Category: Q&A

1. Do my H4 status wife need to file a form I-539?

I am currently employed at Company A where my H1B is valid till 06/2023. My wife is in the US on H4. Both of our I-94s are valid till 06/2023. I recently got a job offer from Company B who is processing my H1B transfer. The attorney from company B asked me to fill out the I-539 form for my wife. My questions are: 1. Do I even need to file Form I-539 for my wife since her I-94 is valid till 06/2023 and is not dependent upon the employer but my H1B status? 2. If I have to file the I-539 form, then what date do I put in box 1 of Part 3: Processing Information? 06/2023?

Mr. Lee answers,
You are correct that where your H-1B is valid until 6/2023 and your wife has H-4 status until the same date, you do not need to extend your wife’s status as it is not dependent upon the employer but upon your maintaining H-1B status. Your wife may wish to do so, however, to keep the same date as yours on your H-1B transfer. If you decide to file the I-539, your wife would put in the same proposed date of validity as your new H-1B on box 1 of part three.

2. U.S Citizenship

I’m 22 years old. I moved in US on April 2nd of year 2014, I was 14 back then. I was only a legal resident when I came here holding a green card, but my dad is a US citizen since 2010 can I still apply for citizenship through my father now that I am 22. If I can how should I process my papers?

Mr. Lee answers,
You appear to be qualified for automatic US citizenship under the Child Citizenship Act of 2000, if you were in the legal and physical custody of your father after coming to the US and before the age of 18. In such case, you should be able to file Form N-600 Application for Certificate of Citizenship to USCIS with the filing fee of $1170. You can apply online by creating an online account with USCIS or send by paper to the Phoenix lockbox of USCIS. The address of the lockbox is:
U.S. Postal Service (USPS):
USCIS P.O. Box 20100
Phoenix, AZ 85036
FedEx, UPS, and DHL deliveries:
USCIS Attn: Form N-600
1820 E. Skyharbor Circle S Suite 100
Phoenix, AZ 85034-4850 

3. EB2-NIW Policy Alert Jan 21, 2022

I would like to understand USCIS Policy Alert issue on Jan 21, 2022. Am eligible for EB2 category, However my employer has not started the process yet Q1 – Can I use EB2-NIW category? Q2 – Without Employer, can I file EB2-NIW category independently based on my degree and experience? I am a China Born Australian Citizen Looking forward to lodge my perm filing with a Lawyer if I can file independently.

Mr. Lee answers,
The policy alert defines a USCIS attempt to attract and make the process somewhat easier for science, technology, engineering, and mathematics STEM individuals to immigrate to the US. It has traditionally been easier for a NIW case to be approved where there is an employer. USCIS appears to have softened on the need where STEM people are concerned. For a more comprehensive look at your case, you should consult with an immigration lawyer who can look over your background and discuss your options including NIW.

4. Did not include green paper in new application

I applied green card and I got a rejection notice due to error in payment. I sent a new application but did not attach the green letter but only I-767C rejection letter of I-485 on top of my new application. I am playing by credit card and attached the G-1450 form also. Not attaching the green letter on the new application will make any difference to the new application?

Mr. Lee answers,
The green paper’s purpose is to alert USCIS personnel that a rejected application is being resubmitted. It makes it easier for USCIS to identify re-submittals. If you are resubmitting the entire package and timing is not an issue, the green sheet has less value. On the other hand, it has more value as an identifier if USCIS has already separated the materials, retained some, and returned the rest to you. 

5. I-130 for brother

I applied for my brother back in August 2008 and I-130 was approved 2010.  Di I still have to wait?

Mr. Lee answers,
In the month of May 2022, the dates for filing visa chart for most countries of the world other than India, Mexico, and the Philippines (longer waiting times) is only up to October 1, 2007. The dates for filing chart controls the time that further steps short of immigrant visa interviews can begin. The final action dates chart which controls when immigrant visa interviews can be scheduled and immigrant visas issued is currently only up to March 22, 2007 for most countries of the world. With an August 2008 priority date, your brother will have to continue waiting. Unfortunately, progress in your brother’s category has been very slow recently. Hopefully it will begin to speed up soon. 

6. Do I need to apply for a visa?

Canadian citizen. I visited the US for 3.5 months. Came back to Canada for a few weeks and would like to visit the US again for 4 months. It is unclear online if the 6 month allowance resets when I go back to Canada or if I am only allowed to visit for 6 months in a 12 month period. Visit only. No work, no school.

Mr. Lee answers,
An individual coming to the United States for purposes of visiting with visa (or for Canadians without visas) must still prove to Customs and Border inspectors that he or she is only visiting the US and not attempting to make the US the country of residence. Visiting the US shortly after leaving may raise questions concerning your intent. Six months is a guide and not a hard and fast rule, but visitors are encouraged to only be in the US six months and less during a year.

7. How come my mom was denied a reentry visa?

My mom is a green card holder and overstayed in the Philippines due to pandemic (since Jan 2020) she is a 62 yrs old and is a high risk (diabetes and hypertension) she is also a tax filer in the US, she is married to a US veteran. She has been in out of the USA since 2005. Pls advise me on this. Her green card is not even expired.

Mr. Lee answers,
A reentry permit must be applied for while the applicant is in the United States. Since your mother is overseas, she has choices of trying to apply for a special immigrant visa with the American Embassy or boarding a plane back to the US and explaining with documents her situation to Customs and Border Protection at the port of entry. Immigration lawyers by and large suggest the second course of action since it appears to be more difficult to obtain a special immigrant visa.

1. My H-1B 6-year period is ending on May 31, 2022. My home country is India. My employer is stating my green card process now

My firm is going to start the first step of GC filing which is (PWD + Job Ad) at Feb end. And Perm approval can take more than H-1B max out time. Current processing time (PWD + Job Ad) can take 8 months. So my PERM will be filed around Oct 1. To get 1 year of ext after H-1B max out, PERM should be pending for > 1 year. But between Oct 1/2022 (perm filing day) and my last H-1B day(May 31/2023), there are only 8 months. I have 1 month of time to recapture because I was out of US on H-1B, so my H1B can be extended till June 30, 2023 after recapturing the time. But I still left with 3 months time before the PERM pending completes 1 year time. Can I go to back to my home country now on vacation for 1 month (Apr 1/2022 – Apr 30/2022), after that I will work from India for 2 months (May 1/2022- June 30/2022). That way when I return from India, My employer can extend the H-1B to recapture the lost time which is in total: 1 month(earlier vacation) + 1 month(this vacation) + 2 months(working)

Mr. Lee answers,
There is the possibility that you can work in India to extend the time that you can recapture for purposes of your H-1B visa status. You can also wait and see whether the PERM labor certification will be approved within an acceptable period of time. If so, your employer can apply for premium processing of the I-140 petition. If the I-140 is approved, the American Competitiveness Act in the 21st Century (AC-21) allows for extension of H-1B status so long as the beneficiary’s country quota is backlogged.

2. How long does it take usually for I-130 to get to the NVC stage?

I filed an I-130 as of November 15, 2021. I got married to my wife in Nigeria in August 2021 and have petitioned to bring her to the US. My petition is with the Texas service center for several months now, with no change. According to their site, it can take up to 10 months, so my question is does that mean just for the I-130 to be processed or for it to get to NVC and process so that she can come to me? Also can she come to visit me in the US or will this cause issues with immigration?

Mr. Lee answers,
Each of the service centers of USCIS have their own processing times. The estimated range from the Texas service center means that it may take up to 10 months for the I-130 to be processed. After approval, I-130 petitions are expeditiously sent to the National Visa Center within days. After receipt by the NVC, you and your wife would send the NVC documents and when the documentation process is complete, the NVC will work with the US embassy or consulate to schedule an interview for your wife in Nigeria. On visiting during this period of time, your wife should ensure that she tells the truth about the pending petition and does not commit fraud or misrepresentation in either obtaining a visa (if needed) or speaking with a US immigration officer at the port of entry. 

3. I-751 filed jointly then divorce?

I applied jointly for the removal of conditions in January 2019. My ex husband at the time was emotionally abusive and cheated on me with prostitutes on craigslist ( I have screenshots and copies of the messages and pictures he was sending). We had a real marriage and a lot of strong financial evidence, however I could not stay with him anymore due to what I mentioned. I consulted a lawyer who told me to file for divorce but to not notify USCIS unless they send a request for evidence or call me in for an interview. One of the reasonings for this is that in California, the minimum time to get a divorce decree is 6 months. At the time I filed in May, the I751 application had been pending for 5 months. As soon as a I filed, I moved out and changed my address with USCIS. Fast forward to February 2020, I received my green card without an RFE or an interview. Of course I was relieved and happy. My divorce was finalized a year after receiving my green card. I am terrified, help!

Mr. Lee answers,
In my opinion, your immigration status is likely okay. You filed for the I-751 while you were still living together, you did not begin a divorce action until five months later, you never received an RFE or interview notice, and you received the green card before the divorce was finalized. I do not believe that you had an affirmative duty to tell USCIS during the time the petition was pending that you were initiating divorce proceedings. 

4. Will My Divorce Affect my Naturalization Application?

I am a permanent resident since 2008. I am waiting for US citizenship interview. Can I file for divorce? My spouse is a green card holder too. Is it affect for my naturalization?

Mr. Lee answers,
If you obtained your permanent residence in 2008, I do not see how filing for divorce at this time would have any impact on the naturalization interview unless you immigrated through your spouse’s petition and USCIS discovers that the marriage was fraudulent. 

5. Pending I-485 (marriage base), maintaining F1 status, using EAD

My green card application is pending. I received my EAD couple days ago and started using it. I am also F1 student. My question is, once start using EAD am I falling out of f1 status? Or is it possible to maintain F1 status as well while using ead? In case terminate my F1 status and my green card application gets denied, will I still have a chance to see a judge?

Mr. Lee answers:
The difficulty is that the EAD use is inconsistent with F-1 status, and USCIS would consider you out of status if you only had to rely upon the F-1 to stay legally in the US and it knew of your use of the EAD. If your green card application is denied and your F-1 status terminated, you would have the right to see the immigration judge although the timing of hearings is difficult these days because of the pandemic. I also note that under the Biden administration, your type of case would not be considered a priority for removal, and so you may not receive a notice to go to immigration court even if you wanted to do so.

6. Can An Illegal alien obtain a professional license such as for cosmetology?

I applied for DACA a few months before they put a hold on DACA last year.

Mr. Lee answers,
While venturing to say that state professional licenses are generally not given for immigrants without status, you can check your particular state board’s rules on licensing to ascertain whether there is room for exception.

1. Can the spouse and beneficiary of a Green Card applicant apply for a J1 visa herself after the I-140 is approved but prior to completing the DS-260?

Me and my wife are both Spanish citizens living and working in the USA. I have recently had the I-140 approved via the EB2 NIW, where I have listed my wife as a beneficiary. We will undertake Immigrant Visa Processing in Spain, and our case is already in the National Visa Center, but have not yet paid the fees nor completed the DS-260 form. My wife is a research scholar with a valid DS-2019 form, but with expired J1 visa stamp. She has the opportunity to go to Spain in the coming weeks and renew her J1 visa stamp, but we wanted to know if doing so might jeopardize the IVP (even if we do not pay fees and complete the DS-260 form until after she has renewed the J1 visa stamp). Is it possible that she might be denied either the J1 visa and/or the Green Card if she first renews her J1 visa stamp and afterwards we pay the IVP fees and complete the DS-260 form. 

Mr. Lee answers:
In applying for a discretionary visa like J-1, there are generally no guarantees that the visa will be issued by the consulate or embassy. Although your wife is not the direct beneficiary of the I-140 petition, she may be asked whether you have filed any immigration petitions. A good factor for your wife to point to if such comes up is that you have elected consular processing instead of an adjustment of status application. On the question of an impact to the immigration visa process, your wife’s applying for the J-1 visa would not impact it as long as she does not make any misrepresentations on form or speech before the consular officer. Under recent guidance, a dependent family member does not have to state on the nonimmigrant visa form that he or she has applied for a visa petition. You have indicated the better strategy if deciding to apply for the J-1 visa to make the application first and then continue paying the IVP fees and completing the DS-260 form.

2. Employment Authorization Document

I applied to renew my EAD in September last year. I haven’t received it yet, EAD expired as well as the extension. I’m losing my job in a few days.

Mr. Lee answers,
Unfortunately, USCIS has a backlog on EAD extensions which it is working to whittle down. It will only entertain and expedite under the following circumstances: If you are a healthcare worker Who has a pending Employment Authorization Document (EAD) renewal application (Form I-765, Application for Employment Authorization); and Whose EAD expires within 30 days or less, or has already expired. USCIS may also consider an expedite request in your case if it meets one or more of the following criteria or circumstance: Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to: Timely file the benefit request, or Timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons.

3. Pending I-130 & F1

My mom is 65 years and single. She is a green card holder and filed I-130 for me in July 2019. Now I want to go through a student visa. Will it be successful or denied?

Mr. Lee answers,
If you are interviewing for a F-1 visa at an American embassy or consulate, the chances are that you may have a problem obtaining the visa as it is one that requires nonimmigrant intent. The decision will be up to the American Counselor office who interviews you taking into account whether he or she believes that you will return to the home country following your time of study in the U.S. if your permanent residence case has not been approved by that time. If in the US and you are seeking change of status, the chances are better in our experience. 

4. How can I Change marital status with USCIS

I am a legal resident and I put in a petition (I-130) for my daughter in 2017. It is approved and sits with NVC. During this time I got married and would like to change my name. Does this affect that application? Can I legally change my name? do I have to notify USCIS of this change?

Mr. Lee answers,
The change of name should not affect your petition for your daughter. As the case is sitting at the NVC at this time, you can notify the NVC of your name change with a copy of your marriage certificate. You do not have to do anything with USCIS as your daughter’s case is no longer in its offices.

5. My sister is a US citizen. Can she petition for me for adjustment of status?

I am living in the US and been here since How long will it take to get a green card?

Mr. Lee answers:
Your sister can apply for you while you are here in the States, but her petition does not give you any rights to stay in the country while your case for immigration is pending. For the month of April 2022, the F-4 category for sponsored siblings of US citizens is available for immigration visas for those who filed before March 22, 2007 for all countries of the world except for India, Mexico, and Philippines natives who must wait longer. If born in all other countries, the waiting time is thus 15 years currently. 

6. Non-immigrant travel from Mexico back to US

I’m the spouse of an E2 visa holder and need to leave the country to extend my i-94. I was thinking of traveling to Mexico and re-enter the US. Will there be any issues entering the US via air as a non-immigrant during the pandemic? 

Mr. Lee answers,
I am not aware of any immigration barriers that would keep you from going to Mexico by air and returning. You should of course be aware of all the latest Covid-19 protocols of the two countries. Finally, you should check with your attorney to see whether a trip to Mexico and back will actually extend the I-94 that you presently have.

7. How fast can I work with a tourist visa?

I am planning to visit the States with a tourist visa but thinking of getting employment before returning. Making some cash to cater for my other needs.

Mr. Lee answers:
A tourist visa in the United States is not a working visa, and you cannot apply for working privileges in the US based on a tourist visa. Any work done in the US for an employer or most self-employment situations is considered unlawful. 

8. I am a citizen but my parents entered illegally if I join the army can they get their citizenship?

I am a citizen of the United States but my parents entered the country illegally. If I join the army could they get citizenship or a green card.

Mr. Lee answers,
There is a possibility that your parents may be able to adjust status if you join the Army. USCIS has been receptive to allowing parents of service members who entered the country illegally to obtain parole in place for purposes of adjustment of status to permanent residence.

1. Can I send my 12-year old daughter to school while waiting for adjustment of status?

I married an American citizen and we are currently in the process of adjustment of status. Can my daughter go to school while the process is pending?

Mr. Lee answers:
Since you are married to a US citizen, you are considered an immediate relative of the US citizen, and violations of status would not bar an adjustment of status to permanent residence. Therefore, sending your 12-year-old daughter to school should have no effect on the immigration process.

2. Can I remove my husband from application for sibling immigration application?

My husband has added himself as co sponsor in the immigration case I applied for my siblings in Pakistan. Can I somehow remove him

Mr. Lee answers:
You may be able to withdraw your husband’s co-sponsorship by communicating with the agency which is holding your sibling’s application at this time. I do note, however, that the NVC and consulates are sometimes reluctant to continue processing cases where a spouse does not put in the I-864 A form. This may be because the agencies want to see more of a level of support, want to see the whole picture of the petitioner’s ability to support, because there are mixed assets belonging to both parties, or for other reasons. So you can make the request, but there may be some resistance.

3. N-400

I was reading the N400 form and it said that I had to be married to a US citizen spouse before filing the N 400 form. Me and my wife are going through a divorce. We were together for 9 years and I have 2 kids with her. And I got my green card through her. Will I be able to become naturalized?

Mr. Lee answers:
I believe that you have misread the form. There is nothing in the law that requires a person like you to be married to a US citizen spouse before filing the N-400 application unless you are attempting to file under the three-year instead of five-year rule for citizenship. If filing under the five-year rule, you should be able to file for naturalization as long as you are not barred by any of the grounds outlined in the application questions.

4. Can J-1 visa holder marry a US citizen during the grace period?

Does the j1 need to file form I-103 and I-485 before grace period ends? I’m marrying my gf who is here in America on a valid J1 visa. I’m marrying her before her visa expires. But her visa expires very soon after . Is there a time frame that we must file the forms I-130 and I-485? My question basically is asking do we have to file the forms before the visa expires even if she is already married ? Does being married give us long time frame to get the documents all together with accuracy? Or do we still have to file the permanent residency forms before the visa expires even though she is married .

Mr. Lee answers,
Assuming that the J-1 visa holder is not under a two-year home residence requirement, such a person is not constrained by time if marrying a US citizen and filing for adjustment of status to permanent residence. While it is always better to file while in status, it is not a necessity for immediate relatives of US citizens (spouse, parent, or child under 21 and unmarried). We have in the past adjusted the statuses of immediate relatives who entered legally and were out of status for over 20 years. 

5. H-1B to F1 visa

I came for MS on F1 then changed to OPT then to H1B. Now, want pursue PhD on F1. Will history of F1-OPT-PhD make it difficult to get F1? Spouse is currently pursuing MS in US.

Mr. Lee answers:
In your situation, I do not believe that it should be that difficult for you to obtain a F-1 visa status or F-1 visa. You have exhibited an upwards progression in your studies and with the H-1B. The period of time that you have spent in the US already may be of some concern, but a reasonable adjudicator would likely say yes to allowing you to go forward with your plan of studying for a PhD. 

6. F-1 Student Visa

I have my brother who has applied for a university here in states and he got admitted. He still has a filed I-130 pending petition. Will he be able to get his F1 visa?

Mr. Lee answers:
The question of whether to give a discretionary F-1 visa at the consulate or embassy is up to the US consular officer. Where there is a pending I-130 petition, the weight to be given to it may depend upon the length of time that the applicant will have to wait to immigrate to the States. Consular officers usually give less weight or importance to the petition where the waiting time is longer. For example, if you filed a sibling F-4 petition for your brother five years ago and it is still pending, the consular officer will know that it will probably take another nine years for it to come to fruition. If otherwise convinced that your brother has nonimmigrant intent, he or she would probably issue the visa. 

7. Do I need an I-601A waiver?

I’m a DACA recipient before the age of 18 and have renewed ever since, without leaving the country ever. I’m looking to go through consular processing because I entered without inspection. Do I need to file a 601A waiver even though I haven’t accrued any unlawful presence?

Mr. Lee answers,
If you became a DACA recipient before the age of 18 and have renewed ever since, you would not have acquired unlawful presence and would not require a waiver for that before returning home for consular processing.

8. How to cancel N400 application or biometric?

After two weeks of submitting the N400 application, got involved in DUI. the case is still pending, and received a biometrics appointment date. How to cancel the biometric appointment as I know my application will be denied? This is my first DUI and no other criminal record.

Mr. Lee answers,
You do not have to go to the biometrics appointment if you are giving up the case. You can further write a letter to USCIS requesting cancellation of the application. If you filed online, you can upload a message. I note that having one DUI is not an automatic bar to naturalization. While deniable as impinging on good moral character, the entire circumstances may be taken into account by the officer. 

9. Is form i-824 a must to get to the NVC?

USCIS sent me a notice stating I need to file i-824 for them to forward my case to the NVC because on the I-130 i had chosen the adjustment of status route but i ended up leaving the USA. I’m so disappointed, i-824 will add about 550 dollars to the cost of the immigration process. Is it possible to eventually get to the NVC without filing i-824?

Mr. Lee answers,
In your situation, an I-824 Application for Action on an Approved Application or Petition will be necessary. In the far distant past, USCIS used to transfer approved petitions upon request. However, with the advent of the I-824 form, USCIS now requires payment and the form for the transfer of cases.

1. Do I Have to Stop Work if C9 EAD Expires Before Receiving Physical Green Card as I-485 is Approved?

I have been employed under OPT. OPT expiring in 2022. My I-485 online case status changed to “Case has been approved” yesterday. Have not received notice and card in physical mail yet. What is my immigration status at this moment? At what point is my OPT considered invalid? My C9 EAD card(which I did not use, because I maintained F1) that I got from pending I485 is expiring next week. So if my C9 EAD expires before I received my plastic green card in mail, will I have problem staying at where I work currently? Do I have to leave job after my C9 EAD expired even i-485 has been approved assuming my OPT is going to be invalid? Thank you so much in advance.

Mr. Lee answers:
Practically speaking, it would not appear to make much consequential difference as to what you do vis-à-vis your work where USCIS has already approved your I-485 adjustment of status application. If the unofficial online notice is correct, you should receive the official notice and green card shortly thereafter. The date should coincide with the unofficial online notice date. Technically speaking, however, employment authorization on the green card does not begin until you receive the green card itself. Your C9 card which I understand that you did not use is expiring next week, so you are authorized to work under that until next week. You have said that your OPT is expiring in 2022. So if you have not yet received the green card, you should technically be able to continue work on your OPT until you actually receive the physical green card. I do not believe that this is a fish or fowl situation. Interesting question. 

2. Are Unintentional Mistakes on ETA 9089 Relevant to the Scope of N-400 Question 31?

N-400 question 31 asks “Have you EVER given any U.S. Government officials any information or documentation that was false, fraudulent, or misleading?” Wouldn’t any typo or a mistake in any submitted form or application automatically imply yes to this question? Suppose an ETA 9089 had a typo in employment dates but that this was corrected by submitting EVLs with the corrected dates at the I-140 stage which was approved. If so, would I still bring this up?

Mr. Lee answers:
In the situation that you have given, your answer should be “no” to the question. Any question pertaining to fraud or misrepresentation on an immigration application requires that the applicant made the fraud or misrepresentation intentionally. In your case, you have stated that this was a typo and was corrected at the I-140 stage. 

3. My Son Does Not Have My Surname. How Do I Petition for Him?

I am USA citizen but my son who lives in his home country does not have my surname. How do I approach this problem as I would like to petition for him?

Mr. Lee answers:
You have to prove that your Mexican son is your son through birth certificate, baptismal certificate, schooling records, or other evidence. A list is on the instructions to the I-130 Petition for Alien Relative form. If unable to provide convincing evidence, you can offer to take a DNA test. In addition, if you are the father (not the mother), you will also have to show proof of parental care of your son prior to his reaching the age of 18 years.

4. How Long It Will Take to Invite My Brother to USA

I am an American citizen and I have US passport.   my brother is Egyptian and is 29 years old and married but lives in emirate country so I want to ask how long for him to come to USA?

Mr. Lee answers:
For the month of February 2022, the F4 category for sponsored siblings of US citizens is available for immigration visas for those who filed before March 22, 2007 for all countries of the world except for India, Mexico, and Philippines natives who must wait longer. If born in all other countries, the waiting time is thus 14 years currently. 

5. I never filed taxes and NVC asks for affidavit of support. Can I find a joint sponsor?

I applied I-130 for my wife and 2 kids, but I never worked in the State and never filed taxes.  Now NVC asks for an affidavit of support and I have a joint sponsor.  Is it OK? What form I have to fill out and what I have to do to send it to NVC?

Mr. Lee answers:
Even if you never worked in the United States and never filled out a tax return, you would still have to supply your I-864 affidavit of support in addition to having a bona fide and credible financial joint sponsor who can provide the financial support for your family. The financial sponsor would have to fill out another I-864 affidavit of support form and supply materials such as tax returns for the past three years, current job letter, payslips, and record of assets if he or she wishes them to be considered as part of the financial support.

6. Regarding H-1B Stamping

I have my H1b petition approved, and I am not getting the visa appointment dates available. Please can you tell me that, can I enter in US with my b1/b2 visa and change the status to H1b in US. I have a valid B1/B2 visitor visa. 

Mr. Lee answers:
There are two difficulties with your plan. The first is that coming to the US and immediately trying to change status to H-1B could raise questions concerning your actual intent under B1/B2 when you came in, and whether it was inconsistent with the type of visa under which you entered. The second is that there is no separate form to change status for persons who already have approved H-1B petitions marked for consular processing. Your petitioner would have to file the H-1B petition all over again in a H-1B amendment requesting change of status instead of overseas processing.

7. About Travel Document I-131

My wife petition for me for the green card. We had our interview in July 2021 and since then my I-485 case is under review. I would like to know if I can apply for a travel document i-131 and go out and come back in the US without issues? I have my EAD since June 2021. We have been married for more than two years. 

Mr. Lee answers:
You can apply for an advance parole document, but should be aware that except for emergencies, applications can take over six months to process at this time. Insofar as problems perhaps arising with an advance parole document in your situation, you may be on tenterhooks if the I-485 application is denied while you are outside the country. At that point, you might be at the mercy of the local CBP practice on the admission of denied I-485 applicants holding advance parole documents. In many quarters, it is thought that legally speaking, the advance parole automatically expires with the I-485 denial since the advance parole is an ancillary application to the I-485 and its life is dependent on the fate of the I-485.

1. Is there a list to find out if your person you want to bring back can come back?

My husband was deported about 22 years ago and I would like to bring him home to USA. I want to know if there is a list or something to fined out before I do all this paper work if they will even think about letting him back to the USA.

Mr. Lee answers:
There is no list of which we are aware that designates people who can come back to the US after being deported. Generally speaking, a deportation or removal order is in effect for 10 years when a person leaves the US under an order of removal or deportation. If you are concerned that your husband is otherwise barred, I suggest that you obtain a copy of your husband’s immigration file and consult with an immigration attorney. 

2. I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do?

I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do, there are too old but they are alone in India so we playing how we bring them here.

Mr. Lee answers:
To apply for your in-laws to live here permanently on immigrant visas, your husband would have to become a US citizen to sponsor them. To apply for them to visit the US, they would have to go through nonimmigrant visa application interviews at the American Consulate overseas. You could help by guaranteeing financial support and that they will leave at the end of their period of visit. Kindly note that visitor visas are given in the discretion of the consular officer. 

3. I’m on B2 visa currently here in USA. I have pending spouse visa application petitioned by my US citizen husband. Can I get EAD?

I’m currently in USA using a b-2 visa. I have a spouse visa application pending petition in NVC by my USC husband. I would like to work and get EAD while waiting for my immigrant visa interview.

Mr. Lee answers,
You can apply for an EAD if you choose to file for adjustment of status through form I-485 application to adjust status to permanent residence. Work authorization through form I-765 is an ancillary benefit that can be applied for by those filing for adjustment. I note that if you file for adjustment, you should request the NVC to stop processing your matter for a consular interview. 

4. A Multiple filer?

I have filed a I-129F (petition for alien fiancé). I wish to cancel the petition since the relationship has ended. The case is still pending however, therefore it has not been approved or denied. Once I write to immigration and the case is cancelled, if in the future I wish to file another I-129F for another fiancé, would I be considered a multiple filer?

Mr. Lee answers:
Assuming that the petition is not approved, and you have only filed once, you would not be considered a multiple filer. The instructions to the I-129F form define who is considered a multiple filer: 1. You are filing this petition on behalf of your fiancé(e) and you previously filed Form I-129Fs on behalf of two or more fiancé(e) beneficiaries; or 2. You are filing this petition on behalf of your fiancé(e), you have previously had a Form I-129F approved, and less than two years have passed since the filing date of your previously approved petition.

5. Can I file Green Card while I am on TN visa in the US

I am on TN visa here in the US and want to apply for GC. What is the way out.

Mr. Lee answers:
A TN visa is not dual-purpose and the TN holder must have nonimmigrant intent. When a TN holder begins to apply for permanent residence, the more chances of having a problem with status occur when the person continues trying to go in and out of the United States and may be questioned by Customs and Border Protection (CBP) when reentering. We suggest to our clients that they curtail their travels during the time of petition/application with USCIS unless they are adjusting status and obtain advance parole documentation. They should also obtain an EAD to work legally under those circumstances.

6. How can I sponsor my sick sister if I am a US Permanent Resident?

My sister lives in México and is very ill. I am a US Permanent Resident and want to know how I can sponsor her.

Mr. Lee answers:
There is no immigrant visa category that allows a permanent resident to sponsor a sibling. Assuming that you are able to make provision for her medical treatment in the US which she is incapable of receiving in Mexico because of the more advanced state of medicine in the US, you may be able to have her apply for a visitor visa to come for medical treatment.

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.