Author: Alan Lee

1. My Husband Got Convicted and Deported. Is There Any Possible Way He Can Come Back to the United States?

My husband (love of my life) who was born in 1970 came illegally in 1987 from Mexico. I met him year 2002 when I was 16. We had 3 kids together. He got convicted of manufacturing and delivery in 2009 sentenced to 10 years, did 2 1/2 then they deported him. It was the first time he ever got in trouble for anything and they threw the book at him. Our kids got adopted out. It has been almost 10 years; will he ever get to come back to the United States?

Mr. Lee Answers:
In the circumstances that you described; it is difficult for me to see that your husband would ever come back to the United States legally. A crime involving manufacturing and delivery of drugs (I assume that it is drugs) and a sentence of 10 years is an aggravated felony.

2. How Much Yearly Income Is Required to Bring Someone to the U.S. On A Fiancé Visa?

My reportable yearly income is only $10,200 from disability but in 2020 my yearly income will increase to $24,000 from an annuity. Will owning a house and property or having money in the bank help me NOW so I don’t have to wait until 2020? If so how much is required?

Mr. Lee Answers:
Owning a house and property or having money in the bank may help, but on the house alone, that would depend upon the equity in the house. There is no fixed amount on equity in a house, but the higher the better as a house is not a liquid asset and where would you stay if you sold the house to meet the obligations of financial support. On other property, that would depend on the value of the property, and whether it could be easily disposed to meet your obligation of support. Assuming that you are alone and have no other support obligations to anyone else, the amount of money in the bank would likely be a little north of $100,000, 5X the yearly support level for a family of 2. Also a consular officer might be interested to see how long the money has actually sat in your account. Having home and property and bank account would lessen the amount needed from each individual asset.  A suggestion is that you may decide (in lieu of the above) to seek out a cosponsor who will be able to provide the necessary support for your fiancé not only for the visa, but for the permanent residence application which will soon follow.

3. Will Medical Discharge Revoke My Citizenship?

I’ve been in the Army for about 1.5 years now. I got my citizenship about 9 months. I’ve been getting severely depressed and currently in a process of getting medically discharge.

Mr. Lee Answers:
If you already received your US citizenship, it cannot be taken away absent material fraud or misrepresentation in having obtained it. It certainly cannot be taken away for a condition which arises following the grant.

1. Father Was Legally in the U.S. for Over 30 Years And Was Deported for Having Less Than 2 oz of Marijuana at the U.S. Borders

My father is a mechanic and his father owned a shop in Juárez. When his father passed away, my father would go back for months at a time to visit his mother and help at the shop in Juarez. He would constantly work back and forth in El Paso because it’s very close and he had business both in El Paso and Juarez. He was in a client’s vehicle and was crossing in to El Paso and police dogs found that there was less than 2 oz in the car and he was detained. He was held in jail in El Paso for 30 days awaiting court and then the case was continued for another 30 days. Out of foolish pride he allowed the court to deport him so he could get out of jail rather than wait to fight the deportation due to the marijuana charge. He wanted to attend to his ailing mother and the family mechanic business. My father has 6 daughters and 10 grandchildren here in the US and has missed out on about 18 years of family life. He has now also lost his mother and would like to be able to visit family at the least.

Mr. Lee Answers:
I assume that before your father was deported, he pleaded guilty to having less than 2 ounces of marijuana. Under the immigration laws, a waiver can be allowed for up to 30 g of marijuana possession for personal use. If the amount was 30 g or less, he may be able to be petitioned for permanent residence by one of the daughters if over 21 and a US citizen. As you say that he has already missed out on about 18 years of family life, I assume that the offense was committed over 15 years ago. He can obtain a waiver of such offense if the admission of your father would not be contrary to the national welfare, safety, or security of the United States, and he has been rehabilitated from the use of marijuana or other drugs. Another basis for waiver would be proving that one of his children would suffer extreme hardship if the qualifying child is a US citizen or permanent resident. If the amount was over 30 g, he might be able to apply for a visiting visa, in which case he would have to make the application, be denied, and the Consulate would have to recommend a waiver to the Admissibility Review Office of U.S.C.I.S., which would then make the decision taking into account the seriousness of the offense, its recency, potential harm to society if he is admitted, rehabilitation of your father, his reasons for coming to the United States, etc.

2. I Was Trying to Get My Georgia ID. I Have Social Security Card and Green Card With No Expiration Date.  

They told me they can’t take the green card anymore. What do I need to do?

Mr. Lee Answers:
I assume that you are talking about a Georgia ID. In taking a quick perusal on the Internet, it appears that the state of Georgia does accept green cards (I-551s or I-551 stamps), but the DDS also requires two documents showing residence in the state. It recommends documents such as recent utility bills, financial statements, or current rental agreement. Once you have the documents, I guess that you should try again. Good luck!

3. I Am Not An US Citizen, Is There a Possibility to Not Be Deported After Serving a Felony Sentence?

I am currently serving a felony sentence.

Mr. Lee Answers:
The question is what are your equities and the type of crime for which you are serving a felony sentence. If you wish to know if you can avoid deportation, you should have a friend or relative take your entire criminal file to an immigration lawyer for an assessment of your chances.

1. In Final Stages of Our LPR Son Sponsoring His Wife In China, What To Look Out For?

Our son has a green card through us, married his girlfriend in China, and has been in China for most of the past 2 years with her using a reentry permit. U.S.C.I.S. finally approved his I-130 petition for her 2 months ago, we paid the fees to the National Visa Center, and now we are at the stage of gathering documentation and filling out his wife’s immigration application form. We see that the visa category for his wife is open, and assume that she will be interviewed soon. They do not have any children yet. Is there anything that we or he should be aware of at this time?

Mr. Lee answers,
Your son and his wife should gather together all evidence of the bona fide relationship including wedding photos, studio photos, reception photos, photos of them living together, taking trips together with flight tickets, bus tickets, rail tickets, hotel receipts, household registration, statements from family, friends and neighbors with knowledge that they are married and living together and how they know, correspondence sent to either one of them at the place that they live, etc. Your son should also consider leaving China and staying in the U. S. as the affidavit of support that he will be signing (even if there is a financial cosponsor) is dependent upon his establishing a domicile in the U. S. According to the Department of State, he must satisfy the consular officer by a preponderance of the evidence that he will establish a domicile in the U. S. on or before the date of his wife’s admission to the U. S., and the Foreign Affairs Manual gives as examples opening a U. S. bank account, transferring funds to the U. S., making investments in the U. S., and seeking employment in the U. S. The best proof is being in the U. S. with at least one of the above.

2. Have Order by Immigration Judge Because Did Not Show Up, Can My American-born Son Now 21 Sponsor Me for the Green Card?

In 1992, I came to the United States illegally by boat, was caught before landing, spent 3 months in detention, and did not attend my court hearing. I know my case number but do not have any papers. My son is now 21 and I would like him to apply for the green card for me and he is willing to do it. He works in a restaurant and pays his taxes which is enough for my support. I have never been arrested except by immigration when I came into the country and have tried to live a good life as a good person since coming here. Can he do it?

Mr. Lee answers,
The answer may well depend upon what U.S.C.I.S. did in terms of paperwork when you were released. If you were given an I-94 card with the legend “212(d)(5)” on it, that would fit one of the requirements for adjustment of status as a person who has been inspected and admitted or a person who has been paroled. Although your case would be complicated even if you had such an I-94, at least you would have a starting point. I suggest that since you do not have documentation on your case, you should obtain a complete copy of your files from both U.S.C.I.S. and the immigration courts. You can do so pursuant to the Freedom of Information Act. Even if such an I-94 is not disclosed in your immigration files, it is always good for you to have a copy of your immigration files as any lawyer who will work on your case in the future will want to see what information the government holds on you.

3. H-4 Dependent Now Visiting Home, Can I Apply For Employment Authorization Card?

My husband has been working in the U. S. for 3 years in the U. S. under H-1B visa and me under H-4 dependent visa. He just got his I-140 petition for work approved while I am visiting at home overseas. I plan to be here for the next 2 months before returning to the U. S., and want to know if I can apply for the employment card based on my husband’s getting the I-140 approved to save time and someone told me that it will take Immigration about 3 months to approve the work permission.

Mr. Lee answers,
Unfortunately, that does not appear to be possible under current immigration procedures. The instructions on the I-765 Application for Employment Authorization state in the first line that “Certain foreign nationals who are in the United States may file form I-765….” In addition, the form asks for information concerning present address and last entry into the United States. If a foreign address is used or the entry section is left blank, the application would in all likelihood be rejected. You should be patient and wait to file until you return to the States. I note that the H-4 employment authorization program is experiencing strong headwinds as the Trump administration will likely come out with regulations restricting or abrogating it in the near future.

1. Case Status Changed From “Case Was Received” to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It”?

My petition was filed with USCIS for H4 dependent visa in May 2019. My spouse who is on H1B visa got his petition approved in July to being Oct. 1, 2019, however, my case is shown as “Case was received”. But on August 5th 2019 the status changed to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It” though there was no change in address. What should I do in this case? What does “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It” really mean when there was no update on my case status.? Lastly, my H1B petition is picked in the lottery for this year and my employer has replied for the RFE raised by USCIS. The status for my H1B petition is shown as ” Evidence received”. Will this change in H4 status impact my H1B petition?

Mr. Lee Answers:
To find out what is happening with your case, you should call the U.S.C.I.S. Contact Center at 1-800-375-5283. A customer representative should be able to tell you what notice was returned to the agency. The notice usually means that U.S.C.I.S. sent something to you, and for some reason the notice was returned, e.g. name was not on the mailbox or postman did not recognize that you lived at the address. As to whether a change in your H-4 dependent visa case will impact your H-1B petition, it may depend upon the content of the notice. If the notice that was sent out was a denial, you would likely receive a denial on the change of status part of the H-1B even if the petition part is approved by U.S.C.I.S.

2. A Company filed H-1b for My Wife Who is On H-4 Visa  In U.S. If H-4 Is Expired but H-1B Is Pending.  What To Do?

A company filed H-1b for my wife(who is on H-4 visa with me in US) this year through H-1b quota. If H-4 visa is expired and if we are still waiting for H-1B status update, will my wife be out of status in US? Can I file for H-4 extension after we get rejection for H-1b, even after the date H-4 gets expired? Seeing the delays in H-1B and number of rejections we are receiving, Should I instead look for filing H-4 EAD for my Wife, as my I-140 is approved? If yes do I need to extend H-4 before filing H-4 EAD or they go together in tandem. If we get H-4 EAD before H-1B approval would H-1B be still valid.

Mr. Lee Answers:
If your wife’s H-4 visa status is expired and she is still waiting for the H-1B which was filed on her behalf, she would not be considered out of status as long as the H-4 extended until September 30 if your wife is applying for a cap H-1B. Your wife can file for an H-4 extension even after the date is expired, but it will be up to U.S.C.I.S. as to whether it will approve a late extension. As your I-140 petition is already approved, you can think of your wife filing an H-4 EAD, but should be aware that U.S.C.I.S. is reportedly looking to rescind the rule that allows H-4 employment. If you and your wife do decide to go that route, your wife can file for extension and EAD at the same time. If your wife obtains the H-4 EAD before her H-1B is approved and the H-1B is later approved, the H-1B would be valid and supersede the H-4.

3. Can I Still Have a Chance for Approval If I File Motion to Reopen/ Reconsider My I-601 Denial?

My husband currently out of the US and had gotten denied I-601 and visa application. Is there anything else we can do or apply for? He is inadmissible until 2026 it says and has a drug felony. What are my chances of appeal of the denial?

Mr. Lee Answers:
A section 212(h) waiver for which you have filed the form I-601 will not forgive a crime involving drugs except for possession of 30 g or less of marijuana for personal use. I do not imagine that you would win on appeal or by filing a motion to reopen or reconsider the denial unless that was the offense for which he pled or was convicted.

1. My Mother Overstayed Outside USA for 5 Years. Her Green Card Still not Expired. Can She Enter USA With Her Unexpired Green Card?

My mother is a US permanent resident w/ an UNEXPIRED green card but has overstayed outside the US for 5 yrs now. She is afraid that she might get held at the immigration office at the airport if she does fly over here to the US without a reentry permit. She was denied a reentry permit last time. The difficult Consul who interviewed her for the reentry permit in the Philippines told her that I have to file for a new petition on her, which I believe is ridiculous. I have a friend who’s mother had the same situation, and the mom was able to get thru the immigration border at the airport and was just given instructions on what to do (i am unsure if the mom had to pay penalty fees or what). I can get my mother to do the same and risk it, even if we have to just pay penalty fees. I just want her back here with me in the US.

Mr. Lee Answers:
You have hit the nail on the head as to the dilemma that permanent residents face who have remained outside the country for longer than the period of time allowed under the green card. It is the bother, cost, and time of waiting and filing a new petition as opposed to having the person come in and take his/her chances with CBP at the airport with the understanding that a refusal would either have the individual leave the US and surrender the green card or challenge the CBP decision in an immigration court. A loss there could subject her to an order of removal. You should discuss these options with your mother and see what is her tolerance level of risk before you both decide what to do.

2. My OPT Expires Oct 20th. Do I Have to Get TN At Border Exactly 1 Month Before OPT Expires or Can I Do TN When OPT Expires?

I graduated with my Doctorate of Pharmacy from an American college. I got OPT. I accrued 75 days of unemployment before finally landing a job (so I only have 2 weeks of unemployment left on my OPT before hitting that 90day mark for OPT). Currently I work on my OPT as a pharmacy graduate intern. I become a licensed pharmacist in April. I was told that I must go to the border 1 month before my OPT expires to get my TN visa. My OPT expires Oct 20th . I have 2 questions/concerns. 1- Am I allowed to continue working on my OPT until it expires then go to the boarder to get my TN( I want to work for my current employer on my OPT as a pharmacist before asking for TN support i.e work till Sept 20th before asking for TN support and going to the boarder) and 2- what happens if accrue more then 90days of unemployment? Do they have a way of checking that when I go to the border to get my TN visa?

Mr. Lee Answers:

There is nothing in the law that says that you must go to the border with one month left on your OPT in order to apply for a TN visa. It may be that some people believe that they might be able to reenter the US under OPT if the TN visa is refused if they have one more month left under OPT. Your second question of what happens if you accrue more than 90 days of unemployment during your time under OPT, it would probably be very difficult for an immigration inspector to have knowledge of that fact although he or she may ask you questions about the subject if he or she is so inclined.

3. How Can I Apply for L-2 – EAD Extension With L-1 and L-2 Extension Receipt Alone?

My L-2 and my spouse L-1 visa expired on July 12th 2019, extensions are in process now.  My spouse company applied my L-2 extension but they did not do my employment authorization document EAD (even requested). I heard that I can applied L-2 EAD extension with L-1 and L-2 extension receipt, is it so? How can I do that? I don’t have valid I-94 or valid visa on hand now, I have only the extension receipt.

Mr. Lee Answers:
To apply for an L-2 employment authorization in your circumstance in which the L-1 and L-2 extensions are pending, you would fill out the employment authorization form, I-765, and attach copies of the two receipts, proof of your marriage, and a photo ID.

1. Derivative Citizenship After 12/24/52 Requires A Green Card Holder to Be Unmarried Until His 18th Birthday?

Can you be married prior to 18 years of age for derivative citizenship after 1975?

Mr. Lee answers: 
To my knowledge, derivative citizenship cannot be approved for anyone who has married prior to 18 years of age. Otherwise, the individual is no longer unmarried and under the age limit, the two requirements for being a derivative.

2. DMV of Georgia is Not Ready to Renew a Driver License For a Legal Immigrant Working on H-1B But The Extension Is Still Pending

I am currently working on a work H-1B visa. My visa expired on July 10th 2019. As per your website, on providing an original I-797C along with the petition and I94/Current passport with visa stamp, my driver license should be renewed. As per DMV[Georgia] they require a stamped passport in order to renew a license, which never happens since the extension of the VISA comes as a new petition and not as a stamped VISA in the passport. So now even though I can legally remain within the country for 240 days[as per USCIS because of I797c]. I cannot drive legally. Please let me know why the rules made by DMV and USCIS are contradictory.

Mr. Lee answers: 
The reason for the disparate treatment of your situation by U.S.C.I.S. and DMV is that U.S.C.I.S. does not control local DMV’s. Some local DMV’s will respect the language on the I-797C of automatic extension of work authorization so long as the extension request is in the same class previously granted. However, it is left up to the local DMV’s as to whether they wish to respect the language.

3. Is There a Danger for Using B1/B2 Frequently?

 My friend was visiting the US on a B1/B2 Visa June 5th and left July 5th. She is coming back to help me get situated in my new home and to visit.

Mr. Lee answers: 
I will assume that your question has to do with the safety of your friend coming back into the country so soon after having left. Since your friend only stayed a month, a decent interval of a few months between leaving and coming back would probably be okay as long as there has not been a pattern of your friend frequently coming into the US.

1. I Am Married to a U.S. Permanent Resident. Do I Need to Wait 3 or 5 Years to Apply for Citizenship?

I got my green card Jan 2019 and I am currently living in the states. I am married to a permanent resident 7 years ago with 3 kids who were born in the States. My wife got her green card back in 2008.

Mr. Lee answers: 
Regardless of the time that you have been married to a permanent resident and the number of children that you have with her, the amount of time to apply for citizenship is five years unless your wife becomes a US citizen. Then you can count three years from that date and can file 90 days before the three years as long as you have both been living together without significant break during the three-year period.

2. Can I Apply for Asylum in the USA If I Have Poland’s Temporary Residence Card and Citizenship of Ukraine?

I would like to ask is it possible for me to apply for asylum in USA if I have Poland’s temporary residence card and citizenship of Ukraine?

Mr. Lee answers: 
Persons who have some type of legal status in a country other than the homeland of persecution would find it difficult to obtain asylum in the US. That is because no country wants to give an individual the choice of applying in that country when he or she could have applied in the first country. In your situation, you have a temporary residence card in Poland and unless circumstances exist such as your also having a fear of persecution in Poland, it is doubtful that you would have a successful case for asylum in this country. Other factors that could affect a decision could be whether Poland allows individuals to apply for political asylum and whether your status in Poland ended and you have no right to return to that country.

3. Can I Bring A Boy I Met on Facebook to the U.S.?

I’m a 58 years old man and I have this boy 19 years in Ghana that I met on Facebook we’ve been talking for 2 years now. We haven’t met physical but we always video chat. I see him as a son to me and I want to help him get here to live in the states with me probably continue his education here. How do I go about this to bring him here?

Mr. Lee answers: 
If the boy is a student at this time and you wish to have him continue his education in the US, you could possibly find a school for him that would issue an I-20, and send the I-20 to him with your affidavit of support including the form I-134 affidavit of support, job letter, banking statement, last year’s tax return, and a statement to the consulate or embassy concerning your relationship with the boy and why you would be willing to sponsor him for schooling in the US.

1. Tourist Visa While Awaiting for Green Card

I am an Indian my wife is USA citizen. We married in India 4 years ago. She has Indian overseas Citizenship. She is staying in India on and off. My immigrant visa is already in progress. Is it possible for me to get tourist visa to go and visit my wife?

Mr. Lee answers:
Whether you are allowed to obtain a tourist visa to visit your wife is a decision of the US consular officer when you make an application. The question is whether you would be trustworthy enough upon your assurance that you would return to India once the period of visit is over. If you decide to apply for a visitor’s visa, you should certainly put down on the visa application that your wife is in the US and has applied for you on a visa petition.

2. Can I Apply for a Green Card Without Being Sponsored?

I recently got my PhD from a university in the US and is starting my OPT soon. Will I be able to apply for a green card without having an employer to sponsor me?

Mr. Lee answers:
Other than the family based cases, asylum, visa lottery, and EB-5 immigrant investor, I assume that your question is more attuned to whether you can self-sponsor yourself through employment. Presently individuals are able to do so only if they are extraordinary in the field of endeavor or their immigration would advance the national interest. It is good to have a PhD, but under present law, it would not entitle you to an automatic green card. I do note that the Trump administration keeps attempting to change the immigration system to allow educated individuals like you to self-sponsor upon the attainment of a certain number of factors related to education and experience. Whether any such legislation will be enacted is questionable as the proposals have unfavorable aspects to Democrats and other immigration proponents. But we will be keeping our eyes on them the same as you, I imagine.

3. My Immigrant Visa Case Was Filed in 2005, Was Given a 221g At The Time of Interview.

 The case been updated in 2018 and now has returned to NVC.  What to do now?

Mr. Lee answers:
When a case is returned to the NVC, it is usually thereafter transmitted to U.S.C.I.S. which looks over the basis for rejection at the US Embassy or Consulate. If it believes that the reason was wrong, it could reaffirm the approval and send the case back to the US Embassy or consulate for further processing. If it believes that the post may be or is correct, it will send the petitioner a notice of intent to revoke the petition. Since you are complaining of an NVC return in 2018, you may wish to check with the petitioner to see if anything was received. If nothing was received, the petitioner or you should check on the case with the NVC to see what happened.