Author: Alan Lee

Q&A’s published on the World Journal Weekly on February 28, 2021 1. I filed I-539 extension for B2 visa on time, but so far I had only the 13 digits receipt. Should I leave? 2. My Son (Visa Waiver) in the US, (not married, 33 years old) , I am Permanent Resident Card holder Mom, may I process the I-130 and I-485 together? He is overstayed. 3. Reduced misdemeanor charge speeding 4. I applied I-130 form for my sister.  Can she apply the form I-485 also? 5. My husband owes child support. Will it affect my immigration petition?

1. I filed I-539 extension for B2 visa on time, but so far I had only the 13 digits receipt. Should I leave?

I filed I-539 extension application with B2 Visa on time, but I have not received any result; I only have the receipt notice. My worry is that the 180 days (I read this from a USCIS site) allowable days for me to stay supposedly after filing extension supposing it is approved has lapsed. Should I leave the US?


Mr. Lee answers:

An applicant for timely B-2 extension is entitled to remain in the US to await the results of the decision, but your better action if you were going to stay past the time that you earlier requested would have been to apply for another extension. If USCIS approves the extension request (six months is the maximum extension time), that will be over the time from April 2, and you will begin to accrue unlawful presence as soon as the decision is made. Whether you stay or leave at this time is your decision, but USCIS would likely prefer for you to leave if you did not file another extension request or other application to attempt to maintain your nonimmigrant status.

2. My Son (Visa Waiver) in the US, (not married, 33 years old) , I am Permanent Resident Card holder Mom, may I process the I-130 and I-485 together? He is overstayed.

It is a just a thinking situation : if my son comes with Visa Waiver to the US and he will overstay. May I file for him I-130 and I-485 together and can he stay under the process in here in the US ( I am a green card holder Mom)?  If not, maybe he will come to the US (with Visa Waiver), and under the visiting time I will file the I-130 and I-485, is it will work? Or other way, if the GC holder applies for the son, who is abroad, under the process, he may come to the US or must wait 7-13 years without visiting his mother?

Mr. Lee answers:

As a permanent resident filing for a 33-year-old single son, he is in the F-2B category which in the month of January 2021 only has filing date availability for those who filed prior to 5/1/16 for all of the world except for further backlogged countries Mexico and the Philippines. Adjustment of status (I-485) is only allowed where there is visa availability. Your idea of having your son adjust status when he enters will not be allowed because of the long period of time that he must wait before his quota becomes current. Insofar as visiting you is concerned during the time of waiting, he is allowed to do so as long as he is able to convince immigration inspectors at the port of entry that he intends to return within the 90 day period allowed on visits under the visa waiver program. He should space out any visits so that DHS can see that he spends much more time in his home country than the United States. 

3. Reduced misdemeanor charge speeding

I do have a misdemeanor charge of speeding in Virginia (2019) and the judge asked me to do driving school and 12 hours community service and charge reduced to infraction of simple speeding I paid the fine. How it will affect the N-400 application. I had 4 driving tickets 1- The number plate is not visible – Fine paid. 2- Careless driving – Fine paid in 2017. 3- Not obey the sign -2018- Fine paid. 4- Children are not wearing a belt- Fine paid 2019.

Mr. Lee answers:

Offenses against the law are important in naturalization cases since applicants must prove good moral character for the length of time required following the green card to file the N-400 application. Generally, traffic offenses should not prevent individuals from obtaining naturalization if the applicants are qualified in all other respects. The fact that you have four traffic offenses may be looked at more carefully, but I believe that four over a period of three years can probably be overlooked.

4. I applied I-130 form for my sister.  Can she apply the form I-485 also?

I am a U.S. citizen and filed I-130 for my biological sister.

Mr. Lee answers:

The F-4 category for siblings of US citizens is presently available for filing forms I-485 only to those filed I-130 petitions before 9/15/07 (dates for filing chart) except for further backlogged countries India, Mexico, and the Philippines. Because there is no visa availability, an I-485 cannot be filed. The US does not allow individuals to file I-485 applications and then wait until the priority date is current. Sorry. 

5. My husband owes child support. Will it affect my immigration petition?

My husband has outstanding child support on New York. He’s filing an immigration petition for me. Will this affect me? If so, how can he be rectified or to pay outstanding amounts? How can it be rectified?

Mr. Lee answers:

If your husband has outstanding child support obligations, he should either pay the amount owing on child support, or if unable to do so, make a schedule with the child’s mother for the outstanding balance over time. Your husband’s inability to pay child support casts doubt upon his ability to support you under the I-864 affidavit of support, a requirement in your immigration case.

Article: “BIDEN PLAN FOR UNDOCUMENTED AND THOSE WITH REMOVAL ORDERS IS GENEROUS”

As published in the Immigration Daily on February 22, 2021

The Biden Administration’s big immigration bill, “The US Citizenship Act”, sent to Congress on February 18, 2021, is expected to draw opposition and faces an uphill climb. In what form it will emerge from Congress if it does remains to be seen. This article will only discuss one part of the bill – the provisions for the undocumented including those with final orders of removal or deportation to apply for status as “Lawful Prospective Immigrants”.

Generally, applicants must be physically present in the US on January 1, 2021, and maintain continuous physical presence from that date until the application is approved although absences of less than 180 days during a calendar year are not to be considered violations of the residence requirement if the absences are brief, casual, and innocent, whether or not the absences are authorized by DHS. Ineligibility grounds are confined to criminal, security, human smuggling, ineligibility for citizenship, child abducting and unlawful voting bars. Deportation or removal orders are not a bar; neither is the two-year home residence requirement restriction for some J-1 visa holders.

Most criminal acts as well as human smuggling, ineligibility for citizenship, child abduction and unlawful voting are waivable.

On crimes, felonies can bar, but state laws classifying offenses as felonies for which an essential element is the individual’s immigration status are not applicable. Most felonies, except for aggravated felonies can be waived except that multiple barring crimes involving moral turpitude can only be waived if the noncitizen has not been convicted of any offense during the 10 year period prior to the application for lawful prospective immigration.

Misdemeanors can also bar, but it takes three or more, and not counted are simple possession of marijuana or marijuana related paraphernalia, any offense regarding marijuana or marijuana related paraphernalia no longer prosecutable in the state of conviction, any offense for which an essential element is the individual’s immigration status, any offense involving civil disobedience without violence, and any minor traffic ticket. A further limiting factor on misdemeanors is that there can be no multiple counting of misdemeanors occurring on the same date and arising from the same act, omission, or scheme of misconduct. Waivers can also be given for misdemeanors on a scale of waiving one if there were no offenses within five years of application, and waiving two if there were no offenses within 10 years of application.

Waiver criteria do not primarily depend upon having qualifying relatives in the country. Humanitarian purposes, family unity, or public interest are to govern waiver decisions. DHS is to consider all mitigating and aggravating factors including severity of the underlying circumstances, conduct, or violation; the length of the individual’s residence in the US; evidence of rehabilitation if applicable; and the extent to which the individual’s removal or denial of application would adversely affect the individual or the individual’s US citizen or lawful permanent resident family members.

Persons who are out of the country having been deported during the Trump Administration beginning on January 20, 2017, can be given a waiver of deportation or removal and the requirement to be physically present in the US on January 1, 2021, and apply for the program. The waiver decision would again be based on humanitarian purposes, to ensure family unity or if it would be in the public interest. Eligibility factors for such a waiver are that the individual was continuously physically present in the US for not fewer than three years immediately preceding the date on which he or she was removed or deported and that the applicant did not reenter the US unlawfully after January 1, 2021.

Deported or removed individuals who sneaked back into the country by January 1, 2021, appear to be eligible for the program.

Lawful permanent residents, persons admitted as refugees or granted asylum, or individuals who are in a period of authorized stay in a nonimmigrant status according to the records of DHS or the Department of State as of January 1, 2021, are ineligible for the program.

Applicants can apply with their family members in a single combined application, and there would be an accompanying petition to classify the dependent spouse or children of the principal applicant. The dependents can be in status. Other classes that can be in status and apply are those in nonimmigrant status solely by reason of §702 of the Consolidated Natural Resources Act of 2008, H-2A farmworkers, persons who have engaged in “essential critical infrastructure labor or services” during the Covid-19 response period, and those paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009.

Persons who are prima facie eligible to apply will be given a reasonable opportunity along with limited protections if they make the application within a reasonable period of time in that they are not to be removed before DHS makes a decision denying relief; a final order of removal has been issued; and the DHS decision is upheld by a court or the time for appealing for judicial review has expired. An exception to waiting until the end of judicial review for removal is if the order of removal is based on criminal or national security grounds.

To apply, required documentary evidence of ID includes not only traditional past legalization IDs like passport, national identity document, birth certificate/identity card with name and photograph, school ID card with name and photograph and school records, state ID card, Department of Defense uniformed services ID card, any immigration or other document issued by the US government with the name and photograph – but also any other evidence that DHS determines to be credible.

Documents establishing continuous physical presence include any other evidence determined to be credible, sworn affidavits, official records from religious entities confirming participation in a religious ceremony, and the more typical required evidence such as passport entries with US admission stamps, DOJ or DHS documents noting the person’s date of entry, schooling records, employment records, uniform services records, birth certificate for child born in the US, hospital or medical records, auto license receipts or registration, deeds, mortgages, or rental agreement contracts, rent receipts or utility bills, tax receipts, insurance policies, remittance records, travel records, and dated bank transactions.

Upon submission of the application, DHS will not deny the application until it sends out a Request for Initial Evidence (RFI), and the applicant fails to submit the evidence including requested biometric data by the deadline date. If the applicant fails to comply with the request and the application is denied, the individual can submit an amended application or supplement the existing application without an additional fee as long as the amended or supplemented application contains the required information and any fee that was missing from the initial application.

Denied applications can be appealed to an administrative appellate authority to be established or designated by DHS, and administrative appeals are limited to one for each decision. The time for appeal is 90 days from the date of service of the denial unless a delay beyond the 90 day period is reasonably justifiable. Further judicial review is allowed and governed by the rules involving immigration cases.

Approved applicants will be allowed to remain in the US for six years with travel and work authorization. A further extension of six years is possible. Applicants are eligible to apply for adjustment of status to permanent residence after five years of lawful prospective immigrant status.

For those concerned that DHS may share the submitted application information for removal proceedings or other purposes, there is a strong privacy restriction against the sharing of information except to a duly recognized law enforcement entity in connection with an investigation or prosecution of a criminal or national security offense, or for identification purposes of identifying a deceased individual upon request of an official coroner.

This part of the big bill affecting undocumented immigrants is to be fast tracked as the DHS Secretary is to issue a final regulation no later than 180 days after the President signs the legislation into law.

Hopefully the legislation will come to pass as it is long needed not only to bring people out of the shadows and to help reverse the reign of terror fostered by the Trump administration, but to help grow the economy as all serious studies have shown that immigrants-lawful and unlawful-benefit this great country socially, economically, and culturally.

[Please note that this article does not purport to be an extensive article outlining most of the “US Citizenship Act” or even cover all classes eligible to become lawful prospective immigrants. It touches on the major points of the legislation for the undocumented and those with final orders.]

 

Article: “WHAT IS THE BIDEN ADMINISTRATION PLAN FOR H-1B SEASON?”

As published in the Immigration Daily on January 25, 2021

By this time last year, USCIS had already come out with the rules for employer registration for the new H-1B season along with the timetable. At the time of this writing, nothing has been sent by Washington on timing or procedure. It may well be because we have a new administration with a new DHS chief, Alejandro Mayorkas, awaiting confirmation, and no one is certain what the Biden policy will be. His appointment of Marty Walsh, the Boston mayor and affirmed champion of the working people and a former union leader, indicates that President Biden may not be as sympathetic in the H-1B arena as he is in other areas of immigration. Indeed, the White House fact sheet of January 20, 2021 explaining “The US Citizenship Act of 2021” stated as a goal that “The bill… incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”

A look at the H-1B midnight regulations of the Trump administration and their present state may give us an idea of what options and dangers may loom for new cap subject H-1B’s in the upcoming months. There were three related regulations:

  1. The regulation for high wages to be favored in the employer registration selection system, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petition,” was published on 1/8/21 and slated to go into effect on 3/9/21.
  2. The regulation bringing back the Department of Labor (DOL) rule dramatically increasing wage levels, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United “States,” was published on 1/14/21, and set to go into effect 60 days thereafter (3/15/21). Under the rule, DOL would gradually phase in the new wages over a period of a year and a half, with the first increase to take place on 7/1/21. For H-1B workers who are beneficiaries of approved I-140 petitions as of 10/8/21, the phase-in period for increased wages was extended to 3 ½ years.
  3. The DHS regulation, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” bringing back the court rejected regulation in truncated form and only including the provision making end-user organizations file LCA’s and H-1B petitions (redefining the employer-employee relationship) was published as an advance copy on 1/15/21, still needs to be published in the Federal Register, and if published would not take effect for at least 180 days. (DOL acknowledged on 1/21/21 that the regulation is a nonstarter by withdrawing its supportive Office of Foreign Labor Certifications (OFLC) H-1B Program Bulletin and Wage & Hour Field Assistance Bulletin espousing DHS’s regulation as validating its own interpretation along with withdrawing a notice for publication in the Federal Register announcing and requesting public comments on the interpretation).

Under Biden Chief of Staff Ron Klain’s memo of January 20, 2021, stopping whatever midnight rulemaking could be withdrawn or paused by memo, all pending regulations were to be withdrawn and agencies instructed to consider postponing for 60 days regulations that had been published but not yet implemented. The shutdown memo has the following effects on the three regulations:

  1. As the first and second were published, the agencies must consider postponing them for 60 days since they have not yet been implemented, but whether they will be withdrawn depends upon the new administration’s views on the regulations.
  2. If the administration favors the first two regulations, they could go into effect as scheduled on 3/9/21 and 3/15/21 respectively under one of the memo’s exceptions to 60 days postponement. However, the second regulation would have no effect on this H-1B season as the raising of wage levels would not come into play until 7/1/21, which would be after this year’s H-1B season is over.
  3. The third regulation is definitely to be withdrawn under the Klain memo as it has not been published.
  4. The major questions lie with the first regulation. So far, there is seemingly no direction as to when H-1B season will begin or what the rules will be. While some lawyers believe that H-1B registration must begin on March 1st, that is not a magic date as such was just the date to start accepting registrations for 2020, the first year of implementation for the employer registration system. This year, registrations could begin on 3/15/21 or even 4/1/21, and USCIS would just have 15 or 30 more days of the backend of adjudication, e.g. instead of adjudicating a case on 9/2/21, it may adjudicate on 10/2/21.

There is also no guarantee that USCIS will use an employer registration system this year as it could revert to the former system of all petitioners submitting full H-1B packages in hopes of being selected, but the success of the registration program last year dictates otherwise.

The good news is that President Biden is much more balanced than his predecessor, and any changes should be analyzed, reviewed, and measured rather than produced by mercurial temperament. H-1B petitioners this year should have certainty concerning the OES wage system and stand unaffected by the attempted changes to the definitions of specialty occupation and employer-employee relationship. Indeed, the court victories against the second and third regulations provide H-1B practitioners with more arguments on these issues.

The first regulation’s shifting the odds of selection dependent upon an employer’s ability to pay higher wages to its H-1B workers should not be supported by this administration for many reasons, including the resultant stifling of innovation and promotion of discrimination against smaller sized organizations with specialty occupation positions to be filled, but without deep pockets to increase levels of pay like their larger sized competitors, e.g. large biotech companies willing to pay two or three times the going rate for researchers while smaller ones with equal or superior promise cannot reach that wage level, and so are unable to secure needed scientists, researchers, chemists, and the like.

Q&A’s published on the World Journal Weekly on January 17, 2021 1. My H-1 change of status got approved and I have a L-2 extension in progress. If my L-2 is denied will I maintain my H-1 status? 2. Applied for asylum after being in the U.S. over 1 years and used a fake social security number. 3. Can my husband file a petition for me if he did not file taxes for the last 4 years and he was gainfully employed? 4. Affidavit of Support (I-864 Form) 5. Steps for I-601A?

1. My H-1 change of status got approved and I have a L-2 extension in progress. If my L-2 is denied will I maintain my H-1 status?

My L2 expired on 8/25/2020 and I filed for L2 extension. Meanwhile my employer filed H-1B change of status which got approved on 10/15/2020 and now I have a valid I94. On 10/20/2020, I sent a letter to USCIS to withdraw my L2 petition. On 10/23, I received NOA to appear for biometrics for I-539 ( L2 extension approval). NOA says that if I do not appear for biometrics, my petition will be marked as abandoned. My question is, if I do not go to biometrics and my L2 is denied, will I keep my H1B status? – Does “Last Action Rule” apply in this case?

Mr. Lee answers:
The last action rule generally has to do with approvals and not denials. If you are already approved for a change of status on your H-1B, an L-2 denial should have no effect since you are already holding a valid legal status. 

2. Applied for asylum after being in the U.S. over 1 years and used a fake social security number.

If someone came here with a visa & stays & it’s been expired for over 5yrs. Later applies for asylum and gets approved. Is that legal? Even while using a fake social security number to work in the 5/6 years period.

Mr. Lee answers:
The awarding of political asylum depends upon whether an individual can prove past persecution or a well-founded fear of persecution on account of race, religion, political opinion, membership in a social group, or nationality. A person applying for asylum who has been here over one year would have to show changed circumstances. Use of the fake Social Security number is generally not a ground to deny an asylum application although it may be considered a discretionary factor. 

3. Can my husband file a petition for me if he did not file taxes for the last 4 years and he was gainfully employed?

My husband has not filed a tax return for the years 2016- 2019. Can he petition for me?

Mr. Lee answers:
If your husband was gainfully employed and did not file taxes for the last four years, he is in violation of the tax laws. Without a record of having worked, it would be difficult for your husband to file for you and for you to pass the public charge ground of inadmissibility. If he really wishes to do so, he should consult an accountant or tax lawyer who can advise as to whether he can file late tax returns and the penalties for doing such. 

4. Affidavit of Support (I-864 Form)

I am trying to apply green card for my fiancé and have difficulties to find the right adjusted gross income. Is the one in first line on W-2 form or 8b 1040 form. 

Mr. Lee answers:
Your guiding light on what figure to put down should be according to the instruction on the I-864 form itself that “For purposes of this affidavit, the line for Total Income on IRS Forms 1040 and 1040A will be considered when determining income. For persons filing IRS Form 1040 EZ, the line for adjusted gross income will be considered.”  

5. Steps for I-601A?

I entered the U.S without documentation when I was 2 years old. I recently married my husband and we’re trying to get my papers. What are the steps?

Mr. Lee answers:
I assume that your husband is either a US citizen or permanent resident. Unless you qualify under section 245(i) having had a labor certification application or immigrant visa petition filed on your behalf by 4/30/01 and having been present in the US on 12/21/00, you would not be allowed to adjust status and must ultimately consular process your paperwork. The first step is your husband filing form I-130 petition for alien relative for you, having it approved and forwarded to the National Visa Center (NVC) of the Department of State, and then filing an I-601A application to waive the 10-year bar brought on by your unlawful stay. The standard for passage of an I-601A is proving extreme hardship to your husband (or a parent if your mother or father is a US citizen or permanent resident). Kindly note that this waiver application is only available to those who are inadmissible only because of being in the US in violation of law. Assuming that the waiver application is approved, you would complete the preliminary processing at the NVC, which would then set up an interview for you at the American consulate or embassy in your home country. Assuming that there are no other complications, you would likely return to the US with permanent residence within 30-60 days. 

Article “BIDEN TO DO LIST – TWO VERY IMPORTANT ITEMS”

As published in the Immigration Daily on January 4, 2021

Before he is inaugurated, Joe Biden should appoint an immigration advisor who has his ear the same way that Stephen Miller has had Donald Trump’s ear during the past four years. The damage to the field of immigration and to humanity that such a close association has had – an appalling number of executive orders, regulations, interpretations, and guidances to the agencies charged with overseeing the border, points of entry, adjudications, immigration court procedures and decisions – can only be undone by a Stephen Miller clone with opposite views and energy who is close to the president. The influence that he has had with the president has been complete including a hand in over 400 immigration executive actions identified by the Migration Policy Institute by July 2020.

On day one of his presidency, Joe Biden should put a freeze on all federal regulations which have not already been implemented. An excellent article by the American Immigration Lawyers Association (AILA) on December 9, 2020, “Trump Policies That May Be Finalized before Inauguration Day 2021” listed a number of regulations that the current administration wishes to finalize before leaving office. Some of them at this point have already been implemented. A portion from the article follows:

The sacrificed lives and continued toll on legal and undocumented immigrants, US citizens and permanent resident parents, children, brothers and sisters, US companies, innovation and the economy demand such attention from Day 1.

Without an immediate freeze, implemented regulations are harder to retract, especially without control of the Senate. At least some of the above proposed regulations will still be floating around on Inauguration Day. The Congressional Review Act (CRA) could eliminate the implemented regulations by simple resolution, but require a majority of both houses of Congress. With Mitch McConnell in charge of the Senate, that will not happen. January 5, 2021, will determine control of the Senate dependent upon the results of the two senatorial contests in Georgia.

Without an advisor solely dedicated to immigration changes and working hand-in-hand with the president, four years will not undo the damage of the last four years. So far, we have seen two cabinet picks, Susan Rice and Alejandro N. Mayorkas, whose roles impact on immigration. As the Director of the White House Domestic Policy Council, Ms. Rice is to have an expanded role over the administration’s approach to immigration, healthcare, and racial equality. Mr. Mayorkas in his post of Secretary of Homeland Security is directly charged with governing that huge agency of which there are 16 separate agencies including FEMA, the TSA, US Coast Guard, US Secret Service, and Office of the Inspector General. Their portfolios are too large to get down to the brass tacks that the job requires to reverse the work of Trump/Miller. As described in thebulwark.com article, “Uninstalling Stephen Miller,” on December 17, 2020,

As a senior advisor to the president, Miller used his position to focus on immigration while avoiding the congressional scrutiny to which agency officials are subject. Miller frequently circumvented department heads, opting instead to call lower-level staff to implement his orders, reportedly telling them things like “This is the most important thing you will do at your agency.” Without looping in cabinet secretaries, Miller would hold weekly meetings with their subordinates, occasionally helping get promotions for those who shared his beliefs. Even senior officials reported that they frequently felt torn between Miller and the actual head of their agency. Miller and his allies would go “out of their way to vilify all immigrants,” demanding press releases whenever a refugee or immigrant committed a gruesome crime. This tendency of Miller’s was underscored by his correspondence with officials at the Department of Justice (DOJ) to manufacture statistics linking immigrants to violent crime and terrorism—efforts that were the likely impetus for a misleading 2019 DOJ report claiming that immigrants now comprise 64 percent of all federal arrests, having “more than tripled,” between 1998-2018.

The job does not require someone as Machiavellian as Miller. President Biden needs a “horse whisperer” like Miller who can access the president and help coordinate immigration policy with Rice and Mayorkas. An advisor who must pass ideas through the cabinet members to get to the president would not be nearly as effective. Hopefully there will be a successful search for such a person.

Q&A’s published on the World Journal Weekly on December 20, 2020 1. What are the steps that I will have to do to become legalized under President-elect Biden’s promise to send a bill to Congress for 11 million undocumented immigrants? 2. I am from Hong Kong – do I belong to the China quota at this time? 3. On H-1B, married to a US citizen in another state, thinking of quitting job – will I be legal? 4. Sneaked into the US six months ago – what will happen if I get caught by Immigration?

1. What are the steps that I will have to do to become legalized under President-elect Biden’s promise to send a bill to Congress for 11 million undocumented immigrants?

I heard President-elect Biden say on TV last week that in his first 100 days, he would send a bill to Congress to put 11 million people like me who are undocumented on the path to citizenship. If he does that, can you tell me when this will start? How soon can I put in an application? Does Immigration already have the forms available?

Mr. Lee answers,
President-elect Biden’s promise to send legislation within the first 100 days in office to Congress for undocumented immigrants does not mean that the legislation will pass. Both houses of Congress must agree on the legislation before it goes up to the president for signature. The Democrats will have both the House of Representatives and the Presidency but may not have the Senate. Such will depend upon what happens in the state of Georgia on January 5, 2021, when two Senate seats will be decided. Democrats need both Senate seats to take control of the Senate. I note, however, that legalization of 11 million undocumented immigrants will be a very hard lift even if the Democrats take the Senate by 50-50 with Kamala Harris being the tie-breaking vote. When George W. Bush was president, he had the backing of many Democrats when he tried to pass a legalization program, but fell short because of opposition within his own party. On your specific questions, there is no timetable at this time; neither are there forms as those would have to be designed after the passage of legislation.

2. I am from Hong Kong – do I belong to the China quota at this time?

My company just filed a labor certification application for me for my green card and I want to know how long it will take for me to immigrate since I am born in Hong Kong. I heard that there was a presidential proclamation that made Hong Kong part of China and that would put me under the China quota which is backed up to 2017 while the Hong Kong quota is open and current with the rest of the world.

Mr. Lee answers,
The presidential executive order has not been placed into effect by the Department of State at this time. At a recent November webinar for EB-5 investors, Charlie Oppenheim, Chief of the Visa Control & Reporting Division at DOS, said that Hong Kong is still treated as a separate foreign state for immigrant visa chargeability going forward. Such reiterates the doubt that the Department of State had in July that the executive order was legal. On an American Immigration Lawyers Association check-in with Charlie Oppenheim on 7/24/20, he said that David Newman, the Director of Legal Affairs in the Visa Office, indicated that the Visa Office was still reviewing the matter of whether Hong Kong born individuals could be chargeable to mainland China – that §103 of IMMACT 90 granted separate chargeability treatment to Hong Kong born individuals and that the proclamation does not alter this. Assuming that everything goes well in your case with the Department of Labor and USCIS, you can expect to receive your permanent residence within two years.

3. On H-1B, married to a US citizen in another state, thinking of quitting job – will I be legal?

My job is in New York and I just got married to my husband in Texas. I am on H-1B working remotely in Texas, but my employer now wants employees to go back in, and I am thinking to quit my job. If I do it, will I be legal or illegal? Or should I go back to New York, and we will have a marriage in which he comes to visit me and I go to visit him until I get the green card? We just filed the I-130 and I-485 applications with Immigration for my green card.

Mr. Lee answers,
Having already filed for an adjustment of status based upon your husband’s petition, you are considered in a state of grace with USCIS under which you can remain in the US. With a marriage case, you are much better off being together with your husband as you will both need to prove the bona fides of the marriage at your immigration interview and that is easier to prove when you are both living together. Assuming that you resign your job, you can work under open-market employment once you apply for and obtain the employment authorization document (EAD) (if you have not already done so). The caveat to doing it this way is that, if your adjustment of status application is denied, you would be considered illegal since you would no longer be holding a valid nonimmigrant status.

4. Sneaked into the US six months ago – what will happen if I get caught by Immigration?

I came to the US six months ago using someone else’s passport and gave it back to the smugglers afterwards. Can you tell me what will happen to me if I am picked up by Immigration now?

Mr. Lee answers,
The Trump administration announced that it would be using expedited removal proceedings against those who could not prove that they were legal or in the country for at least two years wherever they were located in the United States. It began using its powers to do such in October 2020. Persons who are caught and subject to expedited removal generally have no right to a hearing before an immigration court. However, they are still entitled to request political asylum and will be given a credible fear interview and afterwards can pursue the claim before the immigration judge. If the credible fear interview is negatively decided by a DHS officer, the applicant will have less rights before the immigration court. Expedited removal has been on the books for a long time, but was applied previously only if the person was found within 100 miles of any border of the United States. Expansion to any location in the United States is new and may be one of the items that President-elect Joe Biden invalidates when he becomes president. In addition, it should be noted that the question of expedited removal is back before the DC District Judge Ketanji Brown Jackson for her to rule on its merits. She had previously issued a stay against the rule, but the stay had been blocked by the Court of Appeals.

 

Q&A’s published on Lawyers.com and the Epoch Times on December 18, 2020 1. Can I use my green card & go out of the country if it has a small spelling error on my last name? 2. I have a problem with my student visa I had to get a new F1 visa and it’s been more than 2 months embassy still hasn’t replied. 3. Can I marry a U.S. citizen using my 30 days grace period?

1. Can I use my green card & go out of the country if it has a small spelling error on my last name?

I got my green card about a week ago and I just noticed a small mistake, on my last name it’s supposed to be Espinoza but it says Espinosa on the card could this cause issues with me using it or leaving the United States?

Mr. Lee answers,
The difficulty is that, if you use the green card with the wrong spelling, the wrong spelling may migrate over into other identification papers or cause you problems with agencies other than DHS. On using the incorrect card to travel in and out of the US, you may be referred to secondary inspection upon your return while Customs and Border Protection attempts to determine that you are who you say you are. Ultimately you would be admitted, but CBP would probably advise you to file an I-90 application to replace the incorrect green card. You should perhaps do that affirmatively at this time. 

2. I have a problem with my student visa I had to get a new F1 visa and it’s been more than 2 months embassy still hasn’t replied.

I had to get a new F1 visa and embassy still hasn’t replied. They said to check my case status on CEAC and they said its going through administrative processing and it’s been more than 2 months and I missed my semester in college.

Mr. Lee answers,
Unfortunately, this is the risk that F-1 students face when they either want to or have to go overseas to obtain a new visa to reenter the US. In these days of emphasis on security threats, many applications are being held up in administrative processing. Although it may or may not help, you can ask your school to contact the American embassy or approach a congressman or senator’s office, explain the situation of hardship, and attempt to have their offices contact the embassy. 

3. Can I marry a U.S. citizen using my 30 days grace period?

I’m a J1 intern and not subject to 2-year residence. I’m currently using my 30 days grace period. I’m 4 months pregnant to my American boyfriend and about to marry next week. Am I eligible to marry him even if my i94 has already expired?

Mr. Lee answers:
Someone who marries a US citizen is considered an immediate relative under US immigration law, and such individuals are allowed to adjust status even if they have overstayed their visas. In your case, the 30 day grace period is recognized as a period of legal stay. But even if you exceeded it before filing for adjustment of status, you would still be eligible for permanent residence. 

Article “S386/HR1044 – Passed By Senate – Goes to Conference with Part That Must be Fixed”

As published in the Immigration Daily on December 7, 2020

S386, the Senate counterpart to HR1044, which would among other items, change the immigration laws to lift the country restrictions on employment based visas and give most of them to India-born but also allow early filing of I-485 applications to adjust status with three year work and travel authorizations, was passed by Senate voice vote on December 2, 2020, but must go back to the House of Representatives because of amendments made prior to Senate passage.

Details on the bill and the changes through December 2019 were covered by our articles in the Immigration Daily, “Amended HR1044 in S386 Happening Now Amid a Flood of Concerns,” 9/23/19, and “Intersection of the Relief Act and Fairness for High Skilled Immigrants Act of 2019,” 1/2/20. Our opposition to the India domination of employment-based immigrant visas in future years at the expense of the rest of the world including China and new restrictions on H-1B and L-1 visas was tempered by the December 2019 amendment allowing early adjustment of status even when an immigrant visa number was not available. We said then that the changes made the favorability quotient of the legislation a closer question. The amended version of S386 expands the time in which adjustment of status can be filed from 270 days after approval of the immigrant visa petition to two years and places restrictions on duties, hours, and compensation along with requiring a confirmation of bona fide job offer or portability with any request for an employment authorization document.

Without going into detail on the other changes, a major concern is Section 9 which is a “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.” This may literally have the potential of affecting hundreds of millions of Chinese nationals and seriously hamstring the incoming Administration’s attempts to conduct relations with the People’s Republic of China. Who does it affect? Who knows? The paragraph underneath the heading appears to target applications for adjustment of status, but the heading of the section “Admission or Adjustment of Status” could be used to bar Chinese nationals applying for immigrant visas or even student visas. Now is the time to eliminate this controversial section which, if the legislation is passed and signed into law, may have to be litigated in court, modified by another law, or clarified by DHS regulations or memoranda. In China, many students have joined the Communist Youth League, which is a common occurrence – much more common than joining the Boy Scouts or Girl Scouts in America. Are they all to be inadmissible and not adjustable in the future? How to interpret the word “Affiliated”? Is the affiliation to be considered the present only or to include the past?

Before the pandemic, students from China comprised over one third of the foreign students studying in the United States. That is because a degree from the US has been seen in the past to be more valuable than degrees from other countries when the students return to China. Any question of inadmissibility could further prevent or discourage Chinese students from entering this country, thus depriving colleges and universities of much-needed revenue and cultural diversity along with the chance of favorably influencing China’s future leaders to American ideals.

Elimination of the section would be most appropriate as membership in the Communist Party is already covered under INA §212(a)(3)(D) that “Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.” Chinese nationals that are or were affiliated with the military forces and would be of concern to the US are likely Communist Party members and would be covered by the INA section anyway. (It should also be noted that many who served in the People’s Liberation Army were not indoctrinated or party members and joined for other purposes like one of our clients who was an artist only and not a party member).

If not elimination, the caption of the section should be changed to be consistent with the underlying text – from “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party,” to “Prohibition on Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.”

At the very least, a more favorable change should be made to Section 9 in the conference between Senate and House negotiators. Although time is tight and the 116th Congress about to expire, this section should not be ignored in the rush to pass the bill. Same or similar legislation in the 117th Congress should find favor with the Biden administration, especially as one of the bill’s lead sponsors is the incoming Vice President, Kamala Harris, whose mother was Indian.

Q&A’s published on Lawyers.com and the Epoch Times on December 4, 2020 1. Naturalization: having home business (sole proprietorship). Form N-400 asks: are you employed? NO, YES. What is the right answer? 2. Under what circumstances should a US Green Card holder consider travel to Cuba? 3. If I get married during 90 day visa, does spouse have to go back to her home country and wait for immigration to make a decision or can she stay here?

1. Naturalization: having home business (sole proprietorship). Form N-400 asks: are you employed? NO, YES. What is the right answer?

My wife and I are currently living in USA, WA State on Green Cards. 5 years are passed and we are applying for citizenship. My wife has a home business (sole proprietorship). In the form N-400 there is a vague question: are you employed? NO, YES, name of employer. What is the correct answer in her case? NO or YES, with the name of her company?

Mr. Lee Answers:
In the eyes of Immigration, you are employed even if you are just self-employed, and your wife should mark  the application “yes”, and just say self-employed, or put down the name of the company at  your home address. 

2. Under what circumstances should a US Green Card holder consider travel to Cuba?

I’m looking to travel to Cuba along with some friends / colleagues who are giving a research presentation, but I am NOT giving any presentations, nor have I been officially invited to the conference. Per the U.S. Embassy in Cuba’s official website, there are 12 approved (non-illegal) categories for travel to Cuba. I’d be looking to travel under the “Professional research and professional meetings” or “Supporting Cuban people” category. However I’m concerned that even though I may meet the legal requirements, there is always a risk of being scrutinized during my Naturalization process. My questions are (1) how significant is the risk of me traveling and (2) are there anything I can do to help minimize jeopardizing my Naturalization process?

Mr. Lee Answers,
If you meet the legal qualification under one of the 12 categories, you can travel to Cuba, but the trip may certainly be scrutinized as part of a naturalization application. You should keep records of your trip to Cuba relating to what you did when you were in the country in case you are questioned. 

3. If I get married during 90 day visa, does spouse have to go back to her home country and wait for immigration to make a decision or can she stay here?

If she comes here on k-1, we get married, can she stay in United States until immigration makes a decision?

Mr. Lee Answers,
If your fiancée comes to the US on a K-1 visa and you marry within the 90 day period of time that you are supposed to, she can file for adjustment of status to permanent residence without leaving the US and wait for U.S.C.I.S. to make its determination while here. The application is for residence status, whether conditional or permanent, not citizenship.

Comment on USCIS proposed regulation, “Modification of Registration Requirement for Petitioners Seeking to File Cap Subject H-1B Petitions”, RIN 1615-AC61 – by Alan Lee, Esq.

As published in the Immigration Daily on November 3, 2020


Below is our comment to the above proposed regulation which would allow USCIS to first give favor to the selection of H-1B registrations or petitions (if the registration system is suspended) on the basis of petitioners offering higher wage levels. Persons wishing to comment should do so through the federal e-rulemaking portal, www.regulations.gov by the end of day on December 2, 2020.

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Agency: U.S. Citizenship and Immigration Services (USCIS)
Document Type: Rulemaking
Title: 30 DAY COMMENTS CLOSE ON 12/2/2020; 60- DAY IC COMMENTS CLOSE ON 1/4/2021; Modification of Registration Requirement for Petitioners Seeking To File Cap- Subject H-1B Petitions
Document ID: USCIS-2020-0019-0001

Comment:
Dear Sir/Madam:

I am submitting this comment in opposition to USCIS’s NPRM, USCIS-2020-0019; RIN 1615-AC61 for a number of reasons including its mistaken correlation of money to the worth of a position, discriminatory effect on US workers, its potential harm to the nation, and its violation of the US spirit against egalitarianism.

As a 35 year plus practitioner of immigration law, especially business-related, I believe that I have much practical and theoretical experience in the area of H-1B visas, including that the program was never meant to be as restrictive as the Trump administration would have us believe it to be in its latest bald attempt to make the program unusable to smaller sized organizations.

The proposed rule would allow USCIS to employ wage levels to either the H-1B registration system or to H-1B cap petitions in any year in which the registration requirement is suspended in such manner that selections would first be based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.

Wage, however, is a poor barometer of a position’s worth. A Fortune 500 company can pay twice or even three times the going rate for college graduates than other workplaces. Many companies or other organizations do not have the resources to compete moneywise with large corporations that are able and willing to overpay for the same level of candidates.

Looking at government hiring practices shows the absurdity of correlating high pay with the worth of a position. The government hires many college graduates who are very bright, but it is unwilling or unable to compete moneywise with large corporations. Does that mean that a job in the government is less complicated or requires someone with lesser brains? The answer in most cases is a resounding no!

Wage inequality and discrimination against US workers is another problem with this proposed regulation. An employer wishing to have a good chance of getting an H-1B worker would have to up the level of pay – on many occasions more than the job is really worth – and wind up paying the alien more than it would a US worker for the same position. The employer might then be liable for practicing employment discrimination.

How will this country compete in the 21st century against the rest of the world? The best way is to nurture those who have come through the US education system and to attract others who may eventually help to keep the country competitive. That is the reason why it is so important to have programs like CPT, OPT, and the H-1B visa program. Rome was not built in a day, and neither do most people become superstars directly after graduation or even after a period of time of CPT, OPT, or even H-1B status. This proposal is part of the suite of regulations designed to raise H-1B qualifications to star level. But this nation needs not only superstars, but highly educated persons who are capable in their fields, and able to support the work of the superstars. The entire history of H-1B practice has been in this direction. The way to attract the highly trained from other countries is to lower and not constantly construct barriers. This nation is especially lacking professionals in the STEM sciences and playing catch-up to many other countries. Although there is now growing emphasis on STEM sciences in colleges and universities, much of America’s youth is more engaged in the liberal arts as STEM subjects are harder, boring to many, and exacting.

Many of the breakthroughs in the future will not come from Fortune 500 companies, but from small ones that cannot afford to pay artificially elevated wages to their employees. Did a small R&D biotechnology firm like Moderna have enough funding to pay level II, III or IV wages in its early stages to incoming graduates at the Master’s or PhD levels? From reports that the company’s experimental vaccine research was greatly accelerated by a $1 million contribution from the country western star Dolly Parton before the federal government stepped in with an offer of funding, one could believe that money was tight. The US will be the loser if USCIS ever implements this proposed regulation.

This country was built in large part by small businesses paying people a fair wage and not by the egalitarianism of big business outbidding the market and grabbing up the prize – in this case, limited H-1B visas. This proposed rule is against the American spirit of equal opportunity for all US businesses and pitches the field against smaller sized businesses.

For the reasons stated above, the proposed rule makes no sense except as a deterrent against use of the H-1B program by many organizations desirous of and in need of the candidates’ services.

Your consideration of this comment is appreciated.

Alan Lee, Attorney-at-Law
408 Eighth Ave., Ste. 5A
New York, NY 10001
2125649496