Published on the World Journal Weekly on November 13, 2016

Q&A 1 2

With H-1B Stamp in Passport, Is It Ok For Me to Come to U. S. Under B-1/B-2 Visa?

4 years ago, I got an H-1B to work for a company in the U. S. I quit the job after 2 years and moved back home to China. Afterwards, I requested and received a B-1/B-2 visa to visit the U. S. About a year ago, I was petitioned under a cap exempt H-1B which was approved, and I just had the H-1B stamp put in my passport 8 months ago. Now I need to travel to the U. S. on business unrelated to the new H-1B employer which says that it does not have work for me at the moment and I suspect its business is failing. Will I have a problem at the airport because of this when I enter?

Dear reader,

It would likely be safe for you to enter as a visitor although you may have to explain to a Customs and Border Protection (CBP) officer why you are also holding an H-1B visa. As long as you can convincingly explain the B-1/B-2 purpose of your trip, you should be allowed to enter. If you are here and manage to find another organization that can sponsor you for H-1B status, you could possibly apply for a change of status (although a request close to the time of your entry could raise questions concerning your actual intent when you entered) or leave the US and reenter on the basis of a newly approved H-1B petition. As you already have an H1B visa in the passport, you would not have to go through the stamping process again.

Q&A 2

Where Petitioner Dies, Can the Petition be Continued Under Another Preference Class Where the Circumstances of Person Being Sponsored Change?

My mother petitioned for her married son 5 years ago, the petition was approved 3 years ago, and mother died last year. We know that her brother can take over the petition under humanitarian reinstatement if that is approved. But our question is what happens to the petition since the married son just got divorced? Does the case change from the F-3 category to the F-1 category?

Dear reader,

Immigration has special rules for taking over petitions when the petitioner passes away, and I will assume from your fact situation that the conditions have already been met for your mother’s brother to take over. I see no particular reason that the change in category cannot be made even though your petitioning mother has passed away. The purpose of humanitarian reinstatement is to allow a case to continue as it normally would if the petitioner had not passed away. It would be anathema to the idea of humanitarian reinstatement to now stop the case because of the change of circumstance. The change in category would be automatic as soon as the son divorced. In addition, a divorced individual would generally be in greater need of being surrounded by immediate family members than one who is already married and living with someone else.


Q&A 3

Will Late Registration of Birth Give Me a Hard Time at The Interview?

I was petitioned as a minor child by my father who has a green card. The interview will soon be coming up, and I’m wondering whether my late registered birth certificate will give me a problem when I am interviewed for the green card. Please comment.

Dear reader,

Whether your final interview for immigration is before U.S.C.I.S. or an American consular officer, you may certainly be requested for further proof concerning your birth since your birth certificate was late registered. Other evidence that may be considered are schooling records, baptismal certificates, church records, census records, or affidavits in lieu of birth by persons who knew of the event of your birth at the time that it occurred and are at least 7-8 years older than you.  Where there is a late registered birth certificate, it is better to have other proof, especially as the relationship as described in the late birth certificate is central to the preference category that you are applying under.


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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