCIS Field Office in July 7, 2014.

Eventually, his naturalization application was approved on October 6, 2014. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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Post image for Pharmacist H-1B Case – Successful Motion to Reopen (I-290B) after H-1B Denial, No License, But with Deficiency Letter, H-1B Approval for Healthcare Staffing Company in Ohio and Pharmacist Intern Filipino Beneficiary

CASE: Motion to Reopen (I-290B) / H-1B Visa Petition

PETITIONER: Healthcare Staffing Company

BENEFICIARY: Filipino Pharmacist Intern

Our client is one of the leading healthcare staffing firms in Northeast Ohio, serving the general staffing needs of regional hospitals and clinics. They contacted our office in early March to seek legal assistance from our office for their foreign employee.

The beneficiary is a licensed pharmacist in the Philippines who obtained his Doctor of Pharmacy degree in the Philippines. The proffered position for the Beneficiary is a Pharmacist Intern because he does not have any U.S. Pharmacist license. Still, we showed that this is a “specialty occupation” because the minimum requirement for this position is a Doctor of Pharmacy Degree.

When our client contacted us, the numerical cap of H-1B visas for fiscal year 2014 was not available. Also, since the Petitioner is a staffing firm, their foreign employee will be placed at different hospitals (off-site employment issue).

We told our client that we can argue that they are qualified for some of the exemption provisions for the H-1B cap. We explained that we can argue the nonprofit exemption, as well as cite some CIS memorandums regarding eligibility for H-1B petitions despite off-site employment.

We showed that the main reason for cap-exemption is that the foreign employee will be placed at two hospitals which are non-profit research organizations as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Our office argued that this H-1B petition is exempted from the H-1B numerical limitations (cap-exempt) because the Petitioner will employ the beneficiary to perform job duties at non-profit research organizations (two hospitals) as defined in 8 C.F.R. 214(h)(19)(iii)(C) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution (nonprofit research).

We also argued that these two hospitals are clearly qualified as non-profit research organizations as defined in 8 C.F.R. 214(h)(19)(iii)(C). These two organizations are primarily engaged in basic research and/or applied research. Moreover, the beneficiary’s job duties, which will be performed on-site at qualifying non-profit research organizations, will be similar to those performed by actual employees (Pharmacist Interns) of the two hospitals in the furtherance of the qualifying entities’ mission.

Furthermore, we explained that the Petitioner will comply with the statutory and regulatory requirements of the H-1B non-immigrant classification for the placement of the beneficiary at the two hospitals during the period of employment.  We mentioned that the beneficiary will be paid higher than the prevailing wage for the pharmacist position by the Petitioner, and Petitioner-Employer will maintain an employer-employee relationship with the beneficiary. The Petitioner has the right to control the work of the beneficiary on a day-to-day basis as well. We explained that the Petitioner has a sole right to hire, pay, and has the ability to fire the beneficiary as well.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 7, 2013 via premium processing.

However, the USCIS California Service Center issued Requests for Evidence (RFE) on May 22, 2014 and requested Petitioner to demonstrate that the prospective places of employment for Beneficiary are truly non-profit organizations under the definition of cap-exempt purposes. Also, the USCIS requested additional information regarding the qualifications of Beneficiary for the proffered position.

The USCIS requested the Petitioner to submit evidence regarding his lack of license – in particular, further proof that he could not get a license in Ohio due to what we claimed on the initial application as a lack of social security / status.

Once we received the RFE request, our office prepared the response for the RFE and argued that the prospective places of employment for Beneficiary are non-profit medical research organizations and Beneficiary’s work will be similar to Pharmacist Interns in those hospitals.

We submitted the name, address, and contact information of supervisors of each Pharmacy where Beneficiary will be placed.  We also included why he could not take the Board exam (since he does not have a social security number) and did not get a license.We filed this Response to the RFE on May 29, 2014.

Unfortunately, the USCIS denied this case in June 2014. They agreed with our position on the “cap-exempt” issues, however, they did not accept the Ohio Pharmacy Board requirements proof that we submitted showing that they needed a social security number, and that our client did not have one. They instead wanted a deficiency letter.

So our client applied for a license with knowledge that they won’t give it to him, just so that the CIS will be satisfied with the evidence. He indeed got a deficiency letter from Ohio, which we submitted in a Motion to Reopen.

We also argued in light of the Donald Neufeld March 21, 2008 Memorandum. According to the memo and adjudicator’s Field Manual Section 31.3(d), “adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1B status.” We argued that beneficiary’s status would allow him to obtain a social security number which will lead him to get his license.

Our office filed a Form I-290B (Motion to Reopen) and a detailed brief with exhibits to the USCIS California Service Center on July 9, 2014.  Eventually, our client’s Motion to Reopen was granted by the USCIS on September 15, 2014. Subsequently, his H-1B application was approved on October 1, 2014. Now, the beneficiary can work for the Petitioner from October 1, 2014 for one year.

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Post image for Schedule A EB3 Registered Nurse Priority Date Retention Approval for Filipino Beneficiary in Bangkok Thailand and Nursing and Rehabilitation Center Petitioner in Houston Texas

CASE: I-140 (EB-3 Category) / Schedule A / Old Priority Date Retention

EMPLOYER: Nursing / Rehabilitation Center

BENEFICIARY: Filipino Registered Nurse in Bangkok, Thailand

LOCATION: Houston, TX

Our client’s beneficiary is a registered nurse from the Philippines licensed in the state of Texas. Currently, he is working at a hospital in Bangkok, Thailand as a nurse. His prospective employer was willing to petition him for a third-preference employment immigrant visa petition (I-140). Our client also has an approved EB-3 I-140 petition with a priority date of January 2009.

Since he is a registered nurse, he is 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 Professional Nurses is included in Schedule A.

Also, under 8 CFR 204.5(e):

“Retention of section 203(b)(1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.”

As mentioned above, our client’s approved I-140 petition was not denied, was actually approved, and was never revoked at any point. Thus, by virtue of 8 CFR 204.5(e), this succeeding I-140 Petition by our client’s prospective employer for our client is entitled to the previous priority date.

Our client has a nursing degree and has several years of related experience. Our firm told him that his potential employer can petition him as a Registered Nurse under the schedule A category. More importantly, since the priority date of his previous I-140 was current, he can eventually apply for his immigrant visa via consular processing. Our office was retained on July 27, 2014 and we started on his Prevailing Wage Request.

We filed the I-140 application on October 2, 2014 via premium processing. We included the job offer letter, the notice of filing, his previous I-140 approval notice, and other necessary supporting documents.  Eventually, on October 8, 2014, the I-140 was approved and it retained our client’s old priority date.  Now, our client can eventually file his immigrant visa application.

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Post image for I-130 and I-485 Marriage Based Petition and Adjustment of Status Green Card Approval for Russian Client in Cleveland Ohio

CASE: Marriage-Based Adjustment of Status

CLIENT: Russian

LOCATION: Cleveland, OH

Our Russian client came to the United States on a F-1 student visa to pursue her ESL Program in September 2011. She married a U.S. Citizen in June 2013 and retained our office on March 27, 2014 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on April 21, 2014.  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 as well. On October 3, 2014, our client was interviewed at the Cleveland, OH 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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Post image for I-130 and I-485 Marriage Based Petition and Adjustment of Status Green Card Approval for Filipina Client in Cleveland, OH

CASE: Marriage-Based Adjustment of Status

CLIENT: Filipina

LOCATION: Cleveland, OH

Our Filipina client came to the United States on a J-1 exchange visitor visa to do her internship in the United States in July 2013. She was not subject to the two-year foreign residency requirement.

She married a U.S. Citizen in June 2014 and retained our office on June 27, 2014 for her adjustment of status application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on July 10, 2014.  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 as well.

On September 30, 2014, our client was interviewed at the Cleveland, OH USCIS.  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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Post image for Naturalization and Citizenship N-400 Approval for Mexican Client in Cleveland Ohio

CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Mexican

LOCATION: Cleveland, Ohio

Our client contacted us in June 2014 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from Mexico and obtained his green card in July 1991. He retained our office for his naturalization and citizenship N-400 application on June 23, 2014.

The application was filed on June 25, 2014 with all supporting documents. Our office prepared him before his naturalization interview in our office. On September 5, 2014, our client appeared for his N-400 interview at the Cleveland CIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. Our client answered all questions correctly and passed his naturalization and citizenship N-400 interview. Eventually, his naturalization application was approved on September 11, 2014. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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Post image for Despite Visa Waiver Transit Entry, I-130 and I-485 Green Card Marriage Approval for Lithuanian Client in Columbus Ohio

Case: I-130/I-485

Applicant/Beneficiary – Lithuanian

Location: Columbus, OH

Our client entered the United States in April 2013 from Lithuania under the visa waiver program. She had a transit stamp on the passport though 90 days was given. While her flight was delayed, she spoke with a close friend and decided to stay in the US.

As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days, as was stamped on her passport.

Later, in May 2014, our client married her U.S. citizen boyfriend. However, her authorized stay had elapsed. Our client and her husband contacted our office, and they retained us on May 30, 2014.

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. Another issue also was the “transit” note there (which also conflicted with the 90 day handwritten date provided on the stamp).

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.

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on June 26, 2014.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. 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. On September 11, 2014, our client was interviewed at the Columbus, Ohio USCIS Field Office.  Despite the visa waiver issue, on the same day, the USCIS approved her green card application.  Now, our client is a green card holder.

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Post image for Naturalization and Citizenship N400 Approval for Filipino Client in Cleveland Ohio

CASE: N-400 (Citizenship / Naturalization)

APPLICANT: Filipino

LOCATION: Cleveland, Ohio

Our client contacted us in June 2014 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from the Philippines and obtained his green card in March 1999. He retained our office for his naturalization and citizenship N-400 application on June 9, 2014.

The N-400 application was filed on June 25, 2014 with all supporting documents. Our office prepared him before his naturalization interview in our office. On September 2, 2014, our client appeared for his N-400 interview at the Cleveland CIS office. Attorney Sung Hee (Glen) Yu from our office accompanied our client as well. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his naturalization application was approved on September 9, 2014. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.

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