Month: April 2022

Q&A’s published on the World Journal Weekly on April 17, 2022 1. Can the spouse and beneficiary of a Green Card applicant apply for a J1 visa herself after the I-140 is approved but prior to completing the DS-260? 2. Employment Authorization Document 3. Pending I-130 & F1 4. How can I Change marital status with USCIS 5. My sister is a US citizen. Can she petition for me for adjustment of status? 6. Non-immigrant travel from Mexico back to US 7. How fast can I work with a tourist visa? 8. I am a citizen but my parents entered illegally if I join the army can they get their citizenship?

1. Can the spouse and beneficiary of a Green Card applicant apply for a J1 visa herself after the I-140 is approved but prior to completing the DS-260?

Me and my wife are both Spanish citizens living and working in the USA. I have recently had the I-140 approved via the EB2 NIW, where I have listed my wife as a beneficiary. We will undertake Immigrant Visa Processing in Spain, and our case is already in the National Visa Center, but have not yet paid the fees nor completed the DS-260 form. My wife is a research scholar with a valid DS-2019 form, but with expired J1 visa stamp. She has the opportunity to go to Spain in the coming weeks and renew her J1 visa stamp, but we wanted to know if doing so might jeopardize the IVP (even if we do not pay fees and complete the DS-260 form until after she has renewed the J1 visa stamp). Is it possible that she might be denied either the J1 visa and/or the Green Card if she first renews her J1 visa stamp and afterwards we pay the IVP fees and complete the DS-260 form. 

Mr. Lee answers:
In applying for a discretionary visa like J-1, there are generally no guarantees that the visa will be issued by the consulate or embassy. Although your wife is not the direct beneficiary of the I-140 petition, she may be asked whether you have filed any immigration petitions. A good factor for your wife to point to if such comes up is that you have elected consular processing instead of an adjustment of status application. On the question of an impact to the immigration visa process, your wife’s applying for the J-1 visa would not impact it as long as she does not make any misrepresentations on form or speech before the consular officer. Under recent guidance, a dependent family member does not have to state on the nonimmigrant visa form that he or she has applied for a visa petition. You have indicated the better strategy if deciding to apply for the J-1 visa to make the application first and then continue paying the IVP fees and completing the DS-260 form.

2. Employment Authorization Document

I applied to renew my EAD in September last year. I haven’t received it yet, EAD expired as well as the extension. I’m losing my job in a few days.

Mr. Lee answers,
Unfortunately, USCIS has a backlog on EAD extensions which it is working to whittle down. It will only entertain and expedite under the following circumstances: If you are a healthcare worker Who has a pending Employment Authorization Document (EAD) renewal application (Form I-765, Application for Employment Authorization); and Whose EAD expires within 30 days or less, or has already expired. USCIS may also consider an expedite request in your case if it meets one or more of the following criteria or circumstance: 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 to: Timely file the benefit request, or Timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons.

3. Pending I-130 & F1

My mom is 65 years and single. She is a green card holder and filed I-130 for me in July 2019. Now I want to go through a student visa. Will it be successful or denied?

Mr. Lee answers,
If you are interviewing for a F-1 visa at an American embassy or consulate, the chances are that you may have a problem obtaining the visa as it is one that requires nonimmigrant intent. The decision will be up to the American Counselor office who interviews you taking into account whether he or she believes that you will return to the home country following your time of study in the U.S. if your permanent residence case has not been approved by that time. If in the US and you are seeking change of status, the chances are better in our experience. 

4. How can I Change marital status with USCIS

I am a legal resident and I put in a petition (I-130) for my daughter in 2017. It is approved and sits with NVC. During this time I got married and would like to change my name. Does this affect that application? Can I legally change my name? do I have to notify USCIS of this change?

Mr. Lee answers,
The change of name should not affect your petition for your daughter. As the case is sitting at the NVC at this time, you can notify the NVC of your name change with a copy of your marriage certificate. You do not have to do anything with USCIS as your daughter’s case is no longer in its offices.

5. My sister is a US citizen. Can she petition for me for adjustment of status?

I am living in the US and been here since How long will it take to get a green card?

Mr. Lee answers:
Your sister can apply for you while you are here in the States, but her petition does not give you any rights to stay in the country while your case for immigration is pending. For the month of April 2022, the F-4 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 15 years currently. 

6. Non-immigrant travel from Mexico back to US

I’m the spouse of an E2 visa holder and need to leave the country to extend my i-94. I was thinking of traveling to Mexico and re-enter the US. Will there be any issues entering the US via air as a non-immigrant during the pandemic? 

Mr. Lee answers,
I am not aware of any immigration barriers that would keep you from going to Mexico by air and returning. You should of course be aware of all the latest Covid-19 protocols of the two countries. Finally, you should check with your attorney to see whether a trip to Mexico and back will actually extend the I-94 that you presently have.

7. How fast can I work with a tourist visa?

I am planning to visit the States with a tourist visa but thinking of getting employment before returning. Making some cash to cater for my other needs.

Mr. Lee answers:
A tourist visa in the United States is not a working visa, and you cannot apply for working privileges in the US based on a tourist visa. Any work done in the US for an employer or most self-employment situations is considered unlawful. 

8. I am a citizen but my parents entered illegally if I join the army can they get their citizenship?

I am a citizen of the United States but my parents entered the country illegally. If I join the army could they get citizenship or a green card.

Mr. Lee answers,
There is a possibility that your parents may be able to adjust status if you join the Army. USCIS has been receptive to allowing parents of service members who entered the country illegally to obtain parole in place for purposes of adjustment of status to permanent residence.

Recommendations to Improve H-1B Lottery System by Arthur Lee, Esq.

As published in the Immigration Daily on April 14, 2022

The H-1B lottery selection system has proven to be a time and cost saver for employers trying to hire H-1B cap workers during a fiscal year, but it has room for significant improvement. On the numbers, in FY2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations in its first round of selections in March. The 87,500 was projected to be sufficient to meet the H-1B numerical allocations. Then, on July 29, 2021, USCIS announced a second selection of 27,717 resulting in a total of 115,217 selected registrants. This suggests that of the 87,500 initially selected, employers did not submit petitions or the petitions had irretrievable problems for 27,717 of the selected. It is difficult to imagine a vast quantity of defective petitions, so the bulk of the number would have been non-submitted petitions. This represents a rate of 31.7% of all selected registrants. Then on November 19, 2021, USCIS conducted a selection of 16,753 registrants, suggesting that 60.4% of registrants selected in the second round did not respond or petitions had irretrievable problems. These percentages might not factor every consideration that USCIS has taken or will take in conducting further lotteries, but are nonetheless illustrative of the non-response/problematic petition trends in the H-1B selection process.

While the current selection system makes much more sense than the past one of instructing petitioners to file full petitions for their prospective beneficiaries prior to selection, there are some frustrating flaws to the new system. Since it is much cheaper and less time-consuming to enter a potential H-1B employee into the lottery than submitting a full petition on his/her behalf, it stands to reason that there are much higher numbers of potential H-1B registrants to select from under the new system. In FY2022, USCIS received 308,613 registrants, as opposed to the 201,011 petitions to select from in FY2020—the year before USCIS switched to the H-1B lottery registration system—representing a 53.5% increase in the selection pool due in large part to what the author believes is the new system. After selections are made, non-response/problematic case rates are understandably high due to the relatively low level of investment employers made in registering their potential H-1Bs—all they needed to do was enter basic information into an online form and pay $10 per potential worker. Those who are not selected in the initial lottery must wait until a potential second or third lottery (July and November in FY2022). In FY2022, 72% of registrants were not selected in the initial lottery. Therefore, while approximately 31.7% of the initially selected registrants did not file or filed problematic petitions, the 72% that were not selected had to weigh their options as they would not find out if there would be a later round of selections until such happened in July. Many of the 72% were not in the fortunate situation where they could wait to be selected as some had expiring statuses and were compelled to take other legal measures to stay lawful, become illegal, or go abroad. A non-selection in the first round of H-1B lotteries often also has compelled employers to change their minds about sponsoring a beneficiary if he/she was selected in a future round, especially if expiring statuses or visas prevent H-1B candidates from working with their employers until the future selections are made. As such, by the 2nd selection round in July 2022, many registrants had already moved on, as evidenced by the approximate 60.4% non-response/problematic H-1B rate. This lack of response compelled USCIS to conduct a third lottery in November 2021 for 16,753 registrants—for a process that should in theory have allowed for adjudications of all H-1B cap workers for work beginning on October 1 of the same year.

Clearly, at the heart of the problem are the following: (1) the barrier for entry is too low for employers such that the bulk of approximately 31.7% of those selected choose not to file H-1B petitions; (2) registrants not selected in the first lottery round do not know whether they will be selected in a later round (or if there will be another round); (3) plans very often change for those who are not selected in the first round, especially if they would have to wait until July or later to see if they are later selected—a selection in July or November is not equal to a selection in March. While DHS notes that there may be monetary fines and criminal penalties under 18 USC 1001(a)(3) for employers who engage in a pattern and practice of submitting registrations for which they do not file petitions, the numbers show these penalties do not work as an effective deterrent for registering and failing to file.

Is there a solution? The author believes that fortunately, the H-1B lottery system can be significantly improved by implementing one or more of the following steps:

  1. Select more registrants on the initial lottery. In FY2022, USCIS selected 87,500 in the initial H-1B lottery. Even if all 87,500 properly filed H-1B petitions, it is unlikely that USCIS would have allocated the mandated 85,000 cap H-1B visas based upon that selection alone. Even with the post-Trump era H-1B denial rate of 4%, the expected number of H-1B approvals would have been 84,000 assuming that all 87,500 successful registrants submitted petitions. Therefore, in order to avoid having to conduct a second or third lottery where interest by a large percentage of the pool has waned, USCIS should allow more room for error. It is inevitable that a significant percentage of those initially chosen will not submit petitions or will submit problematic petitions. Looking at the above statistics, a number incorporating the first plus second rounds (115,217) or somewhere in that range would likely be a good number of registrants to select in the first round. Did USCIS do something like this in March 2022? Hopefully, lessons were learned from last year.

  2. Increase the H-1B registration fee. The $10 nominal rate is a big part of the problem. Employers submitting $10 per reservation simply do not have enough skin in the game and can decide not to file petitions without much consequence unless DHS finds that they are engaging in a pattern and practice of submitting fraudulent registrations. A payment of $100 per registration would be more appropriate and deter employers from submitting registrations unless they are serious about filing H-1B petitions. That is certainly cheaper than employers filing whole petitions before the advent of the registration system and would help with USCIS’ poor financial status. To soften the blow of the larger fee, USCIS can implement a system whereby it deducts the $100 from the I-129 filing fee for successful H-1B cap registrants, and/or returns a portion of the registration fee for unsuccessful registrants.

  3. Implement an “opt out” button on the registrants’ myUSCIS portal. Petitioners should be given the choice to opt out of their registrations if they choose not to move forward. The infrastructure to implement a button appears to be already mostly in place in the myUSCIS portal. A button to opt out can be programmed onto the myUSCIS page for H-1B registrants so that they can opt out at any time. A perfect place to implement a “withdraw registration” button is under the “view notice” button on each row for selected beneficiaries. A “withdraw registration” button should bring the H-1B registrant to a page listing all ramifications of withdrawing a registration and confirming whether the petitioner really wants to withdraw. Upon implementing this button, USCIS should run selections at the end of each month to make up for any shortfall. This solution should not come at a significant cost to USCIS, as much of it can be automated, and it would help USCIS reach its H-1B quota earlier by providing more selections to those who are truly interested in petitioning earlier, and while they are still interested in filing H-1B petitions. Implementing this solution would also greatly benefit H-1B employers and prospective employees as truly interested H-1B petitioners would have greater likelihood of being able to file an H-1B petition, and employers and prospective H-1B employees would have more clarity earlier in H-1B season as to whether they have been selected or may be selected in a more amenable timeframe.

The implementation of the above recommendations should in the author’s opinion improve the H-1B registration system.

IMMIGRATION NEWS THAT YOU CAN USE: CAP H-1B SELECTION PROCESS ANNOUNCED COMPLETE; EB-5 REGIONAL CENTER REAUTHORIZATION/REFORM LAW TO BEGIN IN MAY; TITLE 42 NEWS INCLUDING UKRAINIANS; NO MORE PAPER I-94S AT THE BORDER; THE DEPARTURE OF EXPANDED EXPEDITED REMOVAL.

As published in the Immigration Daily on March 31, 2022

  1. Cap H-1B selection process announced complete – start the petitions!

USCIS announced on 3/29/22 that the H-1B selection process was completed and that online accounts would either show submitted, selected, denied, or invalidated failed payment. Petitions can be submitted beginning April 1 and petitioners will have at least 90 days to submit petitions; a petition must be properly filed with the correct service center and within the filing period indicated on the registration selection notice; and that petitioners must include a printed copy of the selection notice with the petition. Other parts of the announcement were that USCIS will not be using any prepaid mailers, [e.g. FedEx labels], to send out communications or approvals. Also, that issuance of I-797 receipts may be delayed – that if more than 30 days pass since confirmation of delivery and no receipt, petitioners should contact the USCIS Contact Center for assistance.

  1. EB-5 regional center reauthorization/reform law to begin in May.

A happy development has been the reauthorization of EB-5 regional centers for five years until September 30, 2027 in the “EB-5 Reform and Integrity Act of 2022”. The legislation goes into effect on 5/14/22, 60 days from the President’s signing on 3/15/22. There will likely be a number of changes in the May or June visa charts. Among the expected developments are backlogging of the China EB-5 direct investment category and a long date for China regional center cases. Some of the important features are carveouts for visa numbers – 20% for rural cases, 2% infrastructure cases in which federal, state, or local governments contract for EB-5 financing for the maintenance, building, and improvement of infrastructure, eg. private municipal bond deal, and 10% for areas of high unemployment. If these categories are more favorable than others for natives of China, they may feel inclined to invest in these types of projects. TEA (Targeted Employment Area) investment for rural and high unemployment areas will go up to $800,000 and the same amount will apply for an infrastructure project (which does not have to be in a TEA), and all others $1,050,000. Every five years beginning in 2027, the investment amounts will rise based on the change in the CPI (consumer price index). Federal and not the state will now determine whether the proposed area is in a high unemployment area or infrastructure project. A high unemployment area with 150% of the national rate of unemployment will be the census tract in which the NCE (new commercial enterprise) is principally doing business, and any adjacent census tract – the so-called “doughnut” approach. All present pending and filed cases will be grandfathered to the point that any future lapse in extending the regional center program will not affect adjudication and visa allocation. For investors in the US from countries with open quotas, they will be eligible to file concurrent I-526/I-485 applications. The dangling petition situation in which legislative nonrenewal of I-526 petitions filed up to June 30, 2021, left them hanging in uncertainty as to whether the cases could continue has been mostly alleviated by a provision that government agencies must continue adjudicating petitions and allocating visas to regional center investors who filed I-526 petitions up to September 30, 2026.

  1. Title 42 news including Ukrainians.

Title 42 has been big in the news this month with the Administration giving case-by-case exceptions to Ukrainians and with two court cases, one with the Court of Appeals in Washington DC and the other with a District Court in North Texas. CBP came out with a memorandum on 3/11/22 announcing exceptions under Title 42 for Ukrainians – that the public safety pandemic concern that has been used to turn back migrants without allowing them a chance to apply for asylum, will basically not apply to Ukrainians at land border ports of entry – “that CBP is authorized, consistent with the Title 42 Order, on a case-by-case basis based on the totality of the circumstances, including considerations of humanitarian interests, to except Ukrainian nationals at land border ports of entry from Title 42.” Who is eligible? “Those “who are in possession of a valid Ukrainian passport or other valid Ukrainian identity documents, and absent risk factors associated with national security or public safety, may be considered for exception from Title 42 under this guidance.” Those granted an exception can be processed for any disposition “including urgent port of entry humanitarian parole on a case-by-case basis.” This may precipitate a rush of the southwestern border by Ukrainians. In the DC case, Huisha-Huisha v. Mayorkas, the DC court made the ruling that although the executive is allowed to use Title 42 to expel persons attempting to enter the US without an asylum hearing because of pandemic concerns, he is not allowed to send them back to countries where they face persecution. The Administration had been sending many back to countries of persecution. In the Texas case, Texas v. Biden, the judge said that the Administration could not continue exempting children from Title 42. The Title 42 ban is set to expire in early April and the question is whether the Administration should continue extending it. One writer said that stopping it would solve both problems. The Biden Administration appears to be leaning in that direction even though such action would promote a run on the border and perhaps cause problems in giving a midterm election line of attack for Republicans. News reports today indicate that the Biden Administration is willing to take the risk and lift Title 42 restrictions in May.

  1. No more paper I-94’s at the border.

On another border issue, CBP gave notice on 3/18/22 that it will no longer be issuing paper I-94’s for land crossings, but only electronic I-94’s. So we should not be surprised from now on that persons crossing the border on TN and other statuses will no longer have paper I-94’s.

  1. The departure of expanded expedited removal.

The Federal Register notice which expanded expedited removal, 84 FR 35409 (7/23/19) was rescinded on 3/21/22 by another notice in the Federal Register, 87 FR 16022 (3/21/22). Now we are back to the future. Under expanded expedited removal, the previous boundaries of only using it when undocumented immigrants were discovered within 100 miles of the Mexico/Canada borders and being here less than two weeks were expanded by Mr. Trump so that it could be used against undocumented immigrants discovered in any location in the country and they would have to prove that they were here for at least two years two years before being exempted from expanded expedited removal. Although not used much, the threat of it caused panic to many members of the immigrant communities.