August 2022 – Alan Lee

Q&A’s published on the World Journal Weekly on August 28, 2022 1. I filled my I130 form on 11th sept 2019 and on 24 mar 2021 says we are actively reviewing. How long will this take as I have been waiting 2 years 2. Will a new marriage affect my naturalization application? 3. Petition I-140, E11 visa 4. Will the gap between F2 and H4 status affect my I-485 application? 5. Should I send my passport to USCIS when filing for TN visa extension with 1-129? 6. Can H-1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021? 7. Can an illegal immigrant be eligible for H-1B or other immigration or work visa?

1. I filled my I130 form on 11th sept 2019 and on 24 mar 2021 says we are actively reviewing. How long will this take as I have been waiting 2 years

I filled my I130 form in the California office on 11th September 2019 and i received an email in march saying ‘As of March 24, 2021, we are actively reviewing your Form I-130, Petition for Alien Relative, Receipt Number IOE0907413060’ i wanted to know how long will it take as i have been waiting for 2 years and have seen other people have filled in 2020 and had information and I have not

Mr. Lee answers:
You are unfortunately caught in a situation that many are experiencing at this time of the inconsistency of USCIS. We have seen many I-130 petition cases which were adjudicated subsequent to your filing in September 2019, and yet have some filed long ago that have not been reached. The processing times put out by USCIS have almost become a running joke as they have little relation to reality. Getting a message that USCIS is actively reviewing the case is encouraging, but there are many of these past messages in which the case was not adjudicated for a year or more.

2. Will a new marriage affect my naturalization application?

I have a green card, currently I’m overseas, about to get married to a non US citizen, just got the news my naturalization interview is in on month so I have to go back to US and get it, Would me getting married now could affect my interview, should I postpone my marriage till after I get my citizenship?

Mr. Lee answers:
Under normal circumstances, a new marriage while a naturalization application is pending has no effect upon the adjudication. The applicant would make the immigration officer aware of the new marriage at the time of the interview and give in a copy of the new marriage certificate.

3. Petition I-140, E11 visa

I am an international student and want to apply for E11(i-140 petition) visa along with i-485 form. The questions are: -Which status I would have if I applied but my F1 visa finished? – Can I include my husband to the petition? – If the petition will not be approved and my student F1 visa is ended what I should do?

Mr. Lee answers:
In your situation, you would be in a quasi-legal status in which you are allowed to stay during the time that the I-485 application is pending. You can also include your husband by having him fill out a separate I-485 adjustment of status application. If the petition will not be approved and your F-1 status is already expired, you would not have legal status anymore unless you appealed the petition denial and that was approved. You could conceivably be in the US unlawfully for a long period after that inasmuch as the Biden administration is not targeting most status violators for removal proceedings. At such point, you may wish to consult with an immigration lawyer for any further options.

4. Will the gap between F2 and H4 status affect my I-485 application?

My F2 status expired in May 2020, and I submitted H4 application together with spouse’s H1b in April 2020, but H4 were not approved until Sep 2020. Will the gap between May and Sep affect my 485 application? what material do I need to submit to show that I have maintained my nonimmigrant status all the time?

Mr. Lee answers:
It is difficult for me to envision that you would have a problem with status given the fact that you submitted your application on time even if H-4 application was not approved for several months thereafter. A copy of the receipt of filing or approval would show the date that your application was received by USCIS, and that should be sufficient evidence to a USCIS officer that you have been maintaining legal status.

5. Should I send my passport to USCIS when filing for TN visa extension with 1-129?

Or should I just send copies of the passport with all the documentation? Do they send me back a visa – sticker to place in the passport, or how do actually receive the visa in the passport if passport stays with me?

Mr. Lee answers,
When filing for a TN visa extension with USCIS, only a copy of the passport is required. Please note that USCIS does not do anything with the passport and only issues an I-797 notice of approval if it decides to favorably adjudicate the TN extension request. If you travel outside the US, you will still have to pass inspection with Customs and Border Protection when you reenter the US in which the officer will take a look anew at the merits of your request for TN extension.

6. Can H-1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021?

I am from India. I was never refused any visa till now. I have an i797A receipt of H1B. This is my first H1B so, technically, an interview is required for the first stamping. But, a new USCIS circular has come up saying that the first stamping folk on H1B can do a dropbox instead of an in-person interview. Is this true? I am not from a visa-exempt country. I am from India. This is my first work visa H1B approved last year in 2021.

Mr. Lee answers,
The Department of State has expanded the lock box program to allow discretionary waivers for even first-time applicants who have had a petition approved by USCIS, who are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. Please note, however, that the waiver of in person interview is discretionary and that the consular post may still request an interview. Otherwise, good luck.

7. Can an illegal immigrant be eligible for H-1B or other immigration or work visa?

Can an illegal immigrant entering the US and getting Parole and work visa under parole can be eligible for H1B or other immigration or work visa?

Mr. Lee answers:
Persons who have been illegally in the US must generally leave the country in order to obtain H-1B or other nonimmigrant work visas. Obtaining parole and a work visa under the parole does not wash away the illegality to allow such individuals to change status in the US for nonimmigrant visas. In deciding whether to try for a nonimmigrant visa, the potential applicant should also consider how long he or she was not legally here before obtaining the parole and work authorization. Unlawful presence in the country for 180 days or one year brings about bars from returning of three and 10 years respectively.

IMMIGRATION NEWS THAT YOU CAN USE – USCIS PRONOUNCES FINALITY TO H-1B SELECTIONS; CONSULAR PRACTICE; HAPPINESS OR SADNESS WHEN IJ’S DISMISS CASES; LITTLE TO DO IN OFFICE WITH SEPTEMBER VISA CHARTS; NRC NEWS; ETA 9089 FILLING WHERE NO SUNDAY NEWSPAPER.

As published in the Immigration Daily on August 23, 2022

USCIS pronounces finality to H-1B selections

USCIS has been giving case alerts for the past few days requesting H-1B petitioners and representatives to login to their H-1B registry accounts only to find that registry cases are now being marked “not selected”. To most practitioners, it appeared that there would not be a second selection for FY-2023. With the steady stream of non-selections, most petitioners/representatives had already seen the vast majority of their “submitted” cases move to “not selected”. Perhaps it was the sheer volume of candidates that caused the non-selection process to play out over a period of days. For FY-2023, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. That left 356,327 previously standing “submitted” registrations. USCIS ended the suspense this morning with an announcement that it had reached the fiscal year 2023 H-1B cap and had completed sending non-selection notifications to registrants’ online accounts. One would hope that USCIS in future years will make the announcement first so that registrants do not entertain false hopes of being selected.

Consular Practice.

It may be worth repeating that in the DOS/AILA (Department of State/American Immigration Lawyers Association) liaison committee meeting of 6/9/22, consul posts are the final arbiter of whether original signatures are required or not; there is a known issue with CEAC (Consular Electronic Application Center) requesting police certificates for some applicants who lived in another country for less than one year and if you are not required to submit a police certificate that CEAC is asking for, you should instead submit an explanatory comment (NVC (National Visa Center) follows the guidance in 9 FAM 504.4-4 (B) for collecting police certificates for countries in which individuals previously resided for a year); and to the complaint that, where a US citizen spouse is regularly residing overseas and an applicant is relying upon assets to establish eligibility for the affidavit of support, NVC is requesting W-2s and a joint sponsor –NVC answered that its processes for affidavit of support eligibility remain the same as per 9 FAM 601.14-6 d to request W-2s for the periods of employment if a sponsor submitted a copy of the tax return (1040) regardless of filing status or if the sponsor submitted an original tax transcript and is only using his or her income to meet the poverty guidelines. (We have found that explanations have been useful here).

Happiness or Sadness When IJ’s Dismiss Cases.

Are you happy or are you sad and does it depend upon what kind of case you have? TRAC reported on July 29, 2022, that DHS is failing to file NTAs (Notices to Appear) with the courts, and this is leading to one out of every six new cases being dismissed by the court. According to the article, Border Patrol agents are given the ability to use the immigration courts’ Interactive Scheduling System (ISS) to directly schedule an initial hearing. Supposedly, the actual NTA is created at the same time and a copy given to the asylum-seekers with the scheduled hearing location and time they are to show up in court noted on the NTA. CBP (Border Patrol is part of Customs and Border Protection) then only has to follow up with the task of seeing that the court also receives a copy of the NTA. The article opines that with the implementation of the court’s ECAS (EOIR and Appeals System) system of e-filing, this should make the process quick and straightforward (ha ha!). The article says that the failure to have this done suggests that there is a serious disconnect between CBP personnel entering the cases on an NTA and other CBP personnel responsible for submitting a copy to the court. The article further says that this is exceedingly wasteful of the court’s time and problematic for the immigrant and possibly the attorney if they show up at hearings only to have the case dismissed by the IJ because the case has not actually been filed with the court. Question – in weak cases, don’t you think that the alien and his or her representative will be jumping up with joy?

Little to Do in Office with September Visa Charts.

The one thing to be said about the September Visa bulletin is that it simplifies the job in many law offices of tracking the movement of cases occasioned by changes in the monthly charts. The September bulletin is a repeat from August with the only change being in China’s EB-5 (Immigrant Investors) final action date moving up one month to 12/22/15 and dates of filing one week to 1/1/16. It did give DV (Diversity Visas) cut off dates for October and finalized numerical limitations for FY-2022 as being 226,000 for the worldwide family sponsored preference limit, and 281,507 for the worldwide employment-based (EB) preference limit. It remains to be seen whether USCIS/US consular posts will be able to use up most of if not all of the EB numbers.

NRC News.

There was an interesting article in the Wall Street Journal that shed some light on the National Record Center (NRC), a place where USCIS has occasionally informed us that some of our cases are located that we are tracking at one time or another. NRC in Lee’s Summit, Missouri, is the central hub of storage, preservation, and overall management of A-Files prior to their long term, inactive storage in a NARA (National Archives and Records Administration) Federal Records Center and eventual permanent transfer to the National Archives. According to the article, NARA/National Archives is a federal storage facility that had all but closed for Covid-19; that the National Archives operates miles of limestone caves beneath the Kansas City Metro area, where millions of individuals’ immigration histories are stored. This article was occasioned by a suit for delayed citizenship revealing that citizenship officers are required to look through the histories when considering an immigration application; and that before the pandemic, USCIS routinely requested immigration histories from the archives in Kansas City without issue, but due to COVID and to minimize the time employees spent underground, the National Archives stopped responding to all but emergency requests. Finally in March, the archives fully reopened its facilities and as of May, it was processing all incoming requests. At the time of writing, there were 87,500 pending requests for immigration histories, down from a high of 350,000 in January.

ETA 9089 Filling Where No Sunday Newspaper.

In the 2022 AILA Spring conference and DOL’s Open Forum on the question of how employers should complete the mandatory Sunday newspaper advertisements where there is no Sunday newspaper of general circulation like in North Dakota where the newspapers have transitioned to weekend editions released on Saturdays, OFLC (Office of Foreign Labor Certifications) said employers should still place their Sunday newspaper ads in the weekend edition of the newspaper. On the 9089, the employer should say “no” in section I.c.8 requesting whether there is a Sunday edition of the newspaper; and then after including the newspaper’s name in section I.c.9, the employer should indicate “Weekend Edition – No Sunday Edition Available”.

BIA Affirms IJ Grant on Certification on Crime, Overbroad Statute, and Second Circuit Changed Law In Our Case

As published in the Immigration Daily on August 16, 2022

We are pleased to report that in an unpublished August 1, 2022, decision, the BIA affirmed on certification the favorable decision that we received from the immigration court in one of our cases terminating proceedings against a permanent resident with a Virginia burglarious tools possession conviction. The issue was whether our client had to show that someone was actually prosecuted under the facially overbroad Virginia statute for the type of conduct which was not an immigration crime under the federal definition.

Following the immigration judge’s initial decision not to terminate on the basis that we had not shown that someone could actually be prosecuted under the statute for a non-immigration crime, we again moved to terminate on the basis of changed law in New York that such a showing was not required. Matthews v. Barr, 927 F3d 606 (2d Cir. 2019). The IJ agreed and terminated proceedings, but certified her decision to the Board.

The Board concluded that “the respondent was not required to make the showing, as the statute was facially overbroad and this case is under the jurisdiction of the United States Court of Appeals for the Second Circuit.” It further said that “The Second Circuit has interpreted the realistic probability test as being inapplicable if a state statute is facially overbroad” and “as the Immigration Judge correctly recognized, the Second Circuit has extended its case law to depart from the Board’s requirement of prosecution to satisfy the realistic probability test.”

Although unpublished (not a precedent decision), the decision is important in understanding the Second Circuit (which has jurisdiction over cases in New York, Connecticut and Vermont) interpretation of law on this point and the Board’s acceptance of the Second Circuit’s stance in states under the jurisdiction of the Circuit Court.

Q&A’s published on the World Journal Weekly on August 7, 2022 1. Can my parents leave and reenter the US on their current B2 visa while their I130 (filed while they were in the US) is pending? 2. Citizenship 3. Live in US while IR-1 visa application is in process 4. Caught for shoplifting when I’m on H1b and now I am applying for H1b visa.

1. Can my parents leave and reenter the US on their current B2 visa while their I130 (filed while they were in the US) is pending?

My parents are currently in the US on a B2 (visitor) visa valid until 2024. I filed I-130s for them. Can they travel to China and reenter the US on the same B2 visa while their I-130 is being processed?

Mr. Lee answers,
Assuming that your parents have maintained their legal statuses while in the US and have the proper nonimmigrant intent to only visit and go back to the home country, they could still be allowed to reenter the country on their visitor visas even though they already have I-130 petitions filed on their behalf. They must of course tell the truth to the immigration officer at the port of entry if asked whether they are being sponsored for green cards.

2. Citizenship

We are permanent residents since December 2015, we traveled many time outside USA but every time we stayed less than 6 months. When can we submit to citizenship?

Mr. Lee answers:
The minimum stay in the US is at least half the time in the five years prior to the time that the naturalization application is filed. I note that even with the minimum, immigration officers may still give you a difficult time if they believe that you have not maintained residence in the US. The fact that you stay less than six months outside the US on your trips is only one factor. For example, a pattern of staying outside the US and only coming in for a few weeks or so between your trips outside could be seen as an abuse of your residence status.

3. Live in US while IR-1 visa application is in process

We applied for the IR-1 visa 6 months ago (I am American and my husband is Canadian) and still nothing. We are desperate to get to the USA. Is there any way for my husband to live in the US while this application is in process? We have property there already.

Mr. Lee answers,
As a Canadian, your husband may be able to visit the US for short trips during the time that his immigration case is pending. However, he is not entitled to live in the US at this time unless he has a visa that allows him to stay in the US for a longer period of time. If he decides to visit the US for short trips, he should be honest with US Customs and Border Protection officers if they ask whether he has taken steps to apply for his US immigration. In such case, the decision to admit him would depend upon whether they believe that he is only coming in on the occasion for a short trip.

4. Caught for shoplifting when I’m on H1b and now I am applying for H1b visa.

I had stamped H1b in 2007 but never utilized and came to US in 2011 on business visa(B1) & caught shoplifting. I have an arrest record with original charges of shoplifting and got arrested and agreed that I made a mistake knowingly, so judge asked me pay $336 as fine. I did pay that amount and got the paper as well which says that case got closed, then I left the US in 2011. Now I am planning to apply for H1B. Do I need to mention about shoplifting case now as it was 10 years old? My passport number got changed as previous one got expired. If i need to mention to USCIS then is there a chance my employer also gets to know about this? Because it will be a problematic if my employer gets to know about this. What are the chances of getting visa? I still feel sorry about what I have done :(. Thanks for all your suggestions.

Mr. Lee answers,
The H-1B petition does not ask about criminal history, so I assume that H-1B petition approvability by USCIS will depend upon the position and your qualifications. However, the visa application form, DS-160, does ask about any criminal conduct. You should of course answer truthfully.