Month: October 2022

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“

Q&A’s published on the World Journal Weekly on September 25, 2022 1. Can H1B in-person first interview at the US embassy in the home country be waived off? 2. Can a misdemeanor charge be withdrawn?

1. Can H1B 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.

2. Can a misdemeanor charge be withdrawn?

In May 2019, my daughter was charged with a misdemeanor for elder abuse…I am the victim. At the time I made a decision to go ahead and press charges on the advice of others and to hopefully get her help with managing her emotions. I now regret that decision after seeing all the trouble it has caused with regards to probation, employment, housing , etc. She is not a criminal, just a difficult time in her life. My question: can I get the charges dropped?

Mr. Lee answers:
While I am not a criminal lawyer, it would appear that you are too late to have the charges dropped as probation means that a final judgment has already been made on your daughter’s case. You may wish to consult with a criminal attorney to see if anything can be done at this time.