Q&A’s published on Lawyers.com and the Epoch Times on February 15, 2019 1. EAD I-140 Compelling Circumstances 2. How to Change Tourist Visa to Work Visa? 3. Extension of B1/B2 Visa

1. EAD I-140 Compelling Circumstances

I am on H-1B with I-140 approved (2014- EB2- India). My wife is facing medical issues and if I qualify, my intent is to apply for I-140 EAD Compelling circumstances. My wife had multiple miscarriages and last year she was hospitalized for 15 days for emergency. This year she had a minor surgery and again put on 100% bed rest by the doctor. Currently I travel 1-1/2 hr each way to my job. We cannot move as she has doctor visits every week. EAD will allow me to find a flexible job near to my house and take care of my wife in this difficult times. Question: 1. Do I qualify for EAD I140 Compelling circumstances. I wish to apply for EAD. I am looking for a competent attorney. 2. My h1b expires August 2019. What is my status on EAD if I have to travel abroad? What about stamping? 3. On EAD I may get any job which allows me to be flexible and close to my house to take care of my wife. What if after 1 year, I do not get an H-1B?

Mr. Lee answers:
Whether you qualify for an EAD based upon compelling circumstances will depend upon the view of U.S.C.I.S. As this is new relief without much of a track record, I could not inform you whether your situation would be seen as compelling circumstances although I suspect that it will be. An individual on the EAD who works for another employer is no longer in valid nonimmigrant status. It does not give travel privileges.  For that, you would have to make an application for advance parole, and such could be approved based on urgent humanitarian circumstances or where it would provide a significant public benefit.  If you must renew your H-1B after the year of employment authorization under the EAD, you would have to go abroad for non-immigrant visa processing. If you are denied an H-1B petition and are still in the States, you can request an extension of the EAD where there is still compelling need and the visa availability date is far away, or the visa availability date is reachable within one year before or after the visa bulletin final action date. However, if the H-1B petition is approved by U.S.C.I.S. and you are denied a visa when you try to go for visa stamping abroad, you would essentially be stuck overseas unless you are able to overcome the ground(s) of denial.

 2. How to Change Tourist Visa to Work Visa?

I am in tourist visa. I came in USA to take care of my son who is a Troy student and extremely injured from car accident in December 15.

I have to stay here for injured victim of car accident. I probably should quit the job in Nepal. I like to apply work visa.  Is it possible?

Mr. Lee answers:
Generally speaking, US immigration law does not allow employment authorization for humanitarian situations where there is no other basis for its allowance. If you are eligible for other types of application such as nonimmigrant or immigrant visas that allow an employment authorization or for political asylum, you may be able to obtain an EAD (employment authorization document).

3. Extension of B1/B2 visa

I need more time before I can submit an E2 visa application. My B2 visa will end in early March, I’m looking to extend.

Mr. Lee answers:
It may be possible for you to obtain a B-1 extension or B-1 change of status for the purpose of completing the arrangements for making an investment in the US which would make you eligible for E-2 Treaty investor status. You would generally have to inform U.S.C.I.S. of the progress of your investment and when you can be expected to perfect the investment. In addition, you would have to show evidence of intent to leave the country once your arrangements are concluded. 

Q&A’s published on Lawyers.com and the Epoch Times on February 8, 2019 1. How to Get My Girlfriend to Come to the U.S.? 2. Should I Apply for Citizenship? 3. Can C-1D Visa Holder Apply For an Asylum?

1. How to Get My Girlfriend to Come to the U.S.?

I have met a Dominican Republic lady and I would like to know how to get her to come to the United States.

Mr. Lee answers:
I will assume for purposes of your question that you are either a US citizen or permanent resident. If a US citizen, you generally have the choice of petitioning for her as a fiancée under K-1 visa or marrying her and petitioning for her to obtain an immigrant visa through form I-130 Petition for Alien Relative and later consular processing. If a green card holder, you could marry her and petition for her in the same manner. K-1 visa processing usually takes between nine months to a year; and I-130 processing/consular processing by US citizen one year and by a permanent resident two+ years. In addition, if your Dominican Republic lady has good reason to come to the US temporarily, she may be able to obtain the appropriate nonimmigrant visa at the American consulate or embassy.

2. Should I Apply for Citizenship?

I have been a Permanent resident since 1998. In 2009 and 2013 I spent more than 12 months outside the USA. Upon re-entering the USA I omitted this to the immigration officer and said I had been away for 3 months. Since 2016 I have lived in the USA permanently only making short trips abroad. I would like to apply for naturalization but wonder if it’s too risky to do so. What do you suggest?

Mr. Lee answers:
For preserving a residence in the US for naturalization purposes, a six-month absence has a rebuttable presumption that you have lost the residence. Absences of 12 months and more are almost conclusive evidence that the residence for purposes of naturalization is lost. That occurs even if the individual has obtained a reentry permit. I would suggest that you not apply for naturalization at this time as an application would be risky.

3. Can C-1D Visa Holder Apply For an Asylum?

I came to USA in March 2016 in C-1D Visa (cruise line job) from India, it’s been almost 3 years now am staying in US. My questions are Can I apply for an Asylum ? If I can, will marriage help me to adjust my status/ if yes how long it will take normally? If I go back to India before the decision of Asylum case, how it will affect my re-entry?

Mr. Lee answers:
Unless there are special circumstances, you are not eligible to apply for asylum as the application must be done within one year of the individual’s entry into the United States. You are eligible to apply for withholding of removal if you believe that you would be persecuted in your home country, but the burden of proof against you is higher and it does not lead to a green card. Marriage would not help you to adjust your status even if you have special circumstances that would qualify you for asylum since a C-1/D visa holder is generally not allowed to adjust status to permanent residence. If you go back to India after you have submitted an asylum case and before its decision, you would technically be barred from returning to the US because of your unlawful presence for over one year in this country.

Q&A’s published on Lawyers.com and the Epoch Times on February 1, 2019 1. Can I Attend H-1B Visa Interview With Employer A When H-1 Transfer to Employer B Is In Process? 2. Will I Be Issued a Visa After DNA Results Are Positive? 3. Out of Student Status

1. Can I Attend H-1B Visa Interview With Employer A When H-1 Transfer to Employer B Is In Process?

I am currently working as sub contractor with employer A and employer B has filed my h1 transfer I got RFE for this and employer B is working on resolving the RFE. Can I go to visa interview with my current employer while my H1 decision is still pending? Or if gets approved or rejected will it impact my visa interview?

Mr. Lee answers:
This situation could present problems and so is not recommended. A consular officer upon your notice that you actually wish to work for employer number two would likely tell you that you should wait until the H-1B for the second employer is approved before requesting the H-1B visa to be put in the passport. On the other hand, if you do not inform the consular officer of your plans and are given the visa and do not work for the first employer when you return to the States, you could be subject to a later charge of misrepresentation. You may wish to have a resolution one way or another before leaving the US for a visa interview. Premium processing is expected to return in February 2019 with U.S.C.I.S. for the fee of $1,410 under which the agency promises to reach your case for adjudication within 15 days or give you back the fee.

2. Will I Be Issued a Visa After DNA Results Are Positive?

Mr. Lee answers:
Whether you are issued a visa after DNA results are positive depends upon whether there are other inadmissibility bars to your immigrating to the US. I assume that this is a family based case as DNA results would otherwise not be relevant. Another question is whether the DNA test was requested by the US Consulate or Embassy or USCIS or whether you and your related party took an independent test. In the latter case, the result may not be given full validity by a consular officer.

3. Out of Student Status

I came to the US on a F1 student visa. During my time in the University I have dropped two semesters (at the end of the semester) after I found out that I would not make a GPA that will allow me to continue in the University. I was not aware that I could not do that. And on the third semester I was flagged and an advisor told me that I couldn’t do that. Once I met with an officer he told me to get a letter from my advisor stating that I am enrolled and I took classes each semester and I will be fine. I got the letter and for the next interview I gave it to a different officer which told me that it is useless now because I am in the removal process and I should wait until I heard back from them about a court date. I have been waiting for almost two years now and I did not get a court date. My question are : What are my chances of getting my status fixed?  Do I have a high chance of getting deported? And what I could do to prepare for the hearing.

Mr. Lee answers:
It is highly unusual that an individual would be in removal proceedings and not receive a notice to appear (NTA) within almost 2 years. It is entirely possible that U.S.C.I.S. has not moved in that direction. If you moved, it is also possible that you never received an NTA because of that. It does not appear from your question that you are still in school or in status if you are still in school, and if that is so, I would assume that you have been out of status for at least five months, the top limit for asking for student reinstatement. You appear to not be aware of your present status which would be essential for determining what are your options. You may decide to do an infopass with the local field office of U.S.C.I.S. to ascertain your status. You may also alternatively request a copy of all your information from U.S.C.I.S. under the Freedom of Information Act.

New H-1B Regulation “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-Subject Aliens” Becomes Final Changing The Order Of Selection But Delaying Pre-Registration System

As published in the Immigration Daily on February 1, 2019

The final rule will only have one component taking effect on April 1, 2019, the flip-flopping of the order of petition selection of U. S. Masters and higher degrees vis-à-vis bachelors and advanced foreign/U. S. for-profit institution degrees. The second part, the pre-selection system for organizations to register ahead of time for the opportunity to file cap subject petitions, has been postponed for this year.  Even in the proposed rule, U.S.C.I.S.  was hesitant on when it could be implemented, and many including this writer believed that it was nigh impossible for the system to come into being for this year’s H-1B selection (See “Article: Comment on U.S.C.I.S. New H-1B Proposed Regulation by Alan Lee, Esq., Immigration Daily, January 2, 2019).

Changing the order of selection by allowing all of the U. S. Master and higher degree cases to be put in the regular cap case selection, and then allowing the unselected to claim the U. S. Masters cap quota of 20,000+ numbers instead of running the U. S. Masters selection for the exclusive 20,000+ numbers first and then allowing the unselected to be put in the later regular cap selection was estimated by U.S.C.I.S. to yield another 16% or 5340 more numbers to U. S. Masters degree holders.

Was this a good strategy to favor those with U. S. advanced Masters or higher degrees? That is questionable as it is not merely a question of bachelors versus masters and higher degrees, but the exclusion of many persons who have had years of experience that those with recent advanced U. S. degrees do not have. Many with bachelor’s, master’s and PhD degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

This writer believes that the change in regulation applies mainly to those who have just acquired U. S. Masters degrees, many of whom have no relevant experience other than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s or advanced degrees from other countries and years of working in a particular field are oftentimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

On the pre-selection system, the agency noted that, “USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.” In response to comments, it is increasing the filing time period to 90 days instead of 60 days after selection, a change that would make it even more unlikely for the system to begin in FY 2020. In the final rule, it also eliminated the idea of staggered filings because of concerns over the potential for negative impact for beneficiaries relying on the existing cap gap provisions under which beneficiaries must still be in OPT status on the date of filing to be eligible for cap gap protections.

Q&A’s published on Lawyers.com and the Epoch Times on January 25, 2019 1.Can Open LLC on EAD(GC) on EB3? 2. 2. Employment Immigration After Living in the US and Only Have 7 Months on a Different Visa. If Applying for PERM Employment with a Sponsor Waiting Period Could be How Long? 3. I Have B1/B2 Visa and Work Experience 13 Years. Can I Convert to H-1B?

1. Can open LLC on EAD(GC) on EB3?

I have an EAD, awaiting adjustment of status on EB3, India. I would like to start an LLC and become self employed. I will be either sub contracting and getting a 1099. Am I allowed to start an LLC and be its only employee?

Mr. Lee answers:
Having such an EAD, you may be allowed to do such since the card allows open market employment. In addition, you may be able to use the EAD position as a basis of your green card if you are in the last phase of your immigration to the US, and have already had your I-140 petition approved and the I-485 adjustment of status filed. Under the rules of porting, you are allowed to move to a same or similar occupation and keep your case if the I-140 petition is approved and the I 485 has been pending for 180 days. U.S.C.I.S. has said that porting can be to self-employment so long as it qualifies under same or similar occupation. Please note, however, this may lead to a number of questions on your immigration interview.

2. Employment immigration after living in the United and only have 7 months on a different visa. If applying for PERM employment with a sponsor waiting period could be how long?

Mr. Lee answers:
It is difficult to answer your question as you do not state what country you are from, and quota restrictions on certain countries can increase the period of time of waiting. Generally speaking, however, employment immigration of natives of countries other than India, China, and the Philippines will generally take a couple of years taking into account time required to process labor certification, I-140 petition, and either adjustment of status or consular processing. If you do not require a labor certification application, the process may be much shorter. In the event that you do require one, your seven months of remaining stay will not allow you to obtain a labor certification, as that process takes approximately 10 months between recruitment and Department of Labor processing. However, it should be noted that the immigration law allows employment based applicants up to 180 days of illegal stay and still maintain eligibility for adjustment of status. Once an individual has the labor certification and assuming that there is visa availability and the individual is in status, both I-140 and I-485 adjustment of status applications can be filed concurrently, and such filing would allow an individual to remain with authorization in the US during the time of the processing.

 3. I have B1/B2 Visa and Work Experience 13 Years. Can I Convert to H1-B?

I’m not a cap exempt neither the company that provides work for me in USA but I have B1-B2 visa and work experience 13 years .Can I convert to H-1B?

Mr. Lee answers:
My personal feeling is that even with the amount of experience that you have, lacking any type of post secondary education, a U.S.C.I.S. officer would be hard-pressed to approve an H-1B application for you. In addition, of course, the position that is being offered must be one that normally requires at least a baccalaureate degree in the field of specialization. Finally if your question is whether you can obtain an H-1B status in the US without leaving assuming that the H-1B petition can be approved, that might be problematical in terms of timing. The H-1B lottery season begins on April 1, but selection and approval only make the beneficiary eligible to begin work on October 1 at the earliest. You must be able to show U.S.C.I.S. that you are entitled to stay under some type of legal visa status until September 30 to successfully change status in the US. Whether you will be able to extend your present status or change to another status is a question that you may wish to explore.

 

Article: The Art Of The Deal In Making The Wall

As published in the Immigration Daily on January 23, 2019

The art of the deal now is fixing the deal – to fold the present hand and start dealing a new one. The hounds are baying at him now on all sides, and he should know that it’s time for him to quit his present play if he wants to get the Wall. Mr. Trump created this whole fiasco when he put the livelihoods of 800,000 federal workers at risk in a long shutdown that he and the Republican Party own. And for what – a Wall projected to cost at least $24 billion of taxpayer money? A wall that will not stop drugs? A wall that can be tunneled under, dynamited, gone around through points of entry and the seas? To solve a humanitarian crisis of his own making when true concern would be multi-country conferences and agreements on solutions for the problems encouraging migration? To solve the “mass” invasion of the United States on the southern border when current statistics show arrests at almost an all-time low since the early 70’s? He has failed to convince the nation at large of the Wall’s necessity. So if he really continues to push for the Wall, he will have to ante up.

It goes without saying that Mr. Trump created the shutdown crisis in the hope that he could bowl over the Democrats before they established their agenda firmly in the House of Representatives. So the early stages of negotiation were to give nothing at all, pump up the absolute importance of the Wall as the penultimate solution against drugs, crime, illegal immigration, and terrorism, and attempt to shift shutdown blame on the Democrats, which was and is very hard to do as he initially said that he would own the shutdown. When that didn’t work, Mr. Trump then moved into the second phase of negotiation with his base and party (no direct negotiations with Democrats) offering temporary relief to 700,000 Dreamers and 300,000 holders of TPS (Temporary Protected Status). He offered what he could justifiably say to his base was actually nothing that these groups did not have before he took steps to remove their statuses. He would have to have been incredibly naïve not to realize that the offer was dead on arrival – so he should perhaps be given the benefit of the doubt that this offer was just his beginning point of negotiation although his base did not understand. To Democrats, he had taken these groups hostage in revoking DACA and TPS, and so he was only offering to put them back in the same state that they were before his actions. To his base, however, he was roundly criticized as an immigration appeaser and traitor.

Now it appears that Mr. Trump will be forced to move into the third phase of negotiation in which he will have to truly offer something to Democrats for the Wall or unilaterally end the shutdown with nothing to show for it except for the pain that he inflicted on the Nation. His negotiating hand of cards appears to have nothing in it. He is now being unanimously blamed for the shutdown, not the Democrats. Even members of his base are criticizing him for it at this point. His DACA and TPS hostages have largely escaped for now, with the Supreme Court yesterday giving notice that it would take no action on his request to review the DACA case, the upshot being that a decision is not expected until 2020. In addition, his revocation of TPS has been stayed by Judge Edward Chen of the Northern District of California in October, and there is no immediate threat to TPS members as the Ninth Circuit Court of Appeals will likely support the injunction, and Mr. Trump would have to take the case to the Supreme Court. Even if there was a threat to TPS members, such would not likely move the Democrats and the country who largely view DACA members as more blameless and have twice as many members. In the art of the deal, he has lost leverage, and he more than anybody else should understand this.

It remains to be seen what Mr. Trump will offer in the third phase, but anything that he offers will be looked at warily by all sides based on his long history of going back on his word. Democrats are thus far united in their belief that any legislation ending the shutdown should not include funding for the Wall. That does not mean, however, that pressure cannot be exerted to change their minds if the right offer is made. Two bills will be put on the floor of the Senate tomorrow, January 25th, a Democratic one reopening the government without wall funding, and a Republican one reopening with wall funding, the above Trump proposals, and a poison pill on asylum. Both are widely expected to fail to obtain the necessary 60 votes. In this writer’s opinion, what would truly get the ball rolling would be an offer of permanent status with or without a road to citizenship for an expanded class of DACA members which is projected to be about 1.8 million individuals. Perhaps also worthy of heavy consideration might be the present 700,000 DACA members getting some form of permanent status with a road to citizenship and the 300,000 TPS members status relief for the next 3 years. The point is that for Mr. Trump to break the logjam and obtain the funding that he wants for the Wall, he has to put forth something new that is untainted by himself. This will cause huge howls from his impassioned base, but if he intends to do the deal, he needs to put something of substance on the table.

Q&A’s published on Lawyers.com and the Epoch Times on January 18, 2019 1. I Was Denied the Right to Become a U.S. Citizen Because I Voted, I Have Proof to Show I Was Tricked into Doing So. 2. What Happens if I Don’t File Form I-751, and Go Back to My Home Country Before the 90-days Period For Good? 3. Can I Stay in the U.S. for Leisure From June – Oct 1st Under B2 Visa Until H-1B Takes Effect?

1. I Was Denied the Right to Become a U.S. Citizen Because I Voted, I Have Proof to Show I Was Tricked into Doing So.

I have 30 days to make an appeal.  What to do?

Mr. Lee Answers:
You can make an administrative appeal to U.S.C.I.S. on form N-336 Request for Hearing on a Decision in Naturalization Proceedings. U.S.C.I.S. policy on illegal voting depends upon the election law. If the election law penalizes the actual act of voting, the fact that a person has actually voted is sufficient to establish that he or she has voted unlawfully. However, if the election law penalizes the act of voting only upon an additional finding that the individual acted “knowingly” or “willfully,”, U.S.C.I.S. states that adjudicating officers cannot conclude that an applicant voted unlawfully until they assess the circumstances surrounding the voting, the applicant’s credibility, and the documentary evidence.

2. What Happens if I Don’t File Form I-751, and Go Back to My Home Country Before the 90-days Period For Good?

Do I still have to come to a court hearing? We are not yet divorced, but separated.

Mr. Lee answers:
Although not a guaranteed solution to avoiding court, if you intend to go back to your home country for good, you may wish to write a letter to the Texas Service Center since you live in Florida and you would be filing an I-751 application to that service center as it has jurisdiction over Florida. You can explain your circumstances, that you will not be remaining in the US, and perhaps give some proof such as an air ticket of your intent to depart. Upon your departure, you can also inform the Center that you have departed and give them proof of such, e.g. copy of passport showing entry into your home country.  The address of the Texas Service Center for I-751’s is:   

U.S.C.I.S. Texas Service Center
PO Box 851488
Mesquite, TX 75185-1488

3. Can I Stay in the U.S. for Leisure From June – Oct 1st Under B2 Visa Until H-1B Takes Effect?

I’m currently dating a US citizen, I am a Canadian citizen. I’m graduating from my M.Sc in Canada in June. I’ve read that once the H-1B is approved and your visa is stamped (hoping all goes well), that you can only enter the US 10 days prior to employment start (Sept 20th for Oct 1st start for H-1B) Could I apply for a B2 visa to stay with my boyfriend until my H-1B takes effect? Something like June – Oct 1st? I’m aware I have to do my interview and visa stamping in Canada, I can take a trip for that. But is it possible to just take trips and re-enter under B2 visa? And once everything is stamped, does the H-1B visa stamp replace B2? Or is there a conversion involved. 

Mr. Lee answers:
As you are a Canadian, you do not require a visa to enter the United States for visiting purposes. If you have a valid reason for being in the US for visiting purposes such as visiting with your boyfriend, you can explain that to the inspecting officer upon your entry with a Canadian passport. Similarly Canadians are not required to have H-1B visas put into their passports. At the appropriate time, you can approach the port of entry with your I-797 H-1B approval and request admission into the US to take up your H-1B position. You may of course have to explain what you were doing in the United States from June-October 1. 

Q&A’s published on the World Journal Weekly on January 13, 2019 1. Married One Month After Coming to U. S. and Want to File for Her Immigration (I am USC) – Did We Marry Too Soon? 2. Laid Off on H-1B, Do I Have to Leave Now? Do I Have Any Time to Find Another Job? 3. On H-1B, I-140 Just Approved, Priority Date Far Away, Want to Change Employers, Currently Applying For Extension 4. Friend Who Filed Political Asylum Based on Persecution Under China Family-Planning Policy Just Denied – Why If He Has a Good Case?

Married One Month After Coming to U. S. and Want to File for Her Immigration (I am USC) – Did We Marry Too Soon?

I am a U. S. citizen and invited my girlfriend from Hong Kong to come to the U. S., and she entered under a B-2 visiting visa 2 months ago. We got married last month and were about to put in papers for her immigration and someone told me that we might be in trouble because we married too quickly after she came in. Is that true? What can we do?

Mr. Lee Answers,
Current policy guidelines are that persons coming to the U. S. who take an action within 90 days of entry inconsistent with their stated purpose for coming to the U. S. are presumed to have made a misrepresentation of intent at the time of entry. In your case, you can solve your situation by filing the I-130 petition for alien relative for your wife and having her leave the U. S. and undergo consular processing once the I-130 petition is approved by U.S.C.I.S. The other route of filing for adjustment of status without leaving could bring on the consequence of U.S.C.I.S. questioning her intent at the time of coming into the country when you are both interviewed. I note that there is a recognized immigration decision that a preconceived intent should not count in an immediate relative case (immediate relatives are the spouses, parents, and children under the age of 21 and unmarried of U. S. citizens), but the question is whether an immigration officer at the time of your wife’s interview would be aware of the decision or believe that all the facts apply to your wife’s case. In the event that your wife is deemed to have committed fraud or misrepresentation, she could file an I-601 application to waive the ground of inadmissibility and the standard would be whether you would suffer extreme hardship if the waiver is not approved.

2. Laid Off on H-1B, Do I Have to Leave Now? Do I Have Any Time to Find Another Job?

I received my H-1B in October and had been working with my employer until the end of October at which time I was laid off. It has now been 33 days since I was let go. I have been trying to find other jobs, but it is not easy, especially around the end of the year. Can you tell me how much time I can stay here to find another H-1B job without leaving the country or trying to change my status?

Mr. Lee Answers,
You are allowed to remain 60 days after the last day of employment with your employer. During that time, you are considered in legal status for all purposes except for work and leaving the country. Please note that once you find a new position, your new employer will need approximately 2 weeks to file for an H-1B transfer petition (with a good legal representative) as it must first go through a labor condition application (LCA) with the Department of Labor prior to submitting your new H-1B to U.S.C.I.S. Good luck!

3. On H-1B, I-140 Just Approved, Priority Date Far Away, Want to Change Employers, Currently Applying For Extension

I am being sponsored by my present company and my I-140 petition was just approved 8 months after my labor certification was issued. I am from China and have a priority date in February 2017 under the EB-3 category. My 6 years of H-1B status will end in March, and we just filed for an extension. I am thinking of changing jobs to another company with better conditions, but wonder what risks I have and how much trouble this will be.

Mr. Lee Answers,
Unless there is fraud or misrepresentation, revocation or invalidation of the labor certification, or mistake on the part of U.S.C.I.S. in the I-140 adjudication, you will be allowed to keep the priority date. If the business does not fail or the employer revoke the petition within 180 days, the I-140 will stand for purposes of allowing you to extend your H-1B status until your priority date is current. Your new employer in that case would still have to file for a new labor certification and I-140. In changing over to a new employer, you and your new company will have to decide whether to put you on board during the time of the pendency of the transfer or have you remain with your original employer until the H-1B adjudication is done. Unfortunately at this time, there is still a suspension on premium processing for your type of anticipated filing, which is expected to last until February 2019. There is a risk that if you move over to the new employer without a new approval, a denial would place you out of status, and you might be forced to seek consular processing of any further approved petition. You should also be aware that remaining in the U. S. for over 180 days after receiving a denial from U.S.C.I.S. would subject you to a 3 year bar on returning to the U. S. if you had to leave.

4. Friend Who Filed Political Asylum Based on Persecution Under China Family-Planning Policy Just Denied – Why If He Has a Good Case?

I have a friend who has applied for political asylum and was just denied. Could you tell me why because he will not tell me and I am very concerned. He is a good man. In China, he was a doctor who was very conscientious. He worked in a clinic where he did abortions, but he tried to be as kind to the women as he could be, and in 2 instances even managed to help the women escape who did not want the abortions. In fact, he got into trouble in China because it was found out that he helped one escape for which he was dismissed. He has much evidence and documentation of the above that he gave to U.S.C.I.S.

Mr. Lee Answers,
Unfortunately it sounds as if your friend was labeled a persecutor by the U. S. government if he told his story in the way that you have just described. The family planning policy in China has consisted of coerced abortions and sterilizations, and people who prove that they have been the victims of such have a legitimate ground for political asylum. At the same time, those who assisted in the implementation of the coercive population control policy are considered persecutors who are ineligible for asylum and subject to removal from the United States. The fact that your friend helped out in 2 instances would not excuse his participation in a program of persecution in the eyes of the U. S.

Q&A’s published on Lawyers.com and the Epoch Times on January 11, 2019 1. DACA Question 2. I Am on H-1B and My Prevailing Wage Request is Submitted 3. I Have a Temporary Residency for 2 Years But He is Asking for Divorce.

1. DACA Question

My dad is a US citizen and I am an 19 year old immigrant with DACA . Will he be able to help me fix my paper work or am I too late to get any help?

Mr. Lee answers:
If you entered the country legally, your father can probably assist you in adjusting status to permanent residence in the US without leaving. If not, you may still be able to obtain your residence status through the I-601A program under which your father would petition for you as his relative on form I-130, and when that is approved, you would be able to submit an I-601A request for a waiver of the 10 year bar for being here in the US unlawfully for a year or more. The I-601A adjudication would be based upon your establishing extreme hardship to your father if you could not return to the US. Assuming that the waiver is approved, you would complete your case by having it consular processed through the National Visa Center in the States and the US consulate or embassy in your home country. Kindly note that the I-601A program has a good rate of success, but also that its future may depend upon how vigorously Mr. Trump wishes to go after programs benefiting the undocumented.

2. I am on H-1B and My Prevailing Wage Request is Submitted.

If prevailing wage is more than what i get currently, can the employer increase before perm and will my GC process go fine or should employer maintain the same salary starting of prevailing wage request

Mr. Lee answers:
PERM labor certification applications require a prevailing wage determination of the offered position for the case to be filed with the Department of Labor (DOL). The prevailing wage must be paid at the latest at the time that the permanent residence application is approved. Whether the employer pays the prevailing wage prior to that time to the alien is not a primary concern of DOL, which is the protection of US workers. That means that DOL will want to be assured that the employer is offering that wage to the US workers who apply for the position, and that the employer is not rejecting US workers because the alien is willing to work at a lower rate.

3. I Have a Temporary Residency for 2 Years But He is Asking for Divorce.

I am from Venezuela and have been married over a year with an US citizen. How can I do so the divorce does not affect my residency?

Mr. Lee answers:
The best action is to gather together and keep in a safe place all evidence that you and he have had a bona fide marriage. When the divorce is finalized, you can submit the I-751 Petition to Remove Conditions on Residence with all the proof of your marital relationship. If U.S.C.I.S. is convinced through the documentary evidence and/or interview with you that the marriage was bona fide, you would be allowed to have your conditions removed on the green card.

 

Q&A’s published on Lawyers.com and the Epoch Times on January 4, 2019 1.Green Card Holder Applying for Unmarried 28 Year Old Child 2.Can I Have My Marriage Annul? 3.My Fiancé Is On Immigration Hold And Is Being Held In A Local Jail Facility

1.Green Card Holder Applying for Unmarried 28 Year Old Child

How long it usually lasts to bring over an unmarried 28 years old, biological daughter to the USA if I am a Green Card holder since 2014. Will my Citizenship (in two years) speed up her case? What is the fee for?

Mr. Lee answers:
A good guesstimate is 7-8 years. In this case, citizenship usually does not help as, believe it or not, a guesstimate for that situation is at approximately 8-9 years now for most people in the world. The current I-130 petition fee with U.S.C.I.S. is $535.  Insofar as our legal fee is concerned, we do not publicly quote but it is reasonable.

2.Can I Have My Marriage Annul?

I married an illegal alien in 1991 who was supposed to be deported but fled to another country before they caught him. I need to know if we’re married. I’m trying to get married and I haven’t seen or spoken to him since 1991. I hoping that everything was just annulled. I’m trying to get married now and want that part of my life over. Also, we were married in Orleans parish by a Justice of the peace, but I do not remember what his name is.

Mr. Lee answers:
You cannot marry another without having your former marriage terminated. In every state, there is a record of marriage. In Louisiana, the office of the state registrar compiles and issues vital records for Louisiana citizens including for marriage. You can access the website at new.dhh.louisiana.gov. You can also check the records to see whether there has been a divorce filed by your marriage partner. If not, you can begin a divorce action on your own.

3.My Fiancé Is On Immigration Hold And Is Being Held In A Local Jail Facility

A month ago my Fiancé was getting out of court for a case he has for an Assault and Battery . Immigration was waiting for him outside and took him. He’s been held and ICE obviously does not give me any information if he has a bond or not. I’m 4 months pregnant with his child and I’m a high risk pregnancy and he’s my only provider for now. We have an apartment together but since he’s not working due to being in jail I had to give up my apartment and now I’m staying with a family member for now. Is there any way he will be able to get out on bond or with an ankle bracelet because I need him more then ever to help me with my pregnancy and living situation. He was my only help and now that he’s been gone so long I’m having so many problems emotionally and financially. He worked 24/7 and the assault and battery charge was for a fight we had and I’m fixing that in court because there were a lot of lies in the police report. What can I do to help him out?

Mr. Lee answers:
Hopefully the charge can be dismissed or changed as a conviction for domestic violence against a fiancé is a permanent bar to immigration. With a dismissal or change in character of the charge, and if you are a US citizen or permanent resident and marry and petition for him, ICE may give him a bond or release him on his own recognizance or with ankle hold assuming that he has not had prior criminal incidents or a bad immigration history.