Category: Q&A

1. What To Do If I Leave My Present H-1B Employer and Two Other Companies Want My Services?

I am with company A, but plan to leave it soon for different reasons. Company B IS ALREADY GIVING ME A JOB OFFER AND PRESSURING ME TO JOIN AS SOON AS POSSIBLE. I BELIEVE THAT I WOULD BE MORE COMFORTABLE WITH COMPANY C WHICH HAS NOT YET COMMITTED. IF I HAVE COMPANY B PUT IN THE H-1B TRANSFER FOR ME, WHAT HAPPENS IF I ACCEPT THE FUTURE OFFER OF COMPANY C AND IT ALSO PUTS IN H-1B TRANSFER PAPERS FOR ME WHILE COMPANY B’S PETITION IS STILL PENDING? 

DEAR READER,

I BELIEVE THAT THE SITUATION THAT YOU DO NOT WANT TO BE IN IS ONE WHERE COMPANY C’S H-1B PETITION IS APPROVED FIRST, AND THEN COMPANY B’S. UNDER THE LAST ACTION RULE, YOU WOULD BE BEHOLDEN TO WORK FOR COMPANY B unless you are working for both employers. TECHNICALLY YOU COULD WORK FOR BOTH, BUT WOULD HAVE TO WORK FOR COMPANY B. TO AVOID THE SITUATION, YOU COULD REQUEST COMPANY C TO PROCESS YOUR CASE UNDER PREMIUM PROCESSING ASSUMING THAT THE SERVICE IS AVAILABLE WITH U.S.C.I.S. (DURING THE H-1B cap SEASON, THE AGENCY TRADITIONALLY STOPS PREMIUM PROCESSING H-1B CASES). ONCE APPROVED, YOU COULD INFORM COMPANY B THAT YOU ARE NO LONGER INTERESTED IN WORKING FOR THE COMPANY AND REQUEST IT TO WITH DRAW ITS H-1B PETITION. THAT IS UNFORTUNATELY NOT FOOLPROOF AS THAT DEPENDS UPON THE COMPANY CARRYING OUT YOUR WISHES. ANOTHER WAY WOULD BE FOR COMPANY B TO PREMIUM PROCESS YOUR CASE, AND COMPANY C COULD THEREAFTER PUT IN A REGULAR CASE WHICH WOULD NORMALLY RECEIVE AN ADJUDICATION AFTER THE PREMIUM PROCESSED CASE. THAT IS ALSO, HOWEVER, NOT FOOLPROOF AS COMPANY B’S PREMIUM PROCESSED CASE MAY RECEIVE A REQUEST FOR FURTHER EVIDENCE, AND THE TIME TO ANSWER COULD BE LATER THAN THE NON-PREMIUM PROCESSED CASE. THE USE OF PREMIUM PROCESSING GIVES MORE CONTROL IN THESE SITUATIONS, NOT CERTAIN CONTROL. YOU COULD CONCEIVABLY WIND UP IN A SITUATION IN WHICH COMPANY C’S H-1B TRANSFER IS APPROVED AND SHORTLY THEREAFTER COMPANY B’S WITHOUT YOUR HAVING AN OPPORTUNITY OF ASKING COMPANY B’S WITHDRAWAL. ALL DOES NOT APPEAR TO BE LOST, HOWEVER, IN THESE SITUATIONS AS THE LAST ACTION RULE ONLY AFFECTS PRESENT STATUS IN THE US. CAUGHT IN THE SITUATION, YOU COULD GO OUTSIDE THE US AND REENTER UNDER THE CORRECT I-797 APPROVAL WITH OR WITHOUT (IF CANADIAN) HAVING THE NEED TO INTERVIEW FOR THE VISA WITH AN AMERICAN CONSULATE ABROAD.

2. H-4 Employment Card

I AM BEING APPLIED FOR BY A UNIVERSITY TO TEACH UNDER H-1B VISA STATUS. MY WIFE WANTS TO WORK AND HEARD THAT SHE IS ELIGIBLE TO DO SO UNDER AN H-4 EMPLOYMENT RULE. CAN YOU TELL ME MORE ABOUT IT AND HOW IT CAN BE DONE?

DEAR READER,

PRESENTLY H-4 DEPENDENTS ARE ELIGIBLE FOR EMPLOYMENT AUTHORIZATION APPROVALS WHERE THE H-1B PRINCIPALS EITHER HAVE I-140 PETITION APPROVAL OR WILL BE EXCEEDING THE SIX YEAR H-1B LIMIT AND 365 DAYS HAVE PASSED SINCE THE FILING OF A LABOR CERTIFICATION APPLICATION OR THE DATE THAT AN I-140 PETITION WAS FILED. IF YOU HAVE THESE CIRCUMSTANCES, YOUR WIFE CAN FILE CONCURRENTLY WITH YOUR H-1B PETITION OR THEREAFTER FORM I-539 APPLICATION TO CHANGE OR EXTEND STATUS AND AN I-765 APPLICATION FOR EMPLOYMENT AUTHORIZATION. U.S.C.I.S. WILL FIRST ADJUDICATE YOUR H-1B FOR APPROVABILITY, AND UPON A POSITIVE ADJUDICATION, BEGIN THE DETERMINATION ON YOUR WIFE’S I-539 AND I-765 APPLICATIONS. I NOTE THAT THE H-4 RULE IS PRESENTLY UNDER ATTACK BY THE TRUMP ADMINISTRATION, AND THERE ARE STRONG INDICATIONS THAT THE ADMINISTRATION WILL ATTEMPT TO NEGATE THE RULE BEGINNING early this year. IN SUCH CASE, THE CONTINUATION OF EMPLOYMENT AUTHORIZATION FOR THOSE WHO ALREADY HAVE IT OR HAVE APPLICATIONS PENDING WILL DEPEND ON THE LANGUAGE IN THE RULE AND ANY LITIGATION IN THE COURTS TO PRESERVE THE RULE.

3. Can I Get an H-1B With Bachelors In Accounting?

I graduated in December with a bachelor’s degree in accounting, and I expect my OPT to begin sometime in February 2018 and end one year later. How can I best ensure that I can have an H-1B approved if I am selected under the April cap? What do I do if I am not selected? Can I apply again in April 2019?

Dear reader,

This past H-1B season, U.S.C.I.S. appeared to be focusing on two issues – whether the job itself is a specialized occupation requiring a specialized degree, and whether a job can be truly professional where employers pay a level I wage. We assume that those 2 issues will continue to predominate in this coming season. Joining an accounting firm or a large company that requires an accountant is probably the best way to demonstrate that the occupation is specialized. Obtaining level II wages would overcome the stigma that U.S.C.I.S. has placed on occupations offering level I pay. That being said, your petitioner’s attorney should be prepared to argue if U.S.C.I.S. sends a request for further evidence under the above circumstances or even less favorable ones. If you are not selected or are denied, you will still have the OPT until sometime next February. With the 60 day grace period, you will be allowed to stay as long as the 2019 H-1B petition is filed before the grace period runs out. Unfortunately U.S.C.I.S. will not allow you to legally work until at least October 1 assuming that the 2019 H-1B petition is approved.

4. How Can My Wife Come Back To The U.S. After Being Sent Back On Entry Two Years Ago?

MY WIFE, A TAIWAN NATIONAL, USED THE VISA WAIVER PROGRAM TO ENTER THE US AND OVERSTAYED HER VISIT BY A WEEK (97 DAYS) IN 2013. SHE CAME BACK TO THE US IN 2015, AND WAS CHALLENGED BY AN IMMIGRATION OFFICIAL AT THE AIRPORT BECAUSE OF HER OVERSTAY. DURING HER QUESTIONING, SHE CONFESSED THAT SHE HAD WORKED SOME OF THE TIME WHEN SHE WAS HERE IN 2013. SHE WAS NOT BARRED, BUT SENT BACK ON THE NEXT PLANE. SHE THEN TRIED TO GET A VISA FROM THE AMERICAN INSTITUTE IN TAIWAN (AIT), BUT THEY SAID THAT THEY COULD NOT DO ANYTHING. I AM A US CITIZEN AND MARRIED HER IN 2015. WE HAVE A ONE-YEAR-OLD CHILD, BUT TO SEE HER, I HAVE TO TRAVEL TO TAIWAN. HOW CAN I GET HER BACK TO THE US?

DEAR READER,

ASSUMING THAT SHE WAS NOT BARRED, YOU CAN APPLY FOR HER IMMIGRATION ON FORM I-130 PETITION FOR ALIEN RELATIVE, AND ONCE THAT IS APPROVED BY U.S.C.I.S., SHE CAN BEGIN CONSULAR PROCESSING THROUGH THE NATIONAL VISA CENTER AND THEN THROUGH THE AMERICAN INSTITUTE IN TAIWAN. IF EVERYTHING GOES WELL, SHE WOULD RECEIVE AN IMMIGRANT VISA AND COME TO THE US IN APPROXIMATELY ONE YEAR. A CONCERN IS THAT THE AIT MAY FIND THAT SHE IS INADMISSIBLE FOR MISREPRESENTATION FOR HER WORKING IN THE US IN 2013 WHEN SHE WAS ONLY SUPPOSED TO BE VISITING. THE DEPARTMENT OF STATE RECENTLY BROUGHT OUT NEW GUIDELINES UNDER WHICH ANY CONTRARY ACTIONS TO THE SUPPOSED INTENT OF THE VISIT WITHIN 90 DAYS OF ENTERING THE US BRINGS ON A PRESUMPTION OF MISREPRESENTATION. IF there is a finding of misrepresentation, SHE WOULD BE ASKED TO FILE AN I-601 APPLICATION FOR WAIVER OF INADMISSIBILITY IN WHICH THE STANDARD FOR ADJUDICATIO

1. From B-2 to F-1

I will be entering USA in a b2 visa and this will be my second time there. I am thinking to join a community college there. I have not applied for the college yet. Should I declare in the immigration that I would be applying for college? How can I get a f1 approval and increase my chances of getting a F1.

Mr. Lee answers:
An individual entering the U. S. on a B-2 visa is not supposed to have a preconceived intent to change status to student. U.S.C.I.S. now believes that anyone who attempts to do so within 90 days of entry presumptively had the intent prior to entry and will generally deny the application.

2. Political Asylum Closed Then Get Married

I got denied on political asylum in 2015, then I was back to F1 visa to finish my degree. In 2017, I get married and try to apply for a green card, does the closed political asylum case affect my marriage green card?

I have been in the United States for four years, I have missed my family so much. May I go home after getting my marriage green card or should I apply for an advanced parole? then I can have more possibility to reenter in USA with marriage green card and advanced parole?

Mr. Lee answers:
Assuming that you were in F-1 status at the time of your political asylum case and that U.S.C.I.S. simply closed your case, the case should not have much effect unless you committed fraud or misrepresentation in your application. You should be able to return home after getting your marriage green card. Although I do not think that you would have a problem with advance parole, it might be better for you to wait until obtaining your green card since you expressed fear of returning to your home country in the asylum application.

3. Will I Be Able to Get my Citizenship?

I came to USA in March 2016 with K-1 visa. Me and my fiance got married may 2016. I got my conditional two years permanent residency 05/30/17 which will expire 05/30/19. I am supposed to reapply to remove my condition. But our relationship is not working well and we might get separated very soon. But I would like to stay in US to finish my school and get my citizenship. So I could leave this country and then come back if I want to or if I have to. So my question is, on my current visa status will I be able to stay or get my citizenship even if we got divorce? If yes, how many years it might take approximately?

Mr. Lee answers:
If you gather sufficient evidence to convince U.S.C.I.S. that you have had a bona fide marriage in which you were living together, you can apply to remove the conditional basis of your residence status at any time after you obtain your divorce and before the expiration of your two-year residence on 5/30/19. In the event that the removal of conditions is allowed, you would have to wait 5 years instead of 3 years to submit your application for citizenship. Such would be in 2022, and since the law allows you to submit 90 days ahead of time, you could put in the N-400 application at the end of February or beginning of March 2022.

 

1. I Am A Mother Having a Permanent Resident Status in The USA. I Have An Unmarried Son To Be Filed As A Relative.

What can we do to get him here as permanent? He is here at present as a visitor. His first sister is a USA citizen.

Mr. Lee answers:
I will assume for purposes of your question that your unmarried son is over the age of 21. As a permanent resident, you can file a petition for him under the F-2B category, and the waiting time would be approximately 7-9 years. He must stay unmarried.  If his sister files a petition for him under the F-4 category for siblings, the waiting time would be approximately 10-12 years. He is not allowed to stay in the country just because either you or his sister files a petition for him.

2. What Was The Best/Safe Route to Take On OPT Extension or H-1B?

I am in F1-OPT status from May 2016, which expired on July 2017. I filed my H-1 in Consular Processing on April 2017, which was picked in lottery and it’s still in progress. As opt expired on July 2017, I approached my college for stem extension before 45 days but my college informed me that I was in CAP GAP till sep 30 and not eligible to apply for stem extension. I do have couple of questions running on my head • Question 1: I applied H1B in counselor processing which doesn’t include change of status, why my cap-gap is initiated; I still had the valid opt? • Question 2: Can I apply for opt-ext on CAP GAP with parallel to H1-ConsularProcess? • Question 3: Do I need to go immediately for stamping after the change of status approved in H1-Consular Process? • Question 4: Will cap-gap extended in case of my H-1B RFE?

Mr. Lee answers:
Where an individual has an H-1B filed on his or her behalf which states that the petition is for consular processing and not for change of status, the cap gap extension does not apply. Your college was wrong in informing you otherwise. It would not appear to have been contrary to the rules for you to request a STEM extension under your circumstances. If the H-1B is approved and the petition was marked for consular processing, you would not receive a change of status. For the H-1B to go into effect, you would have to go outside the US for a visa interview and stamping. 

3. I Am 18 Years Old. I Wanted to Know That If I Get Married to My Boyfriend Will The Age Matter When I Try to Fix For Him?

Mr. Lee answers:
At the age of 18, you are free to marry and sponsor your boyfriend for the green card. I note that you will have to be able to show proof of ability to support or have a cosponsor who can take up the financial burden. Much more important will be a showing that the marriage is bona fide and not entered into for the primary purpose of obtaining your boyfriend’s permanent residence. 

 

1. Consulate Interview

I got my interview notice in Cuidad Juarez. I am one month pregnant. Will that be a problem? Should I reschedule my interview until I give birth?  My husband is petitioning for me. 

Mr. Lee answers:
The fact that you are pregnant for one month should not be a problem as there are ways of medical testing on the medical examination that would protect the unborn fetus. Please advise the panel physician’s office before the start of examination.

2. Re-entry Permit

I’m permanent residence since April 2015. My husband is in Pakistan. I have applied for his Visa. My question is if I will take re entry permit so is it necessary for me to be here in USA at the time of his interview? 

Mr. Lee answers:
You must be able to establish domicile in the US at the time of your husband’s immigration. Being in the US would be advisable. Items that might be helpful to prove your US domicile would be job offer letters, US tax returns, US banking statements, ownership of real property, etc. Domicile is important in the immigration process as you must file an I-864 affidavit of support and that form requires that the petitioner have a US domicile.

3. Do the I-94 Record and the Arrival Date for the Foreign Spouse in Form 1-130 Refer to Their Last Entrance in the US?

I am filling out form i-130 and I am not sure if the arrival/departure record for my spouse refer to the last entrance in the US. My spouse first entered as a student in 2011 but is currently on an H1-B (last entry with H1-B). Should we use the most recent arrival record as obtained from the US Customs and Border Protection website? 

Mr. Lee answers:
The I-130 form refers to last entry to the United States, not to earlier entries.

1. How to Apply for a Work Permit While Awaiting an Asylum Decision?

I want help to apply for work permit (Form I-765 ) .

Mr. Lee answers:
If your asylum case has been pending 150 days and if you have taken no affirmative steps to delay the process, you are eligible to apply for an employment authorization by filing form I-765 application for employment authorization accompanied by proof that your asylum case has been pending for that amount of time. The application would be sent to either the Dallas or Phoenix lockbox of U.S.C.I.S. depending upon your place of residence.

2. Can I have Two H-1B Visas at The Same Time?

Employer A filed H1b petition last year and it got approved. Employer B filed H1b petition this year and if it gets approved, can I go for stamping through Employer B after stamping is done through Employer A. i.e if I have valid Visa stamp through Employer A, can I still go for Visa stamping through Employer B. Are there any chances of Visa getting rejected through employer B? 

Mr. Lee answers:
You can have two H-1B’s at one time with different employers as long as you are able to perform both jobs. In situations where an individual has an H-1B visa stamp from one employer, and quits and goes to a second employer which has an H1B approval, an H-1B visa stamp for the second employer is not necessary and the individual can travel using the first employer’s H-1B stamp and carrying the current H-1B I-797 petition approval. So given the non-necessity of having 2 distinct visas there, there is the chance that even if you are working for both employers at the same time, a consular officer may believe that it is not necessary for you to have two H-1B visas. A consular officer may also believe that annotating the name of the second employer under the present visa would be enough. Finally if the consular officer believes that there are questions concerning the second H-1B petition, he or she may deny visa issuance. In that case, hopefully nothing that you would have said in the visa interview would cast doubts upon the validity of the already issued H-1B visa.

3. Marriage Visa vs Tourist Visa

My girlfriend for 3 years lives in the Ukraine but has been to my house 2 times on her tourist visa. She has stayed 6 months the first time and 4 months the 2nd time. She is coming back in one month and we planned on getting married here. My question is, after we go to the courthouse and get all licenses and have the ceremony, what would she need to do to begin working legally here? I have a business that she can work at, but want to know the process. 

Mr. Lee answers: 
The tourist visa is not a springboard which individuals should think that they can conveniently use to obtain permanent residence status. To DHS, the thought that someone would have the idea to permanently immigrate and have this intent prior to entry on a tourist visa is anathema as constituting abuse of the visa. Since you have so definite a plan to marry, the recommended path here would be for you to file a K-1 petition for her as a fiancée on form I-129F to have her come over on the proper visa. You would then have 90 days to marry once she arrived. K-1 visa processing takes approximately 6 –9 months.

 

1. How to Petition My Son?

I’m a green card came here in the U.S. with my 6 years old son but forgot to declare my 1 year old son still in the Philippines. How to petition him?

Mr. Lee answers:
The question is why you forgot to mention your one-year-old son. If it has nothing to do with the basis for your immigration, you could petition for him under form I-130 Petition for Alien Relative. The waiting time would be approximately 2+ years. You can also try the more complicated but shorter way of applying for him under the follow to join category which involves work with the Department of State and US Embassy as long as you were not sponsored as the spouse or parent of a U.S. citizen.

2. Asylum Case

I am Mauritanian nationality I live in Columbus Ohio for 16 months and I have an asylum case at level of immigration and since then I have no response to my box but I have to a work permit that was me for 6 months and I want to know how to restart my box to get an interview and get a result in my box 

Mr. Lee answers:
At this time, U.S.C.I S. is experiencing long delays and backlogs in scheduling asylum cases. You must be patient. In the meantime, you can continue extending your employment authorization. You should also inform the agency if you move.

3. When Can I file My Naturalization Paper?

I’m a green card holder.  Can I file a US citizenship after 3 yrs of continuous stay in the US?

Mr. Lee answers:
Most green cardholders can only file for citizenship after five years. Those who are married to US citizens have the ability to do so after three provided the applicant has held the green card for three years, the US citizen has been a citizen for three years, and the couple has been living together constantly during the three-year period. The law allows such married individuals to file within the 90 day period before the three years if the only unmet condition is the first – not having the green card for the full three years.

4. How Can I Apply for Non-immigrant Work Visa for My Friend?

I live in USA and I have a green card. I want to apply for my friend and his family for non-immigrant work visa which I think can lead to green card. 

Mr. Lee answers:
An individual generally cannot apply for a nonimmigrant work visa for a friend. Usually a work visa involves some type of company sponsorship or the setting up of companies by nonimmigrants from countries having treaties of navigation and commerce with the US, and compliance of the rules for treaty trader (E-1) or treaty investor (E-2) visa.

 

1. I Have F-1 Visa. If My Asylum Application Denied, Can I Get OPT?

OPT approval needs non-immigrant intent, because it’s a non-immigrant visa. Applying for asylum shows immigrant intent. Can denied asylum affect my chance to get OPT? 

Mr. Lee answers:
If you are still in F-1 status at the time that the asylum application is denied, the denial should not affect your nonimmigrant status and ability to obtain OPT. U.S.C.I.S. questions on immigrant intent are focused on persons who have filed for immigrant visa petitions or immigrant visas or adjustments of status to permanent residence.

2. Will A Lawyer Be Able to Help Me With The Process of a Change of Status If I Am Married With an Expired Not Stamped Visa?

When I entered the states back in 2000 my visa was not stamped and the form I 94 cannot be traced, I went over to an immigration office and I was told that when we file eventually I will Have to Juarez, is there a way that it can be done without me leaving the states? 

Mr. Lee answers:

The normal practice where an individual entered the country legally and has no documentation of entry would be to file an I-102 application to replace an I-94 card. The chances of an entry being located are more where individuals came in by air or by sea. Land border crossings may prove more difficult to prove where a person claims a legal entry. If you are not able to obtain proof of entry, you are not adjustable to permanent residence even if you marry a US citizen unless you have the benefit of §245 (i), under which individuals would have had to have a labor certification application or immigrant visa filed on their behalf by April 30, 2001 and be physically in the country on December 21, 2000.  If you have neither siyuation, you may still be able to obtain permanent residence outside the US by having the I-130 petition approved, filing and seeing the results of an I-601A waiver application while still in the US, and if approved, going outside for a consular interview which would in all likelihood result in an immigrant visa. The I-601A waiver waives the 10 year bar for being illegal in the US for at least one year and is based upon establishing extreme hardship to a US citizen spouse or parent.

3. Do I Qualify As Qualifying Relationship for Hardship? My Boyfriend of 24 Years Is Being Held by ICE.

My boyfriend of 24 years is being held by ICE for aggravated felony in 2009 he came legally in 1991 with his father we met in 1992 and started living together in 1994 had our son in 1996 and daughter in 2001. I have proof of our 24 year relationship. 

Mr. Lee answers:
Whether you can help out your boyfriend will likely depend upon the answer to a number of questions with the first being whether you hold permanent resident or US citizen status, and if so, whether you are willing to be married with him or he with you. Other questions are whether he entered the country legally, and the type of aggravated felony for which he is being held. There is a possibility that certain types of aggravated felonies can be waived when a person is seeking permanent residence in the US. I strongly suggest that you have a consultation with an immigration lawyer to go over your and your boyfriend’s entire situation and see what options may be available.

1. Renewal of Driver’s License

My driving license has expired 6 days back. I am on a work VISA and my company has applied for an extension of my VISA. The petition is still under review and I have received a receipt notice of action. But the DMV will not accept the I797C receipt notice to renew my license even though I am legally allowed to stay in the United States for no later than 240 days or till the time my petition is approved or denied. How can I get a temporary drivers license? 

Mr. Lee answers:
Your petitioning organization may consider putting in an application for premium processing on form I-907 if the petition is eligible for expedited processing. The cost is $1225, but U.S.C.I.S. promises to reach your case for adjudication within 15 calendar days of receiving the request.

2. H-1 Cap Exemption Without Change of Status

Currently I am on H-4 on maternity leave. My company is filing for H1 cap exemption without change of status since I am still in maternity leave. I have 2 queries as below: 1) Can the H1 cap exemption be filed without change of status? 2) If the petition is approved do I need to exit US and come back with the stamping. 

Mr. Lee answers:
An H-1B cap exempt petition can be filed without a change of status. However, when the petition is approved, the beneficiary must go outside the US for consular processing and return in order to be legal under H-1B status. In order to be under H-1B status without exiting, the change of status must be requested when the petition is filed.

3. During My Asylum Case is Pending, Can I Work With EAD and Keep My F-2 Visa?

I am visa F-2 holder. My wife has just started PhD program. I applied for religion asylum and recently got my EAD. I want to keep my F-2 status because if my asylum case would be denied, I can stay in the US legally with F-2 visa. The university consultant told me if I work with my EAD I will not be F-2. However an attorney told me you are F-2 whether use your EAD or not. It is confusing. 

Mr. Lee answers:
An F-2 holder is not allowed to work, even under an EAD. So if you work under the EAD, you would violate your F-2 status. If you wish to maintain your nonimmigrant status, you should not work.  There does not actually appear to be much controversy over the policy.  

4. C1/D Visa

My daughter’s father works for Royal Caribbean international as engineer with a C1/D visa . He also has a B1/B2 visa. He is signing off his ship on Dec 29 in Jamaica on his C1/D visa . Can he fly directly to the USA on his B1/B2 visa to stay in the US for 3 weeks with his family until he is schedule to join the ship January 16 in Fort Lauderdale? He is a Romanian Citizen.

Mr. Lee answers:
A C1/D visa presents the situation where the individual is in transit in the US (C-1) to join the ship (D). That does not appear to be your daughter’s father’s intent when he enters the US. As he has a B-1/B-2 visa, he can explain his situation to the immigration inspector at the airport when he arrives. I believe that he would be admissible under the B1/B2 visa for the purpose that you described.

 

1. Am I Eligible to File for Naturalization Where I Have a Tax Payment Agreement with IRS?

I did not pay my U. S. taxes from 2012-2015, was audited, and I have entered into a tax payment agreement with the Internal Revenue Service. I am current on my payment obligations under the agreement. Am I allowed to file for naturalization at this time?

Dear reader,
The N-400 form for naturalization not only asks whether a person owes any overdue taxes, but if the person has ever not filed a tax return since becoming a lawful permanent resident. I assume that you would be answering at least yes to the second question. The answer may well depend upon your motive for not having paid the taxes for those years. If intentional and you knew that the taxes were owed, you may have committed tax evasion, which is a crime. Admission of such even without a conviction may cause a denial of a naturalization application based upon lack of good moral character. As an immigration lawyer, I do not profess to have knowledge of criminal law, and can only quote from a website that states “Criminal tax evasion involves not only not paying your taxes, but also demonstrating a willful attempt to avoid paying and taking specific actions to avoid generating financial paperwork. These specific actions include tricks such as putting your assets in another person’s name, or receiving pay under the table to avoid getting a W-2.”  For naturalization purposes, an individual must maintain good moral character for the period of time for which good moral character is required. Where an individual is applying for citizenship on the basis of 3 years (marriage to a U. S. citizen for 3 years, the U. S. citizen having citizenship for 3 years, and living together constantly during the 3 years), the period of good moral character is 3 years. Otherwise the period of time required is 5 years.

2. What Do My H-4 Wife and 2 Children Do In The Situation Where My First Employer Filed Her Extension Papers Late, And I Am Now With a New Employer on the Pending Transfer?

I was with the employer A, my original H-1B sponsoring company, with expiration date of April 21, 2017. Employer A filed for my extension in April, but his lawyer did not put in my wife and the kids, and only filed for her extension when I asked about it in July 2017. In the meantime, I got another job offer from employer B, who put in H-1B transfer papers for me and the process is still pending. In the meantime, nothing else was done for my wife. What should happen now? Can I remedy the situation?

Dear reader,

In your situation where your dependents already have an H-4 extension pending and you have a new H-1B transfer process with another employer, I believe that the best move at present would be for your spouse or lawyer who filed the H-4 extension to speak with the National Customer Service Center of U.S.C.I.S. (1-800-375-5283) and ask to have the pending H-4 reattached to your pending H-1B. If that does not work, you may think about filing new H-4 extension papers for your family with an explanation of the circumstances of the late filing and of the pending H-4 extension with the prior H-1B petition.

3. Can My Husband Go To Another U. S. Consulate For F-2 Visa Processing?

I am a student in the United States, and went home to China to get married in January 2017. Afterwards, my husband began to apply for F-2 dependent status to join me in the United States. He said that he would only be staying with me for a short period of time before returning to his work. After interview, the consul office gave him a paper instead of a visa and said they needed to do background checks. In April, he was called for another interview, asked a few questions, and told that more checks remain to be done. It is now been 8 months after the 2nd interview without word although we keep trying to check with the consul office. Now my husband is being transferred by his company to South Korea. Can he now apply for the F-2 visa in that country? We were informed that such could not be done. 

Dear reader,
Whether your husband can apply successfully for the F-2 visa in South Korea instead of China may depends upon the view of the interviewing officer. Under the current system of nonimmigrant visas where the DS-160 application form is available to all consular officers anywhere in the world, a consular officer may believe that he or she has enough information to make the adjudication. On the other hand, the consular officer in South Korea may believe that he or she is not sufficiently familiar with local conditions in China and may further believe that the consulate in China is more knowledgeable and the decision should be made by them. The bottom line is that your husband can make the application, but should be prepared for a response that he should seek the visa in his home country.

4. Does My Husband Have to Return to the Consulate in Jamaica to Turn in His H-2B Temporary Worker Visa If He Already Filed His Application to Adjust Status in the United States?

I met my husband when we were both working at a lobster restaurant in Massachusetts. I was a waitress and he was working in the kitchen under the restaurant’s H-2B visa program for summertime help. We became serious and married at the end of the season in September. The restaurant kept telling him that he had to go back home to turn in his visa at the American consulate. After we got married, we filed for my husband’s adjustment of status application to permanent residence. We now have the receipt, and my husband will go for his fingerprints appointment in 2 weeks. But we’re still worried as to whether he should have to go back home to return the visa. What should we do?

Dear reader,
It is understandable why the restaurant has the attitude that its temporary workers should go back home. It may be worried that it will receive a black mark for any worker who overstays when it again tries to participate in the program for the next year. Legally speaking, however, an individual applying for adjustment of status to permanent residence is not obligated to leave the US to turn in a nonimmigrant visa of the H-2B variety. Your husband can stay and adjust status as long as he is otherwise eligible for the privilege, e.g, has not committed crimes, does not have any problems with mental disorder, drug addiction, alcoholism, is not a member the Communist Party or any terrorist organizations, etc.

1. Does My Girlfriend Stay Here In States Considered Legal?

Change of status from J-1 to F-1 Visa. J-1 expired Dec. 15 2016, F-1 application was received by USCIS Jan. 02 2017. On October 26, 2017 my girlfriend checked her case status and found out that the application was denied. She was supposed to receive a denial notice but since she didn’t update her address after she moved, document wasn’t received. On November 25, on her case status was stated that documents were returned back by post office to USCIS. She did right away updated her address and requested to resend documents, it said expect response by December 4th. Until now she is still waiting for their response or for the document to be resent. 
1. Does her stay here in states considered legal still? 
2. If you get denial notice, how many days they allowed you to depart the country? 
3. What are probable reasons why her application got denied? 

Mr. Lee answers:
If your girlfriend’s case was denied, she would not be considered legal since she has no other nonimmigrant legal status in the US. She should do what she is doing at this time, which is to try to obtain a copy of the decision. It is only at that time that she would have an idea as to the reason for the denial and whether she could contest it through a motion to reopen or reconsider. Although there are technically 30 days to file a motion after denial, U.S.C.I.S. would likely entertain a late motion where your girlfriend never received the decision previously and made reasonably diligent efforts to obtain the denial after learning that her application was denied. I do note that persons who have changes of status denied and who have no other legal status can incur a three-year bar upon return if they remain in the US for 180 days or more after the date of the denial. Success on a motion to reopen or reconsider would retroactively make all of the time legal since the time of the denial. A difficulty may be that a decision might not be forthcoming within 180 days on a motion, and your girlfriend may have to make a decision as to whether to stay in the US to continue the motion or leave the country to avoid the three-year bar.

2. What Do I Do If I Had to Leave Soon?

Printing my I-94 today I noticed that they only gave me 60 days to stay in USA when they normally give me 180. Also when they stamp your passport they provide you with the return date. Mine didn’t this time. I’m worried. I have a tourist visa that expires in 2024 and I’ve been here since July 31st, 2017. Supposedly I had to leave around the end of September. I had a vehicle accident in August. What can I do?

Mr. Lee answers:
The difficulty in your situation is that your overstay appears in large part to have occurred because you did not print out your I-94 copy previously which showed that you had only 60 days to stay in the US. The mitigating circumstance here, however, seems to be that CBP did not put the return date on your entry stamp. If you had a serious vehicle accident in August 2017 in which you suffered significant injury, you might be able to ask for an extension of time on a late basis on form I-539 application to extend or change status. Whether you can convince U.S.C.I.S. of the worthiness of a late extension application with only vehicle damage is questionable. The combination of the two factors may be persuasive, however, although the decision would be up to the adjudicator. Staying in the US 180 days after the expiration of your allowed time brings about a three-year bar upon return. Given the lengthy processing time for an I-539 application, you would likely exceed 180 days while waiting for the decision. You would then have a choice between staying in the US for the decision and hoping for an approval or leaving to avoid the three-year bar. I do note that an overstay in the country automatically invalidates your present visa. For you to return if you leave at present, you would have to obtain a new visa from the American consulate or embassy.