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.