Q&A’s published on Lawyers.com and the Epoch Times on May 31, 2019 1. Will Traffic Violation Get Me Deported? 2. Will I Still Be Able to Get My Green Card? 3. Can I Marry a Chinese Student On a F-1 Visa

1. Will Traffic Violation Get Me Deported?

In New Jersey got a “driving with telephone” ticket and have mandatory court appearance. I do have a valid driver’s license but no social security number. Will my legal status be brought up in court? Could I be deported over this? I have never even gotten a speeding ticket in the past 14 years.

Mr. Lee Answers: 
No one can predict with any great certainty what will happen now that Donald Trump is president. He has emboldened ICE to even hang around courthouses in the hopes of catching undocumented immigrants. That being said, ICE usually has a concern with the individual previously when it does that. As New Jersey is not a red state, the chance of you having a problem appearing on a traffic ticket in New Jersey is very low if you have not had prior encounters with Immigration.

2. Will I Still Be Able to Get My Green Card?

I am a green card holder through marriage. I applied for the removal of conditions 14 months ago after my 2 year green card was coming to an end. The USCIS is processing applications that are few months after mine. I called them since my one year extantion expired and I had to get another year extension. They told me that the company that took my biomedics still did not provide a background check and that there is nothing that they can or will do. I was suppose to get a decision couple of months ago. The issue now is that my husband and I are on very bad terms and he is going to apply for a divorce any day now. How can this affect me? To sum up We filed the I-751 together and he signed it over 14 months ago but due to missing biomedics my case is still pending and he wants a divorce now.

 Mr. Lee Answers:
Even if your husband divorces you at this time and your case is still pending, U.S.C.I.S. would give you the opportunity to amend your I-751 to another category such as having been in a bona fide marriage which is now dissolved. You would notify U.S.C.I.S. of the development once you divorce, and U.S.C.I.S. would reclassify your case. You would not have to refile if your case is still pending.

3. Can I Marry a Chinese Student On a F-1 Visa

She will graduate in May, apply for OTP, We want to marry on May 20. Send OTP out next week. Then start the application process.

Mr. Lee Answers:
There is nothing precluding an individual from marrying a student on an F-1 visa, and having her send out the OPT prior to the marriage is probably a good idea as it gives options in the event that something goes wrong with your application process.

Q&A’s published on Lawyers.com and the Epoch Times on May 24, 2019 1. I am TPS Holder and My Husband is a U.S. Citizen, Have Two Kids, My Husband Want to Apply for Adjustments of Status for Me, Is It Possible for Me? 2. Can an Immigration Lawyer Help a Younger Individual That Was Already Refused the B-2 Visitor’s Visa Get Approved? 3. Concerned re Travel in Advance Parole /EAD Document

1. I am TPS Holder and My Husband is a U.S. Citizen, Have Two Kids, My Husband Want to Apply for Adjustments of Status for Me, Is It Possible for Me?

For me to get my green card without living the country, I’m in Florida and my husband is in Massachusetts, I’m moving soon.

Mr. Lee answers:
I assume that you entered the U.S. without inspection. The question of whether a TPS holder who entered illegally can adjust status in the US is a hot button issue at this time and the circuit courts are divided as to whether it can be done. The Ninth Circuit Court of Appeals in California just decided that it was possible in following the Sixth Circuit in Ohio. Meanwhile the 11th Circuit with jurisdiction over the states of Alabama, Georgia and Florida has decided in the negative. The rest of the circuit courts have not yet ruled.

2. Can an Immigration Lawyer Help a Younger Individual That Was Already Refused the B-2 Visitor’s Visa Get Approved?

Mr. Lee answers:
An immigration lawyer can help to put together an application and perhaps add in details or evidence which were not in a prior application. If a consular officer made a mistake of law, an immigration lawyer could also point that out. But where individuals are denied for visitors visas based on the consular officer’s perception that the applicant may remain in the US instead of returning to the home country and there is no strong evidence to the contrary, an immigration lawyer is not a miracle worker. These types of determinations are non-appealable and perhaps the better solution would be to wait until the individual has enough bonds and ties in the home country to convince a consular officer to grant a visiting visa.

3. Concerned re Travel in Advance Parole /EAD Document

I have received advance parole /EAD card while waiting for a I-485 Adjustment of Status green card application filed by my husband’s employer. My husband however wants to move out before the green card arrives but I have been told that since this application is employer based this should hopefully be okay still as we are still married since 2000 & we have two kids under 9. My fear is that if I my children & I travel for vacation overseas to Australia to see family that I may not be allowed back in if they find out he has moved out? I don’t want to miss my father’s 80th birthday though… thoughts??

Mr. Lee answers:
As you have an employment-based case and there is no doubt of the bona fides of your marital relationship, you would be eligible to obtain permanent residence with your husband if he still wishes to continue your application even if you are separated. Even if U.S.C.I.S. was to discover that your husband moved out when you reenter the States, that should not have an effect on your admissibility.

Article: Protecting The Green Card When Taking Extended Trips From The U. S.; Entitlement To 10 Day Or 60 Day Grace Periods For Nonimmigrant Workers; Public Charge Danger Signals

As published in the Immigration Daily on May 23, 2019

1. Protecting the green card.

After obtaining the green card, permanent residents many times leave the U. S. for extended periods of time, placing their green cards in jeopardy during the inspection process when reentering the country. What is there to do except to hang back or try to somehow get into the line of the Customs and Border Protection (CBP) officer that one thinks will afford the most favorable inspection? The general rules are that a permanent resident should be maintaining a main domicile in the U. S., which generally means over 6 months of each year; that trips of over 180 days may subject the individual to harder inspection as an alien “seeking admission”; and that frequent trips of extended duration even if not over 180 days may still cause challenge to the right to keep the green card.

What can one generally expect from CBP where extended absences are concerned? Usually the first step will be a warning and a notation in the passport of the person’s extended absence. The applicant may be instructed to apply for a reentry permit. The reentry permit allows a permanent resident to be outside the U. S. for up to but not including 2 years and is a favorable factor for entry as the individual has in effect informed DHS of his or her plan to take extended trip(s) outside the U. S. However, it is not a guarantee for reentry. So in what other ways can a green card holder protect his or her permanent resident status? If the absence or absences was to take care of someone in ill health, perhaps a statement from the treating physician, hospital records or test reports along with proof of relationship would be helpful. Although some CBP officers have said tax returns are not particularly persuasive, it would not hurt to have proof of the payment of U. S. taxes so long as the person is not taking an income exemption for income earned overseas because of having declared himself or herself a nonresident for the year.

In a deferred inspection or before an immigration court, other items that might be helpful could be proof of real and personal property owned in the U. S., job letters, proof of pay, proof of family members in the U. S. and their maintenance of domicile here, bank books and banking statements, use of U. S. credit cards, ownership of U. S. stocks, insurance policies, membership in associations, clubs, and organizations, evidence of payment of long-term debt over a period of time, e.g. mortgage and automobile payments, library cards, state driver’s licenses or state identity cards, etc.

This is a new age in which immigration officials have become emboldened by the Administration to take adverse actions against immigrants, legal or otherwise. It behooves all permanent residents who travel outside the United States for extended periods of time to be more cautious and be prepared to meet a challenge upon arrival.

2. Is the nonimmigrant worker entitled to a grace period of 10 days or 60 days?

In the final rule of November 18, 2016, “Retention of the EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers,” U.S.C.I.S. expanded application of the 10 day grace period given at the end of the expiration of nonimmigrant working status to nonimmigrant working classes E-1 (Treaty trader), E-2 (Treaty investor), E-3 (Australian specialty occupation), L-1 (intracompany transferee), and TN (NAFTA or soon to be CUSMA). H-1B (specialty occupation), O-1 (extraordinary aliens) and P (performers, athletes and entertainers) categories were already covered. Significantly U.S.C.I.S. clarified that the 10 day period could be used to apply for purposes of extension of status or change of status.

The same rule also allowed a 60 day grace period for each authorized validity period to allow individuals who had left or been dismissed from their authorized work to find new work if in categories E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN. The 60 day grace period can only be used once within each petition’s validity.

It is clear that the purposes of the two grace periods are different – one to allow 10 days at the end of the authorized period of stay and the other to protect nonimmigrant workers caught in unsuitable situations of employment. Yet can the two meet and be combined to give more than 60 days? The final rule allowed for that possibility in a situation wherein the applicant leaves or is dismissed during the last 60 days of the validity period of the authorized stay, at which point U.S.C.I.S. might consider the applicant to have maintained status for up to 60 days immediately preceding the expiration of the validity period (since the applicant is within the 60 day grace period), and the applicant might also use the 10 day grace period after the validity period ends.

So how would that work out in practice? Would the rule allow an individual in H-1B status whose period of validity had just ended and is in the 10 day grace period another 60 days on the basis that the employer had not decided to let him or her go and was contemplating an extension and only gave the decision to not extend the visa status during the 10 day grace period? I think not. However, it might certainly apply to an individual who is dismissed with 40 days left to go on the petition validity, and because the 60 day grace period would cover the ending date of the H-1B petition and be considered the new ending date (albeit without work authorization), the 10 day grace period would then be appended to the end of the 60 day grace period to afford more time for the individual to depart the U. S., change or extend status.

3. Public charge danger signals.

Current prohibited public benefits for persons applying for permanent residence are SSI, cash assistance from the Temporary Assistance for Needy Families (TANF) program, food stamps, State Child Health Insurance Program (SCHIP) and public assistance including Medicaid used for long-term care such as in a nursing home or mental health institution. The proposed rule of October 10, 2018, “Inadmissibility on Public Charge Grounds,” would also include Medicare part D low income subsidies, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing. The Trump administration is also moving to draft a regulation to deport green card holders who use government assistance within 5 years of admission, as per a Reuters report on May 3, 2019. According to Reuters, the public benefits would include SSI, the food stamp program, Section 8 housing vouchers, many Medicaid benefits, and TANF.

The October 10, 2018, proposal garnered over 210,000 comments in the 60 day comment period. Yet the number of comments does not mean that it will not become law although the Administration can expect much litigation in the courts. What should people do at this point? The best advice is probably to stay on the public benefit(s) if you need it, and get off of it if you only consider it a “freebie” of the U. S. government. The proposed rule has a 60 day exit ramp after the rule’s finalization within which participants can disenroll from the program(s). In addition, persons who are adjusting status to permanent residence or going overseas to apply for immigrant visas would not be penalized for using benefits which were not previously targeted by the new rule before the effective date. It can be assumed that any proposed rule for green card holders would contain the same or similar 60 day exit ramp.

In our next article, we will discuss the recent Trump Administration moves against immigration, DHS (including U.S.C.I.S.) iron-doming itself, and another interesting topic(s).

Q&A’s published on Lawyers.com and the Epoch Times on May 17, 2019 1. Can I Fix Papers for My Mother And My Wife? 2. Would I Have Problem Transferring to a New Employer on May 15 2019 If My Current Employer Has Filed My H-1B Application on April 1st 2019? 3. Travel Back to Home Country After H-1B Max-Out. Can I Travel Back After H-1B Extension Approval (After I-140 Approval)?

1. Can I Fix Papers for My Mother And My Wife?

Mr. Lee answers:
Whether you can fix papers for your mother and your wife depends upon your personal circumstances of US citizenship, your age (must be over the age of 21 if the US citizen is to sponsor a parent), your financial status, the statuses of your mother and your wife, the bona fides of your marriage, any bars that they may have which would preclude them from immigrating to the country, and how they entered the country. With this information, an immigration lawyer would be able to give an opinion as to your ability to fix papers for your mother and wife.

2. Would I Have Problem Transferring to a New Employer on May 15 2019 If My Current Employer Has Filed My H-1B Application on April 1st 2019?

I am on F-1 OPT status working for a company. My current employer has applied for my H-1B on 1st April 2019. However, I am thinking to change my employer and start with the new employer on May 15 2019. If my H-1B gets selected, would the H-1B application get revoked if I start with the new employer? Also, if H-1B gets selected and I change the employer due to which H-1B application gets revoked, would I have problems transferring my status into new company based on my current EAD OPT status valid until June 2019?

Mr. Lee answers:
If U.S.C.I.S. has selected you for H-1B under employer A, and you then put in papers to change your H-1B selected case to employer B in May, there is every likelihood that your H-1B cap selection would be revoked. Since the selection is not an approval which would change your status, your OPT EAD should still be valid to allow you to work for an employer until June in the field of your major.

3. Travel Back to Home Country After H-1B Max-Out. Can I Travel Back After H-1B Extension Approval (After I-140 Approval)?

I am currently on H-1B visa and my H-1B max-out date is 4th June 2019 (6 years completed). Max-out date is calculated after considering the time out of US during H-1B term. My employer will file my I-140 application in premium processing by 19th May. My spouse is also working on H-1B and currently in US. 1) In a scenario if I stay in US till 4th June 2019 and my employer is unable to submit H-1B extension request based on I-140 approval till 4th June, what are the option available: a) Travel back to home country India on 4th June – Once H-1B extension is submitted and approved while I am in India, will I be able to travel back to US once H-1B extension is approved. b) Are their any rules/restrictions which stops me from traveling back. 2) If I travel back to my home country before (ex:25th May 2019) H-1B max-out date 4th June 2019, does it improve any chances for coming back to US when H-1B extension (applied after I-140 approval) is approved. Thanks

Mr. Lee answers:
One option that you can consider is making an application to H-4 to cover any possible time that you may be out of status. Although your current max out date is June 4, 2019, the regulations allowing a 10 day grace period following the max out date can be used to keep you in legal status for purposes of extension of status or change of status or other permissible non-employment activities such as vacationing prior to departure. Hopefully your I-140 petition will be approved in time with the 10 extra days. If you do decide to travel back to the home country, you are able to return to the US as long as you obtain an H-1B visa from the American consulate or embassy. I do not see that going back to your home country at an earlier date than the maximum period of time that you are allowed would increase your chances of obtaining a visa.

 

Q&A’s published on the World Journal Weekly on May 12, 2019 1. What Can I Do When My H-1B Transfer Petition Gets a U.S.C.I.S. Request for Evidence and I Have Already Transferred to The New Employer? 2. Does A Step Relationship Survive a Divorce Where There Is A Remarriage? 3. What Should I Do With My Pending Asylum Case When I Am Now Married to a U.S. Citizen? 4. Daughter Gave Up the Green Card For Leaving the Country For Too Long – Can She Get It Back?

1. What Can I Do When My H-1B Transfer Petition Gets a U.S.C.I.S. Request for Evidence and I Have Already Transferred to The New Employer?

I worked for company A under H-1B status and was then sponsored by company B for the H-1B transfer, and I moved to the new company when it received the filing receipt from U.S.C.I.S. That was legal as confirmed by the company lawyer. Now we have received a request for evidence from U.S.C.I.S. asking it to explain why my position of business analyst is a specialty occupation. My company has 45 people in it and creates business software for Wall Street finance firms.

Mr. Lee Answers:
Your case sounds reasonable for success in answering the request for evidence, especially if the company lawyer is well-versed in H-1B law. Your options are to stay with the company which is sponsoring you until it receives the decision, or if you feel extremely negative about the chances of success and company A has not yet taken steps to cancel your H-1B status with U.S.C.I.S., you can go back to work for company A. Further steps to involve a third company sponsorship to stay here in the US without leaving or to change status to another category would be dependent upon the success of company B in responding to the request for evidence. This is not to say that the above are all the options, but quite probably are the most relevant to your situation.

2. Does A Step Relationship Survive a Divorce Where There Is A Remarriage?

I am a US citizen and want to know if I can sponsor my stepmother who married my father when I was six years old, divorced him when I was 13, and remarried him when I was 21. They love each other and I am very fond of her as she basically raised me and even lived together from time to time during the time that they were divorced.

Mr. Lee Answers:
A step-relationship lives and dies in the duration of the marital relationship. There is no blood involved, and so a divorce effectively ends a step-relationship. A later marriage would not serve to revive the relationship in the past. Your stepmother would have to find another means to immigrate, most likely through the petition of your father if he is either a US citizen or green card holder.

3. What Should I Do With My Pending Asylum Case When I Am Now Married to a U.S. Citizen?

I applied for political asylum in 2017 and have not yet been scheduled for an interview at the asylum office. In the meantime, I have married a US citizen who will sponsor me for the green card. What should I do know? I entered the US with a visitors visa and have no problems with fraud or crimes.

Mr. Lee Answers:
There are two schools of thought on how to proceed – one is to file the paperwork for the green card and then ask to have the asylum case closed and the second is to file for the green card and keep the asylum case going as a backup. We favor the first approach as it is the less complicated route and there is a distinct possibility that the asylum applicant may not be allowed to withdraw at a later stage.

4. Daughter Gave Up the Green Card For Leaving the Country For Too Long – Can She Get It Back?

My daughter went overseas to study when she have the green card, and did not return for three years. When she did, she was given the choice of either giving up the green card or seeing the immigration judge. She gave up the green card. Two more years have since passed and she is finished her studies and wants to return to the US. Can she still return on the green card? If she had it, it would still have three years left on it.

Mr. Lee Answers:
If your daughter already gave up the green card, it would be difficult to reclaim it at this time. A more likely scenario would be re-petitioning for her green card. If you are a US citizen or permanent resident, you can file an I-130 petition for alien relative on her behalf.

Q&A’s published on Lawyers.com and the Epoch Times on May 10, 2019 1. How Can My US Citizen Husband File A Visa For My Mother to Come to the U.S.? 2. Expired Working Visa 3. What’s My Best Option to File I-751 Form to Remove of Conditional Green Card?

1. How Can My US Citizen Husband File For a Visa For My Mother to Come to the U.S.?

I am a green card holder currently not working because I gave birth 50 days ago.  Now my husband wants my mother to come and assist me with my baby while I return to work and school.  My mother doesn’t have a house and my father passed away. Will it be an issue since my husband will be the one supporting her?

Mr. Lee answers:
It is doubtful whether there is a visa for your mother that fits the purpose that you wish. Typically a visiting visa is for a parent who only wants to help out for a short period of time. In your case, you appear to be contemplating a long-term arrangement. That is not the purpose of a visiting visa. You are not eligible to sponsor her for permanent residence as you are only a green card holder. Your husband does not have the relationship to sponsor her for permanent residence. In the event that you change your plans and decide that your mother will only visit a short time to assist you, she would apply for a visiting visa and your husband could supply the appropriate letter guarantees that your mother will not have to work to support herself along with an I-134 affidavit of support, proof of his income, assets, and tax return.

2. Expired Working Visa

Visa expired two years ago, and Jamaican passport is up in one year. Still in the US. What can be done? Will I get deported?

Mr. Lee answers:
Although Pres. Trump would like to have all undocumented immigrants out of the US, there are approximately 11,000,000, a Herculean task. Most likely you would just join the ranks of the undocumented. If you wish to see what can be done about your immigration, you should consult an immigration lawyer who can go through your possible options.

3. What’s My Best Option to File I-751 Form to Remove of Conditional Green Card?

I got married with an American in June last year. I got approved for conditional residence in January 2017 (we had been dating for years, he came to visit me to my home country twice, it is evidently a good-faith marriage), but since I came here I found out he had been committing adultery for years and has a sex addiction. We’ve been to counseling and he’s in the program (going to SA meetings) and also going to individual therapy. We are in a good place, although I am not sure if this is what I want for the rest of my life. He is willing to accept any decision I make (whether I want to stay or leave) and file jointly for Form I-751 if that’s what I want to do. What is my best option? Is it better if I try to stick with him for two years and we file jointly, even if I decide I don’t want to be with him? Is it better if I file for divorced claiming adultery and present evidence for this?

Mr. Lee answers:
The choice of whether to file jointly or otherwise is up to you.  It may depend upon your tolerance of your husband’s life style for the foreseeable future. Another option is that if you have all the proof of having lived with your husband and also that he has a sex addiction and that you have both been going to counseling, you would most likely be able to remove the conditions on your residence status by filing form I-751 on the basis of having had a bona fide marriage which has ended. Such an application requires a divorce.

Q&A’s published on Lawyers.com and the Epoch Times on May 3, 2019 1. Due Process And DNA, If An “Illegal” has Blood Native to American Soil, Are They Illegal or a US Citizen? 2. Is the Process of Conversion of Status From H-4 to F-1 Easy And If So, Is It Necessary to Get F-1 Visa As Well? 3. If My Visa Expires Today How Long Do I Have to Leave the Country?

1. Due Process and DNA, If An “Illegal” Has Blood Native to American Soil, Are They Illegal or a US Citizen? Pres Wilson Declared All Natives Are!

Should all Trump detainees be DNA tested so as to prevent a US citizen from deportation?

Mr. Lee answers:
The generally held view is that individuals who are claiming to be U. S. citizens must affirmatively make that claim to the Department of Homeland Security if they wish to be recognized as such, and that it is not the duty of the government to ensure that they are not before moving against them in removal proceedings.

2. Is the Process of Conversion of Status From H-4 to F-1 Easy And If So, Is It Necessary to Get F-1 Visa As Well?

I am going to get married to my fiancee who is currently on H-1B visa in US. Post marriage, how should I join him? With H-4 visa, then after a year apply for F-1 status or apply for F-1 visa from the beginning? Which way is safer, and would lead me to living an independent life in terms of work and study options. Please suggest which way is safer? Conversion from H-4 to F-1 is it easy to get it done.

Mr. Lee answers:
If you are overseas, your then husband is holding H-1B status, and you wish to join him, you would likely do so under an H-4 visa as that is more likely to be approved by a consular officer than an F-1 visa. After being in the U. S., you could make an application to change status to F-1 student. The conversion from H-4 to F-1 status with U.S.C.I.S. in most cases should not be a problem although USCIS is delaying many adjudications. The question of whether to later obtain an F-1 visa rather than just being satisfied with the F-1 change of status depends upon your need to travel. Both H-4 and F-1 would allow you independence in terms of study options.  For work, you would need the permission of the school for curriculum practical training and of U.S.C.I.S. for optional practical training under F-1, and your husband would have to either have an I-140 petition approved or be eligible for continuation of the H-1B past 6 years for you to obtain work permission from USCIS under H-4 status.  Please also note that the H-4 work authorization is being threatened by the Trump administration.

3. If My Visa Expires Today How Long Do I Have to Leave the Country?

Mr. Lee answers:
To DHS, an individual whose visa expires should leave the country immediately. For certain classes of individuals on working visas, they are given a 10 day grace period to leave. Those on J exchange visitor visas are given a 30 day grace period and those under F-1 student status a 60 day grace period.