Month: January 2024

IMMIGRATION NEWS THAT YOU CAN USE –MATTER OF STOCKWELL BROUGHT BACK TO BEGINNING STATE; ANOTHER BIA DECISION AFFIRMS RIGHTS OF CONDITIONAL RESIDENTS THROUGH MARRIAGE

As published in the Immigration Daily on January 31, 2024

  1. Matter of Stockwell Brought Back to Beginning State.

Looking at the USCIS policy manual recently, it now entirely embraces Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), in which a person receiving conditional residence can marry someone else and that person can sponsor for permanent residence without having to go into the immigration court. USCIS had taken this route before, but complicated it later by saying that these applicants would have to go through the court, but now is coming back to the idea that USCIS can adjudicate.

This applies where USCIS has terminated the conditional residence for failure to timely file form I-751. Previously USCIS said that conditional residence could only be terminated by a formal notice by the agency. In the policy manual now, persons who file for adjustment of status from another marriage after the second anniversary of obtaining conditional residence, may be eligible to adjust on the new basis regardless of whether USCIS issues a notice of termination of status before the individual files an adjustment under the new basis. USCIS is now conceding that the INA provides that a conditional residence status terminates as a matter of law as of the second anniversary of the noncitizen’s lawful admission for resident status.

  1. Another BIA Decision Affirms Rights of Conditional Residents through Marriage.

The BIA decided in a recent ruling, Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), to solve the problem of persons who do not have the above situation of another marriage in the wings; whom DHS believes have non-bona fide marriages, but in going to immigration court, have their cases terminated, and are left in legal limbo without lawful status. In Ferreira, the immigration judge (IJ) first concluded the DHS had not established removability and terminated and when the respondent filed another I-751, it was denied by USCIS and removal proceedings re-initiated. The IJ then terminated a second time because DHS could not find the file in two hearings. The BIA ruled that given the significance of a respondent’s interest in securing review of a denial of an I-751, an immigration judge should ordinarily review the denial of a form I-751 upon the request of the respondent.

Alan Lee, Esq. Q&As published on the World Journal Weekly on January 28, 2024 : 1. Applying EAD Encounters Two Situations 2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem 3. For an Expiring Combo Card, You Can Make New Applications 4. Premium Processing Application lockbox Address 5. Mailing Address and Residential Address

1. Applying EAD Encounters Two Situations

A reader asks:

My PD is at the end of July 2022, and now EB1 Form B can be submitted to I-485 to apply for EAD. Now I encounter two situations and want to ask for advice respectively.
1. My wife came to the United States on a J-2 visa from 2004 to 2006, and the old passport she used has been lost. She then returned to China and came to the United States to study again in 2020, using a new passport. Now that I-485 is submitted, a copy of the previous passport must also be submitted, and the old passport has a stamp for entering and exiting the United States, which can prove that the J-2 meets the two-year service requirement of the home country. However, now the old passport is lost. How should I deal with this situation?

2. My wife is currently a student with an F-1 visa and is expected to graduate by the end of next year. She is currently being interviewed for an intern in the summer next year. If I submit the I-485 together with me now, if I want to intern next summer, will I have to activate the I-485 combo card? She can no longer apply for an OPT EAD card. If I submit the I-485 separately now and submit it to her when the deadline is approaching, she might be able to apply for OPT EAD first and then get the combo, or should I submit the I-485 together now while she is intern? Also use I-485 EAD?

Mr. Lee answers,
To your first question, your wife can present a copy of the dependent  DS-2019 form that she had when she came to the US under the J-2 visa; her affidavit explaining what she was doing from 2006 to 2020; and backing that up with whatever evidence that she has of her residence in China or any other country including any subsequent passports that she may have applied for and received outside of the United States.

To your second question, I do not see any disadvantage in filing I-485 applications for both of you at this time. You can both apply for employment authorization cards. I note that we have been seeing USCIS move faster on approving EAD cards based on I-485 filings, most coming well before six months in uncomplicated cases. In addition, USCIS is now giving five years validity time to EAD’s s based upon adjustment.

2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem

A reader asks:
I applied for I-140 and am waiting for approval. However, I still have an H-1B visa in hand, which can last for a while. Even if it expires, I plan to go to Canada to sign it back because I cannot leave the country while waiting for the I-131, which affects my vacation. I would like to ask if there are any disadvantages to submitting I-485 without I-131? For example, will it be slower or something? Can it be only fileI-485, not fileI-131?

Mr. Lee answers:
An I-131 application for advance parole while an I-485 adjustment of status application is pending is purely a benefit and not a detriment. Filing without the advance parole application will not slow the processing of the I-485. With the unexpired H-1B visa, you can travel in and out of the US during the time of processing of the adjustment application. Upon expiration, you should be able to have it renewed since the H-1B is a dual intent visa, allowing an individual to remain in the US on H-1B status while the permanent residence application is pending. Normally a renewal of the H-1B visa in Canada should not be a problem, although US consulates in many countries are wary of giving visas to third country nationals.

3. For an Expiring Combo Card, You Can Make New Applications

A reader asks:
In 2021, when my EB-1A was approved, I still had a pending NIW. In December 2021, I-485 was submitted based on approved EB-1A, and the pending NIW was also withdrawn. Unfortunately, I-485 was still transferred to NSC. In February 2022, there was no movement after the fingerprints were taken. During this period, I also received a NIW withdrawal notice. I received the combo card in June last year. This year I went to congressmen and the White House to urge me, but all I got were template responses from CIS. At this moment, the combo and physical examination are about to expire. what do I do?

Mr. Lee answers:
Unfortunately, USCIS is a money strapped agency and cannot adjudicate all of its cases on a timely basis. That can be seen from the long backlog processing dates that it releases to the public. For an expiring combo card for employment authorization and advance parole, you can make new applications. At this time, there is no additional USCIS filing fee for either application where the I-485 application remains pending. As for the medical examination, it is currently good for two years, and so it is up to you whether to take another one at this time or wait until USCIS is ready to adjudicate and requests a new medical.

4. Premium Processing Application lockbox Address

A reader asks:
I applied for EB-1A for special talents. Last week, UPS sent it to TSC Premium Processing. Today, the entire application was returned. The rejection letter from USCIS said: The fee for the I-129 petition I submitted was incorrect. What’s happening here? I applied for EB-1A and submitted I-140, not I-129 at all. No matter in the I-907, I-140 or cover letter I submitted, it was clearly stated that I was applying for EB-1A. The only thing I can think of is, should I fill in the I-907 and I-140 that I applied for E11? Maybe the people reading it don’t know that EB-1A is E11?

Another possible reason I think is that they thought I sent it to the wrong jurisdiction. I am not in the United States now. When I sent the application, I filled in the mailing address of my previous residence in New Jersey (TSC jurisdiction) and asked the landlord to collect it on my behalf. Physical address is the Chinese address filled in. Maybe they think I can’t send it to TSC using a c/o mailing address in TSC’s jurisdiction. But even so, should a Chinese address be able to send TSC?

Mr. Lee answers:
If you submitted the fees of $700 and $2500, they would be correct fees and USCIS should not have rejected the I-140 petition for alien worker and I-907 premium processing application. It appears that your choice is to send them the same package with an explanation, or to redo the forms and send in the paperwork again. On where to send an application if you are in China, the current address for a person stating an address in New Jersey is:

USCIS Chicago Elgin Lockbox

U.S. Postal Service (USPS):

USCIS
Attn: Premium I-140
P.O. Box 4008
Carol Stream, IL 60197-4008

FedEx, UPS, and DHL deliveries:

USCIS
Attn: Premium I-140 (Box 4008)
2500 Westfield Drive
Elgin, IL 60124-7836

5. Mailing Address and Residential Address

A reader asks:
I am going to apply for I-140. The mailing address (5b-5g) in Part 4 of the form is the Chinese mailing address filled in Chinese. Foreign address (3a-3f) is the Chinese residential address filled in English. Can these two be filled in differently?

Mr. Lee answers:
Mailing address and residential address are many times different. That is the reason for which USCIS gives the two spaces. Many individuals have different mailing addresses for security reasons or because they just prefer that their mail goes to a different address.

IMMIGRATION NEWS THAT YOU CAN USE – USCIS TAKES FIRST STEPS FOR H-1B CAP SEASON; POLICY MANUAL ON F-1 AND M-1 STUDENTS CLARIFIES POINTS OF LAW AND PROCEDURE.

As published in the Immigration Daily on January 22, 2024

  1. USCIS Takes First Steps for H-1B Cap Season.

A big change for H-1B filings – both cap and non-cap with I-129 and I-907 is being announced to take effect in February to make everything electronic. USCIS is encouraging setting up organizational accounts to allow multiple people in an organization and legal representatives to collaborate and prepare H-1B registrations, I-129’s, and I-907’s. There will be two national engagements on organizational accounts on January 23 for companies and 24 for legal representatives as well as several smaller sessions leading up to the H-1B registration. The entire H-1B lifecycle then becomes fully electronic from registration to final decision and transmission to the Department of State. For those still doing paper filings, USCIS will transition the paper filing location from service centers to the USCIS lockbox.

This is a good change to further save the forests of the world. USCIS will have shrunk its H-1B paper footprint from two copies to the present one copy to the future no copy. If this had been announced earlier, it would have given USCIS the option of demanding complete petition filings of all interested parties instead of soliciting registrations of organizations if the new beneficiary centric registration system was not yet ready for this year’s H-1B cap selection process.

  1. Policy Manual on F-1 and M-1 Students Clarifies Points of Law and Procedure.

Perusing the USCIS policy manual pertaining to nonimmigrant students, there are some new and old policies of which readers should be aware of or remember:

  1. The policy manual on F or M-1 status now says that officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or immigrant visa petition as not necessarily impacting eligibility for the classification, so long as the student intends to depart at the end of the temporary period of stay – that in all cases, the officer must consider all facts presented when determining whether the student is eligible for F or M classification.
  2. F-1 students may be eligible for public high school for one year after paying the school district the real cost of schooling, but there is no F-1 study allowed in public schools for elementary grade children.
  3. When a student is transferring between schools or programs, the limit is five months that he or she is allowed before resuming classes at the transfer school or program, or within five months of the program completion date on the I-20 – whichever date is the earlier.
  4. The policy manual reminds students on STEM OPT extensions that they have duties not only to report change of address or employer or loss of employment within 10 days of the change to the DSO, but also to complete a validation report every six months to the DSO within 10 business days of each reporting date; and submit a self-evaluation of progress toward the training goals described in the I-983 prior to the conclusion of the STEM OPT period, and both student and employer must sign each evaluation to attest to its accuracy. There must be an initial evaluation within 12 months, and a concluding evaluation.
  5. On travel outside the US during the cap-gap period and returning under F-1 status, the policy manual says that travel is permitted where USCIS has approved the H-1B petition and request for change of status; the student seeks readmission before the date of the student’s H-1B employment beginning (normally October 1), and the student is otherwise admissible. If traveling when the application for change of status is pending, the change of status portion is deemed abandoned.

Knowing or remembering the rules may serve to keep the nonimmigrant student from running afoul of the intricacies of the law in this area.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on January 7, 2024 : 1. H-1B Transfer Petition Usually Takes About 2-4 Months. 2. You Cannot Work in the U.S. While Traveling in the U.S. and EB-3 is Waiting for Priority Date to Become Current. 3. Once 180 Days Elapse from the Filing of Your I-485, You May Port to a New Job in a Same or Similar Occupation.

1. H-1B Transfer Petition Usually Takes About 2-4 Months

A reader asks:
Recently, I have changed my job, and I hope to hear the lawyer’s opinions about my H-1B and EB-2 green cards issues. 1. About H-1B. If I am in the current company but change positions, will it be affected? 2. About H-1B. If I go to a new company, how long will the transfer take? If I want to go back to my country, do I have to wait until the transfer is completed? 3. About EB-2. My priority date is March 2020 and is not current yet. Assuming my start date at the new company is six months away, can I ask the new company to start with EB-2 (PERM), if my boss agrees. 4. If the new company provides EB-1C, can my EB-2 PD be used directly? 5. Assuming that my position in the current company has changed, but the job itself does not change, will it affect my current EB-2 status? What kind of situation can be considered as no impact?

Arthur Lee Esq. answers,
Your questions will be answered in the order that you presented them: (1) typically, if your job changes within your company you will need to file an H-1B amendment. If you take on significant new job duties or work in a higher-level (i.e. promoted to management etc.) you will need to file an H-1B amendment. If your job title changes without significant change in your job duties, then you may be excused from filing an H-1B amendment. This may be somewhat complex and an experienced immigration lawyer would help; (2) An H-1B transfer petition typically takes about 2-4 months for USCIS to adjudicate. The case may be filed in about 2-3 weeks if your petitioner/lawyer prepares it expeditiously. You may also apply premium processing on your H-1B transfer to receive a decision or further action in 15 calendar days. You may begin working for your new employer once your transfer petition is properly receipted by USCIS. However, you risk falling out of status and unauthorized employment if your H-1B transfer petition is ultimately denied. In the alternate, you may continue to work with your current employer until your H-1B transfer petition to the new company is approved. It would be a good idea to wait until your H-1B transfer is approved before going overseas since a consular officer will want to see your valid H-1B status paperwork as well as proof that you are employed with your new H-1B petitioner; (3) Yes, your new company can start the PERM process for you at any time as long as they intend to employ you upon your receipt of a green card; (4) Your old priority date can be used so long as your old I-140 approval was not revoked for fraud, misrepresentation, or material error and your labor certification was not revoked or invalidated. That being said, your will need to have your new I-140 under the EB-1 category approved before you can apply for permanent residence via consul processing or adjustment of status. (5) If your position changes from your EB-2 position, but your duties and responsibilities do not change, you should generally still be able to use it as the basis for your green card application. As a rule, your new job can be “ported” to your green card case if 180 days after your I-485 is filed, you are working in a new position that is a “same or similar” occupation that was originally petitioned for you (assuming other eligibility criteria are met). Therefore, if you are in a different position with similar responsibilities, or elevated responsibilities (e.g. financial analyst -> financial manager) you may be eligible for porting to your new position under your approved EB-2 I-140.

2. You Cannot Work in the U.S. While Traveling in the U.S. and EB-3 is Waiting for Priority Date to Become Current .

A reader asks:
I applied for I-140 in China, it has been approved, and I am waiting for the schedule. I want to take my children to the United States, and I have already booked the air tickets, but when I just registered for EVUS, I encountered a problem. The question is, how do I report whether you are currently seeking employment in the U.S. or are you working in the U.S. without prior permission from the U.S. government? How do I answer that?

Arthur Lee Esq. answers,
On the question of whether you are currently seeking employment in the US or have worked in the US without prior permission, you should answer “no” assuming that you have never worked in the US without authorization. You have an approved I-140, and are waiting for your priority date to become current. This will be future employment for you. On this particular visit where you will take your children to the US as tourists, I assume that you will not be seeking employment. You will be there strictly for pleasure. Therefore, you can answer “no” and just visit the US without taking employment on this visit, and then move there on a permanent working basis on an immigrant visa once your priority date is current and you are successfully interviewed at the U.S. consulate.

3. Once 180 Days Elapse from the Filing of Your I-485, You May Port to a New Job in a Same or Similar Occupation.

A reader asks:
I have just submitted I-485 in the Bay Area for a month, but I feel that I may be fired. Now the market is generally uncertain whether I can find a new job within 60 days. In this case, if the USCIS does not process my case within 180 days, and then I find a similar job within 180 days, can I use I-485j port at that time?

Arthur Lee Esq. answers,
Yes. Once 180 days elapse from the filing of your I-485 application, you may port to a new job in a same or similar occupational classifications as the one that was the basis of your I-140 assuming your I-140 is approved or will ultimately be approved.  However, please ensure that your job is indeed in the same or similar occupational classification. You can do this by comparing your new job title and responsibilities with your old job title and responsibilities. Look at your previous I-140 petition for your job title, responsibilities, and importantly, the SOC code of your old position. If your new job may fall into the same SOC code, then chances are that your job can be ported. If it is a natural career progression of your old position (e.g. computer systems analysts to computer systems managers) then your job is likely portable as well. If your job is in a “similar occupational classification,” meaning that your occupation shares essential qualities with the occupation on your I-140, then your job may be portable. As part of this evaluation, officers may consider various factors relating to the jobs such as the SOC codes assigned to the respective jobs; job duties; job titles; required skills and experience; educational and training requirements; licenses and certifications specifically required; offered wage or salary; and any other material and credible evidence relevant to a determination of whether the new position is in the same or similar occupational classification. It is a good idea to consult with an experienced immigration attorney on job porting issues.