Author: Alan Lee

Article: “Interim Final Regulations (IFRs) on Wage Hikes by DOL and on H-1Bs by DHS and Some of the Flaws of Their Logic”

As published in the Immigration Daily on October 19, 2020

In the last desperate days of the Trump presidency, it becomes increasingly clear that this administration sees the handwriting on the wall and is speeding up its actions to indelibly stamp the nation with Supreme Court confirmation hearings and regulations thrusting the nation further backwards on immigration, race relations, the environment, women’s rights, gay rights, foreign relations, and America’s role on the world stage. It hopes that, with the assistance of the Supreme Court, it will keep the Trump agenda largely intact even if Democrats sweep both houses of Congress and the presidency.

To reward Senate Republicans for their complicity during four years of a misguided and corrupt presidency would not be in the best interests of the country, and voters should vote a straight Democratic ticket across the nation.

The recent use of interim final regulations (IFRs) in the field of immigration instead of the regular process of beginning with a proposed regulation, going through a period of comment, review by the Office of Management and Budget (OMB) and final regulation with another small period of time before implementation, illustrates that this administration intends to continue piling on regulations until the day that Joe Biden takes office on January 20, 2021. The Bidens might have to call on the DC police and National Guard to evict the Trumps.

The Department of Labor (DOL) IFR, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” was published in the Federal Register on October 8, 2020, with an immediate implementation date. Its simple proposition is that wages on the OES system go up blindingly – that in calculating wages, DOL looked at all the wages in a certain occupation in the area of employment and recalculated OES level wages to a higher percentile of where all the wages fall. Level I went from what the 17th percentile is earning to what the 45th percentile is earning; Level II from the 34th percentile to the 62nd percentile; Level III from the 50th percentile to the 78th percentile; and Level IV from the 67th percentile to the 95th percentile. The orchestration of various premises to bring this about was fairly devious and moved in five said and unsaid steps: 1.) Mythologization of H-1B specialty occupation jobs almost to the point of being rare birds requiring more than a regular bachelor’s degree –a specialized bachelor’s degree. 2.) That without higher qualifications than a regular (as opposed to specialty) bachelor’s degree, an alien cannot obtain the visa. 3.) That the current wage system is not accurate since it takes into account wages paid to workers who almost certainly would not qualify to work in a specialty occupation. 4.) That an alien qualifying for an H-1B visa should be paid at the same level as a US worker with the same qualifications, and since most H-1B entry level individuals have a Master’s degree, they should be paid at the same rate as US workers with similar degree and experience. 5.) Entry-level H-1Bs should be paid the same rate as similarly qualified US workers regardless of the actual job that they are performing. This ignores a number of factors such as 1.) The H-1B registration process is skewed to accepting more US Masters and higher degreed individuals than those with bachelor’s degrees. The Trump administration expressed pleasure at changing the formula of H-1B selection, so it seems fairly incongruous to somehow try to imply that aliens and their employers are gaming the system in having Masters level individuals fill entry-level positions or that their possessing a Masters degree suggests that the position is anything other than entry-level. 2.) USCIS ignores its own regulatory list of H-1B amenable fields when it sides even further with DOL that many occupations in these fields can be adequately filled without a directly related specialized bachelor’s degree or its equivalent. 3.) To say that an H-1B candidate with a Master’s degree in an entry position should be paid as much as a US worker with a Master’s degree in a much more complex position defies logic. Extending that proposition to its logical conclusion, an alien just graduated with a PhD in chemical engineering with past experience in the home country who manages to grab a job as a junior chemical engineer would be paid at the same rate as a non-alien senior chemical engineer with a similar PhD. Such thinking is violative in spirit of §212(n)(1)(A) of the INA that employers pay H-1B workers the greater of the actual wage level paid by the employer to all other individuals with similar employment in question or the prevailing wage level for the occupational classification in the area of employment. The statute envisions a connection between the payment for “similar employment” and the occupational classification prevailing wage – not the DOL ignoring the specific job that is offered.

The Department of Homeland Security (DHS) IFR, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” was published in the Federal Register on the same day, but with an implementation date of December 7, 2020. As with the DOL rule, this regulation was rushed through the screening process and review waived by the OMB to ensure that it would appear before the election. The IFR redefines specialty occupation in a way in which very few individuals will be able to qualify by changing the degree requirement for the specialty position from being one that is “normal”, “common”, or “usual” to the occupation to one that is in a “directly related specific specialty” or its equivalent. According to the Occupational Outlook Handbook (OOH), the seeming “bible” of USCIS, however, very few professional occupations can be done by just holders of one specific degree. USCIS lists a number of fields amenable to H-1B occupations at 8 C.F.R. § 214.2(h)( 4)(ii) as:

Specialty occupation means an occupation which [(1)] requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Yet for examples, the OOH holds forth that biomedical engineers can qualify to become biomedical engineers through a related engineering field & electrical or electronics engineers through a related engineering field (engineering); chemistry or materials scientists through a bachelor’s degree in chemistry or a related field (physical sciences); market research analysts through a bachelor’s degree in market research or a related field (social sciences); medical or health services manager through a bachelor’s degree in health administration, health management, nursing, public health administration or business administration (medicine & health); high school teacher through a bachelor’s degree with many states requiring them to have majored in a subject area (education); fashion designer through a bachelor’s degree in a related field such as fashion design or fashion merchandising (arts).

The IFR quotes INA §214(i)(1)’s second requirement of specialty occupation being attainment of a bachelor’s or higher degree in the specific specialty or its equivalent and then describes very restricted circumstances under which any equivalency would be found such as electrical engineering and electronics engineering study for the position of an electrical engineer. However, this is a mean-spirited interpretation of “equivalent” in today’s world of education in which cross subject majors are taught all the time. Use of the words “normal”, “usual”, and “common” more accurately describe the equivalent education that should be looked at to qualify for a specialty occupation.

The rate of denial for new H-1Bs is currently 29% through the second quarter of FY 2020 and only anticipated to increase tremendously under the IFR.

It is expected that multiple lawsuits will be filed against the two IFRs, and there is a report that multiple technology companies have already filed suit on October 16, 2020, against the Department of Labor in a New Jersey federal court. Both rules are expected be challenged as not having gone through adequate review, especially the effect upon impacted parties, and one of the arguments certain to be used against the DHS rule is its improper chain of succession invalidating any actions by the current DHS Secretary, Chad Wolf.

The DHS rule is not retroactive and will only be applied to petitions filed on or after the effective date of the regulation, including amended petitions or petition extensions. It is not to be applied to pending petitions nor to previously approved petitions either through reopening or a notice of intent to revoke.

Of some comfort is the thought that a Joe Biden presidency will be more reasonable to the immigration needs of US businesses, but it is a long time to January 20, 2021, and to however long it will take him and his administration to get around to H-1B questions. Without the Senate, the Democrats will have a difficult time trying to reverse four years of Trump actions in immigration and other areas. Joe Biden will have a lot on his plate immigration-wise as a July 2020 Migration Policy Institute report catalogued 400+ executive actions taken in 3 ½ years by the Trump administration in the field of immigration.

Q&A’s published on Lawyers.com and the Epoch Times on October 16, 2020 1. Can I do Something on My Deportation? 2. I File I-130s For My Children and They Are Minors.  How Long Will the Process Take? 3. My Fiancé Was Granted Voluntary Departure.  When Can He Re-enter the United States?

1. Can I do Something on My Deportation?

I am from India and I got deported because I worked the last time I was in the USA and I was not supposed to since I was on B1/B2 visa.

Mr. Lee Answers:
Unfortunately, there are not enough facts in your question for a lawyer to give a reasoned opinion. It appears that you are under a 10-year bar from the deportation unless you were stopped and removed from the port of entry, in which case the bar would be 5 years. Other than that, there is nothing in your question to indicate what possible grounds of relief you may have. I suggest that you make an appointment with an immigration lawyer familiar with deportation work so that he or she can go over all your circumstances and make recommendations. 

2. I File I-130s For My Children and They Are Minors.  How Long Will the Process Take?

I am a permanent resident. I file for my son and daughter from my country and they are 14 and 12 years old. How long will the process take for an approval?

Mr. Lee Answers,
The question is – where are the kids? If they are here and legally residing in the States under some type of nonimmigrant status, you may be able to adjust them immediately to permanent residence since the visa chart for July 2019 shows open visa availability for the F-2A category (LPR filing for spouse or unmarried child under the age of 21). If your children are not in the U. S., you will have to wait until U.S.C.I.S. approves the I-130 petition for alien relative, the petitions must then go through consular processing, and the kids can only be interviewed after that if the priority date (date of filing I-130 petition) is current. A rough guess for the time process would be approximately 2 years if that was the case. 

3. My Fiancé Was Granted Voluntary Departure.  When Can He Re-enter the United States?

My fiancé was granted Voluntary Departure about a month ago. He is now in Mexico. He was put into removal proceedings after they realized he had overstayed his Tourist Visa.

Mr. Lee Answers,
As your fiancé left the U. S. on voluntary departure, he is not barred from returning to the U. S. That being said, he needs at the very least another visa to return to the U. S. (if he did not overstay by 180 days) since his overstay automatically invalidated his tourist visa. He would have to explain his circumstances to the American consulate or embassy officer, and it would be up to him or her as to whether to give another tourist visa. A major question at such interviews is whether the applicant has nonimmigrant intent, and the fact that he is engaged to someone in the U. S. is an unfavorable factor in the adjudication. If he overstayed by 180 days, he is barred from returning for 3 years, and if the overstay was a year or more, the bar would be 10 years.  He could request a nonimmigrant waiver of the bar(s) after refusal at the consulate or embassy, and it would be up to the consular officer whether to recommend him for a waiver to USCIS.  If you are a U. S. citizen, you can file a K-1 fiancée visa petition on his behalf and he would be interviewed in his home country in approximately 9 months. If you are a lawful permanent resident, you can marry him and file an I-130 Petition for alien relative for him to immigrate. Such process would take approximately 2 years if all goes well. Finally if he overstayed for long enough to incur the bar(s), those timelines do not apply and he would need a waiver of inadmissibility based on extreme hardship to a US citizen or LPR spouse or parent if he wanted to immgrate prior the 3 or 10 years.  

Article: In Provisional I-212 Appeal Win, AAO in Non-Precedent Decision, In Re: 9072079 (AAO 9/24/20),Clarifies What Constitutes After-Acquired Equity, Correct Standard of Adjudication, and Rightful Consideration of Evidence.

Please see attached AAO decision Dated September 24, 2020

We at the law firm are pleased to release a copy of our recent win at the Administrative Appeals Office (AAO) in a non-precedent provisional I-212 decision which decided in favor of our client on three points:

  1. After-acquired equity – The equity of our applicant’s wife being a permanent resident was downgraded in the District Director’s decision as an after-acquired equity and entitled to less weight as his wife had entered the United States with permanent residence following the applicant’s deportation order. We pointed out that the decision conflated the wife’s date of entry with the date of marriage in mistakenly reducing the weight of equities of extreme hardships faced by the spouse and the AAO agreed stating that the record reflected that the applicant had married his spouse 25 years prior to his deportation order and that their four children were born prior to the deportation order.
  2. Standard of adjudication – The District Director found it unlikely that the applicant could establish extreme hardship to his spouse to qualify for a provisional waiver. The AAO pointed out that extreme hardship to a qualifying relative is not a requirement for permission to reapply for admission, and that positive factors may include the applicant’s respect for law and order, family responsibilities, and hardship to the applicant and other US citizen or lawful permanent resident relatives. The AAO further thought that the Director’s considering the unlikelihood that extreme hardship to the spouse could be established in a later I-601A application in his decision was not within the province of the Director as “[a] provisional waiver application is a separate application for relief, and pursuant to the regulation at 8 CFR §212.7(e)(4)(iv), an individual inadmissible under section 212(a)(9)(A) of the Act for having been removed must obtain permission to reapply for admission before applying for a provisional waiver.” The AAO added a footnote that the applicant could seek the I-212 permission “[i]rrespective of whether a waiver under section 212(a)(9)(B)(v) for unlawful presence will be needed after the applicant departs and regardless of whether he obtains a provisional waiver.”
  3. Correct consideration of evidence – Besides the Director’s error on the weight to be given to the equity of the permanent resident wife, the AAO took issue with his not fully considering evidence of significant positive equities in the record such as the applicant’s living in the United States for 30 years, having no apparent criminal history, payment of taxes, assisting community and family members, and the applicant’s statement that if forced to leave the United States, he could never have his entire family together again, that he loved his family and would do anything for them, provided care for his wife, used his construction skills to assist friends and neighbors, and helped his son in his restaurant. Also that the submitted evidence included the spouse’s medical report and psychological evaluation showing that she suffered from a host of medical and psychological problems and the spouse’s statement that the applicant did everything he could to keep her healthy and comfortable, and that she would suffer emotionally if she returned to China because she would miss her family members in the US and feared returning to the country where she was forcibly sterilized. The AAO also noted that the Director’s decision did not consider submitted evidence regarding the applicant’s claimed hardships to his US citizen and lawful permanent resident children and grandchildren as well as to himself which included affidavits of the applicant’s US citizen son and grandson.

Although a non-precedent decision, the AAO decision is instructive in addressing points of law at the intersection of a provisional I-212 application for permission to reapply for admission and a later contemplated I-601A application for provisional unlawful presence waiver.

Article: “WITH JUSTICE GINSBURG GONE, DREAMERS DESPERATELY NEED A POLITICAL SOLUTION”

As published in the Immigration Daily on September 23, 2020

With the passing of Justice Ruth Ginsburg this past week, immigrants have lost one of the great champions of immigrant rights. A liberal justice, she consistently voted for the rights of immigrants and in the increasingly more conservative Supreme Court, formed a bloc with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the Court’s major 5-4 decisions on immigration. A couple of the major ones in which she participated on the losing side were United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam) in which the Court tied 4-4 to sustain the Texas court decision barring  President Obama’s DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program which would have given legal protections and work authorization to the parents of citizens and permanent residents; and DHS et al. v, New York, et al., 140 S. Ct. 599 (2020) in which the court by 5-4 vote allowed the new public charge rule to be implemented in February 2020 by staying the preliminary injunction of a New York federal court. Recently, however, she took part in the 5-4 winning vote in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) in which the Court rebuffed the Trump Administration’s attempt to end the DACA (Deferred Action for Childhood Arrivals) program. Although that decision was decided on procedural grounds that the Court indicated might be overcome by another suit after the government complied with proper procedure, there was no assurance that such could actually be done in a 5-4 court in which Chief Justice John Roberts exercised the swing vote. Justice Roberts, a conservative with centrist bend, had earlier frustrated the Administration by providing the swing vote in National Federation of Independent Business v. Sebelius, 567 US 519 (2012), a decision upholding the Affordable Care Act, and Department of Commerce v. New York, 139 S. Ct. 2551 (2019), which denied Mr. Trump the right to add a citizenship question to the U.S. Census.

However, with the appointment of another conservative justice, the tide will move further to the right, and consistent 6-3 or 5-4 losing votes can be expected in most cases dividing the nation, including those on immigration. Justice Roberts will lose his position in these highly contested cases as the deciding vote. President Trump has already vowed to nominate a replacement within this week and Senate Majority Leader Mitch McConnell (R-Kentucky), has stated that he will bring the nomination to the floor of the Senate – both defying Justice Ginsburg’s dying wish that her replacement be made by the next President.

The effect on the 700,000+ Dreamers in the DACA program will be momentous, and the reelection of Donald Trump will ensure that they will either be used as the ultimate bargaining chip for a Trump administration to ram through its entire program of immigration restructuring or failing that, all be subject to removal proceedings with both legal protections and work permits revoked or no longer extended. Already since the Supreme Court’s decision, the Administration has moved to reject all new applications for DACA benefits and restrict renewals to one year instead of the present two years.

The unpalatable nature of a Trump immigration scheme is already being seen in his taking advantage of the pandemic to issue proclamations, executive orders and regulations barring nationals of disfavored countries even as the US leads the world by far in infections, and restricting qualified and approved workers from other lands from entering even though studies have shown that they would benefit the country and add more jobs. It is known that Mr. Trump’s chief takeaway from his DACA defeat is his belief that the Court’s decision gives him the authority to create such a program for merit-based immigration. On July 10, 2020, he said, “We are working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA program, has given me the power to do that.” Previously his son-in-law, Jared Kushner, drafted a merit-based immigration plan that did not move forward, but an idea of its contents was in Mr. Trump’s May 16, 2019, speech in which he said that it would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. In Mr. Trump’s America, huddled masses and refugees need not apply, only the rich and highly skilled. This country could take a lesson from Germany and its Chancellor Angela Merkel that took in over a million refugees in 2015 in a program now seen as highly successful in building a stronger Germany from what was then an aging population.

For Dreamers and all immigration proponents – indeed all who support civil rights, voting rights, the environment, women’s rights, LGBTQ rights, honor, civility, truth, corruption-free government, a rational foreign policy, decision making other than from gut instincts, and all the other parts of the American system that Mr. Trump has damaged and will in his next four years destroy for a generation– the only solution appears to be a political one in getting out the vote and voting.

 

Q&A’s published on Lawyers.com and the Epoch Times on September 18, 2020 1. Overstay. 2. Mother Applies Married Daughter. 3. My Overseas Girlfriend is Pregnant but I have No Insurance.

1. Overstay

I was on L-1 visa and my last working day was on May 2, 2015. I stayed until 31 may as I was doing exams and selling my furniture and car etc. I-94 expiry was July 2016. Did I accrue unlawful presence from 3 may to 31 may? Do I need to report it if I am applying for immigration visa?

Mr. Lee answers:
The period of time that you are talking about is only 28-29 days according to your fact situation. Since the I-94 expiration date was July 2016, over a year later, you did not accrue unlawful presence. Even if you had, it would take 180 days of unlawful presence to bar you from the United States for three years. When applying for an immigrant visa, you can put down that you were unlawfully present for the 28 or 29 days, and it would make no difference in a consular interview for an immigrant visa. If you were adjusting status in the US, it might make a difference, but that would depend upon the category under which you were seeking immigration.

2. Mother Applies Married Daughter

My mother is a resident. She petitioned 2 of her daughters back in 2004. One of her daughters is now married. If mother was to become a citizen would that help the married daughter?

Mr. Lee answers:
If your mother becomes a citizen at this time, she can petition for her married daughter again under the F-3 category for married sons and daughters of US citizens. However, this would be a new petition with a new priority date, and the F-3 category is backed up about 13 years. If there is another way for the daughter to immigrate, perhaps she should choose that instead. If not, the mother should file the petition as soon as possible

3. My Overseas Girlfriend is Pregnant but I have No Insurance.

My girlfriend and I have been dating 8 mo. 50% her time in U.S. & China on her Biz visa. She’s pregnant. My baby. What visa now? How to we marry for the baby?

I have a job but no insurance. Should I have her come out to the U.S. on a tourist visa right away? Can she stay with me in the U.S. somehow so we can have the baby here? Should we get married right after the baby is born since we have no insurance and she is not a citizen? Would it be better for her and the baby if we get married in the U.S. right away? But then how do we manage the pre-natal, and delivery of a baby $$$$ costs without insurance?

Mr. Lee answers:
You appear to be very concerned about the money that will be involved with the baby being born in the US without insurance. That being the case, and unless you are dead set on having the baby born here, perhaps it is better that the baby be born in China. I assume that you can marry at any time, perhaps even now, and then begin the I-130 petition process with the idea of a final interview at the American consulate in Guangzhou.  Such would probably take about a year. That would likely give enough time for your wife to give birth and recover so that she would be able to gather the documentation and appear for an immigrant visa interview overseas. The timing should also give you time to prepare for a life with your wife and the child.

Article: WHAT IS THE REPUBLICAN PARTY NOW, AND DONALD TRUMP – FRIEND TO IMMIGRANTS?

As published in the Immigration Daily on September 1, 2020

The Republican Party is the party of Trump. He shanghaied the party from the traditional Republicans in 2016, and Republican representatives and senators since then have been his devotees and enablers. Does Trumpism go away if he is defeated in the November elections? That is very doubtful as many of the Republican members of Congress owe fealty to the Trump ideals that brought or are continuing their tenures in office.

President Trump has misrepresented the truth while in office well over 20,000 times, and the Republican National Convention (RNC) was more of the same as it wallowed in mistruths, darkness, fantastical speculations and promises while shading or breaking various laws. Donald Trump as a friend of the immigrants was on display in a White House naturalization ceremony mixing the no-no of official business with political advertising as he oversaw the naturalization ceremony of five applicants including two from the “shithole” countries of Africa, and another from India (he is still hoping to peel away the votes of Indian-Americans through his friendship with Prime Minister Modi although Joe Biden’s running mate, Kamala Harris, is half Indian,and even as he has threatened the future immigration of Indian nationals by cracking down on H-1B’s, moving to end the popular H-4 employment program for spouses of H-1B holders, and is reportedly contemplating having long-time H-1B holders with approved I-140 petitions undergo the PERM labor certification process again).

The peel away strategy is simple – confuse and sway enough voters in swing states (Arizona, Florida, Maine, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin) – so that the president and his party can win the state if only by 50 votes and possibly the presidency again even if Mr. Trump loses the popular vote by 10 million. As the Republican Party and its voices like to say, “We do not live in a democracy. The United States is a republic.” Other ethnic groups being appealed to are Jews who Mr. Trump has said “owe” him because of his strong support for Israel; Asians for whom equality in education is a large issue with Democrats supporting the position that factors other than being the best and brightest as determined by standardized tests should determine admission to the best schools; in the Asian community, especially Taiwanese-Americans because of Trump’s recent elevation of the island as a counterweight to China even though he had earlier compared Taiwan as a speck to China; Russian-Americans for whom Mr. Trump’s unswerving devotion to Mr. Putin is gratifying; and Cuban-Americans whose litmus test is animosity against the island’s rulers.

For Blacks, peeling away means surreptitiously running and/or supporting Kanye West in his strange presidential bid, pardoning two black ex-prisoners, Jon Ponder on day two of the RNC and Alice Johnson the day after she spoke on his behalf at the RNC on day four, and even now planning to have the Pentagon award the Medal of Honor posthumously to Alwyn Cashe, a Black soldier who died saving his comrades in Iraq.

Presenting the coronavirus for the most part in the past tense was a staggering piece of fictional theater as if we were already past the disease when we still have over 40,000 new infections per day – that and saying that we were in a V curve, even a super V curve and would have a safe and effective vaccine by the end of the year. Mr. Trump’s and his party’s disdain for science was prominently displayed in his re-nomination celebration at the White House where over 1500 mostly maskless supporters crowded together (no social distance) on the South Lawn without being screened or even asked if they had symptoms even though more than 182,000 Americans have died of the virus and  almost 6 million infected since February 2020 including members of his own Secret Service detail who are forced by duty to travel with him to typical Trump mask- discouraged campaign events..

Just a look at the past few weeks of immigration news belies the fact that Mr. Trump is a friend of immigrants:

  • A new asylum EAD rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” FR 38532, Vol. 85, No.124, 6/26/20, just came into effect on Tuesday, August 25, that asylum-seekers must now wait 365 days before filing for an EAD. Also that they are disqualified from applying for EADs if they crossed the border without authorization. A new I-765 form with questions directed towards the latter was implemented by USCIS on that date.
  • Another asylum EAD rule that took effect on August 21, “Removal of 30-Day Processing Provision for Asylum Application Related Form I-765 Employment Authorization Applications,” FR37502, Volume 85, No.120, 6/22/20, eliminates the regulation mandating USCIS to adjudicate initial applications for employment authorization for asylum applicants within 30 days. Although USCIS did not in our estimation take that seriously for the most part, it was helpful.
  • Law 360 is reporting that there is a Department of Labor threat from a part of Trump’s 6/22/20 proclamation (that DOL in consultation with DHS shall consider promulgating regulations or take other appropriate action to ensure that aliens’ presence in the US who have been admitted or otherwise provided a benefit or are seeking admission or benefit pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage US workers) that DOL may soon be doing many workplace LCA compliance investigations of companies using the H-1B program.
  • USCIS is being sued on its new fee hike regulation by nonprofit organizations Public Citizen, Ayuda, Northwest Immigrant Rights Project and CASA in Northwest Immigrant Rights Project et alv. USCIS et al, Case No. 19 CV 03283-RDM (DDC 8/21/20) since their clientele include survivors of crimes applying for their children or spouse who would have to pay $1485 (more than six times the current fee) and asylum-seekers more than $600 to file for asylum and EAD. Their bases are that the Acting DHS Secretary, Chad Wolf, is ineligible to serve in that position because of violation of the succession act and his actions as DHS chief have been illegal, that the rule is based on incomplete and unsupported justifications, violates several provisions of the INA and fails to comply with rulemaking requirements. In response, Mr. Trump is now trying to take care of one of these issues by formally nominating Mr. Wolf as DHS Secretary.
  • There is a new Department of Justice proposal to codify the rule in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018), denying immigration judges the ability to administratively close cases, speed up appeals of immigration court cases and to otherwise limit the immigration judge’s authority to manage their caseload – the proposal, “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure”, FR 52491, Vol. 85, No. 166, 8/26/20, would impose strict time limits on the length of immigration court appeals, while also shortening briefing deadlines and limiting the Board’s members’ ability to review new evidence on appeal or to reopen immigration cases on their own. The part relating to codifying Castro-Tum states: “§1003.10 Immigration judges.… (b)… Nothing in this paragraph nor in any regulation contained in 8 CFR part 1240 shall be construed as authorizing an immigration judge to administratively close or suspend adjudication of a case unless a regulation promulgated by the Department of Justice or a previous judicially approved settlement expressly authorizes such an action….”
  • DHS is extending its regulations against nonessential travel to and from Canada and Mexico through 9/21/20.
  • How is DHS doing with Covid-19? In ICE facilities in Mesa Verde and Adelanto, California, terribly. The Mesa Verde facility was ordered on 8/6/20 to conduct weekly rapid result coronavirus tests after the court record showed that ICE and the GEO Group Inc. that ran the facility avoided widespread testing fearing the positive test results would require them to enact extra virus safeguards. Adelanto was even worse as, despite a federal court order in April that the center should follow pandemic response guidelines laid out by the CDC, ICE was making its own rules – that from 3/1/20 – 7/15/20, ICE transferred 102 individuals into Adelanto from facilities with confirmed Covid cases at the time of transfer or within two weeks of the transfer; that despite receiving 1900 Covid-19 tests in May which was enough to test the entire population of the detention center and the staff, ICE stopped its comprehensive testing program; that 4-8 people are forced to sleep in cells as small as 8 x 10’ and showers are so crowded that a person in one shower stall can reach out and press the neighboring shower’s button.
  • How are they doing in the immigration courts with Covid-19? Not good. There are reports that many immigration judges do not want to wear their masks and what do you say to the judge who asks the attorneys if they are comfortable with them taking their masks off? The Boston immigration court was cited. Reports from Chicago were mixed on mask wearing. One attorney said that the majority of judges took their masks off during hearings for detained immigrants this past spring at the San Francisco immigration court. Some attorneys said that they prefer to keep their masks off during the hearing noting that they were seated more than 6 feet from the judge and underscoring the importance of face-to-face interactions, but they remained concerned about airborne virus transmission since the hearings are often held in small windowless rooms with less than ideal airflow. Other attorneys complained that the immigration courts did not appear to be wiping down surfaces between hearings and that the crowded hallways and small courtrooms were not conducive to public health. Other attorneys complained of too little notice as the courts do a phased reopening and of cases being bumped at the last minute.

The truth is unfortunately malleable to many Americans as proved so often by Mr. Trump in the past and he and his party most blatantly in the RNC. Republicans who honor the memories of Ronald Reagan, and both George H. and George W. Bush may very well have to form an independent party as it becomes increasingly clear that the Trump “base” controls the party and will continue to dominate it regardless of the election results.

 

Q&A’s published on Lawyers.com and the Epoch Times on September 4, 2020 1. How Can I Expedite Process to Obtain Green Card as a Spouse of U.S. Citizen? 2. Can I Change B-1 Visa into H-1B or Permanent Residency in USA? 3. If I Have a Green Card for 2 Years, Can I Divorce Before This Times Expire Without Losing it?

1. How Can I Expedite Process to Obtain Green Card as a Spouse of U.S. Citizen?

My husband is a US citizen, I am Swiss, married in 1995. I have applied in Phoenix I am told it takes 20 months! We have recently moved to Scottsdale as a permanent residence. Currently I have a B-2 visa. I need to have a social security number asap for a number of formalities here and in Switzerland and I understand I cannot get it without a resident status.

Mr. Lee answers:
The processing times of U.S.C.I.S. are an approximation, and many cases are called to interview before the end of the stated processing periods. That being said, even if the true processing time in your case is 20 months, U.S.C.I.S. would not expedite your case unless it was emergent. Obtaining a Social Security number can be done without having an approved case. If you file for employment authorization on form I-765 Application for Employment Authorization at the same time that you file the I-485 Adjustment of Status Application To Permanent Residence, the agency will normally process a work authorization within 3-6 months. With a work authorization card, you can apply for and obtain a Social Security card within a month. 

2. Can I Change B-1 Visa into H-1B or Permanent Residency in USA?

I travel to USA every two years because my brother family is in New York so my whole family is on B-1 Visa. Actually, I applied 2 times for H-1B visa but unfortunately my name was not been selected due to random selection process. Last time for H-1B I applied on 2016. My brother has own company is New York and few other companies from family. They want to hire as IT Professional in their office but due to random selection process in H-1B I am unsuccessful. Is there any way to get employed over there on my brother’s company without going to random selection process OR if I am been in USA , can I change my status from B-1 to H-1B directly.

Mr. Lee answers:
Unknown factors in your question make it difficult to give good advice. Where were you born? What is the nature of your brother’s company? What is the setup of his company? Is it profitable? What other options might you have? I suggest that you make an appointment with an immigration lawyer who can go over all of your circumstances. Insofar as your question of whether you can change status from B-1 to H-1B directly, you would likely not be able to do so with your brother’s company because of timing issues, but might be able to do it with a cap exempt organization such as an institution of higher education, an organization affiliated with an institution of higher education, a government research Institute, or a nonprofit research institute. Companies like your brother’s are subject to the annual cap on H-1B visas, and can only file H-1B visa petitions during the first five business days of each April. 

3. If I Have a Green Card for 2 Years, Can I Divorce Before This Times Expire Without Losing it?

I applied for a green card but my situation with my wife is not good anymore. I am thinking about getting divorce but don’t know if I will lose all my process and my green card.

Mr. Lee answers:
I assume that you are a conditional resident through your wife and then you will have to file an I-751 application to remove the conditional basis on resident status within the 90 day period before the second anniversary of the conditional resident grant. If you are divorced or have a legal separation, you are prohibited from filing a joint petition with your wife to remove the conditional basis. However, with a divorce, you can file a petition by yourself on the basis that the marriage was bona fide at the beginning and attach all evidence showing such in the I-751 petition. You can also remove the condition by showing that you are a battered spouse or that you would suffer extreme hardship if you return to the home country, such hardship having occurred during the period of conditional residence. 

Q&A’s published on the World Journal Weekly on August 30, 2020 1. Petitioning for My Parents in China.  How Difficult Will It Be for Them to Pass the Public charge Requirement? 2. What Will Happen to My Labor Certification Green Card Case Since I Was Born in Hong Kong and How Long Will it Take for Me to Immigrate? 3. Can I Apply for DACA Now That the Supreme Court Ruled That the Program Could Continue? 4. Can You Tell Me if It Will be Safe to Go Into USCIS Offices for Interviews When They Are Scheduled?

1. Petitioning for My Parents in China.  How Difficult Will It Be for Them to Pass the Public charge Requirement?

I just became a US citizen and want to apply for my parents in China. I am really concerned because I heard that the Trump administration is making it very hard for persons who do not have much income or assets to immigrate. Currently I am married with two children, and our income level (combined) for the past three years has been around $60,000 annually. We have a house with very little mortgage left on it, and about $25,000 in savings.

Mr. Lee answers,
Under normal circumstances, you would appear to have a good chance of immigrating your parents in the absence of outstanding disabilities on the part of your parents that would require much medical assistance by the government. The public charge rule which went into effect on February 24, 2020, places an onerous burden on petitioners and the people that they sponsor to show more and count a number of factors in deciding the admissibility of people under the rule. This rule during the time of pandemic has been dropped by the government after its recent loss in the District Court in New York. The Department of Homeland Security has issued a memorandum that as long as the ruling is in effect, USCIS will apply the old public charge guidance to any adjustment of status application adjudicated on or after July 29, 2020.  The Department of State is also complying with the court’s order and in the process of updating its guidance to consular officers on how to proceed. The situation, however, remains volatile. It remains to be seen whether the court’s ruling will stand and if so, how the public charge law will proceed after the time of pandemic. (I note that under the new public charge rule, you may still be able to immigrate your parents, but would likely have to show much more documentation to do it).

2. What Will Happen to My Labor Certification Green Card Case Since I Was Born in Hong Kong and How Long Will it Take for Me to Immigrate?

I work as a market research analyst under H-1B visa and I took up my employer’s offer to sponsor me for the green card last year because I am from Hong Kong and the company lawyer said that my case would take less than two years if everything went well. Now we hear that because Pres. Trump is mad at China, I am now assigned to China. What does that mean for my case? My priority date is November 2019 and my labor certification application was approved in May 2020. My I-140 petition is now pending with USCIS.

Mr. Lee answers,
On July 14, 2020, Pres. Trump issued Executive Order 13936, “Pres. Trump’s Executive Order on Hong Kong Normalization” which among other things would no longer treat Hong Kong as an area having its own immigration quota under US law and instead assign it under China’s immigration visa quota. The State Department is still reviewing the question of whether Hong Kong born individuals can be chargeable to mainland China legally, but that may very well be swept under the rug given the politics of the State Department and that the Secretary is very much in the president’s corner. Currently for the month of August 2020, the visa bulletin final action dates show that China EB-2 for cases requiring an advanced degree or a bachelor’s +5 years experience is only up to cases filed before January 15, 2016, and for cases under EB-3 requiring a baccalaureate degree or two years experience up to February 15, 2017, one year more advanced. It is difficult to know how long it will take for your case under the China quota to become current given the vagaries of immigrant visa counting and the underuse of the numbers in this fiscal year, but given the more advanced state of EB-3, you may wish to file a petition under that category if you have not already done so.

3. Can I Apply for DACA Now That the Supreme Court Ruled That the Program Could Continue?

I qualified in all respects for DACA except that I was not yet 15, the minimum age for applying, when they stopped accepting new applications. I have been continuously in the US since June 15, 2007; was physically present in the country on June 15, 2012; had no lawful status on June 15, 2012; have not committed any crimes; and am still in high school. If I put in a new application at this time, what will happen to it?

Mr. Lee answers,
The Supreme Court decision preserved DACA a in a 5-4 decision in June 2020 as Chief Justice Roberts did not believe that the government had followed legal procedure in trying to stop the program. Although Pres. Trump said in a TV interview on the Hispanic channel Telemundo that he could give a path to citizenship for the Dreamers, his administration has done exactly the opposite in a pending case, Casa de Maryland v. US DHS in which it said last week that new applications would neither be granted nor rejected, and instead held in a bucket pending a policy consideration by DHS; and the last word was a July 28, 2020, memorandum in which DHS said that it would reject all pending and future initial requests, reject all pending and future applications for advance parole for DACA members absent exceptional circumstances, and shorten DACA renewals from two years to one year. This is likely not the final answer, but you may wish to wait and see what happens before putting in a new application at this time.

4. Can You Tell Me if It Will be Safe to Go Into USCIS Offices for Interviews When They Are Scheduled?

I am being petitioned for by my US citizen mother for the green card. I, my wife, and our two kids are here under my H-1B visa. Our priority date finally cleared, and we were scheduled for an adjustment of status interview at the immigration office in April that was canceled because of the pandemic. Now I hear that Immigration will begin to reschedule all the canceled interviews beginning in August. We are very nervous because I and my wife have medical conditions and are scared of catching the coronavirus. Will we be safe in going to the interview?

Mr. Lee answers,
One of the discouraging things that one hears about USCIS these days is its constant complaint that it is running out of money, needs to raise fees, and obtain funding from Congress. The latest is that it will furlough up to 70% of its workforce at the end of August if it has not received relief from Congress. That being the case, the agency probably does not have adequate funding to maintain complete office safety. I doubt that the agency has the ability to wipe down surfaces including chairs and bathrooms every couple hours or the personnel to enforce social distancing in elevators, escalators, hallways, and waiting rooms. You can do a few things to protect yourself such as maintaining your family’s social distance from others; bringing sanitary wipes to clean your own seats; wearing masks and gloves; bringing your own pens, etc. The agency has said that it will space out interviews, mark off seats to maintain distancing, put plexiglass barriers between officers and the public, provide face coverings from people who come without face coverings, and be flexible on rescheduling missed appointments. Hopefully that and other improvements that it may make before your interview along with your own safety precautions will protect you and everyone else with whom you come into contact.

 

Q&A’s published on Lawyers.com and the Epoch Times on August 21, 2020 1. Can I Request I-485 to be Joint? 2. If I Get Paid $12.50/hr with 40 Hours a Week, Is This Enough to Bring My Girlfriend to the USA from Philippines? 3. Can You Get Married in the US Even If You Are Still Legally Married in the Philippines? 

1. Can I Request I-485 to be Joint?

We file I-130 a week ago for my wife. We get the I-797c notices I have been reading around and it state it most case the I-485 can be requested to joint to the I-130. I just want to know if I can go ahead and send I-485 even thou I 130 is pending.

Mr. Lee answers:
As you have the I-797C receipt notice, you are able to use that to file an I-485 adjustment of status application to permanent residence for your wife at this time if you are a US citizen and she entered the country legally. You would attach a copy of the I-797C receipt in the I-485 filing to show that the I-130 petition is pending. U.S.C.I.S. will process the I-485 and usually link the I-130 petition with the I-485 filing in time for the interview. 

2. If I Get Paid $12.50/hr with 40 Hours a Week, Is This Enough to Bring My Girlfriend to the USA from Philippines?

Mr. Lee answers:
$12.50 an hour with 40 hours a week or $26,000 per year may not be enough to convince a skeptical consular officer to issue a B-2 visiting visa. American consular officers like to be convinced that a visa applicant has enough support to visit the US without having to work. If your girlfriend or her family have monies of their own, she could show that to the consular officer as proof that she would not have to work in the US. Also if you have close relatives who are capable of giving an I-134 affidavit of support, that might help. She will also have to convince the consular officer that she intends to just visit and will return at the end of her stay.  

3. Can You Get Married in the US Even If You Are Still Legally Married in the Philippines? 

I knew somebody who came here as a J1 intern for a year. He is married legally in the Philippines and has a kid with that marriage. Now he is married to an American. Is it even legal? How can he get a permanent residency card in that situation?

Mr. Lee answers:
If a person is still legally married regardless of wherever that person was married, he or she would be committing bigamy by marrying another without having the marriage annulled or otherwise dissolved. U.S.C.I.S. would not approve a permanent residence application if it knew that the applicant was not free to marry the petitioner. 

Article: Fort USA Arises In The Gloaming

As published in the Immigration Daily on August 14, 2020

American forts were built in great numbers in the 1700s-1800s and contributed greatly to the westward expansion of the country. Regardless of how you look at the history of the nation and the number of wrongs committed in building America, one cannot argue that forts built along the way served to push expansion by placing troops within reasonable distance when called upon.

Now the American fort is rising in the twilight of these four years, but rather than for expansion, for the hermetical sealing of this country. In every way, the Trump administration has moved to wall off the nation from the rest of the world and to return to the cultural America of the 1950s, an era replete with discrimination, Jim Crow laws, and white supremacy.

To turn back the clock, the administration has done everything in its power to forcibly expel and discourage immigrants from staying; to encourage US citizen children to leave with their parents; to bar the admission of qualified immigrants and nonimmigrants; discourage citizenship applications; and push to revoke the citizenship status of numerous individuals. It has taken advantage of the pandemic to issue a series of exclusionary presidential proclamations in the name of public health concerns, while at the same time taking no steps to take control of the coronavirus spread and assigning that responsibility to the nation’s governors while sniping at them from the sidelines. Mr. Trump has also gotten the CDC to act as his henchman in further issuing rules restricting the entry of foreigners. The political games of this administration and the pandemic have played out according to Mr. Trump’s likes and dislikes such as derogatorily assigning the blame for US infection to China while ignoring the fact that the vast majority of US coronavirus cases originated from European travelers; not including a heavily infected Russia in the list of countries whose travelers are barred from the US; and arbitrarily allowing students from the Schengen area of Europe to come to the US despite their specific ban under presidential proclamation.

A whiter and “cleaner” America is the goal and the stopping and expulsion of immigrants has been an important part of the strategy. Fort America is about half complete with most of the border wall to be built, and other measures have been implemented to win the party of Trump and Trump another four years to complete the job through measures such as voter suppression, cost-cutting the Postal Service to handicap it from fulfilling its duty to handle mail-in ballots, discouraging undocumented immigrants from participating in the census thus affecting reapportionment of House seats, and even surreptitiously running Kanye West for president to siphon black votes from Joe Biden in key states.

It seems apparent that another four years of this administration will finish off whatever is left of immigration as we know it today. For the sake of a whiter America, this administration has ignored all evidence that immigrants have contributed much more in benefits than they have taken in public benefits; that they have revitalized blighted cities and towns; that they have stopped America from becoming an “aged” country that cannot support its Social Security system; that they commit far less crimes than the rest of the American populace; and that they have culturally benefited the country through their foods, traditions, and ideas. In the pandemic, many of them have saved American lives and sacrificed themselves as essential workers including doctors, nurses, EMT technicians, other hospital workers, researchers, farmworkers, meatpackers, grocery store workers, food delivery workers, etc.

The hermetical sealing of this country is also encasing America in a rusted suit of armor from which it cannot move and can only look on as the administration has ceded its dominance as the moral and physical leader of the planet. Whereas Russia has moved unimpeded in conflict zones and become the feared powerbroker in the Middle East, the US has done nothing but betray trusted allies in the region. Its stance on China has been that of a paper dragon doing little to stop China’s march to dominance over much of Asia and parts of Africa. Despite beefing up military spending and at one time surrounding himself with a phalanx of retired generals in important positions, Mr. Trump has hobbled the actions of the Armed Forces, making the US the weak man in the military community.

In the gloaming, the Republican Party’s visionary America’s Fort sits, with its non-colored inhabitants perpetually patrolling the ramparts against the outside world. One wonders what four more years will bring.