Q&A’s published on the World Journal Weekly on January 26, 2020 1. How Can I Get My OPT Expedited? 2. F-1 Visa Overstay for Three years. How Can I Fix My Status? 3. Domestic Violence Situation and I Am Applying for the Green Card. Will I Have A Problem at the Interview? 4. Getting Married to a Foreigner Who Is Here On a Visa Waiver.

1. How Can I Get My OPT Expedited?

I just graduated and applied for my OPT in November, but my job is starting on January 15, and I need my OPT card by that time to begin work. If I do not have it, I am sure that the company will give me a little time, and I could even work there voluntarily, but I do not think that they will keep the offer if I do not get the OPT soon after that date. What can I do to expedite the OPT?

Mr. Lee answers:
Under the circumstances that you described, it may be difficult to obtain an expedite. Current U.S.C.I.S. standards for an expedite are severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner or applicant’s failure to file the benefit request or the expedite request in a reasonable timeframe or to respond to any request for additional evidence in a reasonably timely manner; urgent humanitarian reasons; compelling US government interests; or clear U.S.C.I.S. error. U.S.C.I.S. states that if the expedite request relates to the need to obtain employment authorization, that will not be sufficient to warrant an expedite without any evidence of other compelling factors.

2. F-1 Visa Overstay for Three years. How Can I Fix My Status?

I came to the US in 2015 under F-1 visa, studied for one year, but dropped out because of bad grades. I want to be legal in this country, but do not know how I can go about it.

Mr. Lee answers:
U.S.C.I.S. will not “fix” your status to allow you a new F-1 status, or to extend or change your status because of your violation. If you become the immediate relative of a US citizen (spouse or parent of a child aged 21), U.S.C.I.S. will overlook the status violation to allow adjustment of status in most cases. Because you were a student, you are considered exempt from the three and 10 year time bars occasioned by unlawful stay of individuals for 180 days or one year or more respectively unless you received a denial from U.S.C.I.S. or negative decision by an immigration judge. Therefore it is possible that if you were to be sponsored for a nonimmigrant work visa or immigrant visa, you could leave the US, interview at the US consulate or embassy, and return to the US with the nonimmigrant or immigrant visa.

3. Domestic Violence Situation and I Am Applying for the Green Card. Will I Have A Problem at the Interview?

I am a J-1 exchange visitor from Taiwan who is not subject to the two-year home residence requirement. I married a US citizen, and she is sponsoring me for the green card. However, she is hotheaded and we have arguments. During one of the arguments outside, she hit me and I slapped her back, and one of the neighbors called the police, which arrested me for domestic violence. My wife did not press charges and is very sorry that this happened. I pleaded guilty to disorderly conduct only and got one year probation and a $500 fine. Will this cause me a big problem at the marriage interview? We have a good marriage and my wife is pregnant.

Mr. Lee answers:
It is possible that you may encounter a problem with the immigration interview if the immigration officer closely looks at the circumstances of your domestic violence arrest, but you should be okay on this score at the end anyway since you only pleaded to a disorderly conduct. The immigration laws are very strict where domestic violence is concerned, but requires a conviction involving domestic violence to permanently exclude someone. It would be a long stretch for U.S.C.I.S. to conclude that the disorderly conduct plea is the equivalent of a domestic violence conviction.

4. Getting Married to a Foreigner Who Is Here On a Visa Waiver.

I am a US citizen by birth and met my boyfriend in Singapore. We have corresponded extensively and visited each other in the US and Singapore. He is here on a 90 day visa waiver and we just decided that we want to get married. We’ve been living together for the past two months since he came and he has to go back in 30 days. Is it possible for him to obtain his green card when I sponsor him while he is here or should he go back to Singapore and wait there while I sponsor him?

Mr. Lee answers:
It may be possible for you to marry your boyfriend and for him to adjust status in the US without leaving, but there are risks. The first is that there is a presumption of misrepresenting the purpose of the visit when an individual shifts purpose within 90 days of entry, e.g. representing that he was only here to visit and then marrying and putting in adjustment of status papers within the 90 day period of his authorized stay. (I note that there is an argument that this provision does not apply to those marrying US citizens and that the 90 day rule only raises a presumption that can be rebutted). Marrying after 90 days and putting in papers after your boyfriend’s status expires runs the risk that an unkind immigration official may refer him to ICE for an order of expedited removal since a condition of entering the US under the visa waiver program is to give up the right to a removal hearing before an immigration court. (I note that the situation has greatly improved since USCIS came up with a 2013 guidance memo that unless there are extenuating circumstances, USCIS officers should adjudicate adjustment of status applications prior to referring cases to ICE). If you decide that you do not want to take either of these risks, you can either file a K-1 fiancé visa petition for him or marry him and file an I-130 petition for alien relative. The fiancé petition route is generally faster by a few months than the I-130 route which generally takes a little less than a year, but requires more steps after he arrives in the US. Both of these entail your boyfriend or husband leaving the US and interviewing overseas for the K-1 visa or immigrant visa.

Article: Watch Out For The Public Charge Rule!

As published in the Immigration Daily on January 22, 2020

At this time, favorable court decisions staying implementation of the public charge regulation finalized in August 2019 with implementation date of October 15, 2019, have been whittled from three circuits to one and the Trump administration recently filed an emergency application with the Supreme Court on January 14, 2020, to the remaining injunctions of the US Southern District Court of New York. This may very well be the last prelude before the rule becomes law affecting an estimated 382,000 intending immigrants and intimidating countless others and their US dependents from applying for benefits to which they are rightfully entitled.

The public charge rule expands disallowed benefits to include food stamps (SNAP), section 8 housing vouchers, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid with certain exceptions.  The public charge determination will be made on a judgment of the totality of circumstances rather than through just consideration of the ability of the immigrant to have support meeting the poverty guideline levels with such factors as age, health, family status, education and skills, assets, resources, and financial status along with whether the person is proficient in English or other languages in addition to English taken into consideration. I-864 affidavits of support in family-based cases will be scrutinized for the strength of the relationship including whether the sponsor lives with the alien, and whether the sponsor has submitted affidavits of support for other individuals.  And heavily weighted positive factors are whether the alien’s household has income, assets, or resources, and support of at least 250% of the federal poverty guidelines for the household size, or the alien is legally employed with an annual income of at least 250% of the federal poverty guidelines, or he or she has private health insurance without the subsidies of the Affordable Care Act. (It should be noted that under the just published 2020 poverty guidelines, Federal Register, volume 85, number 12, pp. 3060-3061, 1/17/20, 250% of the poverty guidelines in the 48 contiguous states and DC for a family of three would be $54,375 and for four $65,500 qualifying the regulation as an attack on the poor).

Nationwide stays by district courts in the Fourth and Ninth circuits were overturned by recent Court of Appeals rulings in Casa de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. December 9, 2019) and City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019), but the ones issued by the Southern District Court of New York were upheld by the Second Circuit on January 8, 2020, in State of New York, et al v. United States Department of Homeland Security, et al., No. 19-359, and Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19-3595.

Against this backdrop, the Administration moved the Supreme Court to dissolve the stays pending disposition of a petition for writ of certiorari arguing that it should be allowed to move forward with the rule since there is a reasonable probability that four justices would consider the issue sufficiently meritorious to grant certiorari, there is a fair prospect that a majority of the court will conclude that the decision below was erroneous, and a likelihood that irreparable harm would result from denial of the stay. The government especially pointed to the Ninth Circuit decision language that “DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay” (of the district court’s order). The government also heavily groused over the fact its policies could be held hostage on a nationwide basis by the ruling of a single district court although the Republican party had no such doubts when the shoe was on the other foot and a single district court judge in Brownsville, Texas, effectively bottled up the past administration’s program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2015. (See Texas v. US, No. 1:14 CV-00254 (SD Tex. April 7, 2015)).

The government’s application at the Supreme Court is now with Justice Ruth Bader Ginsburg who will first review the application. She can rule on the request alone or as some think most likely, refer it to the full court. But even if Justice Ginsburg rules against the government, the regulation could still be implemented after the Second Circuit decides on the merits of the suits. That court set an expedited briefing schedule on the merits with the last brief due on February 14 and oral argument to be scheduled promptly thereafter.

A comment must be made on the Administration’s application argument that irreparable harm will ensue unless the preliminary injunctions are lifted since they force DHS to grant status to those not legally entitled to it and DHS has no practical means of revisiting public charge determinations once made. One wonders why this is irreparable harm given the almost weekly changes of established policy by this administration, essentially turning previously welcome individuals into pariahs without any changes in their circumstances. In other words, what is the real harm of allowing the status quo to continue pending a final decision on the merits as we are not contemplating the admission of criminals or security threats?

Article: Intersection Of The RELIEF Act And FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT OF 2019

As published in the Immigration Daily on January 2, 2020

There has been recent action with these two pieces of legislation aimed at reducing immigrant visa backlogs, which will hopefully continue with rapid pace when Congress again begins its work.

S 2603, the Resolving Extended Limbo for Immigrant Employees and Extended Families (RELIEF) Act, which is widely regarded as the best hope for equitable expansion and distribution of immigrant visa numbers, has gained a House companion bill, HR 5327, introduced by Representative Donna Shalala (D-FL) on December 5, 2019. The RELIEF Act would eliminate green card backlogs within five years, among other favorable provisions.

There is even more action in the flawed Fairness for High Skilled Immigrants Act of 2019, HR 1044/S386, as Sen. Dick Durbin (D-Ill.) reached a compromise on December 18 with Sen. Mike Lee (R-UT), S386’s sponsor, under which he would drop his opposition to S386 in return for the ability of employment based applicants to file for early adjustment of status under the EB-1, EB-2, or EB-3 categories if the visa petition has been approved or pending for more than 270 days, regardless of whether the priority date is available. (Such information is contained in a draft of the amended bill which is being circulated around Washington). The adjustment of status application could not be approved until an immigrant visa becomes available. The early filing comes with the ability to gain employment authorization for three years at a time, to change employers, and travel freely as well as protection for children who age-out after the adjustment of status application is filed. Sen. Durbin is a pivotal figure as it was his earlier opposition to S 386 that stopped the bill from being passed by unanimous consent in the Senate and he is the sponsor along with Sen. Patrick Leahy (D-Vermont) of S 2603.

HR 1044/S386 comes with a small price to the Indian community as the draft bill would prohibit employers with 50 or more employees from having over 50% on H-1B or L-1 visa statuses. All subsidiaries or group related companies that are part of one group would to be treated as a single employer as long as they are filing taxes under one entity as per §414 of the IRC. (Indian companies have dominated the H-1B market in past years garnering approximately 75% of all H-1B visas in 2016 and 2017).

Although the draft compromise makes the legislation better, it does not solve the huge problem of immigrant visa backlogs, which are more readily tackled by the RELIEF Act. It should be emphasized that the draft compromise like the original bill does not add any immigrant visa numbers. It merely reshuffles the numbers to natives of India to the detriment of the rest of the world, including China. (See our article, “Amended HR 1044 in S386 Happening Now Amid a Flood of Concerns”, The Immigration Daily, September 23, 2019). To those who would say that HR 1044/S386 benefits China-born also, one only has to point out that the China backlog under both EB-2 and EB-3 categories is less than 50,000 while the Indian backlog is over 600,000. India and China are not in the same boat, but the one piece of legislation that would make an equitable sharing of immigrant visas for everyone is the RELIEF Act.

Yet the political realities of the situation must be considered. Discussing his compromise with Sen. Lee on the Senate floor, Sen. Durbin pointed out that although he favored his own bill, it would not pass in the Senate at this time; that the President did not agree, and that most Republicans in the House and Senate also did not agree. It may well turn out that this compromise is the only game in town for a long time.

The question is then whether the immigrant community at large should continue to oppose HR 1044/S 386 in favor of the status quo or support it despite its inequitable sharing of immigrant visas and H-1B strictures – (in effect turning H-1B’s into a recruitment based program in which employers test the American job market using a searchable Internet website for posting positions administered by the Department of Labor, pay a fee for applying for a labor condition application (LCA), and prevailing wage challenges are placed directly under the jurisdiction of DHS).

It’s a closer call.