Category: Q&A

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. 

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.

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.

 

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.

 

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.

 

 

1. Will My Application be Affected?

My fiancée is a citizen and she is to file for my permanent residence. This necessitate is to require a marriage sponsor. However, our intended sponsor does not have the last three years tax returns as he didn’t work all through last year. He only has tax returns for 2015 and 2016 but not for 2017. Will his lack of 2017 tax returns affect our application?

Mr. Lee answers:
To many officials, the last year of tax returns is very important, especially as it gives a better picture of the sponsor’s current ability to support. I suggest that you have your intended sponsor file an amended tax return for 2017 and also provide evidence of income for 2018 in the form of job letter and payslips showing how much he has been making for the year.

2. I-864 (Joint Sponsor) Income Requirement

I am young and married to the best thing that has ever happened to me. My joint sponsor made $18,000ish last year and had it reported on her taxes. She is now making more money putting her annual income at $24,000. Based on her taxes she doesn’t meet the requirements, but based on her current salary she does. Will she be able to be our sponsor? Is it based on current income or last year? Also, can I use an asset of mine to cover my joint sponsor’s difference if needed?

Mr. Lee answers:
U.S.C.I.S. officers in our experience are not uniform in asking for a number of years that a joint sponsor must make an amount that passes the poverty guidelines for support purposes. Some will ask for one year, others may ask for more. Just going with a joint sponsor’s current income and no tax returns meeting the guidelines would not be suggested. You may be able to use your own assets to add to your joint sponsor’s affidavit of support, and such would be counted at 1/5 value to actual income. Please note that some officers may wish to see that the amount that you are listing of your own assets to assist with the joint sponsor’s affidavit of support has been in your account for some time. 

3. I Want to Sue My Immigration Attorney

In November 2017 an attorney was hired to assist in my case. In March of 2018 he needed to submit immigration petitions on my behalf. Since June 2018 I have requested the attorney to provide with immigration receipts. Since then I have called, texted and email him requesting this information. I feel he hasn’t submitted anything to immigration and that he has taken advantage of my situation. Also my family has gone to his office requesting them. I would like to sue him. I needed this petitions to be submitted since then for me to legally return to the country.

Mr. Lee answers:
If you are dissatisfied with your attorney’s services, you can complain against him or her to the disciplinary committee of the State Bar. You can also complain to local agencies such as Consumer Affairs or the Better Business Bureau. The disciplinary committee has more bite as it can act to suspend or terminate a lawyer’s ability to practice law in the particular state. There may also be other resources available in your state, such as in New York where the immigrant affairs unit of the New York County District Attorney’s Office which attempts to resolve situations for victims of immigration fraud in New York.

 

1. What Category of Legal Expertise Should I Look For in An Attorney to Represent Me For A Charge Levied Against Me for a TSA Airport Security Issue?

In September, I was stopped by airport security when the body scanner showed a small utility knife blade in my cell phone protective case. I put it there in order to affix my cell phone to a cell phone mounting magnet that I have glued to my car dashboard, so I can see the GPS screen when I’m driving. This was an innocent mistake of forgetfulness, I chose the blade only because it was thin enough to fit, and still be effective. I affixed it a year before I even knew I’d be flying, and forgot about it. I have significant memory problems due to severe chemo therapy I endured in 2010, when I had stage four neck cancer. I am officially disabled, partly due to these memory problems. I had already flown twice, a few days prior and was on my way home, when this happened. I cooperated fully, provided my background as a business and community leader and a candidate for the US House of Rep. in 1992.I am concerned that if I pay the fine I’ll be deemed “guilty” and have limited rights. 

Mr. Lee answers:
I believe that if the TSA was looking to prosecute you, it would likely have done so by this time. That being said, any action would likely be of a criminal nature or border on the criminal and so I imagine that you would probably look for a criminal defense attorney. 

2. Where Can I Find the I-94 Number On The Visa?

Mr. Lee answers:
The I-94 number is not on the visa. It is given to a person upon arrival in the US by Customs and Border Protection. You can access the number along with your entry record by going to https://94.cbp.dhs.gov  if you entered in May 2013 and later in any legal manner other than by land. Prior to that time, physical I-94 cards were given to all legal nonimmigrant entrants to the US with the numbers on the cards. 

3. Selective Service

I am US citizen and came to US on a F-1 visa in January, 2000. When I came I was 25 years told and did not register for selective service as I was on a full-time F-1 Visa. I turned 26 in September, 2000. I was on a Full-time F-1 student in spring, 2000 and changed university and took part-time course work during summer 2000 in another university and again changed to a different university in Fall, 2000 and completed my graduate degree. I was in legal status in F-1 visa for 3 years before changing my status to H-1B. Now I got federal offer and they are asking for evidence to prove why I have not registered for selective service. I have provided copy of my F-1 visa and enrollment dates from universities I attended. In Summer I enrolled only for one month. Wanted to find out if I am in legal compliance with selective service. 

Mr. Lee answers:

You are legally in compliance with selective service law and should be able to obtain verification from the agency that an individual who is in valid nonimmigrant status in the US at the age of 26 is not required to register for selective service. All other individuals including those who are illegal should register.

1. Planning for Next Year’s H-1B Selection in April, Please Advice.

I will need to have an H-1B visa as I recently graduated and have optional practical training (OPT) until July 20, 2019. I am not in a STEM major and will not get extra practical training. I have a Masters in Asian studies and a bachelors in biochemistry. I am interested in working for a US company that does import and selling of textile clothing from Asia. Am I a good candidate for an H-1B from this company? 

Dear reader, 
I do not believe so based upon your degrees and the your general description of the business of the company. An H-1B is a specialized occupation visa under which the position offered by the company must require a degree that you have. Unless there is more, I do not see how a biochemistry or Asian studies degree would be a requirement for any position that this type of company might have. Unless there is something that is more unique about this company, I suggest that you look for another organization with need for the knowledge that you acquired in your schooling.

2. Is It Safe for Me to Go To l-130 Interview As I Have Order of Removal?

I have an order of removal from 2005 and am married to a US citizen and we filed the I-130 petition to prove that the marriage is real and to start the process of my I-212 waiver of removal and I-601A waiver of my 10 year bar for being in the US illegally. We are being scheduled for an I-130 interview at U.S.C.I.S. in December. Should we go or should we not? My lawyer says that the choice is up to us. 

Dear reader, 
Unfortunately lawyers cannot give definitive answers in this situation. Under the Trump administration, there are reports of individuals going to I-130 interviews in your situation and being detained and ultimately deported by Immigration. At the interview, three things can occur – you could have an uneventful interview and you and the spouse go home afterwards, or you could be picked up by ICE and allowed to leave with your wife after processing with an order of supervision, or you could be picked up by ICE and detained while ICE attempts to put you on an airplane back to your home country. You will have to weigh the risk against the idea that the I-130 petition will be denied if you do not attend the interview and you will lose any chance now to regularize your status.

3. How Can I Provide a Medical Certificate of Birth If I Do Not Have One?

I am from China, born in 1980, and I am applying for adjustment of status based upon my marriage to a US citizen. We just received a request for evidence that I provide a medical certificate of birth. How am I to answer that since I do not have a medical certificate of birth? I provided a notarial certificate of birth.

Dear reader, 
U.S.C.I.S. generally goes by the Foreign Affairs Manual of the Department of State which indicates which documents are available and the most reliable from each country. For China, it indicates that the best evidence is a notarial certificate of birth along with a medical certificate of birth. However, it also notes that the medical certificate of birth only became widely available starting in 1996. In addition, many births in China were not done in the hospital, and so even with births after 1996, many people do not have medical certificates of birth. I suggest that you or your legal representative point out that medical certificates of birth were generally not issued at the time that you were born in 1981. If you were not born in a hospital, you can also state that. You can also obtain statements from your parents confirming the reason why you do not have a medical certificate of birth.

4. My I-485 Adjustment Status Application Has Been Pending For Two Years – What Can I Do?

I received my political asylum in 2015 through religion, filed for my adjustment of status one year later through form I-485, got the receipt, took fingerprints, but have heard nothing else for over two years. I and my lawyer have tried to track my case over the past year without success. What can I do?

Dear reader,
I assume that you and your lawyer have gone through numerous conversations with the National Customer Service Center of U.S.C.I.S. and perhaps a number of infopasses at the local immigration office without success. At this point, you can attempt to involve your local congressman or senator to see whether he or she can help to move your case. Failing that, you may consider launching suit against U.S.C.I.S. in federal court. However, please be aware that suing in federal court does not mean that you will win your case. If there are factors in your case that might be negative, a suit may bring about higher scrutiny and ultimately a fast denial of the I-485 application.

 

1. How Does a Student in Haiti Qualify for US Visa?

I am a U.S. citizen and we apply online D160 visa application and my sister went to the interview today and they told her she does not qualify.

Mr. Lee answers:
I will assume that your sister applied for a visitors visa to the US. Such visas are given in the discretion of US consular officers taking into account the circumstances of the applicant including age, job, resources, property and other ties in the home country. Your being a US citizen could be seen as a negative factor on the question of whether your sister has nonimmigrant intent. I suggest that your sister strengthen her application by having more ties to the home country and be prepared to show those ties to the US consular officer the next time that she applies for the US visa.

2. Deportation During Entry into U.S.

My friend from Singapore was coming to visit me and see his American born son and while going thru immigration he was pulled aside, they did a review of his records and found that before he left 8 yrs ago after his divorce from an american citizen he had overstayed his previous visa. He has been back twice during this year already and had no issues and returned according to his visa guidelines. Is this going to be a huge issue going forward?

Mr. Lee answers:
In your summary, you said, “Deportation during entry into US,” and by that, I assume that Customs and Border Protection actually deported him back to Singapore. In that case, he has a five-year bar against returning to the US. If he believes that the judgment was unfair, he can request a review of the decision from the port director of the port of entry. Otherwise if he has very good reason for returning to the US before the five years, he can request advance permission to return on form I-212 after visa interview and denial to the Admissibility Review Office of U.S.C.I.S. if applying for a nonimmigrant visa, or to the Phoenix lockbox of U.S.C.I.S. if applying for an immigrant visa. It is indeed a huge issue returning to the US if an individual has been given an order of removal at the port of entry.

3. Do I Need to File Green Card Application Again for the Same Person?

I was filing for my husband to become resident; we got divorced and stopped the case. We are engaged and I want to file again.  Do I have to start a new case or go back to the old case? The old case was done in 2002.

Mr. Lee answers:
As you stopped the case so long ago, you would have to start all over again to make your husband a resident. The law does not allow you to get two bites at the apple with the same coin.

 

1. I Applied H-1B in April, But Still No Decision Is Made and It Is November – What Can I Do?

I graduated with a Masters degree in computer science from Purdue University in 2017 and was given optional practical training (OPT) until August 2018. In early April, I and my company filed for an H-1B visa for me and I was selected. We received a request for evidence, which we responded to in late July. Since then it has been three months and we have heard nothing. Am I still legal since I hear that the H-1B cap-gap status only lasted until September 30?

Dear reader,
This is unfortunately a common situation that you are encountering as U.S.C.I.S. has not finished adjudicating many of the H-1B petitions that it was given in April. It has further perversely stopped premium processing, saying that the freeze will remain in effect until February. Thus the ability to pay U.S.C.I.S. an additional $1410 to expedite an already delayed application is lost consigning H-1B companies and beneficiaries to a limbo status. Persons having cap-gap status until September 30 (a device wherein U.S.C.I.S. allows those who have OPT past the H-1B filing date in April to remain and work until September 30 if they are selected and their petitions are still pending) are no longer authorized to work after that date until and unless the H-1B petition is approved. Without premium processing, they remain in limbo unless they leave the country or become F-1 students again or have some other viable option. Under U.S.C.I.S. regulations, they are allowed to remain in the US awaiting adjudication of their timely filed petitions. If the petitions are ultimately denied, they should hopefully be considered to still be in a grace period until 60 days after September 30 under the reasoning that cap-gap is part of F-1 status and the ending of F-1 status automatically invokes a 60 day grace period. Hopefully you will receive an adjudication before that time, and that it will be favorable.

2. Is EB-5 for China Still Open? If Not What Are The Alternatives?

I am fairly wealthy in China and looking to emigrate to the United States. I do not have any relatives here, and am mainly interested in immigrating through the EB-5 investor visa. However, I have heard from people lately that it will take a long time. Is this true? If that is so, what are some other options? 

Dear reader, 
Because of the high demand by natives of China in past years for EB-5 investor visas and the limited numbers which are available under the law, U.S.C.I.S.’s Ombudsman has estimated that a person born in China starting a new EB-5 case now would have to wait approximately 14 years to obtain a conditional green card. For that reason, some individuals from China who have started EB-5 cases have recently asked to have their cases stopped and for a return of their money. For individuals from China who either own or are managers or executives of decent sized companies (50-100 or more employees), the acquisition of a company in the US (15-25 or more employees) could provide a path to an L-1 intracompany transferee visa and ultimately a transfer to the green card through the EB-1C multinational executive/manager route which would take approximately 2 years at present. In addition, a manager or executive in China who wishes to become a manager or executive in a US company which is unrelated to the individual’s present employer may be able to have the US company sponsor him or her for the green card through a PERM labor certification under either the EB-3 category for those with bachelor’s degrees or two years of required working experience, or under the EB-2 category for those with advanced degrees or who have exceptional ability. Immigrating under EB-2 or EB-3 would take approximately 3-5 years.

3. U. S. Citizen Residing in Hong Kong Wants to Immigrate Mother – Any Problems?

I am a U. S. citizen through my wife 10 years ago, and we both went to Hong Kong 4 years ago to live. We are both comfortable there with jobs and children and no plans to return to America to live in the near future. The problem is that my mother wants to join my older brother in the U. S. as our father recently passed away, and he has only been a permanent resident of the country for 2 years. He says that he needs to be a citizen to apply for our mother. I would like to help out, but just wonder what my obligations would be.

Dear reader,
You are right to be concerned. Under the immigration laws, you will have to provide an I-864 affidavit of support for your mother to guarantee that she does not become a public burden. Because your income is not US-based, there may be difficulty with the U. S. Consulate accepting your support affidavit alone. You may have to have a financial joint sponsor file a separate I-864 affidavit of support – perhaps your brother. However, that does not end the matter as a valid I-864 requires that the petitioner demonstrate that he or she has or will have a domicile in the U. S. You will have the burden to prove by a preponderance of the evidence that you will establish a domicile in the U. S. on or before the date of your mother’s admission under an immigrant visa. The Foreign Affairs Manual which is used as instruction by U. S. consuls gives examples of possible evidence such as opening a U. S. bank account; transferring funds to the U. S.; making investments in the U. S.; seeking employment in the U. S.; voting in a U. S. election, etc. Without such a showing on your part, there could be a problem with your mother’s ability to become an immigrant. I also note that the window of time to sponsor your mother for U. S. immigration may be closing as the Trump administration wishes to do away with the parent category altogether.