Please find below a list of frequently asked questions. Although a majority of these questions have come from real clients of Spar & Bernstein, we have also included some questions from other resources for your benefit. Please note that the answers to these are to be used for guidelines purposes only as the questions here are specfic to that particular individuals case, and may not necessarily be the best advice for your situation.
AOS Pending, Should H-1 be Renewed
Applying for green card while on a B-1 or B-2 visa
B visa while GC pending or similar situation
Battered Spouse without Inspection
Brother filing for sister. When to file for work permit?
Calculating child’s age under the Child Status Protection Act
Can a family member or a friend sign an Affidavit of Support?
Can a US Citizen file for her mother who entered the US with fake documents?
Can B visa holder convert to F or other status?
Can H-1 be extended based upon family-based green card?
Can H-4/F-2 holders perform volunteer work?
Can I get a visitor's visa while waiting for my immigrant visa?
Can USCIS Revoke a Green Card Granted by Error?
Cancellation of Removal for Unlawful Permanent Residents
Children over 21 and Child Status Protection Act
Citizenship Requirements and Selective Service Registration
Consequences of not using an H-1 visa
Converting from EAD back to H-1 - Updated 6 April 2009
Criminal Conviction and Immigration Consequences
Death of the petitioner and who can substitute him or her
Deportable, but Not Inadmissible Offense
Divers Licenses, while H-1 extension pending
Divorcing and filing for Naturalization
Divorcing and removing the conditions on permanent residence
Do advanced degrees help in marriage-based green card?
Does J-1 HRR Prohibit Issuance of F-1?
Effect of Bankruptcy on immigration
Employer not paying, may I transfer H-1?
Employer’s questions on H-1 compliance
Employer’s responsibility in H-1 process
Employers and Employees - H-1 or EAD?
Entering on/applying for nonimmigrant visa while green card is pending
Fake Green Card & Marriage to a US Citizen
Filing for spouse as US Citizen vs. Green card holder
Filing for unmarried child over 21 as US Citizen vs. Green Card Holder
From Tourist Visa to Student Visa
Fulfilling J-1 HRR in installments - not possible
GC future job; H-1 ext. revocation upon 140 denial, etc
Getting public assistance and filing for green card
Getting public assistance and filing for K-1 Fiancee Visa
Green Card for Battered Spouses and their Children
Green Card for talented sportsmen and Women
Green Card holder traveling abroad for a long time
H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
H-1 converting to H-4 and then (maybe) back again
H-1 Count 44,000 - You can still file
H-1 Extension based upon spouse's 140; Child born in USA
H-1 Holder applying for H-4 visa
H-1 How to revert to an Old Employer
H-1 Quota - What is acceptable evidence for a degree?
H-1 Quota Count still at 45,000 as of 4 May 2009
H-1 Transfer - what action is needed for H-4
H-1 Visa Denial and Investigation
H-1 Visa Stamping - Is it difficult?
H-1 where there is no license in hand
How does the Stimulus Bill affect H-1b, L-1 and Green Cards
How much income is needed for Affidavit of Support?
How to get back to H-1 status?
Husband and mother are US Citizens. Who’s petition is faster?
I am afraid that they will stop filing for me if I ask for a week off for a vacation
I-485 AOS Pending, Employer's Bankruptcy
If I-140 gets revoked/denied does my H-1 extension get canceled?
Important questions on H-1, AP and Travel
Interview Scheduled in Home Country, While Beneficiary is in the US
Inviting parents to provide care during pregnancy or postnatal period
Is salary reduction possible/legal?
K-1 Fiancee Visa and Fiancee’s Child
Marrying a non-resident immediately after petition was approved
Marrying a US Citizen and filing for children under 21
Marrying a US Citizen and filing for daughter and her child
Naturalization & Selective Service Registration
New H-1 employee returning - rights and issues
Note! Employer subject to H-1 quota, but the job may not be
Obtaining H-1 Extension beyond 6 years
Online dating and fiancée visa
Ordered Deported Without Notice
Overstaying on a J Visa and marrying a US Citizen
Proposed Legislation to Reform H-1B Visa Program
Removal of Conditions and Joint Tax Return
Starting business while in AOS/I-485/H-1/H-4
Switching Jobs While Waiting for Adjustment of Status
Traveling Abroad for More than 6 Months
Traveling on Advance Parole before Adjustment of Status
Turning 21 - do I have to convert to F-1 from H-4?
USCIS is continuing to accept H-1 filings
Visa after B-1 to F-1 conversion
Visitor’s Visa and Relatives in the US
What happens when an employer is under criminal investigation/indictment?
What to do if an I-140 gets rejected?
When does CIS investigate fraud?
When Fiancee Visa is Denied for Fraud
When is an H visa stamping required?
When to apply for L-2 extension
Will an approved petition protect us from detention and deportation?
Question
My aunt and her daughter (my cousin) both overextended their stay in the United States. My cousin is almost 13 years old, and I would like to know how I can adopt her so that she can get her permanent residency.
Answer
Your cousin is not an orphan. Your aunt is still alive and has not abandoned her. In order to adopt your cousin, as a non-orphan, and get your cousin a green card, you have to prove three things: (1) the adoption occurred before your cousin’s 16th birthday; (2) you had legal custody of your cousin for two years; and (3) you lived under the same roof with your cousin for two years. Adoptions can take over one year to complete, even if the natural parents consent. Also, note that when you take physical custody of your child, New York law requires that guardianship papers be filed within a matter of days. I would suggest seeing an attorney who specializes in adoption law to obtain further details regarding an adoption.
Question
My niece is in Jamaica, and I want to adopt her and bring to America. She is now 17 years old. What steps do I need to take to adopt her and bring her here?
Answer
In order to adopt and bring your niece and have her be considered your child under the immigration laws, you must have adopted her before she turned 16. You cannot adopt her now and bring her to the United States as your child. Please seek advice of one of our attorneys as we may be able to discuss other possibilities for your niece’s immigration into the United States.
Question
My fiance and I have been together for 5 years. When our son was born 2 years ago, we decided that I would stay home with him. My fiance now wants to get married. He came to the US 10 years ago on a visitor’s visa and never went back to Guyana. I am US citizen. Of course, I want to sponsor him, but we are worried about the affidavit of support. I heard that you have to make money in order to sponsor somebody. Since I have been home, I have made no money. My fiance is the one who supports us. Is there anything we can do?
Answer
As a United States citizen, you can sponsor your husband since he entered legally on a visa. As part of that application, you will have to submit an affidavit of support. As you have stated that you are not making money, you can get a co-sponsor to submit an affidavit of support. A co-sponsor is someone who earns enough money, according to the federal poverty guidelines and who is a lawful permanent or United States citizen. The co-sponsor can live anywhere in the United States. As part of the affidavit of support, the co-sponsor must submit his latest federal tax returns and W2s along with a job letter and pay stubs.
Question
Should H-1 be renewed while the AOS is pending?
Answer
Bottom-line - I think H-1 should be renewed. A few months ago, we used to feel strongly that AOS applicants should keep their H-1 active for several reasons.
EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a Infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.
Question
I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitor’s visa. Can I apply for their green card?
Or
My parent came to US with B1 visa and they are still here. But the visa was expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?
Answer
There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.
There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent and after a few days of entry change their mind, that is perfectly appropriate and legal.
Question
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time.
I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.
Answer
This is up to the discretion of the consulate and then again up to CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.
Question
I entered through Canada without a visa in 1993. Ten years later in 2003, I married a US citizen. We have two kids together. However, he physically abuses me. I have had to call the cops. He has not been able to file for me because I entered illegally. I have heard that I can file on my own, but I don’t think I still can’t get my green card because I entered illegally. Can you help me? What do I do?
Answer
In filing as a battered spouse, you have to show that you entered into a good faith marriage, which you can do because you have two kids together. You must also show that you have been subject to physical battery. You can do this by showing the police records. However, it is not a requirement that you entered legally in order to be approved as a battered spouse. It sounds like you can file a self-petition as battered spouse that would be approved. You should gather your documents and bring it to one of our knowledgeable attorneys to discuss your case.
Question
I currently reside in NYC. I am aware that my brother who is a US citizen can file a petition on my behalf. My question is whether an application for work authorization can also be filed?
Answer
Well, I’m glad your brother is filing for you. Unfortunately, you cannot obtain a work permit until your visa petition is approved, your date is reached on the visa waiting list and you are eligible to adjust your status under section 245(i) of the Immigration and Nationality Act. Should your brother file for you now, it will be approximately 10 years before your date is reached on the visa waiting list. Whether you are eligible for section 245(i) is another story. But even if you are, it is still 10 years.
Question
Please explain if there is any new law...or will the Child Status Protection Act help my sister. Her preference category is F-4. Her priority date is March 1993. Will her two sons who are now over 21 be granted visas to travel with her to the USA? She received a letter stating that they are no longer eligible to be a derivative beneficiary of the petition but under the Child Status Protection Act (CSPA) which applies to a narrow range of cases, it may allow them to remain eligible under this petition and only at the time of the parents visa interview, the consular officer will determine whether or not CSPA is applicable in the present situation. Thanks for any helpful information you can provide.
Answer
You did not give me enough information to determine whether the children qualify for green cards under the Child Status Protection Act. The general rule is once a child turns 21 years old, they are no longer eligible to obtain a green card as a derivative beneficiary on a parent’s visa petition. However, under the Child Status Protection Act, you get to add the time period in which the visa petition took to get approved to the child’s 21st birthday to get the final age in which the child is still allowed to be included in the case. For example, you already told us that you began filing for you sister in March 2003. Let’s assume that it took 24 months to get your visa petition approved. You would then add 24 months to the child’s birthday and under the Child Status Protection Act, the child would have until his 23rd birthday to get a green card as a derivative beneficiary. Remember, just add together 21 and the time that the visa petition got approved and you come up with the child’s age for purposes of the Child Status Protection Act.
Question
Hello Brad! My husband and I enjoy your honesty and positive attitude very much... Anyway... I am an American who spends 4 months per year here in Jamaica with my husband. We've been married for 4½ years. The problem is, since I am only in the US for a portion of the year, and when I am there I am waitressing, I don't earn enough to qualify as someone who can support my husband, according to the forms I've read from the immigration office. Do I have to get a family member, or can it be a friend, to sign an affidavit of support for us? Any advice would be much appreciated... Do they take into consideration the fact that I spend a large portion of my earnings traveling here to be with my husband? Thank you so very much.
Answer
Thanks for the compliments. You can have a friend sign an affidavit of support. It does not have to be a family member. And, no, they do not take into consideration that you spend a large part of your earnings flying to Jamaica.
Question
I have been here for 8 years since I entered by false documents under another person’s name. I never filed for anything before. My daughter, who is now 22, filed for her citizenship on February 2004. When her citizenship comes through, will she be able to file for me although I am in the county illegally or will I have to go back to Jamaica? I have no other family here besides my daughter.
Answer
I only have bad news! In order for you to adjust your status here in the United States you have to prove that you were inspected and admitted at the border or you had something filed (either a visa petition or labor certification) before April 30, 2001. Even though you never filed anything before to obtain your green card, you can still adjust your status as you were inspected, albeit, in another name. Because of this misrepresentation, you will need to file a waiver at the time of your interview to overcome what will surely be a denial of your adjustment. The problem is that you can only obtain a waiver through extreme hardship to your spouse or parent. As you have neither here in the United States, I would not recommend you filing an adjustment through your daughter at this time as your case will surely fail. If you return to Jamaica you will never return to the United States. Besides having a ten year bar to re-entry because you were illegally in the United States for more than one year, you have a permanent bar to reentry due to your prior misrepresentation which as I have already said, there is no waiver available.
Question
I have just entered USA on B1 /B2 visa on February 21 and now I am planning to stay here in USA. I am planning to carry on my further studies in Bridgeport university, my arrival was initially for is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands. What do you advise?
Answer
While it is permissible to change from one status to another from within U.S., it may not always be advisable.
Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. Our recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.
Question
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?
Answer
There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.
Question
I am on H-1-B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H-1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?
Answer
You cannot. This extension is available only to employment-based applicants.
Question
The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.
Answer
Probably yes. The provisions of law noted below are vague and unclear. But it appears as long as you do not receive any money or other remuneration, you should not be considered to be violating any laws. If you do receive any “in kind” benefits, things get very tricky. Such benefits may be permitted if the H-4/F-2 holder did not ask for the benefits as a condition for volunteering, nor were they offered in exchange for the volunteer work, and if the volunteer would have performed the services regardless of whether he or she were to receive the in-kind benefits. Subsection (f) below defines “employee” as someone who works for an “employer” for “wages or other remuneration.
Question
My husband lives as a green card holder in the US and I live in Jamaica. He filed for my green card in August 2000. He comes to Jamaica from time to time to see me, but I want to go to the United States and live with him. My friend told me that since I am intending to live in the United States, chances are that I would not be able to get a visitor’s visa. Is there any way I can enter the United States legally?
Answer
Your friend is correct that you would probably not be able to get a visitor’s visa. In order to do so, you would need to show your intent to only visit the United States, and not live here permanently. Because you have a legal permanent resident husband, and because he has already filed for you, I doubt that you would get a visitor’s visa issued to you as you have already shown your intent to live in the United States and not simply visit and return home. What I don’t understand is why you don’t have your green card already. Your date on the visa waiting list under the F2-A category is current. According to the May 2005 visa bulletin, legal permanent residents who filed for their spouses in 2002 are now eligible for their green cards. If your husband followed the correct procedure with the National Visa Center, and if, in fact, your visa petition is approved with an August 2000 priority date, then you should have already received a visa appointment to pick up your immigrant visa at the US Embassy. As you have been eligible for your permanent residence for some time, forget about a visitor’s visa and contact your husband or your government representative to find out what caused the delay in your green card application.
Question
I am a lawful permanent resident and obtained my status through the 1986 amnesty. Although I have my green card, the Border Patrol would constantly stop me when I was traveling back and forth to Jamaica. The Border Patrol harassed me about my 1980 conviction for drug possession. Every time I would go through, they would tell me that the Immigration wrongfully issued my green card and threatened to put me in deportation. I kept telling them that I told Immigration about my criminal record when I applied for amnesty, but they kept saying my green card could be taken away from me. I stopped traveling outside the US. This was not a great issue in my life because I was always able to renew my driver’s license, which was fine.
Now, I haven’t been able to renew my license because I need my green card in order to meet the points needed at the NJ Motor Vehicle Commission. I don’t want to submit an application to the Immigration Service to renew my green card because I don’t want to be put in deportation. My whole life is here… my wife and kids, my home, my business. What would my family and I do if I were deported? I need my driver’s license, but I don’t want to lose my family and life in the US. Please help!
Answer
My first piece of advice to you is that you need to meet with one of our attorneys immediately. You should get a copy of your immigration records to see what information was disclosed on your amnesty application. There appears to be good news for you. The Third Circuit Court of Appeals, the Circuit Court with jurisdiction over your state of residence, New Jersey, came down with a decision that may be helpful in your case. In Garcia v. Attorney General of the United States (3d Cir. Jan. 14, 2009), the Court held that “a five-year limitation applies to both rescission and deportation actions taken to invalidate an adjustment that was erroneously granted to an ineligible alien.” Because it has been more than five (5) years since you got your green card, as long as there was no fraud or deceit committed, and USCIS (INS) erroneously gave you your green card, they cannot now take it away from you. USCIS (INS) must have taken rescission actions within five (5) years of granting your lawful permanent resident status. When you see us, you may also want to discuss filing for US citizenship.
Question
In October 2000, I entered the US on a K-1 fiancee visa, but not too long after my entry, the relationship with my fiancee fell apart, and we never married. Shortly after we broke up, I met a wonderful man who was also a United States citizen. We fell in love and got married. In fact, he sponsored me in March 2001. We were scheduled for an interview and I later received a decision denying my application for a green card because I was not eligible for adjustment of status because I entered on K-1 visa and did not marry the US citizen fiancee who sponsored me. It did not matter that I filed before the deadline of the LIFE Act, April 30, 2001. Our son was born two years ago. He was recently diagnosed with Autism. Can my son sponsor me or is there any basis for me to get a green card based on his illness?
Answer
Unfortunately, there are very specific laws about entering on a K-1 fiance visa. Once a person enters on that visa, he or she must marry his or her fiance. If not, that person cannot adjust to lawful permanent residence. In your case, you may be eligible for cancellation of removal for unlawful permanent residents, should you be placed into removal proceedings. However, in order to be eligible, you must be present in the United States for a period of 10 years, show that you are a person of good moral character and that there is an extreme and unusual hardship to a US citizen or lawful permanent resident spouse or child. Based on the fact that your child is autistic, you may be able to show an extreme and unusual hardship to your child. However, you will not become eligible until after October 2010. You should seek the counsel of one of our experienced immigration attorneys.
Question
I came to the US as part of an entertainment group. After I entered the US, my US citizen father filed a visa petition for me when I was 20 years old. He did not realize that I also needed to file an application for a green card separately. I am now 22 years old. We just realized that we had to this. Am I even eligible to file for a green card when priority date becomes current?
Answer
Great news! You are still considered an immediate relative of a US citizen. Under the Child Status Protection Act, the appropriate date to determine whether you remain an immediate relative is the date when your father filed the visa petition on your behalf. In this case, it was when you were 20 years old. As long as you have not married, you can go ahead and file your application for adjustment of status (green card) now. You do not have to wait for the priority date to become current because you do not fall into any preference category. Congratulations and good luck!
Question
My daughter is going to be 21 soon and I am afraid that she will age-out before she can be seen at the Embassy. What can I do to speed up the process? Thank you.
Answer
Without knowing where you and your daughter are in the process, it is difficult to answer this question. Protection may be available for your daughter as provided by the Child Status Protection Act, which will either keep her artificially under 21 until she is seen or extend the period of her classification as a child. If Child Status Protection Act does not apply for whatever reason and you are still in processing with the immigration service yourself, you may be able to file for a request to expedite your pending petition. If you are already approved and your daughter is only waiting for an interview, you must be diligent in collecting the necessary documents so that you can send them out immediately.
Question
I want to become a United States citizen. I have been here since I was 20 and I am now 32. I filed once for naturalization but was turned down because I did not register for selective service before I turned 26 years old. Will I ever be eligible to become a United States citizen?
Answer
In order to become a United States citizen, among other things, you must meet the good moral character requirements for the five (5) years preceding the application. Failing to knowingly and willfully register for selective service between 18 and 26 years old allows the Immigration Service to conclude that you lack the good moral character. However, since you are over 31, your failure to register for selective service can no longer be used against you because it is now outside the five (5) year statutory period. That can no longer be a basis to deny your application for naturalization.
Question
I am a doctor from Pakistan and I had got a residency in internal medicine last year. I got my H1-B visa stamped but couldn’t go to USA because of some reasons. So the hospital got my H1-B visa legally cancelled. This year again I have got residency in another hospital and they are ready to sponsor my H1-B visa. I wanted to ask you if there be any problem from USCIS in processing my petition this time as my visa got cancelled last year. As I have not told this hospital about my visa cancellation last year will that be a problem. Will my petition be processed in a routine way this time too by USCIS?
Answer
It looks like your visa was not canceled; you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.
Here is a question that we receive quite often from our existing clients, which we think is relevant for a lot of people.
Question
I am currently on H-1-B status valid till may-2011 and have a valid EAD card; My I-485 is pending for over 180 days. My company has cut my position and may revoke my H-1-B. If I transfer my H-1-B to another company and then work on EAD. Will my H-1-B remain in the dormant status?
Answer
Yes.
Question
In 1981, I was convicted of felony possession of marijuana. I have a green card. I want to travel to Trinidad for my grandmother’s funeral, but I am afraid that they won’t let me back in. Can I travel?
Answer
Unfortunately, your 1981 conviction for possession of marijuana makes you deportable under the immigration laws of the United States. If you were to travel outside the United States, it is more than likely that when you return you will be placed into removal (deportation) proceedings. You may even be detained until you can see an immigration judge, which could take 10 days or maybe even 2 weeks. By traveling outside the United States, you are in essence alerting the Immigration Service that you have a conviction. Fortunately, you are eligible for relief from removal. If placed into removal proceedings, you may file for Section 212(c) waiver. With this waiver, you will have to show that your positive equities far outweigh any negative equities. Positive equities include but are not limited to duration of status in this country, your familial ties in the US, your history of employment. Negative equities are your criminal convictions and any immigration violations. Once the evidence is presented before the Immigration Judge, he or he/she will make a determination on whether your positive equities outweigh your negative equities.
Question
We have a little brother (14 yrs old) in Haiti whom our father (non-citizen) had filed for in October 2002. We already have the approval for him, but unfortunately, our father passed away last year. We would like to know what could we do in that situation: should we let the immigration know that our father died or should we let it slide? Can our mother (non-citizen) take over the case? In case she is not eligible can one of us (none are citizens) take over?
Answer
The general rule is that if the petitioner dies, the visa petition will be automatically canceled. However, you can substitute in a legal close family member to complete the case, if you can prove hardship to the beneficiary (in this case, your brother). You or your mother can complete the case if either of you are residents. You must however petition the Immigration Service to reinstate the visa petition. Whoever can provide the better affidavit of support is the proper person to substitute to complete the case for your deceased father.
Question
My brother filed a visa petition for me in October 2000. I am twenty-eight years old. My priority date is not current. My petition was approved a couple years ago, but last year, my brother passed away. I don’t know if I can still get my green card based on his petition. What do I do?
Answer
I’m sorry to hear that your brother passed away. Generally, the death of the petitioner, in this case, your brother, automatically revokes the visa petition. However, if the visa petition was approved before your brother’s death, under the Family Sponsor Immigration Act, you can request that USCIS reinstate the visa petition based upon humanitarian grounds as long as you have a substitute sponsor.
An individual can qualify as a substitute sponsor if he or she is the spouse, parent, mother-in-law, father-in-law, brother, sister, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian of the beneficiary. The substitute sponsor must submit an affidavit of support on behalf of the beneficiary.
Question
I entered the United States in 1994 on a tourist visa. The same month I got here, my friends and I were driving on the Belt Parkway in Brooklyn and got pulled over by the cops for speeding. I was in the back seat. When the cop looked into the car, he saw a handgun on the floor of the front seat. He called more of his cop friends over and we were all arrested for having that one gun. Believe me that gun was not mine. I didn’t know anything about it. Well I met with the Legal Aid attorney who told me to plead guilty and I would not have to go to jail. Being new to the country, I did not know any better, and I pled guilty. I never got in trouble with the law again. Now I am married to a US citizen, and my wife is pregnant with twins. I’m scared to have her file for me. I don’t want to take the chance of getting deported and not being able to live with my wife and my yet unborn children. My wife says I’m crazy to be scared. What do you think?
Answer
It is understandable why you would be scared to file your adjustment of status application; however, in this family dispute, I have to side with your wife. As strange as this may sound, gun possession is a deportable offense but is not an inadmissible offense. What this means is that Immigration can not prevent you from obtaining a green card because you have a simple gun possession charge, but can deport you once you are a green card holder if you get the same charge. So, since you don’t have your green card yet, you can adjust your status without a problem. Go get your green card now. Once the twins come you won’t have time.
Question
My father sponsored me about eight years ago. I finally got everything straightened out and got my immigrant visa at the US Embassy. I entered the US as a lawful permanent resident a few months ago at the age of thirty-five. I am not married and entered as the unmarried son of my father. Long before I entered the US, my baby’s mother took both my kids with her to the US. They entered the US illegally. In fact, I am not sure how they did it. I think they may have crossed the border at Canada. My kids have been here for more than nine years. My kids are now twelve and fourteen years old. I’m concerned because my fourteen year old daughter will be entering high school this September, and it won’t be long before she goes to college. I would like for her papers to be straightened out before then. I was wondering whether I should file for their green cards or whether they could benefit from my father’s petition for me.
Answer
You fall under the first category of the family-sponsored preferences, unmarried children of US citizens. That category permits derivatives to accompany or follow-to-join the principal beneficiary, which would be you. A child under the age of twenty-one is considered a derivative beneficiary. Accordingly, your kids, twelve and fourteen years old, are considered derivative beneficiaries. They can file for adjustment of status here in the US. You will have to show that you have your green card and your father will have to submit affidavits of support on behalf of the children. You mentioned that your children entered the US more than nine years ago which would be sometime in 2000. You will have to submit proof that your children were physically present in US on December 21, 2000 and your father’s petition was filed before the April 30, 2001, the sunset of the LIFE Act.
Question
I received my green card as the spouse of a US citizen, but we were married less than one year and so I received a conditional green card. Even before I got my green card, our marriage was falling apart. Within a few months of receiving my green card I decided to leave him. After the divorce was finalized, I filed for my permanent green card and just received it. I’m wondering when I can file for citizenship.
Answer
The Violence Against Women Act allows the victim of domestic violence to file for naturalization within 3 years of admission even though they are no longer married to a US Citizen. A memorandum from the Department of Homeland Security states that persons who received their permanent residency status after filing an I-751 under a waiver of the joint filing requirements qualify for the 3-year period as well. However, before we can say that you are only subject to the 3-year wait, we need to examine your documents more carefully.
Question
I got married in July, 2000, to an American citizen and we have a son who was born on March 31, 2002. I am awaiting my green card in the mail, but I need to file for a divorce. I believe that the green card that I will get is conditional and in two years I will receive the permanent green card. I am afraid to be "the one" to move out as I know that there are strong repercussions for that. I believe that he would say that I was the one that walked out of the marriage and seek alimony payment since he is not working and I make more money than he does. I would like your advice as to when I can file for the divorce. I have read on Link Up Media's website that the conditional status can be removed, if I can prove that I entered the marriage loyally or faithfully or the spouse is abusive. He has mentally abused me and used it against me. He has never given me anything for the child, does not support me and basically "lives" off me. I don't think that it is fair that I have to stay in this situation until I get the permanent green card.
Answer
Let’s start with your immigration issues. Ninety (90) days before the end of your two year conditional green card expires, you have to remove the conditions of your permanent residence. You can file jointly with your husband or as it appears you will end up doing, you can divorce your husband and file on you own. It does not matter whether you move out. The most important thing is for you to be safe and happy. Whether he moves out or you move out will not affect your immigration status. As long as you can prove that you lived with him for some period of time after you got your conditional permanent resident status and it was a real and bona-fide marriage (you do have a child together) than you can still get your permanent residence in the United States no matter who starts the divorce and no matter what grounds the divorce is process under.
Divers Licenses, while H-1 extension pending
Question
How can someone get a extension on a driver’s license if his H-1-B extension is pending?
Answer
I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.
Question
I have recently got engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose:
- Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application.
- My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference?
- I am currently an F-1 holder. If I marry my fiancé' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiancé' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his?
- How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?
Answer
- Advanced degrees do not help in a family-based green card.
- H-1 approval also does not help in the GC process.
- Check with your international students office about the OPT part. This one is difficult for me to comment upon.
- Whether or not you declare, if you are married then that is so. You must state that you are married if any immigration forms ask you. This is VERY important.
Question
If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master's degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?
Answer
The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.
Question
I am an Australian citizen currently on a B-2 that expires in Oct. I lodged I-539 application for extension in Aug and received I-797 receipt Aug 25.I may have found an employer that will sponsor me on an E-3 visa (Australians only). All I need is a letter of offer and a completed Labor Condition Application.
To apply for the E-3 visa though, I need to leave the USA and visit a US consulate. I do not have my original I94 any more (I submitted it with my I-539) but I do have a copy of it. Once I get a letter of offer, I will travel to either Toronto Canada or home to Sydney Australia to apply for the visa.
- Can I still leave the USA without the original I94?
- In the event my E-3 visa is denied, will I be able to re-enter the USA from Canada without the original I94, provided my stay in Canada is less than 30 days? (And how would this work if I take the trip up there after the expiration date of the original I94? Remembering that my B2 extension is pending)
Answer
- Yes. You should not need an original I-94 to travel out.
- You probably cannot reenter using a copy of the I-94. Not only that, your departure from USA renders your pending B application void (considered abandoned).They way we see it, you have two choices. Wait for B extension before you go for E stamping. Or, go for E stamping bearing in mind the consequences of abandonment and re-entry not assured.
Question
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this?
Answer
Bankruptcy should have no effect on H-1 or on future green card. We are not aware of any immigration laws that could cause a problem for you.
Question
I am on H-1B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H-1 to a different company can I do that without the paystubs? If so that is great news for me, if not what are the options I have.
I would really appreciate your help in this matter.
Answer
It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.
You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages.
You can also contact the local WHD of DOL where you are:
Question
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any client’s kind of situation, this is something not that uncommon. Related to this, as being on a H-1-B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction?
Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H-1-B?
Just trying to find out what the possible advantages would be at this time with EAD.
Answer
There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.
Here is what concerns us. As far as we know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.
Question
Are we OK in keeping an H-1-B worker without work as long as we pay him during the project breaks too - at the LCA wage level.
Answer
You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.
Question
We are small business firm with a few H1-B workers.
- Do we need to file a separate labor petition whenever a H1-B worker moves to an different project location?
- We are having difficulty finding project for one of our h1b worker. As a small firm, we are unable to run a payroll while the candidate is on bench (so to speak). Should we need to withdraw the petition and send the candidate back home? or is it ok to accept a leave of absence from the candidate? She has a EAD also (as her husband has filled I485 in Nov 2007)
Answer
Travel on H-1
The rules on travel while on H-1 are fairly complex. Let us state the basic law.
If the employee moves to an area beyond normal commuting distance for the approved location (stated in their approved H-1 and LCA), and you do not have another valid LCA for that location, you MUST amend the H-1.
If the relocation is in the same area, you MUST file a new LCA and post the notice at two places in the new job site. You do NOT need to amend the H-1.
There are a whole set of rules about exceptions for employees who are required to habitually travel (peripatetic employees), short term travel and travel for attending seminars etc. If you folks need more of that I will edit this article further when I get a few minutes.
Leave of Absence on H-1
If the employee moves to an area beyond normal commuting distance for the approved location (stated in their approved H-1 and LCA), and you do not have another valid LCA for that location, you MUST amend the H-1.
If the relocation is in the same area, you MUST file a new LCA and post the notice at two places in the new job site. You do NOT need to amend the H-1.
There are a whole set of rules about exceptions for employees who are required to habitually travel (peripatetic employees), short term travel and travel for attending seminars etc. If you folks need more of that I will edit this article further when I get a few minutes.
Leave of Absence on H-1
Regulators do permit leave of absence if an employee genuinely needs it. But you must not use LOA as a pretext to bench employees. In my view, you must withdraw the H-1.
Question
I filed I-130 for my parents in April 09 which is still pending. They have 5 years multiple visa and they been here 4-5 times already. Is it ok for them to visit for a month again while their I-130 is still in pending status?
Answer
The answer is it is unlikely, but not impossible, that they will be permitted entry if CBP finds out about the I-130. If it were my own parents, I would probably not take the chance.
Question
I was approved for my OPT on February 2008 for a duration of one year. At that time, I was allowed to stay in US for 1 year while looking for job. On April, 2008, a new regulation came according to which a student on OPT cannot stay in US without job for more than 90 days. I was not aware of this rule until end of September 2008. Now I have applied for dependent visa. My worry is that unknowingly I stayed for around 6 month without job when I was actually allowed for only three month.
I am worried that is this mistake going to affect my new visa approval? Is there any way I can explain USCIS that it happened because I was not informed about this rule and I did not come across it.
Answer
Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.
Question
I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification:
- If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school?
- How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same?
- If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS? Will I get an approved F-1 by then?
Answer
- No. An I-539 is used if you want to change status within USA.
- You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.
- No one can predict that. Sorry.
Question
I am a US citizen and have a good job. My boyfriend of 9 years came here on a visitor visa in June 1996. I just found out that he is using someone else’s social security number with that person’s name with a fake green card. He is working that for the past 5 years. We married in October 2008. What will happen to me now that I married that man? I have 4 children to take care of. I know if he finds out I know this about him I know he might act in a violent manner. He always picks up the mail every day. I found his passport and birth paper. Please Mr. Bernstein, could you answer me on your Immigration Link newspaper. I always read it out of my home. I am scared. I don’t know what else he is hiding. Please help.
Answer
You have not committed fraud or misrepresentation so nothing will happen to you. As a US citizen, you can file for your husband and since he entered on a visitor visa, he is eligible to adjust status in the US. However, because he has been using someone else social security number and green card, he will require a waiver to overcome the fraud he has committed. Should you decide to file for your husband, your husband will need to come in to see one of our most experienced attorneys to determine whether it is in his best interest to file a waiver. Just because a waiver is filed, it does not mean that it will be granted. It would be extremely valuable to you and your husband to discuss the pros and cons of filing the waiver with an attorney. However, if you are afraid that your husband may become violent with you if he finds out that you know about his fraud, we recommend you see a marriage counselor who can counsel you on that end. Your well-being is of utmost importance.
Question
A few years ago, I tried to apply for a US passport. I presented a Michigan birth certificate as my own. After I submitted my application for the passport, federal investigators came to speak to me. After a whole big mess, I pleaded guilty to fraud. I am currently on probation. I am worried about my immigration status. I don’t have a green card, and I had hoped to someday get my green card. What can I do?
Answer
The law is quite strict when a person makes a false claim to US citizenship. By presenting a Michigan birth certificate as your own, when in fact, it is not yours, you have made a false claim to US citizenship. According to the immigration law, if the claim was made after 1996, there is no waiver to overcome your false claim, and you are permanently barred from ever getting your green card. However, if your claim was made prior to 1996, you may be eligible to file a waiver. We suggest that you gather your documentation and see one of our experienced attorneys to determine whether you have any relief available to you.
Question
I am a citizen. I'm 20 and I want to file for my mom. Can I do that now? And can I include the rest of the family as her dependents so that they too can come here?
Answer
You can only file for your mother or father once you reach the age of 21. Since you are now 20 years old, it should not be much longer before you can file for your mom. Once you do file for your mother, she will be considered an immediate relative. That means that she would be immediately eligible for her permanent residence and would not have to wait on a waiting list for her green card. Because she does not have to wait for her green card, the law does not allow her children to accompany her as a derivative beneficiary for their green cards as well. Therefore, when you file for your mother, only your mother, and not her children, can obtain a green card. Once your mother gets her green card, she can turn around and file for her children.
Question
I am a permanent resident now for eight years and I would like to apply for my citizenship. The problem is I am getting married to my child’s father in Jamaica and wondering whether, it is better to file for my husband after I got my citizenship or it is faster to file him as a spouse of a Lawful Permanent Resident?
Answer
I would recommend you file for your husband as a spouse of lawful permanent resident, and at the same time, you file for your citizenship. As the spouse of a lawful permanent resident, your husband will be filed for in the second preference category which currently has a wait of about three to four years before visas become available for him to obtain his green card. Naturalization takes about approximately 9 months in New York to process. Now, assuming your petition has been approved when you become a United States citizen, you can upgrade your petition to immediate relative status which would make a green card available to him shortly thereafter. The advantage of filing before you obtain your citizenship is that your visa petition has already made it through some of the bureaucracy before your naturalization. It is actually faster to get an approval for an upgraded petition than it is to file from scratch once you become a citizen. Also, there is never any guarantee that you would ever become a citizen. So, if you are waiting to file for your husband and you never become a citizen, you husband will never come to the United States. If you file for him as a legal permanent resident, than you know that the worst case scenario is that he will be here in about three to four years.
Question
I am a permanent resident. I filed for my son when he was 19. A year later the application was approved, but we had to wait for another 5 years until the priority date became current. I recently was told that the priory date is not current yet. I just don’t understand why the immigration office keeps telling me I have to wait until it becomes current, because I filed for him before he turned 21 and the visa bulletin says that the priority date is current for children under 21. Is this just some mistake? Isn’t there a new law that prevents this from happening?
Answer
Your son actually “aged out,” meaning he turned over the age of 21 for immigration purposes. This is important because there is a quota on the number of green cards issued each year to different categories of people. Due to the quota, there is a shorter waiting period for a green card for children under 21 than for children over 21. It is therefore beneficial to be under 21 for immigration purposes because you can get a green card faster. Under the Child Status Protection Act, if a legal-permanent-resident parent files for the child, the child’s age will be calculated as the age on the date that the priority date of the I-130 becomes current, minus the number of days that the initial I-130 visa petition was pending. For example, let’s imagine that your son is at least 24 years old. Assume that visas first became current this month for your son’s priority date if he were a child less than 21 years of age. However, because you son is now 24, the Child Status Protection Act does not help him. This is because it took one year for the I-130 to be approved (add one year to his age, is 21 +1 = 22 years old). On the other hand, if priority dates would have been current for the “under 21 category” by the time of your son’s 22nd birthday, then he would have been considered under 21 for immigration purposes, and thus would not have “aged out.” As it stands, your son is how considered a “child over 21” and has several more years to wait on the visa waiting list. However, there is another option available to him. Since you have had a green card for more than 5 years, you can apply for your citizenship now. If you were to become a US citizen, then you would be able to upgrade your son’s petition to that of an unmarried son of a US citizen. This would presumably make a green card available to him based on the current waiting list for unmarried sons and daughters of US citizens.
Question
I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification:
- If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school?
- How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same?
- If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS? Will I get an approved F-1 by then?
Answer
- No. An I-539 is used if you want to change status within USA.
- You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.
- No one can predict that. Sorry.
Question
I entered the US three (3) months ago on a visitor’s visa. I have been staying with my aunt and cousins. My aunt told me that if I wanted to go to school, I could stay with her. I have a high school diploma from my country. I want to go to college in the US. What do I need to do?
Answer
So long as you’re I-94 is still valid, you can change your status from visitor to student here in the US. In order to qualify for the student visa, you must be accepted to the college. The college will issue a Sevis Form I-20 to you. There is a Sevis fee that you will have to pay. Once you have Form I-20 from the school, you must file an application to change status with the Immigration Service. In that application, you must prove that you have sufficient financial support. You can have your aunt, another relative or friend submit Form I-134 affidavit of support on your behalf along with proof of legal immigration status (US citizenship or green card), tax returns, W2s, job letter, and bank statement in order to show that you can cover your expenses. You must also prove that you intend to depart the US upon completion of your studies.
Question
I have been issued F-1 and I fulfilled only 1 year of my previous J-1 HRR. It was not difficult to get it once you show all the funding documents from school. I am on a PhD program now. If I decide to stay in my home country for 3-months periods several times - can I fulfill my second year of HRR in that way?
The question is does it have to be consequent or I can split it like this?
The question is does it have to be consequent or I can split it like this?
Answer
You cannot do that as far as I know. The HRR has to be in one solid 2-year chunk. Brief absences - a week or two may be permitted but should be made up by spending that much extra time in your home country.
Question
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have I-140 approved and I-485 pending more than 180 days.
If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?
Answer
You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.
Question
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H-1-B since April 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H-1-B valid till November 2009. My I-140 is in process and I have responded to RFE on Oct 16th and have not got any reply so far. Priority date is Oct 2007. The residency starts in July I think I can continue on H-1-B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency (4years).
Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved?
Answer
Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.
Question
I live in the United States. My husband is applying for my green card. My US citizen children receive food stamps and Medicaid benefits. My children are not from my current husband. Also, my children are in the Children’s Health Insurance Program (CHIS). I heard that if you receive any public assistance, you cannot file for your green card. Is it true?
Answer
If you were receiving need-based government benefits (which you would not eligible for as an illegal alien, unless under a grant of emergency Medicaid), or if your husband was receiving need-based government benefits, you would probably be denied your green card on public charge provisions. But as US citizens, your children are entitled to government benefits if they qualify. Your husband, who is not the children’s father, is not financially responsible for them, as far as the Immigration Service is concerned. As your husband has to give the Affidavit of Support for you, and as you personally are not getting government assistance, and because your husband is not responsible for children who get government assistance, food stamp and health care assistance for your children will not prevent you, in and of themselves, from becoming a green card holder.
Question
My fiancée lives in Jamaica and I want to file for the K-3 visa for him. The issue is that I have been recently ill and had to apply for social services. My doctor ordered me not to work for 4 months so I have to stay on government benefits for another few months. I am concerned about how the affidavit of support will factor into my situation. I know my dad would provide me with an affidavit of support because he does not have any dependents. He earns $34,000 per year. He has only lived in the United States for the past three years. I had filed for him and already gave him an affidavit of support when he immigrated two years ago. Can I get my fiancée here?
Answer
First of all, when you file for a fiancée, you do not file for a K-3 visa but a K-1 visa. One of the requirements of obtaining a visa and eventually a green card is to prove that the person getting the visa or green card will not become a public charge. The fact that you are obtaining need based government benefits indicates that you cannot support yourself above the poverty level. Therefore, as long as you obtain need based government benefits, such as Medicaid or food stamps, your fiancée will not be able to come to the United States with a visa because there would be no way that you can prove that you can support him here at 125% above the poverty level as it is apparent that you cannot support yourself above the poverty level. So first thing first: to get your fiancée here, you have to get back to work and get off the benefits. Maybe if you talk to your doctor again about getting back to work earlier, he will allow you. Secondly, your father can give an affidavit of support on your behalf. He earns enough money. The fact that you filed for him previously is not a factor. However, even once you do get off your government assistance, you still have to prove that the totality of your circumstances would show that you can support your fiancée above the poverty level.
Question
I was sponsored by my employer back in March 2001. At the time my son was just 13 years old and would have been able to get his green card with me. Unfortunately, my employer went out of business a few years later. My United States citizen boyfriend and I got married, but my son was already 18 years old. So, my husband could not sponsor him. Our relationship took a turn for the worse and soon he was hitting me and abusing me. I had to call the police. I filed as a battered spouse, but I don’t know what to do for my son. He is now 20 years old. Can you help me?
Answer
The good news is that your son can be included in your battered spouse application. It doesn’t matter that you did not marry your husband before your son’s 18th birthday. Your son is a derivative on this petition which is different from having your United States citizen husband petition for him.
Question
Before coming to the US three years ago, I was a competitive soccer player. I played in my country’s national team and played internationally. Since coming to the US, I have coached soccer, but not played in any competitive teams. I have a couple of permanent job offers - one to coach soccer at a school and another to play arena football (American football). What can I do to accept these jobs?
Answer
It may be possible to qualify you as an alien of extraordinary ability for the purpose of getting you a green card, but Immigration might say it’s been too long since you’ve played and you don’t intend to use your extraordinary ability as neither coaching nor arena football employ the same skills. We could probably argue this out have a fifty-fifty shot at being successful. Otherwise, we’d have to do the labor cert process for your employer, which is the first step to getting an employment-based green card.
Question
I am a US citizen married to a Green Card holder. I married my husband in 1996. He went home to Pakistan to take care of my father-in-law. Due to some unforeseen situation regarding his illness, he ended staying there longer. His father had to get a kidney transplant and had some other major health issues and was not expected to survive. Thank god, that is no longer the case. However, it has been almost three years since he has been there taking care of his father. He wants to come back home now that his father is recovering and doing ok. What can be done to get him back home? What does he or I need to do?
Answer
I’m glad that your father-in-law is now well. Unfortunately, your reunification with your husband in the US will take a few months’ time. Unless your husband filed for a re-entry permit which allows a Lawful Permanent Resident to absent himself from the United States for an extended period, the US Citizenship and Immigration Service will consider your husband to have "abandoned" his lawful permanent resident status. For him to re-enter the United States, you would have to re-file for him. Upon the completion of the petition process, he will be called for an interview at the US Embassy in Pakistan and be given an immigrant visa.
Question
I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1-B extension after its expiration on September 23, 2008 while I am working on EAD?
Answer
Generally speaking there is no time limit as long as you are entitled to the extension.
Question
Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.
Answer
OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.
Question
I have a friend who came to US on H-4 & was on H-4 for 2 years. Then she applied for H1-B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Company B. Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project. While working she has been paying taxes regularly.
Pl let us know what needs to be done now as she is planning to go back to H-4, pursue higher studies, Changing to F1 & then coming back on H1-B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to USCIS? The next time the H1-B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work?
If in case My friend goes back to H-4, Will Co. A & B will terminate H1-B petition as per law? & If incase yes, will this create any difference?
Answer
Changing the way she is planning is perfectly legal. There is no question of a "bad impression." In our view, she will not be subject to quota unless she is outside the USA for a year. The companies are required by law to revoke her H-1. I see no issues there.
From USCIS:
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS’ Web site at www.uscis.gov/h-1b_count
Question
My wife has been in US for 6 months on H-1 and is going back to India. In India if she applies for H4, will it be necessary to carry any paystubs generated during her stay in US on H-1? Is there a possibility that the consulate might demand for her W2 and paystubs before stamping her H4 visa?
Answer
The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa
Question
My 10th yr H-1-B extension/my wife H4 was filed and got rejected. Following are the details:
H-1-B/H4 filed: March 1st 2009
RFE was issued in April
RFE replied: May 6th 2009
H-1-B/H4 denied: June 1st 2009
Our H-1-B/H4 I-94 expired: Apr 10, 2009
RFE was issued in April
RFE replied: May 6th 2009
H-1-B/H4 denied: June 1st 2009
Our H-1-B/H4 I-94 expired: Apr 10, 2009
My company wanted to do a) file appeal and b) a brand new H-1 with Vermont center (along with original RFE/denial letter etc.).
- While appeal is pending, if we don't file a new H-1-B, what is my status? Am I considered to be in status?
- While new H-1-B is pending, what is my status? Am I considered to be in status?
- Can we file brand new H-1-B through the same company while appeal is pending?
- Can I work for my employer while appeal is pending, without filing new H-1-B?
- Can I work for my employer while new H-1-B is pending?
Answer
- When an H-1B is denied and your I-94 has expired, you’re out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.
- You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.
- Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.
- No.
- No.
Question
Hello Spar & Bernstein, my wife and I have been working on H-1-B for different employers. My employer applied for my GC in 07. I have my I-140 approved; my wife and I have our EAD cards and AP. Now my wife's H-1-B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD?
Answer
Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not anymore, as far as I know.
Question
My wife has been in US for 6 months on H-1 and is going back to India. In India if she applies for H4, will it be necessary to carry any paystubs generated during her stay in US on H-1? Is there a possibility that the consulate might demand for her W2 and paystubs before stamping her H4 visa?
Answer
The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa
Question
My friend was working for Company A and he shifted to Company B, three months back filing a new H1-B, but his employer got a 6 page H1-B query list and his employer is not revealing the query and is not in a position to respond.
Can he switch back to Company A? Does he need to file with DOL (or) USCIS that he am switching back to company A. If his H1-B with company B is not approved, will it be a problem that he worked with Company B for 3 months and has taken the pay?
Can Company A send a letter to INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1-B but send a normal letter to INS), Can he still switch back to Company A?
If he cannot go back to Company A, can he file a new H1-B with another company, knowing the fact that he has a query on his H1-B with Company B.
Answer
In our view, he cannot go back to company A without taking some additional steps.
Here, company A has revoked the H-1 (all that takes is a letter), they will need to re-apply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.
Question
I came to US on F2 visa. In April 2008, my employer filed for my H1-B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2.
- My question is if I change my visa status back to F-2, and if I find an employer who is ready to file my H1-B in the future, Will I have to go through the quota again?
- Hi, I have been inspired by the previous posts, I have a similar situation. I was on H-1 till Mar 03. Then I transferred to F-2. Now I'm about to get a job offer from a company. Is my H1-B application subject to the Cap? My previous H1-B was issued on Feb 2002 and I haven't been out of the states since.
Answer
- In our opinion, you will not be subject to the quota again.
- You should not be subject to the quota.
People (even lawyers, including us) find it difficult to keep the H-1 quota issues straight. We are giving the law here for reference and better understanding.
The Law
_________________________________________
AC21
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
`(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
`(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
`(B) a nonprofit research organization or a governmental research organization.
`(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
`(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.
Higher Education Act
_________________________________________
§ 1001. General definition of institution of higher education
(a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
(b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
(1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.
(c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.
__________________
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
`(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
`(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
`(B) a nonprofit research organization or a governmental research organization.
`(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
`(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.
Higher Education Act
_________________________________________
§ 1001. General definition of institution of higher education
(a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.
(b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
(1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
(2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.
(c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.
__________________
USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Question
I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1-B. I also understand that exempt H1-B's cannot be transferred to non-exempt H1-B's.
Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1-B is still in process? Will accepting this offer be a problem if I want to move to a private firm later?
Answer
The regulations seem not to address this situation. If we were to decide purely based upon the language of the regulators, I would guess that you can work.
But, our GUESS also is, somewhere along the line, CIS will clarify that you cannot work under these circumstances. The new regulators were put into place to eliminate gap in the employment that occurs when a student and their employer confront the gap in employment between expiration of the F-1 EAD and October 1st - start date of the H-1. This may not be applicable to universities who are quota exempt. In your case, you will be working for a private employer while the H-1 is pending through the university. It’s a tough call as far as we can see.
Do note that we have not spent a lot of time thinking this issue through. So you should ask your employer's lawyers to give an opinion in writing.
But, our GUESS also is, somewhere along the line, CIS will clarify that you cannot work under these circumstances. The new regulators were put into place to eliminate gap in the employment that occurs when a student and their employer confront the gap in employment between expiration of the F-1 EAD and October 1st - start date of the H-1. This may not be applicable to universities who are quota exempt. In your case, you will be working for a private employer while the H-1 is pending through the university. It’s a tough call as far as we can see.
Do note that we have not spent a lot of time thinking this issue through. So you should ask your employer's lawyers to give an opinion in writing.
USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
Here is the release from USCIS.
April 27, 2009
April 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated
65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;
however, we continue to accept advanced degree petitions since experience has shown that not all
petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are
exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium
processing period began April 7. For cases filed for premium processing after the filing window, the
premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be
found on the USCIS’ Web site at www.uscis.gov/h-1b_count.
– USCIS –
When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.
USCIS has stated:
Quote: We will accept the following so long as the degree requirements were completed prior to filing:
A final transcript; OR
A letter from the Registrar; OR
A letter executed by the person in charge of the records of the educational
institution where the degree was awarded.
If the third option is utilized, then that person must show that they are authorized to issue such letters.
A final transcript; OR
A letter from the Registrar; OR
A letter executed by the person in charge of the records of the educational
institution where the degree was awarded.
If the third option is utilized, then that person must show that they are authorized to issue such letters.
Question
I am on H1-B Visa and my approval (I797) is valid until October 2010 however my Jamaican passport is expiring on 26'th August 2009. I just came back from Jamaica a week back and Immigration Officer has Issued me I-94 until my passport expiry date. Is there any other way for me to apply for I94 extension based on approval validity without leaving the country? Or do I have to leave the country & come back? The same applied to my wife as well since we traveled together and went for Immigration together immigration officer issued her also I-94 until my passport expiry date.
Answer
Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP.
Question
I came to USA with an H-1B Visa; my family's H-4 visa was also issued with me. After coming to USA I transferred my H-1B visa to new company and I got my transfer approved and I got a new H1-B with new I-94, my question is whether they can travel with the old H-4 or not?
Answer
If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.
Question
I had filed for H-1-B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client Company and other details which my H-1-B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H-1-B visa application. I got a confirmation that it has been withdrawn.
Now today after so many days when I checked my H-1-B status on USCIS, it said “This case has been received from the State Department with a request we review it."
- Please let me know what does it mean and does it mean something serious to take care of?
- What are the implications of H-1-B Visa revocation for future H-1-B application?
Answer
- This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.
- I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.
Question
My son is employed on an H-1-B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to Malaysia, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions.
Is it difficult now, in view of the present US laws/restrictions on H-1-B visa to get extension/renewal of the said visa in Malaysia and what is the procedure?
Answer
The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1B (hopefully it was us).
In our view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.
In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.
Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.
Question
I graduated from college this year and was fortunate enough to be approved for an H-1B visa. However, my H-1B visa is not effective until October 1 of this year. My fiancé arrived about two months ago in the US, and she is here as a visitor and has permission to stay until December 1. We want to get married. If we do, can she stay in the US with me?
Answer
Congratulations on obtaining H-1B status. If you marry your fiancé, she will be able to remain in the US. She will have to file to change her status from visitor to H-4, spouse of H-1B beneficiary. She should file for this change of status after October 1, once your H-1B status becomes effective. However, she must file for a change of status before her period of authorized stay expires in December 1. By changing her status to H-4, she is not entitled to work nor will she be eligible to obtain a social security number.
What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?
There is a lot of confusion out there, judging by the tons of emails that we have received.. Here is how we see it.
If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.
Question
I am married and have two children. My wife does not work. I filed for my brother and his wife and two kids 12 years ago. They recently went to the US Embassy for an interview. They were turned down because the Embassy said I did not earn enough money for the affidavit of support. I earn a lot of money, but since I have my own business, I take a lot of deductions. I also own a lot of real estate in the United States. I sent copies of the title to my homes but they said it did not matter. My real-estate is valued over $500,000. There is a mortgage of approximately $100,000 left on the property. How can they turn my family down?
Answer
Under the immigration laws, the petitioner of any family member must be able to show that he or she can support their family whom the petitioner filed for as well as the petitioners own family at 125% above the poverty level. If the petitioner is in the military, than the petitioner only has to show he/she can support the family at 100% above the poverty level. You stated that you have four in your family including yourself and that you are filing for an additional four family members, totaling in all eight people whom you must support. Now we will assume that you are not in the military and therefore must meet the 125% threshold. Based on the 1994 poverty guidelines, you must earn above $39,463.00 after all of your deductions to support a family of eight. If your net income is below $39,463.00 than the Embassy had a right to turn down your family. You have two options: get an additional affidavit of support from another US Citizen or legal permanent resident who earns enough money to support your eight people and the family of second person who gives the affidavit of support or show assets to overcome a low net income. You chose to show assets. Under the immigration laws, you can add 20% of your net assets to your income to overcome the poverty guidelines. So for example, let’s say you earned $30,000.00 net income last year. Let’s also say you have assets after your mortgage is paid of $400,000.00. If you take 20% of $400,000.00, you are left with $80,000.00. The law allows you to add your net income of $30,000.00 together with the $80,000.0 (20% of your net assets) which is more than enough to cover the poverty guidelines. Your problem is that all you submitted to the Embassy was a deed. A deed does not tell the Embassy how much your property is worth. You needed the deed to show you earn the property, but you also needed to show a letter from your mortgage company stating how much is owed on the mortgage and either a certified appraisal of the value of the property or documentation from your local government stating the assessed value of the home. In essence, you need to show your equity in your home.
Question
We got an approval for a L-1 to H-1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F-1 status soon.
- What choices do we have to keep the H1 approval valid so that he can join us in August 2009?
- Since he will be applying for L1 to F1 now, Will that automatically cancel the H1 I-94 (to be effective from Oct 1) or do we have to do something.
Answer
- No problem. A few months (up to six months ahead) before August 2009, apply for Change of Status back to H- or a few days before he wants to join, have him go get an H-1 visa stamp.
- In our view, nothing else needs to be done if changes status to F-1 now. Make sure he applies from L-1 to F-1 and attaches a copy of the H-1 approval also.
Question
I am married to a US citizen and have two children ages 13 and 15, in Trinidad. My mother is also a US citizen. Is it better for my husband to file for my green card and my children’s green cards? Or, is it faster to have my mother petition for me, rather than my husband?
Answer
It is faster for your husband to file for you and the children, rather than your mother. Because you are married, if your mother were to file for you, you would be considered an “F-3 married daughter of a US Citizen.” The F-3 category currently has a estimated wait for a green card of over 10 years. By that time your children may age out of the visa petition as they would be over 21 years of age at the time of visa availability. Even if they did not “age out,” under the Child Status Protection Act (which is not discussed in this answer), it would be close to 10 years before you would be reunited with them. If your husband files for you and also files separate step-child petitions for each of your children (he needs to file three separate visa petitions), then your children could get visa appointments in Trinidad in approximately 5- 9 months, and you could adjust your status here in about 12-18 months. In short, it is much faster if your husband, instead of your mother, files for you.
Question
I work as a housekeeper, nanny and companion. I work almost 18 hours per day because I also feed the baby at night. My employers pay me the same amount weekly no matter what extra hours or extra work they ask me to do. They are filing for me and so I do not complain. I am afraid that they will stop filing for me if I ask for a week off for a vacation. Is there anything I can do? Please help.
Answer
I sympathize greatly with your situation. You must discuss your employment with your employers. They are obligated to treat you fairly regardless of your immigration situation. As you are an important member of the household with many responsibilities, they should understand. If they refuse to help you, it may be best for your health to find new employment and a new sponsor. Good luck.
Question
I came to this country about 7 years ago with a tourist visa. My son was then a lawful permanent resident. He has recently become a citizen and filed an I-130 visa petition for me. We responded to all requests by immigration and paid all the fees. In two weeks, I have my interview but for some reason it is back in my home country. Should I go and why did this happen like this?
Answer
You absolutely should not go back home for this interview. If you do, you will become inadmissible for 10 years and will be stuck home for a long period of time. There would be no waiver available for you based on your son’s petition. You went about obtaining your green card the wrong way. Right the National Visa Center and tell them you are in the United States and will adjust your status. You should also file an I-485 application to adjust your status. The reason you got an interview back home was because you did not file an adjustment application from the beginning.
Question
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C Corp" company. We were told that there won’t be any interruption to the day-to-day business.
- How does it affect my H-1-B visa and GC application (filed I-485 - pending)?
- Do I need to re-apply (transfer) H-1 B to the new company or can I send an amendment?
- Do I need to file AC 21 portability or send an amendment to pending I-485 application?
Answer
- If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.
- An amendment should be filed, though it is debatable if it is required.
- In my view, AC21 port is easier.
Question
If we apply for a H1-B extension for another year (I believe we can apply 6 months before the expiry of the current 7th year H1-B) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?
Answer
Yes. You are safe. Under current practice, CIS does not take away extensions already given.
Question
- I am on H-1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do you think I should travel back to the country with valid AP or H-1? Which one is more preferable?
- Considering I have valid H-1-B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H-1 as long as I am waiting for my green card. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H-1 to EAD?
- How long is AP processing taking these days?
- All my co-workers are getting huge queries on H-1 extension or H-1 transfer. Is AP processing also getting queries? Should I even start AP processing?
- Please list out all the documents that I should carry while traveling?
Answer
- AP may be the better option. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left.
- No. See answer above.
- It is impossible to predict times. Plan for a six-month turnaround.
- Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.
- Advance Parole and Passport.
Here is a scenario:
LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.
LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.
Question
Should the mother take a visa appointment for interview before her son arrives overseas to see her so she can tell the interviewing officer that she wants to see her son in the States, in addition to tourism purposes? This may make her case stronger as a mother wants to see her son.
Answer
Answer
We are never in favor of trying to manipulate consulates. This could be considered outright fraud. I’d advise not to bother go down that route. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a caretaker or a health care employee.
Quote:
If an employee is on a H1 they cannot have a 10% pay cut unless their H-1 was amended and re-filed.
Question
I am a US citizen. I’ve had a long distance relationship with my fiancee, who I just asked to marry me. I met her on my vacation to Ochos Rios about three (3) years ago. Since then, I have been going back and forth to Jamaica to spend time with her. She has an eight (8) year old daughter. I want to sponsor them both to come to the US. I want to file a fiancee visa for her. Can her daughter come with her as well?
Answer
Since you have met your fiancee within the last two (2) years, you can file a fiancee petition on her behalf and her daughter can accompany. Your fiancee would enter on a K-1 visa and her daughter would enter on a K-2 visa.
To do this you must file Form I-129 with the immigration service and provide proof of your bona fide (true) intent to marry. You can do this by submitting copies of emails, letters, phone records, and plane tickets - anything to show that the two of you have a legitimate relationship and that this will not be a marriage of convenience.
To do this you must file Form I-129 with the immigration service and provide proof of your bona fide (true) intent to marry. You can do this by submitting copies of emails, letters, phone records, and plane tickets - anything to show that the two of you have a legitimate relationship and that this will not be a marriage of convenience.
Question
We have an appointment set for the K-3 interview in Nairobi. Our I-130 Petition has been approved, IV fees paid and documents submitted. We have not seen each other since 12/08. If we go forward with K-3 processing, what are the negative consequences? Will my approved I-130 be cancelled?
Answer
In your case, a K-3 cannot be issued. You must wait for IV.
If an I-130 is approved, K-3 can still be approved if the consulate has not yet received OFFICIAL notice of approval of I-130. Note that your I-30 will NEVER be canceled. The recommended practice in K-3 cases is to indicate on the Form I-130 that the beneficiary will apply for AOS. Nevertheless, it is too late for that now. If they have received official notification, then an immigrant visa (green card will be issued) after processing locally. It should not take too much extra time.
The current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.
Effect of Lay-off on H-1 and L-1
An H-1 or L-1 holder who gets laid off can be thought to be immediately out of status. There is NO grace period, not even one day. If, however, you continue to receive your salary, it can be argued that you are still in status. How valid or good that argument is remains to be tested.
Being “Out of Status” and Being “Unlawfully Present”
Bear in mind the very important distinction between being out of status and being unlawfully present. Unlawful presence of 180 days bars you from entering USA for 3 years and unlawful presence of one year raises that bar to 10 years. These bars are very difficult (if not impossible) to waive.
Most commonly, unlawful presence is triggered by expiration of I-94, revocation of H-1 by your employer or whenever CIS says your unlawful presence is now beginning.
Being merely out of status does not impose such drastic penalties automatically, but there are dangers here too. If discovered, you can be deported (removed). In that case, you cannot come back for (I believe) five years. Usually, being out of status for a few days or even months by itself may not be a major problem. But you MUST try not to fall out of status. I will provide one method below.
Option 1. Applying for Derivative Status
You can apply for derivative status if your spouse is in USA with his or her own status.
Option 2. Applying for B-1/B-2 Status
In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a B-1 application could be an option.
Being “Out of Status” and Being “Unlawfully Present”
Bear in mind the very important distinction between being out of status and being unlawfully present. Unlawful presence of 180 days bars you from entering USA for 3 years and unlawful presence of one year raises that bar to 10 years. These bars are very difficult (if not impossible) to waive.
Most commonly, unlawful presence is triggered by expiration of I-94, revocation of H-1 by your employer or whenever CIS says your unlawful presence is now beginning.
Being merely out of status does not impose such drastic penalties automatically, but there are dangers here too. If discovered, you can be deported (removed). In that case, you cannot come back for (I believe) five years. Usually, being out of status for a few days or even months by itself may not be a major problem. But you MUST try not to fall out of status. I will provide one method below.
Option 1. Applying for Derivative Status
You can apply for derivative status if your spouse is in USA with his or her own status.
Option 2. Applying for B-1/B-2 Status
In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a B-1 application could be an option.
- Get Form I-539 from CIS (NOTE: CONFIRM THE FILING FEES)
- Apply for a 6 months change of status to B-1/B-2 (business/visitor’s visa) which in my view is a catch-all visa/status for all stay in the U.S.
- Attach to the I-539 a letter explaining to the CIS that:
- You have been laid off unexpectedly and that you need to stay in USA to wind up your affairs and to look for a job, if possible;
- You have the means to support yourself; and
- You know you are not allowed to work on a B-1/B-2.
This should usually get you 6 months stay without falling out of status.
Note that in a previous case back in June 1999, CIS seems to say that they may NOT issue B-1/B-2 to everyone. Note the following letter from INS:
Note that in a previous case back in June 1999, CIS seems to say that they may NOT issue B-1/B-2 to everyone. Note the following letter from INS:
"The B-1/B-2 classification is not a "catch all" classification available to all who wish to come to the United States temporarily for whatever purpose. Instead it encompasses a specific, defined class of alien. You must establish the following to be eligible for a B-1 nonimmigrant visa: As you are in the United States conducting business on behalf of a foreign entity, it is reasonable to expect that you are making frequent contact with this entity. Submit evidence of your contact with the foreign company by submitting your phone statements.......Submit a letter from your employer that describe the nature of your employment with them...."
We think CIS is wrong. B-1 specifically appears to me to be a catch-all visa. For example, when someone needs medical treatment, they apply for a B-1 visa. To be safe, we recommend you apply for B-1/B-2, casting even a wider net.
Question
- I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L-1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2?
- Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)?
- Does EAD allow one to be doing multiple things as a free-lance professional?
Answer
- It lapses upon change of status from the date the status is changed.
- You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.
- Yes.
Question
I came to US on my L-2 visa and am here for 1 month. Meanwhile my company has applied for my L-1B visa in Cameroon.
Should I have to travel back to my native country for Visa stamping or I can apply for COS from L-2 to L-1B in US itself? Since I already own L2 visa is there any chance that my L1B is rejected as I have been working in the company for 1yr and 2 months only now. In case if my L-1B is rejected is there will be any impact on my already approved L-2 visa? Can I come back to US again using L-2 visa?
Answer
You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.
Question
I came to the United States seven years ago. Soon after I came to the US as a green card holder, I started working for my employer. I guess because all of the reported problems with employers hiring illegal aliens, my employer is now requesting proof that I am legal to work in the US, but I cannot find my green card. What do I do?
Answer
You can file Form I-90 with USCIS to obtain a new lawful permanent resident card. USCIS may stamp your passport as evidence of your lawful permanent residence while a decision on your application (Form I-90) is pending. However, when you file this form, you will have to be fingerprinted and criminal background will be checked. If you have a criminal record, we strongly advise that you consult an attorney at Spar & Bernstein, P.C., as certain criminal convictions may render you removable from the US. Furthermore, since you have been a resident for more than five years, you may want to consider filing for naturalization.
Question
My father, who is a green card holder, filed for me, and recently my application was approved. Can I now marry my girlfriend and file for her green card?
Answer
Have you entered the United States as a permanent resident? You must stay single until you actually become a permanent resident. You only obtain your permanent resident status after you enter the United States with your green card. Many beneficiaries of green cards have been found inadmissible because they got married right after the approval of a visa application, but before entering the United States. You have two options: either wait for your father to become a US citizen, if he wants to and is eligible to become one, and then marry your girlfriend as their is a visa category for married sons of US citizens; or, enter the United States with your immigrant visa and then return home to marry your girlfriend, and thereafter file for her.
Question
I immigrated to the United States 10 years ago. My husband, who is a United States Citizen, had filed for me to obtain my green card. I’ve had my green card for 6 years. I am still happily married to my husband. My problem is this: before I left my country 10 years ago, my mother agreed to watch my children who were at the time, 10 years old and 2 years old. Well, my children are now 20 years old and 12 years old respectively. I visit them every year. I want them to come live with me. For the past three years I have been trying to get my citizenship so I can file for them. I had my citizenship interview 2 years ago. The officer said I passed and I would be sworn in shortly. Ever since, all I have received is three notices to re-do my fingerprints. I keep re-doing my fingerprints but I have not been called for a swearing in date. Mr. Bernstein, I cry every night waiting to become a US citizen so I can get my kids here. What should I do?
Answer
Instead of waiting to become a United States Citizen, let your husband file for your children immediately as a United States Citizen step-father. Under the immigration laws, your husband is considered a step-parent if he married you before the children turned 18. Because your children are still under 21, they are considered “immediate relatives” under the immigration laws, which mean there is no wait, other than the time it takes for the visa petition to be approved, for your children to obtain visa appointments. Furthermore, in this particular instance, as long as your husband files for the children before they are 21, they cannot “age out” – meaning that once they turn 21 they will still be considered under 21 for immigration purposes. This is important because once a child turns 21, there is usually a long wait for a green card.
Question
I am married to a U.S. citizen who is filing for me. I have a daughter in Jamaica who is 16 and just gave birth to a baby boy. She is not married. My husband is filing for her as well, but our attorney told us that she will not be able to bring the baby. That can’t be true, can it?
Answer
Your daughter is classified as an “Immediate Relative.” This category while sporting many great benefits has one drawback - it does not allow accompanying or derivative beneficiaries. There is no petition for your grandson at this time, which means that he will be left behind until his mother is able to file for him and bring him in. When your daughter enters as a Lawful Permanent Resident, she will be able to file for her son. Your grandson’s priority date will be established by this filing. He must wait for either the priority date to be reached or if your daughter becomes a U.S. citizen, he will no longer have to wait for the priority date as he will upgrade to being an Immediate Relative. Upon his entry, if his mother is a US Citizen, he will automatically derive US citizenship also. If he enters as the child of a Lawful Permanent Resident, he will derive citizenship if his mother naturalizes before he turns 18. Good luck to you and your family.
Question
I am on H4 in the USA, I have applied two H1-B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
I have the following questions
I have the following questions
Now I have two new I-94's through two different employers (Company-A and Company-B) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
Answer
Yes. I usually recommend that all I-94’s be surrendered.
Question
I came to this country as a lawful permanent resident when I was 24 years old. Five years later I filed for citizenship. At my interview, the Immigration Officer asked me if I ever registered for the Selective Service. I was not sure what he was asking me. I know I did not register with anyone. My citizenship was denied because of that. Can I ever become a citizen?
Answer
Yes you may still be eligible to become a United States Citizen. Any male who is a US citizen or who was a lawful permanent resident between the ages of 18-27 must register with the Selective Service Administration. You are ineligible to become a United States Citizen if you did not register for the selective service as a lawful permanent resident. Now that you are 29 years old, it is too late for you to register. There is an exception to the above rule: if you did not know you had to register. In order for you to obtain your citizenship, you must prove that you did not know you had to register and that the Selective Service never notified you of your requirement to register. You may need a lawyer to help you.
Question
My wife is on cap-exempt H1-B working for a non-profit hospital. She got the offer from another non-profit community hospital but, their lawyer declined to file a H1-B transfer with the reason that a new employer is not a cap-exempt employer because it's not affiliated with any higher education institution.
It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think any chances here?
It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think any chances here?
Answer
It’s difficult to say what the chances are, but read on. Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed a few cases like this.
Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 was approved.
Question
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home (Benching)?
What is the law regarding the benching of H-1 holding employees?
Answer
The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench.
i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS.
ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA.
There are a couple of to clarify here. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).
Question
My 6 year period of H-1-B visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension, if so when should I apply for that?
Answer
H-1 extension beyond six years can be obtained under two circumstances:
First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago.
First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago.
The GC process is started for:
Labor Certification based cases (including PERM) the date for the beginning of the countdown is the date when the labor certification is officially received: for PRE PERM cases - by the local office (SWA)
Labor Certification based cases (including PERM) the date for the beginning of the countdown is the date when the labor certification is officially received: for PRE PERM cases - by the local office (SWA)
Question
I met my girlfriend on the internet. She lives in another country. I am thinking about bringing her to the United States so that we can get married and have a family. We have never actually "met" each other in person, but we are so sure that we are meant to be. Can I get her a fiancée visa or green card?
Answer
Unfortunately, you cannot file for her green card or fiancée visa at this point. Under US matrimonial law, this type of union is considered legitimate (for example, the mail bride business). However, the USCIS does not recognize arranged or proxy marriages, with limited exceptions (religion-based). There are strict rules requiring that a couple meet in person and be able to prove that a bona-fide relationship exists before they can become eligible for a fiancé visa or green card. Therefore, in order for the relationship to be considered legitimate, there must be a physical contact between the two parties. When you go to visit her, take some pictures documenting your time together.
Question
I recently learned that I was placed in removal proceedings and that there was a court date and I was ordered removed from this country. How could have this happened without my knowledge?
Answer
What happened to you is called in absentia hearing and removal order. You are absolutely entitled to a notice of your hearing. If for some reason you did not obtain a notice, then you have a good basis for a Motion to Reopen. If the Immigration Judge determines that in fact you did not have a notice for your hearing, they will reopen your case and you will have your chance to seek relief in court. This is a very complicated situation and there are a lot of procedural as well as legal issues that you should keep in mind. This is not the type of case that anyone should handle on his/her own without the help of an experienced immigration attorney.
Question
I entered the United States with a J-1Visa in June 2004, and got married to a US citizen in September 2004. My husband has never filed for a green card for me, and now I’m going back to my home country to visit my parents. Can my husband file for me while I’m in my country? Our marriage was not for business, and we have proof that we lived together for the whole time of my stay in the United States.
Answer
J visas are usually valid for up to 18 months. Based on my math, even if you got the full 18 months, you have overstayed your time allowed in the United States. Your husband can file for you to pick up your green card in your home country. He would do so by filing an I-130 visa petition with the Immigration Service. The case could take somewhere between 5 and 9 months to complete before you can return with a green card. Obviously, you would need proof that the marriage was entered into for valid, bona-fide reasons, and not for business. Your only problem is that it appears that you overstayed on your visa. If you have overstayed by more than 180 days, you will be barred from returning to the Unite States for 3 to 10 years from the time of your departure. If so, you would need a waiver to return. The waiver would be based on extreme hardship to your spouse. I would also ask you to look closely at your I-94 arrival-departure record. If your I-94 arrival-departure record has the letters "D/S" written on it, then you would not be subject to the 3 or 10 year bar, if you overstayed by more than 180 days. "D/S" stands for "duration of studies." Only J and F visas can have this type of marking. If you have D/S, then the immigration service replaced your date of departure with an unknown date at the conclusion of your studies, so that no calculation can be made on your time period out of status.
Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program, Thursday, April 23, 2009
[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.
Question
My daughter became US citizen two years ago. She filed for me. I entered the US as a visitor many years ago. After I entered the US, my husband filed for me. Unfortunately, we did not have a good relationship, and our marriage did not last very long. I haven’t seen him in almost ten years. In response to my daughter’s I-130 visa petition, USCIS has asked me for proof my good faith marriage to my husband. I’m not even sure whether we are married or if he divorced me since then.
Answer
It is important for you to establish that your marriage to your husband was done in good faith and that you did not marry him for the purposes of obtaining a green card. If Immigration determines that you committed marriage fraud, you will be permanently barred from getting your green card. While your marriage was brief, you should try to obtain as many documents as you can to prove that you married your husband in good faith. You can include the following documents:
- Copy of joint bank accounts
- Copy of joint utility bills
- Copy of lease or rent agreement
- Copy of wedding photos and photos with friends and family
- Copy of joint insurance policies
- Copy of joint income tax returns
The more documents you gather, the more likely it will be that Immigration will believe that it was a good faith marriage. You should seek the counsel of our immigration attorneys as they can direct you in gathering your documents and your response to Immigration.
Question
I got my two year green card in September 2007. Prior to getting married, my wife and I lived together for several years. In June 2009, I have to file to remove the conditions on my green card, but my wife doesn’t want to file a joint tax return with me because she wants to file as head of the household and get more money back. What should we do?
Answer
The reason why the Immigration Service grants a conditional green card for 2 years and later makes you file to remove the conditions is to determine whether your marriage is real. In making this decision, the Immigration Service will look at several factors such as whether your can document that you live together through correspondence sent to the joint address, a lease or a deed, joint financial documents, whether you have joint children, affidavits from friends and family, and yes, your income tax returns. Their reasoning is that married people file joint tax returns. Accordingly, you and your wife need to file your income taxes jointly. While we are not tax accountants and cannot advise you on your tax issues and refunds, we can tell you that Immigration will look to your tax returns to determine whether your marriage is legitimate and ultimately making a decision on your application.
Question
I have a few questions about starting business in partnership. I am currently on H-1B, my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with someone who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. Is this legal?
Can you be a passive investor on H-1?
Answer
Your wife can NOT do this on H-4. Once you folks file I-485 and get EAD, things will be different.
You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.
Question
I am thinking about changing my job. My problem is that my current employer petitioned my green card 4 years ago, and I have not received my card yet. My visa petition has been approved and my adjustment has been pending for more than 1 year. Is it possible to change my employer without jeopardizing my application for Lawful Permanent Residency?
Answer
If the Form I-140 (immigrant petition) has been approved and the form I-485 (adjustment of status) has been filed and remained un-adjudicated for 180 days or more, the approved Form I-140 will remain valid even if you change jobs or employers as long as the new offer of employment is in the same or similar occupation. So, yes you can change jobs, but you must still work in the same position with a new employer and your new employer would have to be willing to complete your case on your behalf. In order to complete your adjustment of status, your new employer will have to provide a job letter and tax returns to show they can afford and are willing to pay the offered salary from your initial labor certification upon receipt of your green card.
Question
I have had a green card for 22 years. I never became a US citizen. My parents are elderly and sickly back in Jamaica. They need me to take care of them. My concern is that I can be outside of the United States for more than 6 months and maybe even a year. I don’t want to lose my green card and I know I don’t have time to become a US citizen. Do I have to choose between the United States and my parents?
Answer
You do not have to choose between your parents and living in the United States. As background, you are correct in stating that you can lose your green card if you live outside the United States for too long a period of time. The law is very straight forward: if your trip abroad is for less than 6 months, than all else being equal, you should be allowed back into the country; if your trip is between 6 months and one year the immigration officer has the right to question whether or not you are permanently living in the United States and if your trip is for more than a year, there is a presumption that you are not living in the United States and you can lose your green card. However, if you know you will be outside of the United States for a long period of time before you leave, you can apply for a re-entry permit which will allow you to stay outside of the United States for up to three years without losing your green card. You must apply for the re-entry permit before you leave the United States. You can’t do it from abroad.
Question
I came to the US 8 years ago on a tourist visa and subsequently overstayed my allotted time. I’m married now and have filed for my adjustment of status. I have not yet received my green card. I have an emergency back home. A friend suggested I should obtain an advance parole to travel home and then return. Can I do this?
Answer
In theory yes you can. However, you are taking a big chance. The Immigration Service will most likely grant you the advance parole and you will be able to leave the country. However, upon return several things can happen. Upon your return, you will be allowed back in the United States, but you will be subject to a ten year bar to obtaining your green card as a result of your overstay. You would require what is called an I-601 waiver at your adjustment interview. The I-601 waiver is based on hardship to your wife who I presume is a US citizen and is granted only on discretionary basis. Meaning, that your adjustment of status can be denied and you may not get your green card depending on the amount of hardship you can prove. That’s why you’re taking a chance.
Question
My father is on an H1-B visa and his employer has filed for his green card. Me and my Family are on H-4 but I am about to be 21 and thus my H4 visa cannot be renewed. I-140 for all the members of the family has been cleared but we cannot yet file I-485 as the priority date is not near. Do I have to convert my visa status into F-1 so that I can live and study here? Is there any way that I can file for my green card as when I filled my papers I was not 21 and it is because the file is pending - I cannot put forth my I-485 papers? Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card?
Answer
In this case we do not see any way around filing an F-1.
USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.
Question
I have a tourist visa to the US which expires in 2009. However, back in 2004, I was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?
Answer
My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within
USA - While in USA, your stay and status is controlled exclusively by your I-94. You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.
If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.
Question
I entered the US on a B1/B2 visa in February 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in the Fall of 2008, I transferred and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. It’s been close to 3 years now and I really wish I can get to see my family back home. I will really appreciate any advice on this matter. I don’t know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp.
Please tell me what is the best way to approach this, and the best thing that I can do?
Answer
Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.
Question
My husband went for his interview April 2008 at the Jamaican embassy and was declined due to his addiction to marijuana and he is not eligible for entry until 2009 - I have asked an immigration lawyer for help, but was told there is no appeal for this. Is there anything I can do?
Answer
The law states that anyone who is a drug abuser is ineligible for a green card or visa for 2 years from the finding of drug abuse. Unfortunately, as a practical matter, the Embassy in Jamaica is denying green cards and visas to anyone who is found to have marijuana in their system or admits to using marijuana. I have heard stories of someone stating that they smoked marijuana once 10 years ago and who was subsequently denied a visa for being a drug addict. Obviously someone who smoked once 10 years ago is not a drug addict.
Your lawyer can contact the State Department and Center for Disease Control for an advisory opinion to try to overturn the decision, if possible.
Your lawyer can contact the State Department and Center for Disease Control for an advisory opinion to try to overturn the decision, if possible.
Question
I entered the US on a visitor’s visa three months ago. My visitor’s visa is valid for period of five years. Can I stay in the US for five years?
Answer
No, you cannot remain in the US for five years. A visa allows you only to cross the US border. When you enter the US on a visitor’s visa, the Immigration Officer will staple a little white card, called an I-94 arrival/departure record, into your passport. The I-94 arrival/departure record dictates how long you can remain in the US. The Immigration Officer will stamp a date on your I-94 card. Generally, the time period the Immigration Officer will grant to remain in the US is six (6) months. You must depart the US before that date stamped on your I-94 unless you change your status to another valid nonimmigrant status or file to adjust your status to lawful permanent residence. Note: A visitor’s visa does not give you permission to work in the US. Also, if you plan to change your status to another nonimmigrant status or file for a green card, keep the I-94 as proof of your lawful entry into the US as USCIS will ask for your I-94 card in any future filings.
Question
I would like my wife to visit New York for the Holiday. She is a teacher back home. I have not filed for her because I am waiting for my citizenship to come through. Would she get problems at the consulate if she indicates that her husband is a legal resident? I don't want to make the later filing for her difficult so I want her to answer properly.
Answer
Well most important thing is not to lie. If she lies and says she has no husband, it will come back to haunt her when she applies for her green card because those records will be there. She has to prove that she has enough ties to Jamaica that she will not overstay on her visitors visa. Obviously when she states that her husband is in the United States as a legal permanent resident, it hurts her chances of getting the visa. Having a legal spouse indicates to the consular officer that she may have the intention of staying with the spouse rather than leaving the United States before her authorized stay expires. If you file for her, then certainly she would be turned down as she would have indicated through the filing that she intends to remain permanently in the United States.
Question
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?
Answer
That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases.
Question
My company applied for Labor in Oct 2007 which got approved and we filed I-140 (EB-2) in April 2008. We got a RFE in Sep 2008 and reply received by the USCIS on Oct 16th 2008. Mean while my 7th year of H1-B was approved and now it expires on Nov 2009. We have not received any updates on my case and it’s been over 90 days. My current lawyer now says that I should apply for EB-2 NIW as a backup. My concerns are:
If my current I-140 gets rejected will my 7th year of H1-B be revoked? since it was based on labor pending? What will be my options if it gets denied (can I file for Motion to reconsider). Will I still be in Status and work till November 2009? Will they extend my H1-B beyond November 2009 if the MTR is not resolved by then? If at all everything is rejected what can I do to start residency in July if I match?
If all else fails what are my options to continue working in the US? My wife is on her independent H1-B visa and I have 2 US citizen kids. I also have a US citizen brother (don’t know if that would help any).
Answer
Generally speaking, NIW is a lousy back up for a number of reasons. But we say this not knowing the merits of your situation, as your lawyer does.
The attached document explains the criteria.
Question
My fiancee visa was denied in Guyana. They gave the reason as us trying to gain immigration benefits through fraud. The question is what constitutes fraud here, if we are getting married and the date has already been set. If we get married as planned, will it make difference?
Answer
Fraud is charged on the visa application when the consular officer believes that the visa petition was filed for either “business” or for “convenience”. In short, the consular officer believes that this intended marriage is something other than for love. It is your responsibility to prove that this is a real relationship. Can you show the consular officer how many times you have visited your fiancee, called your fiancee or written your fiancee? Can you go to Guyana to set up an interview with you and your fiancee at the Embassy? Remember, the burden is on you to show that this is for love and not convenience of getting a visa to enter the United States. The fact that a date has been set for the marriage does not necessarily mean it is not a “business” marriage.
Question
I was working for company A, got stamping in May 2007 (in Canada). I Came back to US, changed to company B. Got laid off on Feb 27th, 09. I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H-1-B, received it last Thursday. Now, I am planning to go to England for a week in June, 09. Tough having a valid H-1-B stamping prior to the H4- H-1, do I still need another H-1-B stamping?
PS: I do not have H4 stamping.
Answer
We do not believe you need a new visa stamp because you already have an H-1 visa from another employer. You should be able to travel with the same visa (and a new H-1 approval). If you had ever been out of status, you would have been well-advised to get a new stamp. In your case, you appear to always have maintained status (albeit H-4 for a brief while). So, I see no issues. As always, double check with your H-1 lawyer.
Question
My employer is in the process of extending my current L-1 status for another 3 years. Current I94 is due to expire on June 20, 2009. My wife is on L2 and employed with an EAD valid till June 20, 2009. How can she extend her EAD at the same time as my L-1 is being extended? My company lawyers will not handle extending her EAD. Please advice.
Answer
I believe you have three choices. Add her L-2 extension/EAD to your L-1 extension in the same package; apply for your extension, wait for the receipt then apply for her L-2 extension/EAD; or apply for your extension, wait for the APPROVAL then apply for her L-2 extension/EAD (note that she must be in status when you apply for her L-2/EAD). I have listed these choices in the order of my preference.
Question
Would you please tell me when am I supposed to pay taxes? My wife and I both work sporadically. I pick up construction jobs when I can. My wife cleans when she can. We both get paid cash. But it will be years before we can adjust our status as our priority date is still very far.
Answer
The question of when taxes should be paid is independent of your immigration status. The tax code is very clear on its rules. If you are drawing a wage, then you should be paying taxes. Some aliens are not paying taxes because they can get away without doing it because no one knows they are drawing a wage. However, it is not that they are not required to pay taxes. It becomes imperative that taxes are filed and paid when it becomes closer to the time that an alien applies for a green card because failure to file tax returns can be grounds for denial. It is not that the tax law all of a sudden becomes applicable because the alien is about to become a Lawful Permanent Resident. The alien just starts complying with the tax law because the alien will now face consequences (denial of green card) if he does not. Hope this answers your question.
Question
My husband became a lawful permanent resident fifteen years ago. When we got married in 2005, he filed a visa petition for me. Shortly before his death last year, he became a US citizen. I then filed my green card application, and it is still pending. I’m not sure if I can still get my papers. He only became a US citizen last year. I’m scared that I will be put into deportation because I didn’t get my papers before he died.
Answer
THE RULES HAVE RECENTLY CHANGED SO PLEASE DO NOT QUOTE US ON THE FOLLOWING: Sorry to hear about the passing of your husband. Nonetheless, you should not worry because you are eligible to file for your green card. There are strict rules under which a widow such as yourself can file for adjustment of status (green card) after the death of a US citizen spouse. The Immigration laws provide that as long as you were married for at least two (2) years at the time your husband died you are eligible to file a widow petition. It does not matter that your husband was not a US citizen the full two (2) years preceding his death. Nevertheless, you must file the widow petition within two (2) years after his death. In your case, you are eligible to file for the widow petition.
Question
My family and I are in the U.S. illegally. We are waiting to apply for our green cards. My category is married son and, as you know, is still years behind. I already know that we cannot get work permits until we can apply for our green cards. But I want to know if the fact that we have an approved petition will protect us from detention and deportation. Thanks for answering my question in advance.
Answer
Unfortunately, an approved petition without access to adjustment of status (green card) is insufficient to protect you against removal. You may have other relief from removal depending on how long you have been in the United States, your character and the other relatives you have in the United States. If an Immigration and Customs Enforcement Officer arrests you, you are eligible for release if you are not subject to mandatory detention - not a criminal, not subject to a previous order of deportation/removal. You will be able to apply for release on bond and will be set for a hearing before an Immigration Judge. We hope that you are able to stay “under the radar” until you and your wife are able to apply for your green cards.
Question
I am in the US on a student visa. I just finished my first year of college. Right now, it is up in the air whether I can go back in the fall because college turned out to be more expensive than my parents and I thought. I have a summer job that pays cash and am saving everything I can to make the fall’s tuition, but don’t know how I would pay for the spring semester. My parents want me to either go to college at home where it’s cheaper or work for a year in the US and save money for tuition. Any advice?
Answer
College always seems to cost more than the brochures say. If you do not wish to interrupt your studies or transfer to at school at home or another less expensive school, I suggest you look into loan companies that specialize in educational loans. Review the terms carefully and see if you’re ready to take out loans of this size.
If you take the entire year off to work, you may put yourself at risk. Your student status is valid only so long as you’re going to school. Now, you might be able to go right back and no one will ever know, but if the school does not process your I-20 in a year’s time or immigration finds out some way, you will be found to be out of status and will have to file a petition to reinstate your F-1. A petition to reinstate must provide compelling reasons why you discontinued your schooling. Additionally, your work would also violate your status unless you file a change of status application to a status that allows authorization to work. Because of your financial hardship, you may be eligible to file for off-campus work authorization through your F-1 during the school year. Maybe you can find a job that will allow you to continue your schooling. I wish you the best of luck.
If you take the entire year off to work, you may put yourself at risk. Your student status is valid only so long as you’re going to school. Now, you might be able to go right back and no one will ever know, but if the school does not process your I-20 in a year’s time or immigration finds out some way, you will be found to be out of status and will have to file a petition to reinstate your F-1. A petition to reinstate must provide compelling reasons why you discontinued your schooling. Additionally, your work would also violate your status unless you file a change of status application to a status that allows authorization to work. Because of your financial hardship, you may be eligible to file for off-campus work authorization through your F-1 during the school year. Maybe you can find a job that will allow you to continue your schooling. I wish you the best of luck.
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