Month: October 2018

Article “Why The Migrant Caravan of 7000 (Whoops! 5000) Is Not Concerning?”

As published in the Immigration Daily on October 26, 2018.

In the ever shrinking caravan of 7000 – now reportedly 5000 as many seek asylum in Mexico – ask yourself – would President Trump be concerned or would he put out the welcome wagon if this was a caravan of 7000 Norwegians rather than Hondurans, Guatemalans, and Mexicans? An honest answer would inform you that the concern is less with the numbers than with the color of the skins. Even if over half of them arrived at the US-Mexican border, what number would be allowed to remain here in 6 months under the Trump no tolerance policy? CBS reported that a study of the caravan of 1500 Central American migrants that reached the border in April 2018 revealed that only about 250 legally remain in the US pending immigration hearings and only three have been granted asylum. Extrapolating the figures means that only 16.7% are left, and so if 4000 wound up at the border this time seeking asylum, only 668 would be left here at the end of six months. So, what crisis?

The rush to deny people of darker skins entry into the country regardless of their plight is endemic to this administration, with President Trump attempting earlier this week to tar their images as suffering people by baselessly spouting that people from Middle East had joined the group, implying that they had intentions to commit terrorism, only to later give a grudging retraction that “There is no proof of anything, but there could very well be.”

It is generally a given that those who seek to enter the country illegally or take part in a long march like the one here are the younger people who have drive and endurance – the type of people who should be prized for their many future years of physical ability to build a country’s economy. The United States is at the crossroads of either continuing to be a great nation by accepting immigrants or becoming a second-class power through a declining workforce. The largest generation of US workers, the 76 million strong baby boomers, began to reach age 62 in 2008 and the youngest will reach 67 in 2031. By that time, Americans aged 65 and older are projected to be 75 million. At the same time, birth rates of American women have dipped to a 30 year low in which the fertility rate has sunk further below the replacement level. According to a report from the Centers for Disease Control, the rate has generally been below replacement since 1971. Who then will be on the bottom of the Social Security pyramid to support the retirees’ Social Security benefits? Who then will be in the labor force that drives the industry in this country? The Pew Research Center states that immigrants will play the primary role in the future growth of the working age population. Without immigration and the undocumented immigrants already in this country, the US may well become an aged population like Japan suffering from decades of stagnation, a cruel fate that China is attempting to stave off at present.

History is the ultimate arbiter, more reliable than the words coming from politicians’ mouths or any “fake facts.” At the end, it will honor a figure like the German Chancellor Angela Merkel who saw an aging German population and infused it with the new blood of refugees. It will dismiss President Trump as a figure who failed to put the good of the country before his narrow divisive views.

Published on the World Journal Weekly on October 21, 2018 1. Came to U. S. As a Student, Have Stopped Studying, And Ask if I Can Apply for Political Asylum Based on My Experiences in China?

1. Came to U. S. As a Student, Have Stopped Studying, And Ask if I Can Apply for Political Asylum Based on My Experiences in China?

I came to the U. S. to study film at a college in California. Because of economic problems with my sponsor, I had to quit my schooling in May 2018. I just got a letter from the school telling me that I am out of status, and will have to leave the U. S. or ask for reinstatement. At this time, can I apply for political asylum based on my background in China in which I was a photographer for a city newspaper, took photographs of people in protest against government corruption which were published, and because of that was beaten and arrested by the local police? I was detained for a week but not charged.

Dear reader,
The U. S. grants political asylum based upon past persecution or well-founded fear of persecution based upon race, religion, nationality, social group, or political opinion. In your case, the reason for which you took the photographs of protest may determine whether your case falls within “political opinion.” If you had no motivation for taking the pictures other than to earn money as a photographer, then you might not qualify. Otherwise it would appear that your case has merit. Whether it can be approved on the basis of past persecution depends upon the severity of the beating and imprisonment. Because of the fact that it has been 3-4 months since you quit your studies, I suggest that (if you are qualified based on the above) you apply as quickly as possible. For persons who held legal status in the States, U.S.C.I.S. expects an asylum application to be filed within a “reasonable period of time” after the ending of the status. 6 months is considered the outward limit of reasonableness with some immigration officers believing that 6 months is already too late, and so we believe that the earlier the better in your case.

Q&A’s published on Lawyers.com and the Epoch Times – 10/19/2018 1. What Are the Steps to Legalize My Spouse? 2. What Is The Best Option for a Legal Permanent Resident to Get the Spouse From a Foreign Country? 3. Which Eligibility Category Exactly Am I Under If My Visa Expired and Then I Got Married While Being Out of Status?

1. What Are the Steps to Legalize My Spouse?

I am a US citizen and my husband is here illegally and did not enter with visa.  We have a two month old baby together.  He has no criminal background not even a citation and has paid his taxes every year and has worked with his legal name.  What are the steps I need to take for him to become a US resident? Is it possible for me to apply by myself for him? Due to economic reason, I cannot pay a lawyer.  

Mr. Lee answers:
If your husband entered the US on a parole status instead of a visa, you could possible work to adjust his status to permanent residence n the US without leaving.  The major forms that you would be dealing with would be the I-130 relative petition and the I-485 adjustment of status application.  If he entered the country illegally without being paroled, does not qualify under section 245(i) as having been the beneficiary of a labor certification application or immigrant visa petition by April 30, 2001 and being physically present in the US on December 21, 2000, you may think of processing under the I-601A program which allows an advance waiver of the penalty for being illegal in the US for a period of time.  The relevant forms for that would be the I-130 relative petition, and after that is approved, the I-601A application form for a provisional waiver.  If approved, your husband would ultimately complete his case at the American consulate or embassy in his home country, but if everything else is okay, he would be allowed to come back with an immigrant visa right after the interview.  For further information you can check out the USCIS website at uscis.gov.

2. What Is The Best Option for a Legal Permanent Resident to Get the Spouse From a Foreign Country?

Other than petition, what would be the fastest and easiest way for an LPR to get the spouse from foreign country, Philippines and how long will it take?

Mr. Lee answers
The best way would be for the LPR to become a US citizen and to petition under that category. Failing that, some other options could be through the immigration investor EB-5 program if your spouse has the wherewithal to invest, or he might qualify for a working category with dual intent such as H-1B specialized worker or L-1 intracompany transferee. Also if your spouse is an extraordinary alien in a specific field, he may be able to qualify under an O-1 nonimmigrant visa or EB-1A immigrant visa.

3. Which Eligibility Category Exactly Am I Under If My Visa Expired and Then I Got Married While Being Out of Status?

Mr. Lee answers:
You are illegal when your visa status expires. If you are married to an undocumented immigrant or green card holder, your status would still be illegal. In the event that you marry a US citizen, and you file for an I-485 adjustment of status application, you would be in a U.S.C.I.S. state of grace while the adjudication is ongoing.

 

ALAN LEE, ESQ. SELECTED AS SUPER LAWYER FOR 2018 IN NEW YORK CITY

The annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., has again been chosen as a Super Lawyer for New York City in 2018. He is one of only 2 lawyers of Chinese descent in the 64 attorneys selected for the area of immigration law. This is the seventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2017.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers list for Immigration 2018“.

Published on the World Journal Weekly on October 7, 2018 1. H-1B or L-1 and Then Green Card? 2. I-601A

1. H-1B or L-1 and Then Green Card?

I have a 3 year degree in accounting, and have been the accounting controller in our family business in Taiwan (35 people in company and $3 million USD in sales) and want to be in the U. S. under H-1B or L-1 status with the ultimate goal of getting the green card. The company has a subsidiary in Canada with 10 employees and will start up a new company in the U. S. with me at the helm, initial capitalization of $100,000, and the initial plan in the first year is for the company to have 3 people including myself and U. S. sales of $750,000. What is the best approach?

Dear reader,
H-1B visas for private companies are capped in number and applications are only accepted at the beginning of April. The employment would have to be for a specialty occupation. A good time to start the case is in January.  2 possible problems are that you do not have a four-year baccalaureate degree in accounting and that the new company that you are starting would seem to be quite small to have the need for an accounting professional or manager. A startup L-1 is possibly a better option, but would have to include a solid business plan as to how the company plans to expand within the next year. Assuming that the visa is approved, U.S.C.I.S. would only give a period of one year, and the U. S. company would have to apply for an extension of your status by showing its growth after the first year. Assuming that it grows well, it could then sponsor you for permanent residence under the EB-1C multinational executive or manager category if you were transferred to the U. S. in an executive or managerial capacity. This is a fairly quick route to immigration and can usually be accomplished within 1-2 years after the EB-1C application is submitted. Please note that if the company does not grow, U.S.C.I.S. may have problems in granting you an extension for permanent residence. If you and your Taiwan company see possible problems with growing a small company in the U. S., you may wish to rethink your plans and attempt to acquire an existing company with employees and sales. Such could pave the way for easier entry under both L-1 and green card.

2. I-601A

I sneaked into the United States in 1995, applied for political asylum in 1996, lost and was ordered deported in 1998. My mother came to the U. S. in 2006, applied for me in January 2007, and became a U. S. citizen in 2010. I got married in 2016, my wife has the green card, and we have 3 children – 3, 4, and 7 years old. She has tried twice to become a citizen, but cannot pass the English test. How can I get my green card?

Dear reader,
Under the expansion to the I-601A program, you may be able to ultimately immigrate to the U. S. For you to do that, you can probably use your mother’s petition for you as the base. For the month of June 2018, the available date for the F-3 category of married sons and daughters of U. S. citizens is up to 3/15/06, and so the time for visa availability is probably between 1-2 years. In the meantime, you can file an I-212 conditional application for permission to reapply for admission into the U. S. after deportation or removal with the local U.S.C.I.S. field office. Such application would look at your immigration record, any criminal record, and all of your equities. Assuming that such is approved, you would then file for an I-601A application for provisional unlawful presence waiver with U.S.C.I.S. in which the standard for adjudication is whether there would be extreme hardship to a U. S. citizen or permanent resident spouse or parent if the waiver was not approved. If both the I-212 and I-601A applications are approved, you could then complete consular processing and return overseas to the home consulate or embassy, where you would likely have a normal immigrant visa interview and be able to return to the U. S. with an immigrant visa.

Article “Brett Kavanaugh v. Christine Blasey Ford – Who Can You Believe?”

As published in the Immigration Daily on October 4, 2018.

 

With headlines blazing in The New York Times on September 28, 2018, “With what degree of certainty do you believe Brett Kavanaugh assaulted you? “100 percent” above the picture of Christine Blasey Ford, and “None of these allegations are true?” “Correct.” “No doubt in your mind?” “Zero. I’m 100 percent certain” above a picture of a defiant Brett Kavanaugh, who can you believe? Mr. Trump threw in his two cents in calling Ms. Ford’s testimony “credible” and Judge Kavanaugh’s “incredible.”

Does it matter to the Republican Party whether Dr. Blasey is telling the truth? Probably not to the vast majority. But in a closely divided 51-49 enate, a new call from Republican senators Jeff Flake (R-AZ), Lisa Murkowski (R-AK), and Susan Collins (R-ME) on the 28th for a limited FBI investigation forced the Republican leadership to accede to a limited investigation of the accusations of sexual misconduct against the young Judge Kavanaugh. The order to the FBI by Mr. Trump afterwards was highly restrictive that the “supplemental” investigation “must be limited in scope and completed in less than a week.” After heavy criticism, Mr. Trump said on October 1st that the FBI “should interview anybody that they want within reason.” So far, however, it appears that as of Wednesday, October 3d, many potential relevant witnesses had not been interviewed, and Republicans were pressing for a vote on confirmation by the end of the week based on word from the FBI that it could finish its investigation by Wednesday.

The Republican strategy of not assailing Dr. Blasey as the Senate committee did Anita Hill in 1991 with all male questioning, and attempting to find an alternate ground of mistaken identity on the part of Dr. Blasey brings to mind the passage in Pride and Prejudice (pity those who have not read it or seen one of its multiple screen versions) in which sisters Elizabeth and Jane Bennet discuss Elizabeth’s new found information concerning George Wickham’s perfidious deeds:

What a stroke was this for poor Jane !  Most earnestly did she labour to prove the probability of error, and seek to clear one without involving the other.

“This will not do,” said Elizabeth . “You never will be able to make both of them good for any thing. Take your choice, but you must be satisfied with only one.

Here we must certainly be satisfied with only one, and the evidence points to Dr. Blasey. From all accounts, she has led a respectable life since birth and even passed a polygraph test administered by an ex-FBI agent. Judge Kavanaugh has indeed led a respectable life after graduating from Yale University, but many reports indicate that he led a life of heavy drinking and partying at his Catholic prep school in Georgetown and at Yale. It may well be that he forgot about the episodes of which he is now accused because of the heavy fog of alcohol. Thus he could be telling the truth in his own mind. Yet that should not do for a person aiming to be confirmed to the highest court in the land. Possibly the fact that he was a jock, good in sports and captain of his high school basketball team, persuaded him that he could take more liberties than the normal high school and college student, and any restraints were further lowered by his prodigious alcohol intake. His bland testimony that “I did not drink beer to the point of blacking out” stands in stark contrast to a number of statements by his classmates, one of whom said “I definitely saw him on multiple occasions stumbling drunk where he could not have rational control over his actions or clear recollection of them,” and another that he was “frequently, incoherently drunk,” and that when he was, he became “aggressive and belligerent.” Most of us who drank in college saw the difference in people who drank, some of whom just became happier and others mean drunks.

Given the above, the least that should happen in an FBI investigation no matter how limited in time and scope should be interviewing or attempting to interview all people from high school and college days who might be able to shed light on the actions or inactions of Mr. Kavanaugh and Ms. Blasey. Such an investigation should also canvass the further sexual allegations against Judge Kavanaugh by Deborah Ramirez, a fellow classmate at Yale, and Julie Swetnick. It should be noted that even if Ms. Swetnick could not identify him as one of the sexual assaulters, it should be disqualifying for confirmation if her assertion that he was there is to be believed as it appears that he did nothing to stop the episodes from occurring.

Other than the character issues, the stakes are high in the confirmation process as Judge Kavanaugh has demonstrated a conservative bent that would shift the court to the right for many years if confirmed. His record on matters relating to immigration is short, but discouraging to those who believe in immigrant rights. As pointed out by the American Immigration Council in its September 5, 2018 article, “Brett Kavanaugh’s Record on Immigration Raises Questions,” he has dissented in 3 cases stating his belief that the immigrant should have lost – in Agri-Processing Co. v. National Labor Relations Board in 2008, he said that undocumented immigrants should not be entitled to labor law protections because they were not legally permitted to be employees; in Fogo de Chao Holdings v. U. S. Department Of Homeland Security in 2014, he suggested that hiring Brazilian chefs under L-1 specialized knowledge visas was the restaurant just trying to cut labor costs masquerading as specialized knowledge; and in Garza v. Hargan in 2017, he accused the majority of a radical expansion of the law and that the DC circuit court had created a new right for unlawful immigrant minors in U. S. government detention to obtain immediate abortion on demand.