Category: Q&A

1. Can I do part-time work like paid expert consulting (outside my employer) with an EAD+AP card related to my I-485 EB1-B green card application?

I am currently on an O-1 Visa, which expired in July 2021. My employer had applied for a renewal (still pending), and they said that I am still in status and able to work as long as the O-1 renewal has been pending for less than 240 days without any decision. I have since received my EAD+AP card for my EB1-B Green Card sponsored by my employer. My employer indicated that they will now withdraw the O-1 renewal application, since I have received my EAD. Additionally, my I-485 for AOS has also been approved. My question is whether I can now take up part-time paid employment outside of my employer (while also continuing to work for my employer) on my EAD+AP card (which I have in hand), or will this in some way jeopardize my future naturalization from permanent resident to citizen? I currently have an offer to do some part-time paid consulting (paid by the hour). Is it okay for me to accept this and receive payment?

Mr. Lee answers:
Under the circumstances that you describe under which you will continue working for the employer that sponsored you for the EB-1B green card, your taking on additional part-time paid employment is fine. You have an EAD allowing you to take on employment which is not confined to your present sponsorship which EAD may soon be superseded by the green card that you will receive since your adjustment of status application has been approved. Under either situation, the additional employment would be allowed. In green card situations based upon employment, USCIS would mainly be concerned at naturalization whether the applicant had an intention to work with the sponsoring employer when the green card was given. In your situation, that would not appear to be a concern as you state that you will continue to work for your employer.

2. Stay and work on H1B while Max out nearing

Arrived in US on Dec 2016 on B-1, change of status to H-1B in Feb 2017. My new employer will be applying for PERM in Mar 2022- What are my chances for Best Case Scenario, perm approved I-140 Approved. Worst case scenario any Audits How can I file for 7th year extension If I exhaust my H1 b then can I work outside US for same employer while my PERM/I140 being processed.

Mr. Lee answers:
Your best-case scenario appears to be no problems with the labor certification application and having an approved I-140 by the time that the six years runs out on your H-1B status. In that case, your company can file for an extension of the H-1B while you are in the US. The chances on that depend upon the labor certification application description and requirements, how the recruitment process goes, and the financial viability of your company – all of which cannot be foretold without knowing all of the facts now and when your company begins the process. The worst-case scenario is that your labor certification application is denied and your avenue is closed. In less dire circumstances in which there is an audit which delays labor certification approval until after your six years is up, you can either attempt to remain in the US on another nonimmigrant status or go out of the US and work for the same employer or another employer until you have an approved I-140 petition, at which point your employer can file a H-1B petition extension for you, which if approved, would allow you to return to the US. 

3. Can I move to the US while I wait for my green card?

My brother filed an I-130 and I live out of the US. Do I have to wait for my green card 10+ years or can I get a special visa and move to the US meanwhile?

Mr. Lee answers:
There is no special visa that would allow you to come to the United States ahead of the time that you are entitled to do so under your brother’s petition. On the other hand, you may be able to enter through some other nonimmigrant category such as H-1B specialized occupation worker or L-1 intracompany transferee as those are dual intent visas under which the fact of applying for immigration would not be negatively considered by a consular officer in adjudicating the visa application. Other nonimmigrant visas which require nonimmigrant intent such as visiting or student visas could still be given in the discretion of an American consular officer taking into account all the circumstances of the application.

4. I am currently on h1 b visa and I’m married to US citizen I would like to resign my job due to personal reasons and I have not started the process for adjustment of status.

I need to be vaccinated to apply for green card and in the meantime can I change my status to b1 and stay with my husband.

Mr. Lee answers:
Probably the better thing for you to do is to allow your H-1B status to expire if there will be a gap between your resignation and the time that you file for permanent residence under your marriage case. Expiration of status is not a bar to adjustment of status in your circumstances. In addition, a change of status application to B-1 or B-2 involves an assertion that you will be leaving the country at the end of the temporary period of stay. Such an application is not to be a stopgap to your morphing into permanent residence.

1. Can I change from F-1 student to B-2 tourist and how long would it take to process?

Can I change from F1 student to B2 tourist? If approved can I travel and come back with tourist visa? Would I be receiving a copy in the mail? How long would it take to process?

Mr. Lee answers,
It may be possible to change from F-1 student to B-2 tourist, but such is mostly impractical at this time to a number of situations. The USCIS service centers are generally backed up on this type of adjudication and could well take over nine months and even longer to make the adjudication. If you file, you will receive a receipt, but it may take a long time before you receive an actual decision. If you decide to file and are still in the US by the time that your requested time is close to expiration, you should leave or take some other action to preserve your nonimmigrant status. Please note that a change of status is not a visa, it is only notated on a paper. If you travel outside the country, you would need to apply for a tourist visa in most cases to return as a tourist. 

2. While pending parents I-130 in US.  Can they travel out of US?

I have filed parents I-130 after 3 months of their arrival in US. I didn’t file I-485 yet. Can they travel out of US and come back on a visitor visa while their I-130 is still pending in US? Do they need to file for travel document I-131? Can they apply for I-485 back home?

Mr. Lee answers:
The difficulty here is that your parents’ visiting visas require nonimmigrant intent, and they could have a problem reentering the country if they are questioned by a CBP officer on that, Probably the best solution is for your parents to file I-485 applications and obtain I-131 advance parole documents to travel in and out of the US during the time of processing. I note that advance parole applications are taking time for USCIS to process, and so your parents may not be able to leave for possibly 5-10 months after filing. I-485’s are only filed in the United States. If your parents wish to process their papers overseas, they would do it on form DS-260 immigrant visa applications. 

1. Husband is waiting for visa interview on my petition I’ve cosponsor. Last year I was unemployed. What is the minimum value of income for tax return?

My cosponsor has income than 50,000 in 2020. What is the minimum value of income for tax return I’ve to add?

Mr. Lee answers,

There is no adding together of the income and assets of you and your cosponsor unless your cosponsor is also a household member. Otherwise, your I-864 and his/her I-864 are considered separately. In looking at your cosponsor’s income, the adjudicator generally looks to see whether the affidavit of support is credible and the number of dependents that the cosponsor is supporting along with any others that he or she has sponsored in the past and is still legally obligated to render support to if the immigrant later receives means tested public benefits. Looking at the poverty guidelines, income of $50,170 is sufficient to support seven individuals including the cosponsor. 

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.