Published on the World Journal Weekly on December 25, 2016

Q&A 1 2 3 4 5 6

Am I Eligible for the I-601A Program If I Came Into the US Under K-1 and Did Not Marry My Petitioner?

I was sponsored by my ex-fiancé and came to the US under K-1 visa in the year 2000. For some reason, we never married. In 2010, I fell in love with someone else, an American, and we married and now have three children. I know from going to talk with a few lawyers that I am not eligible to adjust my status because I came in as a fiancée and did not marry. Also that I am barred for 10 years from coming back if I go out of the country. I also hear that there is the I-601 A program in which I can get a waiver of the 10 year bar if I process my case at the US Consulate overseas, and that I would know the result of the waiver application before I left the US. Is that true and am I eligible for the program?

Mr. Lee answers,

The I-601A program is one that was put into effect by the Obama administration and allows individuals to apply for and know the result of a waiver application of the 10 year bar (incurred by unlawful presence in the US for one year after 4/1/97) before deciding to leave the US for a consular interview. Before the 1-601A came into effect, there was only the I-601 whereby someone who was not eligible to adjust status but still wished to consular process his or her immigration case would first be denied by the American Consulate and then be invited to file a waiver application. The individual would have to remain in the home country while the waiver application was being adjudicated. This caused a hardship with many individuals because of the long separation of the applicant from the family members when the applicant was overseas. The I-601A like the I-601 application tries to determine whether the alien's long-term absence from the US would result in extreme hardship to the qualifying relative, in this case your US citizen husband. But you should also be aware that an I-601A only excuses unlawful presence and not any other ground like fraud or misrepresentation. If there is a determination that you did not have an intent to marry the petitioner of your K-1 visa at the time that you made application for the visa or at the time of your entry into the US, you would be barred from returning to the US even if you had an I-601 A approval. A finding of fraud in a marriage or fiancé case also brings about a permanent bar.

Q&A 2

Can I get a New H-1B Without Going Through the April Lottery If I Only Used Two Years of the One That I Got in 2006?

A company sponsored me for H-1B in 2006 and I worked there until 2008. I went back to China, and came back in 2014 to work on my second Masters degree. I am about to graduate, but heard from the school that I cannot have OPT because I already had it with my first Masters degree. Another company is interested in sponsoring me at this time, but cannot wait until I go through the H-1B lottery in April and begin with them in October. Is there any way that I can use the remaining four out of my six-year limit on H-1B and avoid the H-1B lottery?

Mr. Lee answers,

The question that you asked was previously controversial with U.S.C.I.S., and there were different answers. That was because some officers thought that you could only recapture the remaining time of an H-1 B if it was within six years of the start date. It is clear that that is not your situation as it has been 10 years since your start date. Other officers took heed of a U.S.C.I.S. memorandum that suggested that the time could be recaptured despite the passage of six years. The controversy has been resolved in a final rule of the agency effective January 17, 2017, that states that there is no time limit for recapturing time which was not used in a previous H-1B. As the rule was announced on November 18, 2016, it can be presumed that U.S.C.I.S. officers are taking the rule into consideration in their present adjudications.


Q&A 3

A Restaurant Chain Saysting Me to Work at the Local College - C That It Can Get Me H-1B Approval by Putan This be Done?

I interviewed last week at a restaurant chain that has a restaurant at the local college. I have a visitor’s visa that will expire in February. The interviewer was impressed by the fact that I had a food degree and said that the company could get me an H-1B specialized occupation visa by January because there was an exception given to someone who works at a college. Is this true and can it be done?

Mr. Lee answers,

There is an H-1B cap exemption for persons working for a private employer "at" a qualified cap exempt organization, such as an institution of higher education so that the H-1B applicant does not have to go through the H-1B visa lottery in April. The final rule of immigration that will come into effect on January 17, 2017, clarifies that the majority of the worker's duties must be performed at the qualifying institution, and the job duties directly and predominantly must further the essential purpose, mission objectives or functions of the qualifying institution. In your case, it would be questionable as to whether your working in a restaurant chain's location on campus would be seen as furthering any of the institution's purpose, mission, or functions. You may wish to ask the company's track record on obtaining H-1B petition approvals in this situation before going further.


Q&A 4

Moving from Employer A to Employer B, Company B Filed Late H-1B - What To Do Now Since Immigration is Asking About it?

I got my H-1B from employer A in October 2014, and moved to a new company, employer B, in June 2015, but the company did not file for my new H-1 B until September 2015. Now Immigration has sent back a request for evidence that I was with employer A until September 2015. What can I do?

Mr. Lee answers,

I will assume that you did not continue working for your first employer even after you moved to the new company. You are technically out of status and will likely have to leave the country to obtain your H-1 B status. If you are a Canadian national or have an existing unexpired H-1 B visa in your passport, you would be able to leave the US and reenter without having to seek another visa at a US consulate or embassy. That presupposes that you have not been denied on the extension part of the H-1 B petition. Without one of the situations described above, you would have to apply for and receive an H-1B visa at a US consulate or embassy before returning to the US.


Q&A 5

I Had an H-1 B Petition for Six Years, Went Back Home, and the Company Just Got an I-140 Approved. What to do Since the Lawyer's Office Says It Will Take 3-4 More Years?

I was with a company for six years under H-1 B status, but the boss only began being  serious about sponsoring my green card when I was about to leave. I got a call from the lawyer's secretary yesterday that the company's 1-140 petition on my behalf had just been approved. However, because I am in the second employment category from China, and the boss only started sponsoring me last year, she said the lawyer said that it will take at least another 3-4 years for me to immigrate under the quota. Is there anything else at the company can do to have me come back sooner?

Mr. Lee answers,

If the company wishes to do it, it can file an H-1B petition for you at this time. Under a special provision of the law, AC-21, you are allowed another three-year stay on your H-1B because you have an 1-140 petition approved and your immigrant visa is not now available. Previously there was controversy as to whether a person in your situation could take advantage of the additional time since there was no remaining time on the H-1B, and one school of thought was that you could not have an H-1B extension without anything to extend. However, in a final rule that will be effective on January 17, 2017, U.S.C.I.S. has made clear that the use of this provision does not require an individual to be in H-1B status or in any particular status to be allowed a new period of stay on H-1B visa status.


Q&A 6

Can I Keep My Priority Date of My Approved I-140 Petition If My Employer Revokes It by Sending a Letter to U.S.C.I.S.?

My company sponsored me for the I-140 immigrant visa petition in 2014. It was approved in 2015. I am unfortunately under the China quota and am still waiting for my priority date to become available. The problem is that the company and I had an argument and I was laid off last month. The boss also says that he will talk to the lawyers about sending a letter to U.S.C.I.S. to revoke my I-140 approval. Can he do it even though it has been a year since the petition was approved?

Mr. Lee answers,

The short answer is that he cannot unless there are extenuating circumstances. U.S.C.I.S. is making this very clear in the final rule effective January 17, 2017, that allows priority dates to be retained for purposes of subsequent  I-140 petitions except when U.S.C.I.S. itself revokes the approval of a petition for material error, fraud or willful misrepresentation of a material fact, or revocation of or invalidation of the labor certification accompanying the petition.


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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