New H-1B Regulation “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-Subject Aliens” Becomes Final Changing The Order Of Selection But Delaying Pre-Registration System

As published in the Immigration Daily on February 1, 2019

The final rule will only have one component taking effect on April 1, 2019, the flip-flopping of the order of petition selection of U. S. Masters and higher degrees vis-à-vis bachelors and advanced foreign/U. S. for-profit institution degrees. The second part, the pre-selection system for organizations to register ahead of time for the opportunity to file cap subject petitions, has been postponed for this year.  Even in the proposed rule, U.S.C.I.S.  was hesitant on when it could be implemented, and many including this writer believed that it was nigh impossible for the system to come into being for this year’s H-1B selection (See “Article: Comment on U.S.C.I.S. New H-1B Proposed Regulation by Alan Lee, Esq., Immigration Daily, January 2, 2019).

Changing the order of selection by allowing all of the U. S. Master and higher degree cases to be put in the regular cap case selection, and then allowing the unselected to claim the U. S. Masters cap quota of 20,000+ numbers instead of running the U. S. Masters selection for the exclusive 20,000+ numbers first and then allowing the unselected to be put in the later regular cap selection was estimated by U.S.C.I.S. to yield another 16% or 5340 more numbers to U. S. Masters degree holders.

Was this a good strategy to favor those with U. S. advanced Masters or higher degrees? That is questionable as it is not merely a question of bachelors versus masters and higher degrees, but the exclusion of many persons who have had years of experience that those with recent advanced U. S. degrees do not have. Many with bachelor’s, master’s and PhD degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

This writer believes that the change in regulation applies mainly to those who have just acquired U. S. Masters degrees, many of whom have no relevant experience other than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s or advanced degrees from other countries and years of working in a particular field are oftentimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

On the pre-selection system, the agency noted that, “USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.” In response to comments, it is increasing the filing time period to 90 days instead of 60 days after selection, a change that would make it even more unlikely for the system to begin in FY 2020. In the final rule, it also eliminated the idea of staggered filings because of concerns over the potential for negative impact for beneficiaries relying on the existing cap gap provisions under which beneficiaries must still be in OPT status on the date of filing to be eligible for cap gap protections.

Q&A’s published on Lawyers.com and the Epoch Times on January 25, 2019 1.Can Open LLC on EAD(GC) on EB3? 2. 2. Employment Immigration After Living in the US and Only Have 7 Months on a Different Visa. If Applying for PERM Employment with a Sponsor Waiting Period Could be How Long? 3. I Have B1/B2 Visa and Work Experience 13 Years. Can I Convert to H-1B?

1. Can open LLC on EAD(GC) on EB3?

I have an EAD, awaiting adjustment of status on EB3, India. I would like to start an LLC and become self employed. I will be either sub contracting and getting a 1099. Am I allowed to start an LLC and be its only employee?

Mr. Lee answers:
Having such an EAD, you may be allowed to do such since the card allows open market employment. In addition, you may be able to use the EAD position as a basis of your green card if you are in the last phase of your immigration to the US, and have already had your I-140 petition approved and the I-485 adjustment of status filed. Under the rules of porting, you are allowed to move to a same or similar occupation and keep your case if the I-140 petition is approved and the I 485 has been pending for 180 days. U.S.C.I.S. has said that porting can be to self-employment so long as it qualifies under same or similar occupation. Please note, however, this may lead to a number of questions on your immigration interview.

2. Employment immigration after living in the United and only have 7 months on a different visa. If applying for PERM employment with a sponsor waiting period could be how long?

Mr. Lee answers:
It is difficult to answer your question as you do not state what country you are from, and quota restrictions on certain countries can increase the period of time of waiting. Generally speaking, however, employment immigration of natives of countries other than India, China, and the Philippines will generally take a couple of years taking into account time required to process labor certification, I-140 petition, and either adjustment of status or consular processing. If you do not require a labor certification application, the process may be much shorter. In the event that you do require one, your seven months of remaining stay will not allow you to obtain a labor certification, as that process takes approximately 10 months between recruitment and Department of Labor processing. However, it should be noted that the immigration law allows employment based applicants up to 180 days of illegal stay and still maintain eligibility for adjustment of status. Once an individual has the labor certification and assuming that there is visa availability and the individual is in status, both I-140 and I-485 adjustment of status applications can be filed concurrently, and such filing would allow an individual to remain with authorization in the US during the time of the processing.

 3. I have B1/B2 Visa and Work Experience 13 Years. Can I Convert to H1-B?

I’m not a cap exempt neither the company that provides work for me in USA but I have B1-B2 visa and work experience 13 years .Can I convert to H-1B?

Mr. Lee answers:
My personal feeling is that even with the amount of experience that you have, lacking any type of post secondary education, a U.S.C.I.S. officer would be hard-pressed to approve an H-1B application for you. In addition, of course, the position that is being offered must be one that normally requires at least a baccalaureate degree in the field of specialization. Finally if your question is whether you can obtain an H-1B status in the US without leaving assuming that the H-1B petition can be approved, that might be problematical in terms of timing. The H-1B lottery season begins on April 1, but selection and approval only make the beneficiary eligible to begin work on October 1 at the earliest. You must be able to show U.S.C.I.S. that you are entitled to stay under some type of legal visa status until September 30 to successfully change status in the US. Whether you will be able to extend your present status or change to another status is a question that you may wish to explore.

 

Article: The Art Of The Deal In Making The Wall

As published in the Immigration Daily on January 23, 2019

The art of the deal now is fixing the deal – to fold the present hand and start dealing a new one. The hounds are baying at him now on all sides, and he should know that it’s time for him to quit his present play if he wants to get the Wall. Mr. Trump created this whole fiasco when he put the livelihoods of 800,000 federal workers at risk in a long shutdown that he and the Republican Party own. And for what – a Wall projected to cost at least $24 billion of taxpayer money? A wall that will not stop drugs? A wall that can be tunneled under, dynamited, gone around through points of entry and the seas? To solve a humanitarian crisis of his own making when true concern would be multi-country conferences and agreements on solutions for the problems encouraging migration? To solve the “mass” invasion of the United States on the southern border when current statistics show arrests at almost an all-time low since the early 70’s? He has failed to convince the nation at large of the Wall’s necessity. So if he really continues to push for the Wall, he will have to ante up.

It goes without saying that Mr. Trump created the shutdown crisis in the hope that he could bowl over the Democrats before they established their agenda firmly in the House of Representatives. So the early stages of negotiation were to give nothing at all, pump up the absolute importance of the Wall as the penultimate solution against drugs, crime, illegal immigration, and terrorism, and attempt to shift shutdown blame on the Democrats, which was and is very hard to do as he initially said that he would own the shutdown. When that didn’t work, Mr. Trump then moved into the second phase of negotiation with his base and party (no direct negotiations with Democrats) offering temporary relief to 700,000 Dreamers and 300,000 holders of TPS (Temporary Protected Status). He offered what he could justifiably say to his base was actually nothing that these groups did not have before he took steps to remove their statuses. He would have to have been incredibly naïve not to realize that the offer was dead on arrival – so he should perhaps be given the benefit of the doubt that this offer was just his beginning point of negotiation although his base did not understand. To Democrats, he had taken these groups hostage in revoking DACA and TPS, and so he was only offering to put them back in the same state that they were before his actions. To his base, however, he was roundly criticized as an immigration appeaser and traitor.

Now it appears that Mr. Trump will be forced to move into the third phase of negotiation in which he will have to truly offer something to Democrats for the Wall or unilaterally end the shutdown with nothing to show for it except for the pain that he inflicted on the Nation. His negotiating hand of cards appears to have nothing in it. He is now being unanimously blamed for the shutdown, not the Democrats. Even members of his base are criticizing him for it at this point. His DACA and TPS hostages have largely escaped for now, with the Supreme Court yesterday giving notice that it would take no action on his request to review the DACA case, the upshot being that a decision is not expected until 2020. In addition, his revocation of TPS has been stayed by Judge Edward Chen of the Northern District of California in October, and there is no immediate threat to TPS members as the Ninth Circuit Court of Appeals will likely support the injunction, and Mr. Trump would have to take the case to the Supreme Court. Even if there was a threat to TPS members, such would not likely move the Democrats and the country who largely view DACA members as more blameless and have twice as many members. In the art of the deal, he has lost leverage, and he more than anybody else should understand this.

It remains to be seen what Mr. Trump will offer in the third phase, but anything that he offers will be looked at warily by all sides based on his long history of going back on his word. Democrats are thus far united in their belief that any legislation ending the shutdown should not include funding for the Wall. That does not mean, however, that pressure cannot be exerted to change their minds if the right offer is made. Two bills will be put on the floor of the Senate tomorrow, January 25th, a Democratic one reopening the government without wall funding, and a Republican one reopening with wall funding, the above Trump proposals, and a poison pill on asylum. Both are widely expected to fail to obtain the necessary 60 votes. In this writer’s opinion, what would truly get the ball rolling would be an offer of permanent status with or without a road to citizenship for an expanded class of DACA members which is projected to be about 1.8 million individuals. Perhaps also worthy of heavy consideration might be the present 700,000 DACA members getting some form of permanent status with a road to citizenship and the 300,000 TPS members status relief for the next 3 years. The point is that for Mr. Trump to break the logjam and obtain the funding that he wants for the Wall, he has to put forth something new that is untainted by himself. This will cause huge howls from his impassioned base, but if he intends to do the deal, he needs to put something of substance on the table.

Q&A’s published on Lawyers.com and the Epoch Times on January 18, 2019 1. I Was Denied the Right to Become a U.S. Citizen Because I Voted, I Have Proof to Show I Was Tricked into Doing So. 2. What Happens if I Don’t File Form I-751, and Go Back to My Home Country Before the 90-days Period For Good? 3. Can I Stay in the U.S. for Leisure From June – Oct 1st Under B2 Visa Until H-1B Takes Effect?

1. I Was Denied the Right to Become a U.S. Citizen Because I Voted, I Have Proof to Show I Was Tricked into Doing So.

I have 30 days to make an appeal.  What to do?

Mr. Lee Answers:
You can make an administrative appeal to U.S.C.I.S. on form N-336 Request for Hearing on a Decision in Naturalization Proceedings. U.S.C.I.S. policy on illegal voting depends upon the election law. If the election law penalizes the actual act of voting, the fact that a person has actually voted is sufficient to establish that he or she has voted unlawfully. However, if the election law penalizes the act of voting only upon an additional finding that the individual acted “knowingly” or “willfully,”, U.S.C.I.S. states that adjudicating officers cannot conclude that an applicant voted unlawfully until they assess the circumstances surrounding the voting, the applicant’s credibility, and the documentary evidence.

2. What Happens if I Don’t File Form I-751, and Go Back to My Home Country Before the 90-days Period For Good?

Do I still have to come to a court hearing? We are not yet divorced, but separated.

Mr. Lee answers:
Although not a guaranteed solution to avoiding court, if you intend to go back to your home country for good, you may wish to write a letter to the Texas Service Center since you live in Florida and you would be filing an I-751 application to that service center as it has jurisdiction over Florida. You can explain your circumstances, that you will not be remaining in the US, and perhaps give some proof such as an air ticket of your intent to depart. Upon your departure, you can also inform the Center that you have departed and give them proof of such, e.g. copy of passport showing entry into your home country.  The address of the Texas Service Center for I-751’s is:   

U.S.C.I.S. Texas Service Center
PO Box 851488
Mesquite, TX 75185-1488

3. Can I Stay in the U.S. for Leisure From June – Oct 1st Under B2 Visa Until H-1B Takes Effect?

I’m currently dating a US citizen, I am a Canadian citizen. I’m graduating from my M.Sc in Canada in June. I’ve read that once the H-1B is approved and your visa is stamped (hoping all goes well), that you can only enter the US 10 days prior to employment start (Sept 20th for Oct 1st start for H-1B) Could I apply for a B2 visa to stay with my boyfriend until my H-1B takes effect? Something like June – Oct 1st? I’m aware I have to do my interview and visa stamping in Canada, I can take a trip for that. But is it possible to just take trips and re-enter under B2 visa? And once everything is stamped, does the H-1B visa stamp replace B2? Or is there a conversion involved. 

Mr. Lee answers:
As you are a Canadian, you do not require a visa to enter the United States for visiting purposes. If you have a valid reason for being in the US for visiting purposes such as visiting with your boyfriend, you can explain that to the inspecting officer upon your entry with a Canadian passport. Similarly Canadians are not required to have H-1B visas put into their passports. At the appropriate time, you can approach the port of entry with your I-797 H-1B approval and request admission into the US to take up your H-1B position. You may of course have to explain what you were doing in the United States from June-October 1. 

Q&A’s published on the World Journal Weekly on January 13, 2019 1. Married One Month After Coming to U. S. and Want to File for Her Immigration (I am USC) – Did We Marry Too Soon? 2. Laid Off on H-1B, Do I Have to Leave Now? Do I Have Any Time to Find Another Job? 3. On H-1B, I-140 Just Approved, Priority Date Far Away, Want to Change Employers, Currently Applying For Extension 4. Friend Who Filed Political Asylum Based on Persecution Under China Family-Planning Policy Just Denied – Why If He Has a Good Case?

Married One Month After Coming to U. S. and Want to File for Her Immigration (I am USC) – Did We Marry Too Soon?

I am a U. S. citizen and invited my girlfriend from Hong Kong to come to the U. S., and she entered under a B-2 visiting visa 2 months ago. We got married last month and were about to put in papers for her immigration and someone told me that we might be in trouble because we married too quickly after she came in. Is that true? What can we do?

Mr. Lee Answers,
Current policy guidelines are that persons coming to the U. S. who take an action within 90 days of entry inconsistent with their stated purpose for coming to the U. S. are presumed to have made a misrepresentation of intent at the time of entry. In your case, you can solve your situation by filing the I-130 petition for alien relative for your wife and having her leave the U. S. and undergo consular processing once the I-130 petition is approved by U.S.C.I.S. The other route of filing for adjustment of status without leaving could bring on the consequence of U.S.C.I.S. questioning her intent at the time of coming into the country when you are both interviewed. I note that there is a recognized immigration decision that a preconceived intent should not count in an immediate relative case (immediate relatives are the spouses, parents, and children under the age of 21 and unmarried of U. S. citizens), but the question is whether an immigration officer at the time of your wife’s interview would be aware of the decision or believe that all the facts apply to your wife’s case. In the event that your wife is deemed to have committed fraud or misrepresentation, she could file an I-601 application to waive the ground of inadmissibility and the standard would be whether you would suffer extreme hardship if the waiver is not approved.

2. Laid Off on H-1B, Do I Have to Leave Now? Do I Have Any Time to Find Another Job?

I received my H-1B in October and had been working with my employer until the end of October at which time I was laid off. It has now been 33 days since I was let go. I have been trying to find other jobs, but it is not easy, especially around the end of the year. Can you tell me how much time I can stay here to find another H-1B job without leaving the country or trying to change my status?

Mr. Lee Answers,
You are allowed to remain 60 days after the last day of employment with your employer. During that time, you are considered in legal status for all purposes except for work and leaving the country. Please note that once you find a new position, your new employer will need approximately 2 weeks to file for an H-1B transfer petition (with a good legal representative) as it must first go through a labor condition application (LCA) with the Department of Labor prior to submitting your new H-1B to U.S.C.I.S. Good luck!

3. On H-1B, I-140 Just Approved, Priority Date Far Away, Want to Change Employers, Currently Applying For Extension

I am being sponsored by my present company and my I-140 petition was just approved 8 months after my labor certification was issued. I am from China and have a priority date in February 2017 under the EB-3 category. My 6 years of H-1B status will end in March, and we just filed for an extension. I am thinking of changing jobs to another company with better conditions, but wonder what risks I have and how much trouble this will be.

Mr. Lee Answers,
Unless there is fraud or misrepresentation, revocation or invalidation of the labor certification, or mistake on the part of U.S.C.I.S. in the I-140 adjudication, you will be allowed to keep the priority date. If the business does not fail or the employer revoke the petition within 180 days, the I-140 will stand for purposes of allowing you to extend your H-1B status until your priority date is current. Your new employer in that case would still have to file for a new labor certification and I-140. In changing over to a new employer, you and your new company will have to decide whether to put you on board during the time of the pendency of the transfer or have you remain with your original employer until the H-1B adjudication is done. Unfortunately at this time, there is still a suspension on premium processing for your type of anticipated filing, which is expected to last until February 2019. There is a risk that if you move over to the new employer without a new approval, a denial would place you out of status, and you might be forced to seek consular processing of any further approved petition. You should also be aware that remaining in the U. S. for over 180 days after receiving a denial from U.S.C.I.S. would subject you to a 3 year bar on returning to the U. S. if you had to leave.

4. Friend Who Filed Political Asylum Based on Persecution Under China Family-Planning Policy Just Denied – Why If He Has a Good Case?

I have a friend who has applied for political asylum and was just denied. Could you tell me why because he will not tell me and I am very concerned. He is a good man. In China, he was a doctor who was very conscientious. He worked in a clinic where he did abortions, but he tried to be as kind to the women as he could be, and in 2 instances even managed to help the women escape who did not want the abortions. In fact, he got into trouble in China because it was found out that he helped one escape for which he was dismissed. He has much evidence and documentation of the above that he gave to U.S.C.I.S.

Mr. Lee Answers,
Unfortunately it sounds as if your friend was labeled a persecutor by the U. S. government if he told his story in the way that you have just described. The family planning policy in China has consisted of coerced abortions and sterilizations, and people who prove that they have been the victims of such have a legitimate ground for political asylum. At the same time, those who assisted in the implementation of the coercive population control policy are considered persecutors who are ineligible for asylum and subject to removal from the United States. The fact that your friend helped out in 2 instances would not excuse his participation in a program of persecution in the eyes of the U. S.

Q&A’s published on Lawyers.com and the Epoch Times on January 11, 2019 1. DACA Question 2. I Am on H-1B and My Prevailing Wage Request is Submitted 3. I Have a Temporary Residency for 2 Years But He is Asking for Divorce.

1. DACA Question

My dad is a US citizen and I am an 19 year old immigrant with DACA . Will he be able to help me fix my paper work or am I too late to get any help?

Mr. Lee answers:
If you entered the country legally, your father can probably assist you in adjusting status to permanent residence in the US without leaving. If not, you may still be able to obtain your residence status through the I-601A program under which your father would petition for you as his relative on form I-130, and when that is approved, you would be able to submit an I-601A request for a waiver of the 10 year bar for being here in the US unlawfully for a year or more. The I-601A adjudication would be based upon your establishing extreme hardship to your father if you could not return to the US. Assuming that the waiver is approved, you would complete your case by having it consular processed through the National Visa Center in the States and the US consulate or embassy in your home country. Kindly note that the I-601A program has a good rate of success, but also that its future may depend upon how vigorously Mr. Trump wishes to go after programs benefiting the undocumented.

2. I am on H-1B and My Prevailing Wage Request is Submitted.

If prevailing wage is more than what i get currently, can the employer increase before perm and will my GC process go fine or should employer maintain the same salary starting of prevailing wage request

Mr. Lee answers:
PERM labor certification applications require a prevailing wage determination of the offered position for the case to be filed with the Department of Labor (DOL). The prevailing wage must be paid at the latest at the time that the permanent residence application is approved. Whether the employer pays the prevailing wage prior to that time to the alien is not a primary concern of DOL, which is the protection of US workers. That means that DOL will want to be assured that the employer is offering that wage to the US workers who apply for the position, and that the employer is not rejecting US workers because the alien is willing to work at a lower rate.

3. I Have a Temporary Residency for 2 Years But He is Asking for Divorce.

I am from Venezuela and have been married over a year with an US citizen. How can I do so the divorce does not affect my residency?

Mr. Lee answers:
The best action is to gather together and keep in a safe place all evidence that you and he have had a bona fide marriage. When the divorce is finalized, you can submit the I-751 Petition to Remove Conditions on Residence with all the proof of your marital relationship. If U.S.C.I.S. is convinced through the documentary evidence and/or interview with you that the marriage was bona fide, you would be allowed to have your conditions removed on the green card.

 

Q&A’s published on Lawyers.com and the Epoch Times on January 4, 2019 1.Green Card Holder Applying for Unmarried 28 Year Old Child 2.Can I Have My Marriage Annul? 3.My Fiancé Is On Immigration Hold And Is Being Held In A Local Jail Facility

1.Green Card Holder Applying for Unmarried 28 Year Old Child

How long it usually lasts to bring over an unmarried 28 years old, biological daughter to the USA if I am a Green Card holder since 2014. Will my Citizenship (in two years) speed up her case? What is the fee for?

Mr. Lee answers:
A good guesstimate is 7-8 years. In this case, citizenship usually does not help as, believe it or not, a guesstimate for that situation is at approximately 8-9 years now for most people in the world. The current I-130 petition fee with U.S.C.I.S. is $535.  Insofar as our legal fee is concerned, we do not publicly quote but it is reasonable.

2.Can I Have My Marriage Annul?

I married an illegal alien in 1991 who was supposed to be deported but fled to another country before they caught him. I need to know if we’re married. I’m trying to get married and I haven’t seen or spoken to him since 1991. I hoping that everything was just annulled. I’m trying to get married now and want that part of my life over. Also, we were married in Orleans parish by a Justice of the peace, but I do not remember what his name is.

Mr. Lee answers:
You cannot marry another without having your former marriage terminated. In every state, there is a record of marriage. In Louisiana, the office of the state registrar compiles and issues vital records for Louisiana citizens including for marriage. You can access the website at new.dhh.louisiana.gov. You can also check the records to see whether there has been a divorce filed by your marriage partner. If not, you can begin a divorce action on your own.

3.My Fiancé Is On Immigration Hold And Is Being Held In A Local Jail Facility

A month ago my Fiancé was getting out of court for a case he has for an Assault and Battery . Immigration was waiting for him outside and took him. He’s been held and ICE obviously does not give me any information if he has a bond or not. I’m 4 months pregnant with his child and I’m a high risk pregnancy and he’s my only provider for now. We have an apartment together but since he’s not working due to being in jail I had to give up my apartment and now I’m staying with a family member for now. Is there any way he will be able to get out on bond or with an ankle bracelet because I need him more then ever to help me with my pregnancy and living situation. He was my only help and now that he’s been gone so long I’m having so many problems emotionally and financially. He worked 24/7 and the assault and battery charge was for a fight we had and I’m fixing that in court because there were a lot of lies in the police report. What can I do to help him out?

Mr. Lee answers:
Hopefully the charge can be dismissed or changed as a conviction for domestic violence against a fiancé is a permanent bar to immigration. With a dismissal or change in character of the charge, and if you are a US citizen or permanent resident and marry and petition for him, ICE may give him a bond or release him on his own recognizance or with ankle hold assuming that he has not had prior criminal incidents or a bad immigration history.

 

Article: Comment on USCIS New H-1B Proposed Regulation

Today, January 2, 2019, is the last day to submit comments on the new H-1B proposed rule, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens.” Below is our comment on the pre-selection system part of the proposed regulation. Readers can still comment electronically through accessing Federal eRulemaking Portal: http://www.regulations.gov and following the website instructions for submitting comments.

December 31, 2018

Samantha Deshommes, Chief,
Regulatory Coordination Division
Office of Policy and Strategy
U. S. Citizenship and Immigration Services
Department Of Homeland Security
20 Massachusetts Ave. NW.,
Washington, DC 20529

Re: DHS Docket number USCIS-2008-0014 – Comment on H-1B Pre-selection System

Proposal


Dear Ms. Deshommes,

The new H-1B proposed rule for changing the present selection system is absolutely unworkable for 2019. The period for comment ends on January 2, 2019, and there will undoubtedly be tens of thousands of comments that U.S.C.I.S. will have to go through. Then the proposed rule will have to wend its way through the Office of Management and Budget and even your office cannot predict when that agency will finish up with its work on the proposed rule. It is almost a certainty that a final rule will not be ready at the earliest until March or April if even then. The time to implement the rule will also take months as employers will have to submit a form identifying aliens that they wish to sponsor and U.S.C.I.S. would have to conduct the selection process. In just examining that implementation, there will be a period of time from date of final rule – likely 60 days although the proposed rule is optimistic in estimating at least 30 days advance notice – to give fair notice to employers through seminars, symposiums, and FAQs as to how they are supposed to fill out and submit a pre-selection form. Following the deadline for doing such, the proposed rule says that the registration period will last for a minimum of 14 calendar days. U.S.C.I.S. will then take approximately 1 week to assimilate all the applications and run the computerized selection process, and then an unknown period to notify all employers that their pre-application has been accepted (the amount of time that it has normally taken U.S.C.I.S. to run the regular selection and notify employers with receipts is 1-2 months). Following that, employers are to be given 60 days under the proposed rule to file the H-1B cap subject petition for the named beneficiary.

Adding it all up, and taking the most optimistic timeframe in which the final rule is ready by March or April 2019, U.S.C.I.S. is looking 5-7 months from that point (August-October 2019) before the first H-1B petitions can be filed. Even now, many H-1B petitions filed in April 2018 have not yet been adjudicated for over 8 months and U.S.C.I.S. is currently being sued over the delays.

U.S.C.I.S. believes that it will save much time in having a pre-selection process, but that is not true – the agency will spend even more time in pre-selection than it does under today’s system. Petitions may flood in under the present format, but the frontline clerical/cashier personnel only enter them as selection numbers in either regular or U. S. Masters degree categories before running the selection process. For FY-2019, U.S.C.I.S. ran the selection process for both regular and Masters degrees on April 11, 2018, only 5 days after the closing of the acceptance period for cap-subject H-1B’s.

Cost-wise, it appears clear that U.S.C.I.S. is low-balling the cost of implementation and upkeep of the proposed new system by stressing the cost benefits to the public rather than to itself. Even looking at its table 19 of U.S.C.I.S. costs for unselected petitions in FY-2017, such costs were associated with handling and shipping costs which could easily be reduced by shredding rejected petitions rather than sending them all back to the petitioners. Petitioners by and large already keep a copy of their submissions.

The proposed new process only burdens the present system with another layer of bureaucracy which will not help. Even if the initial difficulties are ironed out after the first year (probably FY-2021), there is still much to question. Will it help to force employers to early preselect their candidates long before they are able to submit petitions for them – especially as the proposed rule allows for no substitutions? The minds of organizations and H-1B candidates change over time, and employers either may later decide that the candidate is not suitable or the H-1B candidate decides to change organizations before the time for submitting the petition. The format of the pre-selection application is also a question. Will it ask the employer to also designate the H-1B position? Would it then be stuck with the pre-selection application designation? That would seriously damage the process as the employer may decide that another position is more suitable for the candidate between the time of the pre-selection and H-1B submission. In addition, if acting without counsel’s assistance in the pre-selection application, the employer may unwittingly commit to a non-specialized occupation, which would ultimately doom the H-1B petition.

Given the above obstacles, U.S.C.I.S. should not attempt to rush any change in selection process for this coming H-1B season. For that matter, it should not change the process at all by adding another layer of bureaucracy. It is clear that the present system is not behind the slowness and backlog of H-1B adjudications as the process at this time only takes 5 days from the ending period of acceptance to performing the random selection. U.S.C.I.S. should seriously consider whether the pre-selection process will actually save the government any time or significant monies or simply add more regulation onto an already heavily regulated area.

Thank you for your courtesy and kind consideration.

Very Truly Yours,

Alan Lee, Esq.

Article “Comment on Flipping Selection Process of Regular and U.S. Masters or Higher Graduates”

Below is the first of 2 comments that we are submitting to U.S.C.I.S. on the new H-1B proposed regulation. Hopefully it will be of interest to the readers.

December 31, 2018

Samantha Deshommes, Chief,
Regulatory Coordination Division
Office of Policy and Strategy
U. S. Citizenship and Immigration Services
Department Of Homeland Security
20 Massachusetts Ave. Nw.,
Washington, DC  20529

Re:      DHS Docket number USCIS-2008-0014 – Comment on Flipping Selection Process of
Regular and U. S. Masters or Higher Graduates

Dear Ms. Deshommes,

The proposed revision to the H-1B rules attempts to change the present selection process by flipping the order of random selection to favor those with U. S. Masters degrees or higher. This is highly unwise as it is not merely a question of Bachelors versus Masters degree, but the potential exclusion of many with bachelor’s degrees who have years of experience that those with U. S. masters degrees do not have. Many with bachelor’s degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

The proposed change in regulation mainly applies to those who have just acquired U. S. Masters degrees, many of whom have no other relevant experience than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s degrees and years of working in a particular field are oftimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

As such, U.S.C.I.S. should keep the random selection process as it now is.

Thank you for your courtesy and kind consideration.

Very Truly Yours,

Alan Lee, Esq.

Q&A’s published on Lawyers.com and the Epoch Times on December 28, 2018 1. How Can I Show That I Have Permanent and Legal Custody of My Child, In Order To Meet the Requirements Under the Child Citizenship Act? 2. How to File H-1B Application for a Gas Station Job? 3. I Have 2 Removal Proceedings

1.How Can I Show That I Have Permanent and Legal Custody of My Child, In Order To Meet the Requirements Under the Child Citizenship Act?

We are family with 3. We all are permanent residents through DV lottery. I’m interested about Continuous Residence and Physical Presence Requirements for Naturalization for permanent resident children. I know that we have to live here at least 30 month from last 5 years, and to be abroad less than 6 month, if we want to maintain continuous residence and apply for citizenship. Are this rules same for children, or they can get citizenship even if they will not have continuous residency, I mean, if they are abroad more than six month, but less than one year, and parent(s) becomes citizen through naturalization. Will kids become citizens automatically if they are under 18?

Mr. Lee answers:
A requirement for children to obtain derivative citizenship through a parent is that they live with the parent. If they are living significant periods of time apart from you and your spouse, there could be problems proving this component of the requirements. Items that U.S.C.I.S. has asked for in the past include tax records of the parents, schooling records, and any other proof of the children living together with the parents. 

2.How to File H-1B Application for a Gas Station Job?

I already applied for the student visa. I need to understand what documents needed for the H-1B visa. I have a job offer for the gas station. How much will be the attorney fees and documentations needed. How long it will take to process the H-1B case?

Mr. Lee answers:
From your fact situation, it does not appear that you know the rudimentary requirements of an H1B visa. U.S.C.I.S. generally does not give H-1B visas for individuals to work at a gas station. I suggest that you make an appointment with an immigration lawyer who can go over your entire situation and discuss your possibilities.

3.I Have 2 Removal Proceedings

First one cancelled. What’s the chance for me to be deported this time?

Mr. Lee answers:
It is difficult to know where you stand with so few facts. I suggest that you have a formal consultation with an immigration lawyer who will be able to go over all the facts of your case and give you an informed opinion.