Category: Q&A

1. Either I Can Apply for H4 EAD Now or Shift to F1 Visa from H4. Which is Better in Current Situation in USA?

I am joining a graduate school this fall. In order to work in USA, either I can apply for H4 EAD now or shift to F1 visa from H4. which is better in current situation in USA

Mr. Lee answers:
The choice of whether to apply for H-4 EAD or to shift to F-1 visa is up to you at this point. The H-4 EAD situation is still valid at present although it is one of the targets of the Trump administration for elimination. Under F-1, you would generally have to attend schooling for a year before being allowed to work under curriculum practical training unless that was a part of the program that requires internship or fieldwork.

2. If Someone Else Becomes an I-864 Sponsor, Can My Sponsorship Be Dissolved?

Divorced but am still my EX’S sponsor (form I-864). If she remarries am I still responsible? What if her new husband files for sponsorship?

Mr. Lee answers:
If your ex-wife remarries and if the new husband files for sponsorship, you would still be on the hook if your ex-wife attained conditional residence through your sponsorship. On the other hand, if her case through you was denied, you would not be responsible as the I-864 is a contract between you and the government under which the obligation begins when your ex-wife received the benefit. 

3. Can I Study While My I-485 is Pending?

I am going to marry my fiancée after I am done with my associates degree, I however want to start my bachelor degree right after. So I have a gap of a couple of weeks between my AA and my BA. My question is, can I start studying again as soon as the I-485 is pending, or do I have to wait for the temporary work permission to arrive?

Mr. Lee answers:

If you are marrying a U. S. citizen, any gap in status will generally be disregarded at the time of your interview for the green card. If you are marrying a lawful permanent resident and adjusting status by filing form I-485, you must be in valid status at the time of filing form I-485. In addition, you cannot violate your status even after filing the I-485 by taking on unauthorized employment. That being said, a gap in schooling after marrying and filing the I-485 application would have no effect upon your ability to adjust status. In your situation, if you are holding F-1 status for both your associates degree and your bachelor’s degree programs, you would not be violating status by having a gap of a couple of weeks as the law provides for gaps of time between 2 levels of schooling. Even if you were not choosing to advance to a bachelor’s degree program, you would still be in legal status as an F-1 student for 60 days after completing studies during the grace period for you to change or extend status or depart the United States. 

1. How Do I Change Visa Type?

My friend from Brazil is here on a B1/B2 visa. He wants to do freelance video production. Is it possible to apply for a change of status (COS) to some type of work visa?

Mr. Lee answers，
I cannot think of an appropriate visa for your friend from Brazil to change status to in order to do freelance video production unless he is good enough to qualify for O-1 extraordinary alien status. If not, he may wish to consult with an immigration lawyer to go over his options and what compromises he is willing to make with his goals if he is eligible to obtain some other type of visa status to remain in the country for a longer period of time. 

2. I Think My Husband Married Me to Get to the U.S. Because After He Got His Green Card His Actions Toward Me Has Changed.

My husband has been here for one year and three months. After four months here I caught him on a dating site seeking a relationship. I have also found pictures in his phone of a woman with a baby sent to him back in his country. I have found a Mexican lady in his phone as well. When I asked him about these he would say the woman with the baby is his friend’s wife. However, its several pictures. He also deliberately picks fights with me I think to try to ruin the relationship. He wants to be looked at as a good guy by his friends and family. He has opened his own bank account he used to deposit money into our joint account but now he don’t. I feel like he is planning things behind my back. If I feel like he used me to get here and want a divorce what can I do?

Mr. Lee answers，
If your husband is a conditional resident, you can decide whether to assist him in removing the conditional basis of residence status by signing the I-751 form and cooperating throughout the adjudication process. If he is already a permanent resident (marriage was at least two years old prior to him coming to the US), you have less hold over his actions. At present, you have suspicions, but there is likely nothing that you can do with them vis-a-vis U.S.C.I.S. Even in the event that he eventually initiates divorce proceedings, you would probably not interest the agency into going after his green card since it appears that he has been living with you for the duration of time that he has been in the US. 

3. What Kind of Visa Can I be Eligible If My Brother Has a US Green Card?

My brother(26 years old) won the green card lottery and I – sister (25) want to learn the important steps of the application process as well as I want to know if I can also benefit that opportunity: residential visa, working permit, etc. He lives in Europe and I have been living in the US for the last 3 years with an F-1 visa.

Mr. Lee answers，
Unfortunately there is no benefit to be received from a brother or sister who obtains a green card under US immigration law. You would have to keep maintaining your independent legal status in the US. 

1. Child with Documented Immigration

I have a child with a documented immigrant and she’s trying to go back to her homeland to visit.  What are the laws concerning that?

Mr. Lee answers，
The documented immigrant must check with the consulate or embassy of the home country to determine what the requirements are for the child to enter the country. I will assume for purposes of your question that the child was born in the U. S. and is a U. S. citizen. The documented immigrant should obtain a U. S. passport for the child and then check with the home government as to whether there are other requirements for the entry of the child. Coming back to the U. S., the documented immigrant’s passport and green card and the child’s U. S. passport would be sufficient for entry. 

2. Can I Ask for Asylum? I am Illegal for Nearly 20 Years.

I have court approaching, if I am reported to ICE can I request for Asylum? I have court for driving unlicensed. I live in GA.

Mr. Lee answers，
Unless there are extenuating circumstances, an individual can only ask for political asylum within one year of coming to the U. S. illegally, or if the individual came to the U. S. under a nonimmigrant visa, within a reasonable period of time (usually less than 6 months) after the ending of the status. You can, however, request protection under withholding of removal which requires over a 50% probability that you will be persecuted upon return to the home country or protection under the Convention against Torture (CAT), under which you would have to prove by over 50% probability that you would be subject to an extreme form of cruel and inhuman punishment that must cause severe pain or suffering. For the Convention against Torture, even aggravated felons are eligible to apply. I note that asylum differs from the 2 other reliefs as the burden of proof is lower (applicants must show only a well-founded fear of persecution on account of race, political opinion, religion, nationality, membership in a social group, or past persecution) and a grant of asylum can lead to the green card whereas grants of withholding or CAT do not. 

3. I Have DACA, Can I Apply for a Green Card?

I came from Mexico when I was 3 with my mother who had a short term working visa for both of us.  We overstayed.  What can I do to get a green card?

Mr. Lee answers，
Being under DACA means that you are allowed to stay, but without legislation providing a path to the green card, there is not much that can be done at present. For purposes of your question, I will assume that you are at least 18 years of age. As you came in legally with your mother, you could possibly adjust status to permanent residence if you marry with a U. S. citizen in a bona fide marriage. If you marry with a permanent resident who is a long way from citizenship or is ineligible or cannot pass the naturalization test, you could possibly take advantage of the I-601A program to obtain a waiver of the 10 year bar for staying in the U. S. for one year or more. The waiver application would be based upon your spouse suffering extreme hardship if you had to leave the U. S. If the I-601A application is approved, you could then return to Mexico for an immigrant visa appointment at the American consulate. Assuming that you are approved at the time of interview, you could return to the U. S. under residence status almost immediately. If the above is not an option, you can wait with all other members of the DACA class until your DACA situation is solved politically.  

1. The Trump Ban on Chinese Graduate and Postgraduate Students – Am I Affected?

I am from China and on an F-1 visa. I heard that Pres. Trump last week declared that Chinese students who study in graduate or postgraduate programs can no longer come to the United States, and that those already here could have their visas revoked. Should I be alarmed since I am here in a graduate program on F-1 visa?

Dear reader,
Pres. Trump signed a presidential proclamation on May 29, 2020 taking effect on June 1, 2020, barring the entry of F-1 and J-1 students from China in graduate and postgraduate programs who will be studying or conducting research in a field involving information that could contribute to China’s military-civil fusion strategy who either receives funding or has been or is currently employed by, studied or studies at, or conducted or conducts research on behalf of an entity in the PRC that implements or supports the PRC’s military-civil fusion strategy, such being defined as actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities. There are a list of exceptions with probably the most relevant being that the bar does not apply to a person studying or conducting research in a field that would not contribute to the PRC’s military-civil fusion strategy. The New York Times said in an article that the People’s liberation Army has ties to military Institutes and defense research schools as well as seven more traditional universities which were identified in another website as Beijing Institute of Technology, Beihang University, Harbin Engineering University, Harbin Institute of Technology, Nanjing University of Aeronautics and Astronautics, Nanjing University of Science and Technology, and Northwestern Polytechnical University.

So unless you fall within one of these categories, you should not worry about this ban.

2. Having a Tough Time Leaving the Country After Obtaining Voluntary Departure – How Can I Leave on Time to China?

I had a deportation hearing and I through my lawyer was given involuntary departure by the immigration judge until June 22, 2020. The problem is that I am finding it very difficult to find a flight that goes to China. I did get a reservation on one the other day, but that flight was canceled. If I do not leave on time, I will have an order of removal against me. What can I do?

Dear reader,
There appear to be twin difficulties here, one being the coronavirus which has limited the number of flights coming and going to the United States, and Pres. Trump’s announcement on June 3, 2020, that he will ban all commercial passenger flights by Chinese carriers. That certainly limits the available number of flights even further. The ban is to take effect on June 16. Assuming that you and your lawyer are intent upon you leaving the US on time, you may also immediately begin exploring airlines of other countries that can take you out of the country and hopefully will not cancel the flights. Please understand also that you do not necessarily have to go to China. You can go to any other country in which you have permission to land. As a last resort, you and your attorney can request an extension of voluntary departure by ICE, but you should recognize that government services have been hit and miss during the coronavirus. You would have good cause to request an extension, but that would be leaving it up to an ICE officer’s discretion.

3. What is the Notice of Filing and Why is my Lawyer Telling Me that She Cannot File my Labor Certification Application Because my Company is Closed and Cannot Post the Notice?

I have a labor certification case for the green card stuck with my lawyer who has not filed my labor certification application up to this date. I spoke with her recently and she said that all of the pre-recruitment had been done, but she could not file because the company could not post something called a notice of filing in its office which is presently closed because of the coronavirus. Is this true or is my lawyer just giving excuses because she does not want to work?

Dear reader,
It appears that your attorney is giving you correct counsel. Required notices of filing inform people in the office and in the occupation that an organization is sponsoring someone for immigration purposes  who may wish to inquire about the position or to complain to the Department of Labor. Unlike notices of filing in nonimmigrant H-1B cases which can be done electronically, PERM labor certification applications for the green card require a physical posting at the workplace for 10 business days. The Department of Labor has given an exception to the time rules because of the coronavirus in saying that it will accept notices of filing posted within 60 days after the 180 day period of recruitment has passed as long as the employer started the recruitment within 180 days before March 13, 2020. As your attorney has already informed you that all of the other recruitment was finished, I assume that your case is only being held up because of the problem caused by the coronavirus.

4. Besides the Ban on Chinese Graduate and Post graduate Students, What Other Bans are There by Pres. Trump on People from China?

I heard about Pres. Trump’s new ban on Chinese graduate and post-graduate students. How many other bans does he have for people from China? I would like to know since I’m planning to come to the US on a working visa in the future.

Dear reader,
Currently there appear to be two other travel bans affecting persons coming from China. The first is a presidential proclamation in April that suspends persons coming to the United States to immigrate for 60 days and any extensions thereafter, but does not apply to nonimmigrant visa holders along with a number of other exceptions. A second ban prevents persons from China who have been in China, Hong Kong or Macau during the 14 day period before their attempt to travel to the US. For purposes of the latter ban, it does not apply to US citizens, LPR’s, spouses of US citizens or permanent residents, parents or legal guardians of US citizens or LPRs who are unmarried and under the age of 21, and siblings of US citizens or permanent residents if they are unmarried and under the age of 21. Those who are exempt from the second ban and coming in from the affected areas must land at one of 13 airports around the country.

1. My Married Sister is in the US Legally. How Long Will it Take If I Am a US Citizen to Sponsor Her?

I’m a us citizen, my married sister is in the states under a student visa, she is doing a major, so i was wondering if I decide to sponsor, how long will it take.  I’m aware of that when the relatives are in the US, LEGALLY the waiting period it’s supposed to be less than (10 years in this case). Was I correct?

Mr. Lee answers，
Even if your married sister is in the U. S. legally, it will generally take the same amount of time for her to obtain permanent residence inside or outside the country. Currently for the month of May 2020, those siblings who filed I-130 petitions before 07/22/06 are eligible for their final immigration, so the waiting time is now about 14 years. Whether inside or outside the United States, the final action date on the visa chart must be current before a person can be adjusted to permanent residence in the U. S. or given an immigrant visa at the home consulate or embassy. 

2. I Submitted the I-130 in Nov 2019.  On April 2020 I Got a Notice to Provide More Evidence.  Does it Mean that my Previous Fee/Evidence is Lost?

I was asked to provide more evidence… which initially I had provided with my application on 11/23/19… all evidence on the checklist was submitted and yet I had a notice of more evidence on 4/15/20 or face being denied.  Does it mean that my previous fees and evidences have been lost?

Mr. Lee answers，
If you received a notice to provide more evidence, that means that U.S.C.I.S. has already received your case and is only asking for the additional evidence at this time. Your fee has certainly not been lost, and you should check carefully to see what U.S.C.I.S. is requesting to ensure that the evidence that you initially provided was sufficient. If you believe that it was, you can send it again, but I note that U.S.C.I.S. usually asks for evidence because it is not satisfied with what was originally submitted. 

3. I Signed an I-864 for My Husband As His Sole Sponsor a Year Ago.  Can I Apply for Medicaid Now?

I just had a baby and I’m trying to get financial assistance through the hospital but they need me to apply for Medicaid first before they can go through with the assistance. I signed the I-864 for my husband last year and still make too much money to qualify for Medicaid but the hospital requires a denial from them. Can I get in trouble for applying for Medicaid since I signed for him as his sponsor?

Mr. Lee answers，

Under U. S. immigration laws, the issue is not whether a person applies for Medicaid, but whether the person receives Medicaid benefits. If you are not receiving means tested benefits from federal, state, or city, the Medicaid question is inapplicable. Even if you were receiving Medicaid, you would not get into trouble for having signed for your husband’s financial affidavit support as there is no indication of fraud in your case and the prohibition would be against him receiving means tested benefits. 

I am on OPT until 7/20/20, and my employer filed for my H-1B registration, but I just learned that I was not selected. What can I do at this point?

Mr. Lee answers,
I note that because of the present coronavirus situation, the unemployment figures have risen rapidly as employers are furloughing or laying off many staff members. There is a distinct possibility that many H-1B registrants will not be able to go forward with petitions and U.S.C.I.S. may be forced to either conduct another draw or go further down the list of the draw that has already taken place to select more applicants. Other than that possibility, you can check with your school to see whether you are eligible for a STEM extension if you are unsure; continue your F-1 education and try again next year; return to school and request CPT (better at a higher level of education), explore the possibilities of L-1 intracompany transferee visa, E visa if from a treaty country, O-1 visa especially those on the PhD level, or possibly gaining H-1B visa status through working with or working at a cap-exempt organization such as an institute of higher education, nonprofit affiliated with such Institute, a nonprofit research organization, or governmental research organization.

 

1. Filed I-485s for Self and Daughter in Early February, Mine Accepted, Daughter Rejected – What to Do?

I filed I-485 adjustment of status application forms for myself and my 9 year old daughter in early February which also included two I-130 forms and I received the receipts in March for myself, but the whole package of my daughter came back because I did not sign her form. Should I sign the form and send it back in at this time? Also other questions – I know that the forms have changed and that there is a new one, I-944. Do I have to send that one in? I paid a lesser fee for her before because we were filing together. Her I-485 fee was $750 since she was filing with me. Now do I pay that or do I have to pay the $1140 filing for her filing alone? Finally do I have to say that she is not legally here on the form now since our visas expired in early March? When I filed for the first time, we were still legal. Can I still say the same now because it was only a technical error?

Mr. Lee Answers,
I will assume that you are married and that your US citizen spouse filed I-130 petitions for both you and your daughter in conjunction with your I-485 applications –otherwise there would be no need for the double l-130s.  if so, your daughter is still eligible to file an I-485 application as  she qualifies as an immediate relative of your spouse and immediate relatives can adjust status if they entered the US legally even if they have overstayed. Given the situation that there is nothing to lose in terms of statutory eligibility for you to begin again with your daughter, the best course is probably to refile for her using all the new forms that U.S.C.I.S. has mandated since February 24, 2020. You should also check off the box that she is not lawfully here at this time, and if you wish, explain the situation on the last page of the form. As a new filing, you would fill out the I-944 form for her and pay the additional fee.

2. Holding Green Card Status and Poor, What Chances to Sponsor My Other Children for Green Card?

I immigrated through my parents’ petition for me and am still a permanent resident. I have two children 10 and 12 years old by a former girlfriend in Hong Kong and now she wants me to petition for them to live with me rather than her. I married in the United States and have a child, but I do not make much money and have government assistance with my rent and my kid here has food stamps. What are my chances of having the two children successfully come to the US?

Mr. Lee answers,
Under the present state of US law including the new public charge provision that came into effect on February 24, 2020, the difficulty level of having your children come to the country if they do not have good prospects and assets is significantly raised in a situation like yours. Hopefully you will be able to find a joint sponsor who is related to you and making high income as that might help. Although these are trying times economically, it would truly be helpful if you got yourself a good job so that you could show proof of steady income at a level of at least125% of the federal poverty guidelines.to support your present household and the children you intend to bring over.

1. Would a Civil Case (Owing 2 Months Rent) Affect Me in the Future from Getting a Visa?

I’m a Mexican student in Boston. I have been renting an apartment in Cambridge, MA. My landlord is planning on retaining my security deposit because 2 years ago we retained 2000 USD of the rent because we did not had A/C for 2 months. We are planning on not paying our last month and then go back to Mexico. Does a civil case (housing case) would affect my possibilities of getting a visitor’s visa in the future?

Mr. Lee answers:
A civil dispute is largely not relevant in the decision of whether to issue a US visa. The only relevance would be whether a consular officer on somehow finding out from you the details of the dispute over rent might come to a different conclusion that you did not pay because you did not have the resources to do so and might be a danger to either become a public charge or take up unauthorized employment.

2. My OPT STEM Case is Processing Right Now. Am I Eligible to Work Right Now?

I applied my OPT STEM two month ago. They return my materials twice because my form was outdated. I sent them the third time, then they receive it and processing right now. The first time I sent my application was on time. The third time my EAD card already expired. Am I eligible to work since they are processing my case right now?

Mr. Lee answers:
Although those applying for a STEM extension have the right to continue working during the time of extension, that is predicated upon the application for extension being filed on time. Your application appears to have been rejected 2 times by U.S.C.I.S., and you state that on the 3rd occasion, your EAD card was already expired. Under the circumstances, it would not appear that you have employment authorization at this time.

3. Would an Economics Degree + 1 Financial Accounting Course+ 1 Year Accounting Experience be Enough for a TN Visa Accountant Position?

I am a Canadian citizen working for a nonprofit in San Francisco. I’m currently on OPT as an accounting assistant and my employer would like to extend my employment and promote me to a full accountant position when my OPT expires in June. Would having an economics BA + financial accounting college course + 1 year accounting training and experience be sufficient credentials for a TN visa accountant position?

Mr. Lee answers:
An applicant for a TN professional position is adjudged eligible by degree, CPA, CA, CGA, or CMA, and not a combination of education and working experience. In your case, an immigration officer or inspector would look at your economics degree to determine whether it is closely related to an accounting degree. Economics would appear to be more related to marketing than to accounting, but the decision would be up to the adjudicating officer.

1. Thinking about Changing from L-1A to H-1B and Have I-140 EB-13 Approval Already. Should I?

I am here as an intracompany transferee under L-1A manager status in my fourth year and am thinking about changing my status to H-1B specialized worker. My I-140 petition as a multinational manager under EB-13 has already been approved. I am doing this because I am born in India (very long waiting time) and I  know that I have a chance to continue my legal nonimmigrant status even when the maximum time for my H-1B expires which I would not have under L-1A status. What is your opinion of my thinking?

Mr. Lee answers,
I do not see any negative impact with your plan to switch from L-1A to H-1B if you are able to do so successfully. I note that you would have to be selected under the new H-1B registration process of U.S.C.I.S. and the company would have to prove that your position is a specialized occupation if you are selected. If you stay with your present company for the long duration, you may under current law still receive your permanent residence through the approved I-140 petition as long as the job is the same, or the job changes but is in the same or similar occupation six months after filing your I-485 application for adjustment of status. If your job changes fundamentally with your present organization, you would have to go through a labor certification application  process or another EB-1C petition even though you would be entitled to maintain the priority date of your I-140 approval. If you move to another company,  you would only be able to continue your entire case if you were in the I-485 stage, the I-485 was pending for six months, and the new position is in the same or similar occupation you had in the approved I-140 petition.