Author: Alan Lee

Article：Recommendations for U.S.C.I.S. Reopening Offices During Covid-19

As published in the Immigration Daily on May 7, 2020

U.S.C.I.S. is now tentatively scheduling its reopening for June 4, 2020, and the public and legal community are rightfully anxious over what plan the agency has to safely protect the public, its employees and contractors, and still efficiently handle the business of immigration processing. Given the way that the Covid-19 crisis has been managed so far, there is far less than a firm conviction in the minds of all that this will be done right. The speed with which the government wishes to reopen the country apparently in disregard of the human toll (data projections of daily deaths doubling to about to 3000 daily by June 1 in a leaked White House internal document since disavowed as not being produced by or presented to the president’s coronavirus task force) makes one wonder whether the reopening will be carefully thought out or accomplished haphazardly.

Will the scene outside the larger immigration offices resemble total chaos or manageable order with social distancing? Is there also a plan in place for the Application Support Centers (ASC’s)? Will U.S.C.I.S. be able to efficiently process cases, or will people have to wait an interminable period of time for their appointments? For cases already in the pipeline with medical and background checks soon to expire, slow processing will mean additional expense and updating medicals and even more pending time if additional security checks must be run either before or after interviews. The following are some immediate suggestions on how to reduce the number of individuals needing to go into the immigration offices that can be easily implemented:

  1. Stop the practice of interviewing every employment-based (EB) adjustment of status case. Interviewing without exception is a practice that only came into existence in October 2017, mainly in response to widely perceived fraud in EB-4 religious cases, not other EB categories. Before that time, U.S.C.I.S. only interviewed a small percentage of employment based cases. Unless the agency is able to point to a large number of fraud permanent resident employment cases caught through interviewing, it should drop the need for interviewing all and only selectively interview.
  2. In all adjustment of status cases, U.S.C.I.S. should give internal guidance and stop sending out interview letters for persons other than the principal applicant (and spouse in a marriage case). The principal applicant should be instructed to bring adequate documentation of relationship to the other immigrating members of the family.
  3. In petition cases involving non-spouse petitioners, the petitioner should be specifically instructed not to appear. If an interviewing officer has doubts concerning family members or a petitioner, he or she can schedule a further interview.
  4. For naturalization cases involving applicants qualifying under the three-year marriage to US citizen rule, some immigration offices expect a US citizen spouse to be sitting in the waiting room. The appointment letter should make clear that the US citizen spouse is discouraged from appearing.
  5. For ASC’s, many times the only purpose of an appointment is for the ASC to take a photograph – U.S.C.I.S. should return to the old ways of relying upon photographs submitted at the time of filing. In connection, it should change its instructions to require photographs for applications on which it has waived the requirement, e.g. I-90 applications to replace permanent resident card, N-400 applications for naturalization. It should make it a practice to always rerun the captured fingerprints instead of asking people to come in to take partials after their fingerprints are already on file. It should also stop asking or requiring children under the age of 14 or elderly applicants 79 or older to attend biometrics appointments.

In these ways and others, immigration offices can continue to efficiently process cases without backing up the immigration queue of cases ad infinitum.

The second question is how to protect members of the public and U.S.C.I.S. and contracted workers entering the premises.

  1. Although unproven as to whether they can be reinfected or infect others, the government should have as many security personnel as possible available out front who have already tested positive for antibodies to the coronavirus to first meet people coming into the buildings.
  2. Social distance the line.
  3. Take no-contact forehead temperature checks on everyone before they enter the building.
  4. Hand out masks and gloves to those entering the building.
  5. Do not ask members of the public to take off their shoes. A terrorist with a shoe bomb would cause minimal damage in a socially distanced office, would only be a blip on the news with everyone concentrated on the pandemic (which has so far taken a gruesome death count of 75,000 US citizens, permanent residents, nonimmigrants and undocumented), and could cause more damage infecting himself or herself and then others with the coronavirus.
  6. After each use, sanitize the bins into which people place their belongings to go through security.
  7. Increase the number of available bins and persons wiping them down so as to not make going through security a nightmare.
  8. Social distance the customers from the security clearance until they arrive at the designated room, including limiting the numbers on each elevator.
  9. In the interview room, maintain social distancing in the waiting areas by removing seating or (even easier) putting tape across a number of chairs to maintain social distance.
  10. Place receptionists, clerks and officers behind plexiglass or other barriers while working with or interviewing individuals.
  11. Ensure that all employees have adequate numbers of masks and gloves.
  12. Have firm instruction that interviewing officers must use masks and gloves while interviewing.
  13. Reconfigure the back room space to allow all U.S.C.I.S. employees sufficient social distancing space, erecting barriers between them, and creating more common walkways to avoid crowding.
  14. Ensure that both customers and officers/clerks/receptionists wear disposable gloves at all times.
  15. Give the people being interviewed disposable pens if they did not bring their own that they can either keep or drop in a box for sanitizing and reuse.
  16. Sanitize the index fingerprint screen after every interviewee places his/her prints or eliminate the need to do such.
  17. Install more hand sanitizers all over the building and make sure that they are filled quickly upon being emptied.
  18. Put more paper towels in the bathrooms and ensure that they remain available so that people do not have to touch objects with their hands alone.
  19. Think about changing bathroom doors where needed so that they swing both ways and there is no need to grab the knob to enter or exit.
  20. Clean the bathrooms open to the public on an hourly or two-hour basis.

These are some but clearly not all of the ways that a safe experience can be had by everyone entering the reopened immigration offices.

Hopefully U.S.C.I.S. has a good plan that incorporates many of the above features when it reopens.  And above all, everyone from the top of the agency down to the security guards should be merciful and use common sense in dealing with people working in the buildings and the general public. People with appointments should not be turned away or looked upon with disapproval if late given the delays attendant to the pandemic, including lack of reliable transportation. Persons with appointments cannot be expected to come early to avoid being late as they would not be welcome to take up seating in any eating establishment with limited capacity or to congregate for hours outside the federal buildings.

 

Q&A’s published on Lawyers.com and the Epoch Times on May 1, 2020 1. Passport Application Needed Custody Papers 2. Wish to Change Status 3. Fiancé didn’t file Taxes, Will that be an Issue When I Sponsor Him for a Green Card?

1. Passport Application Needed Custody Papers

I’m in the process of getting a US Passport, but need custody papers to prove my US Citizen father had custody over me when I was a child. My parents are unmarried and I’m currently 22. What should I do?

Mr. Lee answers:
In looking at the law where a child is born out of wedlock to a US citizen, I assume that your father fulfilled the physical presence requirement in the US prior to your birth, and that a blood relationship has already been established. Other parts of the law appear to require that your father agreed in writing to support you until 18 years of age, and while you were under 18, you were either legitimated, your father acknowledged paternity, or paternity was established by court adjudication. You may wish to focus on those other aspects of the citizenship law.

2. Wish to Change Status

Girlfriend and child moved here from Ireland in January 2016. We married in March 2018. I wish to file for green cards.

Mr. Lee answers:
I assume that you are a US citizen and the child was under 18 on the date of your marriage. If so, you could file for them with a concurrent I-130 petition for alien relative and I-485 application to adjust status to permanent residence. Other paperwork would also have to be supplied such as your affidavit of support on form I-864 with proof of financial viability, their birth papers, your marriage paper, proof of US citizenship, and dissolutions of all prior unions on either side. Required medical examinations can be done now or presented at the interview. Generally speaking, you could expect an interview in approximately 10 months to a year.

3. Fiancé didn’t file Taxes, Will that be an Issue When I Sponsor Him for a Green Card?

I am a US citizen getting married to a Mexican national in Mexico. He came to the United States twice on work visas each for about 6 months. The first time he filed taxes but the second time he did not.

Mr. Lee answers:
I do not see your fiancé’s tax filings being the focus of his marriage based green card application. The focus is usually upon the bona fides of the marital relationship and other grounds of inadmissibility.

Q&A’s published on the World Journal Weekly on April 26, 2020 1. Selected for H-1B Registration, but I Do Not Know How Long the Job Will Last – How to Prepare? 2. In Light of the Changes for H-1B This Year, What Should We (The Company) Look Out For? 3. I have My I-601A Approved and Voluntary Departure Until July 1, 2020. When Should I Leave?

1. Selected for H-1B Registration, but I Do Not Know How Long the Job Will Last – How to Prepare?

I was selected for the H-1B registration last week, but do not know if the job will last because of the present Covid-19 pandemic and my employer is uncertain also. I am presently on my OPT until June 25, 2020. How can I best protect myself?

Mr. Lee answers,
Congratulations on your selection and sorry about the uncertainty of your situation. The best way to protect yourself is to be on your employer’s good side and hopefully not be laid off. Other than that, please note that even if your employer goes forward with filing the petition and the H-1B petition is approved prior to the beginning of the fiscal year on October 1, the H-1B status will only vest on that date. Assuming approval before the date, you can continue to work under your cap-gap status and change over to H-1B automatically on October 1. Hopefully you will continue to work for the employer past that date and have proof of doing so – payslips – in the event that you are laid off. You are then eligible for a 60 day grace period to find new H-1B employment, change status to another category, or prepare to depart the country. Best of luck to you!

2. In Light of the Changes for H-1B This Year, What Should We (The Company) Look Out For?

We are a company that sponsored 13 H-1B candidates for registration and had four selections. We are more wary of the process this year and would like some tips on what we should look out for because of the changed procedures.

Mr. Lee answers,
New changes to be aware of are that the jurisdiction of cases has changed and whereas previous location filings were dictated by the organization’s headquarters location, each H-1B registration now has the address of the U.S.C.I.S. service center to which the petition must be delivered. A copy of the H-1B registration notice must be placed in the application itself, preferably on top. Because of the coronavirus, U.S.C.I.S. is not insisting upon a “wet” signature and will instead accept one that is not original although it reserves the right to later request the original “wet” one. There is no indication thus far that U.S.C.I.S. will extend the deadline of 6/30/20 for organizations to submit the H-1B petitions, and so those should be filed in by that date. In point of fact, petitions should be sent in as quickly as possible (they must of course be thoroughly documented and completed with care) as such could allow organizations the opportunity to correct errors if petitions are rejected by U.S.C.I.S. and there is sufficient time prior to 6/30/20 to correct and resubmit the petitions. (In previous years with the H-1B selection occurring in a five business day window with full petitions, any technical errors causing rejection were fatal).

3. I have My I-601A Approved and Voluntary Departure Until July 1, 2020. When Should I Leave?

I entered the United States from Mexico in 2001 by sneaking in after flying there from China and am married to a green card holder and we have two children. She petitioned for me and my I-130 petition was approved and I-601A waiver application also approved last year. I was in deportation proceedings, and with my lawyer I got my voluntary departure until July 1, 2020. Now my lawyer tells me that the US Consulate in Guangzhou China is closed for visa appointments and he does not know when my appointment can be scheduled for the immigration interview. Should I leave around June 26-July 1?

Mr. Lee answers,
The choices would appear to be trying to get an extension of the voluntary departure from ICE or leaving on time. There is no telling what the state of ICE will be in June to entertain extension requests because of the present pandemic. The consulate in China may also be up and running by that date for visa interviews. I further note that an extension request is not automatically granted and may be denied. On the other hand, you have the certainty of leaving without an order of removal if you leave by July 1, 2020. Under present-day circumstances in which there are fewer and fewer flights to China, you should think seriously about leaving and booking your passage in the early part of June so that you have a chance to recover if there is a flight cancellation or other mishap which prevents you from taking the flight. I also note that upon your return, you may find that time will have to be consumed in quarantine and internal travel within China to the U.S. consulate in Guangzhou.

Q&A’s published on Lawyers.com and the Epoch Times on April 17, 2020 1. How Long Immigration Take? 2. My Boyfriend Was Coming Over Here and Got Detained 3. How Do I Get My Spouse’s New Name Updated on Her H-4 Visa Approval Notice?

1. How Long Immigration Take?

My brother applied for my sister and her 3 kids and husband. He applied for her case in 2011. I just wanted to know that my sister’s son has blood disorder and hard for her to get treatment in Pakistan. Is there any way we can get her case to done little faster so her son can have good treatment in USA?

Mr. Lee answers:
Unfortunately there is no way that the F-4 sibling petition can be speeded up because your sister’s son has a blood disorder for which treatment is difficult to obtain in Pakistan. Your sister and her husband could attempt to have the child apply for a B-2 visa for medical treatment in the US. That being said, the US Consulate would have to be assured that the costs of the treatment would be able to be covered by the family or donors. With a priority date in 2011, your sister likely has to wait another 4 years to immigrate.

2. My Boyfriend Was Coming Over Here and Got Detained

This is the first time he has ever been detained.  I would like to know if I can still get him a fiance Visa? We want to get married and he was coming to me to get married. I am a US citizen and he has never been in any trouble with the law. Will this make it harder?

Mr. Lee answers:
Being detained by Immigration will usually make a petition for fiance visa or permanent residence harder than usual. Whether you can still apply for a fiance petition will depend upon what happened or will happen at the detainment by DHS. You may wish to consult with an immigration lawyer with full details of everything that has happened to your boyfriend. If you have papers, you should bring them along to the consultation.

3. How Do I Get My Spouse’s New Name Updated on Her H-4 Visa Approval Notice?

My spouse is on H4 and after that she had name change on her new passport. How do I get her new name updated on visa approval notice?

Mr. Lee answers:
I am not sure that your spouse needs to have her new name updated on the H-4 approval notice. I also do not know of a specific application or petition by U.S.C.I.S. for that specific purpose. Perhaps your spouse could carry the marriage certificate when she travels and comes back to the US. On the next application to U.S.C.I.S., she could apply under the new name.

Article: The Importance of Setting the Record Straight on East Coast Infections – It’s the Europeans; Why not just excuse the LCA posting requirement during the Pandemic?

As published in the Immigration Daily on April 16, 2020

Setting the Coronavirus Record Straight for East Coast Infections as European and not Asian is Important

In our article of March 20, 2020, “Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of Blame,” we asked that President Trump stop calling the coronavirus a Chinese virus as that was inflaming hatred towards Asians in a country with a history of prejudice, violence, and exclusion towards Chinese. There are now a plethora of articles in newspapers with detailed descriptions of discriminatory and violent acts against Asians including one by the Anti-Defamation League detailing 44+ reported incidents through April. Mr. Trump should be reminded that his assignation of blame will turn many Asian-Americans against him when it comes time to vote in November. He has a chance, however, to now change the narrative and remove most of the stigma from Asian-Americans. Recent studies by the Icahn School of Medicine at Mount Sinai and the NYU Grossman School of Medicine have identified the coronavirus laying waste to the country from the East Coast as originating in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the leading disease expert and director of the National Institute of Allergy and Infectious Diseases, said that “Given the travel and the air traffic from anywhere in Italy, but also particularly northern Italy, it’s just not surprising that unfortunately and inadvertently New York was seeded before they really knew what was going on.” While the coronavirus originated in China, it is now officially a misnomer to call it a Chinese virus where the major number of infections and deaths in the U.S. originated from Europe. As the number of deaths continues to mount in this country, Mr. Trump’s past insistence on referring to the virus as Chinese has even more significance as it continues to resonate and appeal to the dark nature of people to strike out, especially those who have lost someone close.  This country’s Asians are a ready target being perceived as vulnerable, non-violent, and easily identified by the color of their skin. Europeans on the other hand generally do not stand out except when they speak and there is not the ingrained prejudice against them as with the Chinese. So since Mr. Trump inadvertently or purposefully touched off a flame of resentment that burns to this day, we believe that he owes it to the Asian communities in the United States to make a clarification now.

Why not just excuse the LCA posting requirement for those working from home at this time?

In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the Department made clear that the Labor Condition Application (LCA) worksite notice would still have to be posted for H-1B workers remotely working from home. In the first FAQ of March 20, 2020, the Department said that where workers perform the work elsewhere in the same area of intended employment, the employer must provide either electronic or hardcopy notice at the new worksite locations meeting the content requirements for 10 calendar days unless direct notice is provided such as an email notice. It said that if the employer could not provide a hardcopy notice of the LCA filing due to the pandemic, the regulations allow electronic notice by any means ordinarily used to communicate about job vacancies to employees in the occupational classification in the area of intended employment, and such could include the employer’s website, electronic newsletter, intranet or email – that email notification is only required once and does not have to be provided for 10 calendar days. The FAQ also extended the time that such a notice would be considered timely to no later than 30 days after the worker begins work at the new worksite locations (normally notice is required to be posted prior to the worker moving on to the new site). In the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the Department made four points advancing and not retreating from the notice requirement during this time of disease. 1.)  It expanded on employer requirements for situations that did not involve remote employment in the area of intended employment, and instead involved short-term placements of 30 or 60 days outside the area – that the employer could place the H-1B worker for up to 30 workdays in one year and up to 60 days if the person’s place of residence was inside the area of intended employment so long as the employer was in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA. There would also have to be no strike or lockout at the short-term placement location; and the employer would have to pay lodging costs, costs of travel, meals and expenses for both workdays and non-workdays.; 2.)  It defined the area of intended employment as within normal commuting distance to the place of employment with any place within the Metropolitan Statistical Area (MSA) deemed to be within normal commuting distance even if it crossed state lines; 3.)  It instructed that if an employer instead filed a new LCA for work sites outside the area of intended employment or materially changed the terms and conditions of employment, it would need to file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the employer’s treatment of H-1B personnel must not adversely affect the working conditions of similarly employed US workers and the employer had to offer the same flexibility to US workers similarly employed that it was offering to H-1B workers including telework from home within the area of intended employment or where the employer was offering to move H-1B employees outside of that area.

Although there is great interest in protecting the American job market, the insistence on maintaining the same notice requirements for new locations in the current time of crisis seems strained and the Department may still wish to reconsider its position. Where working from home is involved, one of the options is for the employer to post the notices at the H-1B holder’s house or apartment for 10 days. Is there any practical use in doing so where the two notices will likely only be seen by the employee, and perhaps spouse, children, and family dog if they exist? There is also the problem of employers in nonessential businesses even  being able to go into their offices where files are stored to  retrieve employee information or work on the notification procedures much less updating the public access package, especially when they are supposed to be sheltering in place in most parts of the country. As of the time of this writing, only five states, Arkansas, the Dakotas, Iowa and Nebraska are not under stay-at-home orders.  Common sense seems to dictate a waiving of requirements where attempting to comply places those in danger who must leave home to go to their businesses.

Q&A’s published on the World Journal Weekly on April 5, 2020 1. F-1 student on OPT until April 5, 2020, may have a problem with timing for H-1B under new rules for employer registration. 2. New H-1B rule for employer registration gives more opportunities but also potential danger to those who will soon obtain US Masters degrees. 3. Sponsoring my sister and her daughter – one or two petitions? 4. Brother’s circumstances have changed since I started sponsoring almost 12 years ago – what to do? 5. Application to change status pending, can I travel across the country to Los Angeles and tour around?

1. F-1 student on OPT until April 7, 2020, may have a problem with timing for H-1B under new rules for employer registration.

I am on F-1 visa and my optional practical training in journalism ends on April 7, 2020. My employer has agreed to sponsor me for the H-1B petition this year. I heard that there is a new procedure for this year. What should I and the company be aware of?

Mr. Lee answers,
USCIS has instituted an employer registration procedure under which persons will be selected without first putting in complete H-1B packages. Employers will set up accounts with USCIS with or without assistance from legal representatives beginning on February 24, 2020. The USCIS website will open for H-1B registrations at 12:00 PM Eastern Standard Time on March 1, 2020 and end at noontime on March 20, 2020. USCIS has stated that it will conduct the selection on or before March 31, 2020, and those selected will have at least 90 days to submit H-1B petition packages. You and the company must make a choice in your case of whether to begin your actual case prior to learning whether you will be selected because of your OPT ending date of April 7, 2020. There is most likely not sufficient time between when the company learns of your selection and filing your H-1B package to USCIS by April 7. That is because obtaining a labor condition application (LCA), a necessary part of the H-1B filing, takes seven days to process by the Department of Labor (in addition to the time required to set it up before filing with the Department). The inability to file a complete H-1B package to USCIS by April 7 means that you would not be able to obtain cap-gap work authorization until September 30, although USCIS would allow you to stay in the country to await the adjudication of the H-1B petition.

2. New H-1B rule for employer registration gives more opportunities but also potential danger to those who will soon obtain US Masters degrees.

I will soon graduate with a Masters degree in public administration from a university in New York (should finish the requirements by May 2020) and I am working with the company on curriculum practical training which is interested in sponsoring me for the H-1B petition in April. The company is now registering itself under the new immigration requirement and is asking me questions about my status including whether I have a Masters degree or will have a Masters degree and if so, when would I have it. I am confused and would like some advice on what I should say to the company.

Mr. Lee answers,
The company is asking you these questions because the new H-1B employer registration process asks whether you are applying under the US Masters cap or not. Persons applying under the US Masters and higher US degree cap will have a higher percentage of being selected. The rule is that you must have finished the Masters degree by the time that the actual H-1B petition package is filed with USCIS. That does not mean having the degree in hand, but having completed all requirements of the degree. If you are very confident that you will complete the requirements by May 2020, your employer can mark that you are applying under the US Masters cap. If selected, the employer would wait until you have completed all the requirements prior to submitting the actual H-1B petition. I note that you would not be qualified for the H-1B if the employer could not submit your petition within the period of time that USCIS allows for selectees to file petitions (likely 90 days after being notified of selection). In addition, you and the company would most likely not be able to file a petition under the Bachelors degree cap if you did not obtain your Masters degree in time since your selection was based upon the company’s representation that you have attained a US Masters degree or higher US degree by the time of filing.

3. Sponsoring my sister and her daughter – one or two petitions?

I was just naturalized and now want to sponsor my sister and her daughter. Should I file one petition for my sister and one petition for my niece? Also how long will it take before they are able to come to the US?

Mr. Lee answers,
To apply for your sister and her daughter, you would submit form I-130 petition for alien relative to U.S.C.I.S. You only have to submit one petition as you do not have the requisite relationship with the niece to sponsor her, but she can come over with her mother as long as she has not aged out by the time that there is visa availability for the petition. Current waiting time is approximately 12 years.

4. Brother’s circumstances have changed since I started sponsoring almost 12 years ago – what to do?

As a US citizen, I first began petitioning for my brother in early 2008. It has now been almost 12 years, and the petition was approved by Immigration in 2017 and we received notice from the National Visa Center that they have the case. Recently we checked and we are now able to pay for my brother’s visa fee. However, since I began petitioning, my brother became married and now has two sons. What do we have to do at this time? Can we add his wife and two sons on, or do I have to fill out more forms and petition for them separately?

Mr. Lee answers,
You or your brother must notify the National Visa Center (NVC) of your brother’s changed circumstances in order that the NVC can add his wife and two sons. The NVC can be contacted by letter or email, and the request to add the wife and children should include copies of marriage and birth papers. Once they are included in your brother’s case at the NVC, the Department of State fees can be paid and your brother can begin to send in requested documentation to the NVC for consular processing.

5. Application to change status pending, can I travel across the country to Los Angeles and tour around?

I came to the United States on a visiting visa and before it expired filed an application to change my status to F-1 student. My application is still pending. With all the talk of a tough attitude towards immigration, am I safe if I travel from New York to Los Angeles to see friends and tour the city and surrounding areas?

Mr. Lee answers,

Technically you are in a quasi-legal status as you filed a timely change of status application. You should be okay to tour in LA this month. I do note, however, that with the present Trump administration, it would be much better if you did not go near the border with Mexico as border patrol officers may have a different idea of your legal status and give you problems. Please note that the border is considered to extend for 100 miles from each boundary.

Q&A’s published on Lawyers.com and the Epoch Times on March 20, 2020 1. My H-1 to H-4 Conversion Denied 2. Can my cousin wait for her residence here if her stepdad is filling for her? Is her visa still be available during this process? 3. Was given a citation for shoplifting, case was dismissed. Does it affect applying for citizenship?

1. My H-1 to H-4 Conversion Denied

My H1 to H4 conversion denied on 11/30/2019 which I applied on 3/15/2019. Reason is: My spouse H1B expired on 7/31/2019 and currently in extension process. What should I do now? Can I submit my spouse’s extension receipt number?

Mr. Lee answers:
When a case is denied, you can file a motion within 30 days to have the case reopened with proof that your spouse has either obtained an H-1B extension or that it is still pending. If you are still in valid H-1B status, your other choice would be to file a new change of status application with the proof of your spouse’s approval or pending petition.

2. Can my cousin wait for her residence here if her stepdad is filling for her? Is her visa still be available during this process?

I want to know if she will be able to get her permanent residence here or she has to go to her country to wait for it. Or if her visa will still be available to travel during this process.

Mr. Lee answers:
Whether your cousin can wait for her residence here when her stepfather files for her depends upon a few things. First, he must be a US citizen or permanent resident. Currently the category for green card holders to spouse, children under the age of 21 is open, but the child must be maintaining legal status and not have worked illegally in order to adjust status here without leaving.  If he is a U.S. citizen, a legal entry is generally the determining factor and being an overstay or working without permission are not disqualifying.  Second, when was the stepchild relationship created. The immigration laws recognize the stepparent – stepchild relationship for immigration purposes only if the marriage creating the step relationship occurred prior to the child turning the age of 18. Third is the age and visa status of your cousin – if the above conditions are fulfilled and your cousin under the age of 21 at the time that the I-485 adjustment of status papers are filed, your cousin would be allowed to stay during the time of the adjudication. If 21 or older at the time of contemplated filing, her stepfather would only be able to file an I-130 petition for alien relative, and she would only be able to stay legally if she had a valid nonimmigrant status during the period of waiting which would be approximately 7-8 years. On the question of travel, there are two answers – if she is eligible for adjustment of status through form I-485 and such is filed, she would only be able to leave the country and reenter under advance parole or a nonimmigrant visa in the H or L categories. If not eligible to adjust but the step relationship is established before the age of 18 and the stepfather files an I-130 petition for alien relative, she could be allowed to travel to the US for short and infrequent visits during the pendency of her case under a B visiting visa.

3. Was given a citation for shoplifting, case was dismissed. Does it affect applying for citizenship?

Mr. Lee answers:
If the shoplifting charge was dismissed, it should not affect the citizenship application unless you admit the deed, and it was done within five years of the date of application if applying under the five-year rule and three years if applying under the three-year rule.

Article: REPEATEDLY CALLING IT A CHINESE VIRUS IS RACIST AND A DEFLECTION OF BLAME

As published in the Immigration Daily on Match 20, 2020

The US has had a long history of racism against Chinese, beginning with the 1871 Chinese massacre in Los Angeles, 1882 Chinese exclusion laws, 1921 and 1924 immigration laws establishing a national origins formula to further exclude Asians and others, yellow peril stories beginning in the early 1900s epitomized by the Fu Manchu character in the 1930s, and jingoistic mistrust of Chinese during the Cold War and now under a Trump administration at war with the Chinese over trade and which nation will lead in the 21st century.

Against this background, Mr. Trump is aggressively inflaming Americans against persons of East Asian origin in the country by repeatedly calling the novel coronavirus the “Chinese virus,” while another in his administration just referred to it as the “Kung flu.” Inflammation appears to be working even in a city as diverse and ethnically tolerant as New York as seen even in this law firm’s anecdotal experience of one of our Chinese-American staff member’s two incidents within the past week, one that she witnessed of a man on the New York subway threatening Asians wearing face masks when one coughed, and the other this morning of another man cursing her when she lightly coughed (right outside Penn Station) with her mask on.

This constant emphasis on blaming the Chinese has escalated tensions across the country and highlighted Asian businesses to such a negative degree that business owners have faced colossal losses even though just about all Chinese-American citizens, permanent residents originating from China, and visitors from China are virus free due to the China travel ban, and the riskiest populations are from Europe and the Middle East with Italy and Iran leading in current contagious spread. In New York City, much of the infection was spread by a Jewish attorney from New Rochelle.

While saying the term once or twice serves as a denial to the China made rumor that the new coronavirus was brought to China by the US military (obviously someone in China read about the origins of the Spanish flu of 1918), the world at large is already cognizant of its origins. Yet Mr. Trump is using a megaphone consistently to assign blame to a known fact.

To what end the blame? The answer is diversion from the horrible job that the president has done from the very beginning to contain the virus. From abolishing the National Security Council Directorate for Global Health and Security and Bio Defense to believing that he could “wall” off the coronavirus to saying that it was a “hoax” and not taking it seriously to not having a plan in place and failing miserably to listen to public health experts and coordinate government response early in the crisis, his handling of the situation has been haphazard and dumbfounding. While Hong Kong and Singapore have solved the coronaviruses in their countries through huge amounts of testing and contact tracing, the US has fallen so far behind that it appears the only viable strategy is social distancing and lockdowns.

Mr. Trump is clearly not an advocate of Harry Truman’s famous desk sign, “The Buck Stops Here,” but an advocate of buckpassing. Repeated and continual use of the “Chinese virus” term is an attempt to deflect blame. Yet we do not need a president in this crisis to throw off blame and in so doing put the lives and property of Asians in this country at peril, but a president who accepts the blame without caring whether he is reelected or not, and moves the country forward to solve the predicament.

Q&A’s published on the World Journal Weekly on March 1, 2020 1. What are the new H-1B procedures for this year? 2. How can I stay in US when my H-1B employer will be firing me? 3. J-1 exchange visitor – am I subject to two-year home residence requirement even though my paperwork says that I am not? 4. Do I do change of status to F-1 or go outside US and interview for F-1 visa at US consulate?

1. What are the new H-1B procedures for this year? 

I am interested in applying for the H-1B this April, and my employer wants to sponsor me. However, this will be the first time that he is sponsoring anyone, and he wants me to find out the procedure. I hear that there are some changes for this year. Can you tell us what those are?

Mr. Lee answers,

USCIS has implemented a registration system for employers under which any employer that wishes to sponsor cap H-1B’s (those that traditionally go in during the first five business days of April) must register themselves and the persons that they wish to sponsor with USCIS. Upon registration,USCIS will conduct the random selection and only those that are selected will have to submit an H-1B petition with supporting documentation. From what we know so far (and subject to change),

  • USCIS will use the my USCIS online portal for the registration and accept the payments through itsgov portal.
  • There is a $10 registration fee for each registration.
  • The initial registration period will be 3/1/20 – 3/20/20.
  • Employers can use one filing to register as many persons as they wish to sponsor.
  • They are allowed to submit additional registrations within the filing period.
  • Employers are not allowed to edit a registration after it has been submitted, but it appears that the registration may be deleted, and then redrafted and resubmitted prior to the close of the registration.
  • If the employer needs to withdraw one of 10 names, there is currently no guidance as to whether the system would force the employer to withdraw all 10 names and resubmit the other nine names.
  • Payment can be made from a bank account, checking or savings, credit card, or debit card. The registration system will allow for batch payments to pay the fee for multiple registrations submitted simultaneously.
2. How can I stay in US when my H-1B employer will be firing me?

I am on H-1B with three years left, but the company is dismissing me, although they will try to be flexible so that I can have time to find another employer. They are willing to stretch out my pay until the middle of next month to help me out. Is there anything else that can be done?

Mr. Lee answers,

USCIS foresaw this situation and, for people like you, it now allows you to remain in legal status for 60 days after the date of quitting or dismissal for you to prepare to leave, change employers, change status, or for any other legal purpose. If the employer does not know of the 60 day rule, it should be informed so that it can consider its options with open eyes. Where an employer is dismissing an H-1B employee, it continues to have liability for payment of salary in accordance with the H-1B until it notifies USCIS of the termination, properly notifies the employee, and pays for the transportation back home.

3. J-1 exchange visitor – am I subject to two-year home residence requirement even though my paperwork says that I am not?

I am on a J- visa, and want to file for my I-485 adjustment of status application based on my wife’s employment. I am originally from China, but spent three years in Germany as a scholar before receiving my J-1 visa in Frankfurt and coming to the US. Neither my passport nor DS-2019 form says that I am subject to a two-year foreign residence requirement. Although I have not taken any type of governmental or intergovernmental financing, I am on the skills list of China. I am not a medical doctor. What should I do?

Mr. Lee answers,

From your account, it is questionable whether you are subject to the two-year foreign residence requirement because of the time and status that you held in Germany. Undoubtedly the American consulate in Frankfurt considered your situation before putting the markings on your visa and DS-2019 form. I suggest, however, that you request an advisory opinion from the Department of State prior to filing the I-485 application. A favorable advisory opinion would settle the matter with USCIS. If the opinion is negative, however, and you are deemed subject to the requirement, you may seek other channels to avoid the two-year home residence requirement, including asking for a no objection statement from your home government.

4. Do I do change of status to F-1 or go outside US and interview for F-1 visa at US consulate?

I was given six months to stay under my tourist visa and am in my fourth month and found a school that I want to study at. The designated school officer said that I could either try to change my status with USCIS or take the I-20 admission form and apply at the consulate in my home country. What are the considerations that I should take in account in making my decision?

Mr. Lee answers,

Your decision may depend upon a variety of factors. The first is that under current USCIS rules, you must maintain your legal status at all times until the agency adjudicates your change of status to student. Because you have only two months left, you will most probably have to also file for a B-2 extension during the time that your F-1 student change of status is pending. Another factor is that the change of status by USCIS once approved is only on a piece of paper. If you must leave the US at any time in the future, you would have to interview for the F-1 student visa at a US Embassy or Consulate before being allowed back into the US as a student. Against those factors is the common perception that obtaining an F-1 student visa at a US consulate or embassy is usually more difficult for many than obtaining a change of status by USCIS.

Q&A’s published on the World Journal Weekly on February 23, 2020 1. H-1B petition was just denied – do I have any options other than to leave? 2. Permanent resident sponsoring new spouse. 3. Desperate to help out my husband who is illegal and has an order of deportation. 4. Having problems with wife who is sponsoring my daughter, her stepdaughter – is there any effect on the application? 5. Can my daughter emigrate with me to the States now that she is 25 years of age?

1. H-1B petition was just denied – do I have any options other than to leave?

My H-1B sponsor is a nonprofit organization associated with a university and filed my H-1B petition in June 2019. We received a request for evidence, responded to that, but got a denial on November 1. My optional practical training after graduation ended on August 15, 2019. What is my current status and what can I do?

Mr. Lee answers,
With the ending of your OPT, you are only given a 60 day grace period to leave the United States or to seek some other status. That time unfortunately ended in the middle of October. Denial of an H-1B petition in your circumstances does not give you any extra periods of time to remain here in the US. Your H-1B sponsor may look at the denial and see whether it can file a new H-1B petition if there are issues that can be overcome by additional explanation or evidence. It can also decide whether the evidence is sufficient for appeal or a motion to reopen and reconsider within 30 days of the denial to the Appeals Adjudication Office (AAO) of U.S.C.I.S. Please note, however, that such does not stop the accrual of unlawful presence which begins on the date of denial. If you are in the US for over 180 days from date of denial and lose the appeal or motion, you would incur a three-year bar upon returning to the US if you left. Depending on the strength of your case, you may decide in lieu of an appeal to the AAO to appeal to the US District Court. Many federal district courts have been more sympathetic to H-1B appeals than the AAO. You may also decide to seek a reinstatement of F-1 status if you intend to continue going to school, or a late change of status to some other visa category for which you may be eligible. Finally you may decide to leave the US, and later return to the country with legal visa status. Please note that for most countries, you would have to pass a visa interview at the American consulate or embassy before returning to the States.

2. Permanent resident sponsoring new spouse.

I am a permanent resident and me and my girlfriend wish to be married. She is not a permanent resident or US citizen, but is studying as an F-1 student. This will be a legal marriage, and we have known each other for three years. If we marry, will she be able to live and work here?

Mr. Lee answers,
Currently the F-2A visa category for lawful permanent residents sponsoring spouses and unmarried children under the age of 21 is open. Therefore if you are married, and assuming that the visa category remains open, you can file for her with form I-130 petition for alien relative, and she can simultaneously file an I-485 application to adjust status to permanent residence. If she wishes employment authorization or advanced parole to leave the US during the time of the processing, she can make separate applications for those at the same time on forms I-765 application for employment authorization and I-131 application for travel document.

3. Desperate to help out my husband who is illegal and has an order of deportation.

I am a US citizen, married to a nice man, and our baby was just born a few months ago. I knew he was illegal, though he lately told me that not only did he sneak across the border, but that he was caught and ordered deported, but never left. Now I am very scared, especially with the baby. I’m afraid that when he goes off to work in the morning in his truck, he may not come back. What can I do to help straighten out his status?

Mr. Lee answers,
You and your husband would have to undergo a four-part process assuming that he has committed no excludable crimes nor fraud before a US government official. You would initially file an I-130 petition for alien relative to accord recognition that this is a bona fide marriage and that you are a US citizen. At the same time or shortly thereafter, your husband would file for an I-212 application for advance permission to return to the US after removal or deportation. U.S.C.I.S. would be looking at a mixture of factors including hardship, the seriousness of his immigration violations, and his good record in the States. If the I-212 application is approved, he can then file for an I-601A application for waiver of grounds of inadmissibility, in this case from the ten year bar which is occasioned by his remaining in the US illegally for over one year. The standard for the adjudication is that your wife and any other qualifying relative like your parents if either or both held US citizenship or lawful permanent resident status would suffer extreme hardship if you had to return permanently to your home country. If all the petitions and applications are approved, your husband would then undergo regular consular processing at the American Embassy or Consulate in his home country with jurisdiction over immigrant visa applications. Upon successful interview, he would return to the US as a permanent resident.

4. Having problems with wife who is sponsoring my daughter, her stepdaughter – is there any effect on the application?

I was sponsored by my wife who is a US citizen and received my permanent green card. Last year, my wife agreed to sponsor my daughter who is 17 years of age in China. The I-130 petition is approved, but me and her have marriage problems and we are living separate at this time. Can my daughter still get the green card? If not, what should I do?

Mr. Lee answers,
A step relationship depends upon the validity of the underlying marriage. In the event of legal separation or divorce, your daughter would be ineligible for the green card as the bond between her and your wife is through your marriage and not by blood. To keep the case going, the best solution is to reconcile with your wife. The practical difficulty in these cases even if there is no legal separation is that you and your daughter are at the mercy of your wife as to whether she will continue the sponsorship. Currently the F-2A category for unmarried children under the age of 21 of lawful permanent residents is open, so your alternative is to file your own petition for her and the waiting time would be approximately one year taking into account processing times of both U.S.C.I.S. and the US consulate or embassy.

5. Can my daughter emigrate with me to the States now that she is 25 years of age?

My brother filed for me under the F-4 category for the sister of a US citizen in the end of November 2006. My petition was approved by Immigration in February 2010. My daughter was included in the petition, but she is now 25 years old being born in July 1994. Is she eligible to immigrate with me to the US?

Mr. Lee answers,
The priority date (if you are born in any other country than India, Mexico and the Philippines) was reached in October 2019. Under counting rules of the Child Status Protection Act (CSPA), she was 25 years and approximately 3 months old when the priority date became current. She is given a credit to her age for the time that the I-130 petition pended with U.S.C.I.S., in this case approximately 3 years and three months. As she was approximately 4 years and three months older than 21 in October 2019, she would be approximately 22 years old under CSPA counting, and would not qualify to immigrate with you under current law. I do note that there is some hope in the pending legislation sponsored by Richard Durbin, the Democratic senator from Illinois, in the RELIEF Act which would allow children to emigrate regardless of their present age so long as they were under the age of 21 on the date of I-130 filing.