Author: Alan Lee

1. Can My Sister’s Child Immigrate Under the Child Status Protection Act?

I petitioned for my sister (U. S. citizen for sibling) with a priority date of March 31, 2006. That date just became available to immigrate, and she and her husband are scheduled for interview at the American consulate. However, the notice did not include their daughter who was born on January 2, 1995. She is 24 years old, and we understand that the time that the I-130 petition was pending is given as a credit to her age. The petition was approved on April 15, 2009. Looking at the Department of State visa bulletin, our priority date was reached under the dates of filing chart in January 2019. We went to a consultant who told us that the child should be able to immigrate, so we do not understand what is going on now. Can you explain?

Mr. Lee answers,
Unfortunately the Department of State and U.S.C.I.S. made a decision to only stop counting and “freeze” a child’s age when the priority date is reached on the final action chart (chart A), and not the dates of filing chart (chart B). The consultant was looking at chart B and not chart A which only became open to your sister’s priority date on June 1, 2019. Your sister’s daughter was over the age of 21 by 3 years and 149 days as of June 1, 2019. She is given credit for the period of time that the I-130 pended at U.S.C.I.S., which was 3 years and 103 days. Thus because the priority date became available 46 days after she turned 21 under CSPA counting, she is unfortunately not able to immigrate with her parents. Lacking any other way to come to the U. S., her parents can immigrate and then immediately file petition(s) for her under the F-2B category for an unmarried son or daughter of a lawful permanent resident. The waiting time is currently approximately 6 years.

2. Failed the Marriage Interview – What Are My Chances of Appeal?

I and my husband went through our marriage interview at U.S.C.I.S. with our lawyer, and we just received a denial. We think it was unfair because the immigration officer picked on small things that either I or my husband could not specifically remember. What are our chances if we appeal the decision?

Mr. Lee answers,
You should consult with the lawyer who was with you at the time of the marriage interview. Usually the attorney will have written down all the questions and answers that both you and your husband provided and can assess the effect of any differences in your answers and their significance. A long time U.S.C.I.S. section chief in charge of marriage interviews once spoke at an immigration lawyers’ meeting at which he cheerfully stated that he would be hard-pressed to pass a marriage interview with some of his officers. The rule of reason should apply, and if your attorney believes that the discrepancies were minor or explainable, you should go forward with the appeal.

3. Applying for H-1B and Wanting to Get Into F-1 Higher Education Program, What Can I Do?

I have optional practical training that ends on July 30, 2019. My company applied for my H-1B, and I received the word that I was selected, but I am not sure that it will be approved. I also want to take a higher degree program and want to transfer into that. What effect will that have if the H-1B papers are approved? Does that nullify my H-1B?

Mr. Lee answers,
In order for you to take the higher degree program, you do not have to take another action with U.S.C.I.S. as you are already in F-1 status under your optional practical training. U.S.C.I.S. operates under the last action rule, and if its last action is the approval of the H-1B petition, that would supersede the F-1 status and you would be automatically converted to H-1B.

4. We Have the Choice of My Wife Applying for Labor Certification Green Card and Me Applying for Political Asylum – What Road Should We Take?

I came into the U. S. under a H-4 visa from China and my wife is presently under H-1B and the company is offering to sponsor. But that is a long case according to the lawyer which may take 3 to 5 years because of the China quota on visas, and I am thinking of applying for political asylum. When I was 10 years old, I was in Beijing and a military truck ran over my leg near Tiananmen Square in June 1989. Also the local birth control authorities wrecked our house in 1995 because my sister would not come out of hiding when she was pregnant with the second child. Should I do that or ask my wife to do the labor case?

Mr. Lee answers,
Your wife should do the employment based case as long as the company is viable and capable of sponsoring her for the green card. The chances of the employment based case being approved as opposed to the asylum case are much greater. I doubt that the circumstances that you describe for your political asylum case would allow a grant of asylum as you were likely not an active protester at the age of 10 near Tiananmen Sq. and the target of the birth control authorities was your sister and not you. Under H-4 status, you are not allowed to work unless your wife has an I-140 employment preference classification approved or is eligible to file for time over the six-year limit on H-1B visas. If you are concerned about ability to work, you can try to apply for H-1B status if qualified and a sponsoring organization is available (next April if a cap employer or at any time if the employer is cap-exempt) or attempt to change your status to F-1 student under which you may be able to work part-time on campus, or at a later point request work authorization from the school (curricular practical training), or even optional practical training from U.S.C.I.S.

1. International Student- Using TPS Work Permit to Do Paid Summer Internship, Is It Okay?

My brother is an international student from Nepal. He recently got his TPS and he is trying to use the TPS work permit to do some paid Internship in Summer related with his studies. I have some concerns: a) Should he do that, what will be your recommendation? b) How it will impact him once the TPS expires next year. c) Just want to make sure with Legal professional that he is not doing something that can cause Immigration problem for him in future?

Mr. Lee Answers:
If your brother is an international student holding valid status as a student, his work under a TPS work permit would be violative of his student status even if authorized by U.S.C.I.S. in my opinion.  He could have another option to perhaps obtain curriculum practical training or pre-completion practical training from the institution to work in his paid internship as you say that it is related to his schooling. I encourage him to discuss the matter with the designated school official (DSO).

2. Do I Have A 60-Day Grace Period After My Job Ends Early?

I am an H1-B visa holder. My job here in the US was supposed to last three years but my employer informed me in April 2019 that my position will end on 30 July 2019 (a full two years early). Will I have until the end of September to leave the USA?

Mr. Lee Answers:
You would have a 60 day grace period to leave the United States given the fact that the employer would have ended your job a full 2 years before the ending date of your H-1B petition. U.S.C.I.S. believes that under the circumstances, you can use the time to find another position, change status, or leave the U. S.

3. Immigration – Two Cases

I came in US on J1 visa and applied for religious asylum, I got my work permit and I have SSN. But then I met my boyfriend and first we were friends but later on it became more than that. Day by day with him and I started to change my religious views. I realized that that religion is not good. We want to get married but we both don’t know what is the best option because I cannot be in two processes at the same time. What do you suggest to me?

Mr. Lee Answers:
At a 2017 meeting of the New York American Immigration Lawyers Association chapter with the New York City District Director and chief of staff, a member of the audience suggested a solution to a situation like yours – that you request the asylum office to put your case on hold while pursuing an adjustment of status application based upon marriage. You could also request the asylum office to cancel your case. I assume that your boyfriend is a U. S. citizen and that your religious asylum case is pending with U.S.C.I.S. and not in the immigration court. If either of these 2 situations exists, my answer may be different.

1. Can I Transfer My H-1 In This Condition?

I have a valid H-1 visa and already on 6th year on H-1B. I am looking for some employer who can file green card for me. My Visa from current company is in extension process and have received (Request for Further Evidence) RFE on the same. My Employer will respond to that RFE but I have a following questions – 1. Can I transfer my H-1 to other employer who can file GC for me in this condition? 2. If yes can i start working immediately with new employer once transfer is filed? Will it be too much risky. 3. Shall I wait for Approval to complete? 4. Can other employer start my GC if I am not in his payroll till labor approval?

Mr. Lee Answers:
In your situation, you can transfer to another employer and begin working immediately once the transfer is filed. The risk is that a failure of U.S.C.I.S. to approve the transfer means that you will be considered out of status. Whether to wait for your approval to be completed is up to you, and you would have to take into consideration your wishes for safety and permanent residence. Perhaps the employer can expedite your filing under premium processing.  A new employer can begin your green card process even if you are not on the payroll. An employment based PERM case does not require the beneficiary to work for the employer until permanent residence is approved.

2. My Husband Is a Citizen Here But Is Unemployed For a Few Months Now. Is It Possible for Him to File Immigrant Papers For Me?

Mr. Lee Answers:
Even if your husband has been unemployed for a few months, he may still be able to file for you, especially if he or you has a friend or relative who is willing to be a joint sponsor and capable of taking on the support obligation. In such case, your husband would fill out an affidavit of support on form I-864, and the friend or relative would fill out another I-864 and check mark the form as a joint sponsor.

3. My girl friend and I want to get married and we both not from USA. My question is can we get married and can we get the green card?

Mr. Lee Answers:
Usually people from other nations have no problem getting married in the United States. However, being married does not confer any particular advantage towards getting the green card. Most immigration to the U. S. is done through family-based petitions in which one party is related to someone who has permanent resident or U. S. citizenship status, or through employment-based petitions in which an employer plays a central role. Whether you can live here normally without any problem if you do not have any status will probably depend upon the ongoing story of ICE enforcement under the Trump administration.

1. Is My Grace Period 10 Days or 60 Days Where The Company Dismisses Me Two Days After my H-1B Time Runs Out?

I was on H-1B visa with my company and went home to have the visa put in my passport when I had about four months left on my petition. The consul took so long that by the time that my passport got the stamp and I returned, I only had a few days left on my authorized stay. My employer was mad that I had taken so much time to get the visa and did not want to be put under so much pressure to do the processing for my H-1B extension that it fired me two days after my status expired. I immediately contacted a competing company which is interested in sponsoring me for a new H-1B, but wonder if I have the time to have it done. Do I have 10 days grace or do I have 60 day grace period? I’ve heard different things.

Dear reader,
Where an employer dismisses you after the ending date of your H-1B, you are not allowed the 60 day grace period as you were not fired within the validity period of your H-1B. You are, however, allowed the 10 day grace period during which your status will continue to be legal if the new employer is able to submit the petition to U.S.C.I.S. within that period of time. I note that even where the new employer is unable to do so, U.S.C.I.S. may still grant the H-1B transfer and extension without making you leave where there is good reason for which the petition is late. From your set of facts, it would appear that you have good reason for a late petition, that the delay is not attributable to any fault on your part, and you have made good faith efforts to regularize your status as quickly as you could. The only other suggestion that I can make is that the company should apply for your new petition under premium processing if it will be late since U.S.C.I.S. is variable in time with its adjudications, and if you are in the US 180 days after the grace period ends and the new H-1B extension part in the US is denied, you would face a three-year bar if you left and had to come back to the US.

2. Am I In Danger Where I Got Divorced Soon After Me and Ex-husband Got Green Cards From His Company Employment and I Was Only Married a Short Time?

I married my ex-husband in 2017 when he was being sponsored for the green card by his ex-employer. I was able to join his case and we both get green cards in 2018. Four months after the green card, we started divorce proceedings because we could not get along together and just finalized the divorce last month. Am I in danger of having my green card revoked?

Dear reader,
Your case is not based upon a marriage petition, and so you would likely have no problems in retaining the green card. You would probably only have difficulties if it was proven that your marriage was a sham just in order to have you obtain a green card. That would probably start to become a possibility only if someone was to make a complaint with ICE.

1. Are There Continuous Residence Requirements For a Lawful Permanent Resident Who Is Under 18?

I am a single mum to a now 17 year old daughter. I immigrated to the U.S with my daughter in 2008 on a diversity immigrant visa i.e green card lottery, which means that once I became a lawful permanent resident in the U.S, my daughter also automatically became a Lawful permanent resident and was issued her own green card and SSN. Her green card is still very much valid but is due to expire in 2019. However, she had to leave the US sometime in late 2014,because she went to start high school in my country of origin, but now I want to bring her back this year for a short visit ,and also so that I can apply for a U.S passport for her.(Sorry I forgot to mention that I got naturalized last year 2016,so she can be able to obtain citizenship through me before she turns 18). I cannot seem to find any current information on whether there are any laws that can hinder her from re-entering back to the US?

Mr. Lee Answers:
One of the difficulties is that everything must be done by the time that your daughter reaches the age of 18. Other than that, she can either try to give up the green card and obtain a visiting visa or attempt to enter as a permanent resident explaining her entire situation to Customs and Border Protection at the port of entry and why she should be so admitted. Once in the U. S., she would have to show that she is in your physical custody (residing with you) before making a citizenship application. Good luck!

2. What to do When a Principal Died Before Interview Date Scheduled?

I am a US Citizen and the petitioner for my Mom. She passed away this last Sunday before her interview date at the US embassy. I was expecting she comes to the US, gets her green card so that she can petition for my siblings. What can I do? Do I need to inform the embassy? What are the options left for my siblings especially for the one under 21 and the one who just turn 21.

Mr. Lee Answers:
It would be courteous to inform the embassy of your mother’s death so that her case can be closed out. Insofar as your siblings are concerned, you can sponsor them under the F-4 category for siblings of U. S. citizens, and the time for final processing would be approximately 12 years. Otherwise if they have education and/or skills which are required in the U. S., they may be able to eventually obtain nonimmigrant or immigrant visas. Also if they form an attachment with a U. S. citizen or LPR, they may be able to immigrate faster under the family based case.

3. My Father Said His Going to Take Me Back to Africa. But I Am 19 Years Old and a U.S. Citizen.  Can He Do That?

Mr. Lee Answers:
As you are over the age of 18 and a U. S. citizen, your father cannot legally force you to go back with him to Africa.

1. Should I Fill Out An I-134 Form for Partially Supporting My Girl Friend Trying to Extend a B-2 Visa?

My Thai girl friend is here on a B-2 visa. I am a graduate student who works seasonally in Alaska, and I wish for her to come with me for a few months to Alaska this summer. We are seeking a 4 month extension of her B-2 visa. Which forms besides an I-539 do we need to fill out? Should I submit a I-134 form to claim she has financial support while visiting me? 

Mr. Lee Answers:
Besides the I-539 form, she should have proof of onward transportation back to her home country on or before the stated date of departure, an itinerary of what she proposes to do in the 4 months, and proof of adequate support which could include your I-134 affidavit of support with job letter, bank letter, and last year’s tax return.

 2. USCIS Sent My Green Card to The Wrong Address. Now I Don’t Want to Pay Fee for the Replacement. It Was Not Delivered Back But It’s Their Fault.

USCIS denied my I 90 application with the reason (I never received it) because they didn’t get the card back. Now they ask either to reapply with the reason lost and pay fee or appeal/motion which also have a fee of $675 which is non refundable. Its their fault they sent it on the wrong address what should I do now. They actually sent it on my petitioner’s address other than the mailing address I provided in DS-260 form. That place was sold years ago and the people over there didn’t mail it back.

Mr. Lee Answers:
In looking over the I-90 form, there is no category to check off for a person to complain that U.S.C.I.S. made an error in mailing the card to the wrong address. The difficulty is that an application like yours could be automatically rejected by the cashier as not having the required fee. That being said, you could try to check off Part 2, Section A, 2.b that “My previous card was issued but never received”, and attach a letter of explanation with proof if you have not already done so. The other option of course is to pay the filing fee.

3. Marrying an American Without Seeking U.S. Citizenship

I am a U.S. citizen. My boyfriend is currently a Saudi F-1 visa holder going to school here. We want to get married after he graduates, but we do not intend to stay here for more than 6 months to a year, so he does not want to apply for American citizenship. Is there a way for him to change status or marry me without losing his citizenship?

Mr. Lee Answers:
Your boyfriend after marriage can seek permanent residence but not U. S. citizenship. If his idea is that he does not wish to remain in the U. S. for 6 months or more during the next few years, he could likely take out reentry permits. However, if his idea is that he does not wish to stay in the U. S. 6 months or more at anytime in the future, then he may wish to explain his situation to the American consulate or embassy in his home country in order to obtain a visiting visa for when he needs to come to the U. S.

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.

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.

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.