Category: Q&A

1. How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

How to expedite an asylum I – 485 Process for health care workers? Asylum based, Pending since 1.5 years.

Mr. Lee answers:
I do not know of an expedited process for green cards where healthcare workers are concerned, although USCIS recently said that it would expedite employment authorization renewal cards for such workers. The fact that you are already in the US instead of overseas would also not be in your favor in requesting an expedite from the agency. The expedite criteria from USCIS are: 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: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence; Emergencies and urgent humanitarian reasons; Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or Clear USCIS error.

2. I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

I am in USA now on tourist visa up to July 27th, I got urgent work in India, can I go & come for 15 days?

Mr. Lee answers:
Just because you were given until July 27 on your entry does not mean that you are allowed to come back to be in the US for another 15 days after returning from India. Your leaving and coming back subjects you to a new inspection when your return. A CBP officer may wonder why he or she should allow you to come back in after such a short trip outside the country. You may have a more sympathetic inspection if you are able to outline the reasons for which you need the additional time and you are able to produce documents relating to the urgency of your having to return to India before being able to accomplish your original purpose in the US.

3. What will I do when I was denied the petition for naturalization because I was not able to produce the document? 

I filed for a petition for naturalization but was denied because I was not able to submit the divorce decree. This was back in 1988.

Mr. Lee answers:
The question would appear to be the relevance of the divorce document. If it was not relevant to the question of your qualification for naturalization, you can submit a new application. If it is germane to the qualification, you should obtain it either by the time that you file for naturalization or by the date of your interview.

4. Can I travel between USA and Canada using AVR (each trip duration less than 30 days) multiple times while my visa appointment is scheduled?

I have a valid I797 and I94 for H4 status until 2024 and a Confirmation of Permanent Residence (CoPR) for Canada. Also, I have expired H1B and F1 visa stamps on my old passport. Now, I need to move to Canada temporarily for work (2-3 months). Can I travel weekly between USA and Canada to visit my family in USA using Automatic Visa Revalidation (AVR) multiple times? My visa appointment in US embassy in Canada is scheduled for Oct 4, 2022, but I want to travel back to the US on weekly basis in May, June and July 2022. Also, I understand I can not do any productive work while I am in the US on H4. Look forward to your response.

Mr. Lee answers:
Technically, you appear to meet the requirements of automatic visa revalidation as you have a current status, an expired US visa, and will be in Canada for less than 30 days on each trip. You may be questioned on the purpose of your frequent trips if there is some thought that you may be doing something illegal, but I do not otherwise see a problem. The fact that you have a visa appointment at the consulate scheduled for October should not affect trips done before the interview. Insofar as Canadian entries are concerned, I possess no knowledge of Canadian immigration law and cannot inform you as to whether there are restrictions.

5. Do I include children from a previous marriage who aren’t on my tax returns on my I-134?

Next month, my husband will have a k3 visa interview in UK and I need to fill out his I-134. I do not make enough money and I am using my mother that I live with as a joint-sponsor (she made 47k last year and has been employed at her job for 13 years). When I filled out his i-129F for the K3 visa I did list my children from a previous marriage under information about me (sponsor). Now, my question is, I have been told by multiple people since my ex husband has claimed the three children he and I have the last three years on his tax returns and I have not, that I do not need to put them on my i-134, only the daughter I have with my husband who is on my tax returns. Is this true? I am worried about them thinking there is any inconsistency between the i-129F information and the i-134.

Mr. Lee answers:
The I-134 affidavit of support form only asks for a listing of dependents who are dependent upon you for support, either partially or wholly. If they are not dependent upon you for such support, then it appears that you would not have to list them.

6. Would it be a safe idea to stick with the current company? or I should switch to the new employer

I recently got my h1b petition picked in lottery by 2 (two) companies. I have been working with my current company since 2020 and got my h1b denied in year 2020 due to speciality occupation after which i decided to pursue a specialized masters related to position. This year I got a new offer by other company who also filled for my h1b and got picked in the lottery. So my question is, should i stick with the current company? or it would be better to apply through new company as my h1b was denied before by current company.

Mr. Lee answers:
I do not know your particular situation and so cannot advise you which one is the better opportunity for success. If you have completed a specialized master related to the position, perhaps your chances are as good or even better with your current company than they would be with the new company. If you are really confused, you should speak with the attorney or attorneys who are handling your case for an opinion. Good attorneys will usually give a candid assessment if you request one. 

1. Can H1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021?

I am from India. I was never refused any visa till now. I have an i797A receipt of H1B. This is my first H1B so, technically, an interview is required for the first stamping. But, a new USCIS circular has come up saying that the first stamping folk on H1B can do a dropbox instead of an in-person interview. Is this true? I am not from a visa-exempt country. I am from India. This is my first work visa H1B approved last year in 2021.

Mr. Lee answers,
The Department of State has expanded the lock box program to allow discretionary waivers for even first-time applicants who have had a petition approved by USCIS, who are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. Please note, however, that the waiver of in person interview is discretionary and that the consular post may still request an interview. Otherwise, good luck.

2. Can a misdemeanor charge be withdrawn?

In May 2019, my daughter was charged with a misdemeanor for elder abuse…I am the victim. At the time I made a decision to go ahead and press charges on the advice of others and to hopefully get her help with managing her emotions. I now regret that decision after seeing all the trouble it has caused with regards to probation, employment, housing , etc. She is not a criminal, just a difficult time in her life. My question: can I get the charges dropped?

Mr. Lee answers:
While I am not a criminal lawyer, it would appear that you are too late to have the charges dropped as probation means that a final judgment has already been made on your daughter’s case. You may wish to consult with a criminal attorney to see if anything can be done at this time.

1. I get my Green Card under the F11 category, one of my accompany (son) is in “follow to join” status, can I get married if I already get my green card?

My Sons and I, we are in the same case under the F11 Category. I son (Accompany in the Case) is still in Follow to Join status. I already have my greed card and i have 3 years with it. My question is, If I get married now it would affect the case of my son who is still in follow to join status?

Mr. Lee answers:
The Foreign Affairs Manual in addressing the issue of the basis of following to join states the following that may make it difficult for your son to follow if you change your category at this point. “There is no statutory period during which the following-to-join applicant must apply for a visa and seek admission into the United States.  However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. ” 

2. Will a new marriage affect my naturalization application?

I have a green card, currently I’m overseas, about to get married to a non US citizen, just got the news my naturalization interview is in on month so I have to go back to US and get it, Would me getting married now could affect my interview, should I postpone my marriage till after I get my citizenship?

Mr. Lee answers:
Under normal circumstances, a new marriage while a naturalization application is pending has no effect upon the adjudication. The applicant would make the immigration officer aware of the new marriage at the time of the interview and give in a copy of the new marriage certificate. 

3. Can I work more than one job with an H-1B? If so, what is the process to add another employer?

I am currently working in the US with an H1B visa I obtained in 2021 in a school district. I am not working over the summer, so I want to look for work at another school district in June/July. I would like to know if this is possible and what the process is.

Mr. Lee answers:
To have a concurrent H-1B, the new employer must go through the same H-1B process with all the paperwork and fees to USCIS. For a concurrent H-1B, however, the employer does not have to go through the H-1B selection process.

1. I filled my I130 form on 11th sept 2019 and on 24 mar 2021 says we are actively reviewing. How long will this take as I have been waiting 2 years

I filled my I130 form in the California office on 11th September 2019 and i received an email in march saying ‘As of March 24, 2021, we are actively reviewing your Form I-130, Petition for Alien Relative, Receipt Number IOE0907413060’ i wanted to know how long will it take as i have been waiting for 2 years and have seen other people have filled in 2020 and had information and I have not

Mr. Lee answers:
You are unfortunately caught in a situation that many are experiencing at this time of the inconsistency of USCIS. We have seen many I-130 petition cases which were adjudicated subsequent to your filing in September 2019, and yet have some filed long ago that have not been reached. The processing times put out by USCIS have almost become a running joke as they have little relation to reality. Getting a message that USCIS is actively reviewing the case is encouraging, but there are many of these past messages in which the case was not adjudicated for a year or more.

2. Will a new marriage affect my naturalization application?

I have a green card, currently I’m overseas, about to get married to a non US citizen, just got the news my naturalization interview is in on month so I have to go back to US and get it, Would me getting married now could affect my interview, should I postpone my marriage till after I get my citizenship?

Mr. Lee answers:
Under normal circumstances, a new marriage while a naturalization application is pending has no effect upon the adjudication. The applicant would make the immigration officer aware of the new marriage at the time of the interview and give in a copy of the new marriage certificate. 

3. Petition I-140, E11 visa

I am an international student and want to apply for E11(i-140 petition) visa along with i-485 form. The questions are: -Which status I would have if I applied but my F1 visa finished? – Can I include my husband to the petition? – If the petition will not be approved and my student F1 visa is ended what I should do?

Mr. Lee answers:
In your situation, you would be in a quasi-legal status in which you are allowed to stay during the time that the I-485 application is pending. You can also include your husband by having him fill out a separate I-485 adjustment of status application. If the petition will not be approved and your F-1 status is already expired, you would not have legal status anymore unless you appealed the petition denial and that was approved. You could conceivably be in the US unlawfully for a long period after that inasmuch as the Biden administration is not targeting most status violators for removal proceedings. At such point, you may wish to consult with an immigration lawyer for any further options.

4. Will the gap between F2 and H4 status affect my I-485 application?

My F2 status expired in May 2020, and I submitted H4 application together with spouse’s H1b in April 2020, but H4 were not approved until Sep 2020. Will the gap between May and Sep affect my 485 application? what material do I need to submit to show that I have maintained my nonimmigrant status all the time?

Mr. Lee answers:
It is difficult for me to envision that you would have a problem with status given the fact that you submitted your application on time even if H-4 application was not approved for several months thereafter. A copy of the receipt of filing or approval would show the date that your application was received by USCIS, and that should be sufficient evidence to a USCIS officer that you have been maintaining legal status. 

5. Should I send my passport to USCIS when filing for TN visa extension with 1-129?

Or should I just send copies of the passport with all the documentation? Do they send me back a visa – sticker to place in the passport, or how do actually receive the visa in the passport if passport stays with me?

Mr. Lee answers,
When filing for a TN visa extension with USCIS, only a copy of the passport is required. Please note that USCIS does not do anything with the passport and only issues an I-797 notice of approval if it decides to favorably adjudicate the TN extension request. If you travel outside the US, you will still have to pass inspection with Customs and Border Protection when you reenter the US in which the officer will take a look anew at the merits of your request for TN extension. 

6. Can H-1B in-person first interview at the US embassy in the home country be waived off? New USCIS news came up in December 2021?

I am from India. I was never refused any visa till now. I have an i797A receipt of H1B. This is my first H1B so, technically, an interview is required for the first stamping. But, a new USCIS circular has come up saying that the first stamping folk on H1B can do a dropbox instead of an in-person interview. Is this true? I am not from a visa-exempt country. I am from India. This is my first work visa H1B approved last year in 2021.

Mr. Lee answers,
The Department of State has expanded the lock box program to allow discretionary waivers for even first-time applicants who have had a petition approved by USCIS, who are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. Please note, however, that the waiver of in person interview is discretionary and that the consular post may still request an interview. Otherwise, good luck.

7. Can an illegal immigrant be eligible for H-1B or other immigration or work visa?

Can an illegal immigrant entering the US and getting Parole and work visa under parole can be eligible for H1B or other immigration or work visa?

Mr. Lee answers:
Persons who have been illegally in the US must generally leave the country in order to obtain H-1B or other nonimmigrant work visas. Obtaining parole and a work visa under the parole does not wash away the illegality to allow such individuals to change status in the US for nonimmigrant visas. In deciding whether to try for a nonimmigrant visa, the potential applicant should also consider how long he or she was not legally here before obtaining the parole and work authorization. Unlawful presence in the country for 180 days or one year brings about bars from returning of three and 10 years respectively.

1. Can my parents leave and reenter the US on their current B2 visa while their I130 (filed while they were in the US) is pending?

My parents are currently in the US on a B2 (visitor) visa valid until 2024. I filed I-130s for them. Can they travel to China and reenter the US on the same B2 visa while their I-130 is being processed?

Mr. Lee answers,
Assuming that your parents have maintained their legal statuses while in the US and have the proper nonimmigrant intent to only visit and go back to the home country, they could still be allowed to reenter the country on their visitor visas even though they already have I-130 petitions filed on their behalf. They must of course tell the truth to the immigration officer at the port of entry if asked whether they are being sponsored for green cards.

2. Citizenship

We are permanent residents since December 2015, we traveled many time outside USA but every time we stayed less than 6 months. When can we submit to citizenship?

Mr. Lee answers:
The minimum stay in the US is at least half the time in the five years prior to the time that the naturalization application is filed. I note that even with the minimum, immigration officers may still give you a difficult time if they believe that you have not maintained residence in the US. The fact that you stay less than six months outside the US on your trips is only one factor. For example, a pattern of staying outside the US and only coming in for a few weeks or so between your trips outside could be seen as an abuse of your residence status.

3. Live in US while IR-1 visa application is in process

We applied for the IR-1 visa 6 months ago (I am American and my husband is Canadian) and still nothing. We are desperate to get to the USA. Is there any way for my husband to live in the US while this application is in process? We have property there already. 

Mr. Lee answers,
As a Canadian, your husband may be able to visit the US for short trips during the time that his immigration case is pending. However, he is not entitled to live in the US at this time unless he has a visa that allows him to stay in the US for a longer period of time. If he decides to visit the US for short trips, he should be honest with US Customs and Border Protection officers if they ask whether he has taken steps to apply for his US immigration. In such case, the decision to admit him would depend upon whether they believe that he is only coming in on the occasion for a short trip.

4. Caught for shoplifting when I’m on H1b and now I am applying for H1b visa.

I had stamped H1b in 2007 but never utilized and came to US in 2011 on business visa(B1) & caught shoplifting. I have an arrest record with original charges of shoplifting and got arrested and agreed that I made a mistake knowingly, so judge asked me pay $336 as fine. I did pay that amount and got the paper as well which says that case got closed, then I left the US in 2011. Now I am planning to apply for H1B.  Do I need to mention about shoplifting case now as it was 10 years old? My passport number got changed as previous one got expired. If i need to mention to USCIS then is there a chance my employer also gets to know about this? Because it will be a problematic if my employer gets to know about this. What are the chances of getting visa? I still feel sorry about what I have done :(. Thanks for all your suggestions.

Mr. Lee answers,
The H-1B petition does not ask about criminal history, so I assume that H-1B petition approvability by USCIS will depend upon the position and your qualifications. However, the visa application form, DS-160, does ask about any criminal conduct. You should of course answer truthfully. 

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.