Q&A’s published on Lawyers.com and the Epoch Times – 03/31/2017 1. Arizona ICE Hold 2. I-751 3. Regarding Travel While H-1B Amendment Is In Progress

1. Arizona ICE Hold

My partner of 30years is serving time for a 3rd DUI until May, 2017 and placed on ICE hold. Since he was born in Mexico but become a citizen at 12 years old, why was he placed on ICE Hold? What types of questions will ICE ask at the hearing? And what document should he have to prove his citizenship? He has worked for Honda Corporation and Toyota for over 20 years.

Mr. Lee answers:
It is difficult to say what type of questions ICE will ask at a hearing – that is up to each DHS attorney. If your partner can prove that he is a US citizen, he is not removable. As he has been your partner for 30 years, I assume that he was born in the 1960s. He would have to show that the parent through whom he is claiming citizenship was physically present in the US or a possession of the US for 10 years prior to his birth, five of which were after the age of 14.

 2. I-751

I applied for I-751 on 01-16-2016 then on 09-04-2016 got email from USCIS say I’m approved then I got a letter say I got approved and I should get my green card within 60 days I should receive it but I haven`t get anything then I contact USCIS they said my case got on hold because the security check ( I file I 751 through VSC then got transferred on 08-17-2016 to CSC) my question is I will be eligible to apply for my N-400 now so can I apply for my citizenship with my approval notice without my green card.  I`m from New Jersey. 

Mr. Lee answers:
You are eligible to apply for your N-400 on your eligibility date even though your I-751 is still pending. However, you will not be granted citizenship unless and until the I-751 is approved.

3.Regarding Travel While H-1B Amendment Is In Progress

I am on H-1B Visa stamped visa, I need to my H-1B Amendment is currently with USICS for location change, in such situation, I urgently need to travel to home country. Can I enter US back when my H-1B Amendment is in progress? If so what all documents will I need ?

Mr. Lee answers:
I suggest that the premium processing fee be paid to U.S.C.I.S. to expedite the adjudication of your H-1B amendment prior to your leaving the US. Such action could alleviate all your concerns concerning return to the country after a trip abroad. U.S.C.I.S. will reach the case for adjudication within 15 calendar days after receiving the premium processing request on form I-907 with filing fee of $1225. Coming back to the US when an H-1B amendment is in progress raises questions such as who you actually intend to work for when you come back; whether you should remain overseas until the H-1B amendment is approved; the extent of the change of circumstances requiring the amended petition, etc. 

Q&A’s published on Lawyers.com and the Epoch Times – 03/24/2017 1. Form I-212 is Confusing 2. Marry More Than One Wife 3. How Can Someone Residing in Switzerland Come to the United States?

1. Form I-212 is Confusing

After 150 days administrative processing I got notified that I need to file a form I-212. I was never deported so I thought, but in absence I was put in deportation proceeding even though I was already back in my home country. I tried to reach the embassy but I don’t get any reply. I never been deported but on the form is no section for me to check mark ( like deportation proceeding in absence ) which should I check mark. I have 4 American children but I only see room for 1 child but it would help listing all. Can I handwrite a statement? I do not want to make a mistake after coming that far. 

Mr. Lee answers:
Whether you attend the hearing or receive a deportation order in absentia, that is still considered being deported. So you should put down that you have been deported. In such case, you would have to file the form I-212 for advance permission to come back to the US. Otherwise you would have to stay in the home country until the time that the deportation order expires, in most cases 10 years. Insofar as your four children are concerned, you can use the extra page provided in the form, page 8, for additional information. Copies of their birth papers and any other relevant information that might be favorable to you should be included in the application. You may also look to see whether you also have to file an I-601 waiver of inadmissibility, which would generally be required if you stayed in the US illegally for one year or more or committed other acts such as fraud or misrepresentation or crimes.

 2. Marry More Than One Wife

If it’s in someone’s religion they can marry more than one wife, can one be brought here to USA to marry.

Mr. Lee answers:
The United States has a law against polygamy – no one would be allowed to come to the US to engage in a polygamous marriage. Neither would someone who advocated it be admissible.

3.How Can Someone Residing in Switzerland Come to the United States?

He is from Iraq and has been living in Switzerland and has documents, he would like to know is there a Visa he can apply for and how.

Mr. Lee answers:
If an individual has documents including passport, he or she can apply for a visiting visa to the US as long as that is the purpose for which the individual wants to come to this country. A B-1 visa is for business visiting purposes, and a B-2 visa is for other visiting purposes. 

 

Q&A’s published on Lawyers.com and the Epoch Times – 03/17/2017 1. I Changed My Status From F-2 to F-1, Can I Enter USA Based on This F-2 Visa? 2. Adjustment of Status Application (I-485) for Children 3. Travelling Abroad

1. I Changed My Status From F-2 to F-1, Can I Enter USA Based on This F-2 Visa?

I still have F-2 visa stamp on my passport. Can I enter USA based on this F-2 visa? My husband is in OPT and his I20 expires on Jan 23 and I have flight on 24th December.

Mr. Lee answers:
Your having changed status from F-2 to F-1 is only valid when you are in the US. If you are out of the country and coming back in as a dependent rather than a student, the F-2 visa is the correct one under which to enter as long as the principal F-1 is still in valid student status. That appears to be your case.

 2. Adjustment of Status Application (I-485) for Children

We came to the USA 5 years ago and our 2 children (10 and 20 years old) do not have their own foreign passports. So all information (i94, Visas, Birth information) is included in wife’s passport. There is no way to get foreign passports for them at this point. Should we expect any issues with USCIS such as a request for evident since we cannot provide their passports?

Mr. Lee answers:
There is a chance that you may receive an RFE from U.S.C.I.S. because of lack of the passport for your two children. You should attach an explanation along with copies of your wife’s passport and the specific page that refers to  each of them along with sending in copies of the I-94’s if you still have them. 

3. Travelling Abroad

I am a German national who entered the US on an F-1 visa. I got married 1.5 years ago to my husband who is a US citizen and we had our first child this summer. I applied for my Greencard September 9th and got the notification that it was received and being processed on September 14th. However, my guidance counsellor terminated my student status on September 9th so I may have unintentionally been out of status for 5 days. We are planning on traveling to Germany to see my family in a week. I got advance parole and have all of the travel documents that I need. My question is, will I have trouble getting back into the US because I may have been out of status for a few days?

Mr. Lee answers:
You will not have problems on any advance parole by virtue of being out of status for a few days. Under a decision by the Board of Immigration Appeals, advance parole is not considered an entry for purposes of unlawful presence. Even prior to the Board’s decision, being out of status for a few days would not have any effect upon the admissibility of a person like you on advance parole.

Q&A’s published on Lawyers.com and the Epoch Times – 03/10/2017 1. How Long is the Process to Get My Husband Legalized? 2. Will I Lose my Green Card If I File a Tax Return That Shows All My Income Is Earned in Another Country? 3.Can My Expired H1-B Visa Be Reinstated?

1. How Long is the Process to Get My Husband Legalized?

We have one year of marriage and have a son. We have known each other since 2009. My husband has a clean record and no criminal background. Also has been here in the U.S since 2007. He did not enter with visa.

Mr. Lee answers:
The answer depends upon your status. If you have no status, your husband may have to wait until Congress passes a legalization act. If you are a US citizen or permanent resident, you may be able to take advantage of the Administration’s I-601A program under which you would file an I-130 petition for alien relative, have that approved, and then submit an I-601A application for a waiver of illegal presence during the time that he is still here in the US. That application is based upon establishing extreme hardship to you if the waiver is not granted. The waiver would be adjudicated during the time that your husband is here, and dependent upon the results, he would then decide whether to continue his immigration. Assuming that it is, he could then consular process for an immigrant visa interviewing overseas at the American Embassy or Consulate in his home country. As you say that your husband has a clean record, no criminal background, and did not enter with a visa, his interview would be like any other immigrant visa interview since the I-601A waiver would excuse his illegal presence in the US. Kindly note two other things –The viability of the program may depend upon whether it will be targeted by Mr. Trump and if so, whether he will be able to muster enough votes from Congress to end the program.  Second is that the I-601A waiver only excuses illegal presence and not any other grounds of inadmissibility such as drug addiction, chronic alcoholism, membership in the Communist Party or terrorist organization, etc. 

2. Will I Lose my Green Card If I File a Tax Return That Shows All My Income Is Earned in Another Country?

I am a legal resident living abroad. I have been a legal resident for 5 years but have never filed a tax return. What are my chances of losing my GC if I start filing one now?

Mr. Lee answers:
I believe that you are confusing the payment of taxes with maintenance of your green card. DHS knows how long you have been out of the country through its record-keeping of your record of travels and through your passport. Stays outside the US for extended periods of time may subject you to loss of the green card regardless of whether you file US taxes or not. As a US permanent resident, you are obligated to file taxes on your worldwide income. In my opinion, the most damaging aspect of filing taxes immigration wise would be to claim a foreign income exemption as you would be stating on the tax return that you consider yourself a nonresident of this country.

3.Can My Expired H1-B Visa Be Reinstated?

I worked in US from Jan 2009 to Jan 2013 and came back to India for Masters. My Visa expired on Oct 2013. Now since I did not utilized my VISA fully, is there a way to reinstate my VISA, if so how? I heard of cap exempt. Is it applicable here?

Mr. Lee answers:
In your situation, you do appear to be cap exempt if you wish to use the other two years of H-1B eligibility. You have to go through the H-1B process all over again. The only difference is that you would not have to  establish eligibility under the H-1B visa lottery and could file at any time that you have the proper situation. 

Q&A’s published on Lawyers.com and the Epoch Times – 03/03/2017 1. Deportation 2. Applying for a Re-Entry Permit from Abroad? 3. Why My Passport Has No Entry Date?

1. Deportation

RE: Immigration Marriage Fraud “Amendments of 1986, 8 U.S.C. § 1186a…, requiring that an actual family unit still remain in existence at the end of the two year period.” My husband obtained his Green Card in Nov. 2014. He and I started living apart April 2015. He moved from my house in NC to CT. I have not yet filed divorce papers NC but we are no longer an intact family unit. INS does not know this and he has not informed them or of a change of address. Could he be at risk for deportation? 

Mr. Lee answers:
If your husband already has a ten year green card instead of a two-year green card, he is generally not affected by the immigration marriage fraud amendments of 1986. If he only has a two-year green card, he would have had to file form I-751 application to remove the conditional basis of the resident status within the 90 day period prior to the second anniversary of his having obtained the conditional card. At that point, he would be giving U.S.C.I.S. his current address. If he has a 10 year green card, he is still supposed to notify U.S.C.I.S. of his change of address, but no one (as far as we can see) is being deported because of failure to do so. 

2. Applying for a Re-Entry Permit from Abroad?

I am a green card holder and I want to submit a I 131 form to apply for a re-entry permit. I am currently overseas. Am i allowed to send the completed and signed form to a relative in the US and have them forward it to USCIS and then I can just fly back to the US when I receive a letter for my biometrics appointment?

Mr. Lee answers:
It is illegal to file for a reentry permit from abroad. The form instructions clearly require that the applicant apply when he or she is physically in this country.  

3. Why My Passport Has No Entry Date?

I’m a Jordanian citizen , got a 5 years visa through the US embassy in Jordan . I did arrive to the states 2 weeks ago, the immigration officer at Chicago airport asked me how long am I going to stay in the USA visiting, I replied : not sure , could be a month , 2 months or more,  then Later on at the hotel I   I have noticed that my passport does not have an entry date , so apparently the Officer has forgotten to stamp my passport nor he specified the length of time that I could  Stay here in USA . What do I need to do at this point , with taking in consideration  that I’m trying to avoid  Missing up with my 5 years visa as I’m thinking to come back to visit the states again  Back to the states for another visit. 

Mr. Lee answers:
As this is a mistake of the immigration inspector at the airport, you should go back to an international flights airport to the deferred inspection section run by Customs and Border Protection, explain your situation, bring out whatever documents that you have, and try and have your problem rectified.

Q&A’s published on Lawyers.com and the Epoch Times – 02/24/2017 1. Can an H-1B Holder Leave the Country After Filing an I-485? 2. Name Mismatch in Green Card and Passport 3.Marital Status – Visa Lottery

1. Can an H-1B Holder Leave the Country After Filing an I-485?

My I-485 has been filed but I-131 was not filed.  She has an active H1B Visa through Nov 2017. Can we leave the country and return without hurting our application process or her H-1B? There is extra sensitivity around this as I have read that: “if a H-1B visa holder reenters the United States with the Advanced Parole, his/her H-1B status will be terminated. “

Mr. Lee answers:
An H-1B holder can leave the country after filing an I-485, but the question of returning safely depends upon whether the H-1B holder already has an H-1 visa stamped in the passport. If not, the H-1B holder (unless a Canadian citizen) would have to interview with the American consulate or embassy for a visa stamp to reenter the country. In most cases, the visa would be issued even if an I-485 has been filed. But there is always a risk-however slight- with consular processing of an H-1B petition with other issues. So you should be aware of that.

2. Name Mismatch in Green Card and Passport

My question is about green card and passport name mismatch. GC has only first 18 letters of the first name due to character limitation. What is the problem I am going to face while re-entry to US

Mr. Lee answers:
I do not believe that you would have problems reentering the US where the green card can only fit the first 18 letters of your first name. Customs and Border Protection can always look through the database to see your entire name if the immigration inspector so desires. However, the fact that the first 18 letters of the first name are the same as the name in the passport should be enough to convince an inspector that you are who you say you are.

3. Marital Status – Visa Lottery

I am from a not eligible country this year and my fiancée is from an eligible country; we are planning on getting married on mid November but we will both be single by the application closing date (Nov 1st). Should he apply as “unmarried”? or should we apply as a married couple?

Mr. Lee answers:
As you will both still be single by the application closing date, your fiancé should apply as unmarried. If he is selected, you can still be married and immigrate with him at the same time. If in the US, and able to adjust status, you can both put in I-485 applications for adjustment of status when his number appears on the visa bulletin. If overseas, you can apply through submitting form DS-260 immigrant visa application forms. 

Q&A’s published on Lawyers.com and the Epoch Times – 02/17/2017 1. Will My EAD on H-4 Visa Get Approved If My Husband’s Employer Has Withdrawn His H-1B Petition? 2. Can Illegal Alien Register for the Selective Service and Get Citizenship? 3. Criteria for English Test Exemption

1. Will My EAD on H-4 Visa Get Approved If My Husband’s Employer Has Withdrawn His H-1B Petition?

My husband lost job on 15th July and got the I-140 approval on the 18th September filed through the same employer who had got his H-1B approved. However, they had withdrawn his H-1B petition and it had got revoked on the 23rd of September. Can I still file my EAD card since we have his I140 approval?

Mr. Lee answers:
The H-4 EAD is dependent upon your husband maintaining his H-1B status. As a dependent, you cannot exercise more rights than your husband. The energies of both you and your husband should be more on his finding another H-1B position as soon as possible and having that employer petition for a new H-1B.

 2. Can Illegal Alien Register for the Selective Service and Get Citizenship?

Undocumented immigrant or illegal alien entering without inspection (EWI) register for the selective service, can he get his citizenship?

Mr. Lee answers:
At this time, the Armed Forces of the US screen applicants and generally will not allow undocumented immigrants to join the branches. Those should do manage to slip in many times have difficult times in citizenship applications because of the prevarications used in entering the Service branch. The case law is divided on the naturalization eligibility of people who served honorably in violation of the enlistment provisions, and suggests that citizenship may be granted where the wrongful enlistment was innocent as opposed to fraudulent. However, please note that everyone who is not a nonimmigrant including undocumented immigrants is obligated to register for selective service. It seems strange having to register for service that a person will never get a chance to perform, but that is the law of the country. It may be that the US will be less selective if there is a serious war and will require the services of undocumented immigrants at that time.

 3. Criteria for English Test Exemption

My mom has been permanent resident for 12 years, and she is 76 year old. If she applies for Citizenship, can she be waived for English test?

Mr. Lee answers:
Your mother unfortunately cannot be waived for the English test as that is only available for persons who have held the green card for 15 years and are 55 years of age or 50 years and held the green card for 20 years.

Q&A’s published on the World Journal Weekly – 2/12/2017 1. F4 Category

1. F4 Category


I am a U.S. citizen and filed F4 immigrant cases for my two older brothers in 2011.  I got the receipts in 11/2011.  After that, I have not received anything from Immigration.  In 9/2015 and 11/2015 I mailed two certified letters to Immigration inquiring the cases.  F4 category will take about 12 years, but I want to know my waiting in-line’s number.  The receipts I got did not have the waiting number.  I am a law-abiding citizen, filed taxes and no criminal record.  Please tell me what I should do and when my cases will be approved?

Mr. Lee answers:
In cases like yours under the F4 category, U.S.C.I.S. has not given much priority to adjudicating the petitions because it knows that the entire case takes about (as you note) 12 years. The priority date is awarded at the time that the case is filed. Generally speaking, people in your situation just receive the receipt and have to wait years for an adjudication. If you filed a petition in the half of the country controlled by the Vermont service center, or if your case was transferred recently to any other service center than California, the adjudication should be coming shortly. Vermont is currently processing F4 petitions that were filed by 11/7/11. Cases that are transferred to service centers in Nebraska and Washington DC are taking approximately 5 months to adjudicate. The California service center is the laggard, adjudicating F4 petitions that were filed by May 17, 2011. 

Please note that it is sometimes a blessing to have a late adjudication in this category where children of the beneficiary are concerned since the time spent in the adjudication is time credited to the age of the children under the Child Status Protection Act (CSPA).

 

Q&A’s published on Lawyers.com and the Epoch Times – 02/10/2017 1. How Do I Add My Relative’s New-born Child in The I-130 Petition? 2. Applying for Naturalization Almost 3 Years After I-601 Approval and Green Card. 3. ETA Form 9089 – Question

1. How Do I Add My Relative’s New-born Child in The I-130 Petition?

I am a USA citizen and filled an I-130, Petition for Alien Relative, to petition my brother to the USA in 2006. My brother had a new-born daughter in 2007 after submitting the I-130. How to add the new-born child to the I-130 petition.

Mr. Lee answers:
Since U.S.C.I.S. generally does not take nine years to adjudicate an I-130 relative petition, I will assume that the petition is already approved and the file is at the National Visa Center, which can be described as the halfway house between U.S.C.I.S. and the consulate. I will further assume that you have already received some information from the National Visa Center giving you the case number at the agency. You can use that case number and the address on the paper to notify it that your brother has a daughter.  You should also enclose a copy of her birth paper. 

2. Applying for Naturalization Almost 3 Years After I-601 Approval and Green Card.

My husband was convicted of a CIMT (Crime Involving Moral Turpitude) 12 years ago. We already went through the I-601 process… he was approved, and has had a green card for almost 3 years now (by marriage to USC). He was not able to complete probation for that old crime until he entered with a Green Card and has had that probation completed for almost a year now. We want to start the naturalization process but I know about the 5 years of good moral character. Does that count from the time of his actual conviction or from the time he completed the probation for it? 

Mr. Lee answers:
Neither of your dates are correct. Good moral character starts not from the time of actual conviction nor the time that he completes probation, but from the time of the commission of the crime. As the CIMT was committed 12 years ago, he has satisfied the period of good moral character for the crime if you wait the full 3 years before making the application. I do note that depending upon the seriousness of the CIMT, a naturalization examiner can still consider it for purposes of good moral character. 

 3. ETA Form 9089 – Question

I entered the date in dd/mm/yyyy format in Date Signed section of approved FORM 9089. Can i correct it by striking and and writing new date with my initials?

Mr. Lee answers:
While the Department of Labor does not wish anyone to make any changes on the 9089 form while it is being processed, that prohibition against making changes does not apply once the form has been approved. If you made a mistake on putting in the date of signature on the approved form, you can strike it and write in a new date with your initials as you suggest.

Q&A’s published on Lawyers.com and the Epoch Times – 02/03/2017 1. RFE Change of Status H-4 to F-1 2. Possible Fake Visa 3. How Can I Become a Legal Resident?

1. RFE Change of Status H-4 to F-1

I have received an RFE (Request for Further Evidence) which contains two parts: 1. Finances – Proof that I immediately have funds to pay for my expenses. I plan to attach bank statements of my husband for past 3 months along with his pay slips. Statements show amount more than specified on I-20. 2. Residence Abroad to which you intend to return- Submit documentation to establish that you have foreign residence where you intend to reside at the expiration of your stay. Such documentary evidence can include but is not limited to: current telephone bills/utility bills/mortgage statements/rental agreements/rent receipts etc. I do not own any property in India and am in US for past year and half so I don’t have any rent receipts or rental agreement. My husband (sponsor) owns an apartment and we have electricity bills (which has my husband’s name) for it. My husband has written a plain text letter that I am equal owner of that home and we plan to stay there after completion of my studies. Would that be enough?

Mr. Lee answers:
It appears that you will be able to have enough evidence to satisfy the finance portion of the RFE. You might also add your husband’s current job letter and his last federal tax filing if he filed such. As to the portion of the RFE dealing with establishing that you still have a residence abroad to which you intend to return, you can also show items such as bank accounts in India, personal property, memberships and associations or clubs, list of all your relatives in India, etc.

 2. Possible Fake Visa

Possible fake visa Issued in Belgrade on sep 3 2015 valid for 2 years multiple entries visitor to a Serbian passport holder who visited US a number of times before but overstayed visa more than a year and left prior to deportation a month before new visa was issued Control number first 4 digits are 2004 Personal details are printed in bold font upper case letters but control number and passport number are in normal letters and different font photo is black.
                                                                                                                         
Mr. Lee answers:
It sounds like a fake visa, especially if you did not interview for it at the US consulate or embassy. 

3. How Can I Become a Legal Resident?

I’m a visitor and I’m pregnant and I do not want to return to my country.

Mr. Lee answers:
Generally speaking, most immigration to the States comes through family petition, employment petition, immigrant investment, or asylum. Being pregnant and later having a US citizen child will not allow you to become a permanent resident. The law was changed in 1976 to prevent a US-born child from petitioning for the parent until the child is 21 years of age. If you wish to stay, you should consult with an immigration lawyer to go over all your options.