1. Dissatisfied with the anti-epidemic policies in China is not consistent with political asylum
A reader asks:
I am a medical worker in China. During the epidemic, I expressed my dissatisfaction with certain anti-epidemic policies. After posting them in a WeChat group, I was criticized by law enforcement agencies. The hospital leader also admonished me, told me not to talk, just follow through the rules. Now, I come to the United States and want to apply for political asylum. Are these accusations and reprimands considered political persecution? Can my asylum case be approved?
Mr. Lee answers,
I suspect that a claim based upon dissatisfaction with anti-epidemic policies as you have expressed in your fact situation might have a problem being approved under US asylum law. The law is based upon past persecution or well-founded fear of future persecution. For a claim of past persecution, the events that you have related – criticism by law enforcement agencies and being admonished by the hospital leader – would likely not rise to the level of persecution necessary for an asylum claim to be approved. For a claim of a well-founded fear of persecution, you would have to demonstrate that the authorities are still interested in you and that you would face persecution upon return to China. You will also have to convince US immigration authorities or immigration court that your opposition to government policy was (past persecution) or is (future persecution) on account of race, religion, membership in a social group, political opinion, or nationality.
2. Employers can sponsor PERMs for remote positions
A reader asks:
Is there a fully remote for PERM and I-140? I recently got an offer. The company is in another state. I live in California. The company does not have an office in California, but it allows me to work from home. If I work from home fully remote, can I apply for I-140 PERM? Are there any additional risks? what should I be aware of?
Mr. Lee answers,
An employer can decide to sponsor a PERM labor certification application for a position that will be wholly remote, but would have to comply with additional requirements of the Department of Labor including an expansion of advertising for US workers on a nationwide basis as the position could be fulfilled by a worker in any location in the country. The company would generally use its headquarter location for purposes of the application, and obtain a prevailing wage determination in that metropolitan area.
3. It is difficult to obtain NIW, if papers are rarely cited
A reader asks:
I am a doctor of liberal arts and have been graduated for four years. I joined a consulting company after graduation, and now I am doing research-related work in a big factory, with very few papers and only 2 citations. I have several conference papers, and I want to try to apply for NIW, but several law firms have rejected them. I don’t know how to prove the nature of the work and the national interest related to the impact. Should I give up?
Mr. Lee answers:
An NIW case is generally very fact specific, and knowledgeable law firms will usually go over your situation and accomplishments before rendering an opinion that your case would not be approved. I note that USCIS is generally looking for pioneer type research in peer-reviewed journals which has been well cited. Having a few papers with only two citations is probably not very persuasive. If possible, a better approach might be contacting a US company or institution in your field and having it sponsor you through a PERM labor certification for permanent residence.
4. Immigrant Visa Denied But I-140 is Still Valid
A reader asks:
I am in China, and I want to apply for I-140 or EB1-A, but I am still a CCP party member (without a job), and now I want to know the following situation: 1. If I quit the party for less than two years when I went to the Guangzhou embassy or consulate for an interview , how likely is it to be rejected after two years or less than five years? 2. If rejected, will the approved I-140 and the accompanying priority date (PD) be retained? 3. Can I use this PD to submit another interview application again (for example, five years after quitting the CCP)?
Dear reader,
As you are aware, meaningful membership in the Communist Party of China imposes a five year bar on entry to the US for purposes of permanent immigration (not nonimmigrant visas) after leaving the Party. Appearing for an interview at the consulate in Guangzhou after leaving the party for two years will result in a denial if the association was meaningful. Denial of the immigrant visa does not automatically invalidate the approved I-140 petition. However, inability to rebut the ground of inadmissibility within a year may serve to terminate the entire case. If a case has been terminated by the Department of State, the priority date is no longer available for use.
5. Temporarily return to China to work remotely will not Hinder I-485
A reader asks:
I am currently in the OPT (non-STEM) period. I submitted the EB-1 application in January of last year, and submitted the I-485 in April last year. I am waiting for the interview. The interview time is unknown. My interview was ready to be scheduled in late September last year, and I have already obtained the EAD and AP of AOS. Our company has an office in China, and some colleagues went to work remotely in their home country for a few weeks. My boss also said that it was OK, and not to worry about layoffs. It seems that the interview will not be scheduled for a while. If I receive an interview notice within one month of returning to China, I should have time to return to the United States. I haven’t been back to China for almost 3 years, and I miss my family and friends very much. If I return to China to work remotely for a month and then return to the United States, will there be any problems?
Dear reader,
As you already have an advance parole and filed the I-485 application last year, I do not see a problem with your going home to work remotely for the company for one month before returning to the States. The time that you are planning to stay in China, one month, is conservative, and the purpose of working remotely for the company while overseas provides a good reason in the unlikely event that you are questioned about your purpose in having returned to China for the trip.
6. Is DS-2019 Important for My I-485 Application?
A reader asks:
I will submit I-485 soon, but I could not find the DS-2019 I had ten years ago. Ten years ago, I entered the U.S. as a J-1. After staying in the United States for 5 months, I returned to China for two years, so I should not need a J-1 waiver. More than 2 years later, I entered the U.S. again with F-1 status. I am currently F-1 STEM-OPT. Now I am following the main applicant to file my I-485, but I could not find the DS2019 form. I contacted the school I attended before, but no one was at work. Will there be a critical issue if I do not attach the DS-2019 with my I-485 form? How did others solve the problem?
Mr. Lee answers,
Although it would be better to have the DS-2019 exchange visitor form as part of the I-485 application, it should be adjudged less critical where you are able to prove that you returned to the home country for two years following your J-1 stay. (For many countries, coming to the US usually imposes a two-year home residence requirement before the individual can apply for permanent residence, H or L visas). I assume that you can present the passport containing the J visa and proof of your U.S entry and exit date along with proof that you served out the two-year home residency requirement in your home country.