Author: Alan Lee

Q&A’s published on the World Journal Weekly on October 16, 2022 1. How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years. 2. I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days? 3. What will I do when I was denied the petition for naturalization because I was not able to produce the document?  4. Can I travel between USA and Canada using AVR (each trip duration less than 30 days) multiple times while my visa appointment is scheduled? 5. Do I include children from a previous marriage who aren’t on my tax returns on my I-134? 6. Would it be a safe idea to stick with the current company? or I should switch to the new employer

1. How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

Mr. Lee answers:
I do not know of an expedited process for green cards where healthcare workers are concerned, although USCIS recently said that it would expedite employment authorization renewal cards for such workers. The fact that you are already in the US instead of overseas would also not be in your favor in requesting an expedite from the agency. The expedite criteria from USCIS are: Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons; Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or Clear USCIS error.

2. I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

Mr. Lee answers:
Just because you were given until July 27 on your entry does not mean that you are allowed to come back to be in the US for another 15 days after returning from India. Your leaving and coming back subjects you to a new inspection when your return. A CBP officer may wonder why he or she should allow you to come back in after such a short trip outside the country. You may have a more sympathetic inspection if you are able to outline the reasons for which you need the additional time and you are able to produce documents relating to the urgency of your having to return to India before being able to accomplish your original purpose in the US.

3. What will I do when I was denied the petition for naturalization because I was not able to produce the document? 

I filed for a petition for naturalization but was denied because I was not able to submit the divorce decree. This was back in 1988.

Mr. Lee answers:
The question would appear to be the relevance of the divorce document. If it was not relevant to the question of your qualification for naturalization, you can submit a new application. If it is germane to the qualification, you should obtain it either by the time that you file for naturalization or by the date of your interview.

4. Can I travel between USA and Canada using AVR (each trip duration less than 30 days) multiple times while my visa appointment is scheduled?

I have a valid I797 and I94 for H4 status until 2024 and a Confirmation of Permanent Residence (CoPR) for Canada. Also, I have expired H1B and F1 visa stamps on my old passport. Now, I need to move to Canada temporarily for work (2-3 months). Can I travel weekly between USA and Canada to visit my family in USA using Automatic Visa Revalidation (AVR) multiple times? My visa appointment in US embassy in Canada is scheduled for Oct 4, 2022, but I want to travel back to the US on weekly basis in May, June and July 2022. Also, I understand I can not do any productive work while I am in the US on H4. Look forward to your response.

Mr. Lee answers:
Technically, you appear to meet the requirements of automatic visa revalidation as you have a current status, an expired US visa, and will be in Canada for less than 30 days on each trip. You may be questioned on the purpose of your frequent trips if there is some thought that you may be doing something illegal, but I do not otherwise see a problem. The fact that you have a visa appointment at the consulate scheduled for October should not affect trips done before the interview. Insofar as Canadian entries are concerned, I possess no knowledge of Canadian immigration law and cannot inform you as to whether there are restrictions.

5. Do I include children from a previous marriage who aren’t on my tax returns on my I-134?

Next month, my husband will have a k3 visa interview in UK and I need to fill out his I-134. I do not make enough money and I am using my mother that I live with as a joint-sponsor (she made 47k last year and has been employed at her job for 13 years). When I filled out his i-129F for the K3 visa I did list my children from a previous marriage under information about me (sponsor). Now, my question is, I have been told by multiple people since my ex husband has claimed the three children he and I have the last three years on his tax returns and I have not, that I do not need to put them on my i-134, only the daughter I have with my husband who is on my tax returns. Is this true? I am worried about them thinking there is any inconsistency between the i-129F information and the i-134.

Mr. Lee answers:
The I-134 affidavit of support form only asks for a listing of dependents who are dependent upon you for support, either partially or wholly. If they are not dependent upon you for such support, then it appears that you would not have to list them.

6. Would it be a safe idea to stick with the current company? or I should switch to the new employer

I recently got my h1b petition picked in lottery by 2 (two) companies. I have been working with my current company since 2020 and got my h1b denied in year 2020 due to speciality occupation after which i decided to pursue a specialized masters related to position. This year I got a new offer by other company who also filled for my h1b and got picked in the lottery. So my question is, should i stick with the current company? or it would be better to apply through new company as my h1b was denied before by current company.

Mr. Lee answers:
I do not know your particular situation and so cannot advise you which one is the better opportunity for success. If you have completed a specialized master related to the position, perhaps your chances are as good or even better with your current company than they would be with the new company. If you are really confused, you should speak with the attorney or attorneys who are handling your case for an opinion. Good attorneys will usually give a candid assessment if you request one. 

Article: “Family-Based Preference Cases to Progress in FY-2023?”

As published in the Immigration Daily on October 12, 2022

The last two years have been difficult for family preference cases, especially where the beneficiaries are overseas as scheduled interviews have been few and final visa availability dates largely static with the exception of Mexico. In the meantime, the employment categories have prospered under the rule that any family-based visas not used in one fiscal year are transferred over to the employment-based quota limit in the next fiscal year. The normal allotment of employment-based cases is 140,000, but in FY-2021 reached 262,288 and in the just concluded FY-2022 281,507. That means that in FY-2020 ending on 9/30/20, 122,288 family preference visas were left on the floor while in the year ending 9/30/21, 141,507 family preference visas were left unused. For FY-2023, the Department of State has projected employment-based visa usage to be approximately 200,000, meaning that 60,000 family-based visas are expected to have been left on the cutting room floor in FY-2022.

The effect of pandemic fears restricting the number of interviews at consulates and embassies and State Department priorities in light of staffing losses have checked the ability of US consulates and embassies to process family-based preference cases in which the beneficiaries are largely overseas as opposed to employment-based situations in which the beneficiaries are mostly in the US and working under temporary visas. Immigrant visa issuance was initially hamstrung by the Diplomacy Strong policy instituted in the early days of the pandemic which initially dictated a temporary shutdown and then visa services reopening on a limited basis post-by-post beginning on 7/15/20. In September 2021, the Department issued a memorandum setting prioritization of family preference categories as third tier priorities beneath tier 1 (Immediate relative intercountry adoption visas, age-out cases, certain special immigrant visas, and emergency cases determined on a case-by-case basis) and tier 2 (immediate relative, fiancé(e) and returning resident visas). In the 9/13/21 “Immigrant Visa Prioritization,” memo, the Department made clear that “This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancé(e) cases as possible with the goal of, at least at a minimum, preventing the backlog from growing in these categories and hopefully reducing it. However, the prioritization plan also instructs posts to schedule and adjudicate some cases in Tier Three and Tier Four each month.”

What are the chances that we will see the family preference classes make some moves forward or backward worldwide in FY-2023 (10/1/22 – 9/30/23)? So far, in terms of visa chart movement in October and November, there is no movement at all except for advances for Mexico. A quick synopsis of family-based movement in the latest visa chart is the following:

The November 2022 visa bulletin just came out and held no surprises and hardly any movement. FB final action dates chart: No movement except for Mexico F-2B advancing two months to 6/1/01, F-3 two weeks to 11/1/97, and F-4 two months to 8/1/00. FB dates of filing chart: Again, no movement except for Mexico F-1 advancing one year to 12/1/02, F-2B three months three weeks to 1/1/02, F-3 two months to 6/15/01, and F-4 two weeks to 4/1/01.

However, there appears to be some hope as the State Department hiring of consular staff is going well and in a 10/7/22 webinar between the American Immigration Lawyers Association and Department of State, DOS representatives affirmed that they will be fully staffed by the end of 2023. The question of whether family preference visa interviews and issuances will be attended to will likely come down to the question of priorities. In what direction will the new hires be pointed? It will not only be competition among the three tiers, but other parts of consular services that draw the attention of consular staff. DOS representatives spoke of competing interests such as nonimmigrant visas including visitors and students which help the economy and pointed to good work being done with diversity visas.

In light of the constant advancement of the Mexico immigrant visas in past months, it is possible that the immigrant visa unit there has taken liberties with the prioritization plan. If so, other immigrant visa issuing posts may be encouraged to move in the same direction

Just looking at the state of affairs in family preference categories and number of unused visas, however, attention must be given to interviewing qualified applicants, issuing immigrant visas, evaluating visa demand, and then moving the categories forwards or backwards just as in pre-pandemic days. In looking through past visa bulletins, the family preference final action dates have not changed and have sat stagnant except for Mexico since September 2021, one year and two months ago. It is almost as if the State Department has set up a placeholder final action dates chart for family preferences, which has become more embarrassing month by month.

In light of the restocking of consular staff and hopefully the immigrant visa sections, the Department of State should feel it appropriate sometime in this fiscal year to move the worldwide family preference dates in a meaningful manner.

IMMIGRATION NEWS THAT YOU CAN USE – CONFUSION IN THE IMMIGRATION COURTS; NEW PUBLIC CHARGE RULE ON RESPONSIBILITY OF AFFIANTS GIVING I-864 SUPPORT; US – CANADA TAKING SEPARATE COVID PATHS

As published in the Immigration Daily on October 6, 2022

  1. Confusion in the immigration courts.

Does anyone know what is going on? There appears to be confusion again on appearances in court as David L Neal, Director of EOIR (Executive Office for Immigration Review), came out with a memo “Internet-based Hearings” on 8/11/22, that once again gives the power back to the IJ’s (Immigration Judges) on how they can conduct their hearings. Some of the points are:

  • Whether the judge appears remotely or in court is up to the judge.
  • Whether respondent and counsel appear in court or remotely also rests with the court, but the IJ should accommodate a respondent’s request to appear in court or remotely where appropriate and practicable.
  • An IJ should accommodate a request for a witness to appear remotely where such a request is reasonable.
  • A request for a remote or in-person appearance must be made in writing 15 days before the hearing unless waived by the IJ.
  • If respondent and counsel are both appearing remotely, they may appear either together or from different locations. There is no requirement that respondent and counsel appear together from counsel’s office.

Now attorneys are running around again madly asking what is the procedure for each individual IJ. Previously, EOIR had taken a strong position in favor of Internet-based hearings by WebEx or telephone. In one recent incident, an attorney reported that a particular IJ likes open voice for master calendars even though her temp clerk says she also does WebEx and is in court if anyone shows up in person. Another attorney said that she appeared via WebEx for an individual hearing before the same judge; that the IJ logged in late and informed her that she was conducting only in-person merits hearings, but because it was not well-publicized, she would go forward on WebEx that time only.

To its credit, EOIR in the last week of September conducted webinars by region to go over the memorandum, but could not completely quell the doubts of attorneys that their clients could be found removable in absentia because attorney and client were not clear on an IJ’s mode of hearing preferences, or the communication equipment used or the link was faulty.

  1. New public charge rule on responsibility of affiants giving I-864 support.

The Biden administration issued the final rule, “Public Charge Ground of Inadmissibility”, in the Federal Register on Volume 87, Number 174, 9/9/22, which while not overly commenting on affidavits of support, played down the enforceability of the affidavits while stating that affidavits of support are to be considered in the totality of circumstances. In doing so, it knocked down the idea that there should be something in the rule concerning enforcement of the affidavit of support obligations and basically agreed with commenters that since an affidavit of support is enforceable regardless of the sponsor’s actual intent, the rule should not require officers who are favorably inclined to the affidavit of support to consider the sponsor’s credibility or underlying motives in executing the affidavit; and it declined to require officers to consider whether the sponsor would actually carry out the legally binding obligations as part of the totality of the circumstances analysis.

It appears that the taking of means tested benefits other than Temporary Assistance to Needy Families (TANF) and Medicare for long-term institutionalization are not to be counted against the applicant (not be a ground of inadmissibility) and the credibility of an affidavit of support at time of interview will be considered in the totality of circumstances.

  1. US-Canada taking separate Covid paths.

Unlike the US, Canada has abandoned Covid restrictions for visitors as of 10/1/22 so that unvaccinated visitors are now allowed into the country. Visitors no longer have to upload evidence of vaccination and other data into a government app called Arrive-Can. Canadian officials said the repeal was possible because public-health modeling indicated the country had passed peak infection fueled by the Covid-19 Omicron variants, countrywide vaccination rates, lower hospitalization rates, and availability of Covid-19 treatments and vaccine boosters targeting Omicron variants. The US still requires everyone who is not a permanent resident or US citizen to be vaccinated by a WHO approved vaccine upon entry, which means fewer visitors and less tourist dollars. President Biden declared his belief that the pandemic was over last month and might wish to take a similar step.

ALAN LEE, ESQ. SUPER LAWYER FOR 2022 IN NEW YORK METRO AREA

The 2022 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 77 attorneys chosen in the area of immigration law.

This is the eleventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2021.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2022“

Q&A’s published on the World Journal Weekly on September 25, 2022 1. Can H1B in-person first interview at the US embassy in the home country be waived off? 2. Can a misdemeanor charge be withdrawn?

1. Can H1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021?

I am from India. I was never refused any visa till now. I have an i797A receipt of H1B. This is my first H1B so, technically, an interview is required for the first stamping. But, a new USCIS circular has come up saying that the first stamping folk on H1B can do a dropbox instead of an in-person interview. Is this true? I am not from a visa-exempt country. I am from India. This is my first work visa H1B approved last year in 2021.

Mr. Lee answers,
The Department of State has expanded the lock box program to allow discretionary waivers for even first-time applicants who have had a petition approved by USCIS, who are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. Please note, however, that the waiver of in person interview is discretionary and that the consular post may still request an interview. Otherwise, good luck.

2. Can a misdemeanor charge be withdrawn?

In May 2019, my daughter was charged with a misdemeanor for elder abuse…I am the victim. At the time I made a decision to go ahead and press charges on the advice of others and to hopefully get her help with managing her emotions. I now regret that decision after seeing all the trouble it has caused with regards to probation, employment, housing , etc. She is not a criminal, just a difficult time in her life. My question: can I get the charges dropped?

Mr. Lee answers:
While I am not a criminal lawyer, it would appear that you are too late to have the charges dropped as probation means that a final judgment has already been made on your daughter’s case. You may wish to consult with a criminal attorney to see if anything can be done at this time.

Q&A’s published on the World Journal Weekly on September 4, 2022 1. I get my Green card under the F11 category, one of my accompany (son) is in “follow to join” status, can I get married if I already get my green card? 2. Will a new marriage affect my naturalization application? 3. Can I work more than one job with an H-1B? If so, what is the process to add another employer?

1. I get my Green Card under the F11 category, one of my accompany (son) is in “follow to join” status, can I get married if I already get my green card?

My Sons and I, we are in the same case under the F11 Category. I son (Accompany in the Case) is still in Follow to Join status. I already have my greed card and i have 3 years with it. My question is, If I get married now it would affect the case of my son who is still in follow to join status?

Mr. Lee answers:
The Foreign Affairs Manual in addressing the issue of the basis of following to join states the following that may make it difficult for your son to follow if you change your category at this point. “There is no statutory period during which the following-to-join applicant must apply for a visa and seek admission into the United States.  However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. ” 

2. Will a new marriage affect my naturalization application?

I have a green card, currently I’m overseas, about to get married to a non US citizen, just got the news my naturalization interview is in on month so I have to go back to US and get it, Would me getting married now could affect my interview, should I postpone my marriage till after I get my citizenship?

Mr. Lee answers:
Under normal circumstances, a new marriage while a naturalization application is pending has no effect upon the adjudication. The applicant would make the immigration officer aware of the new marriage at the time of the interview and give in a copy of the new marriage certificate. 

3. Can I work more than one job with an H-1B? If so, what is the process to add another employer?

I am currently working in the US with an H1B visa I obtained in 2021 in a school district. I am not working over the summer, so I want to look for work at another school district in June/July. I would like to know if this is possible and what the process is.

Mr. Lee answers:
To have a concurrent H-1B, the new employer must go through the same H-1B process with all the paperwork and fees to USCIS. For a concurrent H-1B, however, the employer does not have to go through the H-1B selection process.

Q&A’s published on the World Journal Weekly on August 28, 2022 1. I filled my I130 form on 11th sept 2019 and on 24 mar 2021 says we are actively reviewing. How long will this take as I have been waiting 2 years 2. Will a new marriage affect my naturalization application? 3. Petition I-140, E11 visa 4. Will the gap between F2 and H4 status affect my I-485 application? 5. Should I send my passport to USCIS when filing for TN visa extension with 1-129? 6. Can H-1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021? 7. Can an illegal immigrant be eligible for H-1B or other immigration or work visa?

1. I filled my I130 form on 11th sept 2019 and on 24 mar 2021 says we are actively reviewing. How long will this take as I have been waiting 2 years

I filled my I130 form in the California office on 11th September 2019 and i received an email in march saying ‘As of March 24, 2021, we are actively reviewing your Form I-130, Petition for Alien Relative, Receipt Number IOE0907413060’ i wanted to know how long will it take as i have been waiting for 2 years and have seen other people have filled in 2020 and had information and I have not

Mr. Lee answers:
You are unfortunately caught in a situation that many are experiencing at this time of the inconsistency of USCIS. We have seen many I-130 petition cases which were adjudicated subsequent to your filing in September 2019, and yet have some filed long ago that have not been reached. The processing times put out by USCIS have almost become a running joke as they have little relation to reality. Getting a message that USCIS is actively reviewing the case is encouraging, but there are many of these past messages in which the case was not adjudicated for a year or more.

2. Will a new marriage affect my naturalization application?

I have a green card, currently I’m overseas, about to get married to a non US citizen, just got the news my naturalization interview is in on month so I have to go back to US and get it, Would me getting married now could affect my interview, should I postpone my marriage till after I get my citizenship?

Mr. Lee answers:
Under normal circumstances, a new marriage while a naturalization application is pending has no effect upon the adjudication. The applicant would make the immigration officer aware of the new marriage at the time of the interview and give in a copy of the new marriage certificate. 

3. Petition I-140, E11 visa

I am an international student and want to apply for E11(i-140 petition) visa along with i-485 form. The questions are: -Which status I would have if I applied but my F1 visa finished? – Can I include my husband to the petition? – If the petition will not be approved and my student F1 visa is ended what I should do?

Mr. Lee answers:
In your situation, you would be in a quasi-legal status in which you are allowed to stay during the time that the I-485 application is pending. You can also include your husband by having him fill out a separate I-485 adjustment of status application. If the petition will not be approved and your F-1 status is already expired, you would not have legal status anymore unless you appealed the petition denial and that was approved. You could conceivably be in the US unlawfully for a long period after that inasmuch as the Biden administration is not targeting most status violators for removal proceedings. At such point, you may wish to consult with an immigration lawyer for any further options.

4. Will the gap between F2 and H4 status affect my I-485 application?

My F2 status expired in May 2020, and I submitted H4 application together with spouse’s H1b in April 2020, but H4 were not approved until Sep 2020. Will the gap between May and Sep affect my 485 application? what material do I need to submit to show that I have maintained my nonimmigrant status all the time?

Mr. Lee answers:
It is difficult for me to envision that you would have a problem with status given the fact that you submitted your application on time even if H-4 application was not approved for several months thereafter. A copy of the receipt of filing or approval would show the date that your application was received by USCIS, and that should be sufficient evidence to a USCIS officer that you have been maintaining legal status. 

5. Should I send my passport to USCIS when filing for TN visa extension with 1-129?

Or should I just send copies of the passport with all the documentation? Do they send me back a visa – sticker to place in the passport, or how do actually receive the visa in the passport if passport stays with me?

Mr. Lee answers,
When filing for a TN visa extension with USCIS, only a copy of the passport is required. Please note that USCIS does not do anything with the passport and only issues an I-797 notice of approval if it decides to favorably adjudicate the TN extension request. If you travel outside the US, you will still have to pass inspection with Customs and Border Protection when you reenter the US in which the officer will take a look anew at the merits of your request for TN extension. 

6. Can H-1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021?

I am from India. I was never refused any visa till now. I have an i797A receipt of H1B. This is my first H1B so, technically, an interview is required for the first stamping. But, a new USCIS circular has come up saying that the first stamping folk on H1B can do a dropbox instead of an in-person interview. Is this true? I am not from a visa-exempt country. I am from India. This is my first work visa H1B approved last year in 2021.

Mr. Lee answers,
The Department of State has expanded the lock box program to allow discretionary waivers for even first-time applicants who have had a petition approved by USCIS, who are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. Please note, however, that the waiver of in person interview is discretionary and that the consular post may still request an interview. Otherwise, good luck.

7. Can an illegal immigrant be eligible for H-1B or other immigration or work visa?

Can an illegal immigrant entering the US and getting Parole and work visa under parole can be eligible for H1B or other immigration or work visa?

Mr. Lee answers:
Persons who have been illegally in the US must generally leave the country in order to obtain H-1B or other nonimmigrant work visas. Obtaining parole and a work visa under the parole does not wash away the illegality to allow such individuals to change status in the US for nonimmigrant visas. In deciding whether to try for a nonimmigrant visa, the potential applicant should also consider how long he or she was not legally here before obtaining the parole and work authorization. Unlawful presence in the country for 180 days or one year brings about bars from returning of three and 10 years respectively.

IMMIGRATION NEWS THAT YOU CAN USE – USCIS PRONOUNCES FINALITY TO H-1B SELECTIONS; CONSULAR PRACTICE; HAPPINESS OR SADNESS WHEN IJ’S DISMISS CASES; LITTLE TO DO IN OFFICE WITH SEPTEMBER VISA CHARTS; NRC NEWS; ETA 9089 FILLING WHERE NO SUNDAY NEWSPAPER.

As published in the Immigration Daily on August 23, 2022

  1. USCIS pronounces finality to H-1B selections

USCIS has been giving case alerts for the past few days requesting H-1B petitioners and representatives to login to their H-1B registry accounts only to find that registry cases are now being marked “not selected”. To most practitioners, it appeared that there would not be a second selection for FY-2023. With the steady stream of non-selections, most petitioners/representatives had already seen the vast majority of their “submitted” cases move to “not selected”. Perhaps it was the sheer volume of candidates that caused the non-selection process to play out over a period of days. For FY-2023, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. That left 356,327 previously standing “submitted” registrations. USCIS ended the suspense this morning with an announcement that it had reached the fiscal year 2023 H-1B cap and had completed sending non-selection notifications to registrants’ online accounts. One would hope that USCIS in future years will make the announcement first so that registrants do not entertain false hopes of being selected.

  1. Consular Practice.

It may be worth repeating that in the DOS/AILA (Department of State/American Immigration Lawyers Association) liaison committee meeting of 6/9/22, consul posts are the final arbiter of whether original signatures are required or not; there is a known issue with CEAC (Consular Electronic Application Center) requesting police certificates for some applicants who lived in another country for less than one year and if you are not required to submit a police certificate that CEAC is asking for, you should instead submit an explanatory comment (NVC (National Visa Center) follows the guidance in 9 FAM 504.4-4 (B) for collecting police certificates for countries in which individuals previously resided for a year); and to the complaint that, where a US citizen spouse is regularly residing overseas and an applicant is relying upon assets to establish eligibility for the affidavit of support, NVC is requesting W-2s and a joint sponsor –NVC answered that its processes for affidavit of support eligibility remain the same as per 9 FAM 601.14-6 d to request W-2s for the periods of employment if a sponsor submitted a copy of the tax return (1040) regardless of filing status or if the sponsor submitted an original tax transcript and is only using his or her income to meet the poverty guidelines. (We have found that explanations have been useful here).

  1. Happiness or Sadness When IJ’s Dismiss Cases.

Are you happy or are you sad and does it depend upon what kind of case you have? TRAC reported on July 29, 2022, that DHS is failing to file NTAs (Notices to Appear) with the courts, and this is leading to one out of every six new cases being dismissed by the court. According to the article, Border Patrol agents are given the ability to use the immigration courts’ Interactive Scheduling System (ISS) to directly schedule an initial hearing. Supposedly, the actual NTA is created at the same time and a copy given to the asylum-seekers with the scheduled hearing location and time they are to show up in court noted on the NTA. CBP (Border Patrol is part of Customs and Border Protection) then only has to follow up with the task of seeing that the court also receives a copy of the NTA. The article opines that with the implementation of the court’s ECAS (EOIR and Appeals System) system of e-filing, this should make the process quick and straightforward (ha ha!). The article says that the failure to have this done suggests that there is a serious disconnect between CBP personnel entering the cases on an NTA and other CBP personnel responsible for submitting a copy to the court. The article further says that this is exceedingly wasteful of the court’s time and problematic for the immigrant and possibly the attorney if they show up at hearings only to have the case dismissed by the IJ because the case has not actually been filed with the court. Question – in weak cases, don’t you think that the alien and his or her representative will be jumping up with joy?

  1. Little to Do in Office with September Visa Charts.

The one thing to be said about the September Visa bulletin is that it simplifies the job in many law offices of tracking the movement of cases occasioned by changes in the monthly charts. The September bulletin is a repeat from August with the only change being in China’s EB-5 (Immigrant Investors) final action date moving up one month to 12/22/15 and dates of filing one week to 1/1/16. It did give DV (Diversity Visas) cut off dates for October and finalized numerical limitations for FY-2022 as being 226,000 for the worldwide family sponsored preference limit, and 281,507 for the worldwide employment-based (EB) preference limit. It remains to be seen whether USCIS/US consular posts will be able to use up most of if not all of the EB numbers.

  1. NRC News.

There was an interesting article in the Wall Street Journal that shed some light on the National Record Center (NRC), a place where USCIS has occasionally informed us that some of our cases are located that we are tracking at one time or another. NRC in Lee’s Summit, Missouri, is the central hub of storage, preservation, and overall management of A-Files prior to their long term, inactive storage in a NARA (National Archives and Records Administration) Federal Records Center and eventual permanent transfer to the National Archives. According to the article, NARA/National Archives is a federal storage facility that had all but closed for Covid-19; that the National Archives operates miles of limestone caves beneath the Kansas City Metro area, where millions of individuals’ immigration histories are stored. This article was occasioned by a suit for delayed citizenship revealing that citizenship officers are required to look through the histories when considering an immigration application; and that before the pandemic, USCIS routinely requested immigration histories from the archives in Kansas City without issue, but due to COVID and to minimize the time employees spent underground, the National Archives stopped responding to all but emergency requests. Finally in March, the archives fully reopened its facilities and as of May, it was processing all incoming requests. At the time of writing, there were 87,500 pending requests for immigration histories, down from a high of 350,000 in January. 

  1. ETA 9089 Filling Where No Sunday Newspaper.

In the 2022 AILA Spring conference and DOL’s Open Forum on the question of how employers should complete the mandatory Sunday newspaper advertisements where there is no Sunday newspaper of general circulation like in North Dakota where the newspapers have transitioned to weekend editions released on Saturdays, OFLC (Office of Foreign Labor Certifications) said employers should still place their Sunday newspaper ads in the weekend edition of the newspaper. On the 9089, the employer should say “no” in section I.c.8 requesting whether there is a Sunday edition of the newspaper; and then after including the newspaper’s name in section I.c.9, the employer should indicate “Weekend Edition – No Sunday Edition Available”.

 

BIA Affirms IJ Grant on Certification on Crime, Overbroad Statute, and Second Circuit Changed Law In Our Case

As published in the Immigration Daily on August 16, 2022

We are pleased to report that in an unpublished August 1, 2022, decision, the BIA affirmed on certification the favorable decision that we received from the immigration court in one of our cases terminating proceedings against a permanent resident with a Virginia burglarious tools possession conviction. The issue was whether our client had to show that someone was actually prosecuted under the facially overbroad Virginia statute for the type of conduct which was not an immigration crime under the federal definition.

Following the immigration judge’s initial decision not to terminate on the basis that we had not shown that someone could actually be prosecuted under the statute for a non-immigration crime, we again moved to terminate on the basis of changed law in New York that such a showing was not required. Matthews v. Barr, 927 F3d 606 (2d Cir. 2019). The IJ agreed and terminated proceedings, but certified her decision to the Board.

The Board concluded that “the respondent was not required to make the showing, as the statute was facially overbroad and this case is under the jurisdiction of the United States Court of Appeals for the Second Circuit.” It further said that “The Second Circuit has interpreted the realistic probability test as being inapplicable if a state statute is facially overbroad” and “as the Immigration Judge correctly recognized, the Second Circuit has extended its case law to depart from the Board’s requirement of prosecution to satisfy the realistic probability test.”

Although unpublished (not a precedent decision), the decision is important in understanding the Second Circuit (which has jurisdiction over cases in New York, Connecticut and Vermont) interpretation of law on this point and the Board’s acceptance of the Second Circuit’s stance in states under the jurisdiction of the Circuit Court.

Q&A’s published on the World Journal Weekly on August 7, 2022 1. Can my parents leave and reenter the US on their current B2 visa while their I130 (filed while they were in the US) is pending? 2. Citizenship 3. Live in US while IR-1 visa application is in process 4. Caught for shoplifting when I’m on H1b and now I am applying for H1b visa.

1. Can my parents leave and reenter the US on their current B2 visa while their I130 (filed while they were in the US) is pending?

My parents are currently in the US on a B2 (visitor) visa valid until 2024. I filed I-130s for them. Can they travel to China and reenter the US on the same B2 visa while their I-130 is being processed?

Mr. Lee answers,
Assuming that your parents have maintained their legal statuses while in the US and have the proper nonimmigrant intent to only visit and go back to the home country, they could still be allowed to reenter the country on their visitor visas even though they already have I-130 petitions filed on their behalf. They must of course tell the truth to the immigration officer at the port of entry if asked whether they are being sponsored for green cards.

2. Citizenship

We are permanent residents since December 2015, we traveled many time outside USA but every time we stayed less than 6 months. When can we submit to citizenship?

Mr. Lee answers:
The minimum stay in the US is at least half the time in the five years prior to the time that the naturalization application is filed. I note that even with the minimum, immigration officers may still give you a difficult time if they believe that you have not maintained residence in the US. The fact that you stay less than six months outside the US on your trips is only one factor. For example, a pattern of staying outside the US and only coming in for a few weeks or so between your trips outside could be seen as an abuse of your residence status.

3. Live in US while IR-1 visa application is in process

We applied for the IR-1 visa 6 months ago (I am American and my husband is Canadian) and still nothing. We are desperate to get to the USA. Is there any way for my husband to live in the US while this application is in process? We have property there already. 

Mr. Lee answers,
As a Canadian, your husband may be able to visit the US for short trips during the time that his immigration case is pending. However, he is not entitled to live in the US at this time unless he has a visa that allows him to stay in the US for a longer period of time. If he decides to visit the US for short trips, he should be honest with US Customs and Border Protection officers if they ask whether he has taken steps to apply for his US immigration. In such case, the decision to admit him would depend upon whether they believe that he is only coming in on the occasion for a short trip.

4. Caught for shoplifting when I’m on H1b and now I am applying for H1b visa.

I had stamped H1b in 2007 but never utilized and came to US in 2011 on business visa(B1) & caught shoplifting. I have an arrest record with original charges of shoplifting and got arrested and agreed that I made a mistake knowingly, so judge asked me pay $336 as fine. I did pay that amount and got the paper as well which says that case got closed, then I left the US in 2011. Now I am planning to apply for H1B.  Do I need to mention about shoplifting case now as it was 10 years old? My passport number got changed as previous one got expired. If i need to mention to USCIS then is there a chance my employer also gets to know about this? Because it will be a problematic if my employer gets to know about this. What are the chances of getting visa? I still feel sorry about what I have done :(. Thanks for all your suggestions.

Mr. Lee answers,
The H-1B petition does not ask about criminal history, so I assume that H-1B petition approvability by USCIS will depend upon the position and your qualifications. However, the visa application form, DS-160, does ask about any criminal conduct. You should of course answer truthfully.