Category: Q&A

1. Please Tell Us What to be Aware Of If Mother Sponsors Our Grandma for U.S. Immigration?

My grandmother is 80 and lives in China. My mother is a US citizen and wants to sponsor her so that she can stay with us for the rest of her life. She wants to know what things she should consider before beginning the process like how long it’s going to take, what steps are involved, and what will be her liability.

Dear reader,
The best advice without regard to financial liability is to begin the process now. Under the current unsympathetic administration, there is the possibility of the category of US citizens applying for parents being curtailed. The recently blocked regulation on public charge which would make family-based immigration dependent not only upon a viableI-864 affidavit of support but on a variety of factors would disadvantage an elderly parent attempting to immigrate. Although the public charge regulation may become unblocked by the time that your mother has her interview for the green card, that is a circumstance over which no one has control except the courts. In terms of liability, this administration has shown a propensity to enforce the affidavit of support obligations, and that would mean that the parent would not be eligible for means tested benefits for a period of five years, and that the financial supporter would have to pay back means tested benefits taken by the parent with certain exceptions such as emergency care. The process is approximately one year or less and consists of an I-130 petition for alien relative processing by USCIS, and then further processing through the National Visa Center (NVC) and the American consulate in Guangzhou.

2. How Difficult Will It Be for My Brother to Immigrate With His Crime and Taking Into Account His Family Here in the U.S.?

My brother committed an assault on a storekeeper and injured him badly for which he was imprisoned for three years in the 1990s. He has a clean record since that time. He takes care of our green card mother (father passed away) in New York, has a wife although she is not legal, and three children who are US citizens and the oldest will soon be 21. My brother came to the US legally in 1995.

Dear reader,
Your brother is inadmissible as having committed a crime involving moral turpitude. He may also have been considered to have committed an aggravated felony, but the Supreme Court in 2018 voided aggravated felonies based on crimes of violence saying that the definition of a crime of violence was too vague. He came into the US legally, and so although he is not eligible for adjustment of status based upon a petition by his mother, he might be eligible to adjust status through a petition by his oldest child who is turning 21. He will require a waiver of grounds of inadmissibility for his criminal offense, and so would have to submit an I-601 application for waiver of inadmissibility when he applies for adjustment of status. Under current regulations, USCIS’s standard for adjudication where violent or dangerous crimes are  involved is a showing of exceptional and extremely unusual hardship to qualifying relatives who are US citizen or permanent resident parents, spouses, and sons and daughters. Whether he is able to obtain permanent residence will then be in the discretion of USCIS.

3. Mother Passed Away Before Her Petition for Her Married Son Was Approved – What Can We Do Now For My Brother?

My mother petitioned for my married brother nine years ago, but just passed away. The I-130 petition is still pending and has not been approved. At the time when my mother was sick and dying, my brother was allowed a visa to come and he stayed with her until she passed and only went back home to Malaysia after the funeral services. What can we do now to keep the petition? We do not want to start all over again as we already have nine years invested in the process and they are processing 2008 cases at this time

Dear reader,
It appears that you will unfortunately have to begin again. If your brother has skills under which he can immigrate to the US through employment, the waiting time is not long at all for persons born in Malaysia. Otherwise you could begin again petitioning for your brother by yourself and it is an approximate 12 year wait. Your mother’s petition is not eligible for humanitarian reinstatement as the petition was not approved prior to your mother’s passing away. It is also not eligible to be continued under another provision of law which allows petitions to continue where a beneficiary resides in the US at the time of the petitioner’s death as the condition is that the beneficiary must be resident in the US at the time and thereafter until the petition is approved, and your brother was only a visitor to the country.

4. Thinking of E-2 Visa, Very Interested in L-1 Visa.

We are born in China, but now hold Grenada passports. We were thinking of opening up an E-2 business in the US, but on second thought think that we would like to try with a visa like the L-1 that can convert to the green card. I own 30% of the company here that has 150 workers and total income of approximately $2 million USD. I have been working in the company as general manager for the past five years.

Dear reader,

Besides showing that a US company is or will be viable in the near future, an L-1 petition for an intracompany transferee requires that there be a relationship of controlling interest between the US and China companies. 30% of a 150 person company is not regarded by USCIS as controlling interest although such might be in a much bigger enterprise. If you and other people in the China company owned the US company in much the same percentages as all of you own the China company, such a relationship might be recognized for L-1 purposes. I note that usual L-1 arrangements are that one company is owned by the other, or two companies are owned by an individual or individuals in roughly the same percentages, or two companies are owned by a third company. Controlling interest is usually seen as 50% and over.

1. I Have a Civil Lawsuit Against Me Because of A Car Accident.  How Do I Reflect This On N-400 Form?

 The ticket got dismissed because officer put wrong name.  Officer mistakenly put my husband’s name instead of me.

Mr. Lee Answers:
A civil lawsuit is not relevant to naturalization proceedings as it is not criminal, which is the focus in citizenship determinations.  The ticket is another matter. You would answer the question pertaining to whether you have ever been cited “yes” in part 12, question 23, and explain the circumstances in box 29 that the ticket was dismissed. It might be prudent to obtain a copy of the disposition and either include it in the initial filing or bring it to the interview.

2. What to Do on Form I-864 If My Husband Didn’t Have to File Taxes During Those Years?

During 2014 and 2015, my husband wasn’t working, he was studying. He started working on 2016 and had to file taxes for the first time. Should we write a ‘0’ (zero) on questions 19.b and 19.c (page 6, part 6, form I-864) or leave them in blank? I tried to do some research and I read that some people wrote “N/A” but my Pdf program doesn’t let me write letters, just numbers.

Mr. Lee Answers:
Your husband can put down zero on the questions. Your husband should enclose an explanation as to why he was not working with perhaps a copy of his degree if he graduated.

3. I Am A Doctor by Occupation But Intend Not to Work in Medical/Health Occupation In USA Not Requiring National Board of Medical Examiner Certification

Like Nutritionist,Medical transcriptionist,or pharmacist so what shall I answer to question in form D 260″Are you a graduate of a foreign medical school seeking to perform medical services in the USA but have not yet passed the National board of Medical examiner examination or its equivalent”

Mr. Lee Answers:
Since you will not be working in medical//health occupations in the US that require the National Board of Health Medical Examiners Examination or its equivalent, you should answer “no” to the question since you are not seeking to perform medical services in the country.

1. My Category Changed from F-2A to F-2B And I Got Welcome Letter From NVC

They changed my category because I am aging out but email us that they processing my visa and will schedule interview. So there is any way I can go through interview I mean I got visa?I have read several stories that they got interview call but rejected due to age out process.For your information my father is LPR not a citizen so there is any process CSPA protect me as I must to be with my parents.

Mr. Lee Answers:
The determinative factor in whether you can go through with the interview is whether you will be considered under the age of 21. Age is frozen when the priority date is reached. You are also given credit for the length of time that the I-130 petition pended with U.S.C.I.S. before approval. If in doing the calculations you are under the age of 21 when your age is frozen, you can immigrate under the F-2A category.

2. Working While On Tourist Visa

While on a student visa I work for 1 month at a local pub to make extra money. I left US and tried to returned and was denied because I worked. 1 year later I applied and was deny because of insufficient ties. 3 years later I applied and still try to get around that question and was denied again. I was 21 then. Now I am 30 with career as a nurse. Do you think I should apply and just be honest?

Mr. Lee Answers:
Honesty is the best policy here. There is no guarantee that you will be given a tourist visa since such is given in the discretion of a US consular officer, but you appear to have changed your life and have more reasons to return to the home country. Ties and bonds with the home country are usually determinative factors in B1/B2 visa determinations. Good luck!

3. Paycheck As Proof of Employment For Post Grad OPT

I’m on OPT post grad visa and working as a steady/extra at the hotel. My employer cannot promise me any hours in a written form but for the next month I’m scheduled to work 40 hours every single week. Can I use my paycheck as a proof of employment since they cannot guarantee 20 hours per week in written form but they are telling me that I will have at least 30 hours every single week (they worked there for 4 years and never saw a steady extra worker who got less than 20 hours)? Would paycheck work as a proof of employment since it will show that I worked 40 hours?

Mr. Lee Answers:
OPT postgrad only requires that an individual work 20 hours a week in a field related to the schooling. I see nothing wrong with your being able to prove the 20 hours a week through your paychecks. I note that most paychecks have another part that shows the number of hours worked. Such would also help although it is not necessary as long as the rate of pay per hour is known.

1. Is My L-1 Visa Already Out Of Status? Is My Employer Breaking The Law?

I’m working for a US holding company under L1 Visa. More than 6 months ago, another company purchased my subsidiary (both US & oversea offices). I requested the new company to change my visa to be under their sponsorship but they have been working on it for more than six months now and I still don’t know when the documents will be filed as every time I ask, I always get the same answer that they are gathering supported documents. So my concerns are: – Is my L1 Visa already out of status? – Is my current employer breaking the law by not making the transfer on time and still ask me to work for them? – If my Visa is already out of status, what are my options?

Mr. Lee Answers:
In your situation as I am given to understand, another company purchased the subsidiary of the holding company without making the holding company part of its company, and so the holding company is disconnected from the actual operating US and overseas offices. It seems a troubling situation, and it appears that the best option would have been for the purchasing company to make an L-1 amendment to put you in the US office or for the purchasing company to acquire the holding company. You may already be out of status, and perhaps the best option is for the purchasing company to make a late petition with explanation to change you to the subsidiary and hope that U.S.C.I.S. accepts the explanation. If not, you would have to leave the U.S. to consular process the L-1 assuming that the petition is approved.

2. Visa Process

Friend in Albania wants to come to USA. #1- Albanian passport. #2-apply for visa (B1/B2) – DS-160 form, setup interview. Is this the initial process? And correct visa? What if she wants to come permanently?

Mr. Lee Answers:
A person coming to the US for visiting purposes or other personal reasons would correctly apply for a B1/B2 visa on DS-160. An individual wanting to come to the US permanently should not be using a visiting visa, but a visa with dual intent such as H-1B or L-1 or be sponsored for permanent immigration through the family-based or employment-based categories.

3. My I-140 and I-485 Were Concurrent Filled. Can I Change Job If Both Forms Are Still Not Approved?

Mr. Lee Answers:
Where the I-140 and I 485 are concurrently filed, porting to a new job is possible after the I 485 has been pending 180 days. Determinative factors will be whether U.S.C.I.S. believes that the I-140 petition is approvable and whether the new job is in the same or a similar occupation.

1. Inquiry About Expired Temporary Green Card

I got temporary green card stamp in passport valid for past one year expired in 2002, can I apply for form I-90 replacement card to get a legal status in USA? I got employment authorization to work legal job in USA, please assist me to get a visa to USA, I am presently live in India since 2002, Reply me by email.

Mr. Lee Answers:
If you have lived in India since 2002 and your temporary green card in your passport expired in 2002, you have undoubtedly lost your permanent residence. You will not be able to regain it by filing an I-90 application to replace your permanent resident card. If you are interested in obtaining a visa to come to the US for employment, I suggest that you make an appointment with an immigration lawyer who can go over your options for a working visa.

2. How Do I Apply For My Husband’s Citizenship?

It’s been a year since my husband been home and we missed him dearly. We have a special needs child that requires a lot of attention. My husband and I have been married for 8 years. He’s never been in trouble with the law. He attended church and he do volunteer work at church. My husband believing here for 33 years. We missed him so much. How do I get my husband back?

Mr. Lee Answers:
Your facts do not disclose many of the items that would be necessary to give good advice. I assume that your husband has left the country and you want him back. However, you have not disclosed your present immigration status or that of his parents, and that would be relevant in seeing whether he could have a chance of returning if he is under a 10-year bar for unlawful presence in the US for a year or more. I suggest that you make an appointment with an immigration lawyer who can go over all your available options taking into account all of the facts.

3. Will My Husband Be Put in Risk to Get His Residency Taken From Him If We Come Back Into the U.S From Mexico for Christmas Vacation?

My husband was charged for having 2 grams of coke 8 years ago. He complied with his probation and did everything he was supposed to do. He has been a resident for 9 years and has not had any legal issues since. He went to Mexico last year for vacation and came back into the US without any issues. We are planning to go Mexico for family vacation at the end of the Month. Do you think there should be an issue with him coming back into the country?

Mr. Lee Answers:
A person can be charged with many crimes, but the determining factor is what he was convicted of or pleaded guilty to. If it was for having 2 g of coke, and if the problem was discovered at the time of inspection coming back to the United States, there would certainly be an issue. He would likely be placed in removal proceedings in which an immigration judge would ultimately make the decision as to whether he could keep the green card.

1. My Husband Was Banned for 10-yrs and That Time Is Up.  Can He Apply To Reenter Since We’re Still Married?

Me and my husband have been married since 2004.He was deported because he didn’t leave the country when he was supposed to on the visa he had. We are still married and the 10 years are up so if we’re still married is it possible for him to come back home and about how much would it cost?

Mr. Lee Answers:
If he was only barred because of deportation based upon an overstay, 10 years have elapsed since the deportation, and you have permanent resident or US citizenship status, you can apply to have him come back in through the petition process. We do not quote fees publicly, but they are reasonable.

2. What Is Legal Marriage Age For My Fiancée?

I recently purchased a plan on Rapid Visa to get help in filing my K1 Visa for my fiancée from Honduras. Everything was going well as I intended to marry her in Nevada, Las Vegas preferably. She is 20 years old turning 21 in December and I am 21 currently turning 22 soon. I live in California. I read in her embassy page and it read “If you are getting married in Honduras, you must meet the requirements prescribed by Honduran law. The following is an unofficial translation of several documents issued by Tegucigalpa City Hall on marriage requirements in Honduras.” She is from Honduras and the legal age to marry is 21. I thought since she is getting married here in the U.S which the legal age is 18 there would not be a problem. I was now told there is a problem because of the age. Is there anything I can do? I really want to bring my fiancée here but I feel utterly lost and sad now. Any advice on what I can do?

Mr. Lee Answers:
As it is already close to December, perhaps your best move would be to file for the K-1 fiancée visa, which normally takes at least six months to approve at U.S.C.I.S.  Consular processing thereafter usually takes another couple months. Probably by the time that your fiancée goes for her interview at the consulate, she will already be over the age of 21. Even if under the age of 21, she may be able to postpone the interview for the one or two remaining months which are required for her to turn 21. In addition, from scanning the information on Honduras, females appear to be able to marry at age 18 with parental consent, but I believe that you already know this.  If not, your fiancee could bring proof of parental consent to the interview if still under 21.

3. Father of My Child Charged for Possession of Marijuana a Gram/Personal Use and Officer Said It Was a Misdemeanor,  He Has U.S. Residence Card. What Will Happen?

Mr. Lee Answers:
US immigration law allows a waiver for permanent residents who are convicted of a possession offense of 30 or less grams of marijuana. If there is no other charge against him, he should be okay.

1. My Husband Got Convicted and Deported. Is There Any Possible Way He Can Come Back to the United States?

My husband (love of my life) who was born in 1970 came illegally in 1987 from Mexico. I met him year 2002 when I was 16. We had 3 kids together. He got convicted of manufacturing and delivery in 2009 sentenced to 10 years, did 2 1/2 then they deported him. It was the first time he ever got in trouble for anything and they threw the book at him. Our kids got adopted out. It has been almost 10 years; will he ever get to come back to the United States?

Mr. Lee Answers:
In the circumstances that you described; it is difficult for me to see that your husband would ever come back to the United States legally. A crime involving manufacturing and delivery of drugs (I assume that it is drugs) and a sentence of 10 years is an aggravated felony.

2. How Much Yearly Income Is Required to Bring Someone to the U.S. On A Fiancé Visa?

My reportable yearly income is only $10,200 from disability but in 2020 my yearly income will increase to $24,000 from an annuity. Will owning a house and property or having money in the bank help me NOW so I don’t have to wait until 2020? If so how much is required?

Mr. Lee Answers:
Owning a house and property or having money in the bank may help, but on the house alone, that would depend upon the equity in the house. There is no fixed amount on equity in a house, but the higher the better as a house is not a liquid asset and where would you stay if you sold the house to meet the obligations of financial support. On other property, that would depend on the value of the property, and whether it could be easily disposed to meet your obligation of support. Assuming that you are alone and have no other support obligations to anyone else, the amount of money in the bank would likely be a little north of $100,000, 5X the yearly support level for a family of 2. Also a consular officer might be interested to see how long the money has actually sat in your account. Having home and property and bank account would lessen the amount needed from each individual asset.  A suggestion is that you may decide (in lieu of the above) to seek out a cosponsor who will be able to provide the necessary support for your fiancé not only for the visa, but for the permanent residence application which will soon follow.

3. Will Medical Discharge Revoke My Citizenship?

I’ve been in the Army for about 1.5 years now. I got my citizenship about 9 months. I’ve been getting severely depressed and currently in a process of getting medically discharge.

Mr. Lee Answers:
If you already received your US citizenship, it cannot be taken away absent material fraud or misrepresentation in having obtained it. It certainly cannot be taken away for a condition which arises following the grant.

1. Father Was Legally in the U.S. for Over 30 Years And Was Deported for Having Less Than 2 oz of Marijuana at the U.S. Borders

My father is a mechanic and his father owned a shop in Juárez. When his father passed away, my father would go back for months at a time to visit his mother and help at the shop in Juarez. He would constantly work back and forth in El Paso because it’s very close and he had business both in El Paso and Juarez. He was in a client’s vehicle and was crossing in to El Paso and police dogs found that there was less than 2 oz in the car and he was detained. He was held in jail in El Paso for 30 days awaiting court and then the case was continued for another 30 days. Out of foolish pride he allowed the court to deport him so he could get out of jail rather than wait to fight the deportation due to the marijuana charge. He wanted to attend to his ailing mother and the family mechanic business. My father has 6 daughters and 10 grandchildren here in the US and has missed out on about 18 years of family life. He has now also lost his mother and would like to be able to visit family at the least.

Mr. Lee Answers:
I assume that before your father was deported, he pleaded guilty to having less than 2 ounces of marijuana. Under the immigration laws, a waiver can be allowed for up to 30 g of marijuana possession for personal use. If the amount was 30 g or less, he may be able to be petitioned for permanent residence by one of the daughters if over 21 and a US citizen. As you say that he has already missed out on about 18 years of family life, I assume that the offense was committed over 15 years ago. He can obtain a waiver of such offense if the admission of your father would not be contrary to the national welfare, safety, or security of the United States, and he has been rehabilitated from the use of marijuana or other drugs. Another basis for waiver would be proving that one of his children would suffer extreme hardship if the qualifying child is a US citizen or permanent resident. If the amount was over 30 g, he might be able to apply for a visiting visa, in which case he would have to make the application, be denied, and the Consulate would have to recommend a waiver to the Admissibility Review Office of U.S.C.I.S., which would then make the decision taking into account the seriousness of the offense, its recency, potential harm to society if he is admitted, rehabilitation of your father, his reasons for coming to the United States, etc.

2. I Was Trying to Get My Georgia ID. I Have Social Security Card and Green Card With No Expiration Date.  

They told me they can’t take the green card anymore. What do I need to do?

Mr. Lee Answers:
I assume that you are talking about a Georgia ID. In taking a quick perusal on the Internet, it appears that the state of Georgia does accept green cards (I-551s or I-551 stamps), but the DDS also requires two documents showing residence in the state. It recommends documents such as recent utility bills, financial statements, or current rental agreement. Once you have the documents, I guess that you should try again. Good luck!

3. I Am Not An US Citizen, Is There a Possibility to Not Be Deported After Serving a Felony Sentence?

I am currently serving a felony sentence.

Mr. Lee Answers:
The question is what are your equities and the type of crime for which you are serving a felony sentence. If you wish to know if you can avoid deportation, you should have a friend or relative take your entire criminal file to an immigration lawyer for an assessment of your chances.

1. In Final Stages of Our LPR Son Sponsoring His Wife In China, What To Look Out For?

Our son has a green card through us, married his girlfriend in China, and has been in China for most of the past 2 years with her using a reentry permit. U.S.C.I.S. finally approved his I-130 petition for her 2 months ago, we paid the fees to the National Visa Center, and now we are at the stage of gathering documentation and filling out his wife’s immigration application form. We see that the visa category for his wife is open, and assume that she will be interviewed soon. They do not have any children yet. Is there anything that we or he should be aware of at this time?

Mr. Lee answers,
Your son and his wife should gather together all evidence of the bona fide relationship including wedding photos, studio photos, reception photos, photos of them living together, taking trips together with flight tickets, bus tickets, rail tickets, hotel receipts, household registration, statements from family, friends and neighbors with knowledge that they are married and living together and how they know, correspondence sent to either one of them at the place that they live, etc. Your son should also consider leaving China and staying in the U. S. as the affidavit of support that he will be signing (even if there is a financial cosponsor) is dependent upon his establishing a domicile in the U. S. According to the Department of State, he must satisfy the consular officer by a preponderance of the evidence that he will establish a domicile in the U. S. on or before the date of his wife’s admission to the U. S., and the Foreign Affairs Manual gives as examples opening a U. S. bank account, transferring funds to the U. S., making investments in the U. S., and seeking employment in the U. S. The best proof is being in the U. S. with at least one of the above.

2. Have Order by Immigration Judge Because Did Not Show Up, Can My American-born Son Now 21 Sponsor Me for the Green Card?

In 1992, I came to the United States illegally by boat, was caught before landing, spent 3 months in detention, and did not attend my court hearing. I know my case number but do not have any papers. My son is now 21 and I would like him to apply for the green card for me and he is willing to do it. He works in a restaurant and pays his taxes which is enough for my support. I have never been arrested except by immigration when I came into the country and have tried to live a good life as a good person since coming here. Can he do it?

Mr. Lee answers,
The answer may well depend upon what U.S.C.I.S. did in terms of paperwork when you were released. If you were given an I-94 card with the legend “212(d)(5)” on it, that would fit one of the requirements for adjustment of status as a person who has been inspected and admitted or a person who has been paroled. Although your case would be complicated even if you had such an I-94, at least you would have a starting point. I suggest that since you do not have documentation on your case, you should obtain a complete copy of your files from both U.S.C.I.S. and the immigration courts. You can do so pursuant to the Freedom of Information Act. Even if such an I-94 is not disclosed in your immigration files, it is always good for you to have a copy of your immigration files as any lawyer who will work on your case in the future will want to see what information the government holds on you.

3. H-4 Dependent Now Visiting Home, Can I Apply For Employment Authorization Card?

My husband has been working in the U. S. for 3 years in the U. S. under H-1B visa and me under H-4 dependent visa. He just got his I-140 petition for work approved while I am visiting at home overseas. I plan to be here for the next 2 months before returning to the U. S., and want to know if I can apply for the employment card based on my husband’s getting the I-140 approved to save time and someone told me that it will take Immigration about 3 months to approve the work permission.

Mr. Lee answers,
Unfortunately, that does not appear to be possible under current immigration procedures. The instructions on the I-765 Application for Employment Authorization state in the first line that “Certain foreign nationals who are in the United States may file form I-765….” In addition, the form asks for information concerning present address and last entry into the United States. If a foreign address is used or the entry section is left blank, the application would in all likelihood be rejected. You should be patient and wait to file until you return to the States. I note that the H-4 employment authorization program is experiencing strong headwinds as the Trump administration will likely come out with regulations restricting or abrogating it in the near future.

1. Case Status Changed From “Case Was Received” to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It”?

My petition was filed with USCIS for H4 dependent visa in May 2019. My spouse who is on H1B visa got his petition approved in July to being Oct. 1, 2019, however, my case is shown as “Case was received”. But on August 5th 2019 the status changed to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It” though there was no change in address. What should I do in this case? What does “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It” really mean when there was no update on my case status.? Lastly, my H1B petition is picked in the lottery for this year and my employer has replied for the RFE raised by USCIS. The status for my H1B petition is shown as ” Evidence received”. Will this change in H4 status impact my H1B petition?

Mr. Lee Answers:
To find out what is happening with your case, you should call the U.S.C.I.S. Contact Center at 1-800-375-5283. A customer representative should be able to tell you what notice was returned to the agency. The notice usually means that U.S.C.I.S. sent something to you, and for some reason the notice was returned, e.g. name was not on the mailbox or postman did not recognize that you lived at the address. As to whether a change in your H-4 dependent visa case will impact your H-1B petition, it may depend upon the content of the notice. If the notice that was sent out was a denial, you would likely receive a denial on the change of status part of the H-1B even if the petition part is approved by U.S.C.I.S.

2. A Company filed H-1b for My Wife Who is On H-4 Visa  In U.S. If H-4 Is Expired but H-1B Is Pending.  What To Do?

A company filed H-1b for my wife(who is on H-4 visa with me in US) this year through H-1b quota. If H-4 visa is expired and if we are still waiting for H-1B status update, will my wife be out of status in US? Can I file for H-4 extension after we get rejection for H-1b, even after the date H-4 gets expired? Seeing the delays in H-1B and number of rejections we are receiving, Should I instead look for filing H-4 EAD for my Wife, as my I-140 is approved? If yes do I need to extend H-4 before filing H-4 EAD or they go together in tandem. If we get H-4 EAD before H-1B approval would H-1B be still valid.

Mr. Lee Answers:
If your wife’s H-4 visa status is expired and she is still waiting for the H-1B which was filed on her behalf, she would not be considered out of status as long as the H-4 extended until September 30 if your wife is applying for a cap H-1B. Your wife can file for an H-4 extension even after the date is expired, but it will be up to U.S.C.I.S. as to whether it will approve a late extension. As your I-140 petition is already approved, you can think of your wife filing an H-4 EAD, but should be aware that U.S.C.I.S. is reportedly looking to rescind the rule that allows H-4 employment. If you and your wife do decide to go that route, your wife can file for extension and EAD at the same time. If your wife obtains the H-4 EAD before her H-1B is approved and the H-1B is later approved, the H-1B would be valid and supersede the H-4.

3. Can I Still Have a Chance for Approval If I File Motion to Reopen/ Reconsider My I-601 Denial?

My husband currently out of the US and had gotten denied I-601 and visa application. Is there anything else we can do or apply for? He is inadmissible until 2026 it says and has a drug felony. What are my chances of appeal of the denial?

Mr. Lee Answers:
A section 212(h) waiver for which you have filed the form I-601 will not forgive a crime involving drugs except for possession of 30 g or less of marijuana for personal use. I do not imagine that you would win on appeal or by filing a motion to reopen or reconsider the denial unless that was the offense for which he pled or was convicted.