1. What are the steps that I will have to do to become legalized under President-elect Biden’s promise to send a bill to Congress for 11 million undocumented immigrants?
I heard President-elect Biden say on TV last week that in his first 100 days, he would send a bill to Congress to put 11 million people like me who are undocumented on the path to citizenship. If he does that, can you tell me when this will start? How soon can I put in an application? Does Immigration already have the forms available?
Mr. Lee answers,
President-elect Biden’s promise to send legislation within the first 100 days in office to Congress for undocumented immigrants does not mean that the legislation will pass. Both houses of Congress must agree on the legislation before it goes up to the president for signature. The Democrats will have both the House of Representatives and the Presidency but may not have the Senate. Such will depend upon what happens in the state of Georgia on January 5, 2021, when two Senate seats will be decided. Democrats need both Senate seats to take control of the Senate. I note, however, that legalization of 11 million undocumented immigrants will be a very hard lift even if the Democrats take the Senate by 50-50 with Kamala Harris being the tie-breaking vote. When George W. Bush was president, he had the backing of many Democrats when he tried to pass a legalization program, but fell short because of opposition within his own party. On your specific questions, there is no timetable at this time; neither are there forms as those would have to be designed after the passage of legislation.
2. I am from Hong Kong – do I belong to the China quota at this time?
My company just filed a labor certification application for me for my green card and I want to know how long it will take for me to immigrate since I am born in Hong Kong. I heard that there was a presidential proclamation that made Hong Kong part of China and that would put me under the China quota which is backed up to 2017 while the Hong Kong quota is open and current with the rest of the world.
Mr. Lee answers,
The presidential executive order has not been placed into effect by the Department of State at this time. At a recent November webinar for EB-5 investors, Charlie Oppenheim, Chief of the Visa Control & Reporting Division at DOS, said that Hong Kong is still treated as a separate foreign state for immigrant visa chargeability going forward. Such reiterates the doubt that the Department of State had in July that the executive order was legal. On an American Immigration Lawyers Association check-in with Charlie Oppenheim on 7/24/20, he said that David Newman, the Director of Legal Affairs in the Visa Office, indicated that the Visa Office was still reviewing the matter of whether Hong Kong born individuals could be chargeable to mainland China – that §103 of IMMACT 90 granted separate chargeability treatment to Hong Kong born individuals and that the proclamation does not alter this. Assuming that everything goes well in your case with the Department of Labor and USCIS, you can expect to receive your permanent residence within two years.
3. On H-1B, married to a US citizen in another state, thinking of quitting job – will I be legal?
My job is in New York and I just got married to my husband in Texas. I am on H-1B working remotely in Texas, but my employer now wants employees to go back in, and I am thinking to quit my job. If I do it, will I be legal or illegal? Or should I go back to New York, and we will have a marriage in which he comes to visit me and I go to visit him until I get the green card? We just filed the I-130 and I-485 applications with Immigration for my green card.
Mr. Lee answers,
Having already filed for an adjustment of status based upon your husband’s petition, you are considered in a state of grace with USCIS under which you can remain in the US. With a marriage case, you are much better off being together with your husband as you will both need to prove the bona fides of the marriage at your immigration interview and that is easier to prove when you are both living together. Assuming that you resign your job, you can work under open-market employment once you apply for and obtain the employment authorization document (EAD) (if you have not already done so). The caveat to doing it this way is that, if your adjustment of status application is denied, you would be considered illegal since you would no longer be holding a valid nonimmigrant status.
4. Sneaked into the US six months ago – what will happen if I get caught by Immigration?
I came to the US six months ago using someone else’s passport and gave it back to the smugglers afterwards. Can you tell me what will happen to me if I am picked up by Immigration now?
Mr. Lee answers,
The Trump administration announced that it would be using expedited removal proceedings against those who could not prove that they were legal or in the country for at least two years wherever they were located in the United States. It began using its powers to do such in October 2020. Persons who are caught and subject to expedited removal generally have no right to a hearing before an immigration court. However, they are still entitled to request political asylum and will be given a credible fear interview and afterwards can pursue the claim before the immigration judge. If the credible fear interview is negatively decided by a DHS officer, the applicant will have less rights before the immigration court. Expedited removal has been on the books for a long time, but was applied previously only if the person was found within 100 miles of any border of the United States. Expansion to any location in the United States is new and may be one of the items that President-elect Joe Biden invalidates when he becomes president. In addition, it should be noted that the question of expedited removal is back before the DC District Judge Ketanji Brown Jackson for her to rule on its merits. She had previously issued a stay against the rule, but the stay had been blocked by the Court of Appeals.