Month: July 2023

Q&A’s published on the World Journal Weekly on July 30, 2023: Article: 1. Where are all the I-601A cases going? 2. Watch out for distance learning. Q&As: 1. After receiving your permanent residence card, you do not need I-131 or I-765 2. It is a common situation that combo cards are not adjudicated together for all members of the family

Article:
1. Where are all the I-601A cases going?

We have had a number of I-601A provisional unlawful presence waiver cases transferred lately, and wonder whether they are headed to the location provided in the transfer notice, the Potomac Service Center, or if they will be headed ultimately to the new virtual remote HART (Humanitarian, Adjustments, Removing Conditions, and Travel Documents) Service Center that is opening at this time in order to speed up processing as a result of pending litigation. Of special interest to us is that the remote center will concentrate on I-601A’s as well as “bona fide determinations” for U visa applicants (I-918), VAWA petitions (I-360), and asylum reunification petitions (I-730). In an article written by a senior fellow at the American Immigration Council, Dara Lind, “New USCIS Center Is Good News For Some Of Its Worst Backlog Victims”, Immigration Daily, 4/19/23, she said that the Council documented in a recent class-action lawsuit that processing times for I-601A grew sixfold from 2017 to 2022, and that of the two service centers handling the waivers, it is taking three years at one center and 3 ½ in another one to decide 80% of the waivers. Attorneys in the lawsuit estimate that the class of people who have waivers pending for more than 12 months would include at least 70,000 people. In favor of the ultimate destination being HART, it otherwise makes little sense to transfer from the Nebraska Service Center to the Potomac Service Center since both have a current published processing time of 44 months for 80% of the cases.

2. Watch out for distance learning.

During the pandemic, USCIS was operating under Covid flexibilities under which distance-learning had been allowed in excess of the regulations under 8 CFR 214.2(f)(6)(i)(G) which states:

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

In an ICE SEVP Broadcast Message on 5/11/23: “Termination of SEVP COVID-19 Flexibilities”, ICE said that because of the termination of the Covid public emergency on 5/11/23, the SEVP Covid-19 guidance terminated on that day. Active F and M nonimmigrant students are able to complete the 2022-23 academic year under Covid-19 flexibilities through the 2023 summer semester. But active F and M nonimmigrant students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits for the 2023-24 academic year. Initial or reentering students must enroll in programs complying with the regulatory limits for distance learning. This must give pause now to those students wishing to enroll in schools offering a tenuous connection to physical classroom instruction as USCIS may now be looking harder at these schools’ arrangements for instruction following the ending of the pandemic emergency.

Q&As:
1. After receiving your permanent residence card, you do not need I-131 or I-765

A reader asks:

Eb-1A and I-485 show that new card is being produced, but I-131 and I-765 show that case was received and fingerprints taken respectively. In this case, is there anything I need to do? Will I-131 and I-765 petitions be canceled automatically?

Mr. Lee answers,
It appears as if you received an email or emails from USCIS that your green card is being produced which although unofficial can usually be relied upon. It also appears that you have checked the USCIS online status system and the ancillary applications of I-131 advance parole and I-765 employment authorization application, which shows that the applications have been received and fingerprints taken. The online status system is only as current as the person inputting the data, and it would appear that no action has been taken although the information may not be current. You do not have to do anything at this point. USCIS should at this juncture close or deny both of the ancillary applications as it is granting your permanent residence. We have seen that sometimes when the agency personnel are working on the green card application and ancillary applications at the same time, the ancillary applications are approved as they are being worked on by other officers. Please note that if you receive approvals of advance parole and employment authorization after receiving your permanent residence card, they cannot be used as you are now in another status.

2. It is a common situation that combo cards are not adjudicated together for all members of the family

A reader asks:

I applied for EB-1B, and the principal and dependent had fingerprinted at the end of January. The main applicant’s combo card was approved at the end of February, but we have not heard anything on the dependent’s case yet. Is it normal? Is there a way to solve the situation?

Mr. Lee answers,
It is unfortunately a common situation that combo cards are not adjudicated together for all members of the family who apply for them. The solution is either to wait until the published processing times for 80% of adjudications in the categories of EAD and advance parole have been reached to trace the case through the USCIS Contact Center (1-800-375-5283 or one of the other ways to contact the Contact Center), or prove that the dependent meets the expedite criteria of the agency. The current expedite guidelines 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;
  • S. 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.

I note that we had a recent case in which the dependent received the combo card prior to the principal applicant, who had a more pressing need for it, but did not meet the expedite criteria. The principal did finally receive the card, just in time to keep working for the company without a break.

Article: CAN THE SCOTUS CASE, US V. HANSEN, HELP TO PROTECT ALIENS WHO MAY BE DEEMED INADMISSIBLE FOR ALIEN SMUGGLING?

As published in the Immigration Daily on July 25, 2023

The Supreme Court on June 23, 2023 by 7 to 2 vote, Amy Coney Barrett writing for the majority in United States v. Hansen, No. 22-179 (US 2023) said that his acts of encouraging noncitizens to come to, enter or reside in the US illegally through a fraudulent adult adoption program were not protected by the First Amendment right of free speech. The Ninth Circuit had ruled favorably for Hansen saying that the statute criminalized even commonplace speech such as telling immigrants who are in the country illegally that “I encourage you to reside in the US” or advising them about available social services. But in a narrow ruling, Justice Barrett said that the provision “forbids only the intentional solicitation or facilitation of certain unlawful acts,” not including protected speech. In looking back on statutory history, she pointed out that then, as now, “encourage” had a specialized meaning that channeled accomplice liability, and when Congress later amended the provision, it added “induce”, which also carried solicitation and facilitation overtones. The question is what effect this ruling may have upon cases in which applicants for immigration such as parents of those who entered the US illegally in the past are now accused of alien smuggling –that they encouraged their children to illegally come to this country and are thus inadmissible to immigrate. The inadmissibility statute, 8 USC § 1182 (a)(6)(E)(i), INA § 212(a)(6)(E)(i), defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” It tracks closely with the Hansen punishment statute 8 USC § 1324(a)(1)(A)(iv), INA § 274(a)(1)(A)(iv) imposing criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” We have seen cases in the recent past in which parents have been denied immigrant visas and been required to seek waivers based upon consular officers’ suspicions that they encouraged or helped their child to illegally come to the States. This has even occurred in situations in which a widow explained that the assistance came from her dead husband only and where both parents vehemently denied ever assisting the son or daughter. Is there a Hansen argument here that USCIS and consular officers are precluded from using the alien smuggling provision for encouragement or inducement unless they have well-founded suspicions based on accomplice liability or solicitation and facilitation? In other words, that the people did more than verbally encourage individuals to enter the US illegally. The Hansen case was of interest to the Supreme Court because of its intersection with First Amendment rights, but that case involved a US citizen and not an alien. The Court earlier ruled in Kleindienst v. Mandel, 408 US 753 (1972) that noncitizens are not entitled to First Amendment protections. However, Justice Barrett made a clear ruling not based upon the First Amendment, but upon statutory interpretation, which should be just as applicable overseas to an alien as to a citizen of this country.

Q&A’s published on the World Journal Weekly on July 9, 2023 – 1. Get Your Green Card Faster with Cross-Chargeability 2. O-1 Visas Does not Have a Dual Intent Provision 3. PERM now Takes Approximately 9-10 Months for Analyst Reviews 4. Applying for EB-1B, Job Opportunities and I-140 Employers are Indispensable

1. Get Your Green Card Faster with Cross-Chargeability

The situation in Silicon Valley this year is so bad, that I, without green card, am afraid of being layoff. I want to know if there is any way to get my green card quickly. My current background is: I graduated from a master program in the summer of 2019, and I got selected for H-1B before graduation. I started to apply for a green card on the first day I joined Amazon, but I didn’t get the I-140 approval until August 2021. I don’t know when I can get my green card.

A colleague pointed out two ways for me: 1. Marry a boyfriend who is not born in mainland China, and use cross-chargeability to jump in the queue to avoid waiting in priority date to be current. The advantage is that I don’t need to spend extra money and time. The disadvantage is that we are all a bit perfectionist. We want to experience the beautiful moments of life such as engagement and wedding, and we don’t want to rush just to get a marriage license. I don’t have a PhD degree and only have three papers, which with less than 100 citations. Is there any hope for me to apply for EB-1? 2. Per my current priority, when will I get my green card? 3. If I can do cross-chargeability, when can I get the green card?

Mr. Lee answers,
Cross-chargeability is used to assign the country chargeability of one spouse to the other where the dependent spouse is from a country with a more favorable immigrant visa availability in the petition category. For example, an applicant with EB-2 or EB-3 category approval from China is facing immigrant visa backlogs of 6/8/19 under EB-2 and 4/1/19 under EB-3 (June 2023 visa bulletin). If married to a spouse from a country like Japan or Taiwan, the backlog for EB-2 is much lesser with visa availability open to those who began EB-2 cases before 2/15/22 and EB-3 before 6/1/22. This presupposes a bona fide marriage of course, and not a marriage done as a favor, or as part of the conspiracy for the other party to gain immigration while the principal gains faster immigration. With cross-chargeability and your current priority date, the time to obtain permanent residence in a normal situation would depend upon the speed of the USCIS service center handling the I-485 applications and whether it has questions concerning your applications. The two service centers handling the bulk of the cases for employment-based adjustment have posted times to discourage persons from inquiring – the Nebraska Service Center has a posted time of 27 months, and the Texas Service Center 42.5 months. These timelines hardly seem realistic at this point and should be taken with a large grain of salt. To your other questions, there does not seem to be that much hope for you to apply for EB-1 given your described qualifications. I cannot estimate how long it would take for you to process your case without cross-chargeability as you did not give your priority date nor petition category in your fact situation – however, your priority date would have to become current for filing under your petition category before you could file for an adjustment of status application. At that point, you would look at the current processing time of USCIS for an estimate of how long your case would take to be processed to finality.

2. O-1 Visas Does not Have a Dual Intent Provision

My EB-1A was approved, and it may take more than a year to wait for the interview at the Guangzhou Consulate. Is there any way to go to the United States ahead of time? I heard it would be okay if it was an O-1 visa? In addition, if I land in advance, do I still have to go back to China for a Consulate interview after I receive the interview notice?

Mr. Lee answers,
If you qualify under a nonimmigrant working visa, you may be able to go to the US ahead of the time that you would have to wait for the interview in Guangzhou. As an EB-1A, your qualifications are most likely enough to qualify you for the O-1 visa. I do not know whether your EB-1A was petitioned for by an organization or whether you self-sponsored yourself, but kindly note that O-1 visa sponsorship requires a petitioning organization or agency. If you have a petitioning organization or agent, then you may be petitioned and able to come into the US under the O-1 visa. One other note is that an O-1 visa unlike H-1B specialized occupation and L-1 intracompany transferee visas does not have a dual intent provision under which an individual’s intent to immigrate is not relevant to the adjudication. Even if O’s are in a gray area of intent, most American consulates will issue O-1 visas even where the I-140 petition has already been approved assuming that there are no ineligibilities. If you are in the US pursuant to an O-1 visa, it would perhaps be more courteous and correct for you to return for the interview in Guangzhou instead of attempting to adjust status in the States.

3. PERM now Takes Approximately 9-10 Months for Analyst Reviews

I have filed a PERM, but it hasn’t yet been approved, and my I-140 is not yet approved. For family reasons, I need to relocate to an office in another state. My questions are: will this have any impact on my pending PERM? Some lawyers said that the current PERM would continue to go on, the priority date is locked as the I-140 was filed, and then PERM needs to be done again at the new address. My PERM has filed almost 9 months, why I have not heard back anything? Is the company cheating on me? what do I do?

Mr. Lee answers,
PERM labor certification applications test whether there is availability of US workers in a certain area. It is clear from your questions that the recruitment has already been conducted, the application filed, and the move in question a future move. When a job relocates to a state other than what was put down as the work location in the PERM application, the application usually needs to be done all over again. An exception may be where the job is the same, the employer is the same, and the new position is within commuting distance of the worksite address in the application. Assuming that the labor certification application is approved and the new worksite within commuting distance, your company’s attorney would make the argument for the validity of the labor certification to USCIS in the I-140 petition. To your query as to why there is no news although your PERM application is almost 9 months old, it appears that the Department of Labor is currently taking approximately 9-10 months to reach labor certification applications for analyst reviews.

4. Applying for EB-1B, Job Opportunities and I-140 Employers are Indispensable

I have a doctor degree in Phys from the West Coast. I have been working in New York after graduating at the end of 2020. My citations are 900+, had some news reports, and 2 review papers. After graduation, I did not write any articles. Recently, I have been asking for magazines’ editors to get some review opportunities. In the past two years, I didn’t think about the green card, and I just wanted to apply for EB-1A recently. The lawyer said that my articles are relatively old and asked me to apply after I have had new articles published. However, because I changed my field, it is more difficult for me to publish articles again. Is there any chance for me to get my NIW approved? How about EB-1B?

Mr. Lee answers,
It is impressive that you have 900+ citations with news reports, and two review papers. It is understandable that the lawyer would be concerned and taking on an EB-1A application for you if your article is relatively old. One of the criteria for EB-1A is that you have sustained national or international acclaim. Insofar as NIW is concerned, having the PhD is certainly helpful, but you must also be able to convince USCIS that whatever endeavor you will be working on is substantial and in the national interest; that you are well-positioned to advance the endeavor; and that on balance, it would be beneficial to the United States to waive the job offer and thus the labor certification requirement. For EB-1B, you need to fulfill at least two criteria of which your articles, news reports, and review papers may be able to satisfy – however, EB-1B is not a self -sponsored petition, and you must not only be able to prove that you are an outstanding researcher, but also that the petitioning organization has a research component in which you will be performing research.  Although a labor certification is not required in EB-1B cases, a job offer and petitioning I-140 employer are necessities.