Category: Q&A

1. How to change a student visa to a tourist visa?

I’m currently an F1 student and want to change to tourist visa B2 because can’t continue school anymore. How long does it take to process? if approved?

Mr. Lee answers,
In looking at the various service centers of USCIS and their published times in adjudicating changes of status to “other” categories like B-2, they are generally taking a long time. The Texas Service Center is taking between 10-13 months, California Service Center 19-25 months, Nebraska Service Center 9.5-12 months, Vermont Service Center 11.5-15 months, Potomac Service Center 10.5-13.5 months, and the National Benefits Center 2.5-4.5 months. I note that USCIS adjudications have been delayed because of the pandemic, and have hopefully begun to speed up. 

2. Can a mistake in form N-400 be fix in the interview?

I answered NO instead of YES in question about military. I was in a mandatory Military service in my country of origin. My Interview was already scheduled. Could it be fixed at the interview? Can I have any trouble?

Mr. Lee answers,
Yes, you will be given opportunity at the time of the naturalization interview to correct any item on the N-400 application. If the officer does not ask the question, you should volunteer that you were in mandatory military service. 

3. What do I need to do to change my J-1 Au Pair Visa to marriage visa?

I arrived in the US on a J-1 Au Pair visa. It is due to expire in October, however whilst here I have met my girlfriend and we intend to get married. I am wondering how to ensure that I am able to stay here with her as we do not want to be apart. I am unable to be an Au Pair when I am married as the program states that I will have to exit the program if I am married, therefore I am trying to understand how to stay in the country with her legally until everything is processed. Any help would be appreciated.

Mr. Lee answers,
Assuming that you are not subject to a two-year home residence requirement because of the J-1 visa, you should be able to stay in the States if you are marrying a US citizen or permanent resident. With a permanent resident, you would have to file the I-485 application for adjustment of status with USCIS prior to the expiration date of your J-1. The I-485 filing would place you in a quasi-legal status until the time that the agency makes an adjudication on your application. 

4. Can and should I apply for adjustment of status with an approved I-526 awaiting a consular interview while being in USA on a b1/b2 visa?

 I had applied for EB-5 which got approved in Feb 2020. Since I was in Hong Kong, I went through consular processing and my case stands as documentarily complete at NVC awaiting an interview. Before two months I came to USA on non immigrant Business Visa (B1/B2). There is again a surge in Covid cases in HK and lockdowns and curfews are being laid down and so the Embassy is shut again. Q1) I wanted to know how it would be if I were to apply for Adjustment of Status? Q2) Are there greater chances of my getting a refusal since I came on a nonimmigrant visa and am applying for becoming an immigrant ? Would the 90 day rule adversely affect my application? Q3) Say if I do apply and get refused, would I still be able to go back to HK for Consular processing ?

Mr. Lee answers,
A concern with USCIS may well be why you are applying for adjustment of status here while you are awaiting a consular interview on the approved I-526 petition, and the related concern of whether you had a preconceived intent to adjust status when you came to the US. It may come down to an immigration examiner’s perception of what is going on. There is probability that you will be interviewed instead of an interview being waived, and in such case, the examiner may question and evaluate your explanation. I do note that the deterioration of conditions in HK vis-à-vis Covid would appear to be a reasonable explanation for deciding to adjust status instead of returning for consular processing. If you are refused, you may face problems with your consular processing in HK dependent upon the speed of resetting consular processing and the attitude of the interviewing officer toward your attempt to adjust status in the States. 

1. Can an immigrant be household member if main source of income is abroad?

I am a U.S. citizen, sponsoring my husband. He owns a business abroad and that is our household income (I am unemployed.) Can he be considered a household member on the I-864, or must it be U.S. employment?

Mr. Lee answers,
While an intending immigrant’s assets can be used to provide for support if the petitioner does not have the ability to support on his or her own, an immigrant’s overseas job income is generally not considered for purposes of an affidavit of support since the immigrant is coming to the US and supposedly giving up his or her position in the home country. 

2. How long after getting married I can file immigrant paper for my spouse?

How long after getting married to a Mexican (non-us citizen) do I have to wait to start filing for his papers? Can I begin a few Weeks after or do I have to wait for a specific time period?

Mr. Lee answers,
There is no specific time period during which a petition must be held off after the celebration of a marriage. We have had many people file green card petitions for their spouses in the week after the marriage ceremony. I note that we did see one time that a divorce decree stated that the couple could not remarry for a certain period, but other than that, I do not know of any other restrictions.

3. Fiancé Visa or Marriage Visa

Would it be easier to get my fiancé a fiancé visa to come to the US from Mexico & get married here then apply for a green card or would it be easier to just get married & then begin with the process of fixing him papers?

Mr. Lee answers,
In general, a marriage shows more of a level of commitment to a consular officer then an engagement. That being said, a consular officer will look to determine at time of interview whether-in his or her opinion-there is a bona fide relationship. 

4. Nationality changes in I-130

I filed an I-130 petition for my sister in August 2010. When I filed the petition, my sister was a Peruvian citizen. She has recently become a naturalized citizen of Spain. How can I notify the Visa center of this change? Will her change in citizenship speed up her priority date (I’m thinking maybe there are less people from Spain than Peru requesting immigration)?

Mr. Lee answers,
To notify the National Visa Center of any changes of circumstance, you can send an email communication to it at https://nvc.state.gov/inquiry. The change in citizenship will not impact your waiting time as both Spain and Peru are listed under “All chargeability areas except those listed” with visa availability in the August visa bulletin “final action dates chart” confined to those who filed petitions before 3/1/07.

5. Do I have to pay international student (F1 visa) tuition for a four year university if my i-485 is approved (Adjustment of Status)

I am an international student under F1 visa in U.S. My mother applied for her green card in 2006 and got did her interview with my father in 2019 and was approved. I didn’t go to the interview with them since I was in school, they are waiting on their visas to come but because of Covid it has been push back. But since my i-485 will be approved, do I have to still pay tuition as an international or a California resident? ( the school is UCSD )

Mr. Lee answers,
Generally speaking, an individual with a pending I-485 application is not considered to be a permanent resident with all the rights and privileges including in-state tuition payment. However, you can check with UCSD to determine whether it has a different policy. California appears to be a progressive state for immigrant rights.

1. Can I apply for a work permit in USA while on a Visa Waiver Program?

I enter by a visa waiver program for 6 months. Can I apply for a status to work?

Mr. Lee answers,
I doubt that you can apply for a work permit if entering the US by waiver for six months. I assume that the entry was not for working purposes, and it would likely take USCIS six months plus at its current pace to process an employment authorization application even if you were eligible. 

2. Can I file I 485 while I-130 is pending?

I’m under non-immediate relative (Unmarried son/daughter). I’m now in F1 status.

Mr. Lee answers,
If and when your priority date becomes current under the Department of State monthly visa bulletin, you can file for adjustment of status on form I-485. There are two monthly charts – “filing dates” and “final action dates”. USCIS determines which chart can be used during each month for filing adjustment of status applications. So for example, if the filing dates chart has reached your priority date but not the final action dates chart and USCIS decides to go with final action dates for the month, you cannot file your adjustment of status application. Also of course, you must continue to maintain your legal nonimmigrant status to file form I-485 since you are not in an immediate relative category.

3. Can I enter from Canada using B visa as my H-4 stamping is delayed in Canada?

I got my H-4 visa letter and I also have a B visa. Due to my office work I need to travel back and forth from Canada to US for family. Can I switch between B visa & H-4 during different entries? For example, I use B1/B2 first as H4 stamping is not issued, and in next visit get H-4 and use that?

Mr. Lee answers,
It seems as if the plan depends upon whether CBP believes that your entry under a B visa is for a short period of stay, and not a substitute to stay in the US for a long period of time in lieu of an H-4 visa. 

4. Change of status from H-1B to B1 and after approval of I-140 change back to approved H-1B?

My PERM is just being filed, it was delayed due to the prevailing wages delayed approval. My six years H-1B max out by Sep 30, 2021, not sure if with current Covid situation it will be approved by then. I also have approved B1/B2 Visa until 2026 with the same company that filled my PERM. My question – Is it safe to change the status from H1B to B1/B2 as both are with the same company. With current timelines, I see the possibility of getting I-140 approved by Nov’ 2021 and after that they have to apply H-1B extension again with approved I-140. During this process, can I change back from H-1B to B-1/B-2 and back from B-1/B-2 to H-1B?

Mr. Lee answers,
Assuming that you have an acceptable reason to change status from H-1B to B-1 or B-2 status in the States, your plan may be possible – but note that the change of status application will likely still be pending at the time that you have the I-140 petition approved and your petitioner is putting up papers for your H-1B. At that point, USCIS will look to see whether the change of status request is approvable before deciding on whether to put you back into H-1B status without your having to leave the States. 

5. A Green card holder wants to apply F-2B for son – currently an international student. How long will it take for his green card?

[1] I am a green card holder, want to file my son F2B. He is international student USA (India Citizen, 22 Age, un-married). How long it would take his GC? [2] While on Student visa (F1) if i file F2B will that restrict him getting OPT based on his Masters?

Mr. Lee answers,
Currently, the August visa bulletin “dates for filing” chart shows that there is visa availability for those who submitted petitions before 9/22/16 under the F-2B category for unmarried sons and daughters over the age of 21, and the “final action dates” chart shows availability for petitions filed before 9/22/15. So it will likely take approximately five years before an adjustment of status application can be filed as long as USCIS accepts the “dates for filing” chart when your son’s priority date becomes available. (That is assuming that visa chart progression remains approximately the same). On the question of OPT, in our experience, we have not seen students denied OPT by USCIS where they have had immigrant visa petitions pending or approved. 

 

1. Can My Dad Come Back to the US?

My dad was deported back in 2013 and he was deported due to a false charge that he had against him and I was wondering if he can come back in to prove that he is innocent and he also had a disability too! I don’t know if there can be something done about it!

Mr. Lee answers:
Generally speaking, DHS would not allow a deportee to return to disprove a charge for which he was convicted or pleaded guilty. To DHS, having a disability is not a persuasive reason for coming back to the US, especially with the present emphasis on enforcing the public charge provisions.

2. H1-B 6-years Tenure

I was in USA from Sep 2014 to July 2018. As my extension was denied I left USA . I was approved again as cap exempt in September 2019 again and re-entered USA in Jan 2020 So in current tenure am I eligible To get 6 years again till Jan 2026 since I Was already outside for more than a year?

Mr. Lee answers:
As you were outside the US for more than one year before assumedly filing and coming back in under a new H-1B petition, you are eligible to remain in H-1B status for another six years. 

3. Should a Receipt # be Generated or Is It Enough If the Petition is Filed Within the 60 Days Window to be Considered in Status.

I now have a new employer B willing to transfer my Visa. They are filing LCA on July 21st. My questions are 1.) My 60 day grace period ends on August 13th. 2.) Should a receipt number be generated or is it enough if the petition is filed within the 60 day window to be considered in status.

Mr. Lee answers:
It is sufficient that a petition be filed within the 60 day grace period for an H-1B transfer. A receipt is not required as long as the petition is properly filed and not rejected for any errors. I note that USCIS has been giving warning that its issuance of receipts is delayed. 

4. I am With a Pending Asylum Case. I Want to Withdraw Asylum and Go Back to My Country.

I have applied Asylum in May 2016 and my asylum case is still pending. The situation in my country is getting better and I want to withdraw my asylum case and go back to my country. In the future, If I want to come to the US, Will I get a visitor visa?

Mr. Lee answers:
The issuance of a visitor’s visa to the United States after leaving the country is in the discretion of the US consular officer. The length of time that you stayed in the US will be a negative factor in deciding whether to issue the visa. I note that if you are in proceedings before the immigration court, you will find it very difficult to withdraw your asylum case. If your pending asylum case is with USCIS, there is the added risk that the asylum office may issue you a notice to appear before the immigration court instead of only terminating your case. 

5. Can I Stay More Than 1 Year if My B2 Visa Extension Application (I-539) is Still In Review?

My in law came to the US on March 2020, and we requested extended visa before 6 month expiration of visa. It is still under process and my in law passed 1 year in the US now. Can she still stay here with pending application?

Mr. Lee answers:
The immigration rules allow a person with a pending application to remain in the US until the adjudication. That being said, if USCIS approves an extension of stay, it will only give the period of time requested. As such, if the applicant receives the approval after the requested time has passed, he or she immediately becomes illegal as there is no legal authority to stay past an authorized date. An applicant who wishes to remain in the US past the date requested on an extension application should file another timely request for extension. If not timely, an applicant can file a late extension request giving the reasons for the delay in filing. 

1. Can I get an F-2 visa while my husband’s green card application is pending?

 My husband has a PERM application pending. He’s currently working with his F-1 OPT. I am currently on J-1. After my J-1 expires, I want to apply for F-2. Would my husband’s OPT or his pending PERM application prevent me from getting an F-2 visa?

Mr. Lee answers,
If in the US for change of status, probably not. If you are thinking of obtaining an F-2 visa at an American consulate or embassy under the circumstances that you describe, you may or may not have difficulty in obtaining the visa. Unless your husband is eligible for or on STEM OPT, a consular officer may be reluctant to issue the visa as your husband will supposedly be back to the home country soon, and the officer may not wish to encourage his staying in the country. 

2. Do I need visa while my husband’s green card application is pending?

I am on a J-1 and my husband is on an F-1 visa. He is applying for a green card. His PERM application is currently pending. – Do I need to maintain status (i) after we submit I-485 and/or (ii) before we submit I-485? – What does maintain status exactly mean? Does being out of the US with no visa count as maintaining status? Or do I need to have a J-1 or F-2 visa? – If we can submit I-485 before my J-1 expires, will I be able to stay in the US with no valid visa while I-485 is pending?

Mr. Lee answers,
Maintenance of status only has to do with an individual’s status when he or she is in the United States. USCIS has no interest in what a person does outside the States. For you to apply for an I-485 application, you need to be physically in the country. If in the country, you are required to maintain a legal status prior to filing for the I-485. After filing the I-485, you can choose to maintain a nonimmigrant status or rely upon the I-485 filing to stay legally in the States. I assume that you are not subject to a two-year foreign residence requirement because of your J-1 visa. 

3. If a person already deported get the case vacated what are the chances for coming back and how long will the process takes

I got deported 10yrs ago and now I’m trying to get my criminal charge vacated once that is done can I come back to the USA

Mr. Lee answers:
If the criminal case is vacated as the judgment was wrong and not just to help to make an individual eligible for US immigration, such would take away the stigma of the criminal charge and place the individual in the same position immigration-wise as he or she was in prior to the charged act. If he or she did not hold permanent resident status, he or she would still have to have a basis to return. If the individual was previously a permanent resident and this was the only bar, he or she should work with DHS on the necessary procedures to return to the country.

4. If I do consulting work (less than 10 hours per week) for foreign organizations while doing my PhD in the US on a F-1 visa does that violate any rules?

 F1 visa holder doing a PhD in the US

Mr. Lee answers:
There is a question of whether doing such work constitutes unauthorized employment. It is likely not so clear-cut since the foreign organizations could possibly hire an American worker to do your job if you were not available. The problem is compounded if your work entails being on a worksite in the United States. If not, there would likely be no foreseeable problem if the foreign organizations paid you in your overseas account. 

5. No name given on green card

My passport have given name as “XYZ” and surname is blank. Green card is having given name as “ No name given” and surname as “XYZ”. Will it cause any issues during travel, especially during immigration at US POE?

Mr. Lee answers:
There is a possibility that you may have a problem in traveling and going through a US port of entry. You may have to explain the situation in secondary inspection at a US port of entry. I assume that as long as the date and place of birth are the same on both documents, you will ultimately pass inspection, although there is a chance that there could be a lengthy wait in secondary while CBP checks your immigration history.

6. If I get a learner permit, will it affect my N400 application process?

 I moved to a different state and never got my state id updated and I wanted to know if I get a learner permit would it affect my N400 application? i applied after i moved to the new state.

Mr. Lee answers:
It would be a good idea to get a learner’s permit in the state in which you file for naturalization. You would be able to show such at the time of your naturalization interview as a further demonstration that you actually reside in the state of application. I assume that you applied for naturalization 90 days or more after moving into the new state or that the two states are covered by the same USCIS field office. 

1. Filed a Form I-539 and the 240 days are almost up and no answer from USCIS? What to do now?

I filed a Form I-539 back in September of 2020 to extend my status due board closure of my home country. The case status when checked says pending, however the 240 days are almost up and I haven’t heard any response other than a waiting a biometric appointment. Now that the boarders are open should I leave? what implications would I face if leave before the case has decision.

Mr. Lee answers,
It is difficult to say what will happen if you leave the US at this point. I assume that you filed for a six-month extension or 180 days. USCIS believes that if the intended period of stay exceeds the time that you are requesting, you should file an application to extend even if the first application is still pending. Perhaps the better route at this time would be to file for a late extension before leaving the country. Generally, a person leaving the US during the time of a pending extension would have no problems, but I am not sure that the answer holds for someone leaving the country where he or she has already exceeded the time requested on the pending extension. 

2. H-4 Visa Holder Will Age Out Soon

 I am a Canadian citizen residing in NYS. I am here on a H-4 visa. I recently found out that I am aging out of my H-4 visa, as I will be turning 21 years old this month. I need help to figure out my options. Is there anything I can do to remain in the United States? I looked into switching my H-4 visa for an F1 visa. I also looked into getting an adjustment of status, as my partner and I would like to get married.

Mr. Lee answers,
I believe that you have mentioned two of the more viable ways that an individual who is aging out can remain in this country. We generally recommend F-1 visa unless there are more viable options like marriage to a permanent resident, US citizen, or nonimmigrant with long-term status. I note that if you have a short-term wish to stay, you can submit an application to change status to B-2 visitor. 

3. Renew Work Authorization While in Removal Proceedings

 I would like to hire an attorney Also to renew my work authorization while in removal proceedings.

Mr. Lee answers,
Assuming that you still have the application pending which made you eligible for employment authorization, you should be able to renew it while in removal proceedings. Immigration attorneys are available throughout the country – most with a  practice in immigration law belong to the American Immigration Lawyers Association. 

1. I want to bring my minor sibling along with my parents.

I’m a U.S. citizen and want to bring my parents over here. They have a 19 y/o son. If I apply for the green card for my parents, and they get it, can they bring my minor sibling along with them? Or do they have to apply separately for him? Do they (my parents) need to show their income to apply for my sibling? What is the waiting time for my parents to apply for my sibling? If he becomes 22 by the time of the sponsorship process, can they still sponsor my sibling for the green card?

Mr. Lee answers,
Sponsoring your parents puts them in the immediate relative category which does not have dependents. Therefore, they would have to immigrate before one or both begins the sponsorship for their son. They would have to show their income to apply for him, but could also use the income of a household member or joint sponsor. Assuming that your parents immigrate, and during the time of their filing for their son, there is open visa availability before your brother turns 21, the waiting time would be approximately 1-2 years. If the visa category (F-2A) date is not available for your brother until after the age of 21 (even counting the adjustment on age afforded by the Child Status Protection Act (CSPA)), his case would fall into the F-2B category for adult children of permanent residents, which currently has a 5 ½ year backlog.

2. I filed an I-130 for my daughter of above 21 of age. She is in the U.S. with a tourist visa. Can I go ahead to file work authorization and change of status for her?

I am a permanent resident. I filed an I-130 application for my over 21 years old biological daughter. Can I go ahead to file for work authorization for her so she can work pending when the I-130 is approved.

Mr. Lee answers,
Your daughter’s petition is under the F-2B category for adult unmarried children of permanent residents. That category only has immigrant visa availability for filing I-485 applications for adjustment of status for those petitions submitted before 6/15/16 for most countries of the world. Work authorization can only be filed in your circumstances where there is visa availability. So unfortunately, your daughter will not be able to obtain employment authorization. Please note that she is also not allowed to stay in the country legally just on the basis of an I-130 petition filing. 

3. Can I cancel form I-130?

Mr. Lee answers,
As long as the beneficiary has not immigrated to the US, the petitioner can cancel or withdraw the I-130 form. I note, however, a cancellation or withdrawal does not mean that the petitioner or beneficiary can legally claim that no petition was ever filed. 

4. Petition for my father after 10th year outside of USA, he stayed 14 years in the United States as an illegal

I am filling a petition for my father, he left USA 10 years ago after he stayed 14 years in the United States as an illegal and was ordered to abandon the country by a court of immigration. He married an American citizen but they never finished the process

Mr. Lee answers,
Assuming that your father is not barred for any reason other than being in the US for one year or more illegally, he should be able to immigrate provided there is no problem with financial support. He may be asked about his marriage to the American citizen as an attempted fraudulent marriage would be a permanent bar.

5. Can I apply for a student visa with a pending I-130?

I have a pending I-130 (brother filed in June 2020) and I am in US. I have an admission into a very prestigious school to start in the Fall of 2021. Would the USCIS allow me to apply for a student visa, if by August my I-130 hasn’t gone through?

Mr. Lee answers,
I assume by the way your question is phrased that you are contemplating a change of status to F-1 student by USCIS. The I-539 form to change or extend status asks whether an immigrant petition has ever been filed for you. A positive answer brings the possibility that an immigration officer may doubt your nonimmigrant intent, which is required to be established in such cases. I do note that in the past, we have had some such applications approved. Having had an immigrant petition filed on someone’s behalf is not as damaging as having applied for an immigrant visa or adjustment of status to permanent residence. Whether the petition is approved or pending does not change the answer to the question of the immigrant petition on the form.

1. I applied for my brother immigration visa that takes 10 years to approve

I applied for my brother immigration visa that takes 10 years to approve and by the time Immigration approved my petition, my brother had died! So now I want to bring his family to us okay tell me how can I bring his family to us on that case right I am USA citizen ! My brother has four children one daughter that about 23 years old two under 18 plus and one 30 plus okay can my brother wife come on that immigration case

Mr. Lee answers,
The death of a principal beneficiary like your brother generally means that the case is over unless one of his dependent family members was residing in the US at the time of his death. Residence means the individual’s principal, actual dwelling place in fact without regard to intent, and for such a person, the definition does not require the individual to show that he or she was physically present on the exact date of death. If one of your brother’s dependent family members that remains eligible for immigration including counting the benefit of extra time under the Child Status Protection Act qualifies under the residence requirement, the case can continue under a provision of the immigration law, §204(l) relief for surviving relatives. Either the wife or one of the children who are still eligible to immigrate can fulfill the residence requirement. For the dependent beneficiary to request continuation of the case, he or she should specifically request USCIS “to reinstate the approval of the petition under section 204(l).”

2. Permanent Immigration

My boyfriend is from Iraq and wants to move to Oregon, US to live with me. We don’t qualify for the fiancée visa because we haven’t been able to meet due to covid. Can he get a work visa if he doesn’t have a job offer? What would be the best visa to go after so he can live here permanently.

Mr. Lee answers,
Without a basis to immigrate or to enter the US through family relationships, your boyfriend would generally have to obtain a work visa to work legally in the US if he comes into the country. Such work visas normally require a job offer. I note that if he manages to obtain an F-1 student visa, he may be allowed on-campus employment which does not require USCIS employment authorization, and later the possibilities of curricular practical training, pre-completion practical training, and post-completion practical training. If your relationship is serious, and you wish to apply for his fiancé visa, you would both have to physically meet prior to the fiancé petition being submitted to USCIS.

3. My husband filedI-130 for me and he got my names wrong. Would that affect our processing time?

I would like to know what would happen in our situation. He changed my last name to his, thinking that I had already done so, but I used my maiden name as it is on my passport. I would like to know if and how this would affect our process.

Mr. Lee answers,
Whether your husband filed for you under your maiden or married name should make no difference in the timing or the adjudication of the I-130 petition. Petitions are filed under married or unmarried names, and it generally makes no difference to an immigration officer. 

4. Can my employer apply for H-1B visa and green card at the same time?

I am a foreigner medical student, and I will finish my last year and then I will travel to USA -now, I have a friend in USA who owns a company and he agreed to apply h1b visa and green card for me so I can stay in USA. Now, can he apply for both H-1B  Visa and green card at the same time to minimize the processing time to get green card? After finishing my last year I will go to USA for training in a hospital On B-1 visa before my employer apply for H1b visa and green card and I will return to my country while the process of H-1B is running before my b1 visa 6months end and I will travel to USA in the 1st October on H-1B visa

Mr. Lee answers,
As you will finish your last year as a medical student before proceeding with your plan, I assume that you are requesting an answer to a future situation – perhaps in 2022. Unless your contemplated employer falls within the categories of entities that are exempt from the H-1B cap (institutes of higher education, nonprofit organizations related to or affiliated with institutes of higher education, nonprofit research institutes, or government research institutes), your employer would have to register the company and you with USCIS in March to see whether you could be selected since there are more H-1B applicants than there are available slots. If you are selected and assuming that your timing works out and that there are no Covid-19 restrictions or other bars, your employer can apply for both H-1B and the green card for you at the same time. The H-1B is a dual intent visa which allows the holder to have the intent to immigrate during the time that he or she is here as a nonimmigrant.

5. Is parent eligible to apply for SSN and thereby insurance?

I had applied for my mother I130 in Oct 2019. She was not in US at the time. Due to circumstances, she arrived in US on B2 visa in March 2020. She was eligible to stay until Sep 20, 2020. I filed her B2 extension due to Covid. No action has been taken on that application as of now. I also filed her I 485 Adjustment of Status since she was already here on Sep 16, 2020. Her I 130 got approved on Sep 23, 2020. I am assuming she is still in legal status as I had applied her B2 extension and then I 485 before original B2 expired. Since her I 130 is approved, can she obtain SSN based on I 797 receipt.

Mr. Lee answers,
Your mother will be able to apply for an SSN if she applies for an I-765 employment authorization application, has it approved, and then makes the SSN application. She is eligible to file for the I-765 as she has already filed the I-485 application. I have not heard that anyone is able to obtain an SSN based on an I-130 approval alone. Your mother’s pending B-2 extension makes no difference. Even persons in valid B-2 status are not allowed SSN’s. 

1. Expired I-94 for Son on L-2

My son’s i-94 expired in June 2020. I overlooked it and it’s been 8 months now. I had a lot going on, shelter in place, lockdown, no travel, shifting houses, an ailing father in law visiting. I just missed considering i-94 extension thinking visa was valid till 2022. My wife and I have i-94 till 2022 and we are going to be soon eligible for adjustment of status. What steps can I take to extend my son’s i-94? He is only 13 years old.

Mr. Lee answers:
You may request a late extension on behalf of your son citing the reasons that you have given here. USCIS instructions on the I-539 form for extension state that such can be accepted if: 1.     The delay was due to extraordinary circumstances beyond your control; 2. The length of the delay was reasonable; 3. You have not otherwise violated your status; 4. You are still a bona fide nonimmigrant; and 5. You are not in removal proceedings. Further instructions dealing with Covid-19 indicate further flexibility on the part of USCIS: Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19.  

2. Mom Had Tried to Pass the Border Many Times & Was Caught Using Someone Else Name and Sent Back. Can She be Forgiven? 

I want to try fix my mom papers. she is currently living in Mexico. my mom moved to us without papers and she had me and my brother. she left to Mexico due to family issues. but then she tried coming back to us without papers and she was caught many times and one time she got caught using someone else name. USCIS sent her back with warning and she stopped trying. i will almost turn 21 and i want to fix her papers. I just want to know if she can be forgiven for trying to come to the us without papers.

Mr. Lee answers:
It will likely be difficult for you to have your mother come over as a permanent resident. A record of fraud or misrepresentation requires a waiver application based upon extreme hardship to a qualifying relative, and a qualifying relative is restricted to being a US citizen or permanent resident spouse or parent. She cannot waive through you. On the issue of her being caught many times trying to come into the US illegally, she would incur a “permanent” bar in which she would not be allowed to apply for any waiver for 10 years if she stayed in the US illegally for one year total on or after 4/1/97 and then left and tried to enter the country illegally on or after 4/1/97. 

3. Filing for Green Card for My Parents and Brother

I’m filing green card application for my parents. I became US citizen in 2017. Should I file for my brother together? Is there any benefit in doing that together?

Mr. Lee answers:
The benefit is that you will have given your brother a different way to immigrate to the US as there is no absolute assurance that he will be able to later immigrate through your parents. Immigration laws can change over time and visa availability in the various categories may also change. At present, your applying for your parents and then your parents applying for your brother (assuming that he is unmarried) seems the quicker route, especially if your brother is under the age of 21 at the time that your parents immigrate. However, petitioning for your brother gives him another option. I note that such a petition will generally not have a negative effect upon your brother’s obtaining a nonimmigrant visitors visa or being able to otherwise come to the US since the timing of the sibling petition is very long and most US consuls would not say that there should be a strong presumption of immigrant intent on the part of your brother if he wants to visit the US during the period of a sibling petition. 

4. Husband Leaves the Sponsoring Company, What Will Happen to My Pending Status F-2?

My F-2 status is pending, but my husband will leave the country, his contract is ending and he needs to leave the country, and will no longer have employment here. what will happen to my F-2 pending case? Will I have to depart together with him at the same time even if my F-2 still pending?

Mr. Lee answers:
Unfortunately, your husband is the lead and you are only in the position of the derivative. USCIS by law is not supposed to approve applications for derivatives where the principal has left the country. If you are able to apply for another visa status such as F-1 student and if that is approved, you may be able to stay independent of your husband. 

1. I filed I-539 extension for B2 visa on time, but so far I had only the 13 digits receipt. Should I leave?

I filed I-539 extension application with B2 Visa on time, but I have not received any result; I only have the receipt notice. My worry is that the 180 days (I read this from a USCIS site) allowable days for me to stay supposedly after filing extension supposing it is approved has lapsed. Should I leave the US?

Mr. Lee answers:

An applicant for timely B-2 extension is entitled to remain in the US to await the results of the decision, but your better action if you were going to stay past the time that you earlier requested would have been to apply for another extension. If USCIS approves the extension request (six months is the maximum extension time), that will be over the time from April 2, and you will begin to accrue unlawful presence as soon as the decision is made. Whether you stay or leave at this time is your decision, but USCIS would likely prefer for you to leave if you did not file another extension request or other application to attempt to maintain your nonimmigrant status.

2. My Son (Visa Waiver) in the US, (not married, 33 years old) , I am Permanent Resident Card holder Mom, may I process the I-130 and I-485 together? He is overstayed.

It is a just a thinking situation : if my son comes with Visa Waiver to the US and he will overstay. May I file for him I-130 and I-485 together and can he stay under the process in here in the US ( I am a green card holder Mom)?  If not, maybe he will come to the US (with Visa Waiver), and under the visiting time I will file the I-130 and I-485, is it will work? Or other way, if the GC holder applies for the son, who is abroad, under the process, he may come to the US or must wait 7-13 years without visiting his mother?

Mr. Lee answers:

As a permanent resident filing for a 33-year-old single son, he is in the F-2B category which in the month of January 2021 only has filing date availability for those who filed prior to 5/1/16 for all of the world except for further backlogged countries Mexico and the Philippines. Adjustment of status (I-485) is only allowed where there is visa availability. Your idea of having your son adjust status when he enters will not be allowed because of the long period of time that he must wait before his quota becomes current. Insofar as visiting you is concerned during the time of waiting, he is allowed to do so as long as he is able to convince immigration inspectors at the port of entry that he intends to return within the 90 day period allowed on visits under the visa waiver program. He should space out any visits so that DHS can see that he spends much more time in his home country than the United States. 

3. Reduced misdemeanor charge speeding

I do have a misdemeanor charge of speeding in Virginia (2019) and the judge asked me to do driving school and 12 hours community service and charge reduced to infraction of simple speeding I paid the fine. How it will affect the N-400 application. I had 4 driving tickets 1- The number plate is not visible – Fine paid. 2- Careless driving – Fine paid in 2017. 3- Not obey the sign -2018- Fine paid. 4- Children are not wearing a belt- Fine paid 2019.

Mr. Lee answers:

Offenses against the law are important in naturalization cases since applicants must prove good moral character for the length of time required following the green card to file the N-400 application. Generally, traffic offenses should not prevent individuals from obtaining naturalization if the applicants are qualified in all other respects. The fact that you have four traffic offenses may be looked at more carefully, but I believe that four over a period of three years can probably be overlooked.

4. I applied I-130 form for my sister.  Can she apply the form I-485 also?

I am a U.S. citizen and filed I-130 for my biological sister.

Mr. Lee answers:

The F-4 category for siblings of US citizens is presently available for filing forms I-485 only to those filed I-130 petitions before 9/15/07 (dates for filing chart) except for further backlogged countries India, Mexico, and the Philippines. Because there is no visa availability, an I-485 cannot be filed. The US does not allow individuals to file I-485 applications and then wait until the priority date is current. Sorry. 

5. My husband owes child support. Will it affect my immigration petition?

My husband has outstanding child support on New York. He’s filing an immigration petition for me. Will this affect me? If so, how can he be rectified or to pay outstanding amounts? How can it be rectified?

Mr. Lee answers:

If your husband has outstanding child support obligations, he should either pay the amount owing on child support, or if unable to do so, make a schedule with the child’s mother for the outstanding balance over time. Your husband’s inability to pay child support casts doubt upon his ability to support you under the I-864 affidavit of support, a requirement in your immigration case.