After years of fighting to stay in the U.S., one of our clients was approved for his green card today. I originally took this case in 2009 when my client was in deportation proceedings. He was married to a US citizen, but they had not filed any paperwork. We filed the I-130 visa petition, and the couple was interviewed. The I-130 was approved.

We went back to the immigration court and asked the judge to terminate proceedings so my client could file the I-485 application to adjust status with USCIS. The immigration judge agreed.

We filed the adjustment of status in 2012. In 2013, USCIS requested an I-485 interview with my client and his wife; however, my client's US citizen wife was very ill at that time and she could not attend. I asked them to reschedule the interview. She died a few months later.

The case fell into the cracks and, despite numerous attempts to move the case forward, nothing happened for almost two years. Finally, earlier this year, USCIS scheduled a second interview for the I-485 application. My client and I attended the interview in Santa Ana and provided evidence that my client's wife had passed away. We provided a legal brief explaining why my client was eligible to adjust to permanent residency despite his wife's death. Since that interview, we followed up with the officer and supervisor and requested that the case be approved.

Today, we received the great news that my client would be approved for permanent residency. After almost 15 years, he will be able to visit his family in Kenya with the peace of mind that he can return to the US safely to resume his life.

Fashion models are typically admitted into the United States as nonimmigrants by obtaining an H-1B visa or an O-1 visa.  Most models obtain H-1B visas because it requires a lower standard.  However, it is important to note there is a limited number of H-1B visas available per year and time is of the essence when filing an H-1B visa.

In order to apply for an H-1B visa, a model must meet certain criteria.  Fashion models that apply under the H-1B category, must demonstrate they are of distinguished merit and ability.  8 CFR 214.2 (h)(1)(i).  In order to establish this, the fashion model must show they are prominent in the field.  Prominence is defined as a “high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered.” (Matter of Shaw, 11 I&N, Dec. 277 (DD 1965) at 280).  In other words, the fashion model must be well-known, leading, or renowned.  A fashion model establishes “prominence” by presenting specific documentation.  For example, the fashion model must show any two of the following:

(1) The model has national or international recognition, which can be evidenced by articles, news stories, or critical reviews;
(2) The model will be performing for employers that have a distinguished reputation;
(3) The model has recognition by experts or critics; or
(4) The model commands a high salary in relation to others.

A model agency must file for the model’s visa as the model’s employer.  This means the agency may “hire, pay, fire, supervise or otherwise control the work” of the model.  8 C.F.R. §214.2(h)(4)(ii).  As the employer of the model, the agency must prove the model will be performing prominent services.  According to 8 C.F.R. §214.2(h)(4)(vii), the petitioner (employer or agent) must show a copy of the written contract or a summary of the terms of the oral agreement.  The petitioner must also show that the services to be performed are for a distinguished event, production, or organization that has a distinguished reputation.  
Fashion models will also have to comply with the other rules relating to an H-1B in a specialty occupation.  For example, the employer or agent must obtain an approved labor condition application stating the employee (model) will receive the required wage rate.  Further the employer must file a petition for the model with USCIS.  

The attainability of the H-1B visa is greater than the O-1 visa because the model need only establish they have “distinguished merit and ability” rather than “extraordinary ability” in business.  While the model still needs to prove some level of recognition, it is not at the level an O-1 visa would require.  This leaves more room for the models who have not yet reached the notability of the elite models such as Gisele Bündchen or Adriana Lima.  In order to prove recognition in their field, it is important for the model to retain tear sheets from catalogs, brochures, magazines, etc.  If the fashion model is not able to obtain the H-1B visa because the H1-B cap has been filled, she or he may also try obtaining a nonimmigrant visa through the O-1 category.

Although the O-1 category does not have a quota, it requires a higher standard.  Here, rather than the model establishing the lower standard of “distinguished merit and ability,” the model must prove they have an “extraordinary ability in business.”  The INA defines an alien with extraordinary ability as “one who has demonstrated national or international acclaim … a record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to work in the area of extraordinary ability.”  One would think the model must demonstrate “extraordinary ability” in the arts, however the Administrative Appeals Unit concluded this is not the case.  In Matter of Ford Models, Inc., the AAU specified that a model would obtain an O-1 visa only as it relates to “business” and not the “arts.”    (Matter of Ford Models Inc., EAC 92-171-50797 (AAU Oct. 16, 1992), discussed in 70 No. 6 Interpreter Releases 180-81 (Feb. 8, 1993)).

According to 8 C.F.R. §214.2 (o)(3)(iii), the fashion model must prove extraordinary ability by documenting any 3 of the following criteria:

1.    Receipt of national or international awards;
2.    Membership in an organization that requires outstanding achievement;
3.    Publications about the applicant in the profession;
4.    Judgment of the work of others;
5.    Original work of major significance in the field;
6.    Evidence of authorship of scholarly work;
7.    Evidence that she or he has been employed in an essential capacity at an organization with distinguished reputation; or
8.    Has or will command a high salary.

Because of the heightened standard, the O-1 category would be more attainable to the very top fashion models.  In addition to demonstrating extraordinary ability, a fashion model must have either a United States employer or a United States agent file an O-1 petition with USCIS for the fashion model.   The petition may not be filed more than one year, but at least 45 days before the employment.  The petition must also include consultations regarding the fashion model’s proposed work and qualifications, which should be written by an appropriate peer group (persons with expertise in the field).  
 

The Court in Bonilla v. Johnson concluded that "the plain language of 8 USC 1254a(f)(4) and 1255(a) provides that an alien who enters this country without inspection, admission, or parole, but who subsequently is granted TPS (temporary protected status), is eligible for adjustment of status under 8 USC 1255, provided that he or she meets the other requirements set forth in 1255(a). Because the Government's interpretation of 1254a(f)(4) and 1255(a) is contrary to the plain language of these statutes, the Court concludes that the agency's decision in this case was arbitrary and capricious. Accordingly, the Court reverses the agency's decision and remands to USCIS for further review consistent with this opinion."

TPS is currently available to citizens and nationals of:

- El Salvador
- Guinea
- Haiti
- Honduras
- Liberia
- Nepal
- Nicaragua
- Sierra Leone
- Somalia
- South Sudan
- Sudan
- Syria
- Yemen

We recently received an approval for a 10 year marriage based green card. My client first came to me years ago inquiring about Deferred Action for Childhood Arrivals (DACA). He was born in Mexico but came to the United States at a young age. He entered the US illegally without inspection. He graduated high school and received a degree from a Cal State school. He was married to a US citizen at the time.

We obtained DACA and a work authorization card. Once he had DACA, we applied for Advance Parole so he could visit an ailing family member in Mexico. He visited Mexico for a few days, then returned to the United States using the Advance Parole.

Because his last entry to the US was legal (using the Advance Parole), we were able to apply for a marriage-based adjustment of status. Normally a person who entered the United States illegally is ineligible to adjust status and must obtain an I-601A waiver before he can receive a green card; however, our client was eligible because his most recent entrance into the US was lawful.

We attended the adjustment interview in San Bernardino and everything went smoothly. His case was approved and he received his green card this week.