Q&A’s published on the World Journal Weekly on June 30, 2019 1. Is My Grace Period 10 Days or 60 Days Where The Company Dismisses Me Two Days After my H-1B Time Runs Out? 2. Am I In Danger Where I Got Divorced Soon After Me and Ex-husband Got Green Cards From His Company Employment and I Was Only Married a Short Time?

1. Is My Grace Period 10 Days or 60 Days Where The Company Dismisses Me Two Days After my H-1B Time Runs Out?

I was on H-1B visa with my company and went home to have the visa put in my passport when I had about four months left on my petition. The consul took so long that by the time that my passport got the stamp and I returned, I only had a few days left on my authorized stay. My employer was mad that I had taken so much time to get the visa and did not want to be put under so much pressure to do the processing for my H-1B extension that it fired me two days after my status expired. I immediately contacted a competing company which is interested in sponsoring me for a new H-1B, but wonder if I have the time to have it done. Do I have 10 days grace or do I have 60 day grace period? I’ve heard different things.

Dear reader,
Where an employer dismisses you after the ending date of your H-1B, you are not allowed the 60 day grace period as you were not fired within the validity period of your H-1B. You are, however, allowed the 10 day grace period during which your status will continue to be legal if the new employer is able to submit the petition to U.S.C.I.S. within that period of time. I note that even where the new employer is unable to do so, U.S.C.I.S. may still grant the H-1B transfer and extension without making you leave where there is good reason for which the petition is late. From your set of facts, it would appear that you have good reason for a late petition, that the delay is not attributable to any fault on your part, and you have made good faith efforts to regularize your status as quickly as you could. The only other suggestion that I can make is that the company should apply for your new petition under premium processing if it will be late since U.S.C.I.S. is variable in time with its adjudications, and if you are in the US 180 days after the grace period ends and the new H-1B extension part in the US is denied, you would face a three-year bar if you left and had to come back to the US.

2. Am I In Danger Where I Got Divorced Soon After Me and Ex-husband Got Green Cards From His Company Employment and I Was Only Married a Short Time?

I married my ex-husband in 2017 when he was being sponsored for the green card by his ex-employer. I was able to join his case and we both get green cards in 2018. Four months after the green card, we started divorce proceedings because we could not get along together and just finalized the divorce last month. Am I in danger of having my green card revoked?

Dear reader,
Your case is not based upon a marriage petition, and so you would likely have no problems in retaining the green card. You would probably only have difficulties if it was proven that your marriage was a sham just in order to have you obtain a green card. That would probably start to become a possibility only if someone was to make a complaint with ICE.

Q&A’s published on Lawyers.com and the Epoch Times on June 28, 2019 1. Are There Continuous Residence Requirements For a Lawful Permanent Resident Who Is Under 18? 2. What to do When a Principal Died Before Interview Date Scheduled? 3. My Father Said His Going to Take Me Back to Africa. But I Am 19 Years Old and a U.S. Citizen.  Can He Do That?

1. Are There Continuous Residence Requirements For a Lawful Permanent Resident Who Is Under 18?

I am a single mum to a now 17 year old daughter. I immigrated to the U.S with my daughter in 2008 on a diversity immigrant visa i.e green card lottery, which means that once I became a lawful permanent resident in the U.S, my daughter also automatically became a Lawful permanent resident and was issued her own green card and SSN. Her green card is still very much valid but is due to expire in 2019. However, she had to leave the US sometime in late 2014,because she went to start high school in my country of origin, but now I want to bring her back this year for a short visit ,and also so that I can apply for a U.S passport for her.(Sorry I forgot to mention that I got naturalized last year 2016,so she can be able to obtain citizenship through me before she turns 18). I cannot seem to find any current information on whether there are any laws that can hinder her from re-entering back to the US?

Mr. Lee Answers:
One of the difficulties is that everything must be done by the time that your daughter reaches the age of 18. Other than that, she can either try to give up the green card and obtain a visiting visa or attempt to enter as a permanent resident explaining her entire situation to Customs and Border Protection at the port of entry and why she should be so admitted. Once in the U. S., she would have to show that she is in your physical custody (residing with you) before making a citizenship application. Good luck!

2. What to do When a Principal Died Before Interview Date Scheduled?

I am a US Citizen and the petitioner for my Mom. She passed away this last Sunday before her interview date at the US embassy. I was expecting she comes to the US, gets her green card so that she can petition for my siblings. What can I do? Do I need to inform the embassy? What are the options left for my siblings especially for the one under 21 and the one who just turn 21.

Mr. Lee Answers:
It would be courteous to inform the embassy of your mother’s death so that her case can be closed out. Insofar as your siblings are concerned, you can sponsor them under the F-4 category for siblings of U. S. citizens, and the time for final processing would be approximately 12 years. Otherwise if they have education and/or skills which are required in the U. S., they may be able to eventually obtain nonimmigrant or immigrant visas. Also if they form an attachment with a U. S. citizen or LPR, they may be able to immigrate faster under the family based case.

3. My Father Said His Going to Take Me Back to Africa. But I Am 19 Years Old and a U.S. Citizen.  Can He Do That?

Mr. Lee Answers:
As you are over the age of 18 and a U. S. citizen, your father cannot legally force you to go back with him to Africa.

Article: Nothing About Trump Policies On Immigration; The Effect Of Visa Retrogressions; The Iron-Doming Of DHS; And Watch Out For Closed Loop Voyages

As published in the Immigration Daily on June 24, 2019

I said in my last article that this one would be about recent Trump administration moves against immigration, DHS including U.S.C.I.S. iron-doming itself, and another interesting topic. I have to take the first topic off the list because there have been so many of them, and they have all been well publicized. What more is there to say about his threat to start deporting millions of undocumented immigrants, playing musical chairs with DHS Secretary and U.S.C.I.S. Chief and topping it off with a new position, “Border Czar,” which would impinge upon the authorities of the heads of CBP and ICE? The flawed EB-5 program remains untouched as it benefits his class, real estate developers, and especially his son-in-law and his family, the Kushners, and he has been exposed in both the North Korean and Iran crises as a bully who pushes and pushes but is indecisive when his bluff is called. His reason for calling off airstrikes in Iran over concern of 150 projected deaths would be more convincing if he showed more care for the 3000 deaths in Puerto Rico after Hurricane Maria, the many migrant deaths including children and lack of justice in prosecuting those who leave food and water in the desert or pick them up to deliver them to safety, and the 5000 deaths caused in great part by American weapons and intelligence in the Saudi coalition airstrikes in Yemen fueled by his desire to continue selling billions of dollars in arms to Saudi Arabia.

So I am amending the list of topics to the following:

1. The Effect Of Visa Retrogressions

The visa chart is king. It is the one most important item in an immigration lawyer’s toolbox. With no inkling of chart progression and retrogression, a lawyer can place a client in a dead-end situation. Current chart progression means that the EB-5 program for China-born is dead. For the month of July 2019, immigrant visa availability is only open to those from China who filed their I-526 immigrant petitions based on entrepreneurship before November 1, 2014. Although this may appear to be only a 4 ½ year wait, visa chart time is not real-time. Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the Department of State, reported at the Invest in the USA (IIUSA) conference on May 6, 2019, that a native of China starting an EB-5 case today could wait up to 16.5 years for the visa to become available. In the meantime, the July visa chart shows that the worldwide availability dates for EB-2 (those with advanced degrees) and EB-3 (those with baccalaureate degrees or 2 years working experience) are open at present, but expected to have corrective action as early as August. It is known that visa retrogression around the end of the fiscal year (FY 2019 runs from 10/1/18 – 9/30/19) is usually temporary, and the open worldwide dates with the exception of those born in China and India make cases in those categories especially attractive because of the short wait times involved in a successful case.

2. The Iron- Doming of DHS

Here we go back to the 1970s-early ‘80s when legacy INS looked like a monolith without humanity. Back then, people sat hours upon hours in windowless hot rooms cooled by only 1 or 2 fans and many of the officers were not trained in customer courtesy. The Trump administration now wishes to present an unfriendly DHS in which information flow is highly restricted. The National Customer Service Center from which the public obtains most of its information on pending cases by dialing 1-800-375-5283 has had its friendly name deleted and replaced with U.S.C.I.S. Contact Center. Representatives are harder to reach, and give less information. U.S.C.I.S. processing times are ridiculously long, and even ridiculously longer for the agency even to accept a telephone call about a pending case. For example, the F-2B (LPR parent filing for unmarried son or daughter over the age of 21) final action visa availability date for the month of July is up to 5/15/13, but if the applicant is overseas and has an open and current priority date of April 2013, the petitioner or legal representative could not even call to discuss the case if it is being held for adjudication at the U.S.C.I.S. Vermont service center since its current processing time (as per U.S.C.I.S.’s current declared processing times) is between 75-97.5 months, and the agency will only entertain inquiries if the petition was submitted prior to 6/27/11. Infopasses (individual appointments at the local field offices to ask about cases) are almost impossible to obtain. Liaison meetings between interested groups like the American Immigration Lawyers Association and U.S.C.I.S. have been discouraged from the top. Methods by which the public can pay U.S.C.I.S. at its field offices have been limited. Window service at ICE for delivery of papers has been closed in many locations. The use of discretion by ICE has been largely abolished. Many immigration hearings are conducted by video in which lawyer and client are separated, not allowing for proper preparation. Dissemination of ICE’s Office of Immigration Litigation publication, OIL Litigation Bulletin, to the public has been stopped. Cooperation between ICE attorneys and private attorneys has largely ceased. And of course, CBP is greatly in the news in iron-doming itself against migrants not only at the border, but for 100 miles inland. There is a sense of agency bravado and zeal in which the tone is enforcement as opposed to customer service and prosecutorial discretion to the deserving.

3. Closed Loop Voyages Involve Entries to CBP

This topic has been a source of confusion to many – does someone make a new “entry” to the USA entitling Customs and Border Protection (CBP) to make an inspection of a traveler where that person has taken a Caribbean island cruise or other short cruise and come back to the same port from which he or she departed? It would seem to make sense that a new entry is not made in the immigration sense, especially where the traveler does not disembark except on U. S. territories such as the Virgin Islands, St. Thomas, St. John’s or St. Croix. Yet the question was answered to the contrary in the 4/8/19 agenda questions for the American immigration Lawyers Association New York Chapter liaison meeting with New York/New Jersey CBP. On the question of whether a round-trip cruise back to the same port could be done by an applicant for change of status without a grant of advance parole, the CBP reply was that closed loop cruises are cruises departing from and arriving at the same port, and for all individuals who are not U. S. citizens or lawful permanent residents, that counts as a departure and upon return, even to the same port, the individual must present a valid passport and visa (if applicable) or valid I-512 (advance parole document if applicable). If the answer is the last word on the subject by CBP, that is important to know as there are occasions for which families or other groups may plan gala birthday or reunion island cruises including grandparents, uncles and aunts, and it would be disastrous to have one of the party flagged and placed in removal proceedings after sailing back to port.

Q&A’s published on Lawyers.com and the Epoch Times on June 21, 2019 1. Should I Fill Out An I-134 Form for Partially Supporting My Girl Friend Trying to Extend a B-2 Visa? 2. USCIS Sent My Green Card to The Wrong Address. Now I Don’t Want to Pay Fee for the Replacement. It Was Not Delivered Back But It’s Their Fault. 3. Marrying an American Without Seeking U.S. Citizenship

1. Should I Fill Out An I-134 Form for Partially Supporting My Girl Friend Trying to Extend a B-2 Visa?

My Thai girl friend is here on a B-2 visa. I am a graduate student who works seasonally in Alaska, and I wish for her to come with me for a few months to Alaska this summer. We are seeking a 4 month extension of her B-2 visa. Which forms besides an I-539 do we need to fill out? Should I submit a I-134 form to claim she has financial support while visiting me? 

Mr. Lee Answers:
Besides the I-539 form, she should have proof of onward transportation back to her home country on or before the stated date of departure, an itinerary of what she proposes to do in the 4 months, and proof of adequate support which could include your I-134 affidavit of support with job letter, bank letter, and last year’s tax return.

 2. USCIS Sent My Green Card to The Wrong Address. Now I Don’t Want to Pay Fee for the Replacement. It Was Not Delivered Back But It’s Their Fault.

USCIS denied my I 90 application with the reason (I never received it) because they didn’t get the card back. Now they ask either to reapply with the reason lost and pay fee or appeal/motion which also have a fee of $675 which is non refundable. Its their fault they sent it on the wrong address what should I do now. They actually sent it on my petitioner’s address other than the mailing address I provided in DS-260 form. That place was sold years ago and the people over there didn’t mail it back.

Mr. Lee Answers:
In looking over the I-90 form, there is no category to check off for a person to complain that U.S.C.I.S. made an error in mailing the card to the wrong address. The difficulty is that an application like yours could be automatically rejected by the cashier as not having the required fee. That being said, you could try to check off Part 2, Section A, 2.b that “My previous card was issued but never received”, and attach a letter of explanation with proof if you have not already done so. The other option of course is to pay the filing fee.

3. Marrying an American Without Seeking U.S. Citizenship

I am a U.S. citizen. My boyfriend is currently a Saudi F-1 visa holder going to school here. We want to get married after he graduates, but we do not intend to stay here for more than 6 months to a year, so he does not want to apply for American citizenship. Is there a way for him to change status or marry me without losing his citizenship?

Mr. Lee Answers:
Your boyfriend after marriage can seek permanent residence but not U. S. citizenship. If his idea is that he does not wish to remain in the U. S. for 6 months or more during the next few years, he could likely take out reentry permits. However, if his idea is that he does not wish to stay in the U. S. 6 months or more at anytime in the future, then he may wish to explain his situation to the American consulate or embassy in his home country in order to obtain a visiting visa for when he needs to come to the U. S.

Q&A’s published on Lawyers.com and the Epoch Times on June 14, 2019 1. Can I Enter on F-1 Visa While H-1 Application is Pending? 2. Pros and Cons of Applying for K-3 Visa After Submitting an I-130 3. I’m a US Citizen. Can My Mother Stay Over 180 Days If I Applied for Her Green Card And It’s Still In-process?

1. Can I Enter on F-1 Visa While H-1 Application is Pending?

I am on F-1 visa (valid till May 2021) working on OPT EAD which is valid till January 2020. I am applying for H1 this year. If my H1 application is picked up in lottery, then can I travel outside the USA and come back on F1 visa while my H1 application is pending? If yes, then in the case that my H1 is approved, do I have to get my visa stamped to even start working on H1? or I can get it stamped the next time i leave the USA?

Mr. Lee answers:
The difficulty is that any travel outside the United States during the time that an H-1B petition is pending is considered an abandonment of the change of status portion of the petition. With your OPT EAD valid until January 2020, you can travel with the above restriction. You might be better off waiting until the H-1B petition is approved before traveling under your OPT EAD before October. Then it might be considered that you did not travel during the time that the H-1B petition was pending. If the change of status portion of your H-1B is not considered abandoned and you did request the change of status, you would not be required to have an H1B visa in your passport in order for you to begin work in October. Please note that I along with most of the lawyers discourage applicants even with EAD’s to travel at any time before an H-1B becomes effective in October or thereafter.

2. Pros and Cons of Applying for K-3 Visa After Submitting an I-130

I’m Venezuelan living in Panama, Married to my long time boyfriend since 01/07/2017, we got married in Fort Lauderdale and then I came back to Panama, he is a US. Citizen lives in FL, now we have to start our Petition for relative and we are uncertain what to do, we know we should start with a I-130 application, then wait for I-797 and Consular Processing. Is it a Good Idea to apply also for K-3 so I don’t have to wait separated from him? 

Mr. Lee answers:
The pros and cons of filing a K-3 visa petition after submitting an I-130 would seem to be the following:

Pro – generally speaking, you would get the person here faster (approximately 3 months sooner under current processing times).

Con – you would have to pay another filing fee, fill out another petition, most likely face an adjustment of status process once the person comes in with the K-3 visa, and if the I-130 petition is approved and at the National Visa Center while the K-3 petition is still pending or also at the National Visa Center, the K-3 would be discontinued.

3. I’m a US Citizen. Can My Mother Stay Over 180 Days If I Applied for Her Green Card And It’s Still In-process?

Mr. Lee answers:
If you have already filed an I-130 petition and she has filed for an I-485 adjustment of status, she is allowed to remain in the U. S. while the application is being adjudicated. She is in a quasi legal state in which the illegal presence bar does not apply.

Q&A’s published on the World Journal Weekly on June 9, 2019 1. Will Former Marriage With Approved I-130 Petition Be a Problem When New Spouse Files Another I-130 Petition? 2. Can You Tell Me How to Count My Time For Naturalization?

1. Will Former Marriage With Approved I-130 Petition Be a Problem When New Spouse Files Another I-130 Petition?

I was in a previous marriage and we had the I-130 petition approved before things fell apart and we got divorced. Now I am in a new relationship with a US citizen who will be sponsoring me for the green card. Will my past relationship give us a problem when we make the new I-130 petition for me?

Dear reader,
It is clear that this marital relationship that you are currently in is bona fide as there appears to be a child on the way. A question that could be in the back of an immigration officer’s mind is whether your former relationship was also bona fide. Although the I-130 petition was approved, an immigration officer can still look at that relationship to see its bona fides unless there was a marriage interview. You may wish to keep any proof of the past relationship in the event that your past marriage becomes an issue. Under the law, a finding of a sham marriage for immigration benefits would bar the violator from ever obtaining a green card through being petitioned.

2. Can You Tell Me How to Count My Time For Naturalization?

I got my green card in 2014 and am wondering whether I am eligible for my citizenship. During the past five years, I have been in the United States about 750 days. I have not taken any trips outside the US for six months or more. Can you tell me when I will be eligible?

Dear reader,
The minimum amount of time in the US prior to filing is one half of the required period of residence. For five years, that would be 913 days. However, persons who compile the bare minimum may find that a naturalization officer still does not feel that the person has maintained residence for naturalization purposes where the bare minimum has been met. You are probably better off exceeding that amount significantly before making the application. On the other hand, please understand that the period of time that is counted is the five years before the date of filing. That means that “good” time that you spent in the US prior to the five-year date may be lost. Please keep this in mind when you are counting your days.

Q&A’s published on Lawyers.com and the Epoch Times on June 7, 2019 1. Can I Fix my Mother’s Papers If I Am Married in California? 2. What Happens After A Tip Is Submitted to ICE About An Illegal Immigrant? 3. I Am an F-1 Student on OPT Training Which Will Expire in July. But I Will Like to Change My Status to B-2 Visitor for Pleasure. What Is A Good Reason?

1. Can I Fix my Mother’s Papers If I Am Married in California?

Mr. Lee answers:
I do not see the relevance of a marriage in California to being able to fix a parent’s permanent residency papers. We have cases in which petitioners are across the nation from their parents and still file for their permanent residence.

2. What Happens After A Tip Is Submitted to ICE About An Illegal Immigrant? 

An immigrant was reported for tax evasion and for the use of a fake social security number to obtain employment. She has worked since around 2010 and never filed she worked, but was filed by her soon to be ex husband. He is also an immigrant, but he was not reported to ICE. Both of them are going through a divorce and their daughter is 17 and with a baby of 2 months. Their daughter lives with her boyfriend. How long before she gets arrested? Will they take her to jail or an immigration detention center? How long before she gets deported? Is there any way she could stay in the country?

Mr. Lee answers:
It is difficult to know what happens after a tip is submitted to ICE about an illegal immigrant. In the past, many tips were ignored as ICE only had so many staff members and there are 11 million undocumented immigrants. The practice generally in many parts of the country was to go after more egregious situations involving multiple people or criminal violations. Currently the Trump administration is pushing for the expansion of ICE officers and more detention facilities. Once it ramps up its capacity, one can expect that more tips will be given attention. At this time, it is uncertain whether the person you describe will become a target for arrest as her type of offense is not “glamorous” to ICE. If detained, she could be taken to a city/county jail or immigration detention center, whichever has capacity and if the city/county jail has a contract with the federal government. If she has not already been an immigration proceedings, she would be entitled to present whatever case she has in front of an immigration judge. The process could go on for years although the Trump administration has said that it will focus on criminal aliens and your person could become a target if criminal charges are filed against her. On whether there is any way that she could stay in the country, she should seek consultation with an immigration lawyer who can go over all of her individual facts and situations.

3. I Am an F-1 Student on OPT Training Which Will Expire in July. But I Will Like to Change My Status to B-2 Visitor for Pleasure. What Is A Good Reason?

Mr. Lee answers:
Many people have good reason to change to B-2 visitor for pleasure when their OPT training expires. Generally students work hard in their schooling and afterwards on OPT and have had no time to enjoy what this country offers in terms of travel and entertainment. A request to explore the country and to see the sights with a good itinerary of what you plan to do would be reasonable.

Q&A’s published on Lawyers.com and the Epoch Times on May 31, 2019 1. Will Traffic Violation Get Me Deported? 2. Will I Still Be Able to Get My Green Card? 3. Can I Marry a Chinese Student On a F-1 Visa

1. Will Traffic Violation Get Me Deported?

In New Jersey got a “driving with telephone” ticket and have mandatory court appearance. I do have a valid driver’s license but no social security number. Will my legal status be brought up in court? Could I be deported over this? I have never even gotten a speeding ticket in the past 14 years.

Mr. Lee Answers: 
No one can predict with any great certainty what will happen now that Donald Trump is president. He has emboldened ICE to even hang around courthouses in the hopes of catching undocumented immigrants. That being said, ICE usually has a concern with the individual previously when it does that. As New Jersey is not a red state, the chance of you having a problem appearing on a traffic ticket in New Jersey is very low if you have not had prior encounters with Immigration.

2. Will I Still Be Able to Get My Green Card?

I am a green card holder through marriage. I applied for the removal of conditions 14 months ago after my 2 year green card was coming to an end. The USCIS is processing applications that are few months after mine. I called them since my one year extantion expired and I had to get another year extension. They told me that the company that took my biomedics still did not provide a background check and that there is nothing that they can or will do. I was suppose to get a decision couple of months ago. The issue now is that my husband and I are on very bad terms and he is going to apply for a divorce any day now. How can this affect me? To sum up We filed the I-751 together and he signed it over 14 months ago but due to missing biomedics my case is still pending and he wants a divorce now.

 Mr. Lee Answers:
Even if your husband divorces you at this time and your case is still pending, U.S.C.I.S. would give you the opportunity to amend your I-751 to another category such as having been in a bona fide marriage which is now dissolved. You would notify U.S.C.I.S. of the development once you divorce, and U.S.C.I.S. would reclassify your case. You would not have to refile if your case is still pending.

3. Can I Marry a Chinese Student On a F-1 Visa

She will graduate in May, apply for OTP, We want to marry on May 20. Send OTP out next week. Then start the application process.

Mr. Lee Answers:
There is nothing precluding an individual from marrying a student on an F-1 visa, and having her send out the OPT prior to the marriage is probably a good idea as it gives options in the event that something goes wrong with your application process.

Q&A’s published on Lawyers.com and the Epoch Times on May 24, 2019 1. I am TPS Holder and My Husband is a U.S. Citizen, Have Two Kids, My Husband Want to Apply for Adjustments of Status for Me, Is It Possible for Me? 2. Can an Immigration Lawyer Help a Younger Individual That Was Already Refused the B-2 Visitor’s Visa Get Approved? 3. Concerned re Travel in Advance Parole /EAD Document

1. I am TPS Holder and My Husband is a U.S. Citizen, Have Two Kids, My Husband Want to Apply for Adjustments of Status for Me, Is It Possible for Me?

For me to get my green card without living the country, I’m in Florida and my husband is in Massachusetts, I’m moving soon.

Mr. Lee answers:
I assume that you entered the U.S. without inspection. The question of whether a TPS holder who entered illegally can adjust status in the US is a hot button issue at this time and the circuit courts are divided as to whether it can be done. The Ninth Circuit Court of Appeals in California just decided that it was possible in following the Sixth Circuit in Ohio. Meanwhile the 11th Circuit with jurisdiction over the states of Alabama, Georgia and Florida has decided in the negative. The rest of the circuit courts have not yet ruled.

2. Can an Immigration Lawyer Help a Younger Individual That Was Already Refused the B-2 Visitor’s Visa Get Approved?

Mr. Lee answers:
An immigration lawyer can help to put together an application and perhaps add in details or evidence which were not in a prior application. If a consular officer made a mistake of law, an immigration lawyer could also point that out. But where individuals are denied for visitors visas based on the consular officer’s perception that the applicant may remain in the US instead of returning to the home country and there is no strong evidence to the contrary, an immigration lawyer is not a miracle worker. These types of determinations are non-appealable and perhaps the better solution would be to wait until the individual has enough bonds and ties in the home country to convince a consular officer to grant a visiting visa.

3. Concerned re Travel in Advance Parole /EAD Document

I have received advance parole /EAD card while waiting for a I-485 Adjustment of Status green card application filed by my husband’s employer. My husband however wants to move out before the green card arrives but I have been told that since this application is employer based this should hopefully be okay still as we are still married since 2000 & we have two kids under 9. My fear is that if I my children & I travel for vacation overseas to Australia to see family that I may not be allowed back in if they find out he has moved out? I don’t want to miss my father’s 80th birthday though… thoughts??

Mr. Lee answers:
As you have an employment-based case and there is no doubt of the bona fides of your marital relationship, you would be eligible to obtain permanent residence with your husband if he still wishes to continue your application even if you are separated. Even if U.S.C.I.S. was to discover that your husband moved out when you reenter the States, that should not have an effect on your admissibility.

Article: Protecting The Green Card When Taking Extended Trips From The U. S.; Entitlement To 10 Day Or 60 Day Grace Periods For Nonimmigrant Workers; Public Charge Danger Signals

As published in the Immigration Daily on May 23, 2019

1. Protecting the green card.

After obtaining the green card, permanent residents many times leave the U. S. for extended periods of time, placing their green cards in jeopardy during the inspection process when reentering the country. What is there to do except to hang back or try to somehow get into the line of the Customs and Border Protection (CBP) officer that one thinks will afford the most favorable inspection? The general rules are that a permanent resident should be maintaining a main domicile in the U. S., which generally means over 6 months of each year; that trips of over 180 days may subject the individual to harder inspection as an alien “seeking admission”; and that frequent trips of extended duration even if not over 180 days may still cause challenge to the right to keep the green card.

What can one generally expect from CBP where extended absences are concerned? Usually the first step will be a warning and a notation in the passport of the person’s extended absence. The applicant may be instructed to apply for a reentry permit. The reentry permit allows a permanent resident to be outside the U. S. for up to but not including 2 years and is a favorable factor for entry as the individual has in effect informed DHS of his or her plan to take extended trip(s) outside the U. S. However, it is not a guarantee for reentry. So in what other ways can a green card holder protect his or her permanent resident status? If the absence or absences was to take care of someone in ill health, perhaps a statement from the treating physician, hospital records or test reports along with proof of relationship would be helpful. Although some CBP officers have said tax returns are not particularly persuasive, it would not hurt to have proof of the payment of U. S. taxes so long as the person is not taking an income exemption for income earned overseas because of having declared himself or herself a nonresident for the year.

In a deferred inspection or before an immigration court, other items that might be helpful could be proof of real and personal property owned in the U. S., job letters, proof of pay, proof of family members in the U. S. and their maintenance of domicile here, bank books and banking statements, use of U. S. credit cards, ownership of U. S. stocks, insurance policies, membership in associations, clubs, and organizations, evidence of payment of long-term debt over a period of time, e.g. mortgage and automobile payments, library cards, state driver’s licenses or state identity cards, etc.

This is a new age in which immigration officials have become emboldened by the Administration to take adverse actions against immigrants, legal or otherwise. It behooves all permanent residents who travel outside the United States for extended periods of time to be more cautious and be prepared to meet a challenge upon arrival.

2. Is the nonimmigrant worker entitled to a grace period of 10 days or 60 days?

In the final rule of November 18, 2016, “Retention of the EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers,” U.S.C.I.S. expanded application of the 10 day grace period given at the end of the expiration of nonimmigrant working status to nonimmigrant working classes E-1 (Treaty trader), E-2 (Treaty investor), E-3 (Australian specialty occupation), L-1 (intracompany transferee), and TN (NAFTA or soon to be CUSMA). H-1B (specialty occupation), O-1 (extraordinary aliens) and P (performers, athletes and entertainers) categories were already covered. Significantly U.S.C.I.S. clarified that the 10 day period could be used to apply for purposes of extension of status or change of status.

The same rule also allowed a 60 day grace period for each authorized validity period to allow individuals who had left or been dismissed from their authorized work to find new work if in categories E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN. The 60 day grace period can only be used once within each petition’s validity.

It is clear that the purposes of the two grace periods are different – one to allow 10 days at the end of the authorized period of stay and the other to protect nonimmigrant workers caught in unsuitable situations of employment. Yet can the two meet and be combined to give more than 60 days? The final rule allowed for that possibility in a situation wherein the applicant leaves or is dismissed during the last 60 days of the validity period of the authorized stay, at which point U.S.C.I.S. might consider the applicant to have maintained status for up to 60 days immediately preceding the expiration of the validity period (since the applicant is within the 60 day grace period), and the applicant might also use the 10 day grace period after the validity period ends.

So how would that work out in practice? Would the rule allow an individual in H-1B status whose period of validity had just ended and is in the 10 day grace period another 60 days on the basis that the employer had not decided to let him or her go and was contemplating an extension and only gave the decision to not extend the visa status during the 10 day grace period? I think not. However, it might certainly apply to an individual who is dismissed with 40 days left to go on the petition validity, and because the 60 day grace period would cover the ending date of the H-1B petition and be considered the new ending date (albeit without work authorization), the 10 day grace period would then be appended to the end of the 60 day grace period to afford more time for the individual to depart the U. S., change or extend status.

3. Public charge danger signals.

Current prohibited public benefits for persons applying for permanent residence are SSI, cash assistance from the Temporary Assistance for Needy Families (TANF) program, food stamps, State Child Health Insurance Program (SCHIP) and public assistance including Medicaid used for long-term care such as in a nursing home or mental health institution. The proposed rule of October 10, 2018, “Inadmissibility on Public Charge Grounds,” would also include Medicare part D low income subsidies, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing. The Trump administration is also moving to draft a regulation to deport green card holders who use government assistance within 5 years of admission, as per a Reuters report on May 3, 2019. According to Reuters, the public benefits would include SSI, the food stamp program, Section 8 housing vouchers, many Medicaid benefits, and TANF.

The October 10, 2018, proposal garnered over 210,000 comments in the 60 day comment period. Yet the number of comments does not mean that it will not become law although the Administration can expect much litigation in the courts. What should people do at this point? The best advice is probably to stay on the public benefit(s) if you need it, and get off of it if you only consider it a “freebie” of the U. S. government. The proposed rule has a 60 day exit ramp after the rule’s finalization within which participants can disenroll from the program(s). In addition, persons who are adjusting status to permanent residence or going overseas to apply for immigrant visas would not be penalized for using benefits which were not previously targeted by the new rule before the effective date. It can be assumed that any proposed rule for green card holders would contain the same or similar 60 day exit ramp.

In our next article, we will discuss the recent Trump Administration moves against immigration, DHS (including U.S.C.I.S.) iron-doming itself, and another interesting topic(s).