Month: December 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.