Month: February 2022

Q&A’s published on the World Journal Weekly on February 27, 2022 1. Do I Have to Stop Work if C9 EAD Expires Before Receiving Physical Green Card as I-485 is Approved? 2. Are Unintentional Mistakes on ETA 9089 Relevant to the Scope of N-400 Question 31? 3. My Son Does Not Have My Surname. How Do I Petition for Him? 4. How Long It Will Take to Invite My Brother to USA 5. I never filed taxes and NVC asks for affidavit of support. Can I find a joint sponsor? 6. Regarding H-1B Stamping 7. About Travel Document I-131

1. Do I Have to Stop Work if C9 EAD Expires Before Receiving Physical Green Card as I-485 is Approved?

I have been employed under OPT. OPT expiring in 2022. My I-485 online case status changed to “Case has been approved” yesterday. Have not received notice and card in physical mail yet. What is my immigration status at this moment? At what point is my OPT considered invalid? My C9 EAD card(which I did not use, because I maintained F1) that I got from pending I485 is expiring next week. So if my C9 EAD expires before I received my plastic green card in mail, will I have problem staying at where I work currently? Do I have to leave job after my C9 EAD expired even i-485 has been approved assuming my OPT is going to be invalid? Thank you so much in advance.

Mr. Lee answers:
Practically speaking, it would not appear to make much consequential difference as to what you do vis-à-vis your work where USCIS has already approved your I-485 adjustment of status application. If the unofficial online notice is correct, you should receive the official notice and green card shortly thereafter. The date should coincide with the unofficial online notice date. Technically speaking, however, employment authorization on the green card does not begin until you receive the green card itself. Your C9 card which I understand that you did not use is expiring next week, so you are authorized to work under that until next week. You have said that your OPT is expiring in 2022. So if you have not yet received the green card, you should technically be able to continue work on your OPT until you actually receive the physical green card. I do not believe that this is a fish or fowl situation. Interesting question. 

2. Are Unintentional Mistakes on ETA 9089 Relevant to the Scope of N-400 Question 31?

N-400 question 31 asks “Have you EVER given any U.S. Government officials any information or documentation that was false, fraudulent, or misleading?” Wouldn’t any typo or a mistake in any submitted form or application automatically imply yes to this question? Suppose an ETA 9089 had a typo in employment dates but that this was corrected by submitting EVLs with the corrected dates at the I-140 stage which was approved. If so, would I still bring this up?

Mr. Lee answers:
In the situation that you have given, your answer should be “no” to the question. Any question pertaining to fraud or misrepresentation on an immigration application requires that the applicant made the fraud or misrepresentation intentionally. In your case, you have stated that this was a typo and was corrected at the I-140 stage. 

3. My Son Does Not Have My Surname. How Do I Petition for Him?

I am USA citizen but my son who lives in his home country does not have my surname. How do I approach this problem as I would like to petition for him?

Mr. Lee answers:
You have to prove that your Mexican son is your son through birth certificate, baptismal certificate, schooling records, or other evidence. A list is on the instructions to the I-130 Petition for Alien Relative form. If unable to provide convincing evidence, you can offer to take a DNA test. In addition, if you are the father (not the mother), you will also have to show proof of parental care of your son prior to his reaching the age of 18 years.

4. How Long It Will Take to Invite My Brother to USA

I am an American citizen and I have US passport.   my brother is Egyptian and is 29 years old and married but lives in emirate country so I want to ask how long for him to come to USA?

Mr. Lee answers:
For the month of February 2022, the F4 category for sponsored siblings of US citizens is available for immigration visas for those who filed before March 22, 2007 for all countries of the world except for India, Mexico, and Philippines natives who must wait longer. If born in all other countries, the waiting time is thus 14 years currently. 

5. I never filed taxes and NVC asks for affidavit of support. Can I find a joint sponsor?

I applied I-130 for my wife and 2 kids, but I never worked in the State and never filed taxes.  Now NVC asks for an affidavit of support and I have a joint sponsor.  Is it OK? What form I have to fill out and what I have to do to send it to NVC?

Mr. Lee answers:
Even if you never worked in the United States and never filled out a tax return, you would still have to supply your I-864 affidavit of support in addition to having a bona fide and credible financial joint sponsor who can provide the financial support for your family. The financial sponsor would have to fill out another I-864 affidavit of support form and supply materials such as tax returns for the past three years, current job letter, payslips, and record of assets if he or she wishes them to be considered as part of the financial support.

6. Regarding H-1B Stamping

I have my H1b petition approved, and I am not getting the visa appointment dates available. Please can you tell me that, can I enter in US with my b1/b2 visa and change the status to H1b in US. I have a valid B1/B2 visitor visa. 

Mr. Lee answers:
There are two difficulties with your plan. The first is that coming to the US and immediately trying to change status to H-1B could raise questions concerning your actual intent under B1/B2 when you came in, and whether it was inconsistent with the type of visa under which you entered. The second is that there is no separate form to change status for persons who already have approved H-1B petitions marked for consular processing. Your petitioner would have to file the H-1B petition all over again in a H-1B amendment requesting change of status instead of overseas processing.

7. About Travel Document I-131

My wife petition for me for the green card. We had our interview in July 2021 and since then my I-485 case is under review. I would like to know if I can apply for a travel document i-131 and go out and come back in the US without issues? I have my EAD since June 2021. We have been married for more than two years. 

Mr. Lee answers:
You can apply for an advance parole document, but should be aware that except for emergencies, applications can take over six months to process at this time. Insofar as problems perhaps arising with an advance parole document in your situation, you may be on tenterhooks if the I-485 application is denied while you are outside the country. At that point, you might be at the mercy of the local CBP practice on the admission of denied I-485 applicants holding advance parole documents. In many quarters, it is thought that legally speaking, the advance parole automatically expires with the I-485 denial since the advance parole is an ancillary application to the I-485 and its life is dependent on the fate of the I-485.

Article: “WILL K-3s COME BACK INTO VOGUE? WHY BASE PERM PREVAILING WAGE DETERMINATIONS ON ALTERNATIVE REQUIREMENTS NOW? WHY 10 YEAR LPR INSTEAD OF 2 YEAR CPR CARDS FOR THOSE MARRIED LESS THAN TWO YEARS? PHOTOS NEEDED AT NATURALIZATION OATH CEREMONIES? NEW FORMS FOR APRIL AND NEW USCIS LOCKBOX IN ELGIN, ILLINOIS.”

As published in the Immigration Daily on February 14, 2022

  1. Will K-3s come back into vogue?

The K-3 visa was instituted in 2000 when legacy INS took years to approve immediate relative spouse cases. It allows a US citizen petitioner to file not only the traditional I-130 petition for alien relative, but also a nonimmigrant I-129F K-3 petition for the married spouse. As the agency improved on backlog processing, use of the K-3 option decreased drastically, especially as the petition was nullified if both I-130 and I-129F met each other at the next waystation of the process after approval, the National Visa Center (NVC). Although USCIS processing times are known to be many times unrealistic, the published times give one pause to consider the possibility of K-3 petitions to all service centers except Nebraska. The following are the published processing times as of February 12, 2022, for immediate relative and K-3 petitions:

Service Center             I-130 processing times               K-3 processing times

California                         29.5-38.5 months                        9-12 months

Nebraska                             4.5-7 months                              5-7 months

Potomac                            12.5-16 months                            3.5-7 months

Texas                                  10.5-14 months                            3.5-7 months

Vermont                            11.5-15 months                             7-9 months

K-3 processing times at the consulates and embassies track the time for immigrant visas according to State Department information, so it would appear that there may be some merit to considering K-3 petitions at this time. If USCIS reduces the I-130 backlog times or processes cases out of chronological order (as we have seen in some of our cases), the attraction of the K-3 visa becomes less.

  1. Why base PERM prevailing wage determinations on alternative requirements now?

For those attorneys whose practices include PERM labor certifications for permanent residence, the Department of Labor announcement through FAQs on July 16, 2021, relating to implementation of its revised prevailing wage determination form, ETA 9141, was a disappointing surprise in demanding that employers use the higher wage of either its principal or alternative requirements as the prevailing wage. The labor certification process is the method by which employers must test the American job market for able, qualified, available and willing US workers before a non-US worker can obtain residence status through nonavailability of US workers for the position. The sponsoring employer in the first step applies to the Department for a weighted-average wage in the job locality by informing the Labor Department of the job title, duties, and requirements and upon receiving a prevailing wage determination, then offers that wage to US workers in the recruitment process. Many employers not only have a principal set of requirements, e.g. Masters degree +3 years of experience, but also an alternate set of requirements, e.g. Bachelors degree +5 years of experience, that they will accept to attract a higher number of candidates and also sometimes because the non-US worker being sponsored might only qualify under the alternative requirements. Over the years, the Department policy had been to only consider the employer’s principal requirements for purposes of setting the wage to be assigned in understanding that principal and not alternative requirements should govern the wage level. Yet in one fell swoop, the Department reversed historical policy through the July 2021 round of FAQs. Such penalizes an employer that has a primary set of requirements for which it is willing to pay a prevailing wage by forcing it to now recruit such workers at a higher rate of pay if the Labor Department determines that the alternative requirements command a higher wage. Such makes little sense historically and logically. In addition, the upward forcing of wages does not serve the country’s best interests in the battle against inflation as it becomes part of an everlasting cycle of raised wages and raised product prices in response which largely contributes to the current rise of inflation in the US (7% from January 2021-January 2022). The author would be interested to know whether there is any attorney, firm, or organization with pending or impending litigation over the new policy.

  1. Why 10-year LPR instead of 2-year CPR cards for those married less than two years?

Section 216 of the INA states that an alien spouse is considered a conditional resident who obtains status by virtue of a marriage entered into less than 24 months and that this applies to both spouses of US citizens and permanent residents. (Please note that this does not include spouses immigrating with their spouses – only those who are petitioned on form I-130). We have anecdotally seen cases in which such spouses of permanent residents recently approved for adjustment of status were given 10 year green cards instead of 2 year conditional residence cards. It may be that the current open availability of the F-2A visa category (for spouses and children of permanent residents) versus the past backlog in the category may be causing some confusion among USCIS adjudicators since F-2A cases used to take well over two years, but such errors have capacity for damaging future effects, and we encourage officers to be more careful in noting the marriage date. It is academic that an I-751 petition to remove the conditional basis of residence status must be filed within the 90 days preceding the second anniversary of the issuance of conditional permanent residence. A conditional resident who fails to file is not considered to be lawfully in the country. In addition, such an applicant who later files for naturalization would be denied, and informed that he or she would still have to file the I-751 petition. Mayhaps USCIS will apologetically recognize its error and offer the individual an opportunity to file the I-751 out of time, but such a result would nevertheless cause the applicant much stress not to mention the loss of time, energy, and money in filing and paying for an unsuccessful citizenship application.

  1. Photos needed at naturalization oath ceremonies?

What do you ask your client to bring to USCIS for a naturalization interview? For convenience’s sake, we encourage them to take everything with them even though officers may only be interested in a few items. We also suggest bringing new passport size photos- if they wish- on the off-chance that an officer may ask. But we never thought that photographs would be requested at the swearing-in ceremony. Lo and behold, a client recently reported to us that at the oath ceremony for herself and husband, she was requested to provide passport photos while her husband was not. Such necessitated her having to exit the building, find a place that took photos (usually a few around federal buildings), and hustle back to the building in time for the ceremony. And she further informed us that the officer told her that “This happens all the time.” The moral appears to be that, if an applicant is willing to take new passport photos, it may be prudent to take the photos not only to the interview, but to the oath ceremony as well.

  1. New forms for April and new USCIS lockbox in Elgin, Illinois.

The penalty for filing old or noncurrent forms with USCIS is rejection of petition or application, which can be both embarrassing and damaging if there is a time deadline. The watchword is to always look at the form edition and compare it with the current form in use before filing. A list of recent changed forms that will come into play in April are:

  • I-864 and all its variations (A, EZ, W) – 12/8/21 editions as of 4/7/22 only.
  • I-829 – 12/8/21 edition as of 4/7/22 only.
  • I-824 – 12/2/21 edition beginning 4/7/22 only.
  • I-102 – 12/2/21 edition as of 4/7/22 only.

USCIS also announced the opening of a new lockbox in Elgin, Illinois, for which I-751s must now be filed for those residing in New York, New Jersey, and most of the East Coast. The address of the lockbox is:

(USPS)

USCIS
Attention: I-751
PO Box 4072
Carol Stream, IL 60197-4072

(FedEx and other couriers)

USCIS
Attention-I 751 (Box 4072)
2500 Westfield Dr.
Elgin, IL 60124-7836

In addition to taking I-751s, the lockbox in Elgin will also begin accepting additional workloads including N-400s and I-130s  in the coming weeks and USCIS expects the transition to Elgin to be completed by late summer 2022. Additionally, it expects to move the lockbox facility in Arizona from Phoenix to Tempe in Fall 2022. So keep your eyes open!