Author: Alan Lee

Article: “WILL K-3s COME BACK INTO VOGUE? WHY BASE PERM PREVAILING WAGE DETERMINATIONS ON ALTERNATIVE REQUIREMENTS NOW? WHY 10 YEAR LPR INSTEAD OF 2 YEAR CPR CARDS FOR THOSE MARRIED LESS THAN TWO YEARS? PHOTOS NEEDED AT NATURALIZATION OATH CEREMONIES? NEW FORMS FOR APRIL AND NEW USCIS LOCKBOX IN ELGIN, ILLINOIS.”

As published in the Immigration Daily on February 14, 2022

  1. Will K-3s come back into vogue?

The K-3 visa was instituted in 2000 when legacy INS took years to approve immediate relative spouse cases. It allows a US citizen petitioner to file not only the traditional I-130 petition for alien relative, but also a nonimmigrant I-129F K-3 petition for the married spouse. As the agency improved on backlog processing, use of the K-3 option decreased drastically, especially as the petition was nullified if both I-130 and I-129F met each other at the next waystation of the process after approval, the National Visa Center (NVC). Although USCIS processing times are known to be many times unrealistic, the published times give one pause to consider the possibility of K-3 petitions to all service centers except Nebraska. The following are the published processing times as of February 12, 2022, for immediate relative and K-3 petitions:

Service Center             I-130 processing times               K-3 processing times

California                         29.5-38.5 months                        9-12 months

Nebraska                             4.5-7 months                              5-7 months

Potomac                            12.5-16 months                            3.5-7 months

Texas                                  10.5-14 months                            3.5-7 months

Vermont                            11.5-15 months                             7-9 months

K-3 processing times at the consulates and embassies track the time for immigrant visas according to State Department information, so it would appear that there may be some merit to considering K-3 petitions at this time. If USCIS reduces the I-130 backlog times or processes cases out of chronological order (as we have seen in some of our cases), the attraction of the K-3 visa becomes less.

  1. Why base PERM prevailing wage determinations on alternative requirements now?

For those attorneys whose practices include PERM labor certifications for permanent residence, the Department of Labor announcement through FAQs on July 16, 2021, relating to implementation of its revised prevailing wage determination form, ETA 9141, was a disappointing surprise in demanding that employers use the higher wage of either its principal or alternative requirements as the prevailing wage. The labor certification process is the method by which employers must test the American job market for able, qualified, available and willing US workers before a non-US worker can obtain residence status through nonavailability of US workers for the position. The sponsoring employer in the first step applies to the Department for a weighted-average wage in the job locality by informing the Labor Department of the job title, duties, and requirements and upon receiving a prevailing wage determination, then offers that wage to US workers in the recruitment process. Many employers not only have a principal set of requirements, e.g. Masters degree +3 years of experience, but also an alternate set of requirements, e.g. Bachelors degree +5 years of experience, that they will accept to attract a higher number of candidates and also sometimes because the non-US worker being sponsored might only qualify under the alternative requirements. Over the years, the Department policy had been to only consider the employer’s principal requirements for purposes of setting the wage to be assigned in understanding that principal and not alternative requirements should govern the wage level. Yet in one fell swoop, the Department reversed historical policy through the July 2021 round of FAQs. Such penalizes an employer that has a primary set of requirements for which it is willing to pay a prevailing wage by forcing it to now recruit such workers at a higher rate of pay if the Labor Department determines that the alternative requirements command a higher wage. Such makes little sense historically and logically. In addition, the upward forcing of wages does not serve the country’s best interests in the battle against inflation as it becomes part of an everlasting cycle of raised wages and raised product prices in response which largely contributes to the current rise of inflation in the US (7% from January 2021-January 2022). The author would be interested to know whether there is any attorney, firm, or organization with pending or impending litigation over the new policy.

  1. Why 10-year LPR instead of 2-year CPR cards for those married less than two years?

Section 216 of the INA states that an alien spouse is considered a conditional resident who obtains status by virtue of a marriage entered into less than 24 months and that this applies to both spouses of US citizens and permanent residents. (Please note that this does not include spouses immigrating with their spouses – only those who are petitioned on form I-130). We have anecdotally seen cases in which such spouses of permanent residents recently approved for adjustment of status were given 10 year green cards instead of 2 year conditional residence cards. It may be that the current open availability of the F-2A visa category (for spouses and children of permanent residents) versus the past backlog in the category may be causing some confusion among USCIS adjudicators since F-2A cases used to take well over two years, but such errors have capacity for damaging future effects, and we encourage officers to be more careful in noting the marriage date. It is academic that an I-751 petition to remove the conditional basis of residence status must be filed within the 90 days preceding the second anniversary of the issuance of conditional permanent residence. A conditional resident who fails to file is not considered to be lawfully in the country. In addition, such an applicant who later files for naturalization would be denied, and informed that he or she would still have to file the I-751 petition. Mayhaps USCIS will apologetically recognize its error and offer the individual an opportunity to file the I-751 out of time, but such a result would nevertheless cause the applicant much stress not to mention the loss of time, energy, and money in filing and paying for an unsuccessful citizenship application.

  1. Photos needed at naturalization oath ceremonies?

What do you ask your client to bring to USCIS for a naturalization interview? For convenience’s sake, we encourage them to take everything with them even though officers may only be interested in a few items. We also suggest bringing new passport size photos- if they wish- on the off-chance that an officer may ask. But we never thought that photographs would be requested at the swearing-in ceremony. Lo and behold, a client recently reported to us that at the oath ceremony for herself and husband, she was requested to provide passport photos while her husband was not. Such necessitated her having to exit the building, find a place that took photos (usually a few around federal buildings), and hustle back to the building in time for the ceremony. And she further informed us that the officer told her that “This happens all the time.” The moral appears to be that, if an applicant is willing to take new passport photos, it may be prudent to take the photos not only to the interview, but to the oath ceremony as well.

  1. New forms for April and new USCIS lockbox in Elgin, Illinois.

The penalty for filing old or noncurrent forms with USCIS is rejection of petition or application, which can be both embarrassing and damaging if there is a time deadline. The watchword is to always look at the form edition and compare it with the current form in use before filing. A list of recent changed forms that will come into play in April are:

  • I-864 and all its variations (A, EZ, W) – 12/8/21 editions as of 4/7/22 only.
  • I-829 – 12/8/21 edition as of 4/7/22 only.
  • I-824 – 12/2/21 edition beginning 4/7/22 only.
  • I-102 – 12/2/21 edition as of 4/7/22 only.

USCIS also announced the opening of a new lockbox in Elgin, Illinois, for which I-751s must now be filed for those residing in New York, New Jersey, and most of the East Coast. The address of the lockbox is:

(USPS)

USCIS
Attention: I-751
PO Box 4072
Carol Stream, IL 60197-4072

(FedEx and other couriers)

USCIS
Attention-I 751 (Box 4072)
2500 Westfield Dr.
Elgin, IL 60124-7836

In addition to taking I-751s, the lockbox in Elgin will also begin accepting additional workloads including N-400s and I-130s  in the coming weeks and USCIS expects the transition to Elgin to be completed by late summer 2022. Additionally, it expects to move the lockbox facility in Arizona from Phoenix to Tempe in Fall 2022. So keep your eyes open!

Q&A’s published on the World Journal Weekly on January 30, 2022 1. Is there a list to find out if your person you want to bring back can come back? 2. How to apply a visa for my mother-in-law and father-in-law? 3. I’m on B2 visa currently here in USA. I have pending spouse visa application petitioned by my US citizen husband. Can I get EAD? 4. A Multiple filer? 5. Can I file Green Card while I am on TN visa in the US? 6. How can I sponsor my sick sister if I am a US Permanent Resident?

1. Is there a list to find out if your person you want to bring back can come back?

My husband was deported about 22 years ago and I would like to bring him home to USA. I want to know if there is a list or something to fined out before I do all this paper work if they will even think about letting him back to the USA.

Mr. Lee answers:
There is no list of which we are aware that designates people who can come back to the US after being deported. Generally speaking, a deportation or removal order is in effect for 10 years when a person leaves the US under an order of removal or deportation. If you are concerned that your husband is otherwise barred, I suggest that you obtain a copy of your husband’s immigration file and consult with an immigration attorney. 

2. I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do?

I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do, there are too old but they are alone in India so we playing how we bring them here.

Mr. Lee answers:
To apply for your in-laws to live here permanently on immigrant visas, your husband would have to become a US citizen to sponsor them. To apply for them to visit the US, they would have to go through nonimmigrant visa application interviews at the American Consulate overseas. You could help by guaranteeing financial support and that they will leave at the end of their period of visit. Kindly note that visitor visas are given in the discretion of the consular officer. 

3. I’m on B2 visa currently here in USA. I have pending spouse visa application petitioned by my US citizen husband. Can I get EAD?

I’m currently in USA using a b-2 visa. I have a spouse visa application pending petition in NVC by my USC husband. I would like to work and get EAD while waiting for my immigrant visa interview.

Mr. Lee answers,
You can apply for an EAD if you choose to file for adjustment of status through form I-485 application to adjust status to permanent residence. Work authorization through form I-765 is an ancillary benefit that can be applied for by those filing for adjustment. I note that if you file for adjustment, you should request the NVC to stop processing your matter for a consular interview. 

4. A Multiple filer?

I have filed a I-129F (petition for alien fiancé). I wish to cancel the petition since the relationship has ended. The case is still pending however, therefore it has not been approved or denied. Once I write to immigration and the case is cancelled, if in the future I wish to file another I-129F for another fiancé, would I be considered a multiple filer?

Mr. Lee answers:
Assuming that the petition is not approved, and you have only filed once, you would not be considered a multiple filer. The instructions to the I-129F form define who is considered a multiple filer: 1. You are filing this petition on behalf of your fiancé(e) and you previously filed Form I-129Fs on behalf of two or more fiancé(e) beneficiaries; or 2. You are filing this petition on behalf of your fiancé(e), you have previously had a Form I-129F approved, and less than two years have passed since the filing date of your previously approved petition.

5. Can I file Green Card while I am on TN visa in the US

I am on TN visa here in the US and want to apply for GC. What is the way out.

Mr. Lee answers:
A TN visa is not dual-purpose and the TN holder must have nonimmigrant intent. When a TN holder begins to apply for permanent residence, the more chances of having a problem with status occur when the person continues trying to go in and out of the United States and may be questioned by Customs and Border Protection (CBP) when reentering. We suggest to our clients that they curtail their travels during the time of petition/application with USCIS unless they are adjusting status and obtain advance parole documentation. They should also obtain an EAD to work legally under those circumstances.

6. How can I sponsor my sick sister if I am a US Permanent Resident?

My sister lives in México and is very ill. I am a US Permanent Resident and want to know how I can sponsor her.

Mr. Lee answers:
There is no immigrant visa category that allows a permanent resident to sponsor a sibling. Assuming that you are able to make provision for her medical treatment in the US which she is incapable of receiving in Mexico because of the more advanced state of medicine in the US, you may be able to have her apply for a visitor visa to come for medical treatment.

Article: “IMMIGRATION NEWS THAT YOU CAN USE – NEW H-1B CAP SEASON RAMPING UP; DROPBOX USE EXPANDED FOR US VISAS OVERSEAS; F, M and J VISA APPLICATIONS MADE EASIER; MFL TERMINATION LETTERS AND NVC NEED FOR QUALITY CONTROL; FLEXIBILITY EXTENDED FOR TIME TO RESPOND TO USCIS ACTIONS; VISA PROBLEMS WHERE APPLICANTS LEAVE US BEFORE DECISIONS ON EXTENSION/CHANGE OF STATUS REQUESTS.”

As published in the Immigration Daily on January 18, 2022

  1. New H-1B Cap Season ramping up.

About 1 ½ months from now, USCIS will begin the employer registration process for new H-1B candidates who will be able to begin work in October 2022 or later if they are selected and their subsequently filed H-1B petitions approved. (Please note that this notice does not affect current H-1B holders except possibly H-1B cap exempts attempting to move to H-1B cap organizations). All employers who have not already done so should begin to put together a list of those candidates (many of whom may be on practical training) that they are interested in sponsoring.

There are encouraging signs that this H-1B season will go more smoothly than those in the recent past. Three regulations that could have adversely affected H-1B processing have been abandoned by the Biden administration – one by the Department of Labor which would have significantly raised the wages to be paid H-1B workers, and two by DHS that would have 1.) made it more difficult for candidates to qualify for H-1B status and 2.) changed the selection process from random selection to highest wages paid.

Unfortunately, the number of new H-1B visas to be awarded still remains 85,000, far short of the number of eligible candidates. For many, however, this may be the most viable means for companies and other organizations to acquire new talent and for candidates to establish a foothold in this country. H-1B holders are allowed to remain in the country for up to six years and even longer if the company takes timely steps to sponsor them for permanent residence. Many employers have been happy with the ability to retain bright, hard-working staff members for a number of years.

  1. Dropbox use expanded for US visas overseas.

The Department of State announced a change of policy on December 23, 2021, allowing waivers for even first time applicants for many employment-based visas, including H-1B and L intracompany transferees. This discretionary waiver of in-person interview applies to those who have had a petition approved by USCIS, are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility.

Although this is good news, persons thinking of taking advantage of this development should be aware that a waiver of the interview is discretionary and up to the consulate or embassy; and that the schedule of interviews or waivers of such is dictated by consul or embassy. In addition, a further risk for those who are interviewed and refused is being stuck in administrative processing, which may take time to resolve assuming that resolution is possible.

With such said, this is indeed good news as it will reduce the risk of consular processing for many nonimmigrant work visa seekers. Applicants should also be aware of the effect of Covid on the process in the country or region of which the following three are described in which they will ultimately be dropping passports and other documents:

  • China – Fully vaccinated with inactivated vaccine – take PCR test at U.S. departure city of flight seven days before boarding at either Avass Bioscience or Real-time Laboratories; monitor your health for seven days at the departure city; take second PCR test within 48 hours before departure. If fully vaccinated with non-inactivated vaccines, do all of the above plus take S protein IgM antibody and an N protein IgM antibody tests within 48 hours before departure at one of the two companies. If not fully vaccinated or unvaccinated, do the same.

    Persons with a history of infection have more to do including lung CT or x-ray and 14 day quarantine.

    Once in China, there are further restrictions including a quarantine period.
  • Hong Kong – Suspension of flights from the United States, Australia, Britain, Canada, France, India, Pakistan and the Philippines for two weeks beginning on 1/8/22.

  • India – India is usually on the backend of infections after Europe and the Omicron variant is fast spreading in India since late December. The government has introduced night curfews, shut down movie theaters, and slashed restaurant and public transport to half capacity. It is known that the Oxford AstraZeneca vaccine which has been used for about 90% of India vaccinations does not protect against omicron infections, although it appears to help reduce the severity of the illness. Persons interested in making an appointment by dropbox have been frustrated by the lack of appointments, and the Department of State has promised to release another 20,000 dropbox appointments in the spring. One wonders, however, whether Covid will begin to disrupt the schedule of appointments.
  1. F-1, M-1, and J-1 visa applications made easier.

 Good news for student visa applicants applying for the first time or for renewals with the Department of State reverting to pre-Trump policy in an update to the Foreign Affairs Manual making the question of nonimmigrant intent easier to meet. Establishing that a person has nonimmigrant instead of immigrant intent is essential to gaining approval of student visas. The FAM guidance makes clear to consular officers that such applications are to be given latitude on the question of nonimmigrant intent:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify the applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future… In the circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States. Therefore, the residence abroad requirement for student applicants is to be considered in the context of the usual limited ties that a student would have, and their immediate intent.

With this revision, the US under the Biden administration is showing a more open and welcoming America.

  1. MFL termination letters and NVC need for quality control.

One wonders whether the National Visa Center requires more quality control in its issuance of MFL-1 termination letters as we recently received three which were clearly unwarranted. Under NVC policy, communication with the agency within a one-year period of time stops the case from going into deregistration. Yet on two of these cases, we had clearly sent in communications on time. It may have been that NVC receipt of communications and acknowledgment of such have been impacted by Covid, but if so, there should also be appropriate lag time for NVC to coordinate the communications before sending out MFL letters. Under NVC policy also, an applicant’s filing an I-601A Application for Provisional Unlawful Presence Waiver stops the case from going into the deregistration process, and yet we also had to fend off the third MFL letter when we had filed the I-601A application in January 2021.

  1. Flexibility extended for time to respond to USCIS actions.

USCIS is again extending flexibilities because of the pandemic for responding to certain actions of the agency between March 1, 2020 and March 26, 2022 inclusive. Such allows another 60 calendar days past the due date for requests for evidence (RFE’s), continuations to request evidence (N-14), notices of intention to deny (NOID’s), notices of intention to revoke (NOIR), notices of intent to rescind, notices of intent to terminate regional centers, and motions to reopen N-400 naturalization applications after receipt of derogatory information after a grant. In addition, flexibilities are further extended to I-290B notices of appeal or motions and N-336 requests for hearings on a decision in naturalization proceedings if the form is filed up to 90 days from the issuance of the decision, and USCIS made the decision between 11/1/21 – 3/26/22.

  1. Visa problems where applicants leave US before decisions on extension/change of status requests.

During the time of Covid, it has oftentimes been difficult for visitors to the US to leave the country on time as international flights are canceled with little or no notice, or countries have multiple restrictions on reentry that cannot be met within a short period of time. So, many visitors have been forced to file for extensions or changes of status to remain in a quasi-legal status while making arrangements to leave, and then leave the US before decisions are rendered on their requests. The questions are what is the status of their visas since there is an automatic visa cancellation provision in the law where individuals overstay their visas, and whether the US consulates and CBP are on the same page.

The Foreign Affairs Manual states that a person departing after the date on the I-94 passes but before an application for extension or changes status has been decided by USCIS has a blanket exemption from visa cancellation, if the application was filed in a timely manner and was nonfrivolous in nature. It is not clear that CBP is entirely onboard in light of its response from the American Immigration Lawyers Association New York Chapter/CBP meeting on December 2, 2021, in which CBP reportedly said, “Application of INA 222 (G) is quite case specific. Detailed reference as to the application of INA 222 (G) can be found in 9 FAM 302.1-9 which has specific helpful scenarios (which CBP may refer to but is not bound by). Recommend carrying the receipt notice if an extension application was timely filed even if later abandoned.”

To have CBP be on the same page insofar as visa cancellations are concerned would promote certainty in travel and prevent a situation of which we heard a few weeks ago in which the parent of an LPR traveled back to the US on the same visa five months after departing only to have a CBP officer cancel the visa on ground that the extension application was abandoned as the applicant had not shown up for her biometrics appointment.

Q&A’s published on the World Journal Weekly on January 2&9, 2022 1. Can I do part-time work like paid expert consulting (outside my employer) with an EAD+AP card related to my I-485 EB1-B green card application? 2. Stay and work on H1B while Max out nearing 3. Can I move to the US while I wait for my green card? 4. I am currently on h1 b visa and I’m married to US citizen I would like to resign my job due to personal reasons and I have not started the process for adjustment of status.

1. Can I do part-time work like paid expert consulting (outside my employer) with an EAD+AP card related to my I-485 EB1-B green card application?

I am currently on an O-1 Visa, which expired in July 2021. My employer had applied for a renewal (still pending), and they said that I am still in status and able to work as long as the O-1 renewal has been pending for less than 240 days without any decision. I have since received my EAD+AP card for my EB1-B Green Card sponsored by my employer. My employer indicated that they will now withdraw the O-1 renewal application, since I have received my EAD. Additionally, my I-485 for AOS has also been approved. My question is whether I can now take up part-time paid employment outside of my employer (while also continuing to work for my employer) on my EAD+AP card (which I have in hand), or will this in some way jeopardize my future naturalization from permanent resident to citizen? I currently have an offer to do some part-time paid consulting (paid by the hour). Is it okay for me to accept this and receive payment?

Mr. Lee answers:
Under the circumstances that you describe under which you will continue working for the employer that sponsored you for the EB-1B green card, your taking on additional part-time paid employment is fine. You have an EAD allowing you to take on employment which is not confined to your present sponsorship which EAD may soon be superseded by the green card that you will receive since your adjustment of status application has been approved. Under either situation, the additional employment would be allowed. In green card situations based upon employment, USCIS would mainly be concerned at naturalization whether the applicant had an intention to work with the sponsoring employer when the green card was given. In your situation, that would not appear to be a concern as you state that you will continue to work for your employer.

2. Stay and work on H1B while Max out nearing

Arrived in US on Dec 2016 on B-1, change of status to H-1B in Feb 2017. My new employer will be applying for PERM in Mar 2022- What are my chances for Best Case Scenario, perm approved I-140 Approved. Worst case scenario any Audits How can I file for 7th year extension If I exhaust my H1 b then can I work outside US for same employer while my PERM/I140 being processed.

Mr. Lee answers:
Your best-case scenario appears to be no problems with the labor certification application and having an approved I-140 by the time that the six years runs out on your H-1B status. In that case, your company can file for an extension of the H-1B while you are in the US. The chances on that depend upon the labor certification application description and requirements, how the recruitment process goes, and the financial viability of your company – all of which cannot be foretold without knowing all of the facts now and when your company begins the process. The worst-case scenario is that your labor certification application is denied and your avenue is closed. In less dire circumstances in which there is an audit which delays labor certification approval until after your six years is up, you can either attempt to remain in the US on another nonimmigrant status or go out of the US and work for the same employer or another employer until you have an approved I-140 petition, at which point your employer can file a H-1B petition extension for you, which if approved, would allow you to return to the US. 

3. Can I move to the US while I wait for my green card?

My brother filed an I-130 and I live out of the US. Do I have to wait for my green card 10+ years or can I get a special visa and move to the US meanwhile?

Mr. Lee answers:
There is no special visa that would allow you to come to the United States ahead of the time that you are entitled to do so under your brother’s petition. On the other hand, you may be able to enter through some other nonimmigrant category such as H-1B specialized occupation worker or L-1 intracompany transferee as those are dual intent visas under which the fact of applying for immigration would not be negatively considered by a consular officer in adjudicating the visa application. Other nonimmigrant visas which require nonimmigrant intent such as visiting or student visas could still be given in the discretion of an American consular officer taking into account all the circumstances of the application.

4. I am currently on h1 b visa and I’m married to US citizen I would like to resign my job due to personal reasons and I have not started the process for adjustment of status.

I need to be vaccinated to apply for green card and in the meantime can I change my status to b1 and stay with my husband.

Mr. Lee answers:
Probably the better thing for you to do is to allow your H-1B status to expire if there will be a gap between your resignation and the time that you file for permanent residence under your marriage case. Expiration of status is not a bar to adjustment of status in your circumstances. In addition, a change of status application to B-1 or B-2 involves an assertion that you will be leaving the country at the end of the temporary period of stay. Such an application is not to be a stopgap to your morphing into permanent residence.

Article: “IS THERE A PLAN D? IF NOT, CAN OR WILL DEMOCRATS IGNORE THE PARLIAMENTARIAN TO OBTAIN IMMIGRATION RELIEF FOR MILLIONS?”

As published in the Immigration Daily on December 20, 2021

Senator Joe Manchin (D-WV) said yesterday on “Fox News Sunday” that he will not support The Build Back Better Act, the chief legislative thrust of the Democrats that requires all 50 Democratic senators to be on board to pass through the reconciliation process with only Democratic votes. This may signal the end or proved to be a temporary roadblock with Democrats having to further negotiate to pare down the bill with one of their own. If the legislation somehow obtains the 50 votes, the important immigration component will also require further work.

The Senate parliamentarian, Elizabeth McDonough, delivered another blow to the Democrats’ plan to add immigration relief to the Reconciliation Bill on December 16, 2021, by rejecting Plan C, the main component of which would consist of parole of up to 10 years (5 years per application) with accompanying employment and travel authorization for those who enter the US before 2011. Plan A had included a path to citizenship for essential workers, DACA and TPS recipients, and Plan B updated the Registry date under which persons in the US by a certain date could adjust status from its present eligibility date of January 1, 1972 to January 1, 2010. The parliamentarian’s guidance was as follows:

The proposed parole policy is not much different in its effect than the previous proposals we have considered. The proposal, which would increase the deficit by $131 billion over 10 years, creates a class of eligible people (those who have been in the country for 10 years or more) who will qualify for a grant of parole in place status. This new class would make eligible for parole 6.5 million people – nearly the same number of people as the previous two plans. CBO estimates that 3 million people would adjust to LPR status – 2 million of whom would be otherwise ineligible under -current law. In order to effectuate the policy, the parole proposal changes the contours of the current parole in place program, making it a mandatory award of status for qualifying applicants rather than the current discretionary use of the Secretary’s authority and assessment, which the USCIS website states that the Secretary grants “only sparingly.” The grant of parole will be accompanied by the mandatory issuances of work authorization, travel documents, a deeming of qualification for REAL ID and automatic renewal of PIP. These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact and would subject to the proposal to a 313(b)(1)(D) point of order.

Where do the Democrats go from here? A realistic assessment by the negotiators vis-à-vis the parliamentarian would likely be the first step – is there a chance for Plan D? Would Ms. McDonough be more amenable to Plan C if it was not as extensive and only included a plan of parole with work authorization and travel documents and left out a deeming of qualifications for Real ID and automatic renewal of PIP (Parole in Place)? Would it be possible or even acceptable for Democrats to offer a plan for parole which was not equivalent to PIP to allow adjustment of status? Even now, DHS paroles individuals into the United States for many reasons and contests applications for adjustment of status on grounds that the parole status given did not entitle the holder to adjustment of status. If a realistic assessment is that the parliamentarian will likely not agree to any scenario which includes some form of relief to millions, then the Democrats seemingly have two choices – give up or override Ms. McDonough’s guidance on the ground that it is only advice. Giving up will exact a tremendous cost in terms of not only midterm election votes, and also place the reconciliation package in further jeopardy with some legislators signaling that they will not support the legislation without the immigration component. Overriding the parliamentarian on the other hand brings the twin risks that the Democrats will not have the votes as moderates balk and that success in doing so would set a precedent in which either party in power could simply go through the reconciliation process to achieve its goals disregarding the parliamentarian’s guidance.

If the rest of the reconciliation package can be worked out, and it comes to the choice of overriding the parliamentarian or not, we favor the override as the future of US immigration quite literally hangs in the balance and without some form of immigration relief now, it will be likely many years before the opportunity arises again. (The latest polls indicate that the Republicans are poised to make significant midterm election gains.) The Democrats can only do so if they can band together as one since loss of one member in the Senate and more than a few in the House would spell doom for the effort. If they can achieve unanimity, they would not be specifically confined to Plan C, the most limited plan, but should likely still consider it heavily as there will undoubtedly be legal challenges and the plan that hews closest to being less a substantial change in policy and having a large budgetary impact would be the most defensible.

Q&A’s published on the World Journal Weekly on December 5, 2021 1. Can I change from F-1 student to B-2 tourist and how long would it take to process? 2. While pending parents I-130 in US.  Can they travel out of US?

1. Can I change from F-1 student to B-2 tourist and how long would it take to process?

Can I change from F1 student to B2 tourist? If approved can I travel and come back with tourist visa? Would I be receiving a copy in the mail? How long would it take to process?

Mr. Lee answers,
It may be possible to change from F-1 student to B-2 tourist, but such is mostly impractical at this time to a number of situations. The USCIS service centers are generally backed up on this type of adjudication and could well take over nine months and even longer to make the adjudication. If you file, you will receive a receipt, but it may take a long time before you receive an actual decision. If you decide to file and are still in the US by the time that your requested time is close to expiration, you should leave or take some other action to preserve your nonimmigrant status. Please note that a change of status is not a visa, it is only notated on a paper. If you travel outside the country, you would need to apply for a tourist visa in most cases to return as a tourist. 

2. While pending parents I-130 in US.  Can they travel out of US?

I have filed parents I-130 after 3 months of their arrival in US. I didn’t file I-485 yet. Can they travel out of US and come back on a visitor visa while their I-130 is still pending in US? Do they need to file for travel document I-131? Can they apply for I-485 back home?

Mr. Lee answers:
The difficulty here is that your parents’ visiting visas require nonimmigrant intent, and they could have a problem reentering the country if they are questioned by a CBP officer on that, Probably the best solution is for your parents to file I-485 applications and obtain I-131 advance parole documents to travel in and out of the US during the time of processing. I note that advance parole applications are taking time for USCIS to process, and so your parents may not be able to leave for possibly 5-10 months after filing. I-485’s are only filed in the United States. If your parents wish to process their papers overseas, they would do it on form DS-260 immigrant visa applications. 

Article: “IMMIGRATION NEWS THAT YOU CAN USE: USCIS DOES THIRD ROUND OF H-1B PICKS FOR FIRST TIME; FILING ADDRESSES EXTREMELY IMPORTANT TO PAY ATTENTION TO; EAD CHANGES FOR H-4, L AND E DEPENDENTS; DECEMBER VISA CHART HOLDS A FEW BRIGHT SPOTS; NEW YORK DISTRICT OFFICE/CONTACT CENTER MEETING POINTS.”

As published in the Immigration Daily on November 23, 2021

  1. USCIS does third round of H-1B picks for first time.

USCIS surprised just about everyone in holding a third round of H-1B selections for fiscal year (FY) 2022 on November 19, 2021, over a month and a half after the beginning of the fiscal year on October 1, 2021. In FY-2021, the agency conducted two rounds, and with the large number of H-1B registrants for this year (308,613 for the 85,000 slots), it was assumed that the second round in July 2021 was the final word. This was a happy surprise for organizations and those selectees now willing and able to move forward with H-1B processing. The downside is that a number of organizations may not be so willing and able to sponsor as they were earlier in the year and that the selectees may have moved on to other jobs, gone back to school, taken other nonimmigrant/immigrant options, or left the country. Nevertheless, the third round will solve problems for a number of individuals whose statuses are or may become questionable. Notice was given to petitioners’ attorneys/representatives and petitioning organizations on their myUSCIS accounts including details on when and where to file. Petitioning organizations have from November 22, 2021 until February 23, 2022, to file petitions with USCIS.

  1. Filing addresses extremely important to pay attention to.

USCIS announced that it is planning to open a new lockbox in Elgin, Illinois, next year; that now certain adjustment of status applicants submit their applications to the Phoenix lockbox instead of the Chicago or Dallas lockbox; that it has streamlined filing locations for certain employment based forms to a single lockbox location and that people can find the latest filing instructions on I-130, I-131, I-360, I-485, I-601, I-765, I-824, and I-864 pages; that in the coming year, USCIS is planning a few more filing location changes and will direct some family-based adjustment of status applications to Dallas; and that next summer, USCIS will move the lockbox facility in Arizona from Phoenix to Tempe. So the watchword for all is to check the filing locations for every petition or application going out!

  1. EAD changes for H-4, L and E dependents.

On the heels of the H-4 and L dependent spouse automatic extension EAD settlement in Shergill, et al v. Mayorkas, 2:21-cv-01296 (WD Wash 11/10/21), USCIS issued a policy alert on November 12, 2021, “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses”, PA-2021-25, on the procedures to follow for three nonimmigrant classes of spouses, H-4, E, and L –that all of them are eligible for automatic EAD extensions of work authorizations if they properly filed an application to renew their EADs before expiration and have an unexpired I-94 form showing their status as H-4, E, or L nonimmigrant. The automatic extension continues until the earlier of 180 days from date of expiration of the previous EAD, end date of the I-94 showing valid status, or the approval or denial of the EAD renewal application. For automatic extension of the previous EAD, employers for I-9 purposes need to see the form I-94 indicating the unexpired nonimmigrant status, I-797C receipt for timely filed EAD renewal application stating “Class requested” as “(a)(17)”, “(a)(18)”, or “(c)(26)”, and facially expired EAD issued under the same category.

The policy alert also provides that E and L dependent spouses are employment authorized incident to their status and are no longer required to request employment authorization by filing for I-765 but may continue to file form I-765 if they choose to receive an EAD. The problem with the new policy for E and L dependent spouses is that at present, there are no distinguishing markers on their I-94’s to distinguish them from children, and so on until USCIS can implement changes to the I-94 to distinguish them, an I-94 solely indicating H or L nonimmigrant status is insufficient evidence of employment authorization under list C of the I-9 form. So until that time, E and L spouses still need to rely upon an EAD as evidence of employment authorization. USCIS noted that three classes of E dependents are not recognized under the new policy – spouses of employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO) must continue to apply for EAD’s under 8 CFR 274a .12(c)(2); spouses of long-term investors in the Commonwealth of the Northern Mariana Islands under 8 CFR 274a .12(c)(12); and spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.

  1. December visa chart holds a few bright spots.

A few bright spots in the December visa chart were the advances in the Mexico family-based categories, EB-5 open availability for direct investments for all countries, and China’s advance in EB-2 and EB-3W categories under dates for filing. Both family-based (FB) charts remained the same except for final action dates for Mexico that moved from 1-4 months and for dates for filing F-2A advancing worldwide to 9/1/21 (unimportant as the category is open under the final action dates chart and USCIS allows that date to be used for filing purposes), and Mexico preferences advancing 0-4 months; employment based (EB) final action dates remained current worldwide* except for regional center investments under EB-5 being unavailable for all countries, China moved one and a half months in EB-2 to1/1/19, and EB-3W (other workers) two years to 3/1/12; and India EB-2 advanced six months to 5/1/12 (not especially helpful for most Indian cases that had already downgraded to EB-3 in 2020 when the availability date reached 1/1/15); in EB dates of filing, China’s EB-2 advanced two months to 4/1/19, EB-3W 5 years to 5/1/15, and EB-5 direct for all countries including China became current. EB-5 regional investment cases remain unavailable as there is no implementing legislation. (Unless investors are involved in direct EB-5 investments (only about 5% of investors), the EB-5 movement in the December visa chart was not very exciting).

For the month, USCIS is allowing final action dates to be used for the F-2A category, and dates for filing for both FB and EB categories.

*Worldwide here meaning all but oversubscribed countries China and India (EB-1 to EB-3) and El Salvador, Guatemala, Honduras, and Mexico (EB-4 religious cases).

  1. New York District Office/Contact Center meeting points.

The Contact Center meeting of 10/21/21 was reported by the New York chapter of the American Immigration Lawyers Association (AILA), and the following are some interesting items which readers may or may not know in working with the Center:

  • Urgent inquiries for the Center to call back are up to 72 hours, but currently 48 hours.
  • Cases classified as nonurgent for the Center are up to 30 days for callback, but currently 20 days.
  • Representatives are supposed to take two phone numbers.
  • For cases without receipt numbers, the attorney/representative should state that the inquiry is for a specific filing that doesn’t have a receipt number and tier 1 will escalate to tier 2 to research/special handling and then generate a service request to the office where the case is pending.
  • While a tier 1 officer should provide the name and the agent ID number, a tier 2 immigration services officer (ISO) only needs to provide the last name.
  • On biometrics appointments where the person is turned away because the ID is not sufficient or for other reasons, the person should contact USCIS and let them know why the biometrics was not collected on the scheduled date and the officers would try to accommodate.
  • Good cause for rescheduling biometrics appointments may include but are not limited to medical reasons, employment reasons, necessary travel, travel that was previously planned, coverage on the job (people cannot take a particular day off), illness/Covid.
  • The Contact Center encourages applicants to use their myUSCIS account to request rescheduling.
  • On callbacks, representatives can ask about another two cases when they receive a call back.
  • It was confirmed that USCIS is not speaking to paralegals, only to the lawyer on the G-28 authorization of representation.

Happy Thanksgiving to all!

Q&A’s published on the World Journal Weekly on November 21, 2021 1. Husband is waiting for visa interview on my petition I’ve cosponsor. Last year I was unemployed. What is the minimum value of income for tax return?

1. Husband is waiting for visa interview on my petition I’ve cosponsor. Last year I was unemployed. What is the minimum value of income for tax return?

My cosponsor has income than 50,000 in 2020. What is the minimum value of income for tax return I’ve to add?

Mr. Lee answers,

There is no adding together of the income and assets of you and your cosponsor unless your cosponsor is also a household member. Otherwise, your I-864 and his/her I-864 are considered separately. In looking at your cosponsor’s income, the adjudicator generally looks to see whether the affidavit of support is credible and the number of dependents that the cosponsor is supporting along with any others that he or she has sponsored in the past and is still legally obligated to render support to if the immigrant later receives means tested public benefits. Looking at the poverty guidelines, income of $50,170 is sufficient to support seven individuals including the cosponsor. 

Article: “IMMIGRATION NEWS THAT YOU CAN USE – NATURALIZATION PRACTICE AND PROCEDURE; THE NOVEMBER RETROGRESSIVE VISA CHART; H-1B BY HIGHEST SALARY STILL BEING ADVOCATED BY BIDEN ADMINISTRATION; BAN ON TRAVEL FROM CANADA AND MEXICO ENDING IN STAGES; NEW YORK STATE AND FEDERAL GOVERNMENT EFFORTS TO PROTECT IMMIGRANTS.”

As published in the Immigration Daily on October 19, 2021

  1. Naturalization practice and procedure

Q&A’s from the CIS Ombudsman’s webinar on naturalization and immigrant integration on 6/23/21 gave the following:

  • Demonstrating the general usage of tablets for naturalization applicants’ reading and writing tests, the question was how naturalization applicants can request to take the reading and writing tests on paper with the answer being a variety of ways including through the Contact Center, online at uscis.gov/accommodations, or by asking the field office at any time during the naturalization process.
  • On how common video interviews are becoming in USCIS field offices, the question was how citizenship educators can find out if their local field office is conducting video interviews so they can prepare students, the answer being that the use of video interviews varies across offices based on determinations that consider a variety of factors, such as office capacity, office workloads, and health and safety considerations; that select USCIS offices began testing in person video interview technology in June 2020; the testing was successful, and USCIS has now conducted video interviews in all USCIS field offices.

From the New York District office/stakeholders liaison meeting of 9/29/21:

  • There was an interesting question as to what the District would do in an N-400 case where the person had a green card that expired prior to filing the N-400 or during the pendency of the application. The first answer was that the person had to file form I-90 even if that person filed for naturalization as the law required that a person have a valid green card in all times. In a later follow-up question as to whether lack of the green card would cause the immigration officer not to adjudicate the N-400, the District answer was that the lack would have no effect since not having a green card had nothing to do with good moral character.

 

  1. The retrogressive visa chart for November

While FB (family-based) dates of filing and final action dates in the November visa chart were the same as in October, EB (employment based) dates of filing and final action dates for China and India took a big hit in the EB-3 category – Final action dates: EB-3 China retrogressed from 1/8/19 to 3/22/18 and India from 1/1/14 to 1/15/12. There is little solace that the EB-2 China date advanced from 7/1/18 to 11/15/18 and India from 9/1/11 to 12/1/11 as those dates had been reached for the vast majority of EB-2 to EB-3 downgraded petitions. Dates of filing: EB-3 China moved backwards from 1/15/19 to 4/1/18 and India from 1/8/14 to 1/22/12. There is some solace that China’s EB-2 date of filing advanced from 9/1/18 to 2/1/19 as that is an advance over past usable visa availability dates for China EB-2 and EB-3 categories, but the India EB-2 move from 7/8/12 to 1/8/13 provided little solace except for those that could not downgrade to EB-3 previously.

What reason(s) can be ascribed for the retrogression? The November visa bulletin section on page 8 said, “This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases.”

An article in the 10/6/21 Immigration Daily, “The Biden Administration Let over 200,000 Green Cards Go to Waste This Year” by Walter Ewing, charges that roughly 150,000 FB and as many as 80,000 EB immigrant visas went unused by September 30 – that while the 150,000 FB IV numbers can go to the EB category for the next year (regular quota of 140,000+150,000 FB numbers = 290,000 for use in FY 2022), the 80,000 EB numbers went to waste. Mr. Ewing pointed out that in FY 2021, there were 122,000 FB leftover numbers from FY 2020 for use in that year for EB purposes (140,000+122,000 = 262,000), but that as many as 80,000 went unused and cannot be resurrected without congressional action.

Between the wasted numbers and that the Department of State must balance out the annual quota among the four quarters of the fiscal year, therein lies (in this writer’s opinion) the roots of the problem to the retrogressed categories.

In the continuing tease, USCIS adjustment dates for November allow dates of filing for FB cases, final action dates for F-2A, and filing dates for EB cases.

 

  1. H-1B by highest salary still being advocated by Biden Administration.

The Biden administration is defending the H-1B by highest salary Trump policy once again – this time before a DC federal judge in Humane Society of New York et al. v. Alejandro Mayorkas, et al., 1:21-CV-01349, saying that the policy is procedurally valid and consistent with the INA. It argued on October 11 in a new motion both that the wage dependent model for awarding the limited number of visas for specialty workers is valid and that the policy was implemented legally in the final weeks of the Trump administration under the then acting DHS Sec. Chad Wolf. The administration lost in the California District Court on the same issue about a month ago. There, District Court Judge Jeffrey S White of the Northern District of California in Chamber of Commerce of the United States of America v. US Department of Homeland Security, 20-CV-07331, granted summary judgment to the Chamber of Commerce on 9/15/21 only on the ground that Chad Wolf was not lawfully appointed as Acting Secretary at the time that DHS promulgated the rule. The judge noted that DHS abandoned the argument that a memorandum issued by FEMA Administrator Peter Gaynor cured any deficiencies in Wolf’s appointment. The judge did not rule on the merits of the plaintiffs’ argument that the government’s regulation offended the statute that H-1B cap case people “shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” §1184(g)(3).

It is becoming increasingly clear that while the Biden administration is much better than that of Mr. Trump in most areas of immigration, Mr. Biden is heavily invested in the unions and in the belief that employers should pay the highest wages to their workers, regardless of the circumstances. Practitioners should plan accordingly if this becomes a reality.

 

  1. Ban on travel from Canada and Mexico ending in stages.

The White House announced that it is ending the ban on nonessential travel from Canada and Mexico and that those travelers who are fully vaccinated can enter the US for nonessential reasons such as tourism or visiting family travelers starting November 8, the same date that international air travelers can enter. The vaccination requirement does not apply to essential Canadian and Mexican workers who will have until January to be vaccinated. Children are excepted. All FDA approved and authorized vaccines, as well as all vaccines that have an emergency use listing from the WHO are to be accepted for air travel, and a White House official said that it was anticipated that the same would be true at the land borders. At this time, only seven vaccines have been approved for use by WHO – Moderna, Pfizer, Johnson & Johnson, AstraZeneca, Covishield, Sinopharm’s BBIBP-Corv (Vero Cells), and Sinovac’s CoronaVac. The Russian Sputnik vaccine is not included.

 

  1. New York State and federal government efforts to protect immigrants.

On October 9, 2021, New York Gov. Kathy Hochul signed legislation (S343-A/A.3412-A) which will apply the legal standard of extortion or coercion to a person threatening to report another person’s immigration status. Previously threats to report could only be treated as a crime in cases of labor trafficking and sex trafficking, but were not treated as potential extortion or coercion offenses. The bill allows prosecutors to prosecute efforts to blackmail an individual by threatening to cause deportation proceedings even when unrelated to labor or sex trafficking.

On the federal side, the Biden administration has suspended the use of expanded expedited removal. A DHS spokesperson said in a statement, “DHS’s review of expanded expedited removal is ongoing. This particular application of expedited removal was used in an exceedingly small number of cases under the Biden administration and will not be used moving forward until the Department’s review is completed.” Under expanded expedited removal, the previous bounds of only employing the procedure on those unlawfully entering within two weeks and discovered within 100 miles of the borders were expanded by Mr. Trump to those unlawful entrants discovered in any location in the country who could not prove their presence in the US for at least two years.

In a DHS memo from Secretary Alejandro Mayorkas on 10/12/21, “Workforce Enforcement: The Strategy to Protect the American Job Market, the Conditions of the American Worksite, And the Dignity of the Individual” to Tae D. Johnson, Acting Dir., US ICE, Ur M. Jaddou, Director of USCIS, and Troy A. Miller, Acting Commissioner, US CBP, the Secretary stated DHS policy against mass worksite operations – that “The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even acting as a tool of retaliation for, worker cooperation and workplace standards investigations. Moreover, such operations are inconsistent with the Department’s September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.”

 

 

Q&A’s published on the World Journal Weekly on October 3, 2021 1. How to change a student visa to a tourist visa? 2. Can a mistake in form N-400 be fix in the interview? 3. What do I need to do to change my J-1 Au Pair Visa to marriage visa? 4. Can and should I apply for adjustment of status with an approved I-526 awaiting a consular interview while being in USA on a b1/b2 visa?

1. How to change a student visa to a tourist visa?

I’m currently an F1 student and want to change to tourist visa B2 because can’t continue school anymore. How long does it take to process? if approved?

Mr. Lee answers,
In looking at the various service centers of USCIS and their published times in adjudicating changes of status to “other” categories like B-2, they are generally taking a long time. The Texas Service Center is taking between 10-13 months, California Service Center 19-25 months, Nebraska Service Center 9.5-12 months, Vermont Service Center 11.5-15 months, Potomac Service Center 10.5-13.5 months, and the National Benefits Center 2.5-4.5 months. I note that USCIS adjudications have been delayed because of the pandemic, and have hopefully begun to speed up. 

2. Can a mistake in form N-400 be fix in the interview?

I answered NO instead of YES in question about military. I was in a mandatory Military service in my country of origin. My Interview was already scheduled. Could it be fixed at the interview? Can I have any trouble?

Mr. Lee answers,
Yes, you will be given opportunity at the time of the naturalization interview to correct any item on the N-400 application. If the officer does not ask the question, you should volunteer that you were in mandatory military service. 

3. What do I need to do to change my J-1 Au Pair Visa to marriage visa?

I arrived in the US on a J-1 Au Pair visa. It is due to expire in October, however whilst here I have met my girlfriend and we intend to get married. I am wondering how to ensure that I am able to stay here with her as we do not want to be apart. I am unable to be an Au Pair when I am married as the program states that I will have to exit the program if I am married, therefore I am trying to understand how to stay in the country with her legally until everything is processed. Any help would be appreciated.

Mr. Lee answers,
Assuming that you are not subject to a two-year home residence requirement because of the J-1 visa, you should be able to stay in the States if you are marrying a US citizen or permanent resident. With a permanent resident, you would have to file the I-485 application for adjustment of status with USCIS prior to the expiration date of your J-1. The I-485 filing would place you in a quasi-legal status until the time that the agency makes an adjudication on your application. 

4. Can and should I apply for adjustment of status with an approved I-526 awaiting a consular interview while being in USA on a b1/b2 visa?

 I had applied for EB-5 which got approved in Feb 2020. Since I was in Hong Kong, I went through consular processing and my case stands as documentarily complete at NVC awaiting an interview. Before two months I came to USA on non immigrant Business Visa (B1/B2). There is again a surge in Covid cases in HK and lockdowns and curfews are being laid down and so the Embassy is shut again. Q1) I wanted to know how it would be if I were to apply for Adjustment of Status? Q2) Are there greater chances of my getting a refusal since I came on a nonimmigrant visa and am applying for becoming an immigrant ? Would the 90 day rule adversely affect my application? Q3) Say if I do apply and get refused, would I still be able to go back to HK for Consular processing ?

Mr. Lee answers,
A concern with USCIS may well be why you are applying for adjustment of status here while you are awaiting a consular interview on the approved I-526 petition, and the related concern of whether you had a preconceived intent to adjust status when you came to the US. It may come down to an immigration examiner’s perception of what is going on. There is probability that you will be interviewed instead of an interview being waived, and in such case, the examiner may question and evaluate your explanation. I do note that the deterioration of conditions in HK vis-à-vis Covid would appear to be a reasonable explanation for deciding to adjust status instead of returning for consular processing. If you are refused, you may face problems with your consular processing in HK dependent upon the speed of resetting consular processing and the attitude of the interviewing officer toward your attempt to adjust status in the States.