Q&A’s published on Lawyers.com and the Epoch Times on July 24, 2020 1. Either I Can Apply for H4 EAD Now or Shift to F1 Visa from H4. Which is Better in Current Situation in USA? 2. If Someone Else Becomes an I-864 Sponsor, Can My Sponsorship Be Dissolved? 3. Can I Study While My I-485 is Pending?

1. Either I Can Apply for H4 EAD Now or Shift to F1 Visa from H4. Which is Better in Current Situation in USA?

I am joining a graduate school this fall. In order to work in USA, either I can apply for H4 EAD now or shift to F1 visa from H4. which is better in current situation in USA

Mr. Lee answers:
The choice of whether to apply for H-4 EAD or to shift to F-1 visa is up to you at this point. The H-4 EAD situation is still valid at present although it is one of the targets of the Trump administration for elimination. Under F-1, you would generally have to attend schooling for a year before being allowed to work under curriculum practical training unless that was a part of the program that requires internship or fieldwork.

2. If Someone Else Becomes an I-864 Sponsor, Can My Sponsorship Be Dissolved?

Divorced but am still my EX’S sponsor (form I-864). If she remarries am I still responsible? What if her new husband files for sponsorship?

Mr. Lee answers:
If your ex-wife remarries and if the new husband files for sponsorship, you would still be on the hook if your ex-wife attained conditional residence through your sponsorship. On the other hand, if her case through you was denied, you would not be responsible as the I-864 is a contract between you and the government under which the obligation begins when your ex-wife received the benefit. 

3. Can I Study While My I-485 is Pending?

I am going to marry my fiancée after I am done with my associates degree, I however want to start my bachelor degree right after. So I have a gap of a couple of weeks between my AA and my BA. My question is, can I start studying again as soon as the I-485 is pending, or do I have to wait for the temporary work permission to arrive?

Mr. Lee answers:

If you are marrying a U. S. citizen, any gap in status will generally be disregarded at the time of your interview for the green card. If you are marrying a lawful permanent resident and adjusting status by filing form I-485, you must be in valid status at the time of filing form I-485. In addition, you cannot violate your status even after filing the I-485 by taking on unauthorized employment. That being said, a gap in schooling after marrying and filing the I-485 application would have no effect upon your ability to adjust status. In your situation, if you are holding F-1 status for both your associates degree and your bachelor’s degree programs, you would not be violating status by having a gap of a couple of weeks as the law provides for gaps of time between 2 levels of schooling. Even if you were not choosing to advance to a bachelor’s degree program, you would still be in legal status as an F-1 student for 60 days after completing studies during the grace period for you to change or extend status or depart the United States. 

Article: State Department Allowing Schengen Area, UK And Ireland F-1 And M-1 Students To Enter Despite Ban Under Presidential Proclamations 9993 And 9996; And Other Miscues Interpreting 6/22/20 Proclamation.

As published in the Immigration Daily on July 21, 2020

In a startling turnabout on July 16, 2020, the Department of State (DOS) invited F-1 and M-1 students from the Schengen Area of Europe, the UK and Ireland to enter the US under their visas despite bans under Presidential Proclamations 9993 and 9996 specifically barring persons from these countries from entering the US if they were in them within 14 days of entry. [1].  The Department stated that “Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas, do not need to seek a national interest exception to travel.” While good news to many, it hardly makes sense unless the proclamations themselves are lifted. A partial lifting sub rosa without reasoning further damages the image of the United States as a country of laws. The proclamations were put in place because of the numbers of infected citizens of those countries and the danger that they posed to the US in spreading the pandemic if they arrived. Is it perhaps that the danger of Covid-19 is no longer relevant as the US recently reached 70,000 infections in one day? Is it that the daily totals of some of the countries being exempted are no longer alarming taking into account the spread in this country? Last week’s statistics on some of the countries now being exempted show France at 2552 infections daily, Spain 1400, UK 687, Germany 529, Poland 339, and Italy 249.

It certainly appears to be political – otherwise, why is there not a similar privilege being given to China that last week recorded 17 infections daily? And why not impose a presidential proclamation against Russia with its daily infection rate of 6109? If  Mr. Trump could impose against Brazil, why not Russia?

Your writer is unfortunately not a great fan of social media, but muddled his way around as the State Department is giving answers to questions in FAQs on Twitter concerning the 6/22/20 nonimmigrant H-1B, H-2B, L-1 and certain J visa bars on entry. In looking over the various answers, one would hope that the Department takes more care in giving answers as some of them were wrong or misleading.

On at least five occasions concerning the fate of overseas derivatives spouses and children whose principals were in the US and in the above visa categories, the standard response was “Per Section 3 of the Presidential Proclamation, suspension of entry applies to ‘Any alien who does not have a nonimmigrant visa that is valid on the effective date (June 24) of this proclamation.’ See the link for exceptions.” Also that “We will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31, 2020, unless an exception applies.” Yet in another July 16, 2020, official statement by the Department, it said that” The Department of State will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States.” [2].

The official answer appears to finally recognize that the Section 3 exception of the proclamation (proclamation not applying to those in the US on its July 24, 2020, effective date) stretches to cover family members who are now eligible for visa issuance. It also seemingly answers the question that those principals who were in the US on the effective date of the proclamation should be able to leave the country and be visaed in those categories barring their inclusion in other bans – that they should not have to wait until after December 31, 2020, for visa issuance. On this, the Department should issue further guidance to the consular posts.

On the tangential point of five questions asked as to when DV-2020 winners could interview for visas, the stock response was “Presidential proclamation 10014 suspended the issuance of several categories of immigrant visas, including DVs. This proclamation was recently extended until December 31, 2020. While the proclamation is in place, the issuance of DVs is not permitted.” To that, there was an excellent response by the asker that “The proclamation only suspends entry. It does not mention suspending the interview and visa issuance process. For #DV 2020 winners this process needs to happen before September 30. We are suspended from entering till after the proclamation ends, but at least we still get our chance.”

Finally in answering a question from an individual applying for adjustment of status and having advance parole and asking whether they were allowed to travel to the US with their B1 B2 visas while their DV 2020 was under advance parole, the Department’s answer that “Foreign nationals with valid visas are generally authorized to travel to a US port of entry” was clearly wrong as applicants for adjustment of status can only travel outside the US under advance parole and reenter under advance parole – otherwise the adjustment of status application is deniable.

While one cannot be but pleased with the official responses of the Department of State, the Department is urged very strongly to give more attention to its unofficial Twitter responses that are taken very seriously by members of the public.

 

[1] National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland, Department of State, July 16, 2020.

[2] Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Non-Immigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, Department of State, July 16, 2020.

 

Q&A’s published on Lawyers.com and the Epoch Times on July 10, 2020 1. How Do I Change Visa Type? 2. I Think My Husband Married Me to Get to the U.S. Because After He Got His Green Card His Actions Toward Me Has Changed. 3. What Kind of Visa Can I be Eligible If My Brother Has a US Green Card?

1. How Do I Change Visa Type?

My friend from Brazil is here on a B1/B2 visa. He wants to do freelance video production. Is it possible to apply for a change of status (COS) to some type of work visa?

Mr. Lee answers,
I cannot think of an appropriate visa for your friend from Brazil to change status to in order to do freelance video production unless he is good enough to qualify for O-1 extraordinary alien status. If not, he may wish to consult with an immigration lawyer to go over his options and what compromises he is willing to make with his goals if he is eligible to obtain some other type of visa status to remain in the country for a longer period of time. 

2. I Think My Husband Married Me to Get to the U.S. Because After He Got His Green Card His Actions Toward Me Has Changed.

My husband has been here for one year and three months. After four months here I caught him on a dating site seeking a relationship. I have also found pictures in his phone of a woman with a baby sent to him back in his country. I have found a Mexican lady in his phone as well. When I asked him about these he would say the woman with the baby is his friend’s wife. However, its several pictures. He also deliberately picks fights with me I think to try to ruin the relationship. He wants to be looked at as a good guy by his friends and family. He has opened his own bank account he used to deposit money into our joint account but now he don’t. I feel like he is planning things behind my back. If I feel like he used me to get here and want a divorce what can I do?

Mr. Lee answers,
If your husband is a conditional resident, you can decide whether to assist him in removing the conditional basis of residence status by signing the I-751 form and cooperating throughout the adjudication process. If he is already a permanent resident (marriage was at least two years old prior to him coming to the US), you have less hold over his actions. At present, you have suspicions, but there is likely nothing that you can do with them vis-a-vis U.S.C.I.S. Even in the event that he eventually initiates divorce proceedings, you would probably not interest the agency into going after his green card since it appears that he has been living with you for the duration of time that he has been in the US. 

3. What Kind of Visa Can I be Eligible If My Brother Has a US Green Card?

My brother(26 years old) won the green card lottery and I – sister (25) want to learn the important steps of the application process as well as I want to know if I can also benefit that opportunity: residential visa, working permit, etc. He lives in Europe and I have been living in the US for the last 3 years with an F-1 visa.

Mr. Lee answers,
Unfortunately there is no benefit to be received from a brother or sister who obtains a green card under US immigration law. You would have to keep maintaining your independent legal status in the US.