Author: Alan Lee

IMMIGRATION NEWS THAT YOU CAN USE – SOME MOVEMENT ON JULY VISA BULLETIN; RENEWED GUIDANCE ON DISTANCE LEARNING; CHANGED LOCKBOX FOR SOME I-485 EB FILINGS; NVC CURRENT PROCESSING TIMES; USCIS SAYS “GO FISH”

As published in the Immigration Daily on June 20, 2022

  1. Some movement on July visa bulletin.

Finally, some movement on family-based (FB) cases on the dates of filing chart although the employment-based (EB) categories hardly moved with the exception of the China and India EB-2 categories on both dates of filing and final action charts. The July visa bulletin is out with the following developments – FB final action dates – Only Mexico advanced, F-1 moved 1½ months to 3/15/00, F-2B two months to 4/1/01, F-3 one month to 10/15/97, and F-4 three months to 6/1/00. FB dates for filing had a lot of movement as worldwide F-1 advanced 1½  months to 7/1/16, F-2B one week to 10/1/16, F-3 one month one week to 10/1/09, and F-4 one week to 11/8/07. The rest of the action here was Mexico’s F-1 moving forward seven months to 12/1/01, F-2B three months one week to 8/8/01, F-3 1 ½ months to 4/15/01, and F-4 two weeks to 3/15/01. It should be noted that F-2A remains current for all countries under both charts. EB final action dates – China EB-2 moved one month forward to 4/1/19, and the big story is that India EB-2 moved three months to 12/1/14. EB dates of filing saw China EB-2 moving forward one month to 5/1/19 and India’s EB-2 moving forward one month to 1/1/15. The Central American countries El Salvador, Guatemala, and Honduras EB-4 and certain religious workers categories advanced almost 6 months to 12/8/17. Diversity cases – all DV numbers in July are current for all countries except Egypt, Nepal, and the Bahamas, and all numbers for all countries will be current for August.

It should be noted that USCIS is using dates of filing for FB cases and final action dates for EB adjustment of status applications.

  1. Renewed guidance on distance learning.

ICE reaffirmed to all SEVIS users on 5/31/22 that the policy of allowing schools and students to engage in distance learning in excess of regulatory limits due to Covid-19 only applies to students who were actively enrolled on 3/9/20, and have continually complied with the terms of their nonimmigrant status. Students enrolling after 3/9/20 must adhere to the existing regulations regarding online learning. Under the March 2020 guidance, active F and M students are permitted to temporarily count online courses towards a full course of study in excess of the regulatory limits. Under the regulatory limits, online courses cannot count toward a full course of study for M and English language training students, and only one online or distance learning class can count toward a full course of study for an F-1 student during each term or semester.

  1. Changed lockbox for some I-485 EB filings.

Be aware that for cases with pending or approved I-140s, there is a change of address for I-485’s beginning on 6/6/22 for persons residing in New Jersey or New York. The I-485’s must now be sent to the Elgin lockbox. If filing concurrent I-140/I-485’s, those still go to the Dallas lockbox. The address of the Elgin lockbox is:

USPS

USCIS
Attn: NFB
PO Box 4115
Carol Stream, IL 60197-4115

Courier

USCIS
Attn: NFB (Box 4115)
2500 Westfield Dr.
Elgin, IL 60124-7836

  1. NVC current processing times.

In responses provided to the American Immigration Lawyers Association in lieu of the National Visa Center participating in the Spring 2022 liaison meeting, NVC acknowledged that its processing times continue to be lengthy due to substantial backlogs and that practitioners should refer to the NVC time frames page on travel.state.gov to track the current public inquiry form response time and that the processing dates are updated weekly. It should be noted that NVC is also no longer answering its telephones so that it can catch up on the backlog. NVC now wishes everyone to look at its site for processing times before sending in inquiries which are not yet up to the date of processing. The site can be accessed at https://travel.state.gov/content/travel/en/us-visas/immigrate/nvc-timeframes.html, or you can just type in on Google “NVC processing times”.

Currently NVC is taking two weeks to create a visa case and enter the data from the petition into the system after getting the file from USCIS (working on cases received 6/2/22 as of 6/13/22); taking 2 ½ months to review documents being sent to them (reviewing documents sent to NVC on 3/30/22 as of 6/13/22); taking one month and three weeks to respond to inquiries (responding to inquiries received on 4/22/22 as of 6/13/22).

  1. USCIS says “go Fish”

We realize that USCIS is behind the 8 ball in many areas, but it should improve especially in providing information to individuals on the status of their cases. The superficial improvements to the published processing times are not very helpful, especially when applicants are given an unrealistic distant date in the future on which they can inquire about their cases after putting in their receipt dates and clicking onto “Get Inquiry Date”. Also the site’s assurance that a person’s case is processing normally is based on no actual knowledge whatsoever. More disturbing is the lack of accommodation in the local USCIS offices with the mantra that everything has to go through the USCIS Contact Center before appointments can be scheduled locally. The difficulty here is that live representatives in the Contact Center are hard to reach and ofttimes unwilling to set up appointments for people to go to the local field office. A further problem is the nonsensical and essentially “go Fish” answers that are being given by USCIS on case inquiries that take about a month to respond to and can come from a variety of immigration offices and service centers that clearly have not even looked at or studied the case, most likely have not even accessed the file, and do not know what to do except to give platonic and not useful answers. For example, on an I-212 (Application for permission to reapply for admission into the US after deportation or removal) case remanded to the New York District office over a year ago, our most recent response last week was from the California Service Center thanking us for the inquiry with the message, “We will review your request and provide notification if additional information is needed.” At the very least, USCIS should make an effort to really solve people’s problems than to provide answers from a service center having nothing to do with the case, having no knowledge of it, and giving the appearance of merely satisfying a USCIS scorecard by racking up robot answers.

Q&A’s published on the World Journal Weekly on June 5, 2022 1. Do my H4 status wife need to file a form I-539? 2. U.S Citizenship 3. EB2-NIW Policy Alert Jan 21, 2022 4. Did not include green paper in new application 5. I-130 for brother 6. Do I need to apply for a visa? 7. How come my mom was denied a reentry visa?

1. Do my H4 status wife need to file a form I-539?

I am currently employed at Company A where my H1B is valid till 06/2023. My wife is in the US on H4. Both of our I-94s are valid till 06/2023. I recently got a job offer from Company B who is processing my H1B transfer. The attorney from company B asked me to fill out the I-539 form for my wife. My questions are: 1. Do I even need to file Form I-539 for my wife since her I-94 is valid till 06/2023 and is not dependent upon the employer but my H1B status? 2. If I have to file the I-539 form, then what date do I put in box 1 of Part 3: Processing Information? 06/2023?

Mr. Lee answers,
You are correct that where your H-1B is valid until 6/2023 and your wife has H-4 status until the same date, you do not need to extend your wife’s status as it is not dependent upon the employer but upon your maintaining H-1B status. Your wife may wish to do so, however, to keep the same date as yours on your H-1B transfer. If you decide to file the I-539, your wife would put in the same proposed date of validity as your new H-1B on box 1 of part three.

2. U.S Citizenship

I’m 22 years old. I moved in US on April 2nd of year 2014, I was 14 back then. I was only a legal resident when I came here holding a green card, but my dad is a US citizen since 2010 can I still apply for citizenship through my father now that I am 22. If I can how should I process my papers?

Mr. Lee answers,
You appear to be qualified for automatic US citizenship under the Child Citizenship Act of 2000, if you were in the legal and physical custody of your father after coming to the US and before the age of 18. In such case, you should be able to file Form N-600 Application for Certificate of Citizenship to USCIS with the filing fee of $1170. You can apply online by creating an online account with USCIS or send by paper to the Phoenix lockbox of USCIS. The address of the lockbox is:
U.S. Postal Service (USPS):
USCIS P.O. Box 20100
Phoenix, AZ 85036
FedEx, UPS, and DHL deliveries:
USCIS Attn: Form N-600
1820 E. Skyharbor Circle S Suite 100
Phoenix, AZ 85034-4850 

3. EB2-NIW Policy Alert Jan 21, 2022

I would like to understand USCIS Policy Alert issue on Jan 21, 2022. Am eligible for EB2 category, However my employer has not started the process yet Q1 – Can I use EB2-NIW category? Q2 – Without Employer, can I file EB2-NIW category independently based on my degree and experience? I am a China Born Australian Citizen Looking forward to lodge my perm filing with a Lawyer if I can file independently.

Mr. Lee answers,
The policy alert defines a USCIS attempt to attract and make the process somewhat easier for science, technology, engineering, and mathematics STEM individuals to immigrate to the US. It has traditionally been easier for a NIW case to be approved where there is an employer. USCIS appears to have softened on the need where STEM people are concerned. For a more comprehensive look at your case, you should consult with an immigration lawyer who can look over your background and discuss your options including NIW.

4. Did not include green paper in new application

I applied green card and I got a rejection notice due to error in payment. I sent a new application but did not attach the green letter but only I-767C rejection letter of I-485 on top of my new application. I am playing by credit card and attached the G-1450 form also. Not attaching the green letter on the new application will make any difference to the new application?

Mr. Lee answers,
The green paper’s purpose is to alert USCIS personnel that a rejected application is being resubmitted. It makes it easier for USCIS to identify re-submittals. If you are resubmitting the entire package and timing is not an issue, the green sheet has less value. On the other hand, it has more value as an identifier if USCIS has already separated the materials, retained some, and returned the rest to you. 

5. I-130 for brother

I applied for my brother back in August 2008 and I-130 was approved 2010.  Di I still have to wait?

Mr. Lee answers,
In the month of May 2022, the dates for filing visa chart for most countries of the world other than India, Mexico, and the Philippines (longer waiting times) is only up to October 1, 2007. The dates for filing chart controls the time that further steps short of immigrant visa interviews can begin. The final action dates chart which controls when immigrant visa interviews can be scheduled and immigrant visas issued is currently only up to March 22, 2007 for most countries of the world. With an August 2008 priority date, your brother will have to continue waiting. Unfortunately, progress in your brother’s category has been very slow recently. Hopefully it will begin to speed up soon. 

6. Do I need to apply for a visa?

Canadian citizen. I visited the US for 3.5 months. Came back to Canada for a few weeks and would like to visit the US again for 4 months. It is unclear online if the 6 month allowance resets when I go back to Canada or if I am only allowed to visit for 6 months in a 12 month period. Visit only. No work, no school.

Mr. Lee answers,
An individual coming to the United States for purposes of visiting with visa (or for Canadians without visas) must still prove to Customs and Border inspectors that he or she is only visiting the US and not attempting to make the US the country of residence. Visiting the US shortly after leaving may raise questions concerning your intent. Six months is a guide and not a hard and fast rule, but visitors are encouraged to only be in the US six months and less during a year.

7. How come my mom was denied a reentry visa?

My mom is a green card holder and overstayed in the Philippines due to pandemic (since Jan 2020) she is a 62 yrs old and is a high risk (diabetes and hypertension) she is also a tax filer in the US, she is married to a US veteran. She has been in out of the USA since 2005. Pls advise me on this. Her green card is not even expired.

Mr. Lee answers,
A reentry permit must be applied for while the applicant is in the United States. Since your mother is overseas, she has choices of trying to apply for a special immigrant visa with the American Embassy or boarding a plane back to the US and explaining with documents her situation to Customs and Border Protection at the port of entry. Immigration lawyers by and large suggest the second course of action since it appears to be more difficult to obtain a special immigrant visa.

Q&A’s published on the World Journal Weekly on May 22, 2022 1. My H-1B 6-year period is ending on May 31, 2022. My home country is India. My employer is stating my green card process now 2. How long does it take usually for I-130 to get to the NVC stage? 3. I-751 filed jointly then divorce? 4. Will My Divorce Affect my Naturalization Application? 5. Pending I-485 (marriage base), maintaining F1 status, using EAD 6. Can An Illegal alien obtain a professional license such as for cosmetology?

1. My H-1B 6-year period is ending on May 31, 2022. My home country is India. My employer is stating my green card process now

My firm is going to start the first step of GC filing which is (PWD + Job Ad) at Feb end. And Perm approval can take more than H-1B max out time. Current processing time (PWD + Job Ad) can take 8 months. So my PERM will be filed around Oct 1. To get 1 year of ext after H-1B max out, PERM should be pending for > 1 year. But between Oct 1/2022 (perm filing day) and my last H-1B day(May 31/2023), there are only 8 months. I have 1 month of time to recapture because I was out of US on H-1B, so my H1B can be extended till June 30, 2023 after recapturing the time. But I still left with 3 months time before the PERM pending completes 1 year time. Can I go to back to my home country now on vacation for 1 month (Apr 1/2022 – Apr 30/2022), after that I will work from India for 2 months (May 1/2022- June 30/2022). That way when I return from India, My employer can extend the H-1B to recapture the lost time which is in total: 1 month(earlier vacation) + 1 month(this vacation) + 2 months(working)

Mr. Lee answers,
There is the possibility that you can work in India to extend the time that you can recapture for purposes of your H-1B visa status. You can also wait and see whether the PERM labor certification will be approved within an acceptable period of time. If so, your employer can apply for premium processing of the I-140 petition. If the I-140 is approved, the American Competitiveness Act in the 21st Century (AC-21) allows for extension of H-1B status so long as the beneficiary’s country quota is backlogged.

2. How long does it take usually for I-130 to get to the NVC stage?

I filed an I-130 as of November 15, 2021. I got married to my wife in Nigeria in August 2021 and have petitioned to bring her to the US. My petition is with the Texas service center for several months now, with no change. According to their site, it can take up to 10 months, so my question is does that mean just for the I-130 to be processed or for it to get to NVC and process so that she can come to me? Also can she come to visit me in the US or will this cause issues with immigration?

Mr. Lee answers,
Each of the service centers of USCIS have their own processing times. The estimated range from the Texas service center means that it may take up to 10 months for the I-130 to be processed. After approval, I-130 petitions are expeditiously sent to the National Visa Center within days. After receipt by the NVC, you and your wife would send the NVC documents and when the documentation process is complete, the NVC will work with the US embassy or consulate to schedule an interview for your wife in Nigeria. On visiting during this period of time, your wife should ensure that she tells the truth about the pending petition and does not commit fraud or misrepresentation in either obtaining a visa (if needed) or speaking with a US immigration officer at the port of entry. 

3. I-751 filed jointly then divorce?

I applied jointly for the removal of conditions in January 2019. My ex husband at the time was emotionally abusive and cheated on me with prostitutes on craigslist ( I have screenshots and copies of the messages and pictures he was sending). We had a real marriage and a lot of strong financial evidence, however I could not stay with him anymore due to what I mentioned. I consulted a lawyer who told me to file for divorce but to not notify USCIS unless they send a request for evidence or call me in for an interview. One of the reasonings for this is that in California, the minimum time to get a divorce decree is 6 months. At the time I filed in May, the I751 application had been pending for 5 months. As soon as a I filed, I moved out and changed my address with USCIS. Fast forward to February 2020, I received my green card without an RFE or an interview. Of course I was relieved and happy. My divorce was finalized a year after receiving my green card. I am terrified, help!

Mr. Lee answers,
In my opinion, your immigration status is likely okay. You filed for the I-751 while you were still living together, you did not begin a divorce action until five months later, you never received an RFE or interview notice, and you received the green card before the divorce was finalized. I do not believe that you had an affirmative duty to tell USCIS during the time the petition was pending that you were initiating divorce proceedings. 

4. Will My Divorce Affect my Naturalization Application?

I am a permanent resident since 2008. I am waiting for US citizenship interview. Can I file for divorce? My spouse is a green card holder too. Is it affect for my naturalization?

Mr. Lee answers,
If you obtained your permanent residence in 2008, I do not see how filing for divorce at this time would have any impact on the naturalization interview unless you immigrated through your spouse’s petition and USCIS discovers that the marriage was fraudulent. 

5. Pending I-485 (marriage base), maintaining F1 status, using EAD

My green card application is pending. I received my EAD couple days ago and started using it. I am also F1 student. My question is, once start using EAD am I falling out of f1 status? Or is it possible to maintain F1 status as well while using ead? In case terminate my F1 status and my green card application gets denied, will I still have a chance to see a judge?

Mr. Lee answers:
The difficulty is that the EAD use is inconsistent with F-1 status, and USCIS would consider you out of status if you only had to rely upon the F-1 to stay legally in the US and it knew of your use of the EAD. If your green card application is denied and your F-1 status terminated, you would have the right to see the immigration judge although the timing of hearings is difficult these days because of the pandemic. I also note that under the Biden administration, your type of case would not be considered a priority for removal, and so you may not receive a notice to go to immigration court even if you wanted to do so.

6. Can An Illegal alien obtain a professional license such as for cosmetology?

I applied for DACA a few months before they put a hold on DACA last year.

Mr. Lee answers,
While venturing to say that state professional licenses are generally not given for immigrants without status, you can check your particular state board’s rules on licensing to ascertain whether there is room for exception.

IMMIGRATION NEWS THAT YOU CAN USE – DOYLE MEMORANDUM GIVES HOPE TO THOSE IN REMOVAL PROCEEDINGS; JUNE VISA CHART BIG EFFECTS; NEW 540 DAY EXTENSIONS FOR MANY EAD RENEWALS; MORE STATS ON H-1B SEASON; IMPROVEMENT ON USCIS PUBLISHED CASE PROCESSING TIMES?

As published in the Immigration Daily on May 18, 2022

  1. Doyle memorandum gives hope to those in removal proceedings.

The memorandum by Principal Legal Advisor Kerry E. Doyle on April 4, 2022, changes the landscape of prosecutorial discretion (PD) used by the government in immigration cases. It is estimated that aggressive use of the PD guidelines will knock approximately 700,000 cases from the 1.7 million backlog of the immigration courts. ICE attorneys are to prioritize three groups of cases – threats to national security, threats to public safety, and threats to border security – and they are to use prosecutorial discretion for other cases in deciding actions such as “filing an NTA; moving to dismiss, administratively close, or continue proceedings; stipulating to the issues, relief, or bond; or pursuing an appeal.” In defining threats to border security, DHS included those who engage in serious immigration benefit fraud that threatens the integrity of the immigration system giving examples as fraud that has been criminally prosecuted including knowingly entering into a marriage for purposes of evading any immigration law or knowingly forging, counterfeiting, altering or falsely making certain immigration documents or their use, possession, or receipt; fraud that has resulted in or is significantly likely to result in a frivolous asylum bar finding; serious types of fraud that cannot be waived as a matter of law like certain false claims to US citizenship; and fraud that reflects an attempt to circumvent the immigration laws by multiple persons like document mill forgers.

The memorandum also gives some hope to cases that have already been closed and final orders of removal issued whereas previously there was no or little chance of reopening. The memorandum makes clear that the concentration for PD will be on active cases and not inactive ones. These requests are to be treated with lower priority as per a just-released instruction sheet by the New York City Office of the Principal Legal Advisor. Yet there is some hope in the memorandum language that government attorneys can join a motion to reopen to allow a nonpriority case to proceed on an application for permanent or temporary relief outside of immigration court as well as relief before the immigration court if such relief was not previously considered. It further adds that cases that can be reopened and dismissed for the consideration of new relief before USCIS will be viewed most favorably for joint motions to reopen.

It remains to be seen how the Doyle memorandum will play out in practice in the joint reopening of cases, but we note that the better chance for reopening will likely be the simpler cases without major impediments.

  1. June visa chart big effects.

Notes on the visa chart for June 2022 – FB (family-based) dates of filing are the same as in the chart for May 2022; FB final action dates are all the same except for Mexico F-1 (sons and daughters of US citizens over the age of 21 and single) advancing one month to 2/1/00, F-2B (sons and daughters of LPR’s over the age of 21 and single) one month to 2/1/01, and F-4 (brothers and sisters of US citizens) two months to 3/1/00; EB (employment based) final action dates have the big change of India moving one year to 9/1/14 under EB-2 (professionals holding advanced degrees or persons of exceptional ability) and EB-W (unskilled workers requiring less than two years of work experience) worldwide moving from current except for a few countries in May to having a backlog date of 5/8/19– on EB-5 (immigrant investors), all China cases including direct investment have a backlog date of 11/22/15 (last month, only regional cases had a backup date) and all the visa set-asides for rural, high unemployment, and infrastructure investments are current as it has not yet been made known how they will be implemented (new and old or only new cases) and new cases have not yet been accepted; EB dates of filing remain the same except for the EB-5 backup date of 12/15/15 also applying to direct investments (last month current), and it should be noted that the Department of State does not appear to want the gates completely thrown open as it left India EB-2 at 12/1/14 (opening Indian dates of filing past the October 2020 India EB-3 date of 1/1/15 would invite a huge wave of adjustment of status applications). Diversity visa numbers became current for all regions for June and July with the exception of the Bahamas, Egypt and Nepal to maximize number use; and the State Department is warning that F-2A worldwide may have a final action backlog date as early as August.

  1. USCIS gives 540 day extensions for many EAD renewals.

 With the temporary final rule, “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants,” FR 87 FR 26614 (May 4, 2022), USCIS is now giving a 540 day extension for persons with pending or new EAD renewal requests that qualify for 180 day extensions. This is certainly a much needed rule given the inability of the agency to adjudicate many employment renewal requests within a reasonable period of time because of various reasons. Such delay has spawned lawsuits and much hardship of individuals and families losing livelihoods for lack of renewal of the employment card. Certainly not helpful was the agency’s extremely stringent expedited rules making it unlikely that a request for expedite would be honored. USCIS will not be giving out new I-797C receipts, but says that receipts referring to a 180 day extension along with the expiring EADs will still receive the up to 540 day extension under the rule. This should be good enough for employers filling out I-9’s as an E-Verify notice on May 4 requires them to update section 2 of the employee’s I-9 to reflect the extension increase provided by the temporary final rule. The major eligibility requirements for automatic extension are that renewal applicants timely filed an application to renew prior to expiration based upon the same employment authorization category on the front of the expiring EAD and that their EAD applications fit within certain classes of which the most common are refugees A3, asylees A5, those granted withholding of deportation or removal A10, those granted TPS A12 or C19, spouses of E-1/E-2/E-3 A17 and L-1 A18 non-immigrants, those pending asylum or withholding of deportation or removal C8, applicants for adjustment of status C9, applicants for suspension of deportation or cancellation of removal C-10, and H-4 spouses of qualifying H-1B non-immigrants C-26.

  1. More stats on H-1B season.

My partner, Arthur Lee’s article, “Recommendations to Improve H-1B Lottery System”, Immigration Daily 4/14/22, pointed out the astonishing rise of 53.5% in the number of H-1B registrants in FY 2022, 308,613, as opposed to the 201,011 H-1B petitions selected in FY 2020, the year before USCIS switched to the lottery registration system, and attributed it to the low barrier of $10 that it costs an organization to put up a registration and the lack of sufficient penalties on employers not following through with H-1B petitions. He advocated a higher fee for registration. USCIS recently released figures for FY 2023 that it received 483,927 registrations, a whopping 175,314 registration increase representing a 57% increase over the previous year. This writer worries that something is clearly not working here, especially given the number of selected registrants from last year who did not have petitions filed for them, thus forcing USCIS to conduct second and third rounds of selection in July and November. Will that happen this year? USCIS selected a larger number of registrants this March, 127,600, than last year’s initial total of 87,500, undoubtedly in the hopes that it would not have to conduct additional rounds of recruitment. However, if the same scenario unfolds with USCIS having to run additional registrations to satisfy the 85,000 H-1B cap quota number, then it might seriously consider erecting a better “moat” than $10 to better separate serious organizations and their candidates from the semi-serious. Such could improve the anemic 26.4% success rate in registration selection.

  1. Improvement on USCIS published case processing times?

USCIS is implementing a new online case processing time system which is cosmetically more appealing and less confusing than the previous published processing time although one might ask USCIS whether it can do more. With the prior iteration, a seeker of information clicked onto the type of form and then scrolled down on which benefit application he or she wanted to check relating to the form, e.g. I-129 H-1B, H-2B, H-3, L-1, etc. After such clicking, more clicking was required to identify the service center or local immigration office holding the case. Then another click to get the processing time. In the new iteration, the seeker is asked to identify the form, click again for the form benefit, then click for the USCIS office holding the case, before clicking again for the processing time. One of the big differences as stated by USCIS is that you now only get one figure for processing time, which represents the 80th percentile processing of cases in a particular category, e.g. two weeks ago, the case processing time for the California Service Center for an F-4 case was 136.5-177.5 months – this week, it is 138.5 months. Another feature touted as improved is the day to inquire if the application or petition is overdue. For the F-4 case two weeks ago, the time to inquire was if the F-4 petition was filed before 7/28/07 – this week, you put in your receipt date, and if you put in one like in one of our cases, 10/19/11, and click the button, the response is that “Your case is processing normally”, and the earliest you can submit questions is October 15, 2026. It also includes the admonition “Please do not contact us before this date”.

A number of problems exist because of delayed USCIS processing times, especially for immigrant visas, on which USCIS should do more to better the lives of people. First and foremost is that petitioners in the US many times die and for those relatives overseas who hoped to join them and now still hope to join other members of the family in the US, there is generally no hope as even a device like humanitarian reinstatement is only afforded those with approved petitions. DHS should work with Congress to promote some form of legislation to allow humanitarian reinstatement applications to be filed where USCIS adjudications take an inordinate period of time like F-4 which at 138.5 months is 11 ½ years. Petitioners move and miss USCIS correspondence which many times means the demise of the case. USCIS should have a more forgiving attitude to reopen cases even where the petitioner never informed the agency of the move. Petitioners many times simply do not receive the correspondence and USCIS should again exhibit a more forgiving attitude. These are just some examples. And while it is nice to have an exact date on which individuals can submit a question on the case (see above October 15, 2026), what does the petitioner do if the case was approved long before the date, was forwarded to the National Visa Center, which subsequently attempted contact and after unsuccessful attempts, terminated the case? The admonition to not contact before a certain date is not helpful. Finally, there is no real assurance that a petition or application is “processing normally” as this information system does not take account of the individual case number and the statement is only based upon a general overview of the cases.

 

Q&A’s published on the World Journal Weekly on April 17, 2022 1. Can the spouse and beneficiary of a Green Card applicant apply for a J1 visa herself after the I-140 is approved but prior to completing the DS-260? 2. Employment Authorization Document 3. Pending I-130 & F1 4. How can I Change marital status with USCIS 5. My sister is a US citizen. Can she petition for me for adjustment of status? 6. Non-immigrant travel from Mexico back to US 7. How fast can I work with a tourist visa? 8. I am a citizen but my parents entered illegally if I join the army can they get their citizenship?

1. Can the spouse and beneficiary of a Green Card applicant apply for a J1 visa herself after the I-140 is approved but prior to completing the DS-260?

Me and my wife are both Spanish citizens living and working in the USA. I have recently had the I-140 approved via the EB2 NIW, where I have listed my wife as a beneficiary. We will undertake Immigrant Visa Processing in Spain, and our case is already in the National Visa Center, but have not yet paid the fees nor completed the DS-260 form. My wife is a research scholar with a valid DS-2019 form, but with expired J1 visa stamp. She has the opportunity to go to Spain in the coming weeks and renew her J1 visa stamp, but we wanted to know if doing so might jeopardize the IVP (even if we do not pay fees and complete the DS-260 form until after she has renewed the J1 visa stamp). Is it possible that she might be denied either the J1 visa and/or the Green Card if she first renews her J1 visa stamp and afterwards we pay the IVP fees and complete the DS-260 form. 

Mr. Lee answers:
In applying for a discretionary visa like J-1, there are generally no guarantees that the visa will be issued by the consulate or embassy. Although your wife is not the direct beneficiary of the I-140 petition, she may be asked whether you have filed any immigration petitions. A good factor for your wife to point to if such comes up is that you have elected consular processing instead of an adjustment of status application. On the question of an impact to the immigration visa process, your wife’s applying for the J-1 visa would not impact it as long as she does not make any misrepresentations on form or speech before the consular officer. Under recent guidance, a dependent family member does not have to state on the nonimmigrant visa form that he or she has applied for a visa petition. You have indicated the better strategy if deciding to apply for the J-1 visa to make the application first and then continue paying the IVP fees and completing the DS-260 form.

2. Employment Authorization Document

I applied to renew my EAD in September last year. I haven’t received it yet, EAD expired as well as the extension. I’m losing my job in a few days.

Mr. Lee answers,
Unfortunately, USCIS has a backlog on EAD extensions which it is working to whittle down. It will only entertain and expedite under the following circumstances: If you are a healthcare worker Who has a pending Employment Authorization Document (EAD) renewal application (Form I-765, Application for Employment Authorization); and Whose EAD expires within 30 days or less, or has already expired. USCIS may also consider an expedite request in your case if it meets one or more of the following criteria or circumstance: 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 to: Timely file the benefit request, or Timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons.

3. Pending I-130 & F1

My mom is 65 years and single. She is a green card holder and filed I-130 for me in July 2019. Now I want to go through a student visa. Will it be successful or denied?

Mr. Lee answers,
If you are interviewing for a F-1 visa at an American embassy or consulate, the chances are that you may have a problem obtaining the visa as it is one that requires nonimmigrant intent. The decision will be up to the American Counselor office who interviews you taking into account whether he or she believes that you will return to the home country following your time of study in the U.S. if your permanent residence case has not been approved by that time. If in the US and you are seeking change of status, the chances are better in our experience. 

4. How can I Change marital status with USCIS

I am a legal resident and I put in a petition (I-130) for my daughter in 2017. It is approved and sits with NVC. During this time I got married and would like to change my name. Does this affect that application? Can I legally change my name? do I have to notify USCIS of this change?

Mr. Lee answers,
The change of name should not affect your petition for your daughter. As the case is sitting at the NVC at this time, you can notify the NVC of your name change with a copy of your marriage certificate. You do not have to do anything with USCIS as your daughter’s case is no longer in its offices.

5. My sister is a US citizen. Can she petition for me for adjustment of status?

I am living in the US and been here since How long will it take to get a green card?

Mr. Lee answers:
Your sister can apply for you while you are here in the States, but her petition does not give you any rights to stay in the country while your case for immigration is pending. For the month of April 2022, the F-4 category for sponsored siblings of US citizens is available for immigration visas for those who filed before March 22, 2007 for all countries of the world except for India, Mexico, and Philippines natives who must wait longer. If born in all other countries, the waiting time is thus 15 years currently. 

6. Non-immigrant travel from Mexico back to US

I’m the spouse of an E2 visa holder and need to leave the country to extend my i-94. I was thinking of traveling to Mexico and re-enter the US. Will there be any issues entering the US via air as a non-immigrant during the pandemic? 

Mr. Lee answers,
I am not aware of any immigration barriers that would keep you from going to Mexico by air and returning. You should of course be aware of all the latest Covid-19 protocols of the two countries. Finally, you should check with your attorney to see whether a trip to Mexico and back will actually extend the I-94 that you presently have.

7. How fast can I work with a tourist visa?

I am planning to visit the States with a tourist visa but thinking of getting employment before returning. Making some cash to cater for my other needs.

Mr. Lee answers:
A tourist visa in the United States is not a working visa, and you cannot apply for working privileges in the US based on a tourist visa. Any work done in the US for an employer or most self-employment situations is considered unlawful. 

8. I am a citizen but my parents entered illegally if I join the army can they get their citizenship?

I am a citizen of the United States but my parents entered the country illegally. If I join the army could they get citizenship or a green card.

Mr. Lee answers,
There is a possibility that your parents may be able to adjust status if you join the Army. USCIS has been receptive to allowing parents of service members who entered the country illegally to obtain parole in place for purposes of adjustment of status to permanent residence.

IMMIGRATION NEWS THAT YOU CAN USE: CAP H-1B SELECTION PROCESS ANNOUNCED COMPLETE; EB-5 REGIONAL CENTER REAUTHORIZATION/REFORM LAW TO BEGIN IN MAY; TITLE 42 NEWS INCLUDING UKRAINIANS; NO MORE PAPER I-94S AT THE BORDER; THE DEPARTURE OF EXPANDED EXPEDITED REMOVAL.

As published in the Immigration Daily on March 31, 2022

  1. Cap H-1B selection process announced complete – start the petitions!

USCIS announced on 3/29/22 that the H-1B selection process was completed and that online accounts would either show submitted, selected, denied, or invalidated failed payment. Petitions can be submitted beginning April 1 and petitioners will have at least 90 days to submit petitions; a petition must be properly filed with the correct service center and within the filing period indicated on the registration selection notice; and that petitioners must include a printed copy of the selection notice with the petition. Other parts of the announcement were that USCIS will not be using any prepaid mailers, [e.g. FedEx labels], to send out communications or approvals. Also, that issuance of I-797 receipts may be delayed – that if more than 30 days pass since confirmation of delivery and no receipt, petitioners should contact the USCIS Contact Center for assistance.

  1. EB-5 regional center reauthorization/reform law to begin in May.

A happy development has been the reauthorization of EB-5 regional centers for five years until September 30, 2027 in the “EB-5 Reform and Integrity Act of 2022”. The legislation goes into effect on 5/14/22, 60 days from the President’s signing on 3/15/22. There will likely be a number of changes in the May or June visa charts. Among the expected developments are backlogging of the China EB-5 direct investment category and a long date for China regional center cases. Some of the important features are carveouts for visa numbers – 20% for rural cases, 2% infrastructure cases in which federal, state, or local governments contract for EB-5 financing for the maintenance, building, and improvement of infrastructure, eg. private municipal bond deal, and 10% for areas of high unemployment. If these categories are more favorable than others for natives of China, they may feel inclined to invest in these types of projects. TEA (Targeted Employment Area) investment for rural and high unemployment areas will go up to $800,000 and the same amount will apply for an infrastructure project (which does not have to be in a TEA), and all others $1,050,000. Every five years beginning in 2027, the investment amounts will rise based on the change in the CPI (consumer price index). Federal and not the state will now determine whether the proposed area is in a high unemployment area or infrastructure project. A high unemployment area with 150% of the national rate of unemployment will be the census tract in which the NCE (new commercial enterprise) is principally doing business, and any adjacent census tract – the so-called “doughnut” approach. All present pending and filed cases will be grandfathered to the point that any future lapse in extending the regional center program will not affect adjudication and visa allocation. For investors in the US from countries with open quotas, they will be eligible to file concurrent I-526/I-485 applications. The dangling petition situation in which legislative nonrenewal of I-526 petitions filed up to June 30, 2021, left them hanging in uncertainty as to whether the cases could continue has been mostly alleviated by a provision that government agencies must continue adjudicating petitions and allocating visas to regional center investors who filed I-526 petitions up to September 30, 2026.

  1. Title 42 news including Ukrainians.

Title 42 has been big in the news this month with the Administration giving case-by-case exceptions to Ukrainians and with two court cases, one with the Court of Appeals in Washington DC and the other with a District Court in North Texas. CBP came out with a memorandum on 3/11/22 announcing exceptions under Title 42 for Ukrainians – that the public safety pandemic concern that has been used to turn back migrants without allowing them a chance to apply for asylum, will basically not apply to Ukrainians at land border ports of entry – “that CBP is authorized, consistent with the Title 42 Order, on a case-by-case basis based on the totality of the circumstances, including considerations of humanitarian interests, to except Ukrainian nationals at land border ports of entry from Title 42.” Who is eligible? “Those “who are in possession of a valid Ukrainian passport or other valid Ukrainian identity documents, and absent risk factors associated with national security or public safety, may be considered for exception from Title 42 under this guidance.” Those granted an exception can be processed for any disposition “including urgent port of entry humanitarian parole on a case-by-case basis.” This may precipitate a rush of the southwestern border by Ukrainians. In the DC case, Huisha-Huisha v. Mayorkas, the DC court made the ruling that although the executive is allowed to use Title 42 to expel persons attempting to enter the US without an asylum hearing because of pandemic concerns, he is not allowed to send them back to countries where they face persecution. The Administration had been sending many back to countries of persecution. In the Texas case, Texas v. Biden, the judge said that the Administration could not continue exempting children from Title 42. The Title 42 ban is set to expire in early April and the question is whether the Administration should continue extending it. One writer said that stopping it would solve both problems. The Biden Administration appears to be leaning in that direction even though such action would promote a run on the border and perhaps cause problems in giving a midterm election line of attack for Republicans. News reports today indicate that the Biden Administration is willing to take the risk and lift Title 42 restrictions in May.

  1. No more paper I-94’s at the border.

On another border issue, CBP gave notice on 3/18/22 that it will no longer be issuing paper I-94’s for land crossings, but only electronic I-94’s. So we should not be surprised from now on that persons crossing the border on TN and other statuses will no longer have paper I-94’s.

  1. The departure of expanded expedited removal.

The Federal Register notice which expanded expedited removal, 84 FR 35409 (7/23/19) was rescinded on 3/21/22 by another notice in the Federal Register, 87 FR 16022 (3/21/22). Now we are back to the future. Under expanded expedited removal, the previous boundaries of only using it when undocumented immigrants were discovered within 100 miles of the Mexico/Canada borders and being here less than two weeks were expanded by Mr. Trump so that it could be used against undocumented immigrants discovered in any location in the country and they would have to prove that they were here for at least two years two years before being exempted from expanded expedited removal. Although not used much, the threat of it caused panic to many members of the immigrant communities.

 

Q&A’s published on the World Journal Weekly on March 20, 2022 1. Can I send my 12-year old daughter to school while waiting for adjustment of status? 2. Can I remove my husband from application for sibling immigration application? 3. N-400 4. Can J-1 visa holder marry a US citizen during the grace period? 5. H-1B to F1 visa 6. F-1 Student Visa 7. Do I need an I-601A waiver? 8. How to cancel N400 application or biometric? 9. Is form i-824 a must to get to the NVC?

1. Can I send my 12-year old daughter to school while waiting for adjustment of status?

I married an American citizen and we are currently in the process of adjustment of status. Can my daughter go to school while the process is pending?

Mr. Lee answers:
Since you are married to a US citizen, you are considered an immediate relative of the US citizen, and violations of status would not bar an adjustment of status to permanent residence. Therefore, sending your 12-year-old daughter to school should have no effect on the immigration process.

2. Can I remove my husband from application for sibling immigration application?

My husband has added himself as co sponsor in the immigration case I applied for my siblings in Pakistan. Can I somehow remove him

Mr. Lee answers:
You may be able to withdraw your husband’s co-sponsorship by communicating with the agency which is holding your sibling’s application at this time. I do note, however, that the NVC and consulates are sometimes reluctant to continue processing cases where a spouse does not put in the I-864 A form. This may be because the agencies want to see more of a level of support, want to see the whole picture of the petitioner’s ability to support, because there are mixed assets belonging to both parties, or for other reasons. So you can make the request, but there may be some resistance.

3. N-400

I was reading the N400 form and it said that I had to be married to a US citizen spouse before filing the N 400 form. Me and my wife are going through a divorce. We were together for 9 years and I have 2 kids with her. And I got my green card through her. Will I be able to become naturalized?

Mr. Lee answers:
I believe that you have misread the form. There is nothing in the law that requires a person like you to be married to a US citizen spouse before filing the N-400 application unless you are attempting to file under the three-year instead of five-year rule for citizenship. If filing under the five-year rule, you should be able to file for naturalization as long as you are not barred by any of the grounds outlined in the application questions.

4. Can J-1 visa holder marry a US citizen during the grace period?

Does the j1 need to file form I-103 and I-485 before grace period ends? I’m marrying my gf who is here in America on a valid J1 visa. I’m marrying her before her visa expires. But her visa expires very soon after . Is there a time frame that we must file the forms I-130 and I-485? My question basically is asking do we have to file the forms before the visa expires even if she is already married ? Does being married give us long time frame to get the documents all together with accuracy? Or do we still have to file the permanent residency forms before the visa expires even though she is married .

Mr. Lee answers,
Assuming that the J-1 visa holder is not under a two-year home residence requirement, such a person is not constrained by time if marrying a US citizen and filing for adjustment of status to permanent residence. While it is always better to file while in status, it is not a necessity for immediate relatives of US citizens (spouse, parent, or child under 21 and unmarried). We have in the past adjusted the statuses of immediate relatives who entered legally and were out of status for over 20 years. 

5. H-1B to F1 visa

I came for MS on F1 then changed to OPT then to H1B. Now, want pursue PhD on F1. Will history of F1-OPT-PhD make it difficult to get F1? Spouse is currently pursuing MS in US.

Mr. Lee answers:
In your situation, I do not believe that it should be that difficult for you to obtain a F-1 visa status or F-1 visa. You have exhibited an upwards progression in your studies and with the H-1B. The period of time that you have spent in the US already may be of some concern, but a reasonable adjudicator would likely say yes to allowing you to go forward with your plan of studying for a PhD. 

6. F-1 Student Visa

I have my brother who has applied for a university here in states and he got admitted. He still has a filed I-130 pending petition. Will he be able to get his F1 visa?

Mr. Lee answers:
The question of whether to give a discretionary F-1 visa at the consulate or embassy is up to the US consular officer. Where there is a pending I-130 petition, the weight to be given to it may depend upon the length of time that the applicant will have to wait to immigrate to the States. Consular officers usually give less weight or importance to the petition where the waiting time is longer. For example, if you filed a sibling F-4 petition for your brother five years ago and it is still pending, the consular officer will know that it will probably take another nine years for it to come to fruition. If otherwise convinced that your brother has nonimmigrant intent, he or she would probably issue the visa. 

7. Do I need an I-601A waiver?

I’m a DACA recipient before the age of 18 and have renewed ever since, without leaving the country ever. I’m looking to go through consular processing because I entered without inspection. Do I need to file a 601A waiver even though I haven’t accrued any unlawful presence?

Mr. Lee answers,
If you became a DACA recipient before the age of 18 and have renewed ever since, you would not have acquired unlawful presence and would not require a waiver for that before returning home for consular processing.

8. How to cancel N400 application or biometric?

After two weeks of submitting the N400 application, got involved in DUI. the case is still pending, and received a biometrics appointment date. How to cancel the biometric appointment as I know my application will be denied? This is my first DUI and no other criminal record.

Mr. Lee answers,
You do not have to go to the biometrics appointment if you are giving up the case. You can further write a letter to USCIS requesting cancellation of the application. If you filed online, you can upload a message. I note that having one DUI is not an automatic bar to naturalization. While deniable as impinging on good moral character, the entire circumstances may be taken into account by the officer. 

9. Is form i-824 a must to get to the NVC?

USCIS sent me a notice stating I need to file i-824 for them to forward my case to the NVC because on the I-130 i had chosen the adjustment of status route but i ended up leaving the USA. I’m so disappointed, i-824 will add about 550 dollars to the cost of the immigration process. Is it possible to eventually get to the NVC without filing i-824?

Mr. Lee answers,
In your situation, an I-824 Application for Action on an Approved Application or Petition will be necessary. In the far distant past, USCIS used to transfer approved petitions upon request. However, with the advent of the I-824 form, USCIS now requires payment and the form for the transfer of cases.

Q&A’s published on the World Journal Weekly on February 27, 2022 1. Do I Have to Stop Work if C9 EAD Expires Before Receiving Physical Green Card as I-485 is Approved? 2. Are Unintentional Mistakes on ETA 9089 Relevant to the Scope of N-400 Question 31? 3. My Son Does Not Have My Surname. How Do I Petition for Him? 4. How Long It Will Take to Invite My Brother to USA 5. I never filed taxes and NVC asks for affidavit of support. Can I find a joint sponsor? 6. Regarding H-1B Stamping 7. About Travel Document I-131

1. Do I Have to Stop Work if C9 EAD Expires Before Receiving Physical Green Card as I-485 is Approved?

I have been employed under OPT. OPT expiring in 2022. My I-485 online case status changed to “Case has been approved” yesterday. Have not received notice and card in physical mail yet. What is my immigration status at this moment? At what point is my OPT considered invalid? My C9 EAD card(which I did not use, because I maintained F1) that I got from pending I485 is expiring next week. So if my C9 EAD expires before I received my plastic green card in mail, will I have problem staying at where I work currently? Do I have to leave job after my C9 EAD expired even i-485 has been approved assuming my OPT is going to be invalid? Thank you so much in advance.

Mr. Lee answers:
Practically speaking, it would not appear to make much consequential difference as to what you do vis-à-vis your work where USCIS has already approved your I-485 adjustment of status application. If the unofficial online notice is correct, you should receive the official notice and green card shortly thereafter. The date should coincide with the unofficial online notice date. Technically speaking, however, employment authorization on the green card does not begin until you receive the green card itself. Your C9 card which I understand that you did not use is expiring next week, so you are authorized to work under that until next week. You have said that your OPT is expiring in 2022. So if you have not yet received the green card, you should technically be able to continue work on your OPT until you actually receive the physical green card. I do not believe that this is a fish or fowl situation. Interesting question. 

2. Are Unintentional Mistakes on ETA 9089 Relevant to the Scope of N-400 Question 31?

N-400 question 31 asks “Have you EVER given any U.S. Government officials any information or documentation that was false, fraudulent, or misleading?” Wouldn’t any typo or a mistake in any submitted form or application automatically imply yes to this question? Suppose an ETA 9089 had a typo in employment dates but that this was corrected by submitting EVLs with the corrected dates at the I-140 stage which was approved. If so, would I still bring this up?

Mr. Lee answers:
In the situation that you have given, your answer should be “no” to the question. Any question pertaining to fraud or misrepresentation on an immigration application requires that the applicant made the fraud or misrepresentation intentionally. In your case, you have stated that this was a typo and was corrected at the I-140 stage. 

3. My Son Does Not Have My Surname. How Do I Petition for Him?

I am USA citizen but my son who lives in his home country does not have my surname. How do I approach this problem as I would like to petition for him?

Mr. Lee answers:
You have to prove that your Mexican son is your son through birth certificate, baptismal certificate, schooling records, or other evidence. A list is on the instructions to the I-130 Petition for Alien Relative form. If unable to provide convincing evidence, you can offer to take a DNA test. In addition, if you are the father (not the mother), you will also have to show proof of parental care of your son prior to his reaching the age of 18 years.

4. How Long It Will Take to Invite My Brother to USA

I am an American citizen and I have US passport.   my brother is Egyptian and is 29 years old and married but lives in emirate country so I want to ask how long for him to come to USA?

Mr. Lee answers:
For the month of February 2022, the F4 category for sponsored siblings of US citizens is available for immigration visas for those who filed before March 22, 2007 for all countries of the world except for India, Mexico, and Philippines natives who must wait longer. If born in all other countries, the waiting time is thus 14 years currently. 

5. I never filed taxes and NVC asks for affidavit of support. Can I find a joint sponsor?

I applied I-130 for my wife and 2 kids, but I never worked in the State and never filed taxes.  Now NVC asks for an affidavit of support and I have a joint sponsor.  Is it OK? What form I have to fill out and what I have to do to send it to NVC?

Mr. Lee answers:
Even if you never worked in the United States and never filled out a tax return, you would still have to supply your I-864 affidavit of support in addition to having a bona fide and credible financial joint sponsor who can provide the financial support for your family. The financial sponsor would have to fill out another I-864 affidavit of support form and supply materials such as tax returns for the past three years, current job letter, payslips, and record of assets if he or she wishes them to be considered as part of the financial support.

6. Regarding H-1B Stamping

I have my H1b petition approved, and I am not getting the visa appointment dates available. Please can you tell me that, can I enter in US with my b1/b2 visa and change the status to H1b in US. I have a valid B1/B2 visitor visa. 

Mr. Lee answers:
There are two difficulties with your plan. The first is that coming to the US and immediately trying to change status to H-1B could raise questions concerning your actual intent under B1/B2 when you came in, and whether it was inconsistent with the type of visa under which you entered. The second is that there is no separate form to change status for persons who already have approved H-1B petitions marked for consular processing. Your petitioner would have to file the H-1B petition all over again in a H-1B amendment requesting change of status instead of overseas processing.

7. About Travel Document I-131

My wife petition for me for the green card. We had our interview in July 2021 and since then my I-485 case is under review. I would like to know if I can apply for a travel document i-131 and go out and come back in the US without issues? I have my EAD since June 2021. We have been married for more than two years. 

Mr. Lee answers:
You can apply for an advance parole document, but should be aware that except for emergencies, applications can take over six months to process at this time. Insofar as problems perhaps arising with an advance parole document in your situation, you may be on tenterhooks if the I-485 application is denied while you are outside the country. At that point, you might be at the mercy of the local CBP practice on the admission of denied I-485 applicants holding advance parole documents. In many quarters, it is thought that legally speaking, the advance parole automatically expires with the I-485 denial since the advance parole is an ancillary application to the I-485 and its life is dependent on the fate of the I-485.

Article: “WILL K-3s COME BACK INTO VOGUE? WHY BASE PERM PREVAILING WAGE DETERMINATIONS ON ALTERNATIVE REQUIREMENTS NOW? WHY 10 YEAR LPR INSTEAD OF 2 YEAR CPR CARDS FOR THOSE MARRIED LESS THAN TWO YEARS? PHOTOS NEEDED AT NATURALIZATION OATH CEREMONIES? NEW FORMS FOR APRIL AND NEW USCIS LOCKBOX IN ELGIN, ILLINOIS.”

As published in the Immigration Daily on February 14, 2022

  1. Will K-3s come back into vogue?

The K-3 visa was instituted in 2000 when legacy INS took years to approve immediate relative spouse cases. It allows a US citizen petitioner to file not only the traditional I-130 petition for alien relative, but also a nonimmigrant I-129F K-3 petition for the married spouse. As the agency improved on backlog processing, use of the K-3 option decreased drastically, especially as the petition was nullified if both I-130 and I-129F met each other at the next waystation of the process after approval, the National Visa Center (NVC). Although USCIS processing times are known to be many times unrealistic, the published times give one pause to consider the possibility of K-3 petitions to all service centers except Nebraska. The following are the published processing times as of February 12, 2022, for immediate relative and K-3 petitions:

Service Center             I-130 processing times               K-3 processing times

California                         29.5-38.5 months                        9-12 months

Nebraska                             4.5-7 months                              5-7 months

Potomac                            12.5-16 months                            3.5-7 months

Texas                                  10.5-14 months                            3.5-7 months

Vermont                            11.5-15 months                             7-9 months

K-3 processing times at the consulates and embassies track the time for immigrant visas according to State Department information, so it would appear that there may be some merit to considering K-3 petitions at this time. If USCIS reduces the I-130 backlog times or processes cases out of chronological order (as we have seen in some of our cases), the attraction of the K-3 visa becomes less.

  1. Why base PERM prevailing wage determinations on alternative requirements now?

For those attorneys whose practices include PERM labor certifications for permanent residence, the Department of Labor announcement through FAQs on July 16, 2021, relating to implementation of its revised prevailing wage determination form, ETA 9141, was a disappointing surprise in demanding that employers use the higher wage of either its principal or alternative requirements as the prevailing wage. The labor certification process is the method by which employers must test the American job market for able, qualified, available and willing US workers before a non-US worker can obtain residence status through nonavailability of US workers for the position. The sponsoring employer in the first step applies to the Department for a weighted-average wage in the job locality by informing the Labor Department of the job title, duties, and requirements and upon receiving a prevailing wage determination, then offers that wage to US workers in the recruitment process. Many employers not only have a principal set of requirements, e.g. Masters degree +3 years of experience, but also an alternate set of requirements, e.g. Bachelors degree +5 years of experience, that they will accept to attract a higher number of candidates and also sometimes because the non-US worker being sponsored might only qualify under the alternative requirements. Over the years, the Department policy had been to only consider the employer’s principal requirements for purposes of setting the wage to be assigned in understanding that principal and not alternative requirements should govern the wage level. Yet in one fell swoop, the Department reversed historical policy through the July 2021 round of FAQs. Such penalizes an employer that has a primary set of requirements for which it is willing to pay a prevailing wage by forcing it to now recruit such workers at a higher rate of pay if the Labor Department determines that the alternative requirements command a higher wage. Such makes little sense historically and logically. In addition, the upward forcing of wages does not serve the country’s best interests in the battle against inflation as it becomes part of an everlasting cycle of raised wages and raised product prices in response which largely contributes to the current rise of inflation in the US (7% from January 2021-January 2022). The author would be interested to know whether there is any attorney, firm, or organization with pending or impending litigation over the new policy.

  1. Why 10-year LPR instead of 2-year CPR cards for those married less than two years?

Section 216 of the INA states that an alien spouse is considered a conditional resident who obtains status by virtue of a marriage entered into less than 24 months and that this applies to both spouses of US citizens and permanent residents. (Please note that this does not include spouses immigrating with their spouses – only those who are petitioned on form I-130). We have anecdotally seen cases in which such spouses of permanent residents recently approved for adjustment of status were given 10 year green cards instead of 2 year conditional residence cards. It may be that the current open availability of the F-2A visa category (for spouses and children of permanent residents) versus the past backlog in the category may be causing some confusion among USCIS adjudicators since F-2A cases used to take well over two years, but such errors have capacity for damaging future effects, and we encourage officers to be more careful in noting the marriage date. It is academic that an I-751 petition to remove the conditional basis of residence status must be filed within the 90 days preceding the second anniversary of the issuance of conditional permanent residence. A conditional resident who fails to file is not considered to be lawfully in the country. In addition, such an applicant who later files for naturalization would be denied, and informed that he or she would still have to file the I-751 petition. Mayhaps USCIS will apologetically recognize its error and offer the individual an opportunity to file the I-751 out of time, but such a result would nevertheless cause the applicant much stress not to mention the loss of time, energy, and money in filing and paying for an unsuccessful citizenship application.

  1. Photos needed at naturalization oath ceremonies?

What do you ask your client to bring to USCIS for a naturalization interview? For convenience’s sake, we encourage them to take everything with them even though officers may only be interested in a few items. We also suggest bringing new passport size photos- if they wish- on the off-chance that an officer may ask. But we never thought that photographs would be requested at the swearing-in ceremony. Lo and behold, a client recently reported to us that at the oath ceremony for herself and husband, she was requested to provide passport photos while her husband was not. Such necessitated her having to exit the building, find a place that took photos (usually a few around federal buildings), and hustle back to the building in time for the ceremony. And she further informed us that the officer told her that “This happens all the time.” The moral appears to be that, if an applicant is willing to take new passport photos, it may be prudent to take the photos not only to the interview, but to the oath ceremony as well.

  1. New forms for April and new USCIS lockbox in Elgin, Illinois.

The penalty for filing old or noncurrent forms with USCIS is rejection of petition or application, which can be both embarrassing and damaging if there is a time deadline. The watchword is to always look at the form edition and compare it with the current form in use before filing. A list of recent changed forms that will come into play in April are:

  • I-864 and all its variations (A, EZ, W) – 12/8/21 editions as of 4/7/22 only.
  • I-829 – 12/8/21 edition as of 4/7/22 only.
  • I-824 – 12/2/21 edition beginning 4/7/22 only.
  • I-102 – 12/2/21 edition as of 4/7/22 only.

USCIS also announced the opening of a new lockbox in Elgin, Illinois, for which I-751s must now be filed for those residing in New York, New Jersey, and most of the East Coast. The address of the lockbox is:

(USPS)

USCIS
Attention: I-751
PO Box 4072
Carol Stream, IL 60197-4072

(FedEx and other couriers)

USCIS
Attention-I 751 (Box 4072)
2500 Westfield Dr.
Elgin, IL 60124-7836

In addition to taking I-751s, the lockbox in Elgin will also begin accepting additional workloads including N-400s and I-130s  in the coming weeks and USCIS expects the transition to Elgin to be completed by late summer 2022. Additionally, it expects to move the lockbox facility in Arizona from Phoenix to Tempe in Fall 2022. So keep your eyes open!

Q&A’s published on the World Journal Weekly on January 30, 2022 1. Is there a list to find out if your person you want to bring back can come back? 2. How to apply a visa for my mother-in-law and father-in-law? 3. I’m on B2 visa currently here in USA. I have pending spouse visa application petitioned by my US citizen husband. Can I get EAD? 4. A Multiple filer? 5. Can I file Green Card while I am on TN visa in the US? 6. How can I sponsor my sick sister if I am a US Permanent Resident?

1. Is there a list to find out if your person you want to bring back can come back?

My husband was deported about 22 years ago and I would like to bring him home to USA. I want to know if there is a list or something to fined out before I do all this paper work if they will even think about letting him back to the USA.

Mr. Lee answers:
There is no list of which we are aware that designates people who can come back to the US after being deported. Generally speaking, a deportation or removal order is in effect for 10 years when a person leaves the US under an order of removal or deportation. If you are concerned that your husband is otherwise barred, I suggest that you obtain a copy of your husband’s immigration file and consult with an immigration attorney. 

2. I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do?

I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do, there are too old but they are alone in India so we playing how we bring them here.

Mr. Lee answers:
To apply for your in-laws to live here permanently on immigrant visas, your husband would have to become a US citizen to sponsor them. To apply for them to visit the US, they would have to go through nonimmigrant visa application interviews at the American Consulate overseas. You could help by guaranteeing financial support and that they will leave at the end of their period of visit. Kindly note that visitor visas are given in the discretion of the consular officer. 

3. I’m on B2 visa currently here in USA. I have pending spouse visa application petitioned by my US citizen husband. Can I get EAD?

I’m currently in USA using a b-2 visa. I have a spouse visa application pending petition in NVC by my USC husband. I would like to work and get EAD while waiting for my immigrant visa interview.

Mr. Lee answers,
You can apply for an EAD if you choose to file for adjustment of status through form I-485 application to adjust status to permanent residence. Work authorization through form I-765 is an ancillary benefit that can be applied for by those filing for adjustment. I note that if you file for adjustment, you should request the NVC to stop processing your matter for a consular interview. 

4. A Multiple filer?

I have filed a I-129F (petition for alien fiancé). I wish to cancel the petition since the relationship has ended. The case is still pending however, therefore it has not been approved or denied. Once I write to immigration and the case is cancelled, if in the future I wish to file another I-129F for another fiancé, would I be considered a multiple filer?

Mr. Lee answers:
Assuming that the petition is not approved, and you have only filed once, you would not be considered a multiple filer. The instructions to the I-129F form define who is considered a multiple filer: 1. You are filing this petition on behalf of your fiancé(e) and you previously filed Form I-129Fs on behalf of two or more fiancé(e) beneficiaries; or 2. You are filing this petition on behalf of your fiancé(e), you have previously had a Form I-129F approved, and less than two years have passed since the filing date of your previously approved petition.

5. Can I file Green Card while I am on TN visa in the US

I am on TN visa here in the US and want to apply for GC. What is the way out.

Mr. Lee answers:
A TN visa is not dual-purpose and the TN holder must have nonimmigrant intent. When a TN holder begins to apply for permanent residence, the more chances of having a problem with status occur when the person continues trying to go in and out of the United States and may be questioned by Customs and Border Protection (CBP) when reentering. We suggest to our clients that they curtail their travels during the time of petition/application with USCIS unless they are adjusting status and obtain advance parole documentation. They should also obtain an EAD to work legally under those circumstances.

6. How can I sponsor my sick sister if I am a US Permanent Resident?

My sister lives in México and is very ill. I am a US Permanent Resident and want to know how I can sponsor her.

Mr. Lee answers:
There is no immigrant visa category that allows a permanent resident to sponsor a sibling. Assuming that you are able to make provision for her medical treatment in the US which she is incapable of receiving in Mexico because of the more advanced state of medicine in the US, you may be able to have her apply for a visitor visa to come for medical treatment.