Author: Alan Lee

1. Biometrics appointment for I-131 still needed?

I filed I-131 and it was accepted, and the fee taken. I have not received a biometrics letter but the status is updated to fingerprints taken. Does this mean they are using biometrics from a previous application and I do not need to wait for a biometrics appointment before leaving the US? The status on my I-131 case said, “As of XX, 2022, fingerprints relating to your Form I-131, Application for Travel Document, Receipt Number XXX, have been applied to your case.”

Mr. Lee answers,
USCIS is attempting in as many ways as it can to reduce backlogs that were caused by the pandemic and the Trump administration. Part of the effort is to reuse the biometrics whenever it can since fingerprints do not change over time. Either you failed to completely read one of the notices saying that the agency would reuse your biometrics or USCIS failed to send that one out or it was lost in the mail. The notice that you now have seems pretty clear in indicating that the agency will reuse your biometrics.

2. I-751 was submitted and finger prints were taken. How long is the wait time?

My Case, removal of conditions for the green card was submitted on 01-06-2021 my green card was expired on 01-20-2021. I received a notice for an extension of 24 months after my case was submitted which will expire in Jan 2023. My case was sent to Potomac service center, should I need a raise a E-request to process my pending case.

Mr. Lee answers,

If the notation of resident status on the I-751 receipt is close to expiration, the recommended path is to communicate with the USCIS Contact Center and arrange an infopass with the local USCIS field office so that you can present your passport and receive an I-551 ADIT stamp continuing your resident status during the time that USCIS is adjudicating your I-751 petition. USCIS will generally not expedite an application or petition on the basis that the individual’s status is expiring, especially where there is another path.

1. Can I acquire any type of citizenship or permanent residency from my deceased US citizen father?

I was born in 1977 and my father was born in the 1950s. He acquired his green card when he retired from working for the us government in the Panama Canal for 20+ years. We then moved to the us in 2007 and he filed a form I-130 and form I-485 petitioning for me, his married daughter over 21 years old, this was obviously denied because when he first filed he was a permanent resident at the time and our lawyer was an inexperienced scam artist who knew that I didn’t meet the requirements but still decided to submit the application and take thousands of dollars. My father became a naturalized US citizen in 2016 but I never submitted another application because I was waiting to hear back on the first one. However, my father ended up passing away in 2021 and only a few months after did I finally get a response that my application was denied. Since my father passed I am not sure if I am able to re submit another application although I do have an approved form I-130. What can be done?

Mr. Lee answers,
Your fact situation is confusing to me as you say that the application was denied, that you did not file another application, but that you do have an approved form I-130. The confusion lies in your stating that your father filed for you, a married person, when he only had the green card – and that would be a filing that does not conform with the law of eligibility.

Nevertheless, assuming that an I-130 petition was approved at some point for you prior to the time of your father’s passing away, and you were in the US at the time, that petition might be a basis for a permanent residence application. As the facts are unclear, I suggest that you should consult with an immigration lawyer to go over your entire situation and for him or her to explore with you any steps that might be able to be taken. 

2. Sibling info on GC for parents

If I am applying for parents Immigrant visa, do I put the info for my other siblings who are all over 21 years of age, and not being applied for on the Family section of the petition for Alien Relative, my sibling is a GC holder via employment.

Mr. Lee answers,
In our office, we usually put all sons and daughters of the beneficiaries on the I-130 form. I note that the form itself does not limit the term “children” although the Immigration and Nationality Act defines children as being under the age of 21 and unmarried. Also, the form instructions refer to both “unmarried children” and “married children”. Additionally, some of our clients are uncomfortable with the idea of leaving out any of the 21+-year-old children, and so we generally include them. If there is a reason for which our clients do not wish to mention such children, we will leave them out. 

3. Can immigration officers look past inadmissibility?

My father is currently in China waiting for his interview appointment. He went back to China two years ago. My mom is a citizen and sponsoring. I believe he will be found inadmissible and have to file for a waiver because he reentered the US after being deported in the 90s. He has no criminal record and started his own business while living in the US. He says that there is a chance that the immigration officer has the right to overlook his inadmissibility and approve him for a green card? Is this possible?

Mr. Lee answers,
A US consular officer does not have the authority to overlook grounds of inadmissibility. If your father was deported previously, one question is whether he served out the entire time of the bar before coming back to the US. When he reentered the US, did he enter legally or illegally? If he entered illegally before April 1, 1997, he would be eligible to file waiver applications after his interview with the US consulate. On the other hand, if he reentered illegally on or after that date, he would have incurred a permanent bar under which he will not be able to request permission to return to the US as an immigrant until 10 years after he left the US a couple of years ago. The granting of permission to reapply at that point would be in the discretion of the Attorney General.

4. Can I keep using my STEM OPT EAD even though I get my C9 EAD?

I have a valid STEM OPT EAD until 2024. I am going to apply for an adjustment of status soon to obtain a marriage based green card. When I get the c9 EAD in hand while the I-485 is pending, can I still keep using my STEM OPT card? Or should I use my C9 EAD because I applied for an adjustment of status?

Mr. Lee answers,

I do not believe that it makes much difference which EAD you will be using. You are authorized to work under your STEM EAD and that is not revoked by your applying for adjustment of status and obtaining employment authorization (C )(9) on the basis of that. However, please note that the STEM EAD is tied to the field of your degree while a (C )(9) EAD is open market and can be used for any employment.

1. Can Shoplifting Affects a Citizenship?

 I had a case of shoplifting in Aug 2015, I was arrested and detained for 2 days in the county detention facility, my charge was a misdemeanor class B ($50-750) I participated in a program called retail theft pretrial intervention and I obtained a dismissal from my case in May 2016. In January 2022 I applied for my American citizenship and I am waiting for my interview. I’m a little nervous because I certainly don’t know how this can affect me when it comes to being interviewed?! I obtained my permanent residence in 2017 and since that date I have only had two traffic tickets also dismissed by the court. I don’t know whether to mention these tickets during my interview?! I also don’t know if the program in which I participate is any of the programs mentioned in the N400 in part 12. I feel a little distressed about my background. What I need to do?

Mr. Lee answers,
In your fact situation, your case of shoplifting was in August 2015, well over five years old by the time that you applied for your citizenship in 2022. I also note that you said that you received your permanent residence in 2017, and I assume that you disclosed the shoplifting offense in your immigration application papers. The period of good moral character is five years, and this should not be held against you. I suggest, however, that you obtain a certified copy of the court disposition to take with you to the interview if you have not already presented it as part of your naturalization application. On your other questions, I do not believe that pretrial intervention and dismissal qualify as one of the programs  mentioned in part 12, item 26, if you did not have to make an admission of guilt. Also you should mention the traffic tickets as item 23 of the same part asks whether you have ever been cited, and a traffic ticket is a citation. 

2. What Will Happen to a Child’s (18 years old) Derivative Immigration Visa Status If His Principal Immigration (Parents) Do not Maintain Green Card?

My elder brother will get immigration visa (F4) his son / wife will get the derivative immigration visa as well. He might have to go back and won’t be able to maintain his green card / permanent residence in USA. His Son wants to stay and do his bachelors and pursue a career in USA. Can his son stay in USA with Green card without his parents staying in USA?

Mr. Lee answers,
An applicant who is sponsored for immigration has an obligation to make the US the country of permanent domicile. Failure to at least initially come and establish a permanent residence in the US (spending a period of time initially in the States) makes the green card statuses of the dependents insecure and subject to challenge. If your brother first enters the US and stays here for a period of approximately six months, it would make it much harder for DHS to challenge the dependents’ statuses even if your brother’s green card is taken away at some later point for no longer maintaining status. 

3. Class 3 Misdemeanor – Speeding. Will it Affect my H-1B?

I received a criminal speeding ticket in AZ a few days back. Just speeding and nothing else. Its a class 3 misdemeanor speeding ticket. I’ve hired a lawyer and planning to contest it. Will a speeding misdemeanor affect job opportunities like during background checks? Will it affect my H1B?

Mr. Lee answers,
I do not practice criminal law, but in googling criminal speeding in Arizona, it appears that excessive speeding is traveling at more than 20 mph over any speed limit in the state, and that it is a class III misdemeanor for which the maximum penalty is 30 days in jail, a $500 fine plus an 83% surcharge and up to one year of probation. Those are pretty hefty penalties for what does not appear to be a big crime. That being said, I do not know whether having the misdemeanor on your record will reduce your chances of obtaining a good job opportunity. However, such should not affect your H-1B status as it does not appear to be a Crime Involving Moral Turpitude (CIMT), which is usually the line used to determine whether DHS should begin to become involved. I note that visas have an element of discretion, even H-1B’s, and if you had to or wish to obtain a visa in your passport, the incident could result in a consular officer looking harder at your application, especially if there is a finding of guilt. 

4. H-1B Visa

 I am currently living in the USA on H4 visa on my wife’s H1B visa. While our green cards are in process, she has no EAD for me to work. I have previously worked on L1A in the USA and did a change of status from L1A to H4 visa. While we are waiting to have my wife’s PWD approved, I have been contacted by companies to interview. A company is willing to sponsor my H1B visa. (never been on H1B in the US) I am trying to understand – when can the company file for my H1B petition – is it only in March/April ? Can they put any start date or is it always Oct 1 of the same year? As far as I know, fresh applicants apply for lottery in Mar/Apr and then they work on H1B from Oct1 – most of them have an interim visa that allows to work between those periods. I do not have an interim work permit – what are my options? 

Mr. Lee answers,
Unless the organization that is interested in hiring you is cap exempt (institution of higher education, nonprofit organization affiliated with an institution of higher education, nonprofit research organization, or governmental research organization), it must go through the selection process to hire H-1B workers. Such involves registering the company and possible candidates in March, after which USCIS will announce the selectees in the last week of March, and allow H-1B visa petitions to be filed beginning in April for work to begin in October assuming that petitions are approved in time. A few options to consider are searching for a cap exempt organization, applying for O-1 extraordinary alien status if you are extraordinary, or working under H-4 if your wife is able to obtain an I- 140 approval.

1. How to return to the USA after abandoning LPR

My mother who has an active green card, but an expired travel document is trying to return to the USA. 1) After completing form I-407, where does she mail or email it to? 2) Should she expect a response or proof that she filed I-407 before being allowed to travel to the USA? 3) After completing I-193, where does she mail or email it to? 4) Should she expect a response or proof that she filed I-193 before being allowed to travel to the USA? 5) If by completing form I-193, she will be allowed to travel to the US without a visa or travel document, what kind of documentation does she need to present at the airport in Saudi Arabia and the custom petrol checkpoint in the USA to be permitted to fly and enter the USA? 6) Where does filling form DS117 fit into all this? 7) Does she apply for form I-131 for a new travel document at any point here? 8) What is the best way to work with an immigration lawyer in this case.

Mr. Lee answers,
If your mother has an “active” green card which is not expired and has not been out of the US on this trip one year or more, she would be able to return on the basis of the green card by presenting it to the air carrier and to U.S. Customs and border (CBP) inspection officers. If the green card is not expired, but your mother has been out of the US for one year or more and a reentry permit is expired, she may be able to present the green card to the air carrier and U.S. Customs and border inspection officers along with explanations and proof as to why she did not reenter the US within one year of leaving. If CBP wishes to admit her with a waiver, it can allow her to fill out and pay for an I-193 application for waiver of passport and/or visa. An alternative for your mother is to apply to the consulate or embassy for a special immigrant visa (DS-117) if she is able to prove that she had a good emergency reason for not being able to return to the US within the one-year validity date of the green card or the time on a reentry permit. On the other hand, if she is abandoning the green card now, she would send in the I-407 form to the Williston, Vermont, address on the instruction to the form, and then could possibly apply for and obtain a visitor’s visa from the American consulate or embassy. With reference to an I-131, a reentry permit cannot be applied for by an individual outside the U.S.  

2. How can my immigrant wife petition her sons to come to USA with us?

My wife came here from Philippines on K1 visa in January 2020. We were married in February 2020. She currently has her two-year green card. She does not work. I, as her husband, work to support her by my own choice. She has three adult sons in Philippines, ages 19, 20, and 26. Can she file form I-130 to petition them to come to USA even though she does not have a job? Is it to our advantage to file the petition(s) before her 20-year-old son turns age 21? I will sign a sponsor letter if necessary

Mr. Lee answers,
Currently an application by your wife for her three children in the Philippines would take approximately 10 years to complete if they were born in the Philippines and remain unmarried during these years. The law, however, does allow a stepfather who marries the mother of the children before they turn 18 to apply for the eligible children and that would shorten the period of time. You state that you were married in February 2020, and that would be over two years ago. You also state that two of the children are 19 and 20. If you married your wife before those children turned the age of 18, you could petition for them now as your immediate relatives, and possibly immigrate them in approximately one year. If the circumstance applies, you would have to petition before the 20-year-old child turns the age of 21. Unfortunately, the 26-year-old cannot benefit under the above and would have to wait approximately 10 years through your wife’s petition unless he has other ways to immigrate. Financial support documents are not required at the beginning, but at the time that the children begin to get ready for their interviews at the American Embassy.

3. My father is a principal on a qualifying labor certification application that was submitted before 4/30/2001 does this help adult unmarried daughter.

My father is a principal on a qualifying labor certification application that was submitted before April 30,2001. His I-485 has been recommended for approval as of Apr 29, 2022. My question is regarding one of his children. She (my sister) is currently an unmarried adult (over the age of 21), when the labor certification was approved she was unmarried and under 21 years of age. My question is whether she is eligible to apply as an “accompany” or “follow to join” the principal beneficiary (parent). My sister does have a US Citizen daughter who will be turning 21 in a couple of years and a US Citizen sibling. Does any of this help her in any way to petition an immigrant visa? Any and all answers are greatly appreciated. Thank you for your time and consideration.

Mr. Lee answers,
As your father was the principal on a labor certification with merit filed prior to 4/30/01, your sister who was under the age of 21 at the time is grandfathered for purposes of §245(i) if she entered the US by December 21, 2000. That means that she is not barred from adjusting status through any means that she can gain immigration from even if she entered the US without inspection or took up unauthorized employment or overstayed her visa status. For purposes of accompanying or following to join your father on his case, she would be too old by this time. You say that your sister has a US citizen daughter who will be turning 21 in a couple of years –that petition would likely be the quickest way for her to immigrate. Usually, an immediate relative petition like this would take approximately one year to complete. A sibling petition begun today on the other hand could take approximately 15 years to gain permanent residence. 

4. Should I apply for my green card or my citizenship after legal name change?

I recently completed a legal name change. I am green card holder eligible for citizenship. My question really is do I need to correct my name on my green card before applying for citizenship or can I just apply for my citizenship?

Mr. Lee answers,
You do not have to correct your name on the green card before applying for your US citizenship. I note that USCIS does requires individuals to have green cards with at least six months validity on them when applying for citizenship. That is usually the only time that individuals must apply for new green cards when applying for citizenship. As you already have a legal name change, you can enclose a photocopy of the court document changing your name in your naturalization application. To lessen confusion in any day-to-day situation, you can carry a copy of your name change document with you along with your green card or a copy of it. 

1. I had worked on H1B visa  and I am considering moving back to US, Do I need to again sit in lottery?

I currently live in India. In April 2018, I came to US on L1B Visa, and then got H1B visa in 2019 lottery (expiration date of H1B visa on passport is June 2022), and had worked on H1B visa from Oct-2019 – Feb 2020. After I left my job in Feb 2020, Due to Covid pandemic and health issues, we had filed for extended stay via I539A before the H1B grace period of two months end. We left US on Nov 7, 2020, which I realize could be overstay, not sure. Could you please clarify ? I am now considering moving back to the US. Do I again need to sit in lottery as worked couple months on H1B? implications and solution of potential overstay?

Mr. Lee answers:
As you previously worked under H-1B status in the US in 2019-2020, you do not have to go through another visa selection process. Under the conditions that you describe in which you timely filed an application to remain legally in the US after your H-1B job ended, and presumably left prior to the adjudication, there may be a valid question of overstay as the maximum period of initial time allotted for being a visitor is only six months and you would have exceeded that even if you had filed during the 60 day grace period. However, there is room for argument that you complied with the law and USCIS was supposed to have made a timely adjudication. Under the Foreign Affairs Manual guidance, I do not believe that your explanation of actions should prejudice you in a later application for a visa.

2. I am considered an alien relative. Can I file for I-485 and I-765 at the same time once I get my I-130 form approved?

My dad is a lawful permanent resident. I intend to file for I-30 soon, and I wanted to know if I could file for I-485 and I-765 once I get my I-130 form approved? Furthermore, what is the estimated time to get the two aforementioned forms approved?

Mr. Lee answers:
Whether you can file for I-485 and I-765 once you have your I-130 petition approved depends upon whether there is immediate visa availability. If you are a child under the age of 21 and unmarried of a lawful permanent resident, you would generally be able to file for I- 485/I-765 if inspected and admitted or paroled and in addition have maintained status under the LPR sponsorship. However, if you are in the other categories, you would have to check the visa charts to see whether your priority date has been passed and the visa available in order that you can file. In checking the visa charts, you would also have to look at the USCIS acceptance chart to see whether it will accept either the “final action dates” or “filing dates” chart on the monthly visa bulletin for purposes of allowing adjustment of status filings. If able to file both forms, current processing time for I-485’s is generally a little less than a year on a nationwide average and for I-765 3-6 months.

3. Can I expedite my DACA?

My DACA is expired. I already filed for a renewal but it is in process now. My employer asks me to resign due to my status, what can I do ?

Mr. Lee answers:
You can request an expedite from USCIS if you will suffer severe consequences from losing the job. USCIS will entertain such a request if the severe financial consequences are not the result of your failure to timely request the DACA renewal. It further says that, “Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization by itself, without evidence of other compelling factors, does not warrant expedited treatment. In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.”

4. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract?

I would like to inquire. I hold a j1 visa for one year and work in a hotel as a chef. Can I convert the visa to H1 if the hotel gives me a work contract or what are the required procedures, knowing that it my visa does not apply to the two-year rules In addition, I would like to know what types of visa are available for transfer.

Mr. Lee answers:
For chefs, the H-1B visa is generally not a good choice as being a chef does not require a specialized degree. H-1B visas are given for specialized occupations requiring baccalaureate or higher related degrees in the occupational field. O-1 classification for extraordinary chefs is the more proper visa category. An option could be an organization sponsoring a cook or chef for permanent residence under a labor certification. For persons born in most countries of the world except China and India, the approximate time of such a case if everything goes well is approximately two years. I note that being sponsored for a labor certification alone does not entitle an individual to remain in the US during most of the time of processing. A further option may be changing status to go to school in the country under F-1 or M-1 status. 

5. Can I re-enter the US with an arrest record on J-1 visa?

 I’m a foreign exchange student on a J-1 visa, I was arrested in a misunderstanding in February 2022. I hired an attorney and my case was never filed to the court, but the arrest record should be available. I would love to travel home now but was wondering if it’s reasonable, or would I have problems re-entering the U.S. with the arrest record? Is there a chance they won’t let me cross the border?

Mr. Lee answers,
While one cannot discount Customs and Border Protection inspectors looking with interest in any arrest, the fact that your case was never filed with the court is very favorable towards allowing you reentry into the States. Kindly note that an admission of guilt to an immigration inspector has the same effect as a conviction when you are trying to be admitted as a nonimmigrant to the country. If the arrest was for an excludable act, and it was admitted, then you would have difficulties. You may wish to bring a copy of the proof that the case was never filed to court in the event that there are questions.

1. How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

Mr. Lee answers:
I do not know of an expedited process for green cards where healthcare workers are concerned, although USCIS recently said that it would expedite employment authorization renewal cards for such workers. The fact that you are already in the US instead of overseas would also not be in your favor in requesting an expedite from the agency. The expedite criteria from USCIS are: Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons; Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or Clear USCIS error.

2. I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

Mr. Lee answers:
Just because you were given until July 27 on your entry does not mean that you are allowed to come back to be in the US for another 15 days after returning from India. Your leaving and coming back subjects you to a new inspection when your return. A CBP officer may wonder why he or she should allow you to come back in after such a short trip outside the country. You may have a more sympathetic inspection if you are able to outline the reasons for which you need the additional time and you are able to produce documents relating to the urgency of your having to return to India before being able to accomplish your original purpose in the US.

3. What will I do when I was denied the petition for naturalization because I was not able to produce the document? 

I filed for a petition for naturalization but was denied because I was not able to submit the divorce decree. This was back in 1988.

Mr. Lee answers:
The question would appear to be the relevance of the divorce document. If it was not relevant to the question of your qualification for naturalization, you can submit a new application. If it is germane to the qualification, you should obtain it either by the time that you file for naturalization or by the date of your interview.

4. Can I travel between USA and Canada using AVR (each trip duration less than 30 days) multiple times while my visa appointment is scheduled?

I have a valid I797 and I94 for H4 status until 2024 and a Confirmation of Permanent Residence (CoPR) for Canada. Also, I have expired H1B and F1 visa stamps on my old passport. Now, I need to move to Canada temporarily for work (2-3 months). Can I travel weekly between USA and Canada to visit my family in USA using Automatic Visa Revalidation (AVR) multiple times? My visa appointment in US embassy in Canada is scheduled for Oct 4, 2022, but I want to travel back to the US on weekly basis in May, June and July 2022. Also, I understand I can not do any productive work while I am in the US on H4. Look forward to your response.

Mr. Lee answers:
Technically, you appear to meet the requirements of automatic visa revalidation as you have a current status, an expired US visa, and will be in Canada for less than 30 days on each trip. You may be questioned on the purpose of your frequent trips if there is some thought that you may be doing something illegal, but I do not otherwise see a problem. The fact that you have a visa appointment at the consulate scheduled for October should not affect trips done before the interview. Insofar as Canadian entries are concerned, I possess no knowledge of Canadian immigration law and cannot inform you as to whether there are restrictions.

5. Do I include children from a previous marriage who aren’t on my tax returns on my I-134?

Next month, my husband will have a k3 visa interview in UK and I need to fill out his I-134. I do not make enough money and I am using my mother that I live with as a joint-sponsor (she made 47k last year and has been employed at her job for 13 years). When I filled out his i-129F for the K3 visa I did list my children from a previous marriage under information about me (sponsor). Now, my question is, I have been told by multiple people since my ex husband has claimed the three children he and I have the last three years on his tax returns and I have not, that I do not need to put them on my i-134, only the daughter I have with my husband who is on my tax returns. Is this true? I am worried about them thinking there is any inconsistency between the i-129F information and the i-134.

Mr. Lee answers:
The I-134 affidavit of support form only asks for a listing of dependents who are dependent upon you for support, either partially or wholly. If they are not dependent upon you for such support, then it appears that you would not have to list them.

6. Would it be a safe idea to stick with the current company? or I should switch to the new employer

I recently got my h1b petition picked in lottery by 2 (two) companies. I have been working with my current company since 2020 and got my h1b denied in year 2020 due to speciality occupation after which i decided to pursue a specialized masters related to position. This year I got a new offer by other company who also filled for my h1b and got picked in the lottery. So my question is, should i stick with the current company? or it would be better to apply through new company as my h1b was denied before by current company.

Mr. Lee answers:
I do not know your particular situation and so cannot advise you which one is the better opportunity for success. If you have completed a specialized master related to the position, perhaps your chances are as good or even better with your current company than they would be with the new company. If you are really confused, you should speak with the attorney or attorneys who are handling your case for an opinion. Good attorneys will usually give a candid assessment if you request one.