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

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

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

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

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

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

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

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

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

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

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

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

Mr. Lee answers,

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

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

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

Mr. Lee answers,

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

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

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

Mr. Lee answers,

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

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

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

Mr. Lee answers,

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

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

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

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

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

2. Permanent resident sponsoring new spouse.

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

1. Selective Services

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

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

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

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

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

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

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

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

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

1. How Can I Get My OPT Expedited?

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

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

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

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

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

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

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

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

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

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

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

Q&A’s published on Lawyers.com and the Epoch Times on December 27, 2019 1. Renewing My Green Card That Has Been Expired for 2 Years. 2. What Does It Mean When My Immigration Application or Petition Is On Hold? 3. How Can I Fix My Boyfriend Papers?

1. Renewing My Green Card That Has Been Expired for 2 Years.

My green card expired about 2 years ago. I no longer have valid driver license because it expired.

Mr. Lee Answers:
Unless you have outstanding reason for not applying for renewal of your green card, e.g. committing a serious crime, you can do so even at this time by filing form I-90 application to replace permanent resident card with filing fee of $540 and submission to the U.S.C.I.S. lockbox in Arizona at U.S.C.I.S., PO Box 21262, Phoenix, AZ 85036.

2. What Does It Mean When My Immigration Application or Petition Is On Hold?

Mr. Lee Answers:
An immigration application or petition which is on hold usually means that U.S.C.I.S. is looking at something which may be of concern, and wishes a resolution of the question before further processing the case.

3. How Can I Fix My Boyfriend Papers?

I’m 17 I’m about to be 18. We going to get married I’m planning on fixing his papers.  He’s 19 he has social security number and he was on the dream act.

Mr. Lee answers:
At the age of 18, you would be free to marry without parental consent in any state. Your boyfriend’s having a social security number and having been a Dreamer does not necessarily mean that he can adjust status in the US through your sponsorship. That would depend upon whether he entered the country by being inspected and admitted or paroled at the point of entry. If not, he would have to go through consular processing which at the very least consists of your filing an I-130 relative petition for him, having it approved, and him initiating consular processing to interview for an immigrant visa in his home country.  DACA prevents the accrual of unlawful presence, but persons whose DACA statuses expired begin to accrue it after reaching the age of 18. The consequence is that 180 days of unlawful presence bars an alien for three years and one year of unlawful presence bars him/her for 10 years if he/she has to leave the country. If your boyfriend has already accrued those periods of unlawful presence, you might still be able to fix his papers, but would likely have to go through much more effort and risk in that he would have to go through the I-601A program to immigrate. That involves your filing an I-130 relative petition for him, having that approved, and him filing for an I-601A application for waiver of the 3/10 year bar for being in the country illegally for either of those time periods past the age of 18. The waiver is based upon showing that you would suffer extreme hardship if he had to return home and could not come back. He would wait for the result here and if approved would set up a consular interview in his own country for an immigrant visa. Assuming that he has no other immigration problems, the interview would most likely be normal and he likely would return to the US within 1-2 months.

Q&A’s published on Lawyers.com and the Epoch Times on December 20, 2019 1. Can Immigration Officers Take an Adult Away With a Minor Being Present in a Vehicle? 2. U Non-immigration Status on An Incident That Happened 2 Years Back? 3. How Can I Apply Foreign Country’s Police Clearance?

1. Can Immigration Officers Take an Adult Away With a Minor Being Present in a Vehicle?

Mr. Lee Answers:
Immigration officers can take an adult away even with the minor being present in a vehicle, but should provide for the child to be taken care of instead of just leaving the minor alone. On the one hand, this is not the type of situation that any immigration officer would like to encounter, but by the same token, DHS’s viewpoint may be that having a child in a car should not be a shield against an immigration stop.

2. U Non-immigration Status on An Incident That Happened 2 Years Back?

I and my friend were coming out form a Wal-Mart when I was in Tampa, FL 2 years back and one our way back we were held up by a guy with a gun who asked from us anything we had if we wanted to live. My friend had a cigarette pack on him which he handed over and I a few dollars. This happened 2 years back but we didn’t file a report because we were shocked and didn’t want to get involved in a lengthy police case. Is it still possible for us to file a report and would we be eligible for U nonimmigrant visa?

Mr. Lee Answers:
I do not believe that you will find that this is a viable case for a U visa since the incident was not reported to the police two years ago and they would likely not be interested in looking into such a small case in which the perpetrators would likely not be caught.

3. How Can I Apply Foreign Country’s Police Clearance?

 I need to apply for Lebanon police clearance for my wife who’s in the Philippines. She worked in Lebanon 2010-2012. How can I apply for such form?

Mr. Lee Answers:
Instructions for how to apply for a Lebanon police clearance (judiciary police record) for your wife in the Philippines is contained in the Foreign Affairs Manual. The excerpt is below:

 

For those residing outside Lebanon, the request must be processed through Lebanese embassies/consulates, but applicants may experience extremely long waiting periods before they receive the document, or may not receive them at all. The “Judiciary Police Record” may also be requested through a lawyer having a power of attorney from the individual authorizing the request. The “Judiciary Police Record” presented by an individual does not mean that the individual is clear. It just states that “this person does not have any court sentence against him”.

Q&A’s published on Lawyers.com and the Epoch Times on December 13, 2019 1. My wife Has a Permanent Resident Card But She got Detained in Crossing Back to the United States. 2. Someone Makes More Than $30,000 a Year and The Household Size Is 2.  Is This Person Above the 125% of The Poverty Guideline? 3. During Claiming Asylum Process I Can’t Get My Uni Papers in Saudi Arabia.  It Requires My Father’s Agreement.  Will USA Be Able to Get Me the Papers I Need?

1. My wife Has a Permanent Resident Card But She got Detained in Crossing Back to the United States.

She Went to Mexico For a Dentist Checkup. I spoke to the U.S. custom supervisor he said that before she was given the residency card, she entered the United States illegally. My question is will she be detained and if so for how many days.

Mr. Lee Answers:
This may turn out to be a difficult situation in two instances – how she adjusted status to permanent residence in the US since the illegal entry would in most cases prevent an individual from adjusting status, and in the second case if this was a second illegal entry. In that case, DHS may see the green card as invalid as having been given in error. As your wife has a prima facie permanent residence card, the chances are that she will ultimately be released and given a date to appear before an immigration court.

2. Someone Makes More Than $30,000 a Year and The Household Size Is 2.  Is This Person Above the 125% of The Poverty Guideline?

I thought I calculated this correctly but I got a RFE saying that this person doesn’t meet the minimum requirements to be a sponsor. Maybe the I-864 had other mistakes that triggered the RFE but I have no idea and I can’t get a lawyer either, I just want to know if this calculation is correct or not.

Mr. Lee Answers:
Where the household size is two, a person making more than $30,000 a year is well above 125% of the poverty guidelines. Those state that for a family of two, the amount to make for most states is $21,137; for those in Alaska, $26,412; and for those residing in Hawaii $24,325.

3. During Claiming Asylum Process I Can’t Get My Uni Papers in Saudi Arabia.  It Requires My Father’s Agreement.  Will USA Be Able to Get Me the Papers I Need?

I’m a 21 year old Saudi girl who lives in Saudi Arabia. I’m abused really bad by my parents (dad and step mom) and I get hit a Lot And now they’re selling me to a guy I don’t know, which is called “Arranged marriage” so technically I’m gonna get rape. My husband is taking me to the USA for honeymoon so I’ll run and claim asylum there.

Mr. Lee Answers:
I gather that when you are talking about Uni papers in Saudi Arabia that refers to your university papers. The USA would not be able to obtain those papers for you – neither would it feel obligated to do so since the burden of proof is upon you to prove your case for asylum. That being said, while US immigration law on asylum does require corroborative evidence, that is only so where it is able to be obtained. If the Uni papers are central to your case and you have a good explanation as to why you cannot obtain them, it would be up to an asylum officer and perhaps an immigration judge to determine your credibility and the availability of the documents.

Q&A’s published on the World Journal Weekly on December 8, 2019 1. Just Got Denied on My H-1B That We Filed in April – What To Do Now? 2. Got Green Card Through Marriage, Tried to Get Three-year Naturalization While I-751 Pending, And Now Both Are Denied – What To Do? 3. Granddad in Taiwan Two Months And Got Call for Naturalization Interview, But Has Been on Medicaid – Problem With Entry At Airport or Naturalization Interview?

1. Just Got Denied on My H-1B That We Filed in April – What To Do Now?

My petitioner, a small food market chain with two stores, applied for my H-1B in April 2019, got a request for evidence, answered it, and was just denied saying that the company did not need the services of an accountant. I had optional practical training from my F-1 accounting degree that ended on July 15, 2019. As my denial just came last week dated November 13, 2019, can you tell me any possible ways that I can stay in the United States legally?

Mr. Lee answers,
The Trump Administration has made clear its intention to make H-1B visas much harder to obtain, having drastically increased the number of requests for evidence and denials over the years of his presidency. That being said, you are technically out of status once the H-1B is denied. If the rejection had come prior to October 1, you would have still been within the protection of being in cap-gap status, in which case you would have had a 60 day grace period. You should confirm with an attorney to determine if you have good grounds for appeal or for a motion to reopen or reconsider. However, be aware that the clock on unlawful presence begins running when the decision is made, and if you are in the US over 180 days from that point and your appeal or motion is denied, you will incur a three-year bar if you must leave the US and reenter. If you decide not to do on appeal or motion, some other options (there can be many more dependent upon your circumstances) are the following. If you wish to further attend schooling in the US, you could possibly request reinstatement from U.S.C.I.S., and would have to prove among other items that you are not deportable for any other reason than either being present in violation of law or that you violated your nonimmigrant status; and that the violation of stay resulted from circumstances beyond your control. (The length of a U.S.C.I.S. adjudication would appear to be something beyond your control). Other options include requesting a late change of status to visitor if you need limited time to leave the US; marriage to a US citizen if you are already in a bona fide deep relationship; or making application for any other working or family relationship visa for which you might be eligible. (For this, you would have to leave the US and should seek an attorney’s advice on your case qualifications).

2. Got Green Card Through Marriage, Tried to Get Three-year Naturalization While I-751 Pending, And Now Both Are Denied – What To Do?

I got my conditional green card from my marriage to a US citizen in 2015. In 2017, right before the second anniversary of the green card, I filed the I-751 application to get the permanent green card. I didn’t hear anything from Immigration for a long time, so I spoke with the lawyer who said that I could file my naturalization application during the time that the I-751 was pending because I was married to a US citizen and entitled to file three years from the conditional green card instead of the usual five years. The problem is that although we have a good marriage, my wife lives in Atlanta because of her work and I stay in New York. Every couple of weeks, I go to see her or she comes to see me during the weekends. When I was called to interview, my wife didn’t come because she couldn’t get time away from her work, and the immigration examiner was very severe with me. She wound up denying both the naturalization application and the I-751. What can I expect next?

Mr. Lee answers,
Initially, the advice that you received from the attorney was incorrect. The three-year privilege of filing for those married to US citizens is reserved for those who can show that they have been married for three years; that the US citizen has been a US citizen for three years; and that they have been living continuously together for the entire period of three years. In a case like yours, getting together every two weeks on weekends does not qualify as continuous. The fact of separation also is a large consideration for U.S.C.I.S. adjudicators in deciding the bona fides of marriage cases. Further the fact that your spouse did not show up at the interview was another factor in deciding the I-751. At this point, you can expect U.S.C.I.S. to issue you a notice to appear (NTA) in the immigration court. At that time, you and your wife will be given the opportunity to explain in front of an immigration judge the circumstances of your relationship. You will also be allowed to present any relevant evidence in support thereof. U.S.C.I.S. is mandated to swiftly issue NTA’s in circumstances of I-751 denials, but we have seen a number of cases in which NTA’s are not issued for months or even years after the denials. I suggest that you obtain the services of an attorney once you receive the NTA, if not sooner.

3. Granddad in Taiwan Two Months And Got Call for Naturalization Interview, But Has Been on Medicaid – Problem With Entry At Airport or Naturalization Interview?

Our grandfather got a green card over 20 years ago and decided to naturalize last year. He went back to Taiwan two months ago to take care of some family affairs because our grand aunt (his sister) passed away.  We received his notice for naturalization interview for two weeks from now, and he will be returning next Monday. Will he have a problem with Immigration at the airport or Immigration at the naturalization interview because he has been taking Medicaid and government rent assistance?

Mr. Lee answers,
It is difficult to know how Customs and Border Protection (CBP) officers at the airports or even naturalization examiners at the local immigration offices will react to anything out of the ordinary these days as the Trump Administration has shown itself to be so anti-immigrant. However, that being said, impartial officers should not give your grandfather a problem based upon his taking Medicaid and rent assistance even if they asked him about it as he has already been a long time resident of the United States, and I assume that he has not engaged in illegal activity during the departure nor committed an excludable crime at any time for which he was not given relief the new Trump regulations on public charge have been stopped by court challenges, and there is no question on the naturalization form asking whether an applicant has taken means tested benefits other than whether the applicant made any misrepresentation to obtain any public benefit in the United States.