Q&A’s published on the World Journal Weekly on November 22, 2020 1. Why are our H-1B employees from China and India and their lawyers asking for so much paperwork during the past few weeks? 2. Received LCA in September, but H-1B petition not filed yet – am I in big danger because of new H-1B regulation? 3. My H-1B petition is pending – I am worried about the new regulation that would raise my wage by a lot and what the company will think about it. 4. My final asylum hearing date in the immigration court is coming up – can I postpone it?

1. Why are our H-1B employees from China and India and their lawyers asking for so much paperwork during the past few weeks?

I work in human resources in a medium-sized company that sponsors a number of H-1B petitions, many of them for Indians and Chinese. During the past few weeks, our department has been swamped by requests from our employees and their lawyers for documentation and paperwork so that they can file for their immigration papers. Can anyone tell me what is going on – I don’t get a lot of information from the higher ups.

Mr. Lee answers,
There is a confluence of factors both political and funding related which has moved the filing date for many old cases involving employment-based immigration tremendously forward by the Department of State, and the filing dates have been accepted by USCIS for the month of October. Many Indians and Mainland Chinese started their labor certification cases or other employment-based cases years ago, but have been stuck in a long backlog and unable to move to the adjustment of status step in their immigration because their turn has not yet come up. In the month of October, major changes that the “dates of filing” chart for China born EB-3 cases (those requiring at least a baccalaureate degree or two years of experience) moved up 11 months and the Indian EB-3 category almost 5 years. These are unheard of jumps. USCIS has the authority to accept the “dates of filing” chart, or reject it and only accept the dates from an alternate chart, the “final action dates” chart. For this month, USCIS chose to take the unusual step of accepting the “dates of filing” chart. That means natives of India who filed employment- based cases before January 1, 2015, and China-born who filed before June 1, 2018, can now advance their cases by filing adjustment of status cases by the end of the month. The October situation is quite extraordinary, and those who are benefited by it realize that it is a rare opportunity and are trying to push in their papers as soon as possible. The filing of an adjustment of status benefits them greatly and expands their ability to work, travel, and even at a later stage change employment during the time that they must wait to finalize their cases. It does not, however, accelerate their date for actually finalizing their green cards.

2. Received LCA in September, but H-1B petition not filed yet – am I in big danger because of new H-1B regulation?

Because of various problems between the company and the lawyer, my H-1B petition has not yet been filed although the labor condition application part was finished in September. Now I hear that Immigration just came up with a new rule that will make it much tougher for me to get the H-1B petition approved. My job is business analyst and I have a bachelors degree in economics.

Mr. Lee answers,
You do have one of the occupations that has become more tenuous under the October 8, 2020, DHS rule, ”Strengthening the H-1B Nonimmigrant Visa Classification Program,” which is changing the standard for the degree qualification from what is normal or usual or common to a directly related degree in a specific specialty or its equivalent. The position of a business analyst is usually regarded as one that can be fulfilled by study in a number of fields. Nevertheless, your case should not be affected by the new regulation which will only apply to petitions filed on or after its implementation date of December 7, 2020 – that includes amended petitions, petition extensions, pending petitions, and previously approved petitions, either through reopening or through a notice of intent to revoke. I assume that your company’s lawyer will be able to file your H-1B petition before December 7.

3. My H-1B petition is pending – I am worried about the new regulation that would raise my wage by a lot and what the company will think about it.

My company filed for my H-1B petition in August 2020 since I was selected for the H-1B lottery. We have not heard anything from Immigration except that the company lawyer got the receipt for the filing. I read that there is a new rule by the Department of Labor that raises the wage that I am supposed to be getting by a lot if my case is approved. I have not talked this over with my boss because I’m afraid that he will cancel my case. What am I supposed to do?

Mr. Lee answers,
The Department of Labor came out with a new rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, which took effect on October 8, 2020, and raises the wages in all cases that use the Occupational Employment Statistics (OES) wage survey to obtain the Labor Condition Application (LCA) from DOL. The hike in wages is tremendous, for example moving the level I wage from what the 17th percentile is making to what the 45th percentile is earning. However, please note that this will have no effect on your case as it only applies to cases in which applications for LCA’s were filed on October 8, 2020, or later. Your case will be governed by the old rules.

4. My final asylum hearing date in the immigration court is coming up – can I postpone it?

I came to the US by sneaking across the border in 2017, applied for political asylum, was refused at the asylum office in Lyndhurst, New Jersey, and my case is now with the Immigration Ct. in New York. After two or three hearings, my final hearing is scheduled for November 2, 2020.

Can I get an extension by moving to another state and having my case transferred there? I do not want to have the hearing now for a number of reasons.

Mr. Lee answers,
You actually do not have to do anything at this time to have an extension for your hearing. Because of the Pandemic, unless you are detained (which does not appear to be the case with you), the New York immigration court is not hearing any cases through November 20, 2020. You should be automatically rescheduled to a date in the future.

Q&A’s published on Lawyers.com and the Epoch Times on November 20, 2020 1. I-130 Denied Notice Was Never Received. Will I Get Same Priority Date If I File New I-130? 2. I got married recently with to an U.S. citizen but she refused to fill the form-130 and left while I was about to file for my paperwork. what can I do? 3. Can a traffic violation in which I was fined and I paid the fine. affect my naturalization application. 4. Currently a DACA Applicant (have been for 8 years) married to a US Citizen, am I allowed to broad a cruise ship to the Bahamas?

1. I-130 Denied Notice Was Never Received. Will I Get Same Priority Date If I File New I-130  ?

As US citizen, I applied for my sister in 2007. Case status still says pending on USCIS website however when I called recently, I was told that the case was denied back in 2009 and a notice was sent. I never received the notice and officer suggested to file another I-130. My question is, if I apply for the same beneficiary under same category, will the original priority date be recaptured considering that my sister now has 2 sons. I am devastated to find out after so many years and I could swear that I had called USCIS many times for the same case in the past and each time I got a response that the case was still pending. What are my options?  What can I do to avoid the long delay? it has been 12+ years now and I don’t want to lose anymore time. Besides that my nephews will outgrow the new priority date (if new one given) at the time a visa is issued.

Mr. Lee answers:
A denied I-130 petition does not allow for retention of priority date with a later filing. If you can prove that U.S.C.I.S. sent the notice to an incorrect address or made some other error, you may be able to reopen the I-130 determination. You would have to further communicate with U.S.C.I.S. the way the you are doing it now to gain more information, or arrange for an infopass at a local field office (if that is allowed) or request a copy of the file through the Freedom of Information Act. 

2. I got married recently with to an U.S. citizen but she refused to fill the form-130 and left while I was about to file for my paperwork. what can I do?

Mr. Lee answers:
If your US citizen wife refuses to sponsor you for the green card, that is within her rights. You have no recourse with U.S.C.I.S. to force your wife to sponsor you. It may well be that she suspects that you married her just so that she could sponsor you for permanent residence. I note that some US citizens use the power that they have over the alien at this time like a baseball bat, which does not make for a good marriage. Marriage should be based upon trust. I suggest that you attempt to alleviate her concerns and otherwise discuss with her the reasons for her reluctance to sponsor you. If you do so and she is convinced of your love, she may then consent to sponsor you. 

3. Can a traffic violation in which I was fined and I paid the fine. affect my naturalization application.

I was speeding.  I drove 62 MPH on a 45 MPH limit. I paid my ticket on time and it was dismissed.

Mr. Lee answers:
A traffic speeding violation for which the fine was paid would not have any effect upon a naturalization application.  There is no act of bad moral character here.  

4. Currently a DACA Applicant (have been for 8 years) married to a US Citizen, am I allowed to broad a cruise ship to the Bahamas?

I have a “work authorization card”, “Real ID”, and Mexican Passport (Marriage License if needed) and would like to know if it is safe to take a cruise ship to the Bahamas for pleasure.

Mr. Lee answers:
As the Bahamas are not part of the United States, and DACA status does not allow travel, it would not in my opinion be safe for you to take a trip there on a cruise ship.

ALAN LEE, ESQ. CHOSEN 2020 SUPER LAWYER IN NEW YORK CITY

The 2020 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 2 lawyers of Chinese descent in the 69 attorneys chosen in the area of immigration law, the other being Tsui H. Yee. This is the ninth time that Mr. Lee has been selected, having previously been honored in 2011, 2013-2019. He exclusively practices U. S. immigration and nationality law in Manhattan near Penn Station with his son and associate, Arthur Lee, Esq.

Please click here for the “Super Lawyers – New York Metro 2020

Q&A’s published on Lawyers.com and the Epoch Times on November 6, 2020 1. What Can Happen During My Change of Status to B2 Period? 2. Consular Processing Parent of U.S. Citizen 3. Can I Renew My Green Card on a 5 Years Deferred Probation?

1. What Can Happen During My Change of Status to B2 Period?

I have a J1 visa. It expires on December 04, 2020 but I’ve just applied to changing of status to B2 and asked to start it November 1, 2020. I live with a host family but I don’t know what to expect from them when I tell that I have to leave before December. I want to tell them now so they have time to find someone before I leave. The question is if I have to leave before November 1st – in case the family asks me to leave. if it happens, will it can cancel my J-1 visa when I leave? Can be that a problem?

Mr. Lee answers:
I assume your J-1 is not subject to a two-year home-country physical presence requirement, otherwise you cannot change your status in the United States. The date that you put down on the I-539 application to extend/change status is only a request. The important part is that you have already put in the paperwork to change status to B-2. Even if the family asks you to leave prior to November 1, that should have no effect upon your pending application to change status. The timing of when to cancel or terminate your J-1 participation in a program is not determined by your host family, but by the program sponsor. An applicant who has filed a timely request to change status is allowed to remain in the U. S. during the time that the application is being considered. (I do note that if the time up to which you request expires in the future and you do not yet have an adjudication, you should either leave the U. S. or file another I-539 application if you intend to stay).

2. Consular Processing Parent of U.S. Citizen

My parent’s I-130 is approved. How do I know if NVC is processing my parent’s immigrant visa?

 Mr. Lee answers:
When the I-130 is approved, it is standard procedure for U.S.C.I.S. to forward the approved petition to the National Visa Center. Upon receipt, the NVC sends a notice to the petitioner that it has received the petition and assigns it a case number. From that point forward, the petitioner or the applicant of further work to be done are to pay the visa fee and submit documents. If the I-130 petition has been approved and you have heard nothing from the NVC, you can contact the NVC by telephone at 603-334-0700 or by email at AskNVC@state.gov

3. Can I Renew My Green Card on a 5 Years Deferred Probation?

I had a felony case in 2015 (aggravated assault with deadly weapon). I took a plea bargain and got deferred probation for 5 years. My green card expires in 2 months, but I’ve been told that I will get denied and deported. Should I apply now or wait till my probation is over in a year and half?

Mr. Lee answers:
The question of probation is likely not determinative as the green card renewal process is not regarded as an application for the green card by a nonresident alien. The question is whether the plea bargain that you took would make you removable from the United States, and whether there are any reliefs that you could seek if the government decided to begin proceedings against you. You may wish to make an appointment with an immigration lawyer who is versed in the effects of criminal offenses on immigration status before applying for a renewal of the green card.