Published on the World Journal Weekly on January 7, 2017

Q&A 1 2 3 4

Am I Eligible to File for Naturalization Where I Have a Tax Payment Agreement with IRS?


I did not pay my U. S. taxes from 2012-2015, was audited, and I have entered into a tax payment agreement with the Internal Revenue Service. I am current on my payment obligations under the agreement. Am I allowed to file for naturalization at this time?

Dear reader,

The N-400 form for naturalization not only asks whether a person owes any overdue taxes, but if the person has ever not filed a tax return since becoming a lawful permanent resident. I assume that you would be answering at least yes to the second question. The answer may well depend upon your motive for not having paid the taxes for those years. If intentional and you knew that the taxes were owed, you may have committed tax evasion, which is a crime. Admission of such even without a conviction may cause a denial of a naturalization application based upon lack of good moral character. As an immigration lawyer, I do not profess to have knowledge of criminal law, and can only quote from a website that states “Criminal tax evasion involves not only not paying your taxes, but also demonstrating a willful attempt to avoid paying and taking specific actions to avoid generating financial paperwork. These specific actions include tricks such as putting your assets in another person’s name, or receiving pay under the table to avoid getting a W-2.”  For naturalization purposes, an individual must maintain good moral character for the period of time for which good moral character is required. Where an individual is applying for citizenship on the basis of 3 years (marriage to a U. S. citizen for 3 years, the U. S. citizen having citizenship for 3 years, and living together constantly during the 3 years), the period of good moral character is 3 years. Otherwise the period of time required is 5 years.

Q&A 2

What Do My H-4 Wife and 2 Children Do In The Situation Where My First Employer Filed Her Extension Papers Late, And I Am Now With a New Employer on the Pending Transfer?

I was with the employer A, my original H-1B sponsoring company, with expiration date of April 21, 2017. Employer A filed for my extension in April, but his lawyer did not put in my wife and the kids, and only filed for her extension when I asked about it in July 2017. In the meantime, I got another job offer from employer B, who put in H-1B transfer papers for me and the process is still pending. In the meantime, nothing else was done for my wife. What should happen now? Can I remedy the situation?

Dear reader,

In your situation where your dependents already have an H-4 extension pending and you have a new H-1B transfer process with another employer, I believe that the best move at present would be for your spouse or lawyer who filed the H-4 extension to speak with the National Customer Service Center of U.S.C.I.S. (1-800-375-5283) and ask to have the pending H-4 reattached to your pending H-1B. If that does not work, you may think about filing new H-4 extension papers for your family with an explanation of the circumstances of the late filing and of the pending H-4 extension with the prior H-1B petition.

Q&A 3

Can My Husband Go To Another U. S. Consulate For F-2 Visa Processing?

I am a student in the United States, and went home to China to get married in January 2017. Afterwards, my husband began to apply for F-2 dependent status to join me in the United States. He said that he would only be staying with me for a short period of time before returning to his work. After interview, the consul office gave him a paper instead of a visa and said they needed to do background checks. In April, he was called for another interview, asked a few questions, and told that more checks remain to be done. It is now been 8 months after the 2nd interview without word although we keep trying to check with the consul office. Now my husband is being transferred by his company to South Korea. Can he now apply for the F-2 visa in that country? We were informed that such could not be done.

Dear reader,

Whether your husband can apply successfully for the F-2 visa in South Korea instead of China may depends upon the view of the interviewing officer. Under the current system of nonimmigrant visas where the DS-160 application form is available to all consular officers anywhere in the world, a consular officer may believe that he or she has enough information to make the adjudication. On the other hand, the consular officer in South Korea may believe that he or she is not sufficiently familiar with local conditions in China and may further believe that the consulate in China is more knowledgeable and the decision should be made by them. The bottom line is that your husband can make the application, but should be prepared for a response that he should seek the visa in his home country.

Q&A 4

Does My Husband Have to Return to the Consulate in Jamaica to Turn in His H-2B Temporary Worker Visa If He Already Filed His Application to Adjust Status in the United States?

I met my husband when we were both working at a lobster restaurant in Massachusetts. I was a waitress and he was working in the kitchen under the restaurant’s H-2B visa program for summertime help. We became serious and married at the end of the season in September. The restaurant kept telling him that he had to go back home to turn in his visa at the American consulate. After we got married, we filed for my husband’s adjustment of status application to permanent residence. We now have the receipt, and my husband will go for his fingerprints appointment in 2 weeks. But we’re still worried as to whether he should have to go back home to return the visa. What should we do?

Dear reader,

It is understandable why the restaurant has the attitude that its temporary workers should go back home. It may be worried that it will receive a black mark for any worker who overstays when it again tries to participate in the program for the next year. Legally speaking, however, an individual applying for adjustment of status to permanent residence is not obligated to leave the US to turn in a nonimmigrant visa of the H-2B variety. Your husband can stay and adjust status as long as he is otherwise eligible for the privilege, e.g, has not committed crimes, does not have any problems with mental disorder, drug addiction, alcoholism, is not a member the Communist Party or any terrorist organizations, etc.


Copyright © 2003-2018 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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