Author: Alan Lee

IMMIGRATION NEWS THAT YOU CAN USE – WHITE HOUSE EXPANDS AND RENEWS HONG KONG DEFERRED ENFORCED DEPARTURE PROGRAM; USCIS SETS SCHEDULE FOR H-1B CAP REGISTRATION PROGRAM; “FINAL” COVID-19 FLEXIBILITY DATES ADVANCED TO MARCH 23, 2023; USCIS ANNOUNCES NEW DATES FOR EXPANDED PREMIUM PROCESSING CLASSES OF CASES; TRUMP PUBLIC CHARGE RULE FINALLY KILLED BY SUPREME COURT?

As published in the Immigration Daily on January 30, 2023

  1. White House expands and renews Hong Kong deferred enforced departure program.

The Biden Administration announced in a White House memorandum on January 26, 2023, that it would not only renew, but also expand the Hong Kong deferred enforced departure (DED) program for old and initial applications for 24 months. The original grant of DED is to expire on February 5, 2023. Qualified applicants are those Hong Kong residents who have been in the country since 1/26/23 and have not voluntarily returned to Hong Kong or the PRC after 1/26/23. It confers both protection from deportation and employment authorization for those who apply for an EAD. Besides voluntary return to Hong Kong or the PRC, those not eligible are those who have not resided continuously in the US since the date of the memorandum; are inadmissible under security grounds which includes membership in the Communist Party or deportable under such; or have been convicted of any felony or two or more misdemeanors in the United States; or the person persecuted others; has been convicted of a particularly serious crime and constitutes a danger to the community of the United States; there are serious reasons for believing the alien committed a serious nonpolitical crime outside the US; there are reasonable grounds for regarding the alien is a danger to US security; terrorist activity; or when the person is firmly resettled in another country prior to coming to the United States; or is subject to extradition; or whose presence in the US is not in the interests of the United States or represents a danger to public safety; or whose presence in the country the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.

A Hong Kong “resident” has previously been defined for purposes of the program as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong special administrative region passport, a British national overseas passport, a British overseas citizenship passport, a Hong Kong permanent identity card, or a Hong Kong special administrative region (HK SAR) document of identity for visa purposes.

The Federal Register notice implementing the memorandum is expected momentarily.

  1. USCIS sets schedule for H-1B cap registration program.

USCIS on January 27, 2023, set out the schedule for H-1B registration for cap cases for FY 2024 (10/1/23-9/30/24) which will run from noon EST 3/1/23 – 3/17/23 noon EST. Registrants can open new accounts on 2/21/23 at noon, but submission must be 3/1/23 or later. USCIS will notify account holders by 3/31/23. Last year, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. It is expected that the number of registrations will decrease this year as many technology firms, prime users of H-1B visas, are in the midst of laying off workers because of their overambitious expansion plans fueled by easy access to money (low interest rates) which are presently being stymied by the Federal Reserve’s hiking of those rates.

  1. Final Covid-19 flexibility dates advanced to March 23, 2023.

In the wake of the pandemic, USCIS has given extra time for individuals and organizations to respond to requests for information from the agency since 2020. It announced in its latest extension on January 24, 2023, that the extension of 60 calendar days for notices for information in addition to the notice deadline date and 90 days from decision date to file appeals, motions, and requests for hearings would end with notices or decisions issued by March 23, 2023, inclusive barring changes presented by the pandemic. If so, that means requests and notices after that must be responded to by the stated response dates, and appeals, motions, and requests for hearing filed within 30 days of decision.

The additional 60 days applies to the following:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional centers;
  • Notices of Intent to Withdraw Temporary Protected Status; and
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

The 90 days from decision date applies to:

  • Form I-290B, Notice of Appeal;
  • Form I-290B, Motion;
  • Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA)

Applicability of the 60 days is for requests or notices issued between March 1, 2020 – March 23, 2023 inclusive, and the 90 days for decisions made between November 1, 2021 – March 23, 2023 inclusive.

USCIS also added that the reproduced signature flexibility rule announced in March 2020 became a permanent policy on July 25, 2022.

  1. USCIS announces new dates for expanded premium processing classes of cases.

USCIS on January 12, 2023, announced premium processing expansion for all initial and pending EB-13 (multinational executive and manager) and E-21 NIW (national interest waiver) petitions beginning 1/30/23. It is also planning to offer premium processing for F-1 students seeking OPT or STEM OPT extensions who have a pending I-765 application in March, and in April to those in the same classes who are filing an initial I-765. It is anticipating expanding premium processing for students and exchange visitors with pending I-539 applications in May and those in the same classes filing initial applications in June. This is the final phase of premium processing expansion which began with the first phase on June 1, 2022, accepting I-907 premium processing requests for certain cases received in early 2021.

  1. Trump public charge rule finally killed by Supreme Court?

The Supreme Court on January 9, 2023, denied as improvidently granted a petition for certiorari in Texas v. Cook County, Illinois, 22-234, in which the red states presented two issues (1) Whether petitioner states were entitled to intervene in defense of the inadmissibility on public charge grounds rule when they sought to do so within days of the federal government’s rescindment of the rule by acquiescing in a district court’s nationwide vacatur; and (2) whether petitioners were entitled to either relief from the District Court’s judgment under Federal Rules of Civil Procedure 60 (b)(6) or equitable vacatur of the judgment. This was an attempt to resurrect an effort of 13 states led by Arizona in Arizona v. City and County of San Francisco to gain the right to intervene in a California lawsuit against the Trump rule in which the Biden administration decided not to defend it on appeal and in which the states wanted to intervene on behalf of the government to preserve the rule. In that case, the justices also dismissed as improvidently granted the certiorari petition. So is that the dagger to the Trump public charge concept which would have put the final coffin nail in the Statue of Liberty’s promise to “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”? Unfortunately, no, as the Texas Attorney General Ken Paxton brought suit again on January 5, 2023, in the US District Court, Southern District of Texas, Victoria division, State of Texas v. Alejandro Mayorkas, Civil Action No.6:23-CV-1, claiming that the Biden administration seeks to further its open borders policy by enacting a new agency rule effectively nullifying federal law excluding aliens likely to become public charges. Stay tuned.

Q&A’s published on the World Journal Weekly on January 29, 2023 1. Biometrics appointment for I-131 still needed? 2. I-751 was submitted and fingerprints were taken. How long is the wait time?

1. Biometrics appointment for I-131 still needed?

I filed I-131 and it was accepted, and the fee taken. I have not received a biometrics letter but the status is updated to fingerprints taken. Does this mean they are using biometrics from a previous application and I do not need to wait for a biometrics appointment before leaving the US? The status on my I-131 case said, “As of XX, 2022, fingerprints relating to your Form I-131, Application for Travel Document, Receipt Number XXX, have been applied to your case.”

Mr. Lee answers,
USCIS is attempting in as many ways as it can to reduce backlogs that were caused by the pandemic and the Trump administration. Part of the effort is to reuse the biometrics whenever it can since fingerprints do not change over time. Either you failed to completely read one of the notices saying that the agency would reuse your biometrics or USCIS failed to send that one out or it was lost in the mail. The notice that you now have seems pretty clear in indicating that the agency will reuse your biometrics.

2. I-751 was submitted and finger prints were taken. How long is the wait time?

My Case, removal of conditions for the green card was submitted on 01-06-2021 my green card was expired on 01-20-2021. I received a notice for an extension of 24 months after my case was submitted which will expire in Jan 2023. My case was sent to Potomac service center, should I need a raise a E-request to process my pending case.

Mr. Lee answers,

If the notation of resident status on the I-751 receipt is close to expiration, the recommended path is to communicate with the USCIS Contact Center and arrange an infopass with the local USCIS field office so that you can present your passport and receive an I-551 ADIT stamp continuing your resident status during the time that USCIS is adjudicating your I-751 petition. USCIS will generally not expedite an application or petition on the basis that the individual’s status is expiring, especially where there is another path.

Article: “2023 AND THE US DEMOGRAPHIC TIMEBOMB”

As published in the Immigration Daily on January 23, 2023

As we move into 2023 and the continuing threats to the economy, part of the answer to our problem is unsurprisingly – more immigration. Japan is a prime example of a closed society with declining birth rates and unwillingness to allow immigration which now finds itself with abandoned towns and villages, an aged population working into the 70s, and overreliance on overseas manufacturing. China may soon find itself in the same boat of an aged non-vibrant workforce as its population shrank for the first time in over 60 years in 2022, the total number of migrants to other countries far exceeds its intake of people coming into it, the long-term effects of its one child policy and current reluctance of females there to have larger families further depresses the population, and its workforce is rapidly aging with nearly 1/3 expected to be over 60 by 2035 (China’s official retirement age is 60 for men and 55 for women and although there is some movement to advance the retirement age, it is receiving resistance from those worried about the effect upon pensions and their desire to spend time with family).

The US fertility rate of approximately 1.7 births per female cannot sustain American greatness, as that is below the replacement rate of 2.1 required for the US population not to shrink without increases in immigration.

Support for increased immigration was voiced by Federal Reserve Chief Jerome Powell during a December 14 news conference that “Our labor force should be 3 ½ million more than it is”, and asking himself why is that, said “Part of it is just accelerated retirements – people dropped out and aren’t coming back at a higher rate than expected. Part of it is… Close to half a million who would have been working died from Covid. And part of it is that migration has been lower. It’s not our job to prescribe things, but I think if you asked businesses, pretty much everybody you talk to says,’ There aren’t enough people. We need more people.’” Citing Bureau of Labor Statistics data, the New York Times in the December 27, 2022, article, “Retirees Are One Reason the Fed Has Given up on a Big Worker Rebound” said that “Among those 65 and up, on the other hand, participation lags well below its prepandemic level, the equivalent of a decline of about 900,000 people. That has helped to keep overall participation steadily lower than it was in 2020.”

These are big numbers. The lack of workers is driving costs upwards for everyone due to inability to make things run smoothly in manufacturing, the supply chain, service industry, etc. The bidding war for workers is also a large factor forcing producers to keep raising prices with spiraling inflationary effects. The Fed’s only solution at present is to keep raising interest rates to make it more difficult for companies to borrow for their needs, which in turn forces them to lay off workers, with the anticipated ripple effect of US workers and their families having to cut back on purchases so that demand does not continue to exceed available supplies.

The US needs a younger population of workers, and those that are coming over with their families from other countries are usually the young and ambitious unafraid to leave their home countries.

We are not advocating open borders as there must be control over the numbers allowed into the country. That situation is amply demonstrated by the situation at the southwestern border. But the US must become a more generous nation in its immigration policies toward employment based, family-based, and refugee/asylum based. A good example of possible positive legislation could be an EAGLE (Equal Access to Green Cards for Legal Employment) Act (which last year proposed to lift individual country quota limits without increasing visa numbers) being proposed this year with an increase in numbers so that countries are not fighting each other over the quota limits. Imposing order over the southwestern border through the Biden administration proposal to control it through a 30,000 per month two-year parole program could also help in the revitalization of the workforce. Hiking of H-1B cap numbers for workers in specialized occupations could also help as over 400,000 applications for registration last year vied for 85,000 slots.

Yet the reaction from Republicans and conservatives to positive changes in immigration law in the 118th Congress has so far been poisonous in seeking a restrictive agenda starting with the soon to be introduced “Border Safety and Security Act” and quoting their words “We Must Secure the Southern Border” without any ameliorative provisions.

Public opinion must be on the side of more immigration for the sake of the country. Recognition of the role of immigration in keeping the nation strong should be the overriding factor, and not the demonization of immigrants. A good place to start would be recognizing the contributions of the DREAMERS, children brought into this country who have been educated here and have contributed to the US in many occupations, including those most hazardous during Covid-19’s most deadly period. A continuous push should be made to give them permanent status and not have them continue being used as the ultimate bargaining chip in immigration negotiations. The Congress could then move on from there to other deserving or needed groups.

Q&A’s published on the World Journal Weekly on January 22, 2023 1. Can I acquire any type of citizenship or permanent residency from my deceased US citizen father? 2. Sibling info on Green Card for parents 3. Can immigration officers look past inadmissibility? 4. Can I keep using my STEM OPT EAD even though I get my C9 EAD?

1. Can I acquire any type of citizenship or permanent residency from my deceased US citizen father?

I was born in 1977 and my father was born in the 1950s. He acquired his green card when he retired from working for the us government in the Panama Canal for 20+ years. We then moved to the us in 2007 and he filed a form I-130 and form I-485 petitioning for me, his married daughter over 21 years old, this was obviously denied because when he first filed he was a permanent resident at the time and our lawyer was an inexperienced scam artist who knew that I didn’t meet the requirements but still decided to submit the application and take thousands of dollars. My father became a naturalized US citizen in 2016 but I never submitted another application because I was waiting to hear back on the first one. However, my father ended up passing away in 2021 and only a few months after did I finally get a response that my application was denied. Since my father passed I am not sure if I am able to re submit another application although I do have an approved form I-130. What can be done?

Mr. Lee answers,
Your fact situation is confusing to me as you say that the application was denied, that you did not file another application, but that you do have an approved form I-130. The confusion lies in your stating that your father filed for you, a married person, when he only had the green card – and that would be a filing that does not conform with the law of eligibility.

Nevertheless, assuming that an I-130 petition was approved at some point for you prior to the time of your father’s passing away, and you were in the US at the time, that petition might be a basis for a permanent residence application. As the facts are unclear, I suggest that you should consult with an immigration lawyer to go over your entire situation and for him or her to explore with you any steps that might be able to be taken. 

2. Sibling info on GC for parents

If I am applying for parents Immigrant visa, do I put the info for my other siblings who are all over 21 years of age, and not being applied for on the Family section of the petition for Alien Relative, my sibling is a GC holder via employment.

Mr. Lee answers,
In our office, we usually put all sons and daughters of the beneficiaries on the I-130 form. I note that the form itself does not limit the term “children” although the Immigration and Nationality Act defines children as being under the age of 21 and unmarried. Also, the form instructions refer to both “unmarried children” and “married children”. Additionally, some of our clients are uncomfortable with the idea of leaving out any of the 21+-year-old children, and so we generally include them. If there is a reason for which our clients do not wish to mention such children, we will leave them out. 

3. Can immigration officers look past inadmissibility?

My father is currently in China waiting for his interview appointment. He went back to China two years ago. My mom is a citizen and sponsoring. I believe he will be found inadmissible and have to file for a waiver because he reentered the US after being deported in the 90s. He has no criminal record and started his own business while living in the US. He says that there is a chance that the immigration officer has the right to overlook his inadmissibility and approve him for a green card? Is this possible?

Mr. Lee answers,
A US consular officer does not have the authority to overlook grounds of inadmissibility. If your father was deported previously, one question is whether he served out the entire time of the bar before coming back to the US. When he reentered the US, did he enter legally or illegally? If he entered illegally before April 1, 1997, he would be eligible to file waiver applications after his interview with the US consulate. On the other hand, if he reentered illegally on or after that date, he would have incurred a permanent bar under which he will not be able to request permission to return to the US as an immigrant until 10 years after he left the US a couple of years ago. The granting of permission to reapply at that point would be in the discretion of the Attorney General.

4. Can I keep using my STEM OPT EAD even though I get my C9 EAD?

I have a valid STEM OPT EAD until 2024. I am going to apply for an adjustment of status soon to obtain a marriage based green card. When I get the c9 EAD in hand while the I-485 is pending, can I still keep using my STEM OPT card? Or should I use my C9 EAD because I applied for an adjustment of status?

Mr. Lee answers,

I do not believe that it makes much difference which EAD you will be using. You are authorized to work under your STEM EAD and that is not revoked by your applying for adjustment of status and obtaining employment authorization (C )(9) on the basis of that. However, please note that the STEM EAD is tied to the field of your degree while a (C )(9) EAD is open market and can be used for any employment.

Q&A’s published on the World Journal Weekly on December 18, 2022 1. Can Shoplifting Affects a Citizenship? 2. What Will Happen to a Child’s (18 years old) Derivative Immigration Visa Status If His Principal Immigration (Parents) Do not Maintain Green Card? 3. Class 3 Misdemeanor – Speeding. Will it Affect my H-1B? 4. H-1B Visa

1. Can Shoplifting Affects a Citizenship?

 I had a case of shoplifting in Aug 2015, I was arrested and detained for 2 days in the county detention facility, my charge was a misdemeanor class B ($50-750) I participated in a program called retail theft pretrial intervention and I obtained a dismissal from my case in May 2016. In January 2022 I applied for my American citizenship and I am waiting for my interview. I’m a little nervous because I certainly don’t know how this can affect me when it comes to being interviewed?! I obtained my permanent residence in 2017 and since that date I have only had two traffic tickets also dismissed by the court. I don’t know whether to mention these tickets during my interview?! I also don’t know if the program in which I participate is any of the programs mentioned in the N400 in part 12. I feel a little distressed about my background. What I need to do?

Mr. Lee answers,
In your fact situation, your case of shoplifting was in August 2015, well over five years old by the time that you applied for your citizenship in 2022. I also note that you said that you received your permanent residence in 2017, and I assume that you disclosed the shoplifting offense in your immigration application papers. The period of good moral character is five years, and this should not be held against you. I suggest, however, that you obtain a certified copy of the court disposition to take with you to the interview if you have not already presented it as part of your naturalization application. On your other questions, I do not believe that pretrial intervention and dismissal qualify as one of the programs  mentioned in part 12, item 26, if you did not have to make an admission of guilt. Also you should mention the traffic tickets as item 23 of the same part asks whether you have ever been cited, and a traffic ticket is a citation. 

2. What Will Happen to a Child’s (18 years old) Derivative Immigration Visa Status If His Principal Immigration (Parents) Do not Maintain Green Card?

My elder brother will get immigration visa (F4) his son / wife will get the derivative immigration visa as well. He might have to go back and won’t be able to maintain his green card / permanent residence in USA. His Son wants to stay and do his bachelors and pursue a career in USA. Can his son stay in USA with Green card without his parents staying in USA?

Mr. Lee answers,
An applicant who is sponsored for immigration has an obligation to make the US the country of permanent domicile. Failure to at least initially come and establish a permanent residence in the US (spending a period of time initially in the States) makes the green card statuses of the dependents insecure and subject to challenge. If your brother first enters the US and stays here for a period of approximately six months, it would make it much harder for DHS to challenge the dependents’ statuses even if your brother’s green card is taken away at some later point for no longer maintaining status. 

3. Class 3 Misdemeanor – Speeding. Will it Affect my H-1B?

I received a criminal speeding ticket in AZ a few days back. Just speeding and nothing else. Its a class 3 misdemeanor speeding ticket. I’ve hired a lawyer and planning to contest it. Will a speeding misdemeanor affect job opportunities like during background checks? Will it affect my H1B?

Mr. Lee answers,
I do not practice criminal law, but in googling criminal speeding in Arizona, it appears that excessive speeding is traveling at more than 20 mph over any speed limit in the state, and that it is a class III misdemeanor for which the maximum penalty is 30 days in jail, a $500 fine plus an 83% surcharge and up to one year of probation. Those are pretty hefty penalties for what does not appear to be a big crime. That being said, I do not know whether having the misdemeanor on your record will reduce your chances of obtaining a good job opportunity. However, such should not affect your H-1B status as it does not appear to be a Crime Involving Moral Turpitude (CIMT), which is usually the line used to determine whether DHS should begin to become involved. I note that visas have an element of discretion, even H-1B’s, and if you had to or wish to obtain a visa in your passport, the incident could result in a consular officer looking harder at your application, especially if there is a finding of guilt. 

4. H-1B Visa

 I am currently living in the USA on H4 visa on my wife’s H1B visa. While our green cards are in process, she has no EAD for me to work. I have previously worked on L1A in the USA and did a change of status from L1A to H4 visa. While we are waiting to have my wife’s PWD approved, I have been contacted by companies to interview. A company is willing to sponsor my H1B visa. (never been on H1B in the US) I am trying to understand – when can the company file for my H1B petition – is it only in March/April ? Can they put any start date or is it always Oct 1 of the same year? As far as I know, fresh applicants apply for lottery in Mar/Apr and then they work on H1B from Oct1 – most of them have an interim visa that allows to work between those periods. I do not have an interim work permit – what are my options? 

Mr. Lee answers,
Unless the organization that is interested in hiring you is cap exempt (institution of higher education, nonprofit organization affiliated with an institution of higher education, nonprofit research organization, or governmental research organization), it must go through the selection process to hire H-1B workers. Such involves registering the company and possible candidates in March, after which USCIS will announce the selectees in the last week of March, and allow H-1B visa petitions to be filed beginning in April for work to begin in October assuming that petitions are approved in time. A few options to consider are searching for a cap exempt organization, applying for O-1 extraordinary alien status if you are extraordinary, or working under H-4 if your wife is able to obtain an I- 140 approval.

Article: “USCIS RECOMMENDATIONS ON FILING PAPER PETITIONS AND APPLICATIONS – WHAT WORKS AND WHAT NEEDS SOME THOUGHT.”

As published in the Immigration Daily on December 6, 2022

At a webinar on O & P petitions on August 3, 2022, the question was asked of when USCIS anticipated that we could file without a duplicate I-129 petition as several years ago, the Kentucky Consular Center (KCC) and USCIS had said that duplicates would no longer be required as they were moving towards a digitization process. The USCIS webinar response was that it was no longer necessary to provide a duplicate. However, without further assurance from the agency, many practitioners were understandably reluctant to abandon sending in duplicate copies.

On November 16, 2022, USCIS sent out its recommendations on how it wants paper (not online) petitions and applications to be submitted to it in order to improve scanning efficiency. We have some reservations concerning several of the points in the guidance and believe that further discussion may be warranted and have added our italicized comments at the end of the particular bulleted points on which we have questions.

USCIS instructs that petitioners and applicants should not:

  • Hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another. For large applications and petitions, the admonition can be complied with as they can be bound with large rubber bands – but such cannot be done with smaller applications and petitions and no one wants to chance some papers slipping out or being thrown away in the mailroom, in transit from the mailroom, or while on an officer’s desk.
  • Include photos or documents smaller than 4×6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when we request a passport photo with the filing. Are passport photos considered documents not to be stapled or paper clipped? If so, it should be noted that it is difficult to secure loose passport photos in a way that assures that they will not be lost. The practice of securing the photos directly onto the applications assures that there is much less chance of photos going missing. Perhaps the point requires some clarification.
  • Include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. We will not accept these types of materials. However, we will accept photographs or photocopies of these items. Photographs of musical greeting cards, toys, and action figures can be photographed and perhaps understood, but CD-ROM and DVD covers are generally only good for musical acts or movies or the like – otherwise, how can you convey what is meant to be represented accept by photocopies of the contents – a prodigious endeavor. Ditto for most thumb drives.
  • Submit forms or evidence documents bound with a binding or spiral wire/plastic.
  • Submit evidence using photo albums, scrapbooks, binders, or greeting cards.
  • Fold documents.
  • Place sticky notes on documents. While we agree with this in general, we believe that placing sticky notes on top of the first page to identify the contents, but not on the documents themselves is helpful to USCIS in identifying what type of case is being submitted.
  • Use insertable tab dividers. We believe that most practitioners have already abandoned the practice of using insertable tab dividers, and that the use of colored paper to divide parts of the petitions and applications mainly serves the same function and helps officers adjudicating them in differentiating the separate parts.
  • Print forms on colored paper. The G-28 authorization of representation for attorneys and other representatives is the only USCIS form in a different color – blue – and printing it strictly on white paper increases the chances that the form will be overlooked by officers going through applications and petitions. Does this mean that the Service no longer wishes to even have the edges of a white G-28 blued to differentiate it from all the other white pages? This could use some clarification.
  • Submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If you are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended. This is one development that can be cheered if only for the number of trees saved!
  • Send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:
  • Required by the form instructions for the application, petition, or request you are filing; or
  • We specifically issue a request for you to submit an original document.

USCIS adds that avoiding these activities will improve its efficiency as it processes application, petition, or requests.

After digesting these recommendations, we looked over the form I-129 instructions and found to our chagrin that an alert had been posted for some time that no duplicate I-129’s have been required since August 11, 2022. One would think that USCIS would have publicized that change of policy loudly rather than just sticking it in the form instructions.

Looking for more surprises, we went through three popular forms, the I-131 Application for Travel Document, I-485 Application to Register Permanent Residence or Adjust Status, and I-765 Application for Employment Authorization, to see whether the photograph specifications had been changed. Both I-765 and I-485 instructions were the same that applicants must submit two recent identical color passport style photographs with white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched; that they must be 2 x 2”, in color with full face, frontal view on a white to off-white background with head height measuring 1 inch to 1 3/8 inches from the top of the hair to the bottom of the chin and eye height between 1 1/8 to 1 3/8 inches from the bottom of the photo. However, the I-131 gives applicants the alternative of submitting a digital photo which must be produced from a high-resolution camera having at least 3.5 megapixels of resolution.

While some of the bulleted points reflect common sense and have already been adopted by most petitioners and applicants, USCIS should take a moment to consider other bulleted points and clarify or change some of its recommendations.

Arthur Lee, Esq. marries Ann Back

The law firm of Alan Lee and Arthur Lee, Attorneys at Law, is happy to announce that Arthur Lee, partner at the law firm, and Ann Back, his long-time girlfriend and fiancée, married on November 11, 2022, at Leonard’s Palazzo in Great Neck, Long Island, New York, before 100+ guests. On the following day, another celebration was held for Alan Lee’s mother-in-law, Yuchu Wen, who turned the grand age of 101 at the East Ocean Palace in Forest Hills, New York.

 

Q&A’s published on the World Journal Weekly on December 4, 2022 1. How to return to the USA after abandoning LPR 2. How can my immigrant wife petition her sons to come to USA with us? 4. Should I apply for my green card or my citizenship after legal name change?

1. How to return to the USA after abandoning LPR

My mother who has an active green card, but an expired travel document is trying to return to the USA. 1) After completing form I-407, where does she mail or email it to? 2) Should she expect a response or proof that she filed I-407 before being allowed to travel to the USA? 3) After completing I-193, where does she mail or email it to? 4) Should she expect a response or proof that she filed I-193 before being allowed to travel to the USA? 5) If by completing form I-193, she will be allowed to travel to the US without a visa or travel document, what kind of documentation does she need to present at the airport in Saudi Arabia and the custom petrol checkpoint in the USA to be permitted to fly and enter the USA? 6) Where does filling form DS117 fit into all this? 7) Does she apply for form I-131 for a new travel document at any point here? 8) What is the best way to work with an immigration lawyer in this case.

Mr. Lee answers,
If your mother has an “active” green card which is not expired and has not been out of the US on this trip one year or more, she would be able to return on the basis of the green card by presenting it to the air carrier and to U.S. Customs and border (CBP) inspection officers. If the green card is not expired, but your mother has been out of the US for one year or more and a reentry permit is expired, she may be able to present the green card to the air carrier and U.S. Customs and border inspection officers along with explanations and proof as to why she did not reenter the US within one year of leaving. If CBP wishes to admit her with a waiver, it can allow her to fill out and pay for an I-193 application for waiver of passport and/or visa. An alternative for your mother is to apply to the consulate or embassy for a special immigrant visa (DS-117) if she is able to prove that she had a good emergency reason for not being able to return to the US within the one-year validity date of the green card or the time on a reentry permit. On the other hand, if she is abandoning the green card now, she would send in the I-407 form to the Williston, Vermont, address on the instruction to the form, and then could possibly apply for and obtain a visitor’s visa from the American consulate or embassy. With reference to an I-131, a reentry permit cannot be applied for by an individual outside the U.S.  

2. How can my immigrant wife petition her sons to come to USA with us?

My wife came here from Philippines on K1 visa in January 2020. We were married in February 2020. She currently has her two-year green card. She does not work. I, as her husband, work to support her by my own choice. She has three adult sons in Philippines, ages 19, 20, and 26. Can she file form I-130 to petition them to come to USA even though she does not have a job? Is it to our advantage to file the petition(s) before her 20-year-old son turns age 21? I will sign a sponsor letter if necessary

Mr. Lee answers,
Currently an application by your wife for her three children in the Philippines would take approximately 10 years to complete if they were born in the Philippines and remain unmarried during these years. The law, however, does allow a stepfather who marries the mother of the children before they turn 18 to apply for the eligible children and that would shorten the period of time. You state that you were married in February 2020, and that would be over two years ago. You also state that two of the children are 19 and 20. If you married your wife before those children turned the age of 18, you could petition for them now as your immediate relatives, and possibly immigrate them in approximately one year. If the circumstance applies, you would have to petition before the 20-year-old child turns the age of 21. Unfortunately, the 26-year-old cannot benefit under the above and would have to wait approximately 10 years through your wife’s petition unless he has other ways to immigrate. Financial support documents are not required at the beginning, but at the time that the children begin to get ready for their interviews at the American Embassy.

3. My father is a principal on a qualifying labor certification application that was submitted before 4/30/2001 does this help adult unmarried daughter.

My father is a principal on a qualifying labor certification application that was submitted before April 30,2001. His I-485 has been recommended for approval as of Apr 29, 2022. My question is regarding one of his children. She (my sister) is currently an unmarried adult (over the age of 21), when the labor certification was approved she was unmarried and under 21 years of age. My question is whether she is eligible to apply as an “accompany” or “follow to join” the principal beneficiary (parent). My sister does have a US Citizen daughter who will be turning 21 in a couple of years and a US Citizen sibling. Does any of this help her in any way to petition an immigrant visa? Any and all answers are greatly appreciated. Thank you for your time and consideration.

Mr. Lee answers,
As your father was the principal on a labor certification with merit filed prior to 4/30/01, your sister who was under the age of 21 at the time is grandfathered for purposes of §245(i) if she entered the US by December 21, 2000. That means that she is not barred from adjusting status through any means that she can gain immigration from even if she entered the US without inspection or took up unauthorized employment or overstayed her visa status. For purposes of accompanying or following to join your father on his case, she would be too old by this time. You say that your sister has a US citizen daughter who will be turning 21 in a couple of years –that petition would likely be the quickest way for her to immigrate. Usually, an immediate relative petition like this would take approximately one year to complete. A sibling petition begun today on the other hand could take approximately 15 years to gain permanent residence. 

4. Should I apply for my green card or my citizenship after legal name change?

I recently completed a legal name change. I am green card holder eligible for citizenship. My question really is do I need to correct my name on my green card before applying for citizenship or can I just apply for my citizenship?

Mr. Lee answers,
You do not have to correct your name on the green card before applying for your US citizenship. I note that USCIS does requires individuals to have green cards with at least six months validity on them when applying for citizenship. That is usually the only time that individuals must apply for new green cards when applying for citizenship. As you already have a legal name change, you can enclose a photocopy of the court document changing your name in your naturalization application. To lessen confusion in any day-to-day situation, you can carry a copy of your name change document with you along with your green card or a copy of it. 

Article: SEACHANGE IN LINE FOR N-648 MEDICAL CERTIFICATION FOR DISABILITY EXCEPTIONS ADJUDICATIONS

As published in the Immigration Daily on November 7, 2022

Form N-648 applicants requesting disability exemptions for the English requirement and/or civics requirement and/or oath of allegiance should now see a big change in the general attitude of USCIS officers towards granting exceptions to the requirements. USCIS acknowledged in a form revision and policy update on October 19, 2022, that the changes were guided by public comments and feedback with USCIS Director Ur M. Jaddou saying, “This is a wonderful example of how USCIS is listening to the public it serves in order to better address their needs while fulfilling our responsibilities as an agency.”  The form itself has been shortened and simplified, and new telehealth guidelines further remove barriers for applicants and medical professionals. The form changes were also in response to the Administration’s goal to remove barriers for underserved populations under Executive Order 13985, Advancing Racial and Equity and Support for Underserved Communities through the Federal Government.

Applicants for medical exemptions have experienced an entire host of critical responses from USCIS officers, and under the new policy guidelines, adjudicators are no longer supposed to:

  • Attempt to determine the validity of the medical diagnosis or second-guess why the diagnosis precludes the applicant from complying with the English requirement, civics requirement or both requirements.
  • Request to see an applicant’s medical or prescription records solely to question whether there was a proper basis for the medical professional’s diagnosis unless evidence exists that creates significant discrepancies that those records can help resolve. The officer may ask follow-up questions to resolve any outstanding issues.
  • Require that an applicant undergo specific medical, clinical, or laboratory diagnostic techniques, tests or methods.
  • Conclude that the applicant has failed to meet the burden of proof simply because the applicant did not previously disclose the alleged medical condition in other immigration related medical examinations or documents. It is appropriate, however, to consider this a factor when determining the sufficiency of the N-648. The officer should always examine the evidence of record and ask follow-up questions to resolve any outstanding issues.
  • Refer an applicant to another medical professional solely because the applicant sought care from a professional who shares the same language, culture, ethnicity, or nationality.

Officers should now only do the following when adjudicating the request for exemption:

  • Determine whether the form has been completed, certified, and signed by all appropriate parties.
  • Ensure that the form relates to the applicant and that there are no significant discrepancies between the form and information contained in the applicant’s “A” file or record.
  • Determine whether the form contains enough information to establish that the applicant is eligible for the exception by a preponderance of the evidence including ensuring that the medical professional’s explanation is both sufficiently detailed as well as specific to the applicant and to the applicant’s stated physical or developmental disability or mental impairment.

On telehealth, the new simpler form allows the medical examination to be conducted through telehealth examination with the medical professional adhering to the state telehealth laws and requirements. Medical professionals allowed to fill out and sign the form are medical doctors, doctors of osteopathy, and clinical psychologists.

And where the applicant is so disabled as to not be able to understand or communicate an understanding of the oath of allegiance, a legal guardian, surrogate, or eligible designated representative can complete the naturalization process for the applicant and USCIS can waive the oath of allegiance. USCIS recognizes by priority legal guardian or surrogate, and then in the following order US citizen spouse, US citizen parent, US citizen adult son or daughter, and US citizen adult brother or sister who is the primary custodial caregiver & takes responsibility for the applicant. A person acting on behalf of the applicant must provide proof of legal guardianship or documentation to establish the familial relationship. In addition, the person must provide documentation to establish that he or she has the primary custodial care and responsibility for the applicant (for example, income tax returns, Social Security Administration documents, and affidavits from other relatives). For family members, they must provide proof of US citizenship. If the family member is not a US citizen, USCIS explains why he or she is not qualified to act as a designated representative and offers the applicant an opportunity to bring another person who may qualify.

The new form and guidelines are very encouraging and will hopefully not encounter resistance from naturalization examiners who have been overly skeptical of exemption claims in the past.

Q&A’s published on the World Journal Weekly on October 23, 2022 1. I had worked on H1B visa  and I am considering moving back to US, Do I need to again sit in lottery? 2. I am considered an alien relative. Can I file for I-485 and I-765 at the same time once I get my I-130 form approved? 3. Can I expedite my DACA? 4. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract? 5. Can I re-enter the US with an arrest record on J-1 visa?

1. I had worked on H1B visa  and I am considering moving back to US, Do I need to again sit in lottery?

I currently live in India. In April 2018, I came to US on L1B Visa, and then got H1B visa in 2019 lottery (expiration date of H1B visa on passport is June 2022), and had worked on H1B visa from Oct-2019 – Feb 2020. After I left my job in Feb 2020, Due to Covid pandemic and health issues, we had filed for extended stay via I539A before the H1B grace period of two months end. We left US on Nov 7, 2020, which I realize could be overstay, not sure. Could you please clarify ? I am now considering moving back to the US. Do I again need to sit in lottery as worked couple months on H1B? implications and solution of potential overstay?

Mr. Lee answers:
As you previously worked under H-1B status in the US in 2019-2020, you do not have to go through another visa selection process. Under the conditions that you describe in which you timely filed an application to remain legally in the US after your H-1B job ended, and presumably left prior to the adjudication, there may be a valid question of overstay as the maximum period of initial time allotted for being a visitor is only six months and you would have exceeded that even if you had filed during the 60 day grace period. However, there is room for argument that you complied with the law and USCIS was supposed to have made a timely adjudication. Under the Foreign Affairs Manual guidance, I do not believe that your explanation of actions should prejudice you in a later application for a visa.

2. I am considered an alien relative. Can I file for I-485 and I-765 at the same time once I get my I-130 form approved?

My dad is a lawful permanent resident. I intend to file for I-30 soon, and I wanted to know if I could file for I-485 and I-765 once I get my I-130 form approved? Furthermore, what is the estimated time to get the two aforementioned forms approved?

Mr. Lee answers:
Whether you can file for I-485 and I-765 once you have your I-130 petition approved depends upon whether there is immediate visa availability. If you are a child under the age of 21 and unmarried of a lawful permanent resident, you would generally be able to file for I- 485/I-765 if inspected and admitted or paroled and in addition have maintained status under the LPR sponsorship. However, if you are in the other categories, you would have to check the visa charts to see whether your priority date has been passed and the visa available in order that you can file. In checking the visa charts, you would also have to look at the USCIS acceptance chart to see whether it will accept either the “final action dates” or “filing dates” chart on the monthly visa bulletin for purposes of allowing adjustment of status filings. If able to file both forms, current processing time for I-485’s is generally a little less than a year on a nationwide average and for I-765 3-6 months.

3. Can I expedite my DACA?

My DACA is expired. I already filed for a renewal but it is in process now. My employer asks me to resign due to my status, what can I do ?

Mr. Lee answers:
You can request an expedite from USCIS if you will suffer severe consequences from losing the job. USCIS will entertain such a request if the severe financial consequences are not the result of your failure to timely request the DACA renewal. It further says that, “Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization by itself, without evidence of other compelling factors, does not warrant expedited treatment. In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.”

4. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract?

I would like to inquire. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract or what are the required procedures, knowing that it my visa does not apply to the two-year rules In addition, I would like to know what types of visa are available for transfer.

Mr. Lee answers:
For chefs, the H-1B visa is generally not a good choice as being a chef does not require a specialized degree. H-1B visas are given for specialized occupations requiring baccalaureate or higher related degrees in the occupational field. O-1 classification for extraordinary chefs is the more proper visa category. An option could be an organization sponsoring a cook or chef for permanent residence under a labor certification. For persons born in most countries of the world except China and India, the approximate time of such a case if everything goes well is approximately two years. I note that being sponsored for a labor certification alone does not entitle an individual to remain in the US during most of the time of processing. A further option may be changing status to go to school in the country under F-1 or M-1 status. 

5. Can I re-enter the US with an arrest record on J-1 visa?

 I’m a foreign exchange student on a J-1 visa, I was arrested in a misunderstanding in February 2022. I hired an attorney and my case was never filed to the court, but the arrest record should be available. I would love to travel home now but was wondering if it’s reasonable, or would I have problems re-entering the U.S. with the arrest record? Is there a chance they won’t let me cross the border?

Mr. Lee answers,
While one cannot discount Customs and Border Protection inspectors looking with interest in any arrest, the fact that your case was never filed with the court is very favorable towards allowing you reentry into the States. Kindly note that an admission of guilt to an immigration inspector has the same effect as a conviction when you are trying to be admitted as a nonimmigrant to the country. If the arrest was for an excludable act, and it was admitted, then you would have difficulties. You may wish to bring a copy of the proof that the case was never filed to court in the event that there are questions.