Q&A’s published on Lawyers.com and the Epoch Times on June 14, 2019 1. Can I Enter on F-1 Visa While H-1 Application is Pending? 2. Pros and Cons of Applying for K-3 Visa After Submitting an I-130 3. I’m a US Citizen. Can My Mother Stay Over 180 Days If I Applied for Her Green Card And It’s Still In-process?

1. Can I Enter on F-1 Visa While H-1 Application is Pending?

I am on F-1 visa (valid till May 2021) working on OPT EAD which is valid till January 2020. I am applying for H1 this year. If my H1 application is picked up in lottery, then can I travel outside the USA and come back on F1 visa while my H1 application is pending? If yes, then in the case that my H1 is approved, do I have to get my visa stamped to even start working on H1? or I can get it stamped the next time i leave the USA?

Mr. Lee answers:
The difficulty is that any travel outside the United States during the time that an H-1B petition is pending is considered an abandonment of the change of status portion of the petition. With your OPT EAD valid until January 2020, you can travel with the above restriction. You might be better off waiting until the H-1B petition is approved before traveling under your OPT EAD before October. Then it might be considered that you did not travel during the time that the H-1B petition was pending. If the change of status portion of your H-1B is not considered abandoned and you did request the change of status, you would not be required to have an H1B visa in your passport in order for you to begin work in October. Please note that I along with most of the lawyers discourage applicants even with EAD’s to travel at any time before an H-1B becomes effective in October or thereafter.

2. Pros and Cons of Applying for K-3 Visa After Submitting an I-130

I’m Venezuelan living in Panama, Married to my long time boyfriend since 01/07/2017, we got married in Fort Lauderdale and then I came back to Panama, he is a US. Citizen lives in FL, now we have to start our Petition for relative and we are uncertain what to do, we know we should start with a I-130 application, then wait for I-797 and Consular Processing. Is it a Good Idea to apply also for K-3 so I don’t have to wait separated from him? 

Mr. Lee answers:
The pros and cons of filing a K-3 visa petition after submitting an I-130 would seem to be the following:

Pro – generally speaking, you would get the person here faster (approximately 3 months sooner under current processing times).

Con – you would have to pay another filing fee, fill out another petition, most likely face an adjustment of status process once the person comes in with the K-3 visa, and if the I-130 petition is approved and at the National Visa Center while the K-3 petition is still pending or also at the National Visa Center, the K-3 would be discontinued.

3. I’m a US Citizen. Can My Mother Stay Over 180 Days If I Applied for Her Green Card And It’s Still In-process?

Mr. Lee answers:
If you have already filed an I-130 petition and she has filed for an I-485 adjustment of status, she is allowed to remain in the U. S. while the application is being adjudicated. She is in a quasi legal state in which the illegal presence bar does not apply.

Q&A’s published on the World Journal Weekly on June 9, 2019 1. Will Former Marriage With Approved I-130 Petition Be a Problem When New Spouse Files Another I-130 Petition? 2. Can You Tell Me How to Count My Time For Naturalization?

1. Will Former Marriage With Approved I-130 Petition Be a Problem When New Spouse Files Another I-130 Petition?

I was in a previous marriage and we had the I-130 petition approved before things fell apart and we got divorced. Now I am in a new relationship with a US citizen who will be sponsoring me for the green card. Will my past relationship give us a problem when we make the new I-130 petition for me?

Dear reader,
It is clear that this marital relationship that you are currently in is bona fide as there appears to be a child on the way. A question that could be in the back of an immigration officer’s mind is whether your former relationship was also bona fide. Although the I-130 petition was approved, an immigration officer can still look at that relationship to see its bona fides unless there was a marriage interview. You may wish to keep any proof of the past relationship in the event that your past marriage becomes an issue. Under the law, a finding of a sham marriage for immigration benefits would bar the violator from ever obtaining a green card through being petitioned.

2. Can You Tell Me How to Count My Time For Naturalization?

I got my green card in 2014 and am wondering whether I am eligible for my citizenship. During the past five years, I have been in the United States about 750 days. I have not taken any trips outside the US for six months or more. Can you tell me when I will be eligible?

Dear reader,
The minimum amount of time in the US prior to filing is one half of the required period of residence. For five years, that would be 913 days. However, persons who compile the bare minimum may find that a naturalization officer still does not feel that the person has maintained residence for naturalization purposes where the bare minimum has been met. You are probably better off exceeding that amount significantly before making the application. On the other hand, please understand that the period of time that is counted is the five years before the date of filing. That means that “good” time that you spent in the US prior to the five-year date may be lost. Please keep this in mind when you are counting your days.

Q&A’s published on Lawyers.com and the Epoch Times on June 7, 2019 1. Can I Fix my Mother’s Papers If I Am Married in California? 2. What Happens After A Tip Is Submitted to ICE About An Illegal Immigrant? 3. I Am an F-1 Student on OPT Training Which Will Expire in July. But I Will Like to Change My Status to B-2 Visitor for Pleasure. What Is A Good Reason?

1. Can I Fix my Mother’s Papers If I Am Married in California?

Mr. Lee answers:
I do not see the relevance of a marriage in California to being able to fix a parent’s permanent residency papers. We have cases in which petitioners are across the nation from their parents and still file for their permanent residence.

2. What Happens After A Tip Is Submitted to ICE About An Illegal Immigrant? 

An immigrant was reported for tax evasion and for the use of a fake social security number to obtain employment. She has worked since around 2010 and never filed she worked, but was filed by her soon to be ex husband. He is also an immigrant, but he was not reported to ICE. Both of them are going through a divorce and their daughter is 17 and with a baby of 2 months. Their daughter lives with her boyfriend. How long before she gets arrested? Will they take her to jail or an immigration detention center? How long before she gets deported? Is there any way she could stay in the country?

Mr. Lee answers:
It is difficult to know what happens after a tip is submitted to ICE about an illegal immigrant. In the past, many tips were ignored as ICE only had so many staff members and there are 11 million undocumented immigrants. The practice generally in many parts of the country was to go after more egregious situations involving multiple people or criminal violations. Currently the Trump administration is pushing for the expansion of ICE officers and more detention facilities. Once it ramps up its capacity, one can expect that more tips will be given attention. At this time, it is uncertain whether the person you describe will become a target for arrest as her type of offense is not “glamorous” to ICE. If detained, she could be taken to a city/county jail or immigration detention center, whichever has capacity and if the city/county jail has a contract with the federal government. If she has not already been an immigration proceedings, she would be entitled to present whatever case she has in front of an immigration judge. The process could go on for years although the Trump administration has said that it will focus on criminal aliens and your person could become a target if criminal charges are filed against her. On whether there is any way that she could stay in the country, she should seek consultation with an immigration lawyer who can go over all of her individual facts and situations.

3. I Am an F-1 Student on OPT Training Which Will Expire in July. But I Will Like to Change My Status to B-2 Visitor for Pleasure. What Is A Good Reason?

Mr. Lee answers:
Many people have good reason to change to B-2 visitor for pleasure when their OPT training expires. Generally students work hard in their schooling and afterwards on OPT and have had no time to enjoy what this country offers in terms of travel and entertainment. A request to explore the country and to see the sights with a good itinerary of what you plan to do would be reasonable.