Published on the World Journal Weekly on November 25, 2018

Q&A 1


I Applied H-1B in April, But Still No Decision Is Made and It Is November What Can I Do?

I graduated with a Masters degree in computer science from Purdue University in 2017 and was given optional practical training (OPT) until August 2018. In early April, I and my company filed for an H-1B visa for me and I was selected. We received a request for evidence, which we responded to in late July. Since then it has been three months and we have heard nothing. Am I still legal since I hear that the H-1B cap-gap status only lasted until September 30?

Dear reader,

This is unfortunately a common situation that you are encountering as U.S.C.I.S. has not finished adjudicating many of the H-1B petitions that it was given in April. It has further perversely stopped premium processing, saying that the freeze will remain in effect until February. Thus the ability to pay U.S.C.I.S. an additional $1410 to expedite an already delayed application is lost consigning H-1B companies and beneficiaries to a limbo status. Persons having cap-gap status until September 30 (a device wherein U.S.C.I.S. allows those who have OPT past the H-1B filing date in April to remain and work until September 30 if they are selected and their petitions are still pending) are no longer authorized to work after that date until and unless the H-1B petition is approved. Without premium processing, they remain in limbo unless they leave the country or become F-1 students again or have some other viable option. Under U.S.C.I.S. regulations, they are allowed to remain in the US awaiting adjudication of their timely filed petitions. If the petitions are ultimately denied, they should hopefully be considered to still be in a grace period until 60 days after September 30 under the reasoning that cap-gap is part of F-1 status and the ending of F-1 status automatically invokes a 60 day grace period. Hopefully you will receive an adjudication before that time, and that it will be favorable.

Q&A 2 

Is EB-5 for China Still Open? If Not What Are The Alternatives?

I am fairly wealthy in China and looking to emigrate to the United States. I do not have any relatives here, and am mainly interested in immigrating through the EB-5 investor visa. However, I have heard from people lately that it will take a long time. Is this true? If that is so, what are some other options?

Dear reader,

Because of the high demand by natives of China in past years for EB-5 investor visas and the limited numbers which are available under the law, U.S.C.I.S.’s Ombudsman has estimated that a person born in China starting a new EB-5 case now would have to wait approximately 14 years to obtain a conditional green card. For that reason, some individuals from China who have started EB-5 cases have recently asked to have their cases stopped and for a return of their money. For individuals from China who either own or are managers or executives of decent sized companies (50-100 or more employees), the acquisition of a company in the US (15-25 or more employees) could provide a path to an L-1 intracompany transferee visa and ultimately a transfer to the green card through the EB-1C multinational executive/manager route which would take approximately 2 years at present. In addition, a manager or executive in China who wishes to become a manager or executive in a US company which is unrelated to the individual’s present employer may be able to have the US company sponsor him or her for the green card through a PERM labor certification under either the EB-3 category for those with bachelor's degrees or two years of required working experience, or under the EB-2 category for those with advanced degrees or who have exceptional ability. Immigrating under EB-2 or EB-3 would take approximately 3-5 years.

 

Q&A 3 

U. S. Citizen Residing in Hong Kong Wants to Immigrate Mother Any Problems?

I am a U. S. citizen through my wife 10 years ago, and we both went to Hong Kong 4 years ago to live. We are both comfortable there with jobs and children and no plans to return to America to live in the near future. The problem is that my mother wants to join my older brother in the U. S. as our father recently passed away, and he has only been a permanent resident of the country for 2 years. He says that he needs to be a citizen to apply for our mother. I would like to help out, but just wonder what my obligations would be.

Dear reader,

You are right to be concerned. Under the immigration laws, you will have to provide an I-864 affidavit of support for your mother to guarantee that she does not become a public burden. Because your income is not US-based, there may be difficulty with the U. S. Consulate accepting your support affidavit alone. You may have to have a financial joint sponsor file a separate I-864 affidavit of support – perhaps your brother. However, that does not end the matter as a valid I-864 requires that the petitioner demonstrate that he or she has or will have a domicile in the U. S. You will have the burden to prove by a preponderance of the evidence that you will establish a domicile in the U. S. on or before the date of your mother’s admission under an immigrant visa. The Foreign Affairs Manual which is used as instruction by U. S. consuls gives examples of possible evidence such as opening a U. S. bank account; transferring funds to the U. S.; making investments in the U. S.; seeking employment in the U. S.; voting in a U. S. election, etc. Without such a showing on your part, there could be a problem with your mother’s ability to become an immigrant. I also note that the window of time to sponsor your mother for U. S. immigration may be closing as the Trump administration wishes to do away with the parent category altogether.

 

Copyright © 2003-2018 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.

 
   
 


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