Category: Q&A

1. Can I Enter on F-1 Visa While H-1 Application is Pending?

I am on F-1 visa (valid till May 2021) working on OPT EAD which is valid till January 2020. I am applying for H1 this year. If my H1 application is picked up in lottery, then can I travel outside the USA and come back on F1 visa while my H1 application is pending? If yes, then in the case that my H1 is approved, do I have to get my visa stamped to even start working on H1? or I can get it stamped the next time i leave the USA?

Mr. Lee answers:
The difficulty is that any travel outside the United States during the time that an H-1B petition is pending is considered an abandonment of the change of status portion of the petition. With your OPT EAD valid until January 2020, you can travel with the above restriction. You might be better off waiting until the H-1B petition is approved before traveling under your OPT EAD before October. Then it might be considered that you did not travel during the time that the H-1B petition was pending. If the change of status portion of your H-1B is not considered abandoned and you did request the change of status, you would not be required to have an H1B visa in your passport in order for you to begin work in October. Please note that I along with most of the lawyers discourage applicants even with EAD’s to travel at any time before an H-1B becomes effective in October or thereafter.

2. Pros and Cons of Applying for K-3 Visa After Submitting an I-130

I’m Venezuelan living in Panama, Married to my long time boyfriend since 01/07/2017, we got married in Fort Lauderdale and then I came back to Panama, he is a US. Citizen lives in FL, now we have to start our Petition for relative and we are uncertain what to do, we know we should start with a I-130 application, then wait for I-797 and Consular Processing. Is it a Good Idea to apply also for K-3 so I don’t have to wait separated from him? 

Mr. Lee answers:
The pros and cons of filing a K-3 visa petition after submitting an I-130 would seem to be the following:

Pro – generally speaking, you would get the person here faster (approximately 3 months sooner under current processing times).

Con – you would have to pay another filing fee, fill out another petition, most likely face an adjustment of status process once the person comes in with the K-3 visa, and if the I-130 petition is approved and at the National Visa Center while the K-3 petition is still pending or also at the National Visa Center, the K-3 would be discontinued.

3. I’m a US Citizen. Can My Mother Stay Over 180 Days If I Applied for Her Green Card And It’s Still In-process?

Mr. Lee answers:
If you have already filed an I-130 petition and she has filed for an I-485 adjustment of status, she is allowed to remain in the U. S. while the application is being adjudicated. She is in a quasi legal state in which the illegal presence bar does not apply.

1. Will Former Marriage With Approved I-130 Petition Be a Problem When New Spouse Files Another I-130 Petition?

I was in a previous marriage and we had the I-130 petition approved before things fell apart and we got divorced. Now I am in a new relationship with a US citizen who will be sponsoring me for the green card. Will my past relationship give us a problem when we make the new I-130 petition for me?

Dear reader,
It is clear that this marital relationship that you are currently in is bona fide as there appears to be a child on the way. A question that could be in the back of an immigration officer’s mind is whether your former relationship was also bona fide. Although the I-130 petition was approved, an immigration officer can still look at that relationship to see its bona fides unless there was a marriage interview. You may wish to keep any proof of the past relationship in the event that your past marriage becomes an issue. Under the law, a finding of a sham marriage for immigration benefits would bar the violator from ever obtaining a green card through being petitioned.

2. Can You Tell Me How to Count My Time For Naturalization?

I got my green card in 2014 and am wondering whether I am eligible for my citizenship. During the past five years, I have been in the United States about 750 days. I have not taken any trips outside the US for six months or more. Can you tell me when I will be eligible?

Dear reader,
The minimum amount of time in the US prior to filing is one half of the required period of residence. For five years, that would be 913 days. However, persons who compile the bare minimum may find that a naturalization officer still does not feel that the person has maintained residence for naturalization purposes where the bare minimum has been met. You are probably better off exceeding that amount significantly before making the application. On the other hand, please understand that the period of time that is counted is the five years before the date of filing. That means that “good” time that you spent in the US prior to the five-year date may be lost. Please keep this in mind when you are counting your days.

1. Can I Fix my Mother’s Papers If I Am Married in California?

Mr. Lee answers:
I do not see the relevance of a marriage in California to being able to fix a parent’s permanent residency papers. We have cases in which petitioners are across the nation from their parents and still file for their permanent residence.

2. What Happens After A Tip Is Submitted to ICE About An Illegal Immigrant? 

An immigrant was reported for tax evasion and for the use of a fake social security number to obtain employment. She has worked since around 2010 and never filed she worked, but was filed by her soon to be ex husband. He is also an immigrant, but he was not reported to ICE. Both of them are going through a divorce and their daughter is 17 and with a baby of 2 months. Their daughter lives with her boyfriend. How long before she gets arrested? Will they take her to jail or an immigration detention center? How long before she gets deported? Is there any way she could stay in the country?

Mr. Lee answers:
It is difficult to know what happens after a tip is submitted to ICE about an illegal immigrant. In the past, many tips were ignored as ICE only had so many staff members and there are 11 million undocumented immigrants. The practice generally in many parts of the country was to go after more egregious situations involving multiple people or criminal violations. Currently the Trump administration is pushing for the expansion of ICE officers and more detention facilities. Once it ramps up its capacity, one can expect that more tips will be given attention. At this time, it is uncertain whether the person you describe will become a target for arrest as her type of offense is not “glamorous” to ICE. If detained, she could be taken to a city/county jail or immigration detention center, whichever has capacity and if the city/county jail has a contract with the federal government. If she has not already been an immigration proceedings, she would be entitled to present whatever case she has in front of an immigration judge. The process could go on for years although the Trump administration has said that it will focus on criminal aliens and your person could become a target if criminal charges are filed against her. On whether there is any way that she could stay in the country, she should seek consultation with an immigration lawyer who can go over all of her individual facts and situations.

3. I Am an F-1 Student on OPT Training Which Will Expire in July. But I Will Like to Change My Status to B-2 Visitor for Pleasure. What Is A Good Reason?

Mr. Lee answers:
Many people have good reason to change to B-2 visitor for pleasure when their OPT training expires. Generally students work hard in their schooling and afterwards on OPT and have had no time to enjoy what this country offers in terms of travel and entertainment. A request to explore the country and to see the sights with a good itinerary of what you plan to do would be reasonable.

1. Will Traffic Violation Get Me Deported?

In New Jersey got a “driving with telephone” ticket and have mandatory court appearance. I do have a valid driver’s license but no social security number. Will my legal status be brought up in court? Could I be deported over this? I have never even gotten a speeding ticket in the past 14 years.

Mr. Lee Answers: 
No one can predict with any great certainty what will happen now that Donald Trump is president. He has emboldened ICE to even hang around courthouses in the hopes of catching undocumented immigrants. That being said, ICE usually has a concern with the individual previously when it does that. As New Jersey is not a red state, the chance of you having a problem appearing on a traffic ticket in New Jersey is very low if you have not had prior encounters with Immigration.

2. Will I Still Be Able to Get My Green Card?

I am a green card holder through marriage. I applied for the removal of conditions 14 months ago after my 2 year green card was coming to an end. The USCIS is processing applications that are few months after mine. I called them since my one year extantion expired and I had to get another year extension. They told me that the company that took my biomedics still did not provide a background check and that there is nothing that they can or will do. I was suppose to get a decision couple of months ago. The issue now is that my husband and I are on very bad terms and he is going to apply for a divorce any day now. How can this affect me? To sum up We filed the I-751 together and he signed it over 14 months ago but due to missing biomedics my case is still pending and he wants a divorce now.

 Mr. Lee Answers:
Even if your husband divorces you at this time and your case is still pending, U.S.C.I.S. would give you the opportunity to amend your I-751 to another category such as having been in a bona fide marriage which is now dissolved. You would notify U.S.C.I.S. of the development once you divorce, and U.S.C.I.S. would reclassify your case. You would not have to refile if your case is still pending.

3. Can I Marry a Chinese Student On a F-1 Visa

She will graduate in May, apply for OTP, We want to marry on May 20. Send OTP out next week. Then start the application process.

Mr. Lee Answers:
There is nothing precluding an individual from marrying a student on an F-1 visa, and having her send out the OPT prior to the marriage is probably a good idea as it gives options in the event that something goes wrong with your application process.

1. I am TPS Holder and My Husband is a U.S. Citizen, Have Two Kids, My Husband Want to Apply for Adjustments of Status for Me, Is It Possible for Me?

For me to get my green card without living the country, I’m in Florida and my husband is in Massachusetts, I’m moving soon.

Mr. Lee answers:
I assume that you entered the U.S. without inspection. The question of whether a TPS holder who entered illegally can adjust status in the US is a hot button issue at this time and the circuit courts are divided as to whether it can be done. The Ninth Circuit Court of Appeals in California just decided that it was possible in following the Sixth Circuit in Ohio. Meanwhile the 11th Circuit with jurisdiction over the states of Alabama, Georgia and Florida has decided in the negative. The rest of the circuit courts have not yet ruled.

2. Can an Immigration Lawyer Help a Younger Individual That Was Already Refused the B-2 Visitor’s Visa Get Approved?

Mr. Lee answers:
An immigration lawyer can help to put together an application and perhaps add in details or evidence which were not in a prior application. If a consular officer made a mistake of law, an immigration lawyer could also point that out. But where individuals are denied for visitors visas based on the consular officer’s perception that the applicant may remain in the US instead of returning to the home country and there is no strong evidence to the contrary, an immigration lawyer is not a miracle worker. These types of determinations are non-appealable and perhaps the better solution would be to wait until the individual has enough bonds and ties in the home country to convince a consular officer to grant a visiting visa.

3. Concerned re Travel in Advance Parole /EAD Document

I have received advance parole /EAD card while waiting for a I-485 Adjustment of Status green card application filed by my husband’s employer. My husband however wants to move out before the green card arrives but I have been told that since this application is employer based this should hopefully be okay still as we are still married since 2000 & we have two kids under 9. My fear is that if I my children & I travel for vacation overseas to Australia to see family that I may not be allowed back in if they find out he has moved out? I don’t want to miss my father’s 80th birthday though… thoughts??

Mr. Lee answers:
As you have an employment-based case and there is no doubt of the bona fides of your marital relationship, you would be eligible to obtain permanent residence with your husband if he still wishes to continue your application even if you are separated. Even if U.S.C.I.S. was to discover that your husband moved out when you reenter the States, that should not have an effect on your admissibility.

1. Can I Fix Papers for My Mother And My Wife?

Mr. Lee answers:
Whether you can fix papers for your mother and your wife depends upon your personal circumstances of US citizenship, your age (must be over the age of 21 if the US citizen is to sponsor a parent), your financial status, the statuses of your mother and your wife, the bona fides of your marriage, any bars that they may have which would preclude them from immigrating to the country, and how they entered the country. With this information, an immigration lawyer would be able to give an opinion as to your ability to fix papers for your mother and wife.

2. Would I Have Problem Transferring to a New Employer on May 15 2019 If My Current Employer Has Filed My H-1B Application on April 1st 2019?

I am on F-1 OPT status working for a company. My current employer has applied for my H-1B on 1st April 2019. However, I am thinking to change my employer and start with the new employer on May 15 2019. If my H-1B gets selected, would the H-1B application get revoked if I start with the new employer? Also, if H-1B gets selected and I change the employer due to which H-1B application gets revoked, would I have problems transferring my status into new company based on my current EAD OPT status valid until June 2019?

Mr. Lee answers:
If U.S.C.I.S. has selected you for H-1B under employer A, and you then put in papers to change your H-1B selected case to employer B in May, there is every likelihood that your H-1B cap selection would be revoked. Since the selection is not an approval which would change your status, your OPT EAD should still be valid to allow you to work for an employer until June in the field of your major.

3. Travel Back to Home Country After H-1B Max-Out. Can I Travel Back After H-1B Extension Approval (After I-140 Approval)?

I am currently on H-1B visa and my H-1B max-out date is 4th June 2019 (6 years completed). Max-out date is calculated after considering the time out of US during H-1B term. My employer will file my I-140 application in premium processing by 19th May. My spouse is also working on H-1B and currently in US. 1) In a scenario if I stay in US till 4th June 2019 and my employer is unable to submit H-1B extension request based on I-140 approval till 4th June, what are the option available: a) Travel back to home country India on 4th June – Once H-1B extension is submitted and approved while I am in India, will I be able to travel back to US once H-1B extension is approved. b) Are their any rules/restrictions which stops me from traveling back. 2) If I travel back to my home country before (ex:25th May 2019) H-1B max-out date 4th June 2019, does it improve any chances for coming back to US when H-1B extension (applied after I-140 approval) is approved. Thanks

Mr. Lee answers:
One option that you can consider is making an application to H-4 to cover any possible time that you may be out of status. Although your current max out date is June 4, 2019, the regulations allowing a 10 day grace period following the max out date can be used to keep you in legal status for purposes of extension of status or change of status or other permissible non-employment activities such as vacationing prior to departure. Hopefully your I-140 petition will be approved in time with the 10 extra days. If you do decide to travel back to the home country, you are able to return to the US as long as you obtain an H-1B visa from the American consulate or embassy. I do not see that going back to your home country at an earlier date than the maximum period of time that you are allowed would increase your chances of obtaining a visa.

 

1. What Can I Do When My H-1B Transfer Petition Gets a U.S.C.I.S. Request for Evidence and I Have Already Transferred to The New Employer?

I worked for company A under H-1B status and was then sponsored by company B for the H-1B transfer, and I moved to the new company when it received the filing receipt from U.S.C.I.S. That was legal as confirmed by the company lawyer. Now we have received a request for evidence from U.S.C.I.S. asking it to explain why my position of business analyst is a specialty occupation. My company has 45 people in it and creates business software for Wall Street finance firms.

Mr. Lee Answers:
Your case sounds reasonable for success in answering the request for evidence, especially if the company lawyer is well-versed in H-1B law. Your options are to stay with the company which is sponsoring you until it receives the decision, or if you feel extremely negative about the chances of success and company A has not yet taken steps to cancel your H-1B status with U.S.C.I.S., you can go back to work for company A. Further steps to involve a third company sponsorship to stay here in the US without leaving or to change status to another category would be dependent upon the success of company B in responding to the request for evidence. This is not to say that the above are all the options, but quite probably are the most relevant to your situation.

2. Does A Step Relationship Survive a Divorce Where There Is A Remarriage?

I am a US citizen and want to know if I can sponsor my stepmother who married my father when I was six years old, divorced him when I was 13, and remarried him when I was 21. They love each other and I am very fond of her as she basically raised me and even lived together from time to time during the time that they were divorced.

Mr. Lee Answers:
A step-relationship lives and dies in the duration of the marital relationship. There is no blood involved, and so a divorce effectively ends a step-relationship. A later marriage would not serve to revive the relationship in the past. Your stepmother would have to find another means to immigrate, most likely through the petition of your father if he is either a US citizen or green card holder.

3. What Should I Do With My Pending Asylum Case When I Am Now Married to a U.S. Citizen?

I applied for political asylum in 2017 and have not yet been scheduled for an interview at the asylum office. In the meantime, I have married a US citizen who will sponsor me for the green card. What should I do know? I entered the US with a visitors visa and have no problems with fraud or crimes.

Mr. Lee Answers:
There are two schools of thought on how to proceed – one is to file the paperwork for the green card and then ask to have the asylum case closed and the second is to file for the green card and keep the asylum case going as a backup. We favor the first approach as it is the less complicated route and there is a distinct possibility that the asylum applicant may not be allowed to withdraw at a later stage.

4. Daughter Gave Up the Green Card For Leaving the Country For Too Long – Can She Get It Back?

My daughter went overseas to study when she have the green card, and did not return for three years. When she did, she was given the choice of either giving up the green card or seeing the immigration judge. She gave up the green card. Two more years have since passed and she is finished her studies and wants to return to the US. Can she still return on the green card? If she had it, it would still have three years left on it.

Mr. Lee Answers:
If your daughter already gave up the green card, it would be difficult to reclaim it at this time. A more likely scenario would be re-petitioning for her green card. If you are a US citizen or permanent resident, you can file an I-130 petition for alien relative on her behalf.

1. How Can My US Citizen Husband File For a Visa For My Mother to Come to the U.S.?

I am a green card holder currently not working because I gave birth 50 days ago.  Now my husband wants my mother to come and assist me with my baby while I return to work and school.  My mother doesn’t have a house and my father passed away. Will it be an issue since my husband will be the one supporting her?

Mr. Lee answers:
It is doubtful whether there is a visa for your mother that fits the purpose that you wish. Typically a visiting visa is for a parent who only wants to help out for a short period of time. In your case, you appear to be contemplating a long-term arrangement. That is not the purpose of a visiting visa. You are not eligible to sponsor her for permanent residence as you are only a green card holder. Your husband does not have the relationship to sponsor her for permanent residence. In the event that you change your plans and decide that your mother will only visit a short time to assist you, she would apply for a visiting visa and your husband could supply the appropriate letter guarantees that your mother will not have to work to support herself along with an I-134 affidavit of support, proof of his income, assets, and tax return.

2. Expired Working Visa

Visa expired two years ago, and Jamaican passport is up in one year. Still in the US. What can be done? Will I get deported?

Mr. Lee answers:
Although Pres. Trump would like to have all undocumented immigrants out of the US, there are approximately 11,000,000, a Herculean task. Most likely you would just join the ranks of the undocumented. If you wish to see what can be done about your immigration, you should consult an immigration lawyer who can go through your possible options.

3. What’s My Best Option to File I-751 Form to Remove of Conditional Green Card?

I got married with an American in June last year. I got approved for conditional residence in January 2017 (we had been dating for years, he came to visit me to my home country twice, it is evidently a good-faith marriage), but since I came here I found out he had been committing adultery for years and has a sex addiction. We’ve been to counseling and he’s in the program (going to SA meetings) and also going to individual therapy. We are in a good place, although I am not sure if this is what I want for the rest of my life. He is willing to accept any decision I make (whether I want to stay or leave) and file jointly for Form I-751 if that’s what I want to do. What is my best option? Is it better if I try to stick with him for two years and we file jointly, even if I decide I don’t want to be with him? Is it better if I file for divorced claiming adultery and present evidence for this?

Mr. Lee answers:
The choice of whether to file jointly or otherwise is up to you.  It may depend upon your tolerance of your husband’s life style for the foreseeable future. Another option is that if you have all the proof of having lived with your husband and also that he has a sex addiction and that you have both been going to counseling, you would most likely be able to remove the conditions on your residence status by filing form I-751 on the basis of having had a bona fide marriage which has ended. Such an application requires a divorce.

1. Due Process and DNA, If An “Illegal” Has Blood Native to American Soil, Are They Illegal or a US Citizen? Pres Wilson Declared All Natives Are!

Should all Trump detainees be DNA tested so as to prevent a US citizen from deportation?

Mr. Lee answers:
The generally held view is that individuals who are claiming to be U. S. citizens must affirmatively make that claim to the Department of Homeland Security if they wish to be recognized as such, and that it is not the duty of the government to ensure that they are not before moving against them in removal proceedings.

2. Is the Process of Conversion of Status From H-4 to F-1 Easy And If So, Is It Necessary to Get F-1 Visa As Well?

I am going to get married to my fiancee who is currently on H-1B visa in US. Post marriage, how should I join him? With H-4 visa, then after a year apply for F-1 status or apply for F-1 visa from the beginning? Which way is safer, and would lead me to living an independent life in terms of work and study options. Please suggest which way is safer? Conversion from H-4 to F-1 is it easy to get it done.

Mr. Lee answers:
If you are overseas, your then husband is holding H-1B status, and you wish to join him, you would likely do so under an H-4 visa as that is more likely to be approved by a consular officer than an F-1 visa. After being in the U. S., you could make an application to change status to F-1 student. The conversion from H-4 to F-1 status with U.S.C.I.S. in most cases should not be a problem although USCIS is delaying many adjudications. The question of whether to later obtain an F-1 visa rather than just being satisfied with the F-1 change of status depends upon your need to travel. Both H-4 and F-1 would allow you independence in terms of study options.  For work, you would need the permission of the school for curriculum practical training and of U.S.C.I.S. for optional practical training under F-1, and your husband would have to either have an I-140 petition approved or be eligible for continuation of the H-1B past 6 years for you to obtain work permission from USCIS under H-4 status.  Please also note that the H-4 work authorization is being threatened by the Trump administration.

3. If My Visa Expires Today How Long Do I Have to Leave the Country?

Mr. Lee answers:
To DHS, an individual whose visa expires should leave the country immediately. For certain classes of individuals on working visas, they are given a 10 day grace period to leave. Those on J exchange visitor visas are given a 30 day grace period and those under F-1 student status a 60 day grace period.

1. I Am a Deported Lawful Permanent Resident.  Can I Reapply Back to the U.S.?

I had lived in the United States for 33 years. I was deported in 2013 for a crime of moral turpitude (credit card frauds). I have United States citizen parents and a lot of family members in the U.S. Before I was deported I was a LPR. My two part question is how long is my bar from the United States. It’s been five years. I would like to start the process of reentering the United States as a visitor only. What can I do now?

Mr. Lee answers:
There is no expiration date on persons who have been deported for crimes except as related to prostitution offenses. You would have to have an immigration lawyer go over your entire situation to decide whether and how you could again become a resident of the US. Insofar as your question of visiting the country, you would apply for a visa at the American consulate or embassy if not a Canadian national, and indicate that you would also wish to file for a waiver to enter the US as a visitor. The consulate or embassy would deny the visa application as a matter of course, but inform you whether it would agree to accepting a waiver application and if so, tell you the specific procedure involved. Ultimately the consulate or embassy if recommending a waiver would forward the application to the admissibility review office of U.S.C.I.S. which would make a decision. If the decision is favorable, the consulate or embassy would then issue the visa.

2. Can a Green Card Holder Get Possibly Deported Because of a Minor Offense?

 Mr. Lee answers: 
Generally speaking, a green card holder would not be deportable because of a minor offense. That being said, there are many offenses which in the minds of individuals are minor, but which are considered major under the immigration laws. With Mr. Trump’s Executive Order on interior enforcement of the immigration laws, it is right to be worried about the effect of crimes since that appears to be a prime target of his order. If you wish a definitive answer on which minor offense you are concerned with (if you are concerned about a particular one), you should visit an immigration lawyer with all the circumstances of the case to obtain a formal opinion.

3. Do I Need to Refile LCA / I-129 for My H-1B ?

I am now working with a new employer and wants to go back to my old employer and my H-1B with old employer is still valid till May 2019. My old employer has not cancelled my H-1B. He wants me to start working from this Monday. Before I start working with my old employer Do I need to refile I-129. I am under the impression I just can start working but I am not sure. Please suggest.

Mr. Lee answers:
Our opinion is that you would not require further paperwork to resume H-1B work with an employer which has not notified U.S.C.I.S. of the cancellation of your H-1B petition. I note that employers who do not terminate H-1B’s with U.S.C.I.S. upon the separation of the employee do face liability from such employees suing them for wages after they have been separated on the grounds of no proper notification and no termination of H-1B status. The Labor Department has upheld a number of cases on these points for the H-1B holder.