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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Lee answers,

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

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

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

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

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

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

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

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

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

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

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

As published in the Immigration Daily on Match 20, 2020

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

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

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

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

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

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

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

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

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

Mr. Lee answers,

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

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

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

Mr. Lee answers,

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

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

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

Mr. Lee answers,

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

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

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

Mr. Lee answers,

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

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

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

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

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

2. Permanent resident sponsoring new spouse.

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

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

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

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

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

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

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

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

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

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

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

 

Article: Is Mr. Trump an Unstoppable Freight Train?

As published in the Immigration Daily on February 21, 2020

Barreling along, President Trump today appears to be an unstoppable force on his way to reelection in November. That is the view from here. Despite his moves towards an imperial presidency, cozying up to Russia and largely allowing it free reign throughout the world, inhumane treatment of vulnerable groups here and abroad, and corrupt or highly questionable moves to gain political advantage towards his reelection, he is gaining in popularity while the Democrats are in disarray with candidates destroying each other on debate stages.

Yet it is dispiriting that in this country founded on constitutional principles, honor and decency, Americans will choose to reelect a president without any of the above.

In this administration, all decency appears to be lost in dealing with vulnerable groups with a president who only respects the strong. The treatment of undocumented immigrants including separation of families in the border regions and in the interior, stigmatizing them as criminal rapists, murderers, and drug traffickers when the vast majority are law-abiding, attempting to suppress their representation by adding a citizenship question to the census to intimidate them from being counted, speaking of them in racist and other pejorative terms, dropping refugee admissions to record lows, and making immigrant entries a wealth test through the new public charge law, etc., all points to an innate lack of decency and refusal to make America a shining beacon as compared to the rest of the world.(Although we do not minimize the impact of immigrant crime upon its victims, we note that much higher percentages of crimes are committed by Americans upon Americans as a percentile of the population, and that Mr. Trump is adept at making a mountain out of a statistical mole hill).

Mr. Trump exhibits no honor as seen in his attack on Gold Star family members and decorated veterans who dare to criticize him, his abandonment of this country’s Kurdish allies who paid more than 7000 lives to support US efforts against ISIS and invitation to Turkey to invade their lands, his misappropriation of military funding to build his border wall, and his inveterate lying –staining the office of the presidency with a whopping 16,241 false or misleading claims since taking office as reported by the Washington Post on January 20, 2020.

Constitutional principles such as separation of powers are anathema to this president who believes that Congress is beneath him, that the presidency and the executive branch are higher than the other two branches of the US government, and that all executive branch members have no greater duty than giving their personal loyalty to him.

One would think that with such highly negative factors, Mr. Trump could not stand a good chance of reelection. Yet Democrats are up against numbers like those in the Gallup poll in January 2020 showing that a record high 90% of Americans are satisfied with their personal lives, that American confidence in the US economy is at a 20 year high, and that a record 49% of Americans approve of Mr. Trump’s performance as president.

Immigration is a topic on which all Democratic candidates hew center left or left and generally agree upon – the difficulty is the other policies such as healthcare, taxes, and redistribution of wealth and that no candidate can win an election without the undecided of this country which will not vote for those that they consider too far to the left. Conversely those who support candidates on the far left of these issues may not vote for the candidate who only projects center left (such as many of Sen. Bernie Sanders’ supporters who stayed home rather than vote for Mrs. Clinton in 2016).

Where do the Democrats go from here? With the number of candidates still campaigning against each other, the bloodletting, backbiting and divisiveness will only get worse while Mr. Trump sits on the sidelines without opposition – only having to occasionally snipe at the growing Democratic fiasco on Twitter.

Q&A’s published on Lawyers.com and the Epoch Times on February 7, 2020 1. I came back in with my California ID.  How can I now apply for my green card? Do I have to return home? 2. H-1B Extension filed on 1 day before I-94 expiry date. When should I apply for change of status from H1 to H4 to avoid out of status? 3. My husband had a misdemeanor for theft under $50 which has been dismissed. Will that affect his application to become a citizen?

1. I came back in with my California ID.  How can I now apply for my green card? Do I have to return home?

Married to a U.S. citizen, have one child.

Mr. Lee answers:
If you passed an immigration inspection coming back to the United States with your California ID, you would appear to meet a requirement of adjustment of status in the US which is to either be inspected and admitted or paroled. You would have the burden of proof to show that you actually entered through this method. In addition, dependent upon the circumstances, you may have to overcome some obstacles including obtaining a waiver for misrepresentation if there was trickery at the point of inspection or obtaining a waiver of the 3 or 10 year bar if you illegally stayed in the US for 180 days or one year respectively (dependent upon your status) before going outside and coming back into the country.

2. H-1B Extension filed on 1 day before I-94 expiry date. When should I apply for change of status from H1 to H4 to avoid out of status?

I am currently on 7th year H-1B & my I-94 expiry date is 3/12. My employer applied for 8th year extension based on pending I-140 on 3/9. I feel my out of status will start from 3/12 & will not have chance to re-apply for either H-1B extension or change status from H-1 to H-4 if my H-1 extension get denied. Please let me know if I need to file for H-1 to H-4 immediately or wait until H-1B extension result.

Mr. Lee answers:
If your I-94 expiration date was March 12 and your employer applied for your eighth year extension on March 9 and the H-1B petition was properly receipted by the expiration date, the extension petition would be legal as long as the I-140 or labor certification application has been pending 365 days. In point of fact, most immigration practitioners including me would argue that you have a 10 day grace period from the ending of your H-1B status in which the petition extension could be filed. I do not quite understand the concern unless there are other factors in your H-1B extension petition which have not been explained.

3. My husband had a misdemeanor for theft under $50 which has been dismissed. Will that affect his application to become a citizen?

My husband it a permanent resident. We want to send the application to become a citizen to help me get my residency. We have filled out the application but are uncertain on one part. About 2 years ago he was charged with theft under $50 which we worked on and got it dismissed but when he has applied for a job it still appears. We want to know if it will affect his application.

Mr. Lee answers:
With the N-400 application for naturalization, your husband must put down the information concerning his arrest and the disposition. Since the case was dismissed, it should not have an effect on the naturalization application unless your husband admits that he committed the crime.

Article: Coronavirus China Travel Ban Reveals Prejudice Against Parents And Six Nation Ban Hodgepodge Thinking

As published in the Immigration Daily on February 5, 2020

The White House proclamation of January 31, 2020, on the suspension of persons entering the US from China emphasizes the Administration’s view that parents of US citizens and permanent residents are not worthy of entry to this country. The “Proclamation on Suspension of Entry As Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus” excludes persons attempting to enter the US with certain exceptions including spouses and children of US citizens and permanent residents, but bars parents except where they have a US citizen or LPR child who is unmarried and under the age of 21.

One may ask why parents are largely excluded when the Immigration and Nationality Act classifies parents of US citizens over the age of 21 “immediate relatives,” the most favored category in the immigration scheme. Immediate relatives always have visa availability, do not have to wait in any backlogs, and those who violate their legal periods of stay in the US are still allowed to adjust status to permanent residence in this country. In addition, many grounds of removal are waivable for immediate relatives.

The privileged position of immediate relative parents, however, is a thorn in the side to the Administration, which strongly promoted and endorsed the 2017 Reforming American Immigration for Strong Employment (RAISE) Act which would have eliminated the parent category if passed. Mr. Trump himself came under subsequent criticism as his derogatory “chain migration” phrase was discovered to have been the vehicle for the immigration of his parents-in-law. Currently parents are largely the targets of the Administration’s collateral attacks on their privileged status –the new public charge rule due to be implemented on February 24, 2020, and the enjoined presidential proclamation requiring immigrants to show the ability to obtain health insurance within 30 days of entry to the US.

Barring the parents of adult US citizens and permanent residents makes little sense, especially in light of the rigid screening and quarantine process in place for persons from China who enter the country. Even if the current precautions fail to detect the coronavirus, this group of immediate relatives generally stays at home and is not as active as others, thus further reducing the chances of transmission.

Concerning the new six-nation terrorism ban against Eritrea, Kyrgystan, Myanmar (Burma), Nigeria, Sudan and Tanzania announced on the same day,“Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry,”this appears to be a mess of illogical thinking not furthering any strategic goal other than keeping out mostly persons of color who wish to immigrate. The measure makes no sense if the goal is to keep out people who may have terroristic tendencies as there is no ban on nonimmigrant entries. So persons from these six countries could still come to the US under visitors visas or more permanent nonimmigrant visas allowing them years to remain in this country cooking up plots if they were so inclined. In looking at the ban, four countries, Eritrea, Kyrgystan, Myanmar and Nigeria are entirely banned from sending immigrants to this country except for special immigrants who have provided assistance to the US government, and visa lottery immigrant (DV) entrants are barred from Sudan and Tanzania. The logic behind this ban is entirely elusive. The announced purpose of the travel bans is to punish countries that are unwilling or unable to improve their information sharing to assist the United States in assessing national security and public safety threats. Yet the halfway measures show that national security is not the true purpose of the ban.

The president of course has shown the ability to have his travel bans enforced in cases that have gone as high as the Supreme Court. Yet one might wish for logic rather than just bias and/or playing to Mr. Trump’s base in an election year.

Q&A’s published on Lawyers.com and the Epoch Times on January 31, 2020 1. Selective Services 2. What’s the Definition of Good Moral Character on Citizenship Application? 3. How can I calculate a household size when I used to be a K-1 visa holder?

1. Selective Services

My brother was born in 1961 and he never registered for selective services. He didn’t know he was required to because he quit high school in the ninth grade. What are the consequences he may face today and how does he take care of this?  He is afraid the government will put him in jail.

Mr. Lee answers:
Generally I believe that there are no outstanding consequences for people who never registered for selective service, especially if done unwittingly. We have many applicants for naturalization who never registered – some who did not know of the need to register and others who did but failed to do so. The period of good moral character is five years, and the time to register expires at the age of 26. Therefore any person who is 31 will generally be naturalized as having had good moral character for five years if he or she has not had an incident involving bad moral character within the five years.

2. What’s the Definition of Good Moral Character on Citizenship Application?

My husband is a good citizen who had to falsely claim US citizenship on employment applications to put money on the table for him and his three younger brothers when they overstayed their visas. They all entered here legally. Will he be disqualified from ever becoming a US citizen?

Mr. Lee answers:
Good moral character, unfortunately, has little to do with your husband’s situation. Misrepresenting oneself as a US citizen on the I-9 employment verification eligibility form has consequences if U.S.C.I.S. finds out about the misrepresentation. If done before September 30, 1996, a willful misrepresentation can be waived upon the showing of extreme hardship to a US citizen or permanent resident spouse or parent. On or after September 30, 1996, a willful misrepresentation is generally not waivable and is a ground for removal.

3. How can I calculate a household size when I used to be a K-1 visa holder?

I am the immigrant, married to a U.S. citizen. We live together, the both of us. In form I-864, it says not to count anyone twice. So the first person is, of course, the main immigrant which is me. After that, the sponsor (my husband). But there’s this ‘If you’re currently married, count 1 for your spouse’. He is married to me, but he shouldn’t count me twice right? In this case, since there’s nobody else in the house, no children, no dependent people, and we are not filling form I-864A, it would be a total of 2, right? In brief… – Immigrant: 1 – Sponsor: 1 Total household size: 2.

Mr. Lee Answers:
Your calculation of two is the proper number in calculating the affidavit of support for you. You cannot be counted twice, and so your husband should ignore the line “if you are currently married, count 1 for your spouse.” Otherwise the number in your total household is incorrect.

Q&A’s published on the World Journal Weekly on January 26, 2020 1. How Can I Get My OPT Expedited? 2. F-1 Visa Overstay for Three years. How Can I Fix My Status? 3. Domestic Violence Situation and I Am Applying for the Green Card. Will I Have A Problem at the Interview? 4. Getting Married to a Foreigner Who Is Here On a Visa Waiver.

1. How Can I Get My OPT Expedited?

I just graduated and applied for my OPT in November, but my job is starting on January 15, and I need my OPT card by that time to begin work. If I do not have it, I am sure that the company will give me a little time, and I could even work there voluntarily, but I do not think that they will keep the offer if I do not get the OPT soon after that date. What can I do to expedite the OPT?

Mr. Lee answers:
Under the circumstances that you described, it may be difficult to obtain an expedite. Current U.S.C.I.S. standards for an expedite are severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner or applicant’s failure to file the benefit request or the expedite request in a reasonable timeframe or to respond to any request for additional evidence in a reasonably timely manner; urgent humanitarian reasons; compelling US government interests; or clear U.S.C.I.S. error. U.S.C.I.S. states that if the expedite request relates to the need to obtain employment authorization, that will not be sufficient to warrant an expedite without any evidence of other compelling factors.

2. F-1 Visa Overstay for Three years. How Can I Fix My Status?

I came to the US in 2015 under F-1 visa, studied for one year, but dropped out because of bad grades. I want to be legal in this country, but do not know how I can go about it.

Mr. Lee answers:
U.S.C.I.S. will not “fix” your status to allow you a new F-1 status, or to extend or change your status because of your violation. If you become the immediate relative of a US citizen (spouse or parent of a child aged 21), U.S.C.I.S. will overlook the status violation to allow adjustment of status in most cases. Because you were a student, you are considered exempt from the three and 10 year time bars occasioned by unlawful stay of individuals for 180 days or one year or more respectively unless you received a denial from U.S.C.I.S. or negative decision by an immigration judge. Therefore it is possible that if you were to be sponsored for a nonimmigrant work visa or immigrant visa, you could leave the US, interview at the US consulate or embassy, and return to the US with the nonimmigrant or immigrant visa.

3. Domestic Violence Situation and I Am Applying for the Green Card. Will I Have A Problem at the Interview?

I am a J-1 exchange visitor from Taiwan who is not subject to the two-year home residence requirement. I married a US citizen, and she is sponsoring me for the green card. However, she is hotheaded and we have arguments. During one of the arguments outside, she hit me and I slapped her back, and one of the neighbors called the police, which arrested me for domestic violence. My wife did not press charges and is very sorry that this happened. I pleaded guilty to disorderly conduct only and got one year probation and a $500 fine. Will this cause me a big problem at the marriage interview? We have a good marriage and my wife is pregnant.

Mr. Lee answers:
It is possible that you may encounter a problem with the immigration interview if the immigration officer closely looks at the circumstances of your domestic violence arrest, but you should be okay on this score at the end anyway since you only pleaded to a disorderly conduct. The immigration laws are very strict where domestic violence is concerned, but requires a conviction involving domestic violence to permanently exclude someone. It would be a long stretch for U.S.C.I.S. to conclude that the disorderly conduct plea is the equivalent of a domestic violence conviction.

4. Getting Married to a Foreigner Who Is Here On a Visa Waiver.

I am a US citizen by birth and met my boyfriend in Singapore. We have corresponded extensively and visited each other in the US and Singapore. He is here on a 90 day visa waiver and we just decided that we want to get married. We’ve been living together for the past two months since he came and he has to go back in 30 days. Is it possible for him to obtain his green card when I sponsor him while he is here or should he go back to Singapore and wait there while I sponsor him?

Mr. Lee answers:
It may be possible for you to marry your boyfriend and for him to adjust status in the US without leaving, but there are risks. The first is that there is a presumption of misrepresenting the purpose of the visit when an individual shifts purpose within 90 days of entry, e.g. representing that he was only here to visit and then marrying and putting in adjustment of status papers within the 90 day period of his authorized stay. (I note that there is an argument that this provision does not apply to those marrying US citizens and that the 90 day rule only raises a presumption that can be rebutted). Marrying after 90 days and putting in papers after your boyfriend’s status expires runs the risk that an unkind immigration official may refer him to ICE for an order of expedited removal since a condition of entering the US under the visa waiver program is to give up the right to a removal hearing before an immigration court. (I note that the situation has greatly improved since USCIS came up with a 2013 guidance memo that unless there are extenuating circumstances, USCIS officers should adjudicate adjustment of status applications prior to referring cases to ICE). If you decide that you do not want to take either of these risks, you can either file a K-1 fiancé visa petition for him or marry him and file an I-130 petition for alien relative. The fiancé petition route is generally faster by a few months than the I-130 route which generally takes a little less than a year, but requires more steps after he arrives in the US. Both of these entail your boyfriend or husband leaving the US and interviewing overseas for the K-1 visa or immigrant visa.