Law Offices of Curtis Pierce Succeeds in Obtaining J-1 waiver for Chinese National Based on Persecution (2014)
Jane Lee is a national from China. She entered the United States many years ago as an exchange visitor with a J-1 visa. Like many other individuals with a J-1 visa, Jane was subject to the two year foreign residency requirement.
The two-year home residency requirement (or 212(e), as it is referenced in the immigration regulations) means that those who come the U.S. in J-1 status cannot become permanent residents in the U.S., change status in the U.S., or get work or family-based visa status such as H, L or K until they return to their country of last permanent residence for at least two years cumulatively.
Since Jane’s American citizen husband of many years was here in the United States, and since she would be persecuted if she returned to China, going back to China for two years was not an option.
Why was Jane subject to this 2 year foreign residency requirement?
An exchange visitor is subject to the two-year home-country physical presence requirement if any of the the following conditions exist:
· Government funded exchange program - The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;
· Graduate medical education or training - The exchange visitor entered the United States to receive graduate medical education or training;
· Specialized knowledge or skill: Skills List - The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country.
Fortunately, the 2 year foreign residency can be waived. One of the ways in which the requirement can be waived is through demonstrating that the applicant would be persecuted if she returned to her country. That said, our research indicated that J-1 waivers based on persecution are both difficult to obtain and few are granted.
After a long hard battle, our office recently obtained a waiver of the two year foreign residency requirement for Jane. This waiver had to be approved by both USCIS as well as the Department of State.
Since entering the United States, Jane became a acquainted with the spiritual practice known as Falun Gong. Falun Gong is not tolerated in China. In addition, Jane has openly protested the policies of the Chinese government.
Because of Jane’s fears, Jane remained in the United States after her J-1 visa expired and eventually found herself in removal proceedings. She applied fo withholding of removal in immigration court. The immigration judge found that her claim had merit.
He found that there was evidence that she would be persecuted if she returned to China. As a result, he granted the relief known as withholding of removal. This grant of withholding of removal meant that the Immigration Judge was persuaded that there was clear probability that Jane would be persecuted if she returned to China.
In our application for J-1 waiver to USCIS, we pointed out all the reasons Jane would be persecuted if she returned to China. We of course emphasized that a strict immigration judge saw fit to grant Jane’s request for withholding of removal. In addition, we included an expert opinion of a top university professor of Chinese history who obtained his Ph.D from Harvard. He wrote the following on behalf of Jane:
“Lee’s fear of being detained by the authorities is consistent with my understanding and research. As long as the police believe that Lee was supportive of Falun Gong, she would be at risk of being arrested and detained.…. Ms. Lee’s concerns that Chinese authorities are aware of her having participated at protests in front of the Chinese embassy is consistent with my research and supported by articles from numerous sources indicating that China monitors dissent abroad. There is no doubt that Chinese embassies and consulates abroad have been tasked with the surveillance of Falun Gong activities.”
In spite of this, USCIS denied the application for a waiver. We appealed to the Administrative Appeals Office (AAO) of USCIS and argued among other things that the evidence was not properly evaluated. The appeal was sustained. But that was not the end of it. The Department of State would also have to agree with this decision (by USCIS) after independently evaluating the case. Thankfully, the State Department agreed with USCIS that a waiver of the 2 year foreign residency requirement was warranted.
As a result, Jane Lee is now eligible to apply for a green card without having to leave the United States.
VAWA Victory (2014)
The Law Offices of Curtis Pierce recently represented a young woman from Western Europe who sought benefits under The Violence Against Women Act (VAWA).
VAWA allows battered immigrants to petition for legal status in the United States without relying on abusive U.S.citizen or legal permanent resident spouses, parents or children to sponsor their Adjustment of Status (Form I-485)applications.
Our client had been psychologically mistreated by her American citizen husband. This mistreatment consisted of insults and other forms of verbal and emotional abuse. The onslaught of extremely inappropriate and hurtful comments began shortly after the applicant got married. However, there was no battery or physical harm.
When we undertook this case, we advised our client that this would be an uphill battle and the chances of success were not high.
In VAWA cases, the victim typically presents evidence of physical abuse including photographs as well as a police report. In this particular case, there were no photos reflecting physical mistreatment. The applicant had no visible scars. And since law enforcement was never contacted, there was no police report.
The application was documented with a lengthy declaration from our client detailing her psychological ordeal. Additional evidence included statements by friends and individuals who had knowledge of the mistreatment or had overheard the disparaging comments. Also submitted was a report by a psychotherapist with whom our client had consulted.
After a long and intense battle, the case was approved. Our client is now preparing to file for status as a Lawful Permanent Resident.
Emotional abuse even in the absence of physical scars can be construed as evidence of "extreme cruelty." If the claim is detailed and credible and supported by evidence, emotional abuse can sometimes provide the basis of a successful VAWA case.
For many immigrant victims of domestic violence, battery and extreme cruelty, the U.S.citizen or lawful permanent resident family members who would sponsor their applications will threaten to withhold legal immigration sponsorship as a tool of abuse. The purpose of the VAWA program is to allow victims the opportunity to “self-petition” or independently seek legal immigration status in the U.S. Victims of domestic violence, battery and extreme cruelty whose Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) self-petitions are approved may file Adjustment of Status (Form I-485) applications directly (self-petition). Once a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) VAWA self-petition is approved, the immigrant victim may file an Adjustment of Status (Form I-485) application to become a lawful permanent resident (green card holder) directly.
The cases below were briefed and argued by Curtis Pierce in the United States Court of Appeals for the Ninth Circuit.
Hoxha v. INS, 319 F.3d 1179 (9th Cir. 2003) (PDF)
(The Ninth Circuit Court of Appeals held that an ethnic Albanian from Kosovo had a well founded fear of future persecution.)
Oral argument presented by Curtis Pierce on November 5, 2002 before the Ninth Circuit Court of Appeals.
Cardenas v. INS, 294 F.3d 1062 (9th. Cir. 2002) (PDF)
(In this case, the Ninth Circuit Court of Appeals held that the Board Of Immigration Appeals erred in determining that the petitioner had not established a well founded fear of future persecution.)
Oral argument presented by Curtis Pierce on April 11, 2002 before the Ninth Circuit Court of Appeals.
Lopez v INS, 184 F. 3d 1097 (9th Cir. 1999)
(In Lopez, the court held that the fraudulent representations of a notary posing as as atttorney tolled the statute of limitations for filing a motion to reopen.)
Oral argument presented by Curtis Pierce on February 2, 1999 before the Ninth Circuit Court of Appeals.