Published on the World Journal Weekly on July 29, 2018

Q&A 1 2 3

Son Wants to Apply for Mother Previously Denied at Consulate in a Marriage Case Any Foreseeable Problems?


My parents were divorced in 2002, and my mother remarried a U. S. citizen in 2004. He applied for her and she had an interview at the American consulate in Guangzhou in 2005 at which time she was denied because the consular officer was not convinced that the marriage was bona fide. I came to the U. S. through my marriage to my U. S. citizen wife in 2014 and just became a U. S. citizen this year. If I apply for my mother, will she have a problem from her old case or will she be OK since she is now applying on the basis of my application for her?

Dear reader,

The difficulty with cases that are rejected for the consul’s not believing the marriage is that U. S. law will not allow a person found to have engaged in a fraudulent marriage to immigrate under any visa petition category to the U. S. If your mother has proof that the marriage is indeed bona fide such as a child with the U. S. citizen husband or much proof that they had a bona fide relationship from 2004 for a long period of time such as constant communications, correspondence, monies sent from the husband to the wife, trips to China over the years by the husband to visit her, etc., she could put that forward to erase the presumption of fraudulent marriage. Lacking that, some consular officers may still have doubts in their minds on the bona fides of the marriage, but settle upon allowing the applicant to file an I-601 application to waive grounds of inadmissibility – in effect, leaving the decision up to U.S.C.I.S. Other consular officers may be fully convinced that there was a fraud marriage, and simply deny an application like your mother’s without giving recourse to any relief.

Q&A 2

Cap-exempt H-1B Moving to Non-cap Exempt H-1B Got RFE, Company and Applicant Have Questions.

My current H-1B is non-cap and with a university in the Northeast. It will expire on August 31, 2018. The school is not applying for an extension, and I worked it out with a private company to sponsor me for a cap H-1B in April. I was selected, but we just got a request for evidence (RFE) from U.S.C.I.S. that asks a lot of questions as my new employer is a computer consulting company. The company lawyer says that any response will take about 60 days to process from the time that we send it back. Assuming that we will not get a final answer until after August 31, what are my options? I began working with the private company since June 25, 2018, while still working for the university. Can I continue to work after August 31? Can I travel out of the U. S. during the time that the RFE is being processed?

Dear reader,

In your case, any authority to work as concurrent employment with the private company while at the university would cease when the H-1B work ends with the university. At that point, you would have to wait for the H-1B by the private company to be approved before continuing to have the authority to work for it. (Please note that as a cap H-1B only begins on 10/1/18, you would have to wait until that date even if the petition is approved in September). During the time that you are still working for the university, you can travel outside the U. S., but only upon the expectation that you will continue to work for the university when you reenter the States. If you are not visa exempt or have a current H-1B visa, please be aware that it may take time for the U. S. consulate or embassy to process an H-1B visa for you. In that situation, there is also the possibility that administrative processing or denial at the consulate or embassy could leave you with no option to return to the U. S. until the H-1B at the computer consulting company is favorably adjudicated.

Q&A 3

I-485 Adjustment of Status Application Was Denied Because of Medical Examination Mistake by Doctor Should I Appeal or Refile?

I filed my I-485 application to adjust status to permanent residence based upon employment with my company in 2016. For some reason, my case took a long time, but I received a message from U.S.C.I.S. in March 2018 to give in a new medical examination because the old one had already expired. I went to the doctor’s office, took all the new tests, and sent in the medical result in a sealed envelope to the Texas service center. I just received a denial of my I-485 in late June saying that the medical result that was in the envelope was only a copy and not an original and that I had not given a sufficient response. This is baffling to me because I did not have a chance to look at what the doctor sealed in the envelope. Can I appeal the case? Can I refile?

Dear reader,

At this time, the choice appears to be between filing a motion to reopen with a new medical or refiling your I-485 case. (The law does not allow an appeal of an I-485 denial at this stage. U.S.C.I.S. is not likely to issue a notice to appear (NTA) to you for you to go before the immigration court under your circumstances.) Some factors that you may wish to take into account are that a motion to reopen is variable in time and with uncertain result while a new I-485 filing generally adheres to published processing times of U.S.C.I.S. and the result would likely be favorable if there are no other inadmissibility factors. Please note that any motion to reopen must be received by U.S.C.I.S. within 30 days of its sending you the decision. Good luck to you!


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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