World Journal Weekly Q & A - January 27, 2008

Q & A 1. 2.


Q&A 1.

Should I be Sponsored by the Dry Cleaners or Finance Company for My H-1B and What Should I do About My Gap in Practical Training Before October 1st?

Dear Mr. Lee,

I received my master's in business administration degree from Columbia University last year and my optional practical training is good until July 5, 2008. I have two employers that are interested in sponsoring me for H-1B status. One is a dry cleaners with 20 employees which is offering me a manager's position and the other a commodities trading company of 80 employees on Wall Street offering me the position of financial analyst. Which one should I take? I would like to go with the dry cleaners as I get along better with the boss there and the pay will be better. Also what should I do because I know that the H-1B will only become effective on October 1, 2008, and my practical training is only until July 5, 2008?

Dear reader:

Given your choices, I believe that the better option is for you take the position on Wall Street if the company is willing to sponsor you for H-1B status. The company appears to be a better fit for your degree than the dry cleaners. The position of a manager in a dry cleaners may not be recognized as sufficient for H-1B status which requires employment in a specialized occupation. With regard to the gap between the end of the practical training and the beginning of H-1B status, you have a choice of either leaving the United States in the interim, or changing over to someone other nonimmigrant status such as continuation of your F-1 student status. There is also the possibility that the Department of Homeland Security will allow persons in your situation to remain here during that time without working, but that is a decision to be made by DHS every year. In recent years, DHS has not taken favorable action. I also take the opportunity to remind you that the H-1B cap for advanced U.S. degree holders is expected to run out very quickly after April 1st and so the sooner that your application is submitted on or after April 1st, the better.

Q&A 2.

Can My Son Qualify for the CSPA?

Dear Mr. Lee,

My husband was sponsored by his restaurant as a cook and his I-140 petition was approved in September 1997. He did not get his green card until May 2003. As soon as he was approved in 2003, he filed the I-824 follow to join petitions for me and my son. My son was born on April 25, 1986. The I-824 was approved in March 2004, but we did not hear anything for a long time. Finally we understood from the American consulate that the wrong priority date had been given on the I-824. Instead of January 1997, the priority date was put down as May 2003 when my husband filed the I-824. Because of this mistake, our cases were not being processed at the consulate. My husband and his lawyer had to have this corrected with Immigration and have all the papers sent back to the American consulate. By that time, it was already July 2007 when I had an interview for the green card. The consul said that it was too late for my son as he had already turned the age of 21. Is that true? What can we do? Can we sue the government for the mistake of the wrong priority date that delayed my son's case?

Dear reader:

Your predicament unfortunately reflects two problems in U.S.C.I.S.'s current interpretation of the CSPA legislation which generally allows children over the age of 21 to immigrate with their parents if they were still under 21 at the time that the priority date became available. The problem has to do with the interpretation that the alien (your son in this case) must have taken affirmative steps to immigrate within one year of petition approval. In this case, the petition is the I-140 petition which was approved in 1997. The first difficulty is that the CSPA became law in August 2002. This was long after the petition was approved. So even if your husband had known about the legislation and its consequences and filed the I-824 in September 2002, his petition would still be considered untimely under the CSPA. The second difficulty is that U.S.C.I.S. offices did not have a uniform policy concerning the acceptance of I-824s and many immigration officers rejected I-824s filed before I-485s of the principals were approved in the belief that such I-824s were improperly filed. Therefore even if your husband had filed an I-824 in September 1997, he ran the risk that it would be denied by legacy INS.

In light of these known problems, U.S.C.I.S. should at the very least interpret the CSPA legislation to give a year's grace period to file the I-824 and preserve CSPA eligibility for those cases in which the I-140 petitions were approved prior to August 6, 2002, the effective date of the CSPA legislation.

However, that observation probably does not help your case at this time. If your husband has not already done so, he should immediately file an I-130 petition on your son's behalf. He can request the original priority date of 1997 which is provided for in the CSPA legislation for children who have aged out and cannot immigrate with their parents although there is resistance by U.S.C.I.S. to accord such date at this time. In addition, your husband should review his entire file to see whether he took any other affirmative steps toward your son's immigration in the one-year period following the I-140 approval. For example, if he has a record of correspondence with his attorney at the time expressing concern for filing paperwork for his family members and the attorney discouraged such action at the time, he might be able to present this as evidence that he did take affirmative steps.

On the question of whether you will be able to sue the government for the mistaken priority date and win relief for your son in that manner, caselaw has shown that you would not be able to prevail unless you were able to demonstrate affirmative misconduct by the government. That basically means that the government did not just simply make a mistake, but actually intended to harm your son with its actions.

I hope that this answer will clarify and possibly help you and some of our other readers as U.S.C.I.S.'s current interpretation of the CSPA on the question of preservation of benefits is highly questionable.

 

Copyright © 2003-2008 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.