Author: Alan Lee

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.

 

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.

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.

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.

1. I Am a Deported Lawful Permanent Resident.  Can I Reapply Back to the U.S.?

I had lived in the United States for 33 years. I was deported in 2013 for a crime of moral turpitude (credit card frauds). I have United States citizen parents and a lot of family members in the U.S. Before I was deported I was a LPR. My two part question is how long is my bar from the United States. It’s been five years. I would like to start the process of reentering the United States as a visitor only. What can I do now?

Mr. Lee answers:
There is no expiration date on persons who have been deported for crimes except as related to prostitution offenses. You would have to have an immigration lawyer go over your entire situation to decide whether and how you could again become a resident of the US. Insofar as your question of visiting the country, you would apply for a visa at the American consulate or embassy if not a Canadian national, and indicate that you would also wish to file for a waiver to enter the US as a visitor. The consulate or embassy would deny the visa application as a matter of course, but inform you whether it would agree to accepting a waiver application and if so, tell you the specific procedure involved. Ultimately the consulate or embassy if recommending a waiver would forward the application to the admissibility review office of U.S.C.I.S. which would make a decision. If the decision is favorable, the consulate or embassy would then issue the visa.

2. Can a Green Card Holder Get Possibly Deported Because of a Minor Offense?

 Mr. Lee answers: 
Generally speaking, a green card holder would not be deportable because of a minor offense. That being said, there are many offenses which in the minds of individuals are minor, but which are considered major under the immigration laws. With Mr. Trump’s Executive Order on interior enforcement of the immigration laws, it is right to be worried about the effect of crimes since that appears to be a prime target of his order. If you wish a definitive answer on which minor offense you are concerned with (if you are concerned about a particular one), you should visit an immigration lawyer with all the circumstances of the case to obtain a formal opinion.

3. Do I Need to Refile LCA / I-129 for My H-1B ?

I am now working with a new employer and wants to go back to my old employer and my H-1B with old employer is still valid till May 2019. My old employer has not cancelled my H-1B. He wants me to start working from this Monday. Before I start working with my old employer Do I need to refile I-129. I am under the impression I just can start working but I am not sure. Please suggest.

Mr. Lee answers:
Our opinion is that you would not require further paperwork to resume H-1B work with an employer which has not notified U.S.C.I.S. of the cancellation of your H-1B petition. I note that employers who do not terminate H-1B’s with U.S.C.I.S. upon the separation of the employee do face liability from such employees suing them for wages after they have been separated on the grounds of no proper notification and no termination of H-1B status. The Labor Department has upheld a number of cases on these points for the H-1B holder.

1. Would My Being on Food Stamps Affect Me Helping My Mother Get Residency?

I just became a citizen and I’m planning on helping my parents apply for residency but my family is in current need of assistance if I Apply and get approved for food stamps will that effect be being able to help my parents?

Mr. Lee answers:
If it is discovered that you are taking means tested benefits like food stamps, that could have an effect on your mother’s obtaining resident status as you must supply an I-864 affidavit of support in order for her to immigrate. Although the chances of discovery are not high, there is still a risk. Even if you have a financial co-sponsor, a relevant question by an adjudicating officer upon discovery could be whether the co-sponsor’s affidavit of support is credible since the cosponsor is not assisting your financial situation.

2. Naturalization with DWI

I am a permanent Resident for over 10 years, and decided it is time to apply for a US citizenship. One problem that I do have is in June 2015 I was arrested for a DWI (which is considered as a traffic offense in NJ) in the state of NJ. Will this have any negative effect on my application and cause it to be denied? Do I absolutely have to wait 5 years from the arrest date until I can start the process for naturalization? Do any other factors such as being a full-time student, owning a home, weigh in positively towards the decision making from USCIS? If the application does get denied, Do I have to wait another 5 years until I can re-apply?

Mr. Lee answers:
I will assume for purposes of your question that you were not cleared of the charge. Naturalization requires good moral character, in most cases for five years. You have a questionable case as to whether an application would be granted at this time. If only one DWI, however, the odds are good. DWIs in the past were not considered too damaging to applications, but have received much attention in this past decade. That is because of the pressure brought on to members of Congress by aggressive lobbying by interested parties, which in turn has meant the dragging of DHS officials before congressional committees on the issue. If you do decide to go forward with your naturalization case, you should attempt to make a showing of any equities that you have including any explanations for your DWI arrest.

3. Tax Filing Status For Illegal Spouse

How do I file my return if I recently got married to someone from another country, but my spouse has not yet received his green card or social security number?

Mr. Lee answers:
There is no one right answer for the question, but we favor married and filing separately if the individual is overseas. Your tax status is in my understanding determined on your marital status at the end of the calendar year. If you were married this year and your spouse is in the US, you should file a joint tax return or file as married filing separately.  For filing jointly, you should be able to work it out so that your spouse files with you with a taxpayer identification number (ITIN). Any of the accounting service should be able to assist you and your spouse with doing that.

1. I Wish to Give Up My Green Card As I Have Not Been Successful. What Effect Will That Have On My Family That Wants to Stay Here And How Do I Do It?

I and my family immigrated to this country in 2015. As an artist, I have not been successful here, and want to return to my home country. My 2 questions are how can I give up my green card and what effect will that have on my wife and child who want to stay in the U. S.

Mr. Lee Answers:
There are 2 ways to cancel the green card through the filing of form I-407 Record of Abandonment of Lawful Permanent Resident Status – 1.)  Submitting the form in person or by mail to a U.S.C.I.S. international field office in your home country, or mailing the form to the nearest U.S.C.I.S. international field office where there is not an office in your home country; or 2.)  submitting the form to Customs and Border Protection at a U. S. port of entry. In rare circumstances, the U. S. Embassy or Consulate without a U.S.C.I.S. international field office in the country may allow the submission of the form in person if you need immediate proof that you have abandon your lawful permanent resident status. Addresses of international field offices and ports of entry are in the form I-407 instructions on where to file. On your family, they should feel no adverse effects if you abandon residence at this time as you have already held it for 3-4 years. U.S.C.I.S. is more concerned with principal aliens and their families in which the principal alien fails to stay in the U. S. for any appreciable period of time before taking steps to abandon the green card.

2. Having Difficulty Changing Schools on F-1 Visa – What To Do?

I just entered the U. S. to go to a good college for which I got a five-year F-1 visa, but I am uncomfortable and want to change schools. However, the school that I am really interested in has a policy that it will not transfer in someone who just came in to start with another school. It tells me that I must go back to China and ask the first school to terminate the school’s I-20 form first. What can I do?

Mr. Lee Answers:
I do not know what your desired school will finally accept, but perhaps they would be satisfied with giving you an I-20 for you to use outside the United States. Then because the five-year visa is still valid (even though with another school), you should be able to reenter the U. S. by showing the new I-20 and valid passport to Customs and Border Protection (CBP). If CBP disagrees, it could still allow you to file a form I-193 application for waiver of passport and/or visa in its discretion.

3. CBP Gave Me a Short Stay When I Reentered on H-1B Even Though I Have a New Visa. Why?

I had my H-1B status extended to 2021, and went home and got a new visa at the consulate that starts on March 25, 2019. The current H-1B visa expires on March 24, 2019, which was the ending date of my first H-1B petition. I came back to the U. S. from vacation on February 25, 2019, and the CBP officer at the airport only gave me the time to stay until April 3, 2019, which he said included the 10 day grace period after the expiring of the visa on March 24. How can I straighten out my situation?

Mr. Lee Answers:
An H-1B visa holder generally cannot enter into the country on an H-1B visa more than 10 days before the start date on the petition. When you entered the U. S., neither the visa nor the petition beginning on March 25, 2019, was within the 10 day striking range. Therefore the CBP officer probably believed that you could only enter on the basis of the present visa and petition which ended on March 24, 2019, and that he or she was only allowed to give you that period of time plus the 10 day grace period. It seems a dubious reading of the law where the new approved petition is connected in date with the one that is expiring. A visa is usable for entry, but does not dictate the period of time that someone is allowed to stay in the country. I suggest that you communicate with CBP immediately at any international airport in the U. S. to attempt to have your situation straightened out. If CBP refuses to assist, you should book a flight outside the United States and reenter using the new visa and petition which are now within the 10 day range. You should ensure that you will be passing through a port of entry in which CBP will actually inspect you rather than just waving you through. In the latter case, there might not be a record of your reentry.

4. On H-1B Visa With Company A, Transfer Applied for by Company B, But Want to be With Company C – How Can I Solve This?

I am presently with company A, got a better job offer from company B which sent in H-1B transfer filing 4 months ago and is pending a response on U.S.C.I.S. Request for Evidence, and now have a better job offer from company C which is also willing to do a transfer petition for me. What should I do at this point?

Mr. Lee Answers:
As you are still with company A, there is no impediment to company C putting in an H-1B transfer petition for you at this time. The new petition would include proof of your continuing pay with company A to show that you are still maintaining your present status. The question is whether you are stuck in your mind on working only for company C or whether you are willing to work for company B if its petition is approved instead of that of company C. If you are set against working for company B in any circumstance, you should ask the company to withdraw its petition now. On the other hand, if you are still entertaining thoughts of perhaps working for company B, you could have the company continue its petition and see whether it can be approved. If it is approved prior to the approval of company C’s petition, the company C approval would supersede it automatically, but you should also have company B withdraw the petition unless you are also planning to work for company B. If the situation arises in which the company C approval comes in prior to any final action on that of company B’s, you should have company B immediately withdraw the petition to avoid any adverse effects upon your ability to work for company C.

1. My Husband Moves Out After Filing I-485 for Employer Sponsored Green Card – Will I Still be Eligible As His Wife If Legally Married But Different Homes?

I am concerned about needing to go to a green card interview as a married couple if the credit report shows a new lease? He claims provided we are legally married it is ok if he moves out BEFORE we receive green cards? We have been married for 17years & previously held a green card before moving out of US for 6yrs. We now have E3 / E3D visas. We have two children under 9 who are also on the application. I don’t want his lease / moving out to make me ineligible for spouse green card.

Mr. Lee answers:
Yours is not a marriage based petition case, and as long as your husband continues to support your immigration application, I would assume that you will obtain your permanent residence. I will also assume that the move is in the same immigration office jurisdiction as local field offices of USCIS may not wish to adjudicate applications of persons residing outside their jurisdiction. The fact that you already have two children nullifies any suspicion of a non-bona fide marriage. Separate addresses would appear to be more of a concern where a US citizen or permanent resident has married and is petitioning for the spouse, or where the principal in an employment base case has a recent marriage. A difficulty may be coordinating between yourselves to attend an immigration interview together if you both filed I-485 adjustment of status applications together as USCIS is now interviewing all employment based case beneficiaries.

2. H1-B Extension With Approved I-485 Employment Authorization Document

Although my I 485 EAD and AP is approved, I still want to maintain and continue to be on H1-B visa, till the time my green card priority dates become current. The reason to maintain H-1 Visa status : If for whatever unforeseen reason there is any issues in my green card processing, I need a fall back plan that can let me stay in US and work, that’s only H1 Visa. Also my priority date is 31st Oct 2010 from India and the dates are not moving fast enough every month. Need a professional advise if this is the right approach or if there is something else I should be doing for me(H1B) and my wife(H4).

Mr. Lee answers:
Many H1B holders are faced with the same question as you, and many choose your fallback plan. This appears to be the right approach for the sake of security. Of course, as you know, many take the other course with the EAD and advance parole.

3. My Boyfriend and I Are Getting Married Soon I’m Illegal He Wants to Get My Immigration Status Fix

I came with a visa when I was younger it expired and I stayed here would that be an issue for my immigration process?

Mr. Lee answers:
As long as the visa on which you came to the US was valid, your overstay should not affect your having your immigration status fixed as long as your boyfriend is a US citizen. The status of being the spouse of a US citizen forgives the immigration violation of an overstay.