Article: Will EB-5 Regulation Ever Come Out? Why More H-2B’s When America is “Full”? New Form Changes – Make Sure to Use the Right Forms to Avoid Rejection.

As published in the Immigration Daily on April 15, 2019

The above 3 topics question why certain events are happening or not happening, and remind or inform of new immigration forms and deadline dates for their use.

  1. Will EB-5 regulation ever come out? When Mr. Trump’s White House wants to move on regulations, he can make it happen fast. Witness one of his pet peeves, the H-1B program, and his attempts to fashion it more to his liking. The proposed regulation for the preregistration of organizations to file H-1B petitions and to flip-flop the selection process cap to favor Masters degree holders (“Registration Requirements for Petitioners Seeking to File Cap Subject H-1B Petitions”) came out on December 3, 2018, and was finalized on January 31, 2019, not even 2 months later. In the meantime, the proposed EB-5 rule (“EB-5 Immigrant Investor Program Modernization ”) which would raise required investment amounts dramatically and cut out the tricks of gerrymandering/cobble-stoning areas together in illogical ways to justify development in affluent districts including Midtown Manhattan when EB-5 law only allows targeted employment areas (TEAs) to exist in high unemployment and rural areas, has been slow walked almost to death by the Trump administration. The proposed rule came out over 2 years ago on January 31, 2017, and was only passed to the Office of Management and Budget (OMB) for study on February 22, 2019. The inordinate delay has been so concerning that it occasioned a March 11, 2019, formal communication to the Department of Homeland Security (DHS) Secretary and the Acting Director of the OMB by Senators Charles Grassley (R), Chairman of the Senate Finance Committee, and Patrick Leahy (D), Vice Chairman of the Senate Appropriations Committee, urging the Trump administration and in particular OMB to finalize and publish the rule in the national interest. Why the slow walk since Mr. Trump became President? Could it be that he is a real estate man and the real estate industry has seen great benefit through EB-5 investments in affluent areas providing cheap financing that it could not otherwise obtain? Could it be that his son-in-law Jared Kushner’s family has benefited greatly from the EB-5 program in its present state? If none of these reasons apply for why this proposed regulation has taken so long to be finalized, then it should be at this stage without further delay.
  1. Why more H-2B’s when America is “Full”? During a Southwest border visit last week, Mr. Trump said, “Can’t take you anymore… Our country is full… Can’t take you anymore… So turn around. That’s the way it is.” At the same time, both DHS and the Department of Labor stated that they intended to issue another 30,000 H-2B temporary work visas through September 30 on top of the present annual quota of 66,000. H-2B visas are generally given to those individuals with less skills, and most of the jobs could be fulfilled by many of the migrants attempting to enter the U. S. and plead for asylum due to the inhumane conditions in their home countries. Typical H-2B jobs are seasonal like waiters, maids and cooks and groundskeepers, meat, poultry, and fish cutters and trimmers, animal caretakers, and counter attendants for cafeterias and food concessions. Could it be that America is really not “full”? As you drive through this great land, anyone can see that there are large stretches of open territory and spaces between towns and cities with hardly anyone. For a real look at “full”, we can look at Japan with a population of 127 million, more than 3 times the 40 million population of California which has similar land size; or even China with a population of 1.34 billion, over 4 times the 311 million population of the United States which has only 2% less land. So why give the extra numbers if Mr. Trump says that the country is really “full”? Could it be that he knows the country is not “full”, but that he wants a large guest worker program in which the workers are bused in and bused out or flown in and flown out without a chance of obtaining permanent status? It must be noted that he is deeply familiar with the intricacies of the H-2B program, having employed a large number in all of his hotel and other hospitality properties. He knows that the prominent feature of the program is that the job itself must be temporary and so cannot serve as a basis for PERM labor certification, the most important step in most employment-based green card applications. A large guest worker program in lieu of other forms of work that might serve as the basis for permanent residence would ensure that the workers would never truly become part of the fabric of this country as permanent residents or citizens with voting power.
  1. Make sure to use the right forms – For long stretches of time, legacy INS/U.S.C.I.S. forms never changed. The agency, its employees, and the public were very comfortable dealing with the same forms year after year. The Paperwork Reduction Act of 1980 also discouraged government bureaucracy from expanding forms and using more paper. That has changed, and U.S.C.I.S. is in the throes of taking every opportunity these days to use as much paper as possible in expanding forms and form instructions ad infinitum. Some forms change on almost a yearly basis. Use of old forms when U.S.C.I.S. has declared them obsolete results in the rejection of petitions and applications. In time sensitive petitions and applications, rejection can be deadly. Current form changes that readers should be aware of are the following:
  • I-290B – As of 1/20/19, only the 5/17/18 version is accepted.
  • I-539 – As of 3/22/19, only the 2/4/19 version is accepted.
  • I-129F – As of 4/29/19, only the 11/7/18 version will be acceptable.
  • I-131A – As of 4/29/19, only the 2/13/19 version will be acceptable.
  • I 191 – As of 4/29/19, only the 2/13/19 version will be acceptable.
  • I-130 – As of 5/6/19, only the 2/13/19 version will be acceptable.
  • I-134 – As of 5/6/19, only the 2/13/19 version will be acceptable.
  • I-129 – As of 5/20/19, only the 1/31/19 version will be acceptable.

Readers should also be aware that U.S.C.I.S. has lately even incorporated significant changes amounting to differing interpretations of law in some form instructions, and so current instructions should certainly be read to ensure complete understanding of any hidden dangers in completing and filing the forms.

Our next article will cover which filing fee modes of payment are allowed or disallowed and at which offices, how people are being defrauded by U.S.C.I.S. look-alike scams, and why organizations that do not use lawyers for H-1B petitions should do so now.

Q&A’s published on Lawyers.com and the Epoch Times on April 12, 2019 1. Would My Being on Food Stamps Affect Me Helping My Mother Get Residency? 2. Naturalization with DWI 3. Tax Filing Status For Illegal Spouse

1. Would My Being on Food Stamps Affect Me Helping My Mother Get Residency?

I just became a citizen and I’m planning on helping my parents apply for residency but my family is in current need of assistance if I Apply and get approved for food stamps will that effect be being able to help my parents?

Mr. Lee answers:
If it is discovered that you are taking means tested benefits like food stamps, that could have an effect on your mother’s obtaining resident status as you must supply an I-864 affidavit of support in order for her to immigrate. Although the chances of discovery are not high, there is still a risk. Even if you have a financial co-sponsor, a relevant question by an adjudicating officer upon discovery could be whether the co-sponsor’s affidavit of support is credible since the cosponsor is not assisting your financial situation.

2. Naturalization with DWI

I am a permanent Resident for over 10 years, and decided it is time to apply for a US citizenship. One problem that I do have is in June 2015 I was arrested for a DWI (which is considered as a traffic offense in NJ) in the state of NJ. Will this have any negative effect on my application and cause it to be denied? Do I absolutely have to wait 5 years from the arrest date until I can start the process for naturalization? Do any other factors such as being a full-time student, owning a home, weigh in positively towards the decision making from USCIS? If the application does get denied, Do I have to wait another 5 years until I can re-apply?

Mr. Lee answers:
I will assume for purposes of your question that you were not cleared of the charge. Naturalization requires good moral character, in most cases for five years. You have a questionable case as to whether an application would be granted at this time. If only one DWI, however, the odds are good. DWIs in the past were not considered too damaging to applications, but have received much attention in this past decade. That is because of the pressure brought on to members of Congress by aggressive lobbying by interested parties, which in turn has meant the dragging of DHS officials before congressional committees on the issue. If you do decide to go forward with your naturalization case, you should attempt to make a showing of any equities that you have including any explanations for your DWI arrest.

3. Tax Filing Status For Illegal Spouse

How do I file my return if I recently got married to someone from another country, but my spouse has not yet received his green card or social security number?

Mr. Lee answers:
There is no one right answer for the question, but we favor married and filing separately if the individual is overseas. Your tax status is in my understanding determined on your marital status at the end of the calendar year. If you were married this year and your spouse is in the US, you should file a joint tax return or file as married filing separately.  For filing jointly, you should be able to work it out so that your spouse files with you with a taxpayer identification number (ITIN). Any of the accounting service should be able to assist you and your spouse with doing that.

Q&A’s published on the World Journal Weekly on April 7, 2019 1. I Wish to Give Up My Green Card As I Have Not Been Successful. What Effect Will That Have On My Family That Wants to Stay Here And How Do I Do It? 2. Having Difficulty Changing Schools on F-1 Visa – What To Do? 3. CBP Gave Me a Short Stay When I Reentered on H-1B Even Though I Have a New Visa. Why? 4. On H-1B Visa With Company A, Transfer Applied for by Company B, But Want to be With Company C – How Can I Solve This?

1. I Wish to Give Up My Green Card As I Have Not Been Successful. What Effect Will That Have On My Family That Wants to Stay Here And How Do I Do It?

I and my family immigrated to this country in 2015. As an artist, I have not been successful here, and want to return to my home country. My 2 questions are how can I give up my green card and what effect will that have on my wife and child who want to stay in the U. S.

Mr. Lee Answers:
There are 2 ways to cancel the green card through the filing of form I-407 Record of Abandonment of Lawful Permanent Resident Status – 1.)  Submitting the form in person or by mail to a U.S.C.I.S. international field office in your home country, or mailing the form to the nearest U.S.C.I.S. international field office where there is not an office in your home country; or 2.)  submitting the form to Customs and Border Protection at a U. S. port of entry. In rare circumstances, the U. S. Embassy or Consulate without a U.S.C.I.S. international field office in the country may allow the submission of the form in person if you need immediate proof that you have abandon your lawful permanent resident status. Addresses of international field offices and ports of entry are in the form I-407 instructions on where to file. On your family, they should feel no adverse effects if you abandon residence at this time as you have already held it for 3-4 years. U.S.C.I.S. is more concerned with principal aliens and their families in which the principal alien fails to stay in the U. S. for any appreciable period of time before taking steps to abandon the green card.

2. Having Difficulty Changing Schools on F-1 Visa – What To Do?

I just entered the U. S. to go to a good college for which I got a five-year F-1 visa, but I am uncomfortable and want to change schools. However, the school that I am really interested in has a policy that it will not transfer in someone who just came in to start with another school. It tells me that I must go back to China and ask the first school to terminate the school’s I-20 form first. What can I do?

Mr. Lee Answers:
I do not know what your desired school will finally accept, but perhaps they would be satisfied with giving you an I-20 for you to use outside the United States. Then because the five-year visa is still valid (even though with another school), you should be able to reenter the U. S. by showing the new I-20 and valid passport to Customs and Border Protection (CBP). If CBP disagrees, it could still allow you to file a form I-193 application for waiver of passport and/or visa in its discretion.

3. CBP Gave Me a Short Stay When I Reentered on H-1B Even Though I Have a New Visa. Why?

I had my H-1B status extended to 2021, and went home and got a new visa at the consulate that starts on March 25, 2019. The current H-1B visa expires on March 24, 2019, which was the ending date of my first H-1B petition. I came back to the U. S. from vacation on February 25, 2019, and the CBP officer at the airport only gave me the time to stay until April 3, 2019, which he said included the 10 day grace period after the expiring of the visa on March 24. How can I straighten out my situation?

Mr. Lee Answers:
An H-1B visa holder generally cannot enter into the country on an H-1B visa more than 10 days before the start date on the petition. When you entered the U. S., neither the visa nor the petition beginning on March 25, 2019, was within the 10 day striking range. Therefore the CBP officer probably believed that you could only enter on the basis of the present visa and petition which ended on March 24, 2019, and that he or she was only allowed to give you that period of time plus the 10 day grace period. It seems a dubious reading of the law where the new approved petition is connected in date with the one that is expiring. A visa is usable for entry, but does not dictate the period of time that someone is allowed to stay in the country. I suggest that you communicate with CBP immediately at any international airport in the U. S. to attempt to have your situation straightened out. If CBP refuses to assist, you should book a flight outside the United States and reenter using the new visa and petition which are now within the 10 day range. You should ensure that you will be passing through a port of entry in which CBP will actually inspect you rather than just waving you through. In the latter case, there might not be a record of your reentry.

4. On H-1B Visa With Company A, Transfer Applied for by Company B, But Want to be With Company C – How Can I Solve This?

I am presently with company A, got a better job offer from company B which sent in H-1B transfer filing 4 months ago and is pending a response on U.S.C.I.S. Request for Evidence, and now have a better job offer from company C which is also willing to do a transfer petition for me. What should I do at this point?

Mr. Lee Answers:
As you are still with company A, there is no impediment to company C putting in an H-1B transfer petition for you at this time. The new petition would include proof of your continuing pay with company A to show that you are still maintaining your present status. The question is whether you are stuck in your mind on working only for company C or whether you are willing to work for company B if its petition is approved instead of that of company C. If you are set against working for company B in any circumstance, you should ask the company to withdraw its petition now. On the other hand, if you are still entertaining thoughts of perhaps working for company B, you could have the company continue its petition and see whether it can be approved. If it is approved prior to the approval of company C’s petition, the company C approval would supersede it automatically, but you should also have company B withdraw the petition unless you are also planning to work for company B. If the situation arises in which the company C approval comes in prior to any final action on that of company B’s, you should have company B immediately withdraw the petition to avoid any adverse effects upon your ability to work for company C.

Q&A’s published on Lawyers.com and the Epoch Times on April 5, 2019 1. My Husband Moves Out After Filing I-485 for Employer Sponsored Green Card – Will I Still be Eligible As His Wife If Legally Married But Different Homes? 2. H1-B Extension With Approved I-485 Employment Authorization Document 3. My Boyfriend and I Are Getting Married Soon I’m Illegal He Wants to Get My Immigration Status Fix

1. My Husband Moves Out After Filing I-485 for Employer Sponsored Green Card – Will I Still be Eligible As His Wife If Legally Married But Different Homes?

I am concerned about needing to go to a green card interview as a married couple if the credit report shows a new lease? He claims provided we are legally married it is ok if he moves out BEFORE we receive green cards? We have been married for 17years & previously held a green card before moving out of US for 6yrs. We now have E3 / E3D visas. We have two children under 9 who are also on the application. I don’t want his lease / moving out to make me ineligible for spouse green card.

Mr. Lee answers:
Yours is not a marriage based petition case, and as long as your husband continues to support your immigration application, I would assume that you will obtain your permanent residence. I will also assume that the move is in the same immigration office jurisdiction as local field offices of USCIS may not wish to adjudicate applications of persons residing outside their jurisdiction. The fact that you already have two children nullifies any suspicion of a non-bona fide marriage. Separate addresses would appear to be more of a concern where a US citizen or permanent resident has married and is petitioning for the spouse, or where the principal in an employment base case has a recent marriage. A difficulty may be coordinating between yourselves to attend an immigration interview together if you both filed I-485 adjustment of status applications together as USCIS is now interviewing all employment based case beneficiaries.

2. H1-B Extension With Approved I-485 Employment Authorization Document

Although my I 485 EAD and AP is approved, I still want to maintain and continue to be on H1-B visa, till the time my green card priority dates become current. The reason to maintain H-1 Visa status : If for whatever unforeseen reason there is any issues in my green card processing, I need a fall back plan that can let me stay in US and work, that’s only H1 Visa. Also my priority date is 31st Oct 2010 from India and the dates are not moving fast enough every month. Need a professional advise if this is the right approach or if there is something else I should be doing for me(H1B) and my wife(H4).

Mr. Lee answers:
Many H1B holders are faced with the same question as you, and many choose your fallback plan. This appears to be the right approach for the sake of security. Of course, as you know, many take the other course with the EAD and advance parole.

3. My Boyfriend and I Are Getting Married Soon I’m Illegal He Wants to Get My Immigration Status Fix

I came with a visa when I was younger it expired and I stayed here would that be an issue for my immigration process?

Mr. Lee answers:
As long as the visa on which you came to the US was valid, your overstay should not affect your having your immigration status fixed as long as your boyfriend is a US citizen. The status of being the spouse of a US citizen forgives the immigration violation of an overstay.