Q&A’s published on Lawyers.com and the Epoch Times on November 8, 2019 1. I Have a Civil Lawsuit Against Me Because of A Car Accident.  How Do I Reflect This On N-400 Form? 2. What to Do on Form I-864 If My Husband Didn’t Have to File Taxes During Those Years? 3. I Am A Doctor by Occupation But Intend Not to Work in Medical/Health Occupation In USA Not Requiring National Board of Medical Examiner Certification

1. I Have a Civil Lawsuit Against Me Because of A Car Accident.  How Do I Reflect This On N-400 Form?

 The ticket got dismissed because officer put wrong name.  Officer mistakenly put my husband’s name instead of me.

Mr. Lee Answers:
A civil lawsuit is not relevant to naturalization proceedings as it is not criminal, which is the focus in citizenship determinations.  The ticket is another matter. You would answer the question pertaining to whether you have ever been cited “yes” in part 12, question 23, and explain the circumstances in box 29 that the ticket was dismissed. It might be prudent to obtain a copy of the disposition and either include it in the initial filing or bring it to the interview.

2. What to Do on Form I-864 If My Husband Didn’t Have to File Taxes During Those Years?

During 2014 and 2015, my husband wasn’t working, he was studying. He started working on 2016 and had to file taxes for the first time. Should we write a ‘0’ (zero) on questions 19.b and 19.c (page 6, part 6, form I-864) or leave them in blank? I tried to do some research and I read that some people wrote “N/A” but my Pdf program doesn’t let me write letters, just numbers.

Mr. Lee Answers:
Your husband can put down zero on the questions. Your husband should enclose an explanation as to why he was not working with perhaps a copy of his degree if he graduated.

3. I Am A Doctor by Occupation But Intend Not to Work in Medical/Health Occupation In USA Not Requiring National Board of Medical Examiner Certification

Like Nutritionist,Medical transcriptionist,or pharmacist so what shall I answer to question in form D 260″Are you a graduate of a foreign medical school seeking to perform medical services in the USA but have not yet passed the National board of Medical examiner examination or its equivalent”

Mr. Lee Answers:
Since you will not be working in medical//health occupations in the US that require the National Board of Health Medical Examiners Examination or its equivalent, you should answer “no” to the question since you are not seeking to perform medical services in the country.

Q&A’s published on Lawyers.com and the Epoch Times on November 1, 2019 1. My Category Changed from F-2A to F-2B And I Got Welcome Letter From NVC 2. Working While On Tourist Visa 3. Paycheck As Proof of Employment For Post Grad OPT

1. My Category Changed from F-2A to F-2B And I Got Welcome Letter From NVC

They changed my category because I am aging out but email us that they processing my visa and will schedule interview. So there is any way I can go through interview I mean I got visa?I have read several stories that they got interview call but rejected due to age out process.For your information my father is LPR not a citizen so there is any process CSPA protect me as I must to be with my parents.

Mr. Lee Answers:
The determinative factor in whether you can go through with the interview is whether you will be considered under the age of 21. Age is frozen when the priority date is reached. You are also given credit for the length of time that the I-130 petition pended with U.S.C.I.S. before approval. If in doing the calculations you are under the age of 21 when your age is frozen, you can immigrate under the F-2A category.

2. Working While On Tourist Visa

While on a student visa I work for 1 month at a local pub to make extra money. I left US and tried to returned and was denied because I worked. 1 year later I applied and was deny because of insufficient ties. 3 years later I applied and still try to get around that question and was denied again. I was 21 then. Now I am 30 with career as a nurse. Do you think I should apply and just be honest?

Mr. Lee Answers:
Honesty is the best policy here. There is no guarantee that you will be given a tourist visa since such is given in the discretion of a US consular officer, but you appear to have changed your life and have more reasons to return to the home country. Ties and bonds with the home country are usually determinative factors in B1/B2 visa determinations. Good luck!

3. Paycheck As Proof of Employment For Post Grad OPT

I’m on OPT post grad visa and working as a steady/extra at the hotel. My employer cannot promise me any hours in a written form but for the next month I’m scheduled to work 40 hours every single week. Can I use my paycheck as a proof of employment since they cannot guarantee 20 hours per week in written form but they are telling me that I will have at least 30 hours every single week (they worked there for 4 years and never saw a steady extra worker who got less than 20 hours)? Would paycheck work as a proof of employment since it will show that I worked 40 hours?

Mr. Lee Answers:
OPT postgrad only requires that an individual work 20 hours a week in a field related to the schooling. I see nothing wrong with your being able to prove the 20 hours a week through your paychecks. I note that most paychecks have another part that shows the number of hours worked. Such would also help although it is not necessary as long as the rate of pay per hour is known.

Q&A’s published on Lawyers.com and the Epoch Times on October 25, 2019 1. Is My L-1 Visa Already Out Of Status? Is My Employer Breaking The Law? 2. Visa Process 3. My I-140 and I-485 Were Concurrent Filled. Can I Change Job If Both Forms Are Still Not Approved?

1. Is My L-1 Visa Already Out Of Status? Is My Employer Breaking The Law?

I’m working for a US holding company under L1 Visa. More than 6 months ago, another company purchased my subsidiary (both US & oversea offices). I requested the new company to change my visa to be under their sponsorship but they have been working on it for more than six months now and I still don’t know when the documents will be filed as every time I ask, I always get the same answer that they are gathering supported documents. So my concerns are: – Is my L1 Visa already out of status? – Is my current employer breaking the law by not making the transfer on time and still ask me to work for them? – If my Visa is already out of status, what are my options?

Mr. Lee Answers:
In your situation as I am given to understand, another company purchased the subsidiary of the holding company without making the holding company part of its company, and so the holding company is disconnected from the actual operating US and overseas offices. It seems a troubling situation, and it appears that the best option would have been for the purchasing company to make an L-1 amendment to put you in the US office or for the purchasing company to acquire the holding company. You may already be out of status, and perhaps the best option is for the purchasing company to make a late petition with explanation to change you to the subsidiary and hope that U.S.C.I.S. accepts the explanation. If not, you would have to leave the U.S. to consular process the L-1 assuming that the petition is approved.

2. Visa Process

Friend in Albania wants to come to USA. #1- Albanian passport. #2-apply for visa (B1/B2) – DS-160 form, setup interview. Is this the initial process? And correct visa? What if she wants to come permanently?

Mr. Lee Answers:
A person coming to the US for visiting purposes or other personal reasons would correctly apply for a B1/B2 visa on DS-160. An individual wanting to come to the US permanently should not be using a visiting visa, but a visa with dual intent such as H-1B or L-1 or be sponsored for permanent immigration through the family-based or employment-based categories.

3. My I-140 and I-485 Were Concurrent Filled. Can I Change Job If Both Forms Are Still Not Approved?

Mr. Lee Answers:
Where the I-140 and I 485 are concurrently filed, porting to a new job is possible after the I 485 has been pending 180 days. Determinative factors will be whether U.S.C.I.S. believes that the I-140 petition is approvable and whether the new job is in the same or a similar occupation.

Q&A’s published on Lawyers.com and the Epoch Times on October 18, 2019 1. Inquiry About Expired Temporary Green Card 2. How Do I Apply For My Husband’s Citizenship? 3. Will My Husband Be Put in Risk to Get His Residency Taken From Him If We Come Back Into the U.S From Mexico for Christmas Vacation?

1. Inquiry About Expired Temporary Green Card

I got temporary green card stamp in passport valid for past one year expired in 2002, can I apply for form I-90 replacement card to get a legal status in USA? I got employment authorization to work legal job in USA, please assist me to get a visa to USA, I am presently live in India since 2002, Reply me by email.

Mr. Lee Answers:
If you have lived in India since 2002 and your temporary green card in your passport expired in 2002, you have undoubtedly lost your permanent residence. You will not be able to regain it by filing an I-90 application to replace your permanent resident card. If you are interested in obtaining a visa to come to the US for employment, I suggest that you make an appointment with an immigration lawyer who can go over your options for a working visa.

2. How Do I Apply For My Husband’s Citizenship?

It’s been a year since my husband been home and we missed him dearly. We have a special needs child that requires a lot of attention. My husband and I have been married for 8 years. He’s never been in trouble with the law. He attended church and he do volunteer work at church. My husband believing here for 33 years. We missed him so much. How do I get my husband back?

Mr. Lee Answers:
Your facts do not disclose many of the items that would be necessary to give good advice. I assume that your husband has left the country and you want him back. However, you have not disclosed your present immigration status or that of his parents, and that would be relevant in seeing whether he could have a chance of returning if he is under a 10-year bar for unlawful presence in the US for a year or more. I suggest that you make an appointment with an immigration lawyer who can go over all your available options taking into account all of the facts.

3. Will My Husband Be Put in Risk to Get His Residency Taken From Him If We Come Back Into the U.S From Mexico for Christmas Vacation?

My husband was charged for having 2 grams of coke 8 years ago. He complied with his probation and did everything he was supposed to do. He has been a resident for 9 years and has not had any legal issues since. He went to Mexico last year for vacation and came back into the US without any issues. We are planning to go Mexico for family vacation at the end of the Month. Do you think there should be an issue with him coming back into the country?

Mr. Lee Answers:
A person can be charged with many crimes, but the determining factor is what he was convicted of or pleaded guilty to. If it was for having 2 g of coke, and if the problem was discovered at the time of inspection coming back to the United States, there would certainly be an issue. He would likely be placed in removal proceedings in which an immigration judge would ultimately make the decision as to whether he could keep the green card.

Article: WHERE DO WE STAND TODAY AFTER 3 COURTS PUT A TEMPORARY HALT ON THE PUBLIC CHARGE RULE?

As published in the Immigration Daily on October 15, 2019

The Administration’s public charge rule for immigrants due to be implemented on October 15, 2019, ran into roadblocks thrown up by US district courts in New York, California, and Washington State. The preliminary injunctions in both New York and Washington were nationwide in scope while the one in California was more localized.

Judge Rosanna Malouf Peterson of the Eastern District Court of Washington stayed the implementation of the public charge rule “in its entirety” pending entry of a final judgment; that “the effective date of the final rule is postponed pending conclusion of these review proceedings”; and that DHS was preliminarily enjoined from implementing or enforcing the rule.¹  Judge Phyllis J. Hamilton of the Northern District Court of California enjoined among others Donald J. Trump, as President of the United States, from applying the rule to any person in San Francisco, Santa Clara, California, Oregon, the District of Columbia, Maine, or Pennsylvania or to anyone part of a household including such a person.²  Judge George B. Daniels of the Southern District Court of New York in a pair of rulings issued a nationwide injunction, as well as a stay postponing the effective date of the rule pending a final ruling on the merits or further order of the court in one,³ and more specifically in the second restraining and enjoining DHS and USCIS from “implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule, including the new form I-944, titled’ Declaration of Self-Sufficiency’, and the updated form I 485, titled ‘Application to Register Permanent Residence of Adjust Status’”; that the effective date of the public charge rule is stayed and postponed; that if the court’s order is later terminated and the rule goes into effect, the rule’s stated effective date of October 15, 2019 “shall be replaced with a date after this Order is terminated.”4

So insofar as adjustment of status in the US is concerned, it would appear that applicants can continue filing with the old forms until such date that the courts’ preliminary injunction rulings are overturned on appeal, or the government wins on the merits on the case as a whole before the same court or on appeal thereafter.

Yet none of these rulings enjoin the Secretary of State who published an interim final rule on October 11, 2019, implementing rules on public charge to go into effect on October 15, 2019, based entirely on the public charge rule. The question is whether consular officers will be permitted to implement the interim final rule even though the summary clearly states its purpose as being in sync with DHS:

This rulemaking is also intended to align the Department’s standards with those of the Department of Homeland Security, to avoid situations where a consular officer will evaluate an alien’s circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts. 5

Although not directly enjoined by any of the three courts, a turkey (as we are getting close to Thanksgiving and as the public charge rule is one) with its head chopped off cannot still operate its wings to fly, and so the State Department should not believe that it has authority to put its own rule into effect at this time. (Please see note below)

The rulings by the three courts also did nothing to suspend the October 4, 2019, “Presidential Proclamation on the Suspension of Following the writing of this article, a Department of State official confirmed that the public charge rule will not be implemented until a new form is approved, and it was subsequently learned that the State Department will use a new form DS-5540 (Public Charge Questionnaire), which is awaiting clearance by the Office of Management and Budget (OMB). The form will be demanded of approximately 450,000 green card applicants annually. This is a technical stoppage, but it remains to be seen whether the public charge rule can be implemented by State even if the form swiftly passes OMB in light of the outstanding preliminary injunctions collapsing the DHS public charge regulation for the time being.]Entry of Immigrants Who Will Financially Burden the United States Healthcare System”, slated to go into effect on November 3, 2019. That Proclamation affects consular processing and not adjustment of status, but would require of immigrant visa applicants (with limited exceptions) that they show that they will be covered by approved health insurance (not one with coverage under the Medicaid program) within 30 days of entry into the US, or they have sufficient financial resources to pay for reasonably foreseeable medical costs. Based on a study by the Migration Policy Institute, a nonpartisan, independent think tank dedicated to analysis of US and global migration, up to 65% of legal immigration could be barred from entering the US. It is believed that legal challenges will be filed to enjoin the Proclamation before the date of implementation.

It is unfortunately even more clear with the relentless attacks of Mr. Trump and his cohorts on immigrants focused on who has money that, with his wealth tests for entry which includes knowing the English language, he is looking mainly for white Europeans to come while rejecting most of the rest of the world.

  1. State of Washington at al v. United States Department of Homeland Security et al., No. 4:19-CV-5310-RMP (EDWA. 10/11/19)
  2. City and County of San Francisco, et al v. US Citizenship and Immigration Services, et al., Cases Nos. 19-CV-04717-PJH, 19-CV-04975-PJH, 19-CV-04980-PJH (NDCA 10/11/19)
  3. State of New York, at al v. United States Department of Homeland Security, et al., No. 19 Civ. 7777 (GBD) (SDNY 10/11/19).
  4. Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19 Civ. 7993 (GBD) (SDNY 10/11/19)
  5. “Visas: Ineligibility Based on Public Charge Grounds”, Federal Register, Volume 84, No. 198, October 11, 2019.

Note:
Following the writing of this article, a Department of State official confirmed that the public charge rule will not be implemented until a new form is approved, and it was subsequently learned that the State Department will use a new form DS-5540 (Public Charge Questionnaire), which is awaiting clearance by the Office of Management and Budget (OMB). The form will be demanded of approximately 450,000 green card applicants annually. This is a technical stoppage, but it remains to be seen whether the public charge rule can be implemented by State even if the form swiftly passes OMB in light of the outstanding preliminary injunctions collapsing the DHS public charge regulation for the time being. 

Q&A’s published on Lawyers.com and the Epoch Times on October 11, 2019 1. My Husband Was Banned for 10-yrs and That Time Is Up.  Can He Apply To Reenter Since We’re Still Married? 2. What Is Legal Marriage Age For My Fiancée? 3. Father of My Child Charged for Possession of Marijuana a Gram/Personal Use and Officer Said It Was a Misdemeanor,  He Has U.S. Residence Card. What Will Happen?

1. My Husband Was Banned for 10-yrs and That Time Is Up.  Can He Apply To Reenter Since We’re Still Married?

Me and my husband have been married since 2004.He was deported because he didn’t leave the country when he was supposed to on the visa he had. We are still married and the 10 years are up so if we’re still married is it possible for him to come back home and about how much would it cost?

Mr. Lee Answers:
If he was only barred because of deportation based upon an overstay, 10 years have elapsed since the deportation, and you have permanent resident or US citizenship status, you can apply to have him come back in through the petition process. We do not quote fees publicly, but they are reasonable.

2. What Is Legal Marriage Age For My Fiancée?

I recently purchased a plan on Rapid Visa to get help in filing my K1 Visa for my fiancée from Honduras. Everything was going well as I intended to marry her in Nevada, Las Vegas preferably. She is 20 years old turning 21 in December and I am 21 currently turning 22 soon. I live in California. I read in her embassy page and it read “If you are getting married in Honduras, you must meet the requirements prescribed by Honduran law. The following is an unofficial translation of several documents issued by Tegucigalpa City Hall on marriage requirements in Honduras.” She is from Honduras and the legal age to marry is 21. I thought since she is getting married here in the U.S which the legal age is 18 there would not be a problem. I was now told there is a problem because of the age. Is there anything I can do? I really want to bring my fiancée here but I feel utterly lost and sad now. Any advice on what I can do?

Mr. Lee Answers:
As it is already close to December, perhaps your best move would be to file for the K-1 fiancée visa, which normally takes at least six months to approve at U.S.C.I.S.  Consular processing thereafter usually takes another couple months. Probably by the time that your fiancée goes for her interview at the consulate, she will already be over the age of 21. Even if under the age of 21, she may be able to postpone the interview for the one or two remaining months which are required for her to turn 21. In addition, from scanning the information on Honduras, females appear to be able to marry at age 18 with parental consent, but I believe that you already know this.  If not, your fiancee could bring proof of parental consent to the interview if still under 21.

3. Father of My Child Charged for Possession of Marijuana a Gram/Personal Use and Officer Said It Was a Misdemeanor,  He Has U.S. Residence Card. What Will Happen?

Mr. Lee Answers:
US immigration law allows a waiver for permanent residents who are convicted of a possession offense of 30 or less grams of marijuana. If there is no other charge against him, he should be okay.

ALAN LEE, ESQ. SUPER LAWYER FOR 2019 IN NEW YORK CITY

The 2019 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 2 lawyers of Chinese descent in the 67 attorneys chosen in the area of immigration law. This is the eighth time that Alan Lee has been selected, having previously been honored in 2011, 2013-2018.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers List for Immigration 2019

Q&A’s published on Lawyers.com and the Epoch Times on October 4, 2019 1. My Husband Got Convicted and Deported. Is There Any Possible Way He Can Come Back to the United States? 2. How Much Yearly Income Is Required to Bring Someone to the U.S. On A Fiancé Visa? 3. Will Medical Discharge Revoke My Citizenship?

1. My Husband Got Convicted and Deported. Is There Any Possible Way He Can Come Back to the United States?

My husband (love of my life) who was born in 1970 came illegally in 1987 from Mexico. I met him year 2002 when I was 16. We had 3 kids together. He got convicted of manufacturing and delivery in 2009 sentenced to 10 years, did 2 1/2 then they deported him. It was the first time he ever got in trouble for anything and they threw the book at him. Our kids got adopted out. It has been almost 10 years; will he ever get to come back to the United States?

Mr. Lee Answers:
In the circumstances that you described; it is difficult for me to see that your husband would ever come back to the United States legally. A crime involving manufacturing and delivery of drugs (I assume that it is drugs) and a sentence of 10 years is an aggravated felony.

2. How Much Yearly Income Is Required to Bring Someone to the U.S. On A Fiancé Visa?

My reportable yearly income is only $10,200 from disability but in 2020 my yearly income will increase to $24,000 from an annuity. Will owning a house and property or having money in the bank help me NOW so I don’t have to wait until 2020? If so how much is required?

Mr. Lee Answers:
Owning a house and property or having money in the bank may help, but on the house alone, that would depend upon the equity in the house. There is no fixed amount on equity in a house, but the higher the better as a house is not a liquid asset and where would you stay if you sold the house to meet the obligations of financial support. On other property, that would depend on the value of the property, and whether it could be easily disposed to meet your obligation of support. Assuming that you are alone and have no other support obligations to anyone else, the amount of money in the bank would likely be a little north of $100,000, 5X the yearly support level for a family of 2. Also a consular officer might be interested to see how long the money has actually sat in your account. Having home and property and bank account would lessen the amount needed from each individual asset.  A suggestion is that you may decide (in lieu of the above) to seek out a cosponsor who will be able to provide the necessary support for your fiancé not only for the visa, but for the permanent residence application which will soon follow.

3. Will Medical Discharge Revoke My Citizenship?

I’ve been in the Army for about 1.5 years now. I got my citizenship about 9 months. I’ve been getting severely depressed and currently in a process of getting medically discharge.

Mr. Lee Answers:
If you already received your US citizenship, it cannot be taken away absent material fraud or misrepresentation in having obtained it. It certainly cannot be taken away for a condition which arises following the grant.

Q&A’s published on Lawyers.com and the Epoch Times on September 27, 2019 1. Father Was Legally in the U.S. for Over 30 Years And Was Deported for Having Less Than 2 oz of Marijuana at the U.S. Borders 2. I Was Trying to Get My Georgia ID. I Have Social Security Card and Green Card With No Expiration Date. 3. I Am Not An US Citizen, Is There a Possibility to Not Be Deported After Serving a Felony Sentence?

1. Father Was Legally in the U.S. for Over 30 Years And Was Deported for Having Less Than 2 oz of Marijuana at the U.S. Borders

My father is a mechanic and his father owned a shop in Juárez. When his father passed away, my father would go back for months at a time to visit his mother and help at the shop in Juarez. He would constantly work back and forth in El Paso because it’s very close and he had business both in El Paso and Juarez. He was in a client’s vehicle and was crossing in to El Paso and police dogs found that there was less than 2 oz in the car and he was detained. He was held in jail in El Paso for 30 days awaiting court and then the case was continued for another 30 days. Out of foolish pride he allowed the court to deport him so he could get out of jail rather than wait to fight the deportation due to the marijuana charge. He wanted to attend to his ailing mother and the family mechanic business. My father has 6 daughters and 10 grandchildren here in the US and has missed out on about 18 years of family life. He has now also lost his mother and would like to be able to visit family at the least.

Mr. Lee Answers:
I assume that before your father was deported, he pleaded guilty to having less than 2 ounces of marijuana. Under the immigration laws, a waiver can be allowed for up to 30 g of marijuana possession for personal use. If the amount was 30 g or less, he may be able to be petitioned for permanent residence by one of the daughters if over 21 and a US citizen. As you say that he has already missed out on about 18 years of family life, I assume that the offense was committed over 15 years ago. He can obtain a waiver of such offense if the admission of your father would not be contrary to the national welfare, safety, or security of the United States, and he has been rehabilitated from the use of marijuana or other drugs. Another basis for waiver would be proving that one of his children would suffer extreme hardship if the qualifying child is a US citizen or permanent resident. If the amount was over 30 g, he might be able to apply for a visiting visa, in which case he would have to make the application, be denied, and the Consulate would have to recommend a waiver to the Admissibility Review Office of U.S.C.I.S., which would then make the decision taking into account the seriousness of the offense, its recency, potential harm to society if he is admitted, rehabilitation of your father, his reasons for coming to the United States, etc.

2. I Was Trying to Get My Georgia ID. I Have Social Security Card and Green Card With No Expiration Date.  

They told me they can’t take the green card anymore. What do I need to do?

Mr. Lee Answers:
I assume that you are talking about a Georgia ID. In taking a quick perusal on the Internet, it appears that the state of Georgia does accept green cards (I-551s or I-551 stamps), but the DDS also requires two documents showing residence in the state. It recommends documents such as recent utility bills, financial statements, or current rental agreement. Once you have the documents, I guess that you should try again. Good luck!

3. I Am Not An US Citizen, Is There a Possibility to Not Be Deported After Serving a Felony Sentence?

I am currently serving a felony sentence.

Mr. Lee Answers:
The question is what are your equities and the type of crime for which you are serving a felony sentence. If you wish to know if you can avoid deportation, you should have a friend or relative take your entire criminal file to an immigration lawyer for an assessment of your chances.

Article: AMENDED HR 1044 IN S.386 HAPPENING NOW AMID A FLOOD OF CONCERNS

As published in the Immigration Daily on September 23, 2019

S.386 based on amended HR 1044, the “Fairness for High Skilled Immigrants Act of 2019”, appears on study to make visa number allocation changes in the EB-2 advanced degree and EB-3 skilled workers/ professionals/other worker categories benefiting only  the India-born. Senator Mike Lee (R-UT) moved for a unanimous vote in the Senate on September 19th (it previously passed the House) and although rebuffed by Senator David Perdue (R-GA), said that he intended to work with Sen. Purdue over the weekend to resolve differences.

The difficulty with the visa number change provisions is that there are only a finite number of employment-based visas, 140,000 allotted each year, to be fought over by every country in the world. (After FY 2022, 5000 of the visas will be taken for a period of 5 years for a new shortage occupation category). The legislation will remove the limit of the total that each country can obtain (currently 7%) and allow one country to take as many numbers as it can subject to a three-year transition period in which 15% would be reserved for the rest of the world except for India and China in FY 2020, and 10% in both 2021 and 2022 fiscal years. Of the 140,000, EB-2 is allowed 40,040 visas per year, and EB-3 the same amount (minus the 5000 for the shortage occupation category after FY 2022). As there is an 85% rule for the three-year transition period in which a single state cannot take more than that amount of visas, that means India-born could conceivably swallow up close to 85% of the EB-2 and EB-3 quotas for FY 2020-2022 less the numbers that must still be given to China-born and those of the rest of the world who have I-140 petitions approved as of the date of enactment since there is a “hold harmless” clause that those individuals will receive immigrant visas as if this legislation was never passed. The reason for the dominance of India is because entitlement to visa numbers depends upon priority dates with the oldest ones being served first. The pending India cases have priority dates which are 6 years earlier than the earliest priority date of the next heaviest user of employment-based immigrant visas, China. According to U.S.C.I.S. statistics in April 2018, India-born in the U. S. with approved I-140 petitions have a backlog of over 430,000 cases including dependents in the EB-2 line and about 115,000 including dependents in EB-3. This does not take into account approved petitions for India-born outside the U. S. According to Department of State statistics in November 2017, there were an additional 10,961 and 21,962 Indian cases in the EB-2 and EB-3 lines, and using the same U.S.C.I.S. multiplier for dependents, those figures would increase to 21,922 and 46,120. Simple math shows that only 80,080 total EB-2/EB-3 visas will be available every fiscal year with a three-year total of 242,400 through FY 2022. India alone had an estimated demand for 616,683 EB-2 and EB-3 numbers (using the above statistics counting those India-born in the U. S. and overseas with approved petitions) and there is no indication that the number of Indian employment cases has slackened recently. Following the transition period of 3 years, the reserve will come off of the 15% and 10%, and the entire 135,000 will then be available to the countries with the earliest priority dates, most likely still India as there will still be an estimated India demand of 350,000+ in the 2 categories, and the lower EB-3 category will be filled up by the many conversions of India EB-2 cases to EB-3. India’s backlog will also be longer due to the 5% drop-off in the worldwide reserve from 15% to 10% in FY 2021 and FY 2022 as a single state is restricted to 85% of the available visas. It should be noted that EB-2 and EB-3 numbers can be augmented by drop downs of unused visas from other categories, but visa usage is extremely high across the board and significant drop downs are unlikely.

The difficulty with the bill is that it does not expand the number of employment-based visas except for 5000 additional numbers for 3 years for the shortage occupations and only reallocates the existing ones. The “do no harm” clause will primarily only apply to a number of individuals from China with approved petitions whose cases would be within striking distance under China’s current backlog, but for those China-born without approved petitions on the date of enactment, they would be severely disadvantaged by the much earlier priority dates of the mountain of Indian cases. Their only sliver of hope is to take advantage of the 5% drop of reserved visas from 15% to 10% in FY 2021-2022 which Indians will not be able to touch because of the 85% single state limit rule. Additionally the logistics of administering a separate chart to figure out what visa movement would have been for the approved petition cases will likely be a nightmare.

For family-based cases, the legislation would increase the number of visas available for each country from a limit of 7% of the 226,000 worldwide total to 15%. The legislation would primarily benefit the countries of Mexico and the Philippines, and can be expected to retrogress family-based priority dates in all categories with the possible exception of the F-2A preference (LPR applying for spouse or unmarried child under the age of 21) which is current across all countries today.

Besides the visa number situation, a poison pill was slipped into the legislation by Senator Chuck Grassley (R-IA), an opponent of the H-1B program, in the form of provisions reformulating new H-1B’s as a test of the American job market with the requirement of a searchable Internet website for posting positions administered by the Department of Labor which must not only describe the job in full, but include the process for applying for the position. Currently the H-1B program is not a test of the American job market except for certain employers who have a large number of H-1B workers or past violators of the program. The employer would not be allowed to restrict the position to individuals who are or would be H-1B non-immigrants; give those individuals priority or preference in the hiring process; nor primarily recruit those types of individuals. The poison pill would also include the promulgation of a regulation to charge for the Labor Condition Application (LCA), and place challenges pertaining to the prevailing wage directly under the jurisdiction of the Department of Homeland Security (currently wage questions are the province of the Department of Labor).

Relating to H-1B’s, the new rule would also eliminate the use of B-1 business visas which companies use in lieu of H-1B’s where the alien will come temporarily to the U. S. for certain purposes for a short period(s) of time while being paid by an overseas company.

The one good part of the legislation is the reinstatement of Schedule A shortage occupations such as nurses and physical therapists for 8 years from FY 2020-2028 under which 5000 additional visas would be allocated for a three-year period from FY 2020-2022 before slicing into the 140,000 employment-based numbers. The inclusion of this provision prompted Senator Rand Paul (R-KY) to drop his opposition to the bill.

The legislation has an effective date of September 30, 2019, even if passed after that date. If the bill passes the Senate, it will go back to the House for reconciliation and final passage before moving to the White House.

On balance, we cannot support this bill, and urge a better one under which all employment dependents will no longer be counted or backlogs cleared for all countries inasmuch as the visa applicants are individuals who would benefit this nation, and have been or will be cleared by the Department of Labor and/or U.S.C.I.S. in labor certification/petition approvals in terms of skills to help the country – many in critical industries.