Category: Q&A

1. Can My Dad Come Back to the US?

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

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

2. H1-B 6-years Tenure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 F1 visa holder doing a PhD in the US

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

5. No name given on green card

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

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

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

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

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

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

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

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

2. H-4 Visa Holder Will Age Out Soon

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

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

3. Renew Work Authorization While in Removal Proceedings

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

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

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

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

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

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

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

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

3. Can I cancel form I-130?

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

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

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

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

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

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

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

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

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

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

2. Permanent Immigration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Filing for Green Card for My Parents and Brother

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

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

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

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

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

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

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

Mr. Lee answers:

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

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

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

Mr. Lee answers:

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

3. Reduced misdemeanor charge speeding

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

Mr. Lee answers:

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

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

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

Mr. Lee answers:

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

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

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

Mr. Lee answers:

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

1. My H-1 change of status got approved and I have a L-2 extension in progress. If my L-2 is denied will I maintain my H-1 status?

My L2 expired on 8/25/2020 and I filed for L2 extension. Meanwhile my employer filed H-1B change of status which got approved on 10/15/2020 and now I have a valid I94. On 10/20/2020, I sent a letter to USCIS to withdraw my L2 petition. On 10/23, I received NOA to appear for biometrics for I-539 ( L2 extension approval). NOA says that if I do not appear for biometrics, my petition will be marked as abandoned. My question is, if I do not go to biometrics and my L2 is denied, will I keep my H1B status? – Does “Last Action Rule” apply in this case?

Mr. Lee answers:
The last action rule generally has to do with approvals and not denials. If you are already approved for a change of status on your H-1B, an L-2 denial should have no effect since you are already holding a valid legal status. 

2. Applied for asylum after being in the U.S. over 1 years and used a fake social security number.

If someone came here with a visa & stays & it’s been expired for over 5yrs. Later applies for asylum and gets approved. Is that legal? Even while using a fake social security number to work in the 5/6 years period.

Mr. Lee answers:
The awarding of political asylum depends upon whether an individual can prove past persecution or a well-founded fear of persecution on account of race, religion, political opinion, membership in a social group, or nationality. A person applying for asylum who has been here over one year would have to show changed circumstances. Use of the fake Social Security number is generally not a ground to deny an asylum application although it may be considered a discretionary factor. 

3. Can my husband file a petition for me if he did not file taxes for the last 4 years and he was gainfully employed?

My husband has not filed a tax return for the years 2016- 2019. Can he petition for me?

Mr. Lee answers:
If your husband was gainfully employed and did not file taxes for the last four years, he is in violation of the tax laws. Without a record of having worked, it would be difficult for your husband to file for you and for you to pass the public charge ground of inadmissibility. If he really wishes to do so, he should consult an accountant or tax lawyer who can advise as to whether he can file late tax returns and the penalties for doing such. 

4. Affidavit of Support (I-864 Form)

I am trying to apply green card for my fiancé and have difficulties to find the right adjusted gross income. Is the one in first line on W-2 form or 8b 1040 form. 

Mr. Lee answers:
Your guiding light on what figure to put down should be according to the instruction on the I-864 form itself that “For purposes of this affidavit, the line for Total Income on IRS Forms 1040 and 1040A will be considered when determining income. For persons filing IRS Form 1040 EZ, the line for adjusted gross income will be considered.”  

5. Steps for I-601A?

I entered the U.S without documentation when I was 2 years old. I recently married my husband and we’re trying to get my papers. What are the steps?

Mr. Lee answers:
I assume that your husband is either a US citizen or permanent resident. Unless you qualify under section 245(i) having had a labor certification application or immigrant visa petition filed on your behalf by 4/30/01 and having been present in the US on 12/21/00, you would not be allowed to adjust status and must ultimately consular process your paperwork. The first step is your husband filing form I-130 petition for alien relative for you, having it approved and forwarded to the National Visa Center (NVC) of the Department of State, and then filing an I-601A application to waive the 10-year bar brought on by your unlawful stay. The standard for passage of an I-601A is proving extreme hardship to your husband (or a parent if your mother or father is a US citizen or permanent resident). Kindly note that this waiver application is only available to those who are inadmissible only because of being in the US in violation of law. Assuming that the waiver application is approved, you would complete the preliminary processing at the NVC, which would then set up an interview for you at the American consulate or embassy in your home country. Assuming that there are no other complications, you would likely return to the US with permanent residence within 30-60 days. 

1. What are the steps that I will have to do to become legalized under President-elect Biden’s promise to send a bill to Congress for 11 million undocumented immigrants?

I heard President-elect Biden say on TV last week that in his first 100 days, he would send a bill to Congress to put 11 million people like me who are undocumented on the path to citizenship. If he does that, can you tell me when this will start? How soon can I put in an application? Does Immigration already have the forms available?

Mr. Lee answers,
President-elect Biden’s promise to send legislation within the first 100 days in office to Congress for undocumented immigrants does not mean that the legislation will pass. Both houses of Congress must agree on the legislation before it goes up to the president for signature. The Democrats will have both the House of Representatives and the Presidency but may not have the Senate. Such will depend upon what happens in the state of Georgia on January 5, 2021, when two Senate seats will be decided. Democrats need both Senate seats to take control of the Senate. I note, however, that legalization of 11 million undocumented immigrants will be a very hard lift even if the Democrats take the Senate by 50-50 with Kamala Harris being the tie-breaking vote. When George W. Bush was president, he had the backing of many Democrats when he tried to pass a legalization program, but fell short because of opposition within his own party. On your specific questions, there is no timetable at this time; neither are there forms as those would have to be designed after the passage of legislation.

2. I am from Hong Kong – do I belong to the China quota at this time?

My company just filed a labor certification application for me for my green card and I want to know how long it will take for me to immigrate since I am born in Hong Kong. I heard that there was a presidential proclamation that made Hong Kong part of China and that would put me under the China quota which is backed up to 2017 while the Hong Kong quota is open and current with the rest of the world.

Mr. Lee answers,
The presidential executive order has not been placed into effect by the Department of State at this time. At a recent November webinar for EB-5 investors, Charlie Oppenheim, Chief of the Visa Control & Reporting Division at DOS, said that Hong Kong is still treated as a separate foreign state for immigrant visa chargeability going forward. Such reiterates the doubt that the Department of State had in July that the executive order was legal. On an American Immigration Lawyers Association check-in with Charlie Oppenheim on 7/24/20, he said that David Newman, the Director of Legal Affairs in the Visa Office, indicated that the Visa Office was still reviewing the matter of whether Hong Kong born individuals could be chargeable to mainland China – that §103 of IMMACT 90 granted separate chargeability treatment to Hong Kong born individuals and that the proclamation does not alter this. Assuming that everything goes well in your case with the Department of Labor and USCIS, you can expect to receive your permanent residence within two years.

3. On H-1B, married to a US citizen in another state, thinking of quitting job – will I be legal?

My job is in New York and I just got married to my husband in Texas. I am on H-1B working remotely in Texas, but my employer now wants employees to go back in, and I am thinking to quit my job. If I do it, will I be legal or illegal? Or should I go back to New York, and we will have a marriage in which he comes to visit me and I go to visit him until I get the green card? We just filed the I-130 and I-485 applications with Immigration for my green card.

Mr. Lee answers,
Having already filed for an adjustment of status based upon your husband’s petition, you are considered in a state of grace with USCIS under which you can remain in the US. With a marriage case, you are much better off being together with your husband as you will both need to prove the bona fides of the marriage at your immigration interview and that is easier to prove when you are both living together. Assuming that you resign your job, you can work under open-market employment once you apply for and obtain the employment authorization document (EAD) (if you have not already done so). The caveat to doing it this way is that, if your adjustment of status application is denied, you would be considered illegal since you would no longer be holding a valid nonimmigrant status.

4. Sneaked into the US six months ago – what will happen if I get caught by Immigration?

I came to the US six months ago using someone else’s passport and gave it back to the smugglers afterwards. Can you tell me what will happen to me if I am picked up by Immigration now?

Mr. Lee answers,
The Trump administration announced that it would be using expedited removal proceedings against those who could not prove that they were legal or in the country for at least two years wherever they were located in the United States. It began using its powers to do such in October 2020. Persons who are caught and subject to expedited removal generally have no right to a hearing before an immigration court. However, they are still entitled to request political asylum and will be given a credible fear interview and afterwards can pursue the claim before the immigration judge. If the credible fear interview is negatively decided by a DHS officer, the applicant will have less rights before the immigration court. Expedited removal has been on the books for a long time, but was applied previously only if the person was found within 100 miles of any border of the United States. Expansion to any location in the United States is new and may be one of the items that President-elect Joe Biden invalidates when he becomes president. In addition, it should be noted that the question of expedited removal is back before the DC District Judge Ketanji Brown Jackson for her to rule on its merits. She had previously issued a stay against the rule, but the stay had been blocked by the Court of Appeals.

 

1. Can I use my green card & go out of the country if it has a small spelling error on my last name?

I got my green card about a week ago and I just noticed a small mistake, on my last name it’s supposed to be Espinoza but it says Espinosa on the card could this cause issues with me using it or leaving the United States?

Mr. Lee answers,
The difficulty is that, if you use the green card with the wrong spelling, the wrong spelling may migrate over into other identification papers or cause you problems with agencies other than DHS. On using the incorrect card to travel in and out of the US, you may be referred to secondary inspection upon your return while Customs and Border Protection attempts to determine that you are who you say you are. Ultimately you would be admitted, but CBP would probably advise you to file an I-90 application to replace the incorrect green card. You should perhaps do that affirmatively at this time. 

2. I have a problem with my student visa I had to get a new F1 visa and it’s been more than 2 months embassy still hasn’t replied.

I had to get a new F1 visa and embassy still hasn’t replied. They said to check my case status on CEAC and they said its going through administrative processing and it’s been more than 2 months and I missed my semester in college.

Mr. Lee answers,
Unfortunately, this is the risk that F-1 students face when they either want to or have to go overseas to obtain a new visa to reenter the US. In these days of emphasis on security threats, many applications are being held up in administrative processing. Although it may or may not help, you can ask your school to contact the American embassy or approach a congressman or senator’s office, explain the situation of hardship, and attempt to have their offices contact the embassy. 

3. Can I marry a U.S. citizen using my 30 days grace period?

I’m a J1 intern and not subject to 2-year residence. I’m currently using my 30 days grace period. I’m 4 months pregnant to my American boyfriend and about to marry next week. Am I eligible to marry him even if my i94 has already expired?

Mr. Lee answers:
Someone who marries a US citizen is considered an immediate relative under US immigration law, and such individuals are allowed to adjust status even if they have overstayed their visas. In your case, the 30 day grace period is recognized as a period of legal stay. But even if you exceeded it before filing for adjustment of status, you would still be eligible for permanent residence.