Published on the World Journal Weekly on June 5, 2016

Q&A 1


With Mother LPR, Father and Brothers USCís, and Being Here Almost 9 Years, What Are Options to Get Green Card?


I am 29 years of age, male from Taiwan, and came to the U. S. in December 2007. My  brothers are U. S. citizens, my mother is permanent resident, and my father is a U. S. citizen. In my situation, what are my best steps to get the green card through my family’s sponsorship?

Dear reader,
 
I will assume for purposes of your question that you are not holding legal status at present. If you are single, your mother can petition you under the F-2B category for unmarried sons and daughters of permanent residents. The waiting time is approximately 7-8 years. Your US citizen father can petition for you under the F-11 category as the unmarried adult son of a US citizen, and the waiting time is approximately 8-9 years. If you are married, your category would be the F-3 category for married sons and daughters of US citizens, which has a backlog of approximately 11 years. Your brothers can also petition for you under the F-4 category in which the backlog is approximately 12 years. At the end of those time periods, you may be able to adjust status in the US if the law has changed or you have the benefit of §245 (i) under which individuals can pay a fine amount of $1000 to adjust status if they have the basis for doing so and had a labor certification application or immigrant visa petition filed by April 30, 2001 and were physically in the US on December 21, 2000. §245 (i) privileges could also come to you if you are listed as a dependent with a parent who may have qualified for §245 (i) benefits even if you aged out during the process of your parent's immigration. Otherwise there is also the possibility that you may be able to seek a waiver of the 10 year bar for staying in the country illegally for over one year while you are in the US (the I-601A waiver will be expanded later this year to include other classes than immediate relatives of US citizens), see the result before deciding to attend a consular interview and if approved, travel overseas for a normal immigrant visa interview.

Q&A 2

Reader Wants to Know How She Can Work Under H-4 Status in a Variety of Situations Involving Her L-1B, H-1B, H-1B Visa Transfer, and Possible Premium Processing.

I am on L-1B, my wife is H-1B, and we both work for the same company X. She will soon quit company X for company Y and that company will premium process her H-1B transfer. Since I do not have much time left on my L-1 visa, I want to change over to H-4 and apply for work privileges. So my questions are 1. Should I give notice to company X since I don’t want to work there anymore anyway when I get the receipt notice for the H-4 transfer or wait until the H-4 is approved?  2. Can we also use premium processing for my L-1 to H-4 change of status so that both cards and statuses can be obtained at the same time?  3. Is it better for me to continue working for company X until my wife’s H-1B transfer is approved or can I just quit once we send in the paperwork?.

Dear reader,

H-4's can only work under the conditions that the spouse has an I-140 preference petition approved or is seeking an extension past the maximum time, six years, of H-1B status. This latter situation occurs when the H-1B principal has a labor certification application which has been pending for 365 days. Otherwise your plan to work on H-4 status is not viable. If you are so eligible, and you obtain work authorization under H-4 status, your ability to work is dependent upon your wife’s continuing to be in valid H-1B status.

Q&A 3

How Can U. S. Citizen Help Brother from China (but Here Now) Where Parents Have Passed Away?

I came to the U. S. about 10 years ago, went through the immigration process, and am now a U. S. citizen. My brother is 22 years of age and just came into the country as an F-1 student. Our parents are deceased. Can I sponsor him for the green card? I know that it takes a long time, but does my filing stabilize his status here so that he can stay here, study, and later work while he is waiting?

Dear reader,

As a US citizen, you can petition for your brother, but the waiting time is approximately 12 years and the circumstances that you describe would not expedite the time for F-4 visa availability to clear. In addition, your filing an I-130 petition for a brother under the F-4 category does not allow him to stay during the approximate 12 years. He would have to maintain a valid nonimmigrant status to be considered legally here in the country. In your brother’s situation, other immigration options could open to him in the future such as marriage to a U. S. citizen or permanent resident in a bona fide marriage assuming that he is single, or going through the traditional route of completing his schooling, obtaining optional practical training status, then perhaps an H-1B visa for a person of specialized knowledge, and ultimately being sponsored by an employer for the green card.

Q&A 4

Reader Wants to Know How to Sponsor Newly Married Husband for Green Card.

We just got married recently, and my husband came to the country about 2 years ago as an F-1 student. He is still going to school now doing his masters at New York University. Can you tell me the immigration forms that I have to go through to sponsor him?

Dear reader,

I will assume for purposes of your question that you are a US citizen. A marriage based case would require the filing of forms I-130 petition for alien relative, I-485 application to adjust status to permanent residence, G-325A biographic data sheets for both of you, and if he wishes to travel during the time of the process, form I-131, and employment I-765. He will also require a medical examination on form I-693 and you will have to file an affidavit of support on form I-864. You can find forms and instructions on the U.S.C.I.S. website at uscis.gov.

Q&A 5

Am I Able to Sponsor Myself for the Green Card Through My Special Talents in Science?

I have both masters and PhD in biochemistry as well as 20 scientific papers in peer-reviewed journals. Do I have enough to basically sponsor myself for self immigration through my special talents in the field of science?

Dear reader,

If you have cutting edge work in a particular area, you may be able to immigrate under a national interest waiver under which you would be eligible to apply by showing the advanced degree and that your inability to immigrate would damage the national interest. The other category for self sponsorship, EB-1A for extraordinary aliens, appears to be a stretch even with your publications. Of course, first author credit for articles in prestigious magazines such as Science or Nature might be very persuasive for EB-1A consideration. Otherwise you would need the assistance of an institution or organization which could use you as an outstanding professor or researcher, but that category under the EB-1B preference is not truly self-sponsorship.  You would also need an additional qualification other than just published papers to qualify.

Q&A 6

Are There Restrictions on Marrying Someone Who is Illegal and Under an Immigration Bond?

I met a wonderful person, and the only bad thing is that he is undocumented, was picked up by Immigration, and is now under an immigration bond. Can I marry him under the circumstances?

Dear reader,

There is nothing under US immigration law that would preclude your marrying someone who is out on an immigration bond. Whether you will be able to assist him with his immigration problems through the marriage is another question altogether and may certainly depend upon the circumstances of his case.

 

Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.

 
   
 

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