Category: Q&A

1. My wife Has a Permanent Resident Card But She got Detained in Crossing Back to the United States.

She Went to Mexico For a Dentist Checkup. I spoke to the U.S. custom supervisor he said that before she was given the residency card, she entered the United States illegally. My question is will she be detained and if so for how many days.

Mr. Lee Answers:
This may turn out to be a difficult situation in two instances – how she adjusted status to permanent residence in the US since the illegal entry would in most cases prevent an individual from adjusting status, and in the second case if this was a second illegal entry. In that case, DHS may see the green card as invalid as having been given in error. As your wife has a prima facie permanent residence card, the chances are that she will ultimately be released and given a date to appear before an immigration court.

2. Someone Makes More Than $30,000 a Year and The Household Size Is 2.  Is This Person Above the 125% of The Poverty Guideline?

I thought I calculated this correctly but I got a RFE saying that this person doesn’t meet the minimum requirements to be a sponsor. Maybe the I-864 had other mistakes that triggered the RFE but I have no idea and I can’t get a lawyer either, I just want to know if this calculation is correct or not.

Mr. Lee Answers:
Where the household size is two, a person making more than $30,000 a year is well above 125% of the poverty guidelines. Those state that for a family of two, the amount to make for most states is $21,137; for those in Alaska, $26,412; and for those residing in Hawaii $24,325.

3. During Claiming Asylum Process I Can’t Get My Uni Papers in Saudi Arabia.  It Requires My Father’s Agreement.  Will USA Be Able to Get Me the Papers I Need?

I’m a 21 year old Saudi girl who lives in Saudi Arabia. I’m abused really bad by my parents (dad and step mom) and I get hit a Lot And now they’re selling me to a guy I don’t know, which is called “Arranged marriage” so technically I’m gonna get rape. My husband is taking me to the USA for honeymoon so I’ll run and claim asylum there.

Mr. Lee Answers:
I gather that when you are talking about Uni papers in Saudi Arabia that refers to your university papers. The USA would not be able to obtain those papers for you – neither would it feel obligated to do so since the burden of proof is upon you to prove your case for asylum. That being said, while US immigration law on asylum does require corroborative evidence, that is only so where it is able to be obtained. If the Uni papers are central to your case and you have a good explanation as to why you cannot obtain them, it would be up to an asylum officer and perhaps an immigration judge to determine your credibility and the availability of the documents.

1. Does Sponsoring an Undocumented Employee Increase My Risk of Prosecution for Hiring Undocumented alien?

I hired a woman (who had been my customer for a couple of years) not knowing at the time she was undocumented. She lived in a nice neighborhood and her husband had a job at a big construction company. She had a valid drivers license when I first hired her which I copied and put on file. Over 3 years she went from 15 hours a week to salaried full-time manager. About a year ago, I asked her to be my company’s registered agent for city regulatory compliance. She said her license was expired. That was the first time I discovered that she was here illegally. Now, her daughter is about to turn 21 and she says she’s pursuing legal status and wants me to sponsor her. I’m not interesting in signing anything which amounts to a confession that I am aware that she is here illegally. Assuming there is a pathway for her to obtain legal status when her daughter turns 21 next year, are there any protections afforded me if I agree to sponsor her?

Mr. Lee Answers:

In the case of your undocumented employee, she would chiefly be sponsored by her daughter, and I assume that you would act as the financial cosponsor. Such sponsorship would be through your filling out an I-864 affidavit of support form. Under the law, such a sponsor is responsible for providing financial support for up to 125% of the poverty guidelines, and your assets can be deemed hers if she makes application for means tested benefits from a local, state, or federal government. The obligation lasts until the alien has acquired 40 quarters of work, becomes a US citizen, passes away, or leaves the US permanently. Insofar as your liability as an employer is concerned, a driver’s license is not sufficient documentation to hire someone in the US. That plus a Social Security card without a limiting date would be sufficient, however, for employment. But even if that was the case, it appears that you were made aware of her illegality a year ago when she informed you that her license was expired. You might be liable for fines, although it is questionable that DHS would be interested in going after you. However, in these days of Trump, there are no guarantees.

2. I Was Refused Entry Into U.S. with INA section 217, For An Overstay Which I Wasn’t Aware Of.

I would like to apply for a B-2 visa, what are my chances?

Mr. Lee Answers:  

In a consular interview, you can explain the situation of your overstay to an officer who will determine as a matter of discretion whether he or she will give you a B-2 visa. Dependent upon the reason and your credibility as seen by the consular officer, the visa may or may not be given.

3. Do I Have to Submit All 5 Years Bank Statements for My Naturalization?

Mr. Lee Answers:

Banking statements are not generally required as part of the naturalization process. They may be relevant in cases involving naturalization in three years on the basis of marriage to a US citizen where individuals must show that they have been constantly residing with the US citizen spouse. But even in that case, sporadic joint banking statements covering the three years would be one of the acceptable proofs to show constant living together.

1. Can I Ask An Asylum in New York Airport?

I have question concerning an immigration to us. The situation is following. A man is a citizen of Armenia and has no visa for entering to US. But for Armenia there is no visa to come to Bahamas. There is a version to come from Armenia to New York and then to Bahamas. In New York airport a man will wait 7 hours for the next flight. So, the question is following: is it possible to ask for ASYLUM in the New York airport and in this way stay in US as an immigrant? Thank you for understanding.

Mr. Lee Answers:
Persons who have been persecuted or have a well-founded fear of persecution can ask for asylum upon entering the US at an airport in any status. You would of course have to be in an airport in the U.S.  I am not sure whether you can enter the U.S. in the way that you believe that you can.  But assuming that you make it to New York, whether an individual is able to stay in the US and eventually become a permanent resident depends upon the judgment of DHS or an immigration judge (if asylum is not granted in the asylum office) or a higher appellate authority. Asylum claims must be based upon persecution or well-founded fear of persecution on account of race, religion, political opinion, nationality, or membership in a social group.

2. My Partner is On DACA and The Status Expires August of Next Year. We Were Wondering If Marriage Would Protect Him If And When DACA Expires.

My partner is a visa overstay and entered lawfully. He has been on DACA, but since that seems to be expiring soon and we are thinking of going through marriage for a permanent residency and later, citizenship. His case seems a bit unorthodox because of his DACA status, and we were wondering if that would affect how this process would work?

Mr. Lee Answers:
Since your partner entered the US legally and is a visa overstay, marriage to a US citizen (I assume that you are) would be a way for him to obtain his permanent residence. Of course, the marriage must be bona fide in every sense – otherwise both of you may be liable for fines of $250,000 each and imprisonment for five years.

3. If Someone Is In U.S. On Expired Visa, Is There Something They Need To Do Before Going Home

Can they just buy a ticket home and go, or are there forms to fill out first like when they came here?

Mr. Lee Answers:
Generally speaking, someone in the US on an expired visa can purchase a ticket and return to the home country without too much trouble if no other factors are involved. He or she may have to fill out some information at the airport, but DHS will generally not stop anybody wanting to depart the US who has overstayed the visa.

1. What Evidence Do I Need to Prove That a Person Didn’t Have to File His Taxes Because He Wasn’t Working?

During 2016 and 2017 this person wasn’t working. He filed his taxes on 2018 for the first time. He is a sponsor for form I-864 and we need evidence to demonstrate that he didn’t have a job until 2016 (we got a RFE asking for the taxes and supporting documents for 2016 and 2017). I’ve been told that I can ask for a tax preparer letter but I don’t know how.

Mr. Lee Answers:
Your sponsor could explain in a statement to U.S.C.I.S. that he was not working during those two years, and supply any proof that he has supporting his statement. For example, a person who was a student would generally be able to supply a copy of the student body card, and transcript of schooling, or another could show that he was being claimed as a dependent on someone else’s tax return.

2. Initiating H-1B Transfer After Entering the Country

I am currently working for employer A on H-1B visa for over a year now. I got an offer from employer B in June 2019. Before employer B could initiate the transfer, I had to leave the country to attend to a family emergency in early July 2019. While outside the country, I got my visa stamped using employer A’s I-797 petition. The visa is valid through 2022 and does not list my employer name. Can I start the transfer to employer B right after entering US (within 1 week)? My plan is to resign from employer A only after the transfer gets approved Questions: 1. Will USCIS consider it as fraud if I file for H-1B transfer within 1 week of entering the country? 2. If the transfer gets denied, can I continue to work for employer A 3. Is consular processing safer

Mr. Lee Answers:
You may have a valid concern if employer B initiates the process for transfer within a week of your coming back to the US. Perhaps a more safe situation would be waiting to submit the petition until you have three pay slips following your reentry to the US. Generally speaking, as long as an applicant has not transferred to the second employer, he or she is able to remain with the first employer if the transfer petition is denied.

3. Applying For a Re-entry After Deportation

I was deported in 2011 and was banned for 10 years can I apply for an early reentry I have 2 US citizen children and I will soon marry there father which he is a US citizen.   
Mr. Lee Answers:
When you are ready, you can submit form I-212 application for advance permission to reenter the US after removal. You should of course fully document the application with all your equities including family members who are US citizens or permanent residents, hardship to all members of the family including you if your application is denied, and anything that you have done positively that can be looked at. If you are also barred because of unlawful presence in the US, you will also have to file an I-601 application to waive the bar of inadmissibility in which the primary concern will be proving extreme hardship to a US citizen or permanent resident parent or spouse if the application is denied.

1. Please Tell Us What to be Aware Of If Mother Sponsors Our Grandma for U.S. Immigration?

My grandmother is 80 and lives in China. My mother is a US citizen and wants to sponsor her so that she can stay with us for the rest of her life. She wants to know what things she should consider before beginning the process like how long it’s going to take, what steps are involved, and what will be her liability.

Dear reader,
The best advice without regard to financial liability is to begin the process now. Under the current unsympathetic administration, there is the possibility of the category of US citizens applying for parents being curtailed. The recently blocked regulation on public charge which would make family-based immigration dependent not only upon a viableI-864 affidavit of support but on a variety of factors would disadvantage an elderly parent attempting to immigrate. Although the public charge regulation may become unblocked by the time that your mother has her interview for the green card, that is a circumstance over which no one has control except the courts. In terms of liability, this administration has shown a propensity to enforce the affidavit of support obligations, and that would mean that the parent would not be eligible for means tested benefits for a period of five years, and that the financial supporter would have to pay back means tested benefits taken by the parent with certain exceptions such as emergency care. The process is approximately one year or less and consists of an I-130 petition for alien relative processing by USCIS, and then further processing through the National Visa Center (NVC) and the American consulate in Guangzhou.

2. How Difficult Will It Be for My Brother to Immigrate With His Crime and Taking Into Account His Family Here in the U.S.?

My brother committed an assault on a storekeeper and injured him badly for which he was imprisoned for three years in the 1990s. He has a clean record since that time. He takes care of our green card mother (father passed away) in New York, has a wife although she is not legal, and three children who are US citizens and the oldest will soon be 21. My brother came to the US legally in 1995.

Dear reader,
Your brother is inadmissible as having committed a crime involving moral turpitude. He may also have been considered to have committed an aggravated felony, but the Supreme Court in 2018 voided aggravated felonies based on crimes of violence saying that the definition of a crime of violence was too vague. He came into the US legally, and so although he is not eligible for adjustment of status based upon a petition by his mother, he might be eligible to adjust status through a petition by his oldest child who is turning 21. He will require a waiver of grounds of inadmissibility for his criminal offense, and so would have to submit an I-601 application for waiver of inadmissibility when he applies for adjustment of status. Under current regulations, USCIS’s standard for adjudication where violent or dangerous crimes are  involved is a showing of exceptional and extremely unusual hardship to qualifying relatives who are US citizen or permanent resident parents, spouses, and sons and daughters. Whether he is able to obtain permanent residence will then be in the discretion of USCIS.

3. Mother Passed Away Before Her Petition for Her Married Son Was Approved – What Can We Do Now For My Brother?

My mother petitioned for my married brother nine years ago, but just passed away. The I-130 petition is still pending and has not been approved. At the time when my mother was sick and dying, my brother was allowed a visa to come and he stayed with her until she passed and only went back home to Malaysia after the funeral services. What can we do now to keep the petition? We do not want to start all over again as we already have nine years invested in the process and they are processing 2008 cases at this time

Dear reader,
It appears that you will unfortunately have to begin again. If your brother has skills under which he can immigrate to the US through employment, the waiting time is not long at all for persons born in Malaysia. Otherwise you could begin again petitioning for your brother by yourself and it is an approximate 12 year wait. Your mother’s petition is not eligible for humanitarian reinstatement as the petition was not approved prior to your mother’s passing away. It is also not eligible to be continued under another provision of law which allows petitions to continue where a beneficiary resides in the US at the time of the petitioner’s death as the condition is that the beneficiary must be resident in the US at the time and thereafter until the petition is approved, and your brother was only a visitor to the country.

4. Thinking of E-2 Visa, Very Interested in L-1 Visa.

We are born in China, but now hold Grenada passports. We were thinking of opening up an E-2 business in the US, but on second thought think that we would like to try with a visa like the L-1 that can convert to the green card. I own 30% of the company here that has 150 workers and total income of approximately $2 million USD. I have been working in the company as general manager for the past five years.

Dear reader,

Besides showing that a US company is or will be viable in the near future, an L-1 petition for an intracompany transferee requires that there be a relationship of controlling interest between the US and China companies. 30% of a 150 person company is not regarded by USCIS as controlling interest although such might be in a much bigger enterprise. If you and other people in the China company owned the US company in much the same percentages as all of you own the China company, such a relationship might be recognized for L-1 purposes. I note that usual L-1 arrangements are that one company is owned by the other, or two companies are owned by an individual or individuals in roughly the same percentages, or two companies are owned by a third company. Controlling interest is usually seen as 50% and over.

1. I Have a Civil Lawsuit Against Me Because of A Car Accident.  How Do I Reflect This On N-400 Form?

 The ticket got dismissed because officer put wrong name.  Officer mistakenly put my husband’s name instead of me.

Mr. Lee Answers:
A civil lawsuit is not relevant to naturalization proceedings as it is not criminal, which is the focus in citizenship determinations.  The ticket is another matter. You would answer the question pertaining to whether you have ever been cited “yes” in part 12, question 23, and explain the circumstances in box 29 that the ticket was dismissed. It might be prudent to obtain a copy of the disposition and either include it in the initial filing or bring it to the interview.

2. What to Do on Form I-864 If My Husband Didn’t Have to File Taxes During Those Years?

During 2014 and 2015, my husband wasn’t working, he was studying. He started working on 2016 and had to file taxes for the first time. Should we write a ‘0’ (zero) on questions 19.b and 19.c (page 6, part 6, form I-864) or leave them in blank? I tried to do some research and I read that some people wrote “N/A” but my Pdf program doesn’t let me write letters, just numbers.

Mr. Lee Answers:
Your husband can put down zero on the questions. Your husband should enclose an explanation as to why he was not working with perhaps a copy of his degree if he graduated.

3. I Am A Doctor by Occupation But Intend Not to Work in Medical/Health Occupation In USA Not Requiring National Board of Medical Examiner Certification

Like Nutritionist,Medical transcriptionist,or pharmacist so what shall I answer to question in form D 260″Are you a graduate of a foreign medical school seeking to perform medical services in the USA but have not yet passed the National board of Medical examiner examination or its equivalent”

Mr. Lee Answers:
Since you will not be working in medical//health occupations in the US that require the National Board of Health Medical Examiners Examination or its equivalent, you should answer “no” to the question since you are not seeking to perform medical services in the country.

1. My Category Changed from F-2A to F-2B And I Got Welcome Letter From NVC

They changed my category because I am aging out but email us that they processing my visa and will schedule interview. So there is any way I can go through interview I mean I got visa?I have read several stories that they got interview call but rejected due to age out process.For your information my father is LPR not a citizen so there is any process CSPA protect me as I must to be with my parents.

Mr. Lee Answers:
The determinative factor in whether you can go through with the interview is whether you will be considered under the age of 21. Age is frozen when the priority date is reached. You are also given credit for the length of time that the I-130 petition pended with U.S.C.I.S. before approval. If in doing the calculations you are under the age of 21 when your age is frozen, you can immigrate under the F-2A category.

2. Working While On Tourist Visa

While on a student visa I work for 1 month at a local pub to make extra money. I left US and tried to returned and was denied because I worked. 1 year later I applied and was deny because of insufficient ties. 3 years later I applied and still try to get around that question and was denied again. I was 21 then. Now I am 30 with career as a nurse. Do you think I should apply and just be honest?

Mr. Lee Answers:
Honesty is the best policy here. There is no guarantee that you will be given a tourist visa since such is given in the discretion of a US consular officer, but you appear to have changed your life and have more reasons to return to the home country. Ties and bonds with the home country are usually determinative factors in B1/B2 visa determinations. Good luck!

3. Paycheck As Proof of Employment For Post Grad OPT

I’m on OPT post grad visa and working as a steady/extra at the hotel. My employer cannot promise me any hours in a written form but for the next month I’m scheduled to work 40 hours every single week. Can I use my paycheck as a proof of employment since they cannot guarantee 20 hours per week in written form but they are telling me that I will have at least 30 hours every single week (they worked there for 4 years and never saw a steady extra worker who got less than 20 hours)? Would paycheck work as a proof of employment since it will show that I worked 40 hours?

Mr. Lee Answers:
OPT postgrad only requires that an individual work 20 hours a week in a field related to the schooling. I see nothing wrong with your being able to prove the 20 hours a week through your paychecks. I note that most paychecks have another part that shows the number of hours worked. Such would also help although it is not necessary as long as the rate of pay per hour is known.

1. Is My L-1 Visa Already Out Of Status? Is My Employer Breaking The Law?

I’m working for a US holding company under L1 Visa. More than 6 months ago, another company purchased my subsidiary (both US & oversea offices). I requested the new company to change my visa to be under their sponsorship but they have been working on it for more than six months now and I still don’t know when the documents will be filed as every time I ask, I always get the same answer that they are gathering supported documents. So my concerns are: – Is my L1 Visa already out of status? – Is my current employer breaking the law by not making the transfer on time and still ask me to work for them? – If my Visa is already out of status, what are my options?

Mr. Lee Answers:
In your situation as I am given to understand, another company purchased the subsidiary of the holding company without making the holding company part of its company, and so the holding company is disconnected from the actual operating US and overseas offices. It seems a troubling situation, and it appears that the best option would have been for the purchasing company to make an L-1 amendment to put you in the US office or for the purchasing company to acquire the holding company. You may already be out of status, and perhaps the best option is for the purchasing company to make a late petition with explanation to change you to the subsidiary and hope that U.S.C.I.S. accepts the explanation. If not, you would have to leave the U.S. to consular process the L-1 assuming that the petition is approved.

2. Visa Process

Friend in Albania wants to come to USA. #1- Albanian passport. #2-apply for visa (B1/B2) – DS-160 form, setup interview. Is this the initial process? And correct visa? What if she wants to come permanently?

Mr. Lee Answers:
A person coming to the US for visiting purposes or other personal reasons would correctly apply for a B1/B2 visa on DS-160. An individual wanting to come to the US permanently should not be using a visiting visa, but a visa with dual intent such as H-1B or L-1 or be sponsored for permanent immigration through the family-based or employment-based categories.

3. My I-140 and I-485 Were Concurrent Filled. Can I Change Job If Both Forms Are Still Not Approved?

Mr. Lee Answers:
Where the I-140 and I 485 are concurrently filed, porting to a new job is possible after the I 485 has been pending 180 days. Determinative factors will be whether U.S.C.I.S. believes that the I-140 petition is approvable and whether the new job is in the same or a similar occupation.

1. Inquiry About Expired Temporary Green Card

I got temporary green card stamp in passport valid for past one year expired in 2002, can I apply for form I-90 replacement card to get a legal status in USA? I got employment authorization to work legal job in USA, please assist me to get a visa to USA, I am presently live in India since 2002, Reply me by email.

Mr. Lee Answers:
If you have lived in India since 2002 and your temporary green card in your passport expired in 2002, you have undoubtedly lost your permanent residence. You will not be able to regain it by filing an I-90 application to replace your permanent resident card. If you are interested in obtaining a visa to come to the US for employment, I suggest that you make an appointment with an immigration lawyer who can go over your options for a working visa.

2. How Do I Apply For My Husband’s Citizenship?

It’s been a year since my husband been home and we missed him dearly. We have a special needs child that requires a lot of attention. My husband and I have been married for 8 years. He’s never been in trouble with the law. He attended church and he do volunteer work at church. My husband believing here for 33 years. We missed him so much. How do I get my husband back?

Mr. Lee Answers:
Your facts do not disclose many of the items that would be necessary to give good advice. I assume that your husband has left the country and you want him back. However, you have not disclosed your present immigration status or that of his parents, and that would be relevant in seeing whether he could have a chance of returning if he is under a 10-year bar for unlawful presence in the US for a year or more. I suggest that you make an appointment with an immigration lawyer who can go over all your available options taking into account all of the facts.

3. Will My Husband Be Put in Risk to Get His Residency Taken From Him If We Come Back Into the U.S From Mexico for Christmas Vacation?

My husband was charged for having 2 grams of coke 8 years ago. He complied with his probation and did everything he was supposed to do. He has been a resident for 9 years and has not had any legal issues since. He went to Mexico last year for vacation and came back into the US without any issues. We are planning to go Mexico for family vacation at the end of the Month. Do you think there should be an issue with him coming back into the country?

Mr. Lee Answers:
A person can be charged with many crimes, but the determining factor is what he was convicted of or pleaded guilty to. If it was for having 2 g of coke, and if the problem was discovered at the time of inspection coming back to the United States, there would certainly be an issue. He would likely be placed in removal proceedings in which an immigration judge would ultimately make the decision as to whether he could keep the green card.

1. My Husband Was Banned for 10-yrs and That Time Is Up.  Can He Apply To Reenter Since We’re Still Married?

Me and my husband have been married since 2004.He was deported because he didn’t leave the country when he was supposed to on the visa he had. We are still married and the 10 years are up so if we’re still married is it possible for him to come back home and about how much would it cost?

Mr. Lee Answers:
If he was only barred because of deportation based upon an overstay, 10 years have elapsed since the deportation, and you have permanent resident or US citizenship status, you can apply to have him come back in through the petition process. We do not quote fees publicly, but they are reasonable.

2. What Is Legal Marriage Age For My Fiancée?

I recently purchased a plan on Rapid Visa to get help in filing my K1 Visa for my fiancée from Honduras. Everything was going well as I intended to marry her in Nevada, Las Vegas preferably. She is 20 years old turning 21 in December and I am 21 currently turning 22 soon. I live in California. I read in her embassy page and it read “If you are getting married in Honduras, you must meet the requirements prescribed by Honduran law. The following is an unofficial translation of several documents issued by Tegucigalpa City Hall on marriage requirements in Honduras.” She is from Honduras and the legal age to marry is 21. I thought since she is getting married here in the U.S which the legal age is 18 there would not be a problem. I was now told there is a problem because of the age. Is there anything I can do? I really want to bring my fiancée here but I feel utterly lost and sad now. Any advice on what I can do?

Mr. Lee Answers:
As it is already close to December, perhaps your best move would be to file for the K-1 fiancée visa, which normally takes at least six months to approve at U.S.C.I.S.  Consular processing thereafter usually takes another couple months. Probably by the time that your fiancée goes for her interview at the consulate, she will already be over the age of 21. Even if under the age of 21, she may be able to postpone the interview for the one or two remaining months which are required for her to turn 21. In addition, from scanning the information on Honduras, females appear to be able to marry at age 18 with parental consent, but I believe that you already know this.  If not, your fiancee could bring proof of parental consent to the interview if still under 21.

3. Father of My Child Charged for Possession of Marijuana a Gram/Personal Use and Officer Said It Was a Misdemeanor,  He Has U.S. Residence Card. What Will Happen?

Mr. Lee Answers:
US immigration law allows a waiver for permanent residents who are convicted of a possession offense of 30 or less grams of marijuana. If there is no other charge against him, he should be okay.