1. Just Got Denied on My H-1B That We Filed in April – What To Do Now?
My petitioner, a small food market chain with two stores, applied for my H-1B in April 2019, got a request for evidence, answered it, and was just denied saying that the company did not need the services of an accountant. I had optional practical training from my F-1 accounting degree that ended on July 15, 2019. As my denial just came last week dated November 13, 2019, can you tell me any possible ways that I can stay in the United States legally?
Mr. Lee answers,
The Trump Administration has made clear its intention to make H-1B visas much harder to obtain, having drastically increased the number of requests for evidence and denials over the years of his presidency. That being said, you are technically out of status once the H-1B is denied. If the rejection had come prior to October 1, you would have still been within the protection of being in cap-gap status, in which case you would have had a 60 day grace period. You should confirm with an attorney to determine if you have good grounds for appeal or for a motion to reopen or reconsider. However, be aware that the clock on unlawful presence begins running when the decision is made, and if you are in the US over 180 days from that point and your appeal or motion is denied, you will incur a three-year bar if you must leave the US and reenter. If you decide not to do on appeal or motion, some other options (there can be many more dependent upon your circumstances) are the following. If you wish to further attend schooling in the US, you could possibly request reinstatement from U.S.C.I.S., and would have to prove among other items that you are not deportable for any other reason than either being present in violation of law or that you violated your nonimmigrant status; and that the violation of stay resulted from circumstances beyond your control. (The length of a U.S.C.I.S. adjudication would appear to be something beyond your control). Other options include requesting a late change of status to visitor if you need limited time to leave the US; marriage to a US citizen if you are already in a bona fide deep relationship; or making application for any other working or family relationship visa for which you might be eligible. (For this, you would have to leave the US and should seek an attorney’s advice on your case qualifications).
2. Got Green Card Through Marriage, Tried to Get Three-year Naturalization While I-751 Pending, And Now Both Are Denied – What To Do?
I got my conditional green card from my marriage to a US citizen in 2015. In 2017, right before the second anniversary of the green card, I filed the I-751 application to get the permanent green card. I didn’t hear anything from Immigration for a long time, so I spoke with the lawyer who said that I could file my naturalization application during the time that the I-751 was pending because I was married to a US citizen and entitled to file three years from the conditional green card instead of the usual five years. The problem is that although we have a good marriage, my wife lives in Atlanta because of her work and I stay in New York. Every couple of weeks, I go to see her or she comes to see me during the weekends. When I was called to interview, my wife didn’t come because she couldn’t get time away from her work, and the immigration examiner was very severe with me. She wound up denying both the naturalization application and the I-751. What can I expect next?
Mr. Lee answers,
Initially, the advice that you received from the attorney was incorrect. The three-year privilege of filing for those married to US citizens is reserved for those who can show that they have been married for three years; that the US citizen has been a US citizen for three years; and that they have been living continuously together for the entire period of three years. In a case like yours, getting together every two weeks on weekends does not qualify as continuous. The fact of separation also is a large consideration for U.S.C.I.S. adjudicators in deciding the bona fides of marriage cases. Further the fact that your spouse did not show up at the interview was another factor in deciding the I-751. At this point, you can expect U.S.C.I.S. to issue you a notice to appear (NTA) in the immigration court. At that time, you and your wife will be given the opportunity to explain in front of an immigration judge the circumstances of your relationship. You will also be allowed to present any relevant evidence in support thereof. U.S.C.I.S. is mandated to swiftly issue NTA’s in circumstances of I-751 denials, but we have seen a number of cases in which NTA’s are not issued for months or even years after the denials. I suggest that you obtain the services of an attorney once you receive the NTA, if not sooner.
3. Granddad in Taiwan Two Months And Got Call for Naturalization Interview, But Has Been on Medicaid – Problem With Entry At Airport or Naturalization Interview?
Our grandfather got a green card over 20 years ago and decided to naturalize last year. He went back to Taiwan two months ago to take care of some family affairs because our grand aunt (his sister) passed away. We received his notice for naturalization interview for two weeks from now, and he will be returning next Monday. Will he have a problem with Immigration at the airport or Immigration at the naturalization interview because he has been taking Medicaid and government rent assistance?
Mr. Lee answers,
It is difficult to know how Customs and Border Protection (CBP) officers at the airports or even naturalization examiners at the local immigration offices will react to anything out of the ordinary these days as the Trump Administration has shown itself to be so anti-immigrant. However, that being said, impartial officers should not give your grandfather a problem based upon his taking Medicaid and rent assistance even if they asked him about it as he has already been a long time resident of the United States, and I assume that he has not engaged in illegal activity during the departure nor committed an excludable crime at any time for which he was not given relief the new Trump regulations on public charge have been stopped by court challenges, and there is no question on the naturalization form asking whether an applicant has taken means tested benefits other than whether the applicant made any misrepresentation to obtain any public benefit in the United States.