Alan Lee – Page 12

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

1. Overstay

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

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

2. Mother Applies Married Daughter

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

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

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

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

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

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

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

As published in the Immigration Daily on September 1, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article: Fort USA Arises In The Gloaming

As published in the Immigration Daily on August 14, 2020

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

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

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

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

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

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

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

Q&A’s published on Lawyers.com and the Epoch Times on August 7, 2020 1. What is The Fastest Way to Move From F-1 to H-4/H4-EAD? 2. Asylum Denied and Placed in Removal Preceding. I Married a US Citizen and Had I-130 Interview. Can I Travel Abroad and Return Back? 3. If a Person Was Charged with Embezzlement and Served Jail Time Before Being Deported in 2008, Can He Return to the United States?

1. What is The Fastest Way to Move From F-1 to H-4/H4-EAD?

I am currently working on F1 STEM OPT extension which is expiring on 5th July, 2020 and my husband is on H1-B with an approved I-140 for green card. My H1-B was filed this year in premium but I haven’t heard if my application was picked in the lottery. If my application is not picked in the lottery this year, I will have to move to H4 and H4-EAD to continue working in the US. So, in my case, what will be the best and the fastest way to get converted to H4 and obtain a H4-EAD. I know I can file both together and go on a leave of absence at my job till I receive my EAD. And the estimated timeline for this might be 5-6 months. So is there any better way to move to H4 and H4-EAD with the least period of absence from my work. I was suggested to just re-enter US with a fresh H4 and then apply for EAD once I am in the country. But I don’t know if this will be faster and if it will work.

Mr. Lee answers:
From our experience, we do not see too much benefit from your idea that you can receive a quicker adjudication of the H-4 EAD if you go outside to interview for the H-4 visa, enter the US, and then apply for the EAD alone instead of applying for both the change of status to H-4 and an employment authorization. U.S.C.I.S. accepts concurrent filings of both, and usually adjudicates the EAD application as soon as the H-4 is approved. Also with the amount of time spent in applying for and receiving the H-4 visa overseas, there would likely not be much of a savings in time if any.

2. Asylum Denied and Placed in Removal Preceding. I Married a US Citizen and Had I-130 Interview. Can I Travel Abroad and Return Back?

I was denied asylum and placed in removal preceding, recently I married US Citizen and had my I-130 interview. Can I travel abroad and return back to my husband in US ( I mean if I apply for advanced parole)?

Mr. Lee answers:
U.S.C.I.S. has a rule of not giving advance paroles to individuals in removal proceedings. Although the Board of Immigration Appeals had a ruling that departures under advance parole do not count as “entries”, that ruling did not touch upon persons under removal proceedings. There is the danger that you would be seen as having removed yourself by leaving the US and face a bar on reentry to the country even if you somehow managed to obtain advance parole.

3. If a Person Was Charged with Embezzlement and Served Jail Time Before Being Deported in 2008, Can He Return to the United States?

A family member was charged with embezzlement back in 2006 in CA. The said person then served time in prison and was deported either in 2008 or 2009. since it has been some years since then, if I was to start the process on applying for a green card on their behalf would it be worth it or would I be wasting my time

Mr. Lee answers:
Embezzlement is a crime involving moral turpitude at the very least and an aggravated felony at the worst if the amount embezzled exceeded $10,000 or the individual was sentenced to at least 1 year imprisonment. If there is to be a chance, there must be a petitioner capable of providing the basis upon which he can immigrate to the US, e.g. US citizen or permanent resident wife or child over the age of 21. He would also have to apply for a waiver of the crime, and so would have to have a spouse, parent, son or daughter who would suffer extreme hardship if the waiver application was turned down. Lacking those circumstances, you should not go forward. Even with the elements in place, the chances of success are problematic.

Q&A’s published on Lawyers.com and the Epoch Times on July 24, 2020 1. Either I Can Apply for H4 EAD Now or Shift to F1 Visa from H4. Which is Better in Current Situation in USA? 2. If Someone Else Becomes an I-864 Sponsor, Can My Sponsorship Be Dissolved? 3. Can I Study While My I-485 is Pending?

1. Either I Can Apply for H4 EAD Now or Shift to F1 Visa from H4. Which is Better in Current Situation in USA?

I am joining a graduate school this fall. In order to work in USA, either I can apply for H4 EAD now or shift to F1 visa from H4. which is better in current situation in USA

Mr. Lee answers:
The choice of whether to apply for H-4 EAD or to shift to F-1 visa is up to you at this point. The H-4 EAD situation is still valid at present although it is one of the targets of the Trump administration for elimination. Under F-1, you would generally have to attend schooling for a year before being allowed to work under curriculum practical training unless that was a part of the program that requires internship or fieldwork.

2. If Someone Else Becomes an I-864 Sponsor, Can My Sponsorship Be Dissolved?

Divorced but am still my EX’S sponsor (form I-864). If she remarries am I still responsible? What if her new husband files for sponsorship?

Mr. Lee answers:
If your ex-wife remarries and if the new husband files for sponsorship, you would still be on the hook if your ex-wife attained conditional residence through your sponsorship. On the other hand, if her case through you was denied, you would not be responsible as the I-864 is a contract between you and the government under which the obligation begins when your ex-wife received the benefit.

3. Can I Study While My I-485 is Pending?

I am going to marry my fiancée after I am done with my associates degree, I however want to start my bachelor degree right after. So I have a gap of a couple of weeks between my AA and my BA. My question is, can I start studying again as soon as the I-485 is pending, or do I have to wait for the temporary work permission to arrive?

Mr. Lee answers:

If you are marrying a U. S. citizen, any gap in status will generally be disregarded at the time of your interview for the green card. If you are marrying a lawful permanent resident and adjusting status by filing form I-485, you must be in valid status at the time of filing form I-485. In addition, you cannot violate your status even after filing the I-485 by taking on unauthorized employment. That being said, a gap in schooling after marrying and filing the I-485 application would have no effect upon your ability to adjust status. In your situation, if you are holding F-1 status for both your associates degree and your bachelor’s degree programs, you would not be violating status by having a gap of a couple of weeks as the law provides for gaps of time between 2 levels of schooling. Even if you were not choosing to advance to a bachelor’s degree program, you would still be in legal status as an F-1 student for 60 days after completing studies during the grace period for you to change or extend status or depart the United States.

Article: State Department Allowing Schengen Area, UK And Ireland F-1 And M-1 Students To Enter Despite Ban Under Presidential Proclamations 9993 And 9996; And Other Miscues Interpreting 6/22/20 Proclamation.

As published in the Immigration Daily on July 21, 2020

In a startling turnabout on July 16, 2020, the Department of State (DOS) invited F-1 and M-1 students from the Schengen Area of Europe, the UK and Ireland to enter the US under their visas despite bans under Presidential Proclamations 9993 and 9996 specifically barring persons from these countries from entering the US if they were in them within 14 days of entry. [1]. The Department stated that “Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas, do not need to seek a national interest exception to travel.” While good news to many, it hardly makes sense unless the proclamations themselves are lifted. A partial lifting sub rosa without reasoning further damages the image of the United States as a country of laws. The proclamations were put in place because of the numbers of infected citizens of those countries and the danger that they posed to the US in spreading the pandemic if they arrived. Is it perhaps that the danger of Covid-19 is no longer relevant as the US recently reached 70,000 infections in one day? Is it that the daily totals of some of the countries being exempted are no longer alarming taking into account the spread in this country? Last week’s statistics on some of the countries now being exempted show France at 2552 infections daily, Spain 1400, UK 687, Germany 529, Poland 339, and Italy 249.

It certainly appears to be political – otherwise, why is there not a similar privilege being given to China that last week recorded 17 infections daily? And why not impose a presidential proclamation against Russia with its daily infection rate of 6109? If Mr. Trump could impose against Brazil, why not Russia?

Your writer is unfortunately not a great fan of social media, but muddled his way around as the State Department is giving answers to questions in FAQs on Twitter concerning the 6/22/20 nonimmigrant H-1B, H-2B, L-1 and certain J visa bars on entry. In looking over the various answers, one would hope that the Department takes more care in giving answers as some of them were wrong or misleading.

On at least five occasions concerning the fate of overseas derivatives spouses and children whose principals were in the US and in the above visa categories, the standard response was “Per Section 3 of the Presidential Proclamation, suspension of entry applies to ‘Any alien who does not have a nonimmigrant visa that is valid on the effective date (June 24) of this proclamation.’ See the link for exceptions.” Also that “We will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31, 2020, unless an exception applies.” Yet in another July 16, 2020, official statement by the Department, it said that” The Department of State will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States.” [2].

The official answer appears to finally recognize that the Section 3 exception of the proclamation (proclamation not applying to those in the US on its July 24, 2020, effective date) stretches to cover family members who are now eligible for visa issuance. It also seemingly answers the question that those principals who were in the US on the effective date of the proclamation should be able to leave the country and be visaed in those categories barring their inclusion in other bans – that they should not have to wait until after December 31, 2020, for visa issuance. On this, the Department should issue further guidance to the consular posts.

On the tangential point of five questions asked as to when DV-2020 winners could interview for visas, the stock response was “Presidential proclamation 10014 suspended the issuance of several categories of immigrant visas, including DVs. This proclamation was recently extended until December 31, 2020. While the proclamation is in place, the issuance of DVs is not permitted.” To that, there was an excellent response by the asker that “The proclamation only suspends entry. It does not mention suspending the interview and visa issuance process. For #DV 2020 winners this process needs to happen before September 30. We are suspended from entering till after the proclamation ends, but at least we still get our chance.”

Finally in answering a question from an individual applying for adjustment of status and having advance parole and asking whether they were allowed to travel to the US with their B1 B2 visas while their DV 2020 was under advance parole, the Department’s answer that “Foreign nationals with valid visas are generally authorized to travel to a US port of entry” was clearly wrong as applicants for adjustment of status can only travel outside the US under advance parole and reenter under advance parole – otherwise the adjustment of status application is deniable.

While one cannot be but pleased with the official responses of the Department of State, the Department is urged very strongly to give more attention to its unofficial Twitter responses that are taken very seriously by members of the public.

[1] National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland, Department of State, July 16, 2020.

[2] Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Non-Immigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, Department of State, July 16, 2020.

Q&A’s published on Lawyers.com and the Epoch Times on July 10, 2020 1. How Do I Change Visa Type? 2. I Think My Husband Married Me to Get to the U.S. Because After He Got His Green Card His Actions Toward Me Has Changed. 3. What Kind of Visa Can I be Eligible If My Brother Has a US Green Card?

1. How Do I Change Visa Type?

My friend from Brazil is here on a B1/B2 visa. He wants to do freelance video production. Is it possible to apply for a change of status (COS) to some type of work visa?

Mr. Lee answers，
I cannot think of an appropriate visa for your friend from Brazil to change status to in order to do freelance video production unless he is good enough to qualify for O-1 extraordinary alien status. If not, he may wish to consult with an immigration lawyer to go over his options and what compromises he is willing to make with his goals if he is eligible to obtain some other type of visa status to remain in the country for a longer period of time.

2. I Think My Husband Married Me to Get to the U.S. Because After He Got His Green Card His Actions Toward Me Has Changed.

My husband has been here for one year and three months. After four months here I caught him on a dating site seeking a relationship. I have also found pictures in his phone of a woman with a baby sent to him back in his country. I have found a Mexican lady in his phone as well. When I asked him about these he would say the woman with the baby is his friend’s wife. However, its several pictures. He also deliberately picks fights with me I think to try to ruin the relationship. He wants to be looked at as a good guy by his friends and family. He has opened his own bank account he used to deposit money into our joint account but now he don’t. I feel like he is planning things behind my back. If I feel like he used me to get here and want a divorce what can I do?

Mr. Lee answers，
If your husband is a conditional resident, you can decide whether to assist him in removing the conditional basis of residence status by signing the I-751 form and cooperating throughout the adjudication process. If he is already a permanent resident (marriage was at least two years old prior to him coming to the US), you have less hold over his actions. At present, you have suspicions, but there is likely nothing that you can do with them vis-a-vis U.S.C.I.S. Even in the event that he eventually initiates divorce proceedings, you would probably not interest the agency into going after his green card since it appears that he has been living with you for the duration of time that he has been in the US.

3. What Kind of Visa Can I be Eligible If My Brother Has a US Green Card?

My brother(26 years old) won the green card lottery and I – sister (25) want to learn the important steps of the application process as well as I want to know if I can also benefit that opportunity: residential visa, working permit, etc. He lives in Europe and I have been living in the US for the last 3 years with an F-1 visa.

Mr. Lee answers，
Unfortunately there is no benefit to be received from a brother or sister who obtains a green card under US immigration law. You would have to keep maintaining your independent legal status in the US.