Month: April 2020

Q&A’s published on the World Journal Weekly on April 26, 2020 1. Selected for H-1B Registration, but I Do Not Know How Long the Job Will Last – How to Prepare? 2. In Light of the Changes for H-1B This Year, What Should We (The Company) Look Out For? 3. I have My I-601A Approved and Voluntary Departure Until July 1, 2020. When Should I Leave?

1. Selected for H-1B Registration, but I Do Not Know How Long the Job Will Last – How to Prepare?

I was selected for the H-1B registration last week, but do not know if the job will last because of the present Covid-19 pandemic and my employer is uncertain also. I am presently on my OPT until June 25, 2020. How can I best protect myself?

Mr. Lee answers,
Congratulations on your selection and sorry about the uncertainty of your situation. The best way to protect yourself is to be on your employer’s good side and hopefully not be laid off. Other than that, please note that even if your employer goes forward with filing the petition and the H-1B petition is approved prior to the beginning of the fiscal year on October 1, the H-1B status will only vest on that date. Assuming approval before the date, you can continue to work under your cap-gap status and change over to H-1B automatically on October 1. Hopefully you will continue to work for the employer past that date and have proof of doing so – payslips – in the event that you are laid off. You are then eligible for a 60 day grace period to find new H-1B employment, change status to another category, or prepare to depart the country. Best of luck to you!

2. In Light of the Changes for H-1B This Year, What Should We (The Company) Look Out For?

We are a company that sponsored 13 H-1B candidates for registration and had four selections. We are more wary of the process this year and would like some tips on what we should look out for because of the changed procedures.

Mr. Lee answers,
New changes to be aware of are that the jurisdiction of cases has changed and whereas previous location filings were dictated by the organization’s headquarters location, each H-1B registration now has the address of the U.S.C.I.S. service center to which the petition must be delivered. A copy of the H-1B registration notice must be placed in the application itself, preferably on top. Because of the coronavirus, U.S.C.I.S. is not insisting upon a “wet” signature and will instead accept one that is not original although it reserves the right to later request the original “wet” one. There is no indication thus far that U.S.C.I.S. will extend the deadline of 6/30/20 for organizations to submit the H-1B petitions, and so those should be filed in by that date. In point of fact, petitions should be sent in as quickly as possible (they must of course be thoroughly documented and completed with care) as such could allow organizations the opportunity to correct errors if petitions are rejected by U.S.C.I.S. and there is sufficient time prior to 6/30/20 to correct and resubmit the petitions. (In previous years with the H-1B selection occurring in a five business day window with full petitions, any technical errors causing rejection were fatal).

3. I have My I-601A Approved and Voluntary Departure Until July 1, 2020. When Should I Leave?

I entered the United States from Mexico in 2001 by sneaking in after flying there from China and am married to a green card holder and we have two children. She petitioned for me and my I-130 petition was approved and I-601A waiver application also approved last year. I was in deportation proceedings, and with my lawyer I got my voluntary departure until July 1, 2020. Now my lawyer tells me that the US Consulate in Guangzhou China is closed for visa appointments and he does not know when my appointment can be scheduled for the immigration interview. Should I leave around June 26-July 1?

Mr. Lee answers,
The choices would appear to be trying to get an extension of the voluntary departure from ICE or leaving on time. There is no telling what the state of ICE will be in June to entertain extension requests because of the present pandemic. The consulate in China may also be up and running by that date for visa interviews. I further note that an extension request is not automatically granted and may be denied. On the other hand, you have the certainty of leaving without an order of removal if you leave by July 1, 2020. Under present-day circumstances in which there are fewer and fewer flights to China, you should think seriously about leaving and booking your passage in the early part of June so that you have a chance to recover if there is a flight cancellation or other mishap which prevents you from taking the flight. I also note that upon your return, you may find that time will have to be consumed in quarantine and internal travel within China to the U.S. consulate in Guangzhou.

Q&A’s published on Lawyers.com and the Epoch Times on April 17, 2020 1. How Long Immigration Take? 2. My Boyfriend Was Coming Over Here and Got Detained 3. How Do I Get My Spouse’s New Name Updated on Her H-4 Visa Approval Notice?

1. How Long Immigration Take?

My brother applied for my sister and her 3 kids and husband. He applied for her case in 2011. I just wanted to know that my sister’s son has blood disorder and hard for her to get treatment in Pakistan. Is there any way we can get her case to done little faster so her son can have good treatment in USA?

Mr. Lee answers:
Unfortunately there is no way that the F-4 sibling petition can be speeded up because your sister’s son has a blood disorder for which treatment is difficult to obtain in Pakistan. Your sister and her husband could attempt to have the child apply for a B-2 visa for medical treatment in the US. That being said, the US Consulate would have to be assured that the costs of the treatment would be able to be covered by the family or donors. With a priority date in 2011, your sister likely has to wait another 4 years to immigrate.

2. My Boyfriend Was Coming Over Here and Got Detained

This is the first time he has ever been detained.  I would like to know if I can still get him a fiance Visa? We want to get married and he was coming to me to get married. I am a US citizen and he has never been in any trouble with the law. Will this make it harder?

Mr. Lee answers:
Being detained by Immigration will usually make a petition for fiance visa or permanent residence harder than usual. Whether you can still apply for a fiance petition will depend upon what happened or will happen at the detainment by DHS. You may wish to consult with an immigration lawyer with full details of everything that has happened to your boyfriend. If you have papers, you should bring them along to the consultation.

3. How Do I Get My Spouse’s New Name Updated on Her H-4 Visa Approval Notice?

My spouse is on H4 and after that she had name change on her new passport. How do I get her new name updated on visa approval notice?

Mr. Lee answers:
I am not sure that your spouse needs to have her new name updated on the H-4 approval notice. I also do not know of a specific application or petition by U.S.C.I.S. for that specific purpose. Perhaps your spouse could carry the marriage certificate when she travels and comes back to the US. On the next application to U.S.C.I.S., she could apply under the new name.

Article: The Importance of Setting the Record Straight on East Coast Infections – It’s the Europeans; Why not just excuse the LCA posting requirement during the Pandemic?

As published in the Immigration Daily on April 16, 2020

Setting the Coronavirus Record Straight for East Coast Infections as European and not Asian is Important

In our article of March 20, 2020, “Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of Blame,” we asked that President Trump stop calling the coronavirus a Chinese virus as that was inflaming hatred towards Asians in a country with a history of prejudice, violence, and exclusion towards Chinese. There are now a plethora of articles in newspapers with detailed descriptions of discriminatory and violent acts against Asians including one by the Anti-Defamation League detailing 44+ reported incidents through April. Mr. Trump should be reminded that his assignation of blame will turn many Asian-Americans against him when it comes time to vote in November. He has a chance, however, to now change the narrative and remove most of the stigma from Asian-Americans. Recent studies by the Icahn School of Medicine at Mount Sinai and the NYU Grossman School of Medicine have identified the coronavirus laying waste to the country from the East Coast as originating in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the leading disease expert and director of the National Institute of Allergy and Infectious Diseases, said that “Given the travel and the air traffic from anywhere in Italy, but also particularly northern Italy, it’s just not surprising that unfortunately and inadvertently New York was seeded before they really knew what was going on.” While the coronavirus originated in China, it is now officially a misnomer to call it a Chinese virus where the major number of infections and deaths in the U.S. originated from Europe. As the number of deaths continues to mount in this country, Mr. Trump’s past insistence on referring to the virus as Chinese has even more significance as it continues to resonate and appeal to the dark nature of people to strike out, especially those who have lost someone close.  This country’s Asians are a ready target being perceived as vulnerable, non-violent, and easily identified by the color of their skin. Europeans on the other hand generally do not stand out except when they speak and there is not the ingrained prejudice against them as with the Chinese. So since Mr. Trump inadvertently or purposefully touched off a flame of resentment that burns to this day, we believe that he owes it to the Asian communities in the United States to make a clarification now.

Why not just excuse the LCA posting requirement for those working from home at this time?

In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the Department made clear that the Labor Condition Application (LCA) worksite notice would still have to be posted for H-1B workers remotely working from home. In the first FAQ of March 20, 2020, the Department said that where workers perform the work elsewhere in the same area of intended employment, the employer must provide either electronic or hardcopy notice at the new worksite locations meeting the content requirements for 10 calendar days unless direct notice is provided such as an email notice. It said that if the employer could not provide a hardcopy notice of the LCA filing due to the pandemic, the regulations allow electronic notice by any means ordinarily used to communicate about job vacancies to employees in the occupational classification in the area of intended employment, and such could include the employer’s website, electronic newsletter, intranet or email – that email notification is only required once and does not have to be provided for 10 calendar days. The FAQ also extended the time that such a notice would be considered timely to no later than 30 days after the worker begins work at the new worksite locations (normally notice is required to be posted prior to the worker moving on to the new site). In the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the Department made four points advancing and not retreating from the notice requirement during this time of disease. 1.)  It expanded on employer requirements for situations that did not involve remote employment in the area of intended employment, and instead involved short-term placements of 30 or 60 days outside the area – that the employer could place the H-1B worker for up to 30 workdays in one year and up to 60 days if the person’s place of residence was inside the area of intended employment so long as the employer was in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA. There would also have to be no strike or lockout at the short-term placement location; and the employer would have to pay lodging costs, costs of travel, meals and expenses for both workdays and non-workdays.; 2.)  It defined the area of intended employment as within normal commuting distance to the place of employment with any place within the Metropolitan Statistical Area (MSA) deemed to be within normal commuting distance even if it crossed state lines; 3.)  It instructed that if an employer instead filed a new LCA for work sites outside the area of intended employment or materially changed the terms and conditions of employment, it would need to file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the employer’s treatment of H-1B personnel must not adversely affect the working conditions of similarly employed US workers and the employer had to offer the same flexibility to US workers similarly employed that it was offering to H-1B workers including telework from home within the area of intended employment or where the employer was offering to move H-1B employees outside of that area.

Although there is great interest in protecting the American job market, the insistence on maintaining the same notice requirements for new locations in the current time of crisis seems strained and the Department may still wish to reconsider its position. Where working from home is involved, one of the options is for the employer to post the notices at the H-1B holder’s house or apartment for 10 days. Is there any practical use in doing so where the two notices will likely only be seen by the employee, and perhaps spouse, children, and family dog if they exist? There is also the problem of employers in nonessential businesses even  being able to go into their offices where files are stored to  retrieve employee information or work on the notification procedures much less updating the public access package, especially when they are supposed to be sheltering in place in most parts of the country. As of the time of this writing, only five states, Arkansas, the Dakotas, Iowa and Nebraska are not under stay-at-home orders.  Common sense seems to dictate a waiving of requirements where attempting to comply places those in danger who must leave home to go to their businesses.

Q&A’s published on the World Journal Weekly on April 5, 2020 1. F-1 student on OPT until April 5, 2020, may have a problem with timing for H-1B under new rules for employer registration. 2. New H-1B rule for employer registration gives more opportunities but also potential danger to those who will soon obtain US Masters degrees. 3. Sponsoring my sister and her daughter – one or two petitions? 4. Brother’s circumstances have changed since I started sponsoring almost 12 years ago – what to do? 5. Application to change status pending, can I travel across the country to Los Angeles and tour around?

1. F-1 student on OPT until April 7, 2020, may have a problem with timing for H-1B under new rules for employer registration.

I am on F-1 visa and my optional practical training in journalism ends on April 7, 2020. My employer has agreed to sponsor me for the H-1B petition this year. I heard that there is a new procedure for this year. What should I and the company be aware of?

Mr. Lee answers,
USCIS has instituted an employer registration procedure under which persons will be selected without first putting in complete H-1B packages. Employers will set up accounts with USCIS with or without assistance from legal representatives beginning on February 24, 2020. The USCIS website will open for H-1B registrations at 12:00 PM Eastern Standard Time on March 1, 2020 and end at noontime on March 20, 2020. USCIS has stated that it will conduct the selection on or before March 31, 2020, and those selected will have at least 90 days to submit H-1B petition packages. You and the company must make a choice in your case of whether to begin your actual case prior to learning whether you will be selected because of your OPT ending date of April 7, 2020. There is most likely not sufficient time between when the company learns of your selection and filing your H-1B package to USCIS by April 7. That is because obtaining a labor condition application (LCA), a necessary part of the H-1B filing, takes seven days to process by the Department of Labor (in addition to the time required to set it up before filing with the Department). The inability to file a complete H-1B package to USCIS by April 7 means that you would not be able to obtain cap-gap work authorization until September 30, although USCIS would allow you to stay in the country to await the adjudication of the H-1B petition.

2. New H-1B rule for employer registration gives more opportunities but also potential danger to those who will soon obtain US Masters degrees.

I will soon graduate with a Masters degree in public administration from a university in New York (should finish the requirements by May 2020) and I am working with the company on curriculum practical training which is interested in sponsoring me for the H-1B petition in April. The company is now registering itself under the new immigration requirement and is asking me questions about my status including whether I have a Masters degree or will have a Masters degree and if so, when would I have it. I am confused and would like some advice on what I should say to the company.

Mr. Lee answers,
The company is asking you these questions because the new H-1B employer registration process asks whether you are applying under the US Masters cap or not. Persons applying under the US Masters and higher US degree cap will have a higher percentage of being selected. The rule is that you must have finished the Masters degree by the time that the actual H-1B petition package is filed with USCIS. That does not mean having the degree in hand, but having completed all requirements of the degree. If you are very confident that you will complete the requirements by May 2020, your employer can mark that you are applying under the US Masters cap. If selected, the employer would wait until you have completed all the requirements prior to submitting the actual H-1B petition. I note that you would not be qualified for the H-1B if the employer could not submit your petition within the period of time that USCIS allows for selectees to file petitions (likely 90 days after being notified of selection). In addition, you and the company would most likely not be able to file a petition under the Bachelors degree cap if you did not obtain your Masters degree in time since your selection was based upon the company’s representation that you have attained a US Masters degree or higher US degree by the time of filing.

3. Sponsoring my sister and her daughter – one or two petitions?

I was just naturalized and now want to sponsor my sister and her daughter. Should I file one petition for my sister and one petition for my niece? Also how long will it take before they are able to come to the US?

Mr. Lee answers,
To apply for your sister and her daughter, you would submit form I-130 petition for alien relative to U.S.C.I.S. You only have to submit one petition as you do not have the requisite relationship with the niece to sponsor her, but she can come over with her mother as long as she has not aged out by the time that there is visa availability for the petition. Current waiting time is approximately 12 years.

4. Brother’s circumstances have changed since I started sponsoring almost 12 years ago – what to do?

As a US citizen, I first began petitioning for my brother in early 2008. It has now been almost 12 years, and the petition was approved by Immigration in 2017 and we received notice from the National Visa Center that they have the case. Recently we checked and we are now able to pay for my brother’s visa fee. However, since I began petitioning, my brother became married and now has two sons. What do we have to do at this time? Can we add his wife and two sons on, or do I have to fill out more forms and petition for them separately?

Mr. Lee answers,
You or your brother must notify the National Visa Center (NVC) of your brother’s changed circumstances in order that the NVC can add his wife and two sons. The NVC can be contacted by letter or email, and the request to add the wife and children should include copies of marriage and birth papers. Once they are included in your brother’s case at the NVC, the Department of State fees can be paid and your brother can begin to send in requested documentation to the NVC for consular processing.

5. Application to change status pending, can I travel across the country to Los Angeles and tour around?

I came to the United States on a visiting visa and before it expired filed an application to change my status to F-1 student. My application is still pending. With all the talk of a tough attitude towards immigration, am I safe if I travel from New York to Los Angeles to see friends and tour the city and surrounding areas?

Mr. Lee answers,

Technically you are in a quasi-legal status as you filed a timely change of status application. You should be okay to tour in LA this month. I do note, however, that with the present Trump administration, it would be much better if you did not go near the border with Mexico as border patrol officers may have a different idea of your legal status and give you problems. Please note that the border is considered to extend for 100 miles from each boundary.