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Persistence (and the right lawyer) Pays Off
Never let it be said that patience, spanning almost 20 years, is not eventually rewarded – at least sometimes. Ever since he first came to the U.S. 1990 as a J-1 exchange visitor, all Guojun (Robert) Luo ever wanted to do was work as an engineer and provide a good life for his family. He did not know whether that would be in China or here but doing well for his family was always on his mind. That is why he returned to the U.S. after his J-1 exchange visitor visa ended and enrolled at the University of Texas where he obtained a Master's Degree in 1996. He was then lucky enough to get a job as an engineer with Electrical Systems Analysis, Inc. or ESA and ESA sponsored him for an H-1B professional work visa. ESA was so happy with the work that Robert was doing for them that they decided to file a permanent residence application for him in March of 1997 and this is when the trouble started.
In July of 1998, ESA, wanting to follow all of the rules and wanting to make sure that nothing would jeopardize Robert's employment, contacted the Portland INS office. ESA asked whether there was any need to file for an extension of Robert's H-1B visa which was due to expire in September given that a permanent labor certification application had been filed and was currently pending with the Department of Labor. ESA was told that since a labor certification was pending there was no need to extend the H-1B work visa. The folks at ESA, thinking that did not sound right called INS back and talked to a different officer who told them the same thing. ESA figured that if two INS officers gave the same answer then it must be correct. The problem is that what the two officers told them was wrong.
When Robert's H-1B expired in September of 1998, he and his entire family were out of status. Due to a change in the law in 1996, if this continued for more than 180 days they would be precluded from getting lawful permanent residence based on the filing by ESA unless they remained outside the U.S. for three years. If the family was out of status for a year or more they would be barred for ten years. Since Robert and his family had entered lawfully the only way to trigger this bar was if Robert or any members of his family voluntarily traveled outside the U.S.
Robert, his family and ESA had no idea this was the case and when the Department of Labor approved the labor certification application, ESA proceeded with the next required steps and filed an I-140 immigrant worker petition for Robert with the INS that was also approved. Then in August of 1999, when Robert and his wife Xianna Fu (their children had returned to China) had – unknowingly – been out of status for almost 11 months, they filed an application to adjust status to permanent residence. They also applied for an advance parole document to allow them to travel overseas while the main application was pending. Somehow INS never noticed that Robert's H-1 had expired in September of 1998 and approved the advance parole travel applications. Robert and Xianna traveled to China in early 2000 to see their kids and their parents. In other words, they voluntarily left the U.S. and triggered the 3 year re-entry bar. However, Robert and Xianna still had no idea this had occurred and neither did INS which allowed them back into the U.S. when they returned from China.
In February of 2001, the INS finally denied the adjustment applications but not for the reason you might think. They still did not realize Robert and Xianna had been out of status and – based on the incorrect advice given by INS to ESA - Robert, Xianna and ESA did not know either. INS denied the applications because back in 1990, when Robert first came to the U.S. as a J-1, he was required to return home to China for 2 years before he could get another visa or file for a waiver of that requirement. Robert did not know he was required to do this and the U.S. Consulate in China and the INS had granted him his student visa and then later his H-1 work visa when they knew he had just returned to China from a J-1 so, again, Robert did not have any reason to think anything was wrong.
When he became aware of the problem, Robert immediately filed for a waiver of the requirement, the waiver was granted and he and Xianna filed new applications for adjustment of status. By now, it had been 12 years since Robert first came on that J-1 visa and 5 years since his employer followed the bad advice from INS but Robert remained patient and waited, and waited, and waited. When he or ESA would inquire about the status of the case they were told there were backlogs but all was fine and they should just wait.
Then, in January of 2005, USCIS (as the INS is now called) issued an Intent to Deny the applications filed in 2002 on the basis that in 1998-1999, Robert and Xianna had been unlawfully present for more than 180 days but less than 365 days and had triggered the 3 year re-entry bar when they traveled to China on the advance parole documents. This is when Robert, Xianna and ESA finally had enough and hired Dagmar Butte here at Parker, Bush & Lane.
Dagmar prepared a response to the Intent to Deny that not only pointed out that Robert and Xianna were only in the pickle they were in because ESA had received incorrect advice from INS but also pointed out that based on a recently decided case called Perez-Gonzalez, anyone like Robert who had filed an application prior to April 30, 2001, was not affected by the 3 year re-entry bar because they were protected by a section of the law most people know as 245(i).
The problem was that USCIS did not like the case that decided 245(i) protected people like Robert and Xianna, so they shelved the case along with the cases of hundreds of others pending further developments. In 2007, after getting impatient with the government, a group of lawyers filed a class action law suit called Duran-Gonzales demanding that the USCIS follow Perez-Gonzalez and decide the cases of people like Robert that had been sitting on shelves for years.
Without boring you all with the details of the litigation, the bottom line was that in 2008, the Court in Duran-Gonzales essentially overruled Perez-Gonzalez. There are some technical wrinkles here but they are not important to this story. What is important is that USCIS then proceeded to pull all of these cases off the shelf and deny them. This included Robert and Xianna who received their denial in early 2009. Worse – the denial said that they were not only subject to the 3 year re-entry bar but also to the 10 year re-entry bar. They were devastated, they were ready – after trying so hard to remain in the US for all these years – to sell their house and go back to China. Robert had already called the realtor!
This is when Dagmar persuaded ESA, Robert and Xianna to try one more time because something positive had actually happened in the time that their most recent application was pending. USCIS – through its Office of Chief Counsel – had issued a couple of advisory letters that said that if a person who was subject to the 3 year re-entry bar triggered it by departing the US but was then readmitted to the U.S. (even if that admission was in error) then that person could count the time spent in the U.S. after that admission toward fulfillment of the bar. By the time Robert and Xianna received their 2009 denials it had been far more than 3 years since they had returned from their trip to China and had been admitted on their advance parole documents.
This meant Robert and Xianna could get permanent residence before they were ready to retire!!! Right?!?!?! Well, only so long as Dagmar could persuade USCIS that they were wrong in concluding Robert and Xianna were subject to the 10 year bar. As it turns out, they were wrong. Contrary to their own policy and the law, USCIS had added the period of time Robert and his wife were out of status prior to their trip to China to the time they were out of status after they returned. As a result, Robert and Xianna decided to try one more time much to the relief of the people at ESA who had come to think of them as family.
In March of 2009, they tried again and filed new applications for adjustment of status and then they waited, nervously. You might think they were used to waiting after all this time but this was the last chance and everyone knew it. When their case was transferred to the Portland USCIS office and they were called for an interview in late August of 2009, everyone felt that the law was on their side but no one dared to call it a sure thing. After all – so much had gone wrong since 1990 anything could happen. What happened was this – the officer could not have been nicer, the interview was very short and near the end the officer booted up the computer to the screen that indicates the case is being granted. When it finally sank in for Robert and Xianna that their case had been approved their reaction was a beautiful mixture of joy and disbelief. Most wonderful was witnessing Robert realize that he could, after all of these years, finally see his frail, elderly mother again.
The practice of immigration law is filled with uncertainty and often heartbreak and it is easy to get discouraged. Cases like Robert and Xianna's remind us that sometimes – if we just don't give up – the right thing gets done and the law works. Here is hoping for many more Robert and Xianna's in 2010!!!!!!!!!!!!!!
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