Q&A’s published on Lawyers.com and the Epoch Times on May 17, 2019 1. Can I Fix Papers for My Mother And My Wife? 2. Would I Have Problem Transferring to a New Employer on May 15 2019 If My Current Employer Has Filed My H-1B Application on April 1st 2019? 3. Travel Back to Home Country After H-1B Max-Out. Can I Travel Back After H-1B Extension Approval (After I-140 Approval)?

1. Can I Fix Papers for My Mother And My Wife?

Mr. Lee answers:
Whether you can fix papers for your mother and your wife depends upon your personal circumstances of US citizenship, your age (must be over the age of 21 if the US citizen is to sponsor a parent), your financial status, the statuses of your mother and your wife, the bona fides of your marriage, any bars that they may have which would preclude them from immigrating to the country, and how they entered the country. With this information, an immigration lawyer would be able to give an opinion as to your ability to fix papers for your mother and wife.

2. Would I Have Problem Transferring to a New Employer on May 15 2019 If My Current Employer Has Filed My H-1B Application on April 1st 2019?

I am on F-1 OPT status working for a company. My current employer has applied for my H-1B on 1st April 2019. However, I am thinking to change my employer and start with the new employer on May 15 2019. If my H-1B gets selected, would the H-1B application get revoked if I start with the new employer? Also, if H-1B gets selected and I change the employer due to which H-1B application gets revoked, would I have problems transferring my status into new company based on my current EAD OPT status valid until June 2019?

Mr. Lee answers:
If U.S.C.I.S. has selected you for H-1B under employer A, and you then put in papers to change your H-1B selected case to employer B in May, there is every likelihood that your H-1B cap selection would be revoked. Since the selection is not an approval which would change your status, your OPT EAD should still be valid to allow you to work for an employer until June in the field of your major.

3. Travel Back to Home Country After H-1B Max-Out. Can I Travel Back After H-1B Extension Approval (After I-140 Approval)?

I am currently on H-1B visa and my H-1B max-out date is 4th June 2019 (6 years completed). Max-out date is calculated after considering the time out of US during H-1B term. My employer will file my I-140 application in premium processing by 19th May. My spouse is also working on H-1B and currently in US. 1) In a scenario if I stay in US till 4th June 2019 and my employer is unable to submit H-1B extension request based on I-140 approval till 4th June, what are the option available: a) Travel back to home country India on 4th June – Once H-1B extension is submitted and approved while I am in India, will I be able to travel back to US once H-1B extension is approved. b) Are their any rules/restrictions which stops me from traveling back. 2) If I travel back to my home country before (ex:25th May 2019) H-1B max-out date 4th June 2019, does it improve any chances for coming back to US when H-1B extension (applied after I-140 approval) is approved. Thanks

Mr. Lee answers:
One option that you can consider is making an application to H-4 to cover any possible time that you may be out of status. Although your current max out date is June 4, 2019, the regulations allowing a 10 day grace period following the max out date can be used to keep you in legal status for purposes of extension of status or change of status or other permissible non-employment activities such as vacationing prior to departure. Hopefully your I-140 petition will be approved in time with the 10 extra days. If you do decide to travel back to the home country, you are able to return to the US as long as you obtain an H-1B visa from the American consulate or embassy. I do not see that going back to your home country at an earlier date than the maximum period of time that you are allowed would increase your chances of obtaining a visa.

 

Q&A’s published on the World Journal Weekly on May 12, 2019 1. What Can I Do When My H-1B Transfer Petition Gets a U.S.C.I.S. Request for Evidence and I Have Already Transferred to The New Employer? 2. Does A Step Relationship Survive a Divorce Where There Is A Remarriage? 3. What Should I Do With My Pending Asylum Case When I Am Now Married to a U.S. Citizen? 4. Daughter Gave Up the Green Card For Leaving the Country For Too Long – Can She Get It Back?

1. What Can I Do When My H-1B Transfer Petition Gets a U.S.C.I.S. Request for Evidence and I Have Already Transferred to The New Employer?

I worked for company A under H-1B status and was then sponsored by company B for the H-1B transfer, and I moved to the new company when it received the filing receipt from U.S.C.I.S. That was legal as confirmed by the company lawyer. Now we have received a request for evidence from U.S.C.I.S. asking it to explain why my position of business analyst is a specialty occupation. My company has 45 people in it and creates business software for Wall Street finance firms.

Mr. Lee Answers:
Your case sounds reasonable for success in answering the request for evidence, especially if the company lawyer is well-versed in H-1B law. Your options are to stay with the company which is sponsoring you until it receives the decision, or if you feel extremely negative about the chances of success and company A has not yet taken steps to cancel your H-1B status with U.S.C.I.S., you can go back to work for company A. Further steps to involve a third company sponsorship to stay here in the US without leaving or to change status to another category would be dependent upon the success of company B in responding to the request for evidence. This is not to say that the above are all the options, but quite probably are the most relevant to your situation.

2. Does A Step Relationship Survive a Divorce Where There Is A Remarriage?

I am a US citizen and want to know if I can sponsor my stepmother who married my father when I was six years old, divorced him when I was 13, and remarried him when I was 21. They love each other and I am very fond of her as she basically raised me and even lived together from time to time during the time that they were divorced.

Mr. Lee Answers:
A step-relationship lives and dies in the duration of the marital relationship. There is no blood involved, and so a divorce effectively ends a step-relationship. A later marriage would not serve to revive the relationship in the past. Your stepmother would have to find another means to immigrate, most likely through the petition of your father if he is either a US citizen or green card holder.

3. What Should I Do With My Pending Asylum Case When I Am Now Married to a U.S. Citizen?

I applied for political asylum in 2017 and have not yet been scheduled for an interview at the asylum office. In the meantime, I have married a US citizen who will sponsor me for the green card. What should I do know? I entered the US with a visitors visa and have no problems with fraud or crimes.

Mr. Lee Answers:
There are two schools of thought on how to proceed – one is to file the paperwork for the green card and then ask to have the asylum case closed and the second is to file for the green card and keep the asylum case going as a backup. We favor the first approach as it is the less complicated route and there is a distinct possibility that the asylum applicant may not be allowed to withdraw at a later stage.

4. Daughter Gave Up the Green Card For Leaving the Country For Too Long – Can She Get It Back?

My daughter went overseas to study when she have the green card, and did not return for three years. When she did, she was given the choice of either giving up the green card or seeing the immigration judge. She gave up the green card. Two more years have since passed and she is finished her studies and wants to return to the US. Can she still return on the green card? If she had it, it would still have three years left on it.

Mr. Lee Answers:
If your daughter already gave up the green card, it would be difficult to reclaim it at this time. A more likely scenario would be re-petitioning for her green card. If you are a US citizen or permanent resident, you can file an I-130 petition for alien relative on her behalf.

Q&A’s published on Lawyers.com and the Epoch Times on May 10, 2019 1. How Can My US Citizen Husband File A Visa For My Mother to Come to the U.S.? 2. Expired Working Visa 3. What’s My Best Option to File I-751 Form to Remove of Conditional Green Card?

1. How Can My US Citizen Husband File For a Visa For My Mother to Come to the U.S.?

I am a green card holder currently not working because I gave birth 50 days ago.  Now my husband wants my mother to come and assist me with my baby while I return to work and school.  My mother doesn’t have a house and my father passed away. Will it be an issue since my husband will be the one supporting her?

Mr. Lee answers:
It is doubtful whether there is a visa for your mother that fits the purpose that you wish. Typically a visiting visa is for a parent who only wants to help out for a short period of time. In your case, you appear to be contemplating a long-term arrangement. That is not the purpose of a visiting visa. You are not eligible to sponsor her for permanent residence as you are only a green card holder. Your husband does not have the relationship to sponsor her for permanent residence. In the event that you change your plans and decide that your mother will only visit a short time to assist you, she would apply for a visiting visa and your husband could supply the appropriate letter guarantees that your mother will not have to work to support herself along with an I-134 affidavit of support, proof of his income, assets, and tax return.

2. Expired Working Visa

Visa expired two years ago, and Jamaican passport is up in one year. Still in the US. What can be done? Will I get deported?

Mr. Lee answers:
Although Pres. Trump would like to have all undocumented immigrants out of the US, there are approximately 11,000,000, a Herculean task. Most likely you would just join the ranks of the undocumented. If you wish to see what can be done about your immigration, you should consult an immigration lawyer who can go through your possible options.

3. What’s My Best Option to File I-751 Form to Remove of Conditional Green Card?

I got married with an American in June last year. I got approved for conditional residence in January 2017 (we had been dating for years, he came to visit me to my home country twice, it is evidently a good-faith marriage), but since I came here I found out he had been committing adultery for years and has a sex addiction. We’ve been to counseling and he’s in the program (going to SA meetings) and also going to individual therapy. We are in a good place, although I am not sure if this is what I want for the rest of my life. He is willing to accept any decision I make (whether I want to stay or leave) and file jointly for Form I-751 if that’s what I want to do. What is my best option? Is it better if I try to stick with him for two years and we file jointly, even if I decide I don’t want to be with him? Is it better if I file for divorced claiming adultery and present evidence for this?

Mr. Lee answers:
The choice of whether to file jointly or otherwise is up to you.  It may depend upon your tolerance of your husband’s life style for the foreseeable future. Another option is that if you have all the proof of having lived with your husband and also that he has a sex addiction and that you have both been going to counseling, you would most likely be able to remove the conditions on your residence status by filing form I-751 on the basis of having had a bona fide marriage which has ended. Such an application requires a divorce.

Q&A’s published on Lawyers.com and the Epoch Times on May 3, 2019 1. Due Process And DNA, If An “Illegal” has Blood Native to American Soil, Are They Illegal or a US Citizen? 2. Is the Process of Conversion of Status From H-4 to F-1 Easy And If So, Is It Necessary to Get F-1 Visa As Well? 3. If My Visa Expires Today How Long Do I Have to Leave the Country?

1. Due Process and DNA, If An “Illegal” Has Blood Native to American Soil, Are They Illegal or a US Citizen? Pres Wilson Declared All Natives Are!

Should all Trump detainees be DNA tested so as to prevent a US citizen from deportation?

Mr. Lee answers:
The generally held view is that individuals who are claiming to be U. S. citizens must affirmatively make that claim to the Department of Homeland Security if they wish to be recognized as such, and that it is not the duty of the government to ensure that they are not before moving against them in removal proceedings.

2. Is the Process of Conversion of Status From H-4 to F-1 Easy And If So, Is It Necessary to Get F-1 Visa As Well?

I am going to get married to my fiancee who is currently on H-1B visa in US. Post marriage, how should I join him? With H-4 visa, then after a year apply for F-1 status or apply for F-1 visa from the beginning? Which way is safer, and would lead me to living an independent life in terms of work and study options. Please suggest which way is safer? Conversion from H-4 to F-1 is it easy to get it done.

Mr. Lee answers:
If you are overseas, your then husband is holding H-1B status, and you wish to join him, you would likely do so under an H-4 visa as that is more likely to be approved by a consular officer than an F-1 visa. After being in the U. S., you could make an application to change status to F-1 student. The conversion from H-4 to F-1 status with U.S.C.I.S. in most cases should not be a problem although USCIS is delaying many adjudications. The question of whether to later obtain an F-1 visa rather than just being satisfied with the F-1 change of status depends upon your need to travel. Both H-4 and F-1 would allow you independence in terms of study options.  For work, you would need the permission of the school for curriculum practical training and of U.S.C.I.S. for optional practical training under F-1, and your husband would have to either have an I-140 petition approved or be eligible for continuation of the H-1B past 6 years for you to obtain work permission from USCIS under H-4 status.  Please also note that the H-4 work authorization is being threatened by the Trump administration.

3. If My Visa Expires Today How Long Do I Have to Leave the Country?

Mr. Lee answers:
To DHS, an individual whose visa expires should leave the country immediately. For certain classes of individuals on working visas, they are given a 10 day grace period to leave. Those on J exchange visitor visas are given a 30 day grace period and those under F-1 student status a 60 day grace period.