Q&A’s published on Lawyers.com and the Epoch Times on August 23, 2019 1. Tourist Visa While Awaiting for Green Card 2. Can I Apply for a Green Card Without Being Sponsored? 3. My Immigrant Visa Case Was Filed in 2005, Was Given a 221g At The Time of Interview.

1. Tourist Visa While Awaiting for Green Card

I am an Indian my wife is USA citizen. We married in India 4 years ago. She has Indian overseas Citizenship. She is staying in India on and off. My immigrant visa is already in progress. Is it possible for me to get tourist visa to go and visit my wife?

Mr. Lee answers:
Whether you are allowed to obtain a tourist visa to visit your wife is a decision of the US consular officer when you make an application. The question is whether you would be trustworthy enough upon your assurance that you would return to India once the period of visit is over. If you decide to apply for a visitor’s visa, you should certainly put down on the visa application that your wife is in the US and has applied for you on a visa petition.

2. Can I Apply for a Green Card Without Being Sponsored?

I recently got my PhD from a university in the US and is starting my OPT soon. Will I be able to apply for a green card without having an employer to sponsor me?

Mr. Lee answers:
Other than the family based cases, asylum, visa lottery, and EB-5 immigrant investor, I assume that your question is more attuned to whether you can self-sponsor yourself through employment. Presently individuals are able to do so only if they are extraordinary in the field of endeavor or their immigration would advance the national interest. It is good to have a PhD, but under present law, it would not entitle you to an automatic green card. I do note that the Trump administration keeps attempting to change the immigration system to allow educated individuals like you to self-sponsor upon the attainment of a certain number of factors related to education and experience. Whether any such legislation will be enacted is questionable as the proposals have unfavorable aspects to Democrats and other immigration proponents. But we will be keeping our eyes on them the same as you, I imagine.

3. My Immigrant Visa Case Was Filed in 2005, Was Given a 221g At The Time of Interview.

 The case been updated in 2018 and now has returned to NVC.  What to do now?

Mr. Lee answers:
When a case is returned to the NVC, it is usually thereafter transmitted to U.S.C.I.S. which looks over the basis for rejection at the US Embassy or Consulate. If it believes that the reason was wrong, it could reaffirm the approval and send the case back to the US Embassy or consulate for further processing. If it believes that the post may be or is correct, it will send the petitioner a notice of intent to revoke the petition. Since you are complaining of an NVC return in 2018, you may wish to check with the petitioner to see if anything was received. If nothing was received, the petitioner or you should check on the case with the NVC to see what happened.

Article: New Public Charge Rule Coming Out on August 14, 2019, Not Retroactive for Cases Submitted Before 10/15/19 and ACA Subsidized Health Insurance Outside of Medicaid not Considered a Public Benefit

As published in the Immigration Daily on August 14, 2019

I have not read the advance copy of the final rule as it is over 800 pages, so this is not a comprehensive summary and is only based on reading the regulation itself and not the comments save for those dealing with health insurance. This can best be used as a quick guide to most of the changes to the public charge section.

The rule goes into effect on 10/15/19, and all cases will be judged by it which are submitted on that day or after. All cases submitted prior to that date will be judged by the old rules. Under the old rules, food stamps (SNAP), section 8 housing vouchers and any other benefits excluded from consideration now are not to be considered. Those that would be considered public benefits now and are received before 10/15/19 will be considered in the totality of the applicant’s circumstances, but will not be weighed heavily. Those include any amount of cash assistance for income maintenance, including SSI, Temporary Assistance for Needy Families (TANF), state and local cash assistance programs that provide benefits for income maintenance (often called general assistance programs), and programs including Medicaid supporting aliens who are institutionalized for long-term care, received, or certified for receipt.

The standard of proof in determining the public charge ground is whether someone is “more likely than not” at any time to become a public charge.

U.S.C.I.S. will make a determination of public charge on the totality of circumstances of whether the alien is more likely than not at any time in the future to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period. Minimum factors to consider are the alien’s age, health, family status, education and skills, and assets, resources, and financial status. In looking at the family status, DHS will consider the household size and whether the household size makes the alien more likely than not to become a public charge at any time in the future. In looking at assets, resources, and financial status, the rule looks at whether the household’s annual gross income is at least 125% of the most recent federal poverty guideline (FPG), and on counting assets three times the difference between the household income and 125% of the FPG if the alien is the spouse or child of a USC (and the child has reached the age of 18), and in all other cases five times the difference.

Evidence-wise, U.S.C.I.S. will be looking for tax transcripts from the IRS, and if they cannot be obtained, other credible and probative evidence of household members’ income, including an explanation of why a transcript is not available. Non-cash assets and resources to be considered are those which can be converted into cash within 12 months –specifically mentioned are annuities, securities, retirement and educational accounts, and any other assets easily converted to cash. The rule also considers as evidence the alien’s credit history and credit score in the United States and other evidence of liabilities not reflected in the credit history and credit score, e.g. mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt.

In considering education and skills, an alien must provide the last three years of tax transcripts from IRS and if not available, other credible and probative evidence of the alien’s history of employment for the past three years including an explanation as to why transcripts are not available; whether he or she has a high school diploma or a higher education degree; whether the alien has any occupational skills, certifications, or licenses; whether the alien is proficient in English or proficient in other languages in addition to English; and whether the alien is a primary caregiver such that the alien lacks an employment history.

 Applicants seeking adjustment of status will be required to submit a declaration of self-sufficiency on a form to be designated by DHS.

Where an affidavit of support is required in family-based cases, U.S.C.I.S. will be looking at the sponsor’s relationship to the applicant, including but not limited to whether the sponsor lives with the alien, and whether the sponsor has submitted an affidavit of support for other individuals.

The household size for an alien 21 or older or under 21 and married includes the alien, alien’s spouse physically residing with the alien, children physically residing with the alien, other children not physically residing for whom the alien provides or is required to provide at least 50% of the children’s financial support, any other individuals including a spouse not physically residing with the alien to whom the alien provides or is required to provide at least 50% of the individual’s financial support or are listed as dependents on the alien’s federal income tax return, and any individual who provides to the alien at least 50% of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return. Similar rules apply where the alien is a child including the child’s children, parents, legal guardians, or other individuals providing or required to provide at least 50% of financial support, and the other children or other individuals to whom the alien’s parents are legal guardians who provide or are required to provide at least 50% financial support, or any other individual who is listed as a dependent on the parents’ or legal guardians’ federal tax return.

Heavily weighted negative factors are that the alien is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or reasonable prospect of future employment; has received or has been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period beginning no earlier than 36 months prior to the alien’s application for permission or adjustment status on or after 10/15/19; the alien has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work, and is uninsured and does not have the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition; or the alien was previously found inadmissible or deported on public charge grounds by an immigration judge or the Board of Immigration Appeals.

Heavily weighted positive factors are that the alien’s household has income, assets, or resources, and support of at least 250% of the FPG for the alien’s household size; the alien is authorized to work and is currently employed in a legal (as opposed to illegal) industry with an annual income of at least 250% of the FPG; or the alien has private health insurance and does not include health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act (ACA).

Refugees and asylees along with certain other classes are exempt from the rule.

Public benefit means all of the ones currently prohibited, but the new ones are food stamps (SNAP), section 8 housing assistance under the housing choice voucher program, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid (except for emergencies, benefits under the Disabilities Education Act, school-based services or benefits for persons below the oldest age eligible for secondary education, benefits received by an alien under 21 or a woman during pregnancy and during the 60 day period beginning on the last day of the pregnancy). Of note is that it does not include health insurance bought with subsidies outside Medicaid. In answer to a comment on whether to add subsidies provided using means tested criteria under the Patient Protection and Affordable Care Act, DHS answered in the following:

DHS has decided not to consider ACA subsidies or health insurance received through the health insurance marketplace outside of Medicaid as public benefits in the public charge inadmissibility determination, due to the complexity of assessing the value of the benefit and the higher income eligibility thresholds associated with the benefit, as compared to the eligibility thresholds for other benefits. As discussed in section III.R of this preamble, DHS has added a heavily weighted positive factor for private health insurance appropriate to the expected period of admission. This heavily weighted positive factor would not apply in the case of a plan for which the alien receives subsidies in the form of premium tax credits.

In the future, a strong suggestion would be for those organizations offering subsidized health insurance to openly identify the source of the subsidies.

Public charge bonds to overcome the public charge ground can be given in the discretion of DHS with the warning that if an alien has one or more heavily weighted negative factors in his or her case, DHS generally will not favorably exercise discretion to allow submission of the bond. The minimum amount of bond has been decided as not less than $8100, and bond amounts will be annually adjusted for inflation based on the Consumer Price Index for Urban Areas (CPI-U) and rounded up to the nearest dollar. The bond remains in effect until U.S.C.I.S. grants the request to cancel the bond in situations wherein the alien has naturalized or otherwise obtained US citizenship, permanently departs the US, dies, has reached his or her five year anniversary since becoming an LPR, or the alien changes immigration status to one not subject to the public charge ground of inadmissibility. Where a bond has been granted, the alien may not receive any public benefits for more than 12 months in an aggregate within any 36 month period (such that, for instance, receipt of two benefits in one month counts as two months) after the alien’s adjustment of status.

We imagine that in the next two months before the regulation goes into effect, there will be court challenges which may delay or alter the final rule, and we hope that such will meet with success. The rule while not being the worst imaginable in this author’s opinion clearly favors those who are young, educated, middle-class to affluent, and speak English. The Trump administration has already said that parents, less educated, and non-English-speaking people (mostly those of color) are no longer welcome, and this regulation is that planted sign on the front lawn of America.

Q&A’s published on Lawyers.com and the Epoch Times on August 16, 2019 1. Marriage Fraud 2. Denied to Work 3. How to Apply for My Husband who is an Illegal Immigrant?

1. Marriage Fraud

How can I help my husband get back in the US? His I-130 was denied for marriage fraud, which he denies.

Mr. Lee answers:
If your husband has convincing evidence that he did not engage in marriage fraud, you can appeal the I-130 determination within 30 days with all proof of the bona fides of his marriage. If the evidence is not available in time for an appeal, you can file a new I-130 petition when he obtains the evidence, and include that in the I-130 submission.

2. Denied to Work

I am a Ph.D. F-1 visa student from India with a valid green card petition filed in 2009. I was given an assistantship at Wayne State University and the Office of International Student Services denied me to work because I did not have an EAD card. The last time I check the USCIS can only change my status or get work if my priority date in September 2009 comes up and they provide me an alien number, which they have not. Also, after I received my green card petition receipt notice in September 2009, I became out of status because the process took a long time. What can I do?

Mr. Lee answers:
If your F-1 visa status was never formally terminated by U.S.C.I.S. in a written decision or if you did not have the F-1 status terminated in the immigration court, you could possibly interview at the American consulate or embassy in your home country for an immigrant visa. You would not be barred from coming back unless either of the circumstances as described above occurred since the status of an F-1 student is duration of status without a fixed time limit.  At present, you are not considered under an unlawful presence bar if you leave and re-enter. The Trump Administration’s attempt to change the law of unlawful presence unfavorably in a memo in August 2018 was enjoined by the U.S. District Court for the Middle District of North Carolina on 5/3/2019.

3. How to Apply for My Husband who is an Illegal Immigrant?

If I marry an illegal immigrant can I get his green card without getting deported. I am disabled and he helps me a lot and he is going to be my husband.

Mr. Lee answers:
U.S.C.I.S. looks to see whether a marriage is bona fide in the sense that two people are committing themselves to a marital relationship. A marriage to Immigration’s eyes is not one in which one party is a nursemaid to another only in exchange for a green card. Assuming that the marital relationship will be bona fide, the chances of the undocumented spouse being deported depends upon whether the individual has prior criminal acts or has been in immigration removal proceedings. If not, the chances of the spouse obtaining permanent residence without being deported are good.  If the undocumented immigrant entered the U.S. legally with a non-immigrant visa or parole, he may be eligible to adjust status to permanent resident without leaving the country.  Otherwise he may need a waiver (I-601A) before traveling back to his home country for a consular interview.

Q&A’s published on Lawyers.com and the Epoch Times on August 9, 2019 1. How Long Does One Have to Wait for an Immigration Judge Decision on A Defensive Asylum Case? 2. My brother Married a Venezuelan Woman Who Originally Was Here On a Visa That Expired 2 Years Ago 3. How to Add One More Beneficiary in My National Visa Center Application?

1. How Long Does One Have to Wait for an Immigration Judge Decision on A Defensive Asylum Case?

I am an asylum applicant with a pending defensive asylum case. I have received a notice to appear in front of an immigration court. How long does the Immigration Judge take to give a decision? Is it the same day?

Mr. Lee answers:                   
Assuming that your appearance is for a master calendar hearing and not for a final merits hearing and depending upon whether your case is one of the “surge” cases that the government is interested in finishing immediately, your case could take anywhere from six months to four years for the immigration judge to hear the case and make a decision. I assume that you will be continuing your asylum claim in front of the court.

2. My brother Married a Venezuelan Woman Who Originally Was Here On a Visa That Expired 2 Years Ago

My brother is disabled and is currently on Medicaid, so he is not able to sponsor her and children. He has asked me to sign form I-864. I know this makes me legally obligated but can I also be held financially responsible if she or her children are admitted into a hospital without insurance and incur a bill? I want to know how far this financial responsibility goes.

Mr. Lee answers:
Your income and assets are deemed available to the person that you are supporting if that person is seeking means tested benefits on the federal, state, or local level. So any one of the three entities can request reimbursement from you to the extent of your income and assets that the immigrant has taken means tested benefits from them. However, that does not include individuals who obtain emergency Medicaid. While you would not be liable for emergencies, long-term care would be seen as a benefit recoverable by the federal, state, or local government branch which gave the benefit. I note that in the past, it has been unpopular for governmental entities to go after supporters of people who have taken means tested benefits, but this appears to be changing in the present political atmosphere as the Trump Administration is reportedly preparing regulations for governmental entities to enforce the I-864 support obligation.

3. How to Add One More Beneficiary in My National Visa Center Application?

I want to include my 10 year old son’s name in the NVC application.

Mr. Lee answers:
To include your 10-year-old son’s name in the NVC application, you can communicate by letter or email to the NVC expressing your desire to have your child included in the case. You can also include a copy of the child’s birth certificate and passport if one is available.

Q&A’s published on Lawyers.com and the Epoch Times on August 2, 2019 1. When Should I Leave U.S. if My Extension of Stay Is Still Pending? 2. DACA Violation 3. Immigration Related Question

1. When Should I Leave U.S. if My Extension of Stay Is Still Pending?

Should I leave USA if my extension of stay is still pending? I am on a B1/B2 visa. At the end of September will be 1 year that I am in USA but I didn’t get yet an answer for my extension. Can I still stay in USA?

Mr. Lee answers:
If you wish to remain in the US legally, you have to file for another extension of your status even though the current application is still pending. Not only would you be considered technically illegal if you did not, but you might be in the unenviable position of having an approval which does not extend up to the date that you are still staying in the US, if the current extension request is ultimately approved.

2. DACA Violation

My fiancé violated her DACA program due to a very small amount of drugs.  Is it possible to marry someone who has violated the program? She is currently being held Louisiana pending hearing/deportation.

Mr. Lee answers:
It is always possible to marry persons who are single and of the right age to marry regardless of whether the person has criminal problems. The question is what you will be able to do for her immigration-wise when you are married, and that may depend upon your status, what kind of drugs were involved, and the amount in question. Also whether there was a “conviction” in the criminal court. Immigration law is very tough on drug offenders but does have a waiver provision for a conviction involving marijuana possession of 30 g and less.

3. Immigration Related Question

My sister and mother entered America on ESTA with British passport. They both overstayed their stay, my sister was minor at the time. For several years they entered America on ESTA until their ESTA was cancelled because US immigration found out the fact of their overstayed years ago. My sister now wants to marry an American citizen who is traveling to U.K. to marry her and they want to apply for green card for her. My mother wants to enter America as well through her other 3 children who are US citizens. What’s the likely hood of both to succeed?

Mr. Lee answers:
The likelihood that both will succeed is good so long as the marriage is bona fide. Having the ESTA canceled for an overstay may affect the individual’s ability to return to the US under ESTA or a nonimmigrant visa, but it should have no effect upon an immigrant visa petition based upon marriage or through a US citizen child so long as no misrepresentation was made at the time of ESTA entry.