Q&A’s published on the World Journal Weekly on February 23, 2020 1. H-1B petition was just denied – do I have any options other than to leave? 2. Permanent resident sponsoring new spouse. 3. Desperate to help out my husband who is illegal and has an order of deportation. 4. Having problems with wife who is sponsoring my daughter, her stepdaughter – is there any effect on the application? 5. Can my daughter emigrate with me to the States now that she is 25 years of age?

1. H-1B petition was just denied – do I have any options other than to leave?

My H-1B sponsor is a nonprofit organization associated with a university and filed my H-1B petition in June 2019. We received a request for evidence, responded to that, but got a denial on November 1. My optional practical training after graduation ended on August 15, 2019. What is my current status and what can I do?

Mr. Lee answers,
With the ending of your OPT, you are only given a 60 day grace period to leave the United States or to seek some other status. That time unfortunately ended in the middle of October. Denial of an H-1B petition in your circumstances does not give you any extra periods of time to remain here in the US. Your H-1B sponsor may look at the denial and see whether it can file a new H-1B petition if there are issues that can be overcome by additional explanation or evidence. It can also decide whether the evidence is sufficient for appeal or a motion to reopen and reconsider within 30 days of the denial to the Appeals Adjudication Office (AAO) of U.S.C.I.S. Please note, however, that such does not stop the accrual of unlawful presence which begins on the date of denial. If you are in the US for over 180 days from date of denial and lose the appeal or motion, you would incur a three-year bar upon returning to the US if you left. Depending on the strength of your case, you may decide in lieu of an appeal to the AAO to appeal to the US District Court. Many federal district courts have been more sympathetic to H-1B appeals than the AAO. You may also decide to seek a reinstatement of F-1 status if you intend to continue going to school, or a late change of status to some other visa category for which you may be eligible. Finally you may decide to leave the US, and later return to the country with legal visa status. Please note that for most countries, you would have to pass a visa interview at the American consulate or embassy before returning to the States.

2. Permanent resident sponsoring new spouse.

I am a permanent resident and me and my girlfriend wish to be married. She is not a permanent resident or US citizen, but is studying as an F-1 student. This will be a legal marriage, and we have known each other for three years. If we marry, will she be able to live and work here?

Mr. Lee answers,
Currently the F-2A visa category for lawful permanent residents sponsoring spouses and unmarried children under the age of 21 is open. Therefore if you are married, and assuming that the visa category remains open, you can file for her with form I-130 petition for alien relative, and she can simultaneously file an I-485 application to adjust status to permanent residence. If she wishes employment authorization or advanced parole to leave the US during the time of the processing, she can make separate applications for those at the same time on forms I-765 application for employment authorization and I-131 application for travel document.

3. Desperate to help out my husband who is illegal and has an order of deportation.

I am a US citizen, married to a nice man, and our baby was just born a few months ago. I knew he was illegal, though he lately told me that not only did he sneak across the border, but that he was caught and ordered deported, but never left. Now I am very scared, especially with the baby. I’m afraid that when he goes off to work in the morning in his truck, he may not come back. What can I do to help straighten out his status?

Mr. Lee answers,
You and your husband would have to undergo a four-part process assuming that he has committed no excludable crimes nor fraud before a US government official. You would initially file an I-130 petition for alien relative to accord recognition that this is a bona fide marriage and that you are a US citizen. At the same time or shortly thereafter, your husband would file for an I-212 application for advance permission to return to the US after removal or deportation. U.S.C.I.S. would be looking at a mixture of factors including hardship, the seriousness of his immigration violations, and his good record in the States. If the I-212 application is approved, he can then file for an I-601A application for waiver of grounds of inadmissibility, in this case from the ten year bar which is occasioned by his remaining in the US illegally for over one year. The standard for the adjudication is that your wife and any other qualifying relative like your parents if either or both held US citizenship or lawful permanent resident status would suffer extreme hardship if you had to return permanently to your home country. If all the petitions and applications are approved, your husband would then undergo regular consular processing at the American Embassy or Consulate in his home country with jurisdiction over immigrant visa applications. Upon successful interview, he would return to the US as a permanent resident.

4. Having problems with wife who is sponsoring my daughter, her stepdaughter – is there any effect on the application?

I was sponsored by my wife who is a US citizen and received my permanent green card. Last year, my wife agreed to sponsor my daughter who is 17 years of age in China. The I-130 petition is approved, but me and her have marriage problems and we are living separate at this time. Can my daughter still get the green card? If not, what should I do?

Mr. Lee answers,
A step relationship depends upon the validity of the underlying marriage. In the event of legal separation or divorce, your daughter would be ineligible for the green card as the bond between her and your wife is through your marriage and not by blood. To keep the case going, the best solution is to reconcile with your wife. The practical difficulty in these cases even if there is no legal separation is that you and your daughter are at the mercy of your wife as to whether she will continue the sponsorship. Currently the F-2A category for unmarried children under the age of 21 of lawful permanent residents is open, so your alternative is to file your own petition for her and the waiting time would be approximately one year taking into account processing times of both U.S.C.I.S. and the US consulate or embassy.

5. Can my daughter emigrate with me to the States now that she is 25 years of age?

My brother filed for me under the F-4 category for the sister of a US citizen in the end of November 2006. My petition was approved by Immigration in February 2010. My daughter was included in the petition, but she is now 25 years old being born in July 1994. Is she eligible to immigrate with me to the US?

Mr. Lee answers,
The priority date (if you are born in any other country than India, Mexico and the Philippines) was reached in October 2019. Under counting rules of the Child Status Protection Act (CSPA), she was 25 years and approximately 3 months old when the priority date became current. She is given a credit to her age for the time that the I-130 petition pended with U.S.C.I.S., in this case approximately 3 years and three months. As she was approximately 4 years and three months older than 21 in October 2019, she would be approximately 22 years old under CSPA counting, and would not qualify to immigrate with you under current law. I do note that there is some hope in the pending legislation sponsored by Richard Durbin, the Democratic senator from Illinois, in the RELIEF Act which would allow children to emigrate regardless of their present age so long as they were under the age of 21 on the date of I-130 filing.


Article: Is Mr. Trump an Unstoppable Freight Train?

As published in the Immigration Daily on February 21, 2020

Barreling along, President Trump today appears to be an unstoppable force on his way to reelection in November. That is the view from here. Despite his moves towards an imperial presidency, cozying up to Russia and largely allowing it free reign throughout the world, inhumane treatment of vulnerable groups here and abroad, and corrupt or highly questionable moves to gain political advantage towards his reelection, he is gaining in popularity while the Democrats are in disarray with candidates destroying each other on debate stages.

Yet it is dispiriting that in this country founded on constitutional principles, honor and decency, Americans will choose to reelect a president without any of the above.

In this administration, all decency appears to be lost in dealing with vulnerable groups with a president who only respects the strong. The treatment of undocumented immigrants including separation of families in the border regions and in the interior, stigmatizing them as criminal rapists, murderers, and drug traffickers when the vast majority are law-abiding, attempting to suppress their representation by adding a citizenship question to the census to intimidate them from being counted, speaking of them in racist and other pejorative terms, dropping refugee admissions to record lows, and making immigrant entries a wealth test through the new public charge law, etc., all points to an innate lack of decency and refusal to make America a shining beacon as compared to the rest of the world.(Although we do not minimize the impact of immigrant crime upon its victims, we note that much higher percentages of crimes are committed by Americans upon Americans as a percentile of the population, and that Mr. Trump is adept at making a mountain out of a statistical mole hill).

Mr. Trump exhibits no honor as seen in his attack on Gold Star family members and decorated veterans who dare to criticize him, his abandonment of this country’s Kurdish allies who paid more than 7000 lives to support US efforts against ISIS and invitation to Turkey to invade their lands, his misappropriation of military funding to build his border wall, and his inveterate lying –staining the office of the presidency with a whopping 16,241 false or misleading claims since taking office as reported by the Washington Post on January 20, 2020.

Constitutional principles such as separation of powers are anathema to this president who believes that Congress is beneath him, that the presidency and the executive branch are higher than the other two branches of the US government, and that all executive branch members have no greater duty than giving their personal loyalty to him.

One would think that with such highly negative factors, Mr. Trump could not stand a good chance of reelection. Yet Democrats are up against numbers like those in the Gallup poll in January 2020 showing that a record high 90% of Americans are satisfied with their personal lives, that American confidence in the US economy is at a 20 year high, and that a record 49% of Americans approve of Mr. Trump’s performance as president.

Immigration is a topic on which all Democratic candidates hew center left or left and generally agree upon – the difficulty is the other policies such as healthcare, taxes, and redistribution of wealth and that no candidate can win an election without the undecided of this country which will not vote for those that they consider too far to the left. Conversely those who support candidates on the far left of these issues may not vote for the candidate who only projects center left (such as many of Sen. Bernie Sanders’ supporters who stayed home rather than vote for Mrs. Clinton in 2016).

Where do the Democrats go from here? With the number of candidates still campaigning against each other, the bloodletting, backbiting and divisiveness will only get worse while Mr. Trump sits on the sidelines without opposition – only having to occasionally snipe at the growing Democratic fiasco on Twitter.

Q&A’s published on Lawyers.com and the Epoch Times on February 7, 2020 1. I came back in with my California ID.  How can I now apply for my green card? Do I have to return home? 2. H-1B Extension filed on 1 day before I-94 expiry date. When should I apply for change of status from H1 to H4 to avoid out of status? 3. My husband had a misdemeanor for theft under $50 which has been dismissed. Will that affect his application to become a citizen?

1. I came back in with my California ID.  How can I now apply for my green card? Do I have to return home?

Married to a U.S. citizen, have one child.

Mr. Lee answers:
If you passed an immigration inspection coming back to the United States with your California ID, you would appear to meet a requirement of adjustment of status in the US which is to either be inspected and admitted or paroled. You would have the burden of proof to show that you actually entered through this method. In addition, dependent upon the circumstances, you may have to overcome some obstacles including obtaining a waiver for misrepresentation if there was trickery at the point of inspection or obtaining a waiver of the 3 or 10 year bar if you illegally stayed in the US for 180 days or one year respectively (dependent upon your status) before going outside and coming back into the country.

2. H-1B Extension filed on 1 day before I-94 expiry date. When should I apply for change of status from H1 to H4 to avoid out of status?

I am currently on 7th year H-1B & my I-94 expiry date is 3/12. My employer applied for 8th year extension based on pending I-140 on 3/9. I feel my out of status will start from 3/12 & will not have chance to re-apply for either H-1B extension or change status from H-1 to H-4 if my H-1 extension get denied. Please let me know if I need to file for H-1 to H-4 immediately or wait until H-1B extension result.

Mr. Lee answers:
If your I-94 expiration date was March 12 and your employer applied for your eighth year extension on March 9 and the H-1B petition was properly receipted by the expiration date, the extension petition would be legal as long as the I-140 or labor certification application has been pending 365 days. In point of fact, most immigration practitioners including me would argue that you have a 10 day grace period from the ending of your H-1B status in which the petition extension could be filed. I do not quite understand the concern unless there are other factors in your H-1B extension petition which have not been explained.

3. My husband had a misdemeanor for theft under $50 which has been dismissed. Will that affect his application to become a citizen?

My husband it a permanent resident. We want to send the application to become a citizen to help me get my residency. We have filled out the application but are uncertain on one part. About 2 years ago he was charged with theft under $50 which we worked on and got it dismissed but when he has applied for a job it still appears. We want to know if it will affect his application.

Mr. Lee answers:
With the N-400 application for naturalization, your husband must put down the information concerning his arrest and the disposition. Since the case was dismissed, it should not have an effect on the naturalization application unless your husband admits that he committed the crime.

Article: Coronavirus China Travel Ban Reveals Prejudice Against Parents And Six Nation Ban Hodgepodge Thinking

As published in the Immigration Daily on February 5, 2020

The White House proclamation of January 31, 2020, on the suspension of persons entering the US from China emphasizes the Administration’s view that parents of US citizens and permanent residents are not worthy of entry to this country. The “Proclamation on Suspension of Entry As Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus” excludes persons attempting to enter the US with certain exceptions including spouses and children of US citizens and permanent residents, but bars parents except where they have a US citizen or LPR child who is unmarried and under the age of 21.

One may ask why parents are largely excluded when the Immigration and Nationality Act classifies parents of US citizens over the age of 21 “immediate relatives,” the most favored category in the immigration scheme. Immediate relatives always have visa availability, do not have to wait in any backlogs, and those who violate their legal periods of stay in the US are still allowed to adjust status to permanent residence in this country. In addition, many grounds of removal are waivable for immediate relatives.

The privileged position of immediate relative parents, however, is a thorn in the side to the Administration, which strongly promoted and endorsed the 2017 Reforming American Immigration for Strong Employment (RAISE) Act which would have eliminated the parent category if passed. Mr. Trump himself came under subsequent criticism as his derogatory “chain migration” phrase was discovered to have been the vehicle for the immigration of his parents-in-law. Currently parents are largely the targets of the Administration’s collateral attacks on their privileged status –the new public charge rule due to be implemented on February 24, 2020, and the enjoined presidential proclamation requiring immigrants to show the ability to obtain health insurance within 30 days of entry to the US.

Barring the parents of adult US citizens and permanent residents makes little sense, especially in light of the rigid screening and quarantine process in place for persons from China who enter the country. Even if the current precautions fail to detect the coronavirus, this group of immediate relatives generally stays at home and is not as active as others, thus further reducing the chances of transmission.

Concerning the new six-nation terrorism ban against Eritrea, Kyrgystan, Myanmar (Burma), Nigeria, Sudan and Tanzania announced on the same day,“Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry,”this appears to be a mess of illogical thinking not furthering any strategic goal other than keeping out mostly persons of color who wish to immigrate. The measure makes no sense if the goal is to keep out people who may have terroristic tendencies as there is no ban on nonimmigrant entries. So persons from these six countries could still come to the US under visitors visas or more permanent nonimmigrant visas allowing them years to remain in this country cooking up plots if they were so inclined. In looking at the ban, four countries, Eritrea, Kyrgystan, Myanmar and Nigeria are entirely banned from sending immigrants to this country except for special immigrants who have provided assistance to the US government, and visa lottery immigrant (DV) entrants are barred from Sudan and Tanzania. The logic behind this ban is entirely elusive. The announced purpose of the travel bans is to punish countries that are unwilling or unable to improve their information sharing to assist the United States in assessing national security and public safety threats. Yet the halfway measures show that national security is not the true purpose of the ban.

The president of course has shown the ability to have his travel bans enforced in cases that have gone as high as the Supreme Court. Yet one might wish for logic rather than just bias and/or playing to Mr. Trump’s base in an election year.