Author: Alan Lee

As published in the Immigration Daily on October 6, 2022

1. Confusion in the immigration courts.

Does anyone know what is going on? There appears to be confusion again on appearances in court as David L Neal, Director of EOIR (Executive Office for Immigration Review), came out with a memo “Internet-based Hearings” on 8/11/22, that once again gives the power back to the IJ’s (Immigration Judges) on how they can conduct their hearings. Some of the points are:

• Whether the judge appears remotely or in court is up to the judge.
• Whether respondent and counsel appear in court or remotely also rests with the court, but the IJ should accommodate a respondent’s request to appear in court or remotely where appropriate and practicable.
• An IJ should accommodate a request for a witness to appear remotely where such a request is reasonable.
• A request for a remote or in-person appearance must be made in writing 15 days before the hearing unless waived by the IJ.
• If respondent and counsel are both appearing remotely, they may appear either together or from different locations. There is no requirement that respondent and counsel appear together from counsel’s office.

Now attorneys are running around again madly asking what is the procedure for each individual IJ. Previously, EOIR had taken a strong position in favor of Internet-based hearings by WebEx or telephone. In one recent incident, an attorney reported that a particular IJ likes open voice for master calendars even though her temp clerk says she also does WebEx and is in court if anyone shows up in person. Another attorney said that she appeared via WebEx for an individual hearing before the same judge; that the IJ logged in late and informed her that she was conducting only in-person merits hearings, but because it was not well-publicized, she would go forward on WebEx that time only.

To its credit, EOIR in the last week of September conducted webinars by region to go over the memorandum, but could not completely quell the doubts of attorneys that their clients could be found removable in absentia because attorney and client were not clear on an IJ’s mode of hearing preferences, or the communication equipment used or the link was faulty.

2. New public charge rule on responsibility of affiants giving I-864 support.

The Biden administration issued the final rule, “Public Charge Ground of Inadmissibility”, in the Federal Register on Volume 87, Number 174, 9/9/22, which while not overly commenting on affidavits of support, played down the enforceability of the affidavits while stating that affidavits of support are to be considered in the totality of circumstances. In doing so, it knocked down the idea that there should be something in the rule concerning enforcement of the affidavit of support obligations and basically agreed with commenters that since an affidavit of support is enforceable regardless of the sponsor’s actual intent, the rule should not require officers who are favorably inclined to the affidavit of support to consider the sponsor’s credibility or underlying motives in executing the affidavit; and it declined to require officers to consider whether the sponsor would actually carry out the legally binding obligations as part of the totality of the circumstances analysis.

It appears that the taking of means tested benefits other than Temporary Assistance to Needy Families (TANF) and Medicare for long-term institutionalization are not to be counted against the applicant (not be a ground of inadmissibility) and the credibility of an affidavit of support at time of interview will be considered in the totality of circumstances.

3. US-Canada taking separate Covid paths.

Unlike the US, Canada has abandoned Covid restrictions for visitors as of 10/1/22 so that unvaccinated visitors are now allowed into the country. Visitors no longer have to upload evidence of vaccination and other data into a government app called Arrive-Can. Canadian officials said the repeal was possible because public-health modeling indicated the country had passed peak infection fueled by the Covid-19 Omicron variants, countrywide vaccination rates, lower hospitalization rates, and availability of Covid-19 treatments and vaccine boosters targeting Omicron variants. The US still requires everyone who is not a permanent resident or US citizen to be vaccinated by a WHO approved vaccine upon entry, which means fewer visitors and less tourist dollars. President Biden declared his belief that the pandemic was over last month and might wish to take a similar step.

The 2022 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 77 attorneys chosen in the area of immigration law.

This is the eleventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2021.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2022“

As published in the Immigration Daily on August 23, 2022

1. USCIS pronounces finality to H-1B selections

USCIS has been giving case alerts for the past few days requesting H-1B petitioners and representatives to login to their H-1B registry accounts only to find that registry cases are now being marked “not selected”. To most practitioners, it appeared that there would not be a second selection for FY-2023. With the steady stream of non-selections, most petitioners/representatives had already seen the vast majority of their “submitted” cases move to “not selected”. Perhaps it was the sheer volume of candidates that caused the non-selection process to play out over a period of days. For FY-2023, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. That left 356,327 previously standing “submitted” registrations. USCIS ended the suspense this morning with an announcement that it had reached the fiscal year 2023 H-1B cap and had completed sending non-selection notifications to registrants’ online accounts. One would hope that USCIS in future years will make the announcement first so that registrants do not entertain false hopes of being selected.

2. Consular Practice.

It may be worth repeating that in the DOS/AILA (Department of State/American Immigration Lawyers Association) liaison committee meeting of 6/9/22, consul posts are the final arbiter of whether original signatures are required or not; there is a known issue with CEAC (Consular Electronic Application Center) requesting police certificates for some applicants who lived in another country for less than one year and if you are not required to submit a police certificate that CEAC is asking for, you should instead submit an explanatory comment (NVC (National Visa Center) follows the guidance in 9 FAM 504.4-4 (B) for collecting police certificates for countries in which individuals previously resided for a year); and to the complaint that, where a US citizen spouse is regularly residing overseas and an applicant is relying upon assets to establish eligibility for the affidavit of support, NVC is requesting W-2s and a joint sponsor –NVC answered that its processes for affidavit of support eligibility remain the same as per 9 FAM 601.14-6 d to request W-2s for the periods of employment if a sponsor submitted a copy of the tax return (1040) regardless of filing status or if the sponsor submitted an original tax transcript and is only using his or her income to meet the poverty guidelines. (We have found that explanations have been useful here).

3. Happiness or Sadness When IJ’s Dismiss Cases.

Are you happy or are you sad and does it depend upon what kind of case you have? TRAC reported on July 29, 2022, that DHS is failing to file NTAs (Notices to Appear) with the courts, and this is leading to one out of every six new cases being dismissed by the court. According to the article, Border Patrol agents are given the ability to use the immigration courts’ Interactive Scheduling System (ISS) to directly schedule an initial hearing. Supposedly, the actual NTA is created at the same time and a copy given to the asylum-seekers with the scheduled hearing location and time they are to show up in court noted on the NTA. CBP (Border Patrol is part of Customs and Border Protection) then only has to follow up with the task of seeing that the court also receives a copy of the NTA. The article opines that with the implementation of the court’s ECAS (EOIR and Appeals System) system of e-filing, this should make the process quick and straightforward (ha ha!). The article says that the failure to have this done suggests that there is a serious disconnect between CBP personnel entering the cases on an NTA and other CBP personnel responsible for submitting a copy to the court. The article further says that this is exceedingly wasteful of the court’s time and problematic for the immigrant and possibly the attorney if they show up at hearings only to have the case dismissed by the IJ because the case has not actually been filed with the court. Question – in weak cases, don’t you think that the alien and his or her representative will be jumping up with joy?

4. Little to Do in Office with September Visa Charts.

The one thing to be said about the September Visa bulletin is that it simplifies the job in many law offices of tracking the movement of cases occasioned by changes in the monthly charts. The September bulletin is a repeat from August with the only change being in China’s EB-5 (Immigrant Investors) final action date moving up one month to 12/22/15 and dates of filing one week to 1/1/16. It did give DV (Diversity Visas) cut off dates for October and finalized numerical limitations for FY-2022 as being 226,000 for the worldwide family sponsored preference limit, and 281,507 for the worldwide employment-based (EB) preference limit. It remains to be seen whether USCIS/US consular posts will be able to use up most of if not all of the EB numbers.

5. NRC News.

There was an interesting article in the Wall Street Journal that shed some light on the National Record Center (NRC), a place where USCIS has occasionally informed us that some of our cases are located that we are tracking at one time or another. NRC in Lee’s Summit, Missouri, is the central hub of storage, preservation, and overall management of A-Files prior to their long term, inactive storage in a NARA (National Archives and Records Administration) Federal Records Center and eventual permanent transfer to the National Archives. According to the article, NARA/National Archives is a federal storage facility that had all but closed for Covid-19; that the National Archives operates miles of limestone caves beneath the Kansas City Metro area, where millions of individuals’ immigration histories are stored. This article was occasioned by a suit for delayed citizenship revealing that citizenship officers are required to look through the histories when considering an immigration application; and that before the pandemic, USCIS routinely requested immigration histories from the archives in Kansas City without issue, but due to COVID and to minimize the time employees spent underground, the National Archives stopped responding to all but emergency requests. Finally in March, the archives fully reopened its facilities and as of May, it was processing all incoming requests. At the time of writing, there were 87,500 pending requests for immigration histories, down from a high of 350,000 in January. 

6. ETA 9089 Filling Where No Sunday Newspaper.

In the 2022 AILA Spring conference and DOL’s Open Forum on the question of how employers should complete the mandatory Sunday newspaper advertisements where there is no Sunday newspaper of general circulation like in North Dakota where the newspapers have transitioned to weekend editions released on Saturdays, OFLC (Office of Foreign Labor Certifications) said employers should still place their Sunday newspaper ads in the weekend edition of the newspaper. On the 9089, the employer should say “no” in section I.c.8 requesting whether there is a Sunday edition of the newspaper; and then after including the newspaper’s name in section I.c.9, the employer should indicate “Weekend Edition – No Sunday Edition Available”.

 

As published in the Immigration Daily on July 22, 2022

1. Contacting USCIS on rejected and no receipt cases.

Filers of immigration cases are occasionally frustrated in submitting petitions and applications to a USCIS lockbox and having their packages rejected and returned with little explanation. The Ombudsman’s revised June 2022 handout “When to Contact a USCIS Lockbox” outlines the procedure for seeking clarification on why USCIS rejected the form, or when more than 30 days have passed since USPS or a courier service confirmed delivery and USCIS has not taken the money, or 30 days have passed since USCIS processed the fee but has not given a receipt notice. For these situations, it advises that individuals should email queries to lockbox support@uscis.dhs.gov and include the

• Form number.
• Receipt number, if available.
• Petitioner/applicant’s name (include the beneficiary’s name, if applicable).
• Mailing address of the petitioner/applicant.
• Delivery confirmation tracking information (if you are seeking to locate a package).
• Payment type submitted and if USCIS received payment.
• Do not provide A numbers or Social Security numbers.

While this is not a perfect system in our experience, following the outlined steps can help in many cases.

2. 3/10 year bars can be satisfied in some cases while living in US.

There is an interesting 6/24/22 policy alert from USCIS affecting the 3 and 10 year bars in which the bars will continue to run regardless of whether a person is outside or reentered the US – however, that a person who has reentered the US and is in unlawful status may accrue another 3 or 10 year bar.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), most individuals staying in the US illegally for more than 180 days or one year or more after April 1, 1997, are barred from returning to the US for three or 10 years respectively.

How would this policy work in practice? Under the alert, for example, it would appear that a person who overstayed for six months or one year, left and reentered the US with H-1B or L-1 visa along with a nonimmigrant waiver of the bar, might be able to run out the 3 year bar and possibly the 10 year bar while in the US dependent upon when he or she reentered. If in the same classes and coming in without a waiver, he or she could theoretically exhaust the 3 or 10 year bar while living here, but then subject himself/herself to inadmissibility based upon visa fraud/misrepresentation in reentering without a waiver. And if a barred individual reentered the country illegally, he or she could theoretically stay up to 180 days without incurring a new 3/10 year bar, but could be subject to the permanent bar (only able to apply for a waiver after 10 years) for reentering the country illegally if he or she had previously spent one year illegally in the US.

3. NYC CIS District Office policy changes coming.

Applicants for immigration having interviews in the New York District office of USCIS have long been able to enjoy two advantages that applicants in many other USCIS offices have not had – Service provided interpreters and the certainty of married couples not being separated for questioning at first interview. In part, the interpreter advantage was occasioned by unscrupulous consulting agencies providing interpreters who did not interpret statements that were unfavorable to the applicant. That led to the New York District providing interpreters at the time of interviews and rejecting those brought in by applicants unless the District was unable to provide an interpreter in the same language. The current Acting District Director, Denise Frazier, indicated that those policies would change in a stakeholder meeting on June 22, 2022. On interpreters, New York will start following the practice of most of the rest of the country and applicants will have to begin bringing in their own interpreters telephonically. Director Frazier said that the District would begin messaging everyone on this in the coming days so that no one is surprised. On marriage interviews, it was conceded to this writer’s question at the meeting that New York historically has not separated couples at the time of first marriage interviews. The Brooklyn field office is conducting a pilot program under which it has been sending out notices saying “Stokes” on some initial interview notices for marriage-based adjustment cases or standalone I-130s and then having a normal interview conducted – to which the Brooklyn section chief said that this was part of a movement in which officers evaluate in phase 1 whether to have an interview at all and in phase 2 to decide that such is necessary and that the Stokes language is in line with the Stokes agreement.[1]  Director Frazier said that this was a pilot program in which Brooklyn was participating, but that the entire District would be sending out such notices by July and August. The upshot is that New York will begin having the ability to separate people at the initial interviews and questioning them under Stokes procedures and that it will be up to the officer whether to conduct a normal or Stokes interview.

4. Flexibility period for RFE’s, RFI’s, NOIDS’s, etc. likely at an end

The final flexibility date may be July 25, 2022. In its last release of flexibility dates on 3/30/22, USCIS said that it anticipated that this may be the final extension of those flexibilities which have allowed an additional 60 days in most cases to respond to USCIS communications. If such is true, the extra time will be missed as many organizations and individuals have not returned to pre-Covid operational levels. USCIS has added to the list of included actions occasionally during the flexibility time of March 1, 2020 – July 25, 2022, and the current list covers:

• Requests for evidence (RFE’s);
• Continuations to request evidence (N-14);
• Notices of intent to deny (NOID’s);
• Notices of intent to revoke (NOIR’s)
• Notices of intent to rescind;
• Notices of intent to terminate regional centers; and
• Motions to reopen an N-400 pursuant to 8 CFR §335.5, receipt of derogatory information after grant.

Applicants and petitioners should look at the Request for Evidence or other to see whether it was issued on or before 7/25/22 for entitlement to the extra 60 days.

USCIS will also consider a Form I-290B Notice of Appeal or Motion, or Form N-336 Request for Hearing on a Decision in Naturalization Proceedings if:

• The form was filed up to 90 calendar days from the issuance of a decision; and
• USCIS made the decision between November 1, 2021 – July 25, 2022 inclusive.

5. August visa chart shows multiple FB and few EB changes.

The August visa bulletin arrived fairly early on July 12 –fairly early given the lateness of most of the recent bulletins. F-2A (spouses and unmarried children under 21 of LPR’s) remains current on both “final action dates” and “dates of filing” charts except for Mexico with a backup date of 4/22/19 for final action dates. Otherwise, FB (family-based) final action dates: Everything remains the same from last month. FB dates of filing: F-1 (unmarried sons and daughters over 21 of USC’s) moves forward one month and one week to 8/8/16, F-2B (unmarried sons and daughters over 21 of LPR’s) three months to 1/1/17, F-3 (married sons and daughters of USC’s) one month and one week to 11/8/09, and F-4 (siblings of USC’s) one month and one week to 12/15/07. Of the three countries with differences, Mexico and the Philippines were static from last month and India’s F-4 remains the same at 2/22/06. EB (employment based) final action dates: Very much the same from July’s chart except that China EB-3 (professionals and skilled workers) advances one month to 4/22/18, and India’s EB-3 and EB-3W (other workers) advance one month to 2/15/12. EB dates of filing: The only changes are China EB-3 advancing one month and three weeks to 5/22/18, and India’s EB-3/EB-3W moving one month to 2/22/12. DV (Diversity visas): All countries are current.

The Government fiscal year closes at the end of September, so no large changes are expected in the next visa bulletin. One can only hope that the charts advance significantly with the opening of FY 2023 in October.

For August, USCIS is choosing the “dates of filing” chart for FB and “final action dates” chart for EB cases to decide who can submit I-485 adjustment of status applications for permanent residence.

[1] The Stokes judgment was a 1976 consent agreement of the New York District office comprising 56 points elucidating the rights of individuals at marriage interviews and the procedures under which they were to be interviewed including written notice of the procedures and rights which “shall” be included as part of the call-in forms.