Year: 2022

Q&A’s published on the World Journal Weekly on December 18, 2022 1. Can Shoplifting Affects a Citizenship? 2. What Will Happen to a Child’s (18 years old) Derivative Immigration Visa Status If His Principal Immigration (Parents) Do not Maintain Green Card? 3. Class 3 Misdemeanor – Speeding. Will it Affect my H-1B? 4. H-1B Visa

1. Can Shoplifting Affects a Citizenship?

 I had a case of shoplifting in Aug 2015, I was arrested and detained for 2 days in the county detention facility, my charge was a misdemeanor class B ($50-750) I participated in a program called retail theft pretrial intervention and I obtained a dismissal from my case in May 2016. In January 2022 I applied for my American citizenship and I am waiting for my interview. I’m a little nervous because I certainly don’t know how this can affect me when it comes to being interviewed?! I obtained my permanent residence in 2017 and since that date I have only had two traffic tickets also dismissed by the court. I don’t know whether to mention these tickets during my interview?! I also don’t know if the program in which I participate is any of the programs mentioned in the N400 in part 12. I feel a little distressed about my background. What I need to do?

Mr. Lee answers,
In your fact situation, your case of shoplifting was in August 2015, well over five years old by the time that you applied for your citizenship in 2022. I also note that you said that you received your permanent residence in 2017, and I assume that you disclosed the shoplifting offense in your immigration application papers. The period of good moral character is five years, and this should not be held against you. I suggest, however, that you obtain a certified copy of the court disposition to take with you to the interview if you have not already presented it as part of your naturalization application. On your other questions, I do not believe that pretrial intervention and dismissal qualify as one of the programs  mentioned in part 12, item 26, if you did not have to make an admission of guilt. Also you should mention the traffic tickets as item 23 of the same part asks whether you have ever been cited, and a traffic ticket is a citation. 

2. What Will Happen to a Child’s (18 years old) Derivative Immigration Visa Status If His Principal Immigration (Parents) Do not Maintain Green Card?

My elder brother will get immigration visa (F4) his son / wife will get the derivative immigration visa as well. He might have to go back and won’t be able to maintain his green card / permanent residence in USA. His Son wants to stay and do his bachelors and pursue a career in USA. Can his son stay in USA with Green card without his parents staying in USA?

Mr. Lee answers,
An applicant who is sponsored for immigration has an obligation to make the US the country of permanent domicile. Failure to at least initially come and establish a permanent residence in the US (spending a period of time initially in the States) makes the green card statuses of the dependents insecure and subject to challenge. If your brother first enters the US and stays here for a period of approximately six months, it would make it much harder for DHS to challenge the dependents’ statuses even if your brother’s green card is taken away at some later point for no longer maintaining status. 

3. Class 3 Misdemeanor – Speeding. Will it Affect my H-1B?

I received a criminal speeding ticket in AZ a few days back. Just speeding and nothing else. Its a class 3 misdemeanor speeding ticket. I’ve hired a lawyer and planning to contest it. Will a speeding misdemeanor affect job opportunities like during background checks? Will it affect my H1B?

Mr. Lee answers,
I do not practice criminal law, but in googling criminal speeding in Arizona, it appears that excessive speeding is traveling at more than 20 mph over any speed limit in the state, and that it is a class III misdemeanor for which the maximum penalty is 30 days in jail, a $500 fine plus an 83% surcharge and up to one year of probation. Those are pretty hefty penalties for what does not appear to be a big crime. That being said, I do not know whether having the misdemeanor on your record will reduce your chances of obtaining a good job opportunity. However, such should not affect your H-1B status as it does not appear to be a Crime Involving Moral Turpitude (CIMT), which is usually the line used to determine whether DHS should begin to become involved. I note that visas have an element of discretion, even H-1B’s, and if you had to or wish to obtain a visa in your passport, the incident could result in a consular officer looking harder at your application, especially if there is a finding of guilt. 

4. H-1B Visa

 I am currently living in the USA on H4 visa on my wife’s H1B visa. While our green cards are in process, she has no EAD for me to work. I have previously worked on L1A in the USA and did a change of status from L1A to H4 visa. While we are waiting to have my wife’s PWD approved, I have been contacted by companies to interview. A company is willing to sponsor my H1B visa. (never been on H1B in the US) I am trying to understand – when can the company file for my H1B petition – is it only in March/April ? Can they put any start date or is it always Oct 1 of the same year? As far as I know, fresh applicants apply for lottery in Mar/Apr and then they work on H1B from Oct1 – most of them have an interim visa that allows to work between those periods. I do not have an interim work permit – what are my options? 

Mr. Lee answers,
Unless the organization that is interested in hiring you is cap exempt (institution of higher education, nonprofit organization affiliated with an institution of higher education, nonprofit research organization, or governmental research organization), it must go through the selection process to hire H-1B workers. Such involves registering the company and possible candidates in March, after which USCIS will announce the selectees in the last week of March, and allow H-1B visa petitions to be filed beginning in April for work to begin in October assuming that petitions are approved in time. A few options to consider are searching for a cap exempt organization, applying for O-1 extraordinary alien status if you are extraordinary, or working under H-4 if your wife is able to obtain an I- 140 approval.

Article: “USCIS RECOMMENDATIONS ON FILING PAPER PETITIONS AND APPLICATIONS – WHAT WORKS AND WHAT NEEDS SOME THOUGHT.”

As published in the Immigration Daily on December 6, 2022

At a webinar on O & P petitions on August 3, 2022, the question was asked of when USCIS anticipated that we could file without a duplicate I-129 petition as several years ago, the Kentucky Consular Center (KCC) and USCIS had said that duplicates would no longer be required as they were moving towards a digitization process. The USCIS webinar response was that it was no longer necessary to provide a duplicate. However, without further assurance from the agency, many practitioners were understandably reluctant to abandon sending in duplicate copies.

On November 16, 2022, USCIS sent out its recommendations on how it wants paper (not online) petitions and applications to be submitted to it in order to improve scanning efficiency. We have some reservations concerning several of the points in the guidance and believe that further discussion may be warranted and have added our italicized comments at the end of the particular bulleted points on which we have questions.

USCIS instructs that petitioners and applicants should not:

  • Hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another. For large applications and petitions, the admonition can be complied with as they can be bound with large rubber bands – but such cannot be done with smaller applications and petitions and no one wants to chance some papers slipping out or being thrown away in the mailroom, in transit from the mailroom, or while on an officer’s desk.
  • Include photos or documents smaller than 4×6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when we request a passport photo with the filing. Are passport photos considered documents not to be stapled or paper clipped? If so, it should be noted that it is difficult to secure loose passport photos in a way that assures that they will not be lost. The practice of securing the photos directly onto the applications assures that there is much less chance of photos going missing. Perhaps the point requires some clarification.
  • Include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. We will not accept these types of materials. However, we will accept photographs or photocopies of these items. Photographs of musical greeting cards, toys, and action figures can be photographed and perhaps understood, but CD-ROM and DVD covers are generally only good for musical acts or movies or the like – otherwise, how can you convey what is meant to be represented accept by photocopies of the contents – a prodigious endeavor. Ditto for most thumb drives.
  • Submit forms or evidence documents bound with a binding or spiral wire/plastic.
  • Submit evidence using photo albums, scrapbooks, binders, or greeting cards.
  • Fold documents.
  • Place sticky notes on documents. While we agree with this in general, we believe that placing sticky notes on top of the first page to identify the contents, but not on the documents themselves is helpful to USCIS in identifying what type of case is being submitted.
  • Use insertable tab dividers. We believe that most practitioners have already abandoned the practice of using insertable tab dividers, and that the use of colored paper to divide parts of the petitions and applications mainly serves the same function and helps officers adjudicating them in differentiating the separate parts.
  • Print forms on colored paper. The G-28 authorization of representation for attorneys and other representatives is the only USCIS form in a different color – blue – and printing it strictly on white paper increases the chances that the form will be overlooked by officers going through applications and petitions. Does this mean that the Service no longer wishes to even have the edges of a white G-28 blued to differentiate it from all the other white pages? This could use some clarification.
  • Submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If you are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended. This is one development that can be cheered if only for the number of trees saved!
  • Send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:
  • Required by the form instructions for the application, petition, or request you are filing; or
  • We specifically issue a request for you to submit an original document.

USCIS adds that avoiding these activities will improve its efficiency as it processes application, petition, or requests.

After digesting these recommendations, we looked over the form I-129 instructions and found to our chagrin that an alert had been posted for some time that no duplicate I-129’s have been required since August 11, 2022. One would think that USCIS would have publicized that change of policy loudly rather than just sticking it in the form instructions.

Looking for more surprises, we went through three popular forms, the I-131 Application for Travel Document, I-485 Application to Register Permanent Residence or Adjust Status, and I-765 Application for Employment Authorization, to see whether the photograph specifications had been changed. Both I-765 and I-485 instructions were the same that applicants must submit two recent identical color passport style photographs with white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched; that they must be 2 x 2”, in color with full face, frontal view on a white to off-white background with head height measuring 1 inch to 1 3/8 inches from the top of the hair to the bottom of the chin and eye height between 1 1/8 to 1 3/8 inches from the bottom of the photo. However, the I-131 gives applicants the alternative of submitting a digital photo which must be produced from a high-resolution camera having at least 3.5 megapixels of resolution.

While some of the bulleted points reflect common sense and have already been adopted by most petitioners and applicants, USCIS should take a moment to consider other bulleted points and clarify or change some of its recommendations.

Arthur Lee, Esq. marries Ann Back

The law firm of Alan Lee and Arthur Lee, Attorneys at Law, is happy to announce that Arthur Lee, partner at the law firm, and Ann Back, his long-time girlfriend and fiancée, married on November 11, 2022, at Leonard’s Palazzo in Great Neck, Long Island, New York, before 100+ guests. On the following day, another celebration was held for Alan Lee’s mother-in-law, Yuchu Wen, who turned the grand age of 101 at the East Ocean Palace in Forest Hills, New York.

 

Q&A’s published on the World Journal Weekly on December 4, 2022 1. How to return to the USA after abandoning LPR 2. How can my immigrant wife petition her sons to come to USA with us? 4. Should I apply for my green card or my citizenship after legal name change?

1. How to return to the USA after abandoning LPR

My mother who has an active green card, but an expired travel document is trying to return to the USA. 1) After completing form I-407, where does she mail or email it to? 2) Should she expect a response or proof that she filed I-407 before being allowed to travel to the USA? 3) After completing I-193, where does she mail or email it to? 4) Should she expect a response or proof that she filed I-193 before being allowed to travel to the USA? 5) If by completing form I-193, she will be allowed to travel to the US without a visa or travel document, what kind of documentation does she need to present at the airport in Saudi Arabia and the custom petrol checkpoint in the USA to be permitted to fly and enter the USA? 6) Where does filling form DS117 fit into all this? 7) Does she apply for form I-131 for a new travel document at any point here? 8) What is the best way to work with an immigration lawyer in this case.

Mr. Lee answers,
If your mother has an “active” green card which is not expired and has not been out of the US on this trip one year or more, she would be able to return on the basis of the green card by presenting it to the air carrier and to U.S. Customs and border (CBP) inspection officers. If the green card is not expired, but your mother has been out of the US for one year or more and a reentry permit is expired, she may be able to present the green card to the air carrier and U.S. Customs and border inspection officers along with explanations and proof as to why she did not reenter the US within one year of leaving. If CBP wishes to admit her with a waiver, it can allow her to fill out and pay for an I-193 application for waiver of passport and/or visa. An alternative for your mother is to apply to the consulate or embassy for a special immigrant visa (DS-117) if she is able to prove that she had a good emergency reason for not being able to return to the US within the one-year validity date of the green card or the time on a reentry permit. On the other hand, if she is abandoning the green card now, she would send in the I-407 form to the Williston, Vermont, address on the instruction to the form, and then could possibly apply for and obtain a visitor’s visa from the American consulate or embassy. With reference to an I-131, a reentry permit cannot be applied for by an individual outside the U.S.  

2. How can my immigrant wife petition her sons to come to USA with us?

My wife came here from Philippines on K1 visa in January 2020. We were married in February 2020. She currently has her two-year green card. She does not work. I, as her husband, work to support her by my own choice. She has three adult sons in Philippines, ages 19, 20, and 26. Can she file form I-130 to petition them to come to USA even though she does not have a job? Is it to our advantage to file the petition(s) before her 20-year-old son turns age 21? I will sign a sponsor letter if necessary

Mr. Lee answers,
Currently an application by your wife for her three children in the Philippines would take approximately 10 years to complete if they were born in the Philippines and remain unmarried during these years. The law, however, does allow a stepfather who marries the mother of the children before they turn 18 to apply for the eligible children and that would shorten the period of time. You state that you were married in February 2020, and that would be over two years ago. You also state that two of the children are 19 and 20. If you married your wife before those children turned the age of 18, you could petition for them now as your immediate relatives, and possibly immigrate them in approximately one year. If the circumstance applies, you would have to petition before the 20-year-old child turns the age of 21. Unfortunately, the 26-year-old cannot benefit under the above and would have to wait approximately 10 years through your wife’s petition unless he has other ways to immigrate. Financial support documents are not required at the beginning, but at the time that the children begin to get ready for their interviews at the American Embassy.

3. My father is a principal on a qualifying labor certification application that was submitted before 4/30/2001 does this help adult unmarried daughter.

My father is a principal on a qualifying labor certification application that was submitted before April 30,2001. His I-485 has been recommended for approval as of Apr 29, 2022. My question is regarding one of his children. She (my sister) is currently an unmarried adult (over the age of 21), when the labor certification was approved she was unmarried and under 21 years of age. My question is whether she is eligible to apply as an “accompany” or “follow to join” the principal beneficiary (parent). My sister does have a US Citizen daughter who will be turning 21 in a couple of years and a US Citizen sibling. Does any of this help her in any way to petition an immigrant visa? Any and all answers are greatly appreciated. Thank you for your time and consideration.

Mr. Lee answers,
As your father was the principal on a labor certification with merit filed prior to 4/30/01, your sister who was under the age of 21 at the time is grandfathered for purposes of §245(i) if she entered the US by December 21, 2000. That means that she is not barred from adjusting status through any means that she can gain immigration from even if she entered the US without inspection or took up unauthorized employment or overstayed her visa status. For purposes of accompanying or following to join your father on his case, she would be too old by this time. You say that your sister has a US citizen daughter who will be turning 21 in a couple of years –that petition would likely be the quickest way for her to immigrate. Usually, an immediate relative petition like this would take approximately one year to complete. A sibling petition begun today on the other hand could take approximately 15 years to gain permanent residence. 

4. Should I apply for my green card or my citizenship after legal name change?

I recently completed a legal name change. I am green card holder eligible for citizenship. My question really is do I need to correct my name on my green card before applying for citizenship or can I just apply for my citizenship?

Mr. Lee answers,
You do not have to correct your name on the green card before applying for your US citizenship. I note that USCIS does requires individuals to have green cards with at least six months validity on them when applying for citizenship. That is usually the only time that individuals must apply for new green cards when applying for citizenship. As you already have a legal name change, you can enclose a photocopy of the court document changing your name in your naturalization application. To lessen confusion in any day-to-day situation, you can carry a copy of your name change document with you along with your green card or a copy of it. 

Article: SEACHANGE IN LINE FOR N-648 MEDICAL CERTIFICATION FOR DISABILITY EXCEPTIONS ADJUDICATIONS

As published in the Immigration Daily on November 7, 2022

Form N-648 applicants requesting disability exemptions for the English requirement and/or civics requirement and/or oath of allegiance should now see a big change in the general attitude of USCIS officers towards granting exceptions to the requirements. USCIS acknowledged in a form revision and policy update on October 19, 2022, that the changes were guided by public comments and feedback with USCIS Director Ur M. Jaddou saying, “This is a wonderful example of how USCIS is listening to the public it serves in order to better address their needs while fulfilling our responsibilities as an agency.”  The form itself has been shortened and simplified, and new telehealth guidelines further remove barriers for applicants and medical professionals. The form changes were also in response to the Administration’s goal to remove barriers for underserved populations under Executive Order 13985, Advancing Racial and Equity and Support for Underserved Communities through the Federal Government.

Applicants for medical exemptions have experienced an entire host of critical responses from USCIS officers, and under the new policy guidelines, adjudicators are no longer supposed to:

  • Attempt to determine the validity of the medical diagnosis or second-guess why the diagnosis precludes the applicant from complying with the English requirement, civics requirement or both requirements.
  • Request to see an applicant’s medical or prescription records solely to question whether there was a proper basis for the medical professional’s diagnosis unless evidence exists that creates significant discrepancies that those records can help resolve. The officer may ask follow-up questions to resolve any outstanding issues.
  • Require that an applicant undergo specific medical, clinical, or laboratory diagnostic techniques, tests or methods.
  • Conclude that the applicant has failed to meet the burden of proof simply because the applicant did not previously disclose the alleged medical condition in other immigration related medical examinations or documents. It is appropriate, however, to consider this a factor when determining the sufficiency of the N-648. The officer should always examine the evidence of record and ask follow-up questions to resolve any outstanding issues.
  • Refer an applicant to another medical professional solely because the applicant sought care from a professional who shares the same language, culture, ethnicity, or nationality.

Officers should now only do the following when adjudicating the request for exemption:

  • Determine whether the form has been completed, certified, and signed by all appropriate parties.
  • Ensure that the form relates to the applicant and that there are no significant discrepancies between the form and information contained in the applicant’s “A” file or record.
  • Determine whether the form contains enough information to establish that the applicant is eligible for the exception by a preponderance of the evidence including ensuring that the medical professional’s explanation is both sufficiently detailed as well as specific to the applicant and to the applicant’s stated physical or developmental disability or mental impairment.

On telehealth, the new simpler form allows the medical examination to be conducted through telehealth examination with the medical professional adhering to the state telehealth laws and requirements. Medical professionals allowed to fill out and sign the form are medical doctors, doctors of osteopathy, and clinical psychologists.

And where the applicant is so disabled as to not be able to understand or communicate an understanding of the oath of allegiance, a legal guardian, surrogate, or eligible designated representative can complete the naturalization process for the applicant and USCIS can waive the oath of allegiance. USCIS recognizes by priority legal guardian or surrogate, and then in the following order US citizen spouse, US citizen parent, US citizen adult son or daughter, and US citizen adult brother or sister who is the primary custodial caregiver & takes responsibility for the applicant. A person acting on behalf of the applicant must provide proof of legal guardianship or documentation to establish the familial relationship. In addition, the person must provide documentation to establish that he or she has the primary custodial care and responsibility for the applicant (for example, income tax returns, Social Security Administration documents, and affidavits from other relatives). For family members, they must provide proof of US citizenship. If the family member is not a US citizen, USCIS explains why he or she is not qualified to act as a designated representative and offers the applicant an opportunity to bring another person who may qualify.

The new form and guidelines are very encouraging and will hopefully not encounter resistance from naturalization examiners who have been overly skeptical of exemption claims in the past.

Q&A’s published on the World Journal Weekly on October 23, 2022 1. I had worked on H1B visa  and I am considering moving back to US, Do I need to again sit in lottery? 2. I am considered an alien relative. Can I file for I-485 and I-765 at the same time once I get my I-130 form approved? 3. Can I expedite my DACA? 4. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract? 5. Can I re-enter the US with an arrest record on J-1 visa?

1. I had worked on H1B visa  and I am considering moving back to US, Do I need to again sit in lottery?

I currently live in India. In April 2018, I came to US on L1B Visa, and then got H1B visa in 2019 lottery (expiration date of H1B visa on passport is June 2022), and had worked on H1B visa from Oct-2019 – Feb 2020. After I left my job in Feb 2020, Due to Covid pandemic and health issues, we had filed for extended stay via I539A before the H1B grace period of two months end. We left US on Nov 7, 2020, which I realize could be overstay, not sure. Could you please clarify ? I am now considering moving back to the US. Do I again need to sit in lottery as worked couple months on H1B? implications and solution of potential overstay?

Mr. Lee answers:
As you previously worked under H-1B status in the US in 2019-2020, you do not have to go through another visa selection process. Under the conditions that you describe in which you timely filed an application to remain legally in the US after your H-1B job ended, and presumably left prior to the adjudication, there may be a valid question of overstay as the maximum period of initial time allotted for being a visitor is only six months and you would have exceeded that even if you had filed during the 60 day grace period. However, there is room for argument that you complied with the law and USCIS was supposed to have made a timely adjudication. Under the Foreign Affairs Manual guidance, I do not believe that your explanation of actions should prejudice you in a later application for a visa.

2. I am considered an alien relative. Can I file for I-485 and I-765 at the same time once I get my I-130 form approved?

My dad is a lawful permanent resident. I intend to file for I-30 soon, and I wanted to know if I could file for I-485 and I-765 once I get my I-130 form approved? Furthermore, what is the estimated time to get the two aforementioned forms approved?

Mr. Lee answers:
Whether you can file for I-485 and I-765 once you have your I-130 petition approved depends upon whether there is immediate visa availability. If you are a child under the age of 21 and unmarried of a lawful permanent resident, you would generally be able to file for I- 485/I-765 if inspected and admitted or paroled and in addition have maintained status under the LPR sponsorship. However, if you are in the other categories, you would have to check the visa charts to see whether your priority date has been passed and the visa available in order that you can file. In checking the visa charts, you would also have to look at the USCIS acceptance chart to see whether it will accept either the “final action dates” or “filing dates” chart on the monthly visa bulletin for purposes of allowing adjustment of status filings. If able to file both forms, current processing time for I-485’s is generally a little less than a year on a nationwide average and for I-765 3-6 months.

3. Can I expedite my DACA?

My DACA is expired. I already filed for a renewal but it is in process now. My employer asks me to resign due to my status, what can I do ?

Mr. Lee answers:
You can request an expedite from USCIS if you will suffer severe consequences from losing the job. USCIS will entertain such a request if the severe financial consequences are not the result of your failure to timely request the DACA renewal. It further says that, “Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization by itself, without evidence of other compelling factors, does not warrant expedited treatment. In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.”

4. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract?

I would like to inquire. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract or what are the required procedures, knowing that it my visa does not apply to the two-year rules In addition, I would like to know what types of visa are available for transfer.

Mr. Lee answers:
For chefs, the H-1B visa is generally not a good choice as being a chef does not require a specialized degree. H-1B visas are given for specialized occupations requiring baccalaureate or higher related degrees in the occupational field. O-1 classification for extraordinary chefs is the more proper visa category. An option could be an organization sponsoring a cook or chef for permanent residence under a labor certification. For persons born in most countries of the world except China and India, the approximate time of such a case if everything goes well is approximately two years. I note that being sponsored for a labor certification alone does not entitle an individual to remain in the US during most of the time of processing. A further option may be changing status to go to school in the country under F-1 or M-1 status. 

5. Can I re-enter the US with an arrest record on J-1 visa?

 I’m a foreign exchange student on a J-1 visa, I was arrested in a misunderstanding in February 2022. I hired an attorney and my case was never filed to the court, but the arrest record should be available. I would love to travel home now but was wondering if it’s reasonable, or would I have problems re-entering the U.S. with the arrest record? Is there a chance they won’t let me cross the border?

Mr. Lee answers,
While one cannot discount Customs and Border Protection inspectors looking with interest in any arrest, the fact that your case was never filed with the court is very favorable towards allowing you reentry into the States. Kindly note that an admission of guilt to an immigration inspector has the same effect as a conviction when you are trying to be admitted as a nonimmigrant to the country. If the arrest was for an excludable act, and it was admitted, then you would have difficulties. You may wish to bring a copy of the proof that the case was never filed to court in the event that there are questions.

Q&A’s published on the World Journal Weekly on October 16, 2022 1. How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years. 2. I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days? 3. What will I do when I was denied the petition for naturalization because I was not able to produce the document?  4. Can I travel between USA and Canada using AVR (each trip duration less than 30 days) multiple times while my visa appointment is scheduled? 5. Do I include children from a previous marriage who aren’t on my tax returns on my I-134? 6. Would it be a safe idea to stick with the current company? or I should switch to the new employer

1. How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

Mr. Lee answers:
I do not know of an expedited process for green cards where healthcare workers are concerned, although USCIS recently said that it would expedite employment authorization renewal cards for such workers. The fact that you are already in the US instead of overseas would also not be in your favor in requesting an expedite from the agency. The expedite criteria from USCIS are: Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons; Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or Clear USCIS error.

2. I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

Mr. Lee answers:
Just because you were given until July 27 on your entry does not mean that you are allowed to come back to be in the US for another 15 days after returning from India. Your leaving and coming back subjects you to a new inspection when your return. A CBP officer may wonder why he or she should allow you to come back in after such a short trip outside the country. You may have a more sympathetic inspection if you are able to outline the reasons for which you need the additional time and you are able to produce documents relating to the urgency of your having to return to India before being able to accomplish your original purpose in the US.

3. What will I do when I was denied the petition for naturalization because I was not able to produce the document? 

I filed for a petition for naturalization but was denied because I was not able to submit the divorce decree. This was back in 1988.

Mr. Lee answers:
The question would appear to be the relevance of the divorce document. If it was not relevant to the question of your qualification for naturalization, you can submit a new application. If it is germane to the qualification, you should obtain it either by the time that you file for naturalization or by the date of your interview.

4. Can I travel between USA and Canada using AVR (each trip duration less than 30 days) multiple times while my visa appointment is scheduled?

I have a valid I797 and I94 for H4 status until 2024 and a Confirmation of Permanent Residence (CoPR) for Canada. Also, I have expired H1B and F1 visa stamps on my old passport. Now, I need to move to Canada temporarily for work (2-3 months). Can I travel weekly between USA and Canada to visit my family in USA using Automatic Visa Revalidation (AVR) multiple times? My visa appointment in US embassy in Canada is scheduled for Oct 4, 2022, but I want to travel back to the US on weekly basis in May, June and July 2022. Also, I understand I can not do any productive work while I am in the US on H4. Look forward to your response.

Mr. Lee answers:
Technically, you appear to meet the requirements of automatic visa revalidation as you have a current status, an expired US visa, and will be in Canada for less than 30 days on each trip. You may be questioned on the purpose of your frequent trips if there is some thought that you may be doing something illegal, but I do not otherwise see a problem. The fact that you have a visa appointment at the consulate scheduled for October should not affect trips done before the interview. Insofar as Canadian entries are concerned, I possess no knowledge of Canadian immigration law and cannot inform you as to whether there are restrictions.

5. Do I include children from a previous marriage who aren’t on my tax returns on my I-134?

Next month, my husband will have a k3 visa interview in UK and I need to fill out his I-134. I do not make enough money and I am using my mother that I live with as a joint-sponsor (she made 47k last year and has been employed at her job for 13 years). When I filled out his i-129F for the K3 visa I did list my children from a previous marriage under information about me (sponsor). Now, my question is, I have been told by multiple people since my ex husband has claimed the three children he and I have the last three years on his tax returns and I have not, that I do not need to put them on my i-134, only the daughter I have with my husband who is on my tax returns. Is this true? I am worried about them thinking there is any inconsistency between the i-129F information and the i-134.

Mr. Lee answers:
The I-134 affidavit of support form only asks for a listing of dependents who are dependent upon you for support, either partially or wholly. If they are not dependent upon you for such support, then it appears that you would not have to list them.

6. Would it be a safe idea to stick with the current company? or I should switch to the new employer

I recently got my h1b petition picked in lottery by 2 (two) companies. I have been working with my current company since 2020 and got my h1b denied in year 2020 due to speciality occupation after which i decided to pursue a specialized masters related to position. This year I got a new offer by other company who also filled for my h1b and got picked in the lottery. So my question is, should i stick with the current company? or it would be better to apply through new company as my h1b was denied before by current company.

Mr. Lee answers:
I do not know your particular situation and so cannot advise you which one is the better opportunity for success. If you have completed a specialized master related to the position, perhaps your chances are as good or even better with your current company than they would be with the new company. If you are really confused, you should speak with the attorney or attorneys who are handling your case for an opinion. Good attorneys will usually give a candid assessment if you request one. 

Article: “Family-Based Preference Cases to Progress in FY-2023?”

As published in the Immigration Daily on October 12, 2022

The last two years have been difficult for family preference cases, especially where the beneficiaries are overseas as scheduled interviews have been few and final visa availability dates largely static with the exception of Mexico. In the meantime, the employment categories have prospered under the rule that any family-based visas not used in one fiscal year are transferred over to the employment-based quota limit in the next fiscal year. The normal allotment of employment-based cases is 140,000, but in FY-2021 reached 262,288 and in the just concluded FY-2022 281,507. That means that in FY-2020 ending on 9/30/20, 122,288 family preference visas were left on the floor while in the year ending 9/30/21, 141,507 family preference visas were left unused. For FY-2023, the Department of State has projected employment-based visa usage to be approximately 200,000, meaning that 60,000 family-based visas are expected to have been left on the cutting room floor in FY-2022.

The effect of pandemic fears restricting the number of interviews at consulates and embassies and State Department priorities in light of staffing losses have checked the ability of US consulates and embassies to process family-based preference cases in which the beneficiaries are largely overseas as opposed to employment-based situations in which the beneficiaries are mostly in the US and working under temporary visas. Immigrant visa issuance was initially hamstrung by the Diplomacy Strong policy instituted in the early days of the pandemic which initially dictated a temporary shutdown and then visa services reopening on a limited basis post-by-post beginning on 7/15/20. In September 2021, the Department issued a memorandum setting prioritization of family preference categories as third tier priorities beneath tier 1 (Immediate relative intercountry adoption visas, age-out cases, certain special immigrant visas, and emergency cases determined on a case-by-case basis) and tier 2 (immediate relative, fiancé(e) and returning resident visas). In the 9/13/21 “Immigrant Visa Prioritization,” memo, the Department made clear that “This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancé(e) cases as possible with the goal of, at least at a minimum, preventing the backlog from growing in these categories and hopefully reducing it. However, the prioritization plan also instructs posts to schedule and adjudicate some cases in Tier Three and Tier Four each month.”

What are the chances that we will see the family preference classes make some moves forward or backward worldwide in FY-2023 (10/1/22 – 9/30/23)? So far, in terms of visa chart movement in October and November, there is no movement at all except for advances for Mexico. A quick synopsis of family-based movement in the latest visa chart is the following:

The November 2022 visa bulletin just came out and held no surprises and hardly any movement. FB final action dates chart: No movement except for Mexico F-2B advancing two months to 6/1/01, F-3 two weeks to 11/1/97, and F-4 two months to 8/1/00. FB dates of filing chart: Again, no movement except for Mexico F-1 advancing one year to 12/1/02, F-2B three months three weeks to 1/1/02, F-3 two months to 6/15/01, and F-4 two weeks to 4/1/01.

However, there appears to be some hope as the State Department hiring of consular staff is going well and in a 10/7/22 webinar between the American Immigration Lawyers Association and Department of State, DOS representatives affirmed that they will be fully staffed by the end of 2023. The question of whether family preference visa interviews and issuances will be attended to will likely come down to the question of priorities. In what direction will the new hires be pointed? It will not only be competition among the three tiers, but other parts of consular services that draw the attention of consular staff. DOS representatives spoke of competing interests such as nonimmigrant visas including visitors and students which help the economy and pointed to good work being done with diversity visas.

In light of the constant advancement of the Mexico immigrant visas in past months, it is possible that the immigrant visa unit there has taken liberties with the prioritization plan. If so, other immigrant visa issuing posts may be encouraged to move in the same direction

Just looking at the state of affairs in family preference categories and number of unused visas, however, attention must be given to interviewing qualified applicants, issuing immigrant visas, evaluating visa demand, and then moving the categories forwards or backwards just as in pre-pandemic days. In looking through past visa bulletins, the family preference final action dates have not changed and have sat stagnant except for Mexico since September 2021, one year and two months ago. It is almost as if the State Department has set up a placeholder final action dates chart for family preferences, which has become more embarrassing month by month.

In light of the restocking of consular staff and hopefully the immigrant visa sections, the Department of State should feel it appropriate sometime in this fiscal year to move the worldwide family preference dates in a meaningful manner.

IMMIGRATION NEWS THAT YOU CAN USE – CONFUSION IN THE IMMIGRATION COURTS; NEW PUBLIC CHARGE RULE ON RESPONSIBILITY OF AFFIANTS GIVING I-864 SUPPORT; US – CANADA TAKING SEPARATE COVID PATHS

As published in the Immigration Daily on October 6, 2022

  1. Confusion in the immigration courts.

Does anyone know what is going on? There appears to be confusion again on appearances in court as David L Neal, Director of EOIR (Executive Office for Immigration Review), came out with a memo “Internet-based Hearings” on 8/11/22, that once again gives the power back to the IJ’s (Immigration Judges) on how they can conduct their hearings. Some of the points are:

  • Whether the judge appears remotely or in court is up to the judge.
  • Whether respondent and counsel appear in court or remotely also rests with the court, but the IJ should accommodate a respondent’s request to appear in court or remotely where appropriate and practicable.
  • An IJ should accommodate a request for a witness to appear remotely where such a request is reasonable.
  • A request for a remote or in-person appearance must be made in writing 15 days before the hearing unless waived by the IJ.
  • If respondent and counsel are both appearing remotely, they may appear either together or from different locations. There is no requirement that respondent and counsel appear together from counsel’s office.

Now attorneys are running around again madly asking what is the procedure for each individual IJ. Previously, EOIR had taken a strong position in favor of Internet-based hearings by WebEx or telephone. In one recent incident, an attorney reported that a particular IJ likes open voice for master calendars even though her temp clerk says she also does WebEx and is in court if anyone shows up in person. Another attorney said that she appeared via WebEx for an individual hearing before the same judge; that the IJ logged in late and informed her that she was conducting only in-person merits hearings, but because it was not well-publicized, she would go forward on WebEx that time only.

To its credit, EOIR in the last week of September conducted webinars by region to go over the memorandum, but could not completely quell the doubts of attorneys that their clients could be found removable in absentia because attorney and client were not clear on an IJ’s mode of hearing preferences, or the communication equipment used or the link was faulty.

  1. New public charge rule on responsibility of affiants giving I-864 support.

The Biden administration issued the final rule, “Public Charge Ground of Inadmissibility”, in the Federal Register on Volume 87, Number 174, 9/9/22, which while not overly commenting on affidavits of support, played down the enforceability of the affidavits while stating that affidavits of support are to be considered in the totality of circumstances. In doing so, it knocked down the idea that there should be something in the rule concerning enforcement of the affidavit of support obligations and basically agreed with commenters that since an affidavit of support is enforceable regardless of the sponsor’s actual intent, the rule should not require officers who are favorably inclined to the affidavit of support to consider the sponsor’s credibility or underlying motives in executing the affidavit; and it declined to require officers to consider whether the sponsor would actually carry out the legally binding obligations as part of the totality of the circumstances analysis.

It appears that the taking of means tested benefits other than Temporary Assistance to Needy Families (TANF) and Medicare for long-term institutionalization are not to be counted against the applicant (not be a ground of inadmissibility) and the credibility of an affidavit of support at time of interview will be considered in the totality of circumstances.

  1. US-Canada taking separate Covid paths.

Unlike the US, Canada has abandoned Covid restrictions for visitors as of 10/1/22 so that unvaccinated visitors are now allowed into the country. Visitors no longer have to upload evidence of vaccination and other data into a government app called Arrive-Can. Canadian officials said the repeal was possible because public-health modeling indicated the country had passed peak infection fueled by the Covid-19 Omicron variants, countrywide vaccination rates, lower hospitalization rates, and availability of Covid-19 treatments and vaccine boosters targeting Omicron variants. The US still requires everyone who is not a permanent resident or US citizen to be vaccinated by a WHO approved vaccine upon entry, which means fewer visitors and less tourist dollars. President Biden declared his belief that the pandemic was over last month and might wish to take a similar step.

ALAN LEE, ESQ. SUPER LAWYER FOR 2022 IN NEW YORK METRO AREA

The 2022 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 3 lawyers of Chinese descent in the 77 attorneys chosen in the area of immigration law.

This is the eleventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2021.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2022“