Q&A’s published on Lawyers.com and the Epoch Times on February 22, 2019 1. Can An Illegal Immigrant Become Legal After 13 Years of Living in the U.S.? 2. I’m On L-2 Dependent Visa and Want to Have a Work Permit to Work in U.S. 3. Clarification on The 3-Month Residency Requirement in the District When Submitting N-400.

1. Can An Illegal Immigrant Become Legal After 13 Years of Living in the U.S.?

Mr. Lee Answers:
Dependent upon the situation, an illegal immigrant can become legal after 13 years of living in the US. However, that presupposes that there is some basis other than the 13 years of residence. For example, an individual may be eligible for relief in the immigration court by showing 10 years continuous residence, good moral character, and that removal to another country would cause exceptional and extremely unusual hardship to a US citizen spouse, parent, or child. Other reliefs may be available, and your best move may be to consult an immigration lawyer about other possible options.

2. I’m On L-2 Dependent Visa and Want to Have a Work Permit to Work in U.S.

Is it necessary to apply EAD & social security number?

Mr. Lee Answers:
For an L-2 dependent to obtain a work permit, he or she must file for employment authorization on form I-765 application for employment authorization. Upon obtaining an employment authorization, the individual can apply for a working Social Security number. I do note that L-2 employment authorization is for spouses and not dependent children.

3. Clarification on The 3-Month Residency Requirement in the District When Submitting N-400.

 I am living in two states which are NC and SC. They are in same USCIS district according the information on USCIS website. Currently l am in NC since October and l will be living in SC during summer time then will be back to NC again.  Does it matter which state l apply for naturalization?  I have apartment lease and utilities on both state address.  

Mr. Lee Answers:
U.S.C.I.S. regards the three-month residency requirement to either be applicable to the state or to the U.S.C.I.S. field office’s jurisdiction. So in your case, you would be fulfilling the three month requirement whether in North Carolina or South Carolina as long as they both fall under the jurisdiction of the same immigration office.

Article: Immigration Procedure – 10 Possible Items Of Interest

As published in the Immigration Daily on February 19, 2019

We thought that the following might be of interest and that you might not know about them or at least some of them. If you do not, good reading –

1. Does an applicant on DS-160 have to answer “yes” where an immigrant petition has been filed on behalf of the parent or spouse? The Department of State has amended 9 FAM 302.9-4 (B) (8) to state that “an applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” Consular officers many times expect the answer “yes”, so the American Immigration Lawyers Association (AILA) takes the position that a derivative beneficiary named on an immigrant petition may respond negatively or affirmatively to the question, with neither response resulting in a finding of material misrepresentation.

2. There is a new procedure for the consolidation of H and L visas for China beginning 3/1/19 as exclusive jurisdiction will only be in Beijing, Guangzhou and Shanghai. Chengdu and Shenyang will no longer be handling these cases.

3. The Pew Research Center currently estimates that the number of undocumented immigrants in the country fell from 12.2 million in 2007 to less than 11 million in 2016, and the number of illegal entries in 2017 was 310,000, the lowest of any year since 1971. So, where’s the national emergency?

4. What is the border? In a post by the American Immigration Council, the “border zone” encompasses 10 states in their entirety, touches dozens more, and contains 9 of the largest 10 cities in the country. Customs and Border Protection (CBP) has broad authority to operate within 100 air miles of any U. S. boundary, including setting up and operating immigration checkpoints on many routes within the 100 mile radius that eventually meets the border. Within 25 miles, agents have even more leeway such as entering private property without a warrant or permission. Based on news and other reports, there are 170 checkpoints with the vast majority spread across the Southwest border states.

5. U.S.C.I.S. reopened premium processing on February 19, 2019, for all H-1Bs filed on or before December 21, 2018. Such would apply mainly to H-1B transfers, amendments and concurrent filings since premium processing has been constantly open to extensions and recently to FY-2019 cap cases.

6. In looking at statistics on H-1Bs, a news report in the Los Angeles Times, “Immigrant tech workers struggle to get H-1B visas under Trump:’ I’ve never felt so helpless’” said that in 2017, 74% of all H-1B’s were approved, down from 87% the year before and the lowest approval rate in at least a decade. You can bet quite safely that 2018 results were even worse. From another source, the proportion of H-1B petitions denied increased by 41% from the 3rd to the 4 th quarter of FY- 2017. A major consequence of the increase in denials and the long waits is that many H-1B holders are now reluctant to change jobs because that means another adjudication by U.S.C.I.S.

7. Since June 2017, at least 14 lawsuits have been filed in federal courts around the country concerning H-1B denials. The plaintiffs are directly suing to federal court and bypassing the U.S.C.I.S. Administrative Appeals Office (AAO).

8. A suit was filed on 12/19/18 in the DC District Court on a H-1B extension denial without the parties going to the AAO, the plaintiff, a Minnesota finance and IT company, and the beneficiary a computer systems analyst in a position entitled “BI business analyst” or business intelligence business analyst. She had held H-1B status since October 2008 and had an approved I-140. The company’s stated requirements for the job were an MS in computer science, computer engineering, electrical engineering or related field +3 years as a technical analyst or similar analyst or consulting position involving business objects universes and reports. The denial was based upon the U.S.C.I.S. Service Center Director’s view that the occupation of computer systems analyst does not require a bachelors level of education or higher or its equivalent in a specific specialty.

9. Another H-1B suit filed in the same court on 10/16/18 and bypassing the AAO involved a large construction concern in Dallas filing an H-1B amendment/extension for the beneficiary as an assistant project manager in September 2017. The beneficiary, who had already been approved to work for the company under H-1B status as an equipment logistics engineer through June 2018, held an MS in construction management, and the employer’s stated requirement was a bachelors in construction management, engineering, or related. The Occupational Outlook Handbook (OOH) which is heavily relied upon by U.S.C.I.S. in determining H-1B specialty occupations, said that it was increasingly important for construction managers to have a bachelors degree in construction science, construction management, architecture or engineering. The denial was based on the U.S.C.I.S. Service Center Director’s view that, as per the OOH, the construction manager occupation is not a specialty occupation.

10. The liaison meeting of AILA and NY/NJ Customs and Border Protection (CBP) on 10/23/18 clarified that if an adjustment applicant is traveling on advance parole, and CBP learns that the application for adjustment of status to permanent residence has been denied when the person tries to reenter, CBP will not parole the passenger on the basis of the now denied I-485, but has discretion to defer the inspection. CBP will look to see if the I-485 was denied on criminal grounds. Based on CBP’s initial review, it may decide to defer the inspection for 30 or 60 days to allow CBP to talk to U.S.C.I.S. and determine the nature of the denial while the passenger addresses the denial with U.S.C.I.S. Once the initial deferred inspection period has ended, the passenger may be able to get a further extension if CBP believes the issue will be resolved favorably with U.S.C.I.S.

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.