Category: Q&A

1. What Category of Legal Expertise Should I Look For in An Attorney to Represent Me For A Charge Levied Against Me for a TSA Airport Security Issue?

In September, I was stopped by airport security when the body scanner showed a small utility knife blade in my cell phone protective case. I put it there in order to affix my cell phone to a cell phone mounting magnet that I have glued to my car dashboard, so I can see the GPS screen when I’m driving. This was an innocent mistake of forgetfulness, I chose the blade only because it was thin enough to fit, and still be effective. I affixed it a year before I even knew I’d be flying, and forgot about it. I have significant memory problems due to severe chemo therapy I endured in 2010, when I had stage four neck cancer. I am officially disabled, partly due to these memory problems. I had already flown twice, a few days prior and was on my way home, when this happened. I cooperated fully, provided my background as a business and community leader and a candidate for the US House of Rep. in 1992.I am concerned that if I pay the fine I’ll be deemed “guilty” and have limited rights. 

Mr. Lee answers:
I believe that if the TSA was looking to prosecute you, it would likely have done so by this time. That being said, any action would likely be of a criminal nature or border on the criminal and so I imagine that you would probably look for a criminal defense attorney. 

2. Where Can I Find the I-94 Number On The Visa?

Mr. Lee answers:
The I-94 number is not on the visa. It is given to a person upon arrival in the US by Customs and Border Protection. You can access the number along with your entry record by going to https://94.cbp.dhs.gov  if you entered in May 2013 and later in any legal manner other than by land. Prior to that time, physical I-94 cards were given to all legal nonimmigrant entrants to the US with the numbers on the cards. 

3. Selective Service

I am US citizen and came to US on a F-1 visa in January, 2000. When I came I was 25 years told and did not register for selective service as I was on a full-time F-1 Visa. I turned 26 in September, 2000. I was on a Full-time F-1 student in spring, 2000 and changed university and took part-time course work during summer 2000 in another university and again changed to a different university in Fall, 2000 and completed my graduate degree. I was in legal status in F-1 visa for 3 years before changing my status to H-1B. Now I got federal offer and they are asking for evidence to prove why I have not registered for selective service. I have provided copy of my F-1 visa and enrollment dates from universities I attended. In Summer I enrolled only for one month. Wanted to find out if I am in legal compliance with selective service. 

Mr. Lee answers:

You are legally in compliance with selective service law and should be able to obtain verification from the agency that an individual who is in valid nonimmigrant status in the US at the age of 26 is not required to register for selective service. All other individuals including those who are illegal should register.

1. Planning for Next Year’s H-1B Selection in April, Please Advice.

I will need to have an H-1B visa as I recently graduated and have optional practical training (OPT) until July 20, 2019. I am not in a STEM major and will not get extra practical training. I have a Masters in Asian studies and a bachelors in biochemistry. I am interested in working for a US company that does import and selling of textile clothing from Asia. Am I a good candidate for an H-1B from this company? 

Dear reader, 
I do not believe so based upon your degrees and the your general description of the business of the company. An H-1B is a specialized occupation visa under which the position offered by the company must require a degree that you have. Unless there is more, I do not see how a biochemistry or Asian studies degree would be a requirement for any position that this type of company might have. Unless there is something that is more unique about this company, I suggest that you look for another organization with need for the knowledge that you acquired in your schooling.

2. Is It Safe for Me to Go To l-130 Interview As I Have Order of Removal?

I have an order of removal from 2005 and am married to a US citizen and we filed the I-130 petition to prove that the marriage is real and to start the process of my I-212 waiver of removal and I-601A waiver of my 10 year bar for being in the US illegally. We are being scheduled for an I-130 interview at U.S.C.I.S. in December. Should we go or should we not? My lawyer says that the choice is up to us. 

Dear reader, 
Unfortunately lawyers cannot give definitive answers in this situation. Under the Trump administration, there are reports of individuals going to I-130 interviews in your situation and being detained and ultimately deported by Immigration. At the interview, three things can occur – you could have an uneventful interview and you and the spouse go home afterwards, or you could be picked up by ICE and allowed to leave with your wife after processing with an order of supervision, or you could be picked up by ICE and detained while ICE attempts to put you on an airplane back to your home country. You will have to weigh the risk against the idea that the I-130 petition will be denied if you do not attend the interview and you will lose any chance now to regularize your status.

3. How Can I Provide a Medical Certificate of Birth If I Do Not Have One?

I am from China, born in 1980, and I am applying for adjustment of status based upon my marriage to a US citizen. We just received a request for evidence that I provide a medical certificate of birth. How am I to answer that since I do not have a medical certificate of birth? I provided a notarial certificate of birth.

Dear reader, 
U.S.C.I.S. generally goes by the Foreign Affairs Manual of the Department of State which indicates which documents are available and the most reliable from each country. For China, it indicates that the best evidence is a notarial certificate of birth along with a medical certificate of birth. However, it also notes that the medical certificate of birth only became widely available starting in 1996. In addition, many births in China were not done in the hospital, and so even with births after 1996, many people do not have medical certificates of birth. I suggest that you or your legal representative point out that medical certificates of birth were generally not issued at the time that you were born in 1981. If you were not born in a hospital, you can also state that. You can also obtain statements from your parents confirming the reason why you do not have a medical certificate of birth.

4. My I-485 Adjustment Status Application Has Been Pending For Two Years – What Can I Do?

I received my political asylum in 2015 through religion, filed for my adjustment of status one year later through form I-485, got the receipt, took fingerprints, but have heard nothing else for over two years. I and my lawyer have tried to track my case over the past year without success. What can I do?

Dear reader,
I assume that you and your lawyer have gone through numerous conversations with the National Customer Service Center of U.S.C.I.S. and perhaps a number of infopasses at the local immigration office without success. At this point, you can attempt to involve your local congressman or senator to see whether he or she can help to move your case. Failing that, you may consider launching suit against U.S.C.I.S. in federal court. However, please be aware that suing in federal court does not mean that you will win your case. If there are factors in your case that might be negative, a suit may bring about higher scrutiny and ultimately a fast denial of the I-485 application.

 

1. How Does a Student in Haiti Qualify for US Visa?

I am a U.S. citizen and we apply online D160 visa application and my sister went to the interview today and they told her she does not qualify.

Mr. Lee answers:
I will assume that your sister applied for a visitors visa to the US. Such visas are given in the discretion of US consular officers taking into account the circumstances of the applicant including age, job, resources, property and other ties in the home country. Your being a US citizen could be seen as a negative factor on the question of whether your sister has nonimmigrant intent. I suggest that your sister strengthen her application by having more ties to the home country and be prepared to show those ties to the US consular officer the next time that she applies for the US visa.

2. Deportation During Entry into U.S.

My friend from Singapore was coming to visit me and see his American born son and while going thru immigration he was pulled aside, they did a review of his records and found that before he left 8 yrs ago after his divorce from an american citizen he had overstayed his previous visa. He has been back twice during this year already and had no issues and returned according to his visa guidelines. Is this going to be a huge issue going forward?

Mr. Lee answers:
In your summary, you said, “Deportation during entry into US,” and by that, I assume that Customs and Border Protection actually deported him back to Singapore. In that case, he has a five-year bar against returning to the US. If he believes that the judgment was unfair, he can request a review of the decision from the port director of the port of entry. Otherwise if he has very good reason for returning to the US before the five years, he can request advance permission to return on form I-212 after visa interview and denial to the Admissibility Review Office of U.S.C.I.S. if applying for a nonimmigrant visa, or to the Phoenix lockbox of U.S.C.I.S. if applying for an immigrant visa. It is indeed a huge issue returning to the US if an individual has been given an order of removal at the port of entry.

3. Do I Need to File Green Card Application Again for the Same Person?

I was filing for my husband to become resident; we got divorced and stopped the case. We are engaged and I want to file again.  Do I have to start a new case or go back to the old case? The old case was done in 2002.

Mr. Lee answers:
As you stopped the case so long ago, you would have to start all over again to make your husband a resident. The law does not allow you to get two bites at the apple with the same coin.

 

1. I Applied H-1B in April, But Still No Decision Is Made and It Is November – What Can I Do?

I graduated with a Masters degree in computer science from Purdue University in 2017 and was given optional practical training (OPT) until August 2018. In early April, I and my company filed for an H-1B visa for me and I was selected. We received a request for evidence, which we responded to in late July. Since then it has been three months and we have heard nothing. Am I still legal since I hear that the H-1B cap-gap status only lasted until September 30?

Dear reader,
This is unfortunately a common situation that you are encountering as U.S.C.I.S. has not finished adjudicating many of the H-1B petitions that it was given in April. It has further perversely stopped premium processing, saying that the freeze will remain in effect until February. Thus the ability to pay U.S.C.I.S. an additional $1410 to expedite an already delayed application is lost consigning H-1B companies and beneficiaries to a limbo status. Persons having cap-gap status until September 30 (a device wherein U.S.C.I.S. allows those who have OPT past the H-1B filing date in April to remain and work until September 30 if they are selected and their petitions are still pending) are no longer authorized to work after that date until and unless the H-1B petition is approved. Without premium processing, they remain in limbo unless they leave the country or become F-1 students again or have some other viable option. Under U.S.C.I.S. regulations, they are allowed to remain in the US awaiting adjudication of their timely filed petitions. If the petitions are ultimately denied, they should hopefully be considered to still be in a grace period until 60 days after September 30 under the reasoning that cap-gap is part of F-1 status and the ending of F-1 status automatically invokes a 60 day grace period. Hopefully you will receive an adjudication before that time, and that it will be favorable.

2. Is EB-5 for China Still Open? If Not What Are The Alternatives?

I am fairly wealthy in China and looking to emigrate to the United States. I do not have any relatives here, and am mainly interested in immigrating through the EB-5 investor visa. However, I have heard from people lately that it will take a long time. Is this true? If that is so, what are some other options? 

Dear reader, 
Because of the high demand by natives of China in past years for EB-5 investor visas and the limited numbers which are available under the law, U.S.C.I.S.’s Ombudsman has estimated that a person born in China starting a new EB-5 case now would have to wait approximately 14 years to obtain a conditional green card. For that reason, some individuals from China who have started EB-5 cases have recently asked to have their cases stopped and for a return of their money. For individuals from China who either own or are managers or executives of decent sized companies (50-100 or more employees), the acquisition of a company in the US (15-25 or more employees) could provide a path to an L-1 intracompany transferee visa and ultimately a transfer to the green card through the EB-1C multinational executive/manager route which would take approximately 2 years at present. In addition, a manager or executive in China who wishes to become a manager or executive in a US company which is unrelated to the individual’s present employer may be able to have the US company sponsor him or her for the green card through a PERM labor certification under either the EB-3 category for those with bachelor’s degrees or two years of required working experience, or under the EB-2 category for those with advanced degrees or who have exceptional ability. Immigrating under EB-2 or EB-3 would take approximately 3-5 years.

3. U. S. Citizen Residing in Hong Kong Wants to Immigrate Mother – Any Problems?

I am a U. S. citizen through my wife 10 years ago, and we both went to Hong Kong 4 years ago to live. We are both comfortable there with jobs and children and no plans to return to America to live in the near future. The problem is that my mother wants to join my older brother in the U. S. as our father recently passed away, and he has only been a permanent resident of the country for 2 years. He says that he needs to be a citizen to apply for our mother. I would like to help out, but just wonder what my obligations would be.

Dear reader,
You are right to be concerned. Under the immigration laws, you will have to provide an I-864 affidavit of support for your mother to guarantee that she does not become a public burden. Because your income is not US-based, there may be difficulty with the U. S. Consulate accepting your support affidavit alone. You may have to have a financial joint sponsor file a separate I-864 affidavit of support – perhaps your brother. However, that does not end the matter as a valid I-864 requires that the petitioner demonstrate that he or she has or will have a domicile in the U. S. You will have the burden to prove by a preponderance of the evidence that you will establish a domicile in the U. S. on or before the date of your mother’s admission under an immigrant visa. The Foreign Affairs Manual which is used as instruction by U. S. consuls gives examples of possible evidence such as opening a U. S. bank account; transferring funds to the U. S.; making investments in the U. S.; seeking employment in the U. S.; voting in a U. S. election, etc. Without such a showing on your part, there could be a problem with your mother’s ability to become an immigrant. I also note that the window of time to sponsor your mother for U. S. immigration may be closing as the Trump administration wishes to do away with the parent category altogether.

 

1. K-1 Petition & Police Report

My K-1 petition for my fiancé to join me in the U.S. has been approved. We are in the interview process. Noticed a document required for interview is police report.  Are police records for each country he has lived in for 6 months or more over the age of 18. He is a refugee an unable to obtain these records. Are there any alternatives?

Mr. Lee answers:
Although no guarantee of success, your fiancé can show proof that he has attempted to obtain police records from the countries in which he has resided for six months and more since the age of 16. A good-faith effort such as giving all pertinent data about himself including addresses in each country and the specific period of time spent there may be helpful. Proof of delivery to the appropriate organ in the countries would be part of the good-faith effort. The appropriate agencies in each country for police records are contained in the Foreign Affairs Manual of the US Department of State.

2. Can I Change my Current H-1B Visa to OPT Status?

I entered US on F1 to do PhD degree in computer engineering. After I finished all the degree requirements except the dissertation, I have been employed as a visiting instructor and my employer changed my F1 visa status to H-1B for one year only, which is the actual duration of the contract. After that my school informed me that my SEVIS F1 record has been Terminated. As my contract is now approaching its expiry date, can I apply for an OPT visa instead? 

Mr. Lee answers: 
Optional practical training (OPT) is only allowed for those who are in F-1 status. Unless you are back in F-1 status, there is no authority to allow you to change from your present H-1B to OPT.

3. H-1B Visa Fraud

I had filed my H1B visa through some consultant called iLogic 8:53 pm. My application got picked in lottery but then consultant had to withdraw since he had filed one LCA for 4 applicants 8:54 pm I had paid him 5K dollar, he said if visa doesn’t happen he will return back $3.5K  but now he is refusing. Is there a way where I can get justice?

Mr. Lee answers:
Probably the best suggestion is to initially contact local agencies such as the Better Business Bureau or Consumer Affairs to see whether they can be effective in having your money refunded. There may also be other resources available, such as the immigrant affairs unit of the New York County District Attorney’s Office which attempts to resolve situations for victims of immigration fraud.  Failing that, you could go to local law enforcement and file a complaint against the consultant for fraud if the facts are as you state. 

 

1. How to Add A New Born to a Pending I-130 Petition?

I’m U.S. citizen. My wife’s I-130 is pending in NVC now. We just had a newborn baby in India. I have not been “physically present” in US for 5years – because although I have resided in US for 5 years, I have taken 2months trip each year to India. Now, how do I proceed for my newborn baby’s case? Can I join him to my wife’s petition or do I have to file a new I-130 for him? If a new I-130 is required, what happens if my wife’s case finalized before my son’s case?

Mr. Lee answers:
As you are a US citizen, you filed a non-quota immediate relative petition for your wife which has no allowance for dependents. Your best action at this point is probably to file an I-130 petition for your newborn baby and the two cases can hopefully be joined together at the NVC or at the US consulate or embassy. This is not an uncommon situation, and you or your attorney can slow down your wife’s case in the consular processing stage to allow your newborn baby’s case to join up.

2. US Green Card Holder Imprisoned in Canada. Green Card is Expired And Have Served in Canada. Can He Come Back to US?

I am a Hong Kong citizen with now an expired green card. My family are all U.S. citizens. I have traveled aboard to Canada many years ago, and was wrongfully convicted for a drug related offense. I am nearly finished with my sentence in Canada, and will be deported back to US. I would like know what is going to happen once I am back to U.S.? Would I be allowed to renew my green card, or would I be deported to Hong Kong? Also, would U.S. detente me for a crime which I did not commit in Canada?

Mr. Lee answers:
If you are deported back to the US by Canadian authorities, the US Department of Homeland Security would know and would likely begin proceedings to challenge your right to remain in the US with the green card. Whether or not to detain you would likely be a joint decision of Customs and Border Protection and Immigration and Customs Enforcement.

3. In USA on B1/B2 Visa, How to Stay Permanently?

Approved till Feb. 2017. Citizen of Bosnia & Herzegovina. 33 years old, Male, Master degree in agriculture.

Mr. Lee answers:  
With a Masters degree in agriculture, a likely way to stay permanently may be through the employment based categories which require sponsorship from a US organization. There may also be other options available. I suggest that you make an appointment with a knowledgeable immigration lawyer who can go over all options with you.

 

1. Does My Boyfriend Need a Fiancé Visa If He Has a 10-year Tourist Visa?

My boyfriend and I have known each other since April 2016. He came to visit his best friend in the states in January 2018 and we met. We started dating. He stayed for three weeks. Went back to Jerusalem and he came back to visit me after 30 days. The second time he stayed for two months. He left in April. Then he visited me again in June and stayed for 3 months. He left on September 9th. He has a 10 year tourist visa. From my understanding he can only stay here 6 months total out of the calendar year. Do we have to get a fiancé visa for him to come back so we can get married? Or is it okay if he comes back in a few months and we get married and adjust status. What is the best option?

Mr. Lee answers:
A visitor to the US makes an assertion that he or she only plans to stay here for a visit and then go back to the home country. An individual intent upon marrying when coming to the States is best advised to obtain a K-1 fiancée visa. U.S.C.I.S. discourages individuals from using the tourist visa to get married and adjust status in the US as that is an abuse of the visa.

2. C-1D Illegal Immigrant Wants to Apply Any Visa

I was an illegal immigrant who stayed with C-1d Visa in the USA from Sep 2009-May 2014. I am now in India for the past 4.5 years. Can I apply to USA anytime soon for any visas?

Mr. Lee answers:
If you were in the US under a C-1/D visa for the period of time that you state, you would be barred from reentering the US for 10 years from May 2014. If you have good reason to return to the US on a temporary basis and are eligible for a non-immigrant visa, the US consulate or embassy may allow you to apply for a temporary waiver of the 10 year bar. (If a Canadian citizen, such an application would be made to U.S. Customs and Border Protection). The request for waiver would then be forwarded to The Admissibility Review Office of U.S.C.I.S. which would make the final decision on whether to grant you a waiver. Additionally if you have a basis to immigrate and are at the immigrant visa interview stage, you might be able to seek a waiver of the 10 year bar if you have a spouse or parent who is a US citizen or permanent resident and would experience extreme hardship if the waiver was not granted. The request for waiver would be made to U.S.C.I.S.’s lockbox in Phoenix Arizona, and the expected time to decision would be approximately 12-16 months.

3. G-1 Visa to B-1 Visa

I’m actually on a G-1 visa (my father works in an international organization).  He retired and will no longer be on that status. I would like to change my status. And I’m looking for a college to apply for an LLM/JD program for the January 2019 semester. I wanted to know what I should write on my letter explaining the reasons why I would like to change the status. 

Mr. Lee answers:
B-1 is a business visa and not appropriate in your case. A common reason which individuals in your situation of dependent whose status is ending give is to spend more time taking care of arrangements before having to leave the country.

 

1. I Am From India and I Am Living and Working As Caregiver Since 6 Years in Israel. I Want to Visit to USA for Meet My Younger Brother.

Mr. Lee answers:
If you have been living and working as a caretaker in Israel for six years, you could apply for a B-2 visiting visa from Tel Aviv or the American Embassy consulate in Jerusalem. Visitors visas are given in the discretion of American consular officers and you would have the burden of proof that you do not intend to remain in the US past the time that you are requesting for visiting in the States. The fact that you are a third country national in Israel will be taken into account, but also the fact that you have spent the last six years in the country. Your brother’s presence in the US would be taken as a negative factor if he did not hold legal status. If holding legal status, that would be a good factor as he could also guarantee financial support if capable. Even if he is a US citizen, the fact that he could also sponsor you for permanent residence is not much of a factor since the waiting time (now approximately 13 years) is so long as to almost negate any semblance of immigrant intent.

2. Can F2 Visa Holder Start a Partnership Company As An Investor?

My wife is currently holding F2 visa. We have already filed I-526 petition for our EB-5 program. Her friend who is a green card holder likes to start a partnership company with my wife. To establish the company, my wife’s SSN and ITIN are required. (She had a job during her OPT so she has ITIN). My wife will be a passive investor/owner without operating company and drawing income. Is there any violation which would sabotage our I526 petition or even future I-829 petition? Is there anything else we should pay attention?

Mr. Lee answers:
As long as your wife is a passive investor, there is nothing in the law that prevents your wife from establishing a company in partnership with anyone else. Such an act does not constitute unauthorized employment.

3. I’m On the Process of Getting a Divorce From My Spouse Who Has a Conditional Visa For 2 Years

He wants to use our daughter to have his conditional visa removed. His lawyer is saying that if he has a shared legal custody, he will be able to have his green card. But I don’t want that. He doesn’t care about our daughter when we are still together and all of a sudden, he cares so dang much. I feel like he is using our daughter to only get his green card. He always talk about how soon he can get his permanent card and now I realized that he was all about that.

Mr. Lee answers:
It would be fairly difficult for U.S.C.I.S. to deny your spouse’s removal of the conditional basis of his residence status since you have a common child. U.S.C.I.S. is mainly concerned with whether there was a bona fide marriage and not one done for favor or profit. A child together is strong evidence of a bona fide marriage.

 

1. Came to U. S. As a Student, Have Stopped Studying, And Ask if I Can Apply for Political Asylum Based on My Experiences in China?

I came to the U. S. to study film at a college in California. Because of economic problems with my sponsor, I had to quit my schooling in May 2018. I just got a letter from the school telling me that I am out of status, and will have to leave the U. S. or ask for reinstatement. At this time, can I apply for political asylum based on my background in China in which I was a photographer for a city newspaper, took photographs of people in protest against government corruption which were published, and because of that was beaten and arrested by the local police? I was detained for a week but not charged.

Dear reader,
The U. S. grants political asylum based upon past persecution or well-founded fear of persecution based upon race, religion, nationality, social group, or political opinion. In your case, the reason for which you took the photographs of protest may determine whether your case falls within “political opinion.” If you had no motivation for taking the pictures other than to earn money as a photographer, then you might not qualify. Otherwise it would appear that your case has merit. Whether it can be approved on the basis of past persecution depends upon the severity of the beating and imprisonment. Because of the fact that it has been 3-4 months since you quit your studies, I suggest that (if you are qualified based on the above) you apply as quickly as possible. For persons who held legal status in the States, U.S.C.I.S. expects an asylum application to be filed within a “reasonable period of time” after the ending of the status. 6 months is considered the outward limit of reasonableness with some immigration officers believing that 6 months is already too late, and so we believe that the earlier the better in your case.

1. What Are the Steps to Legalize My Spouse?

I am a US citizen and my husband is here illegally and did not enter with visa.  We have a two month old baby together.  He has no criminal background not even a citation and has paid his taxes every year and has worked with his legal name.  What are the steps I need to take for him to become a US resident? Is it possible for me to apply by myself for him? Due to economic reason, I cannot pay a lawyer.  

Mr. Lee answers:
If your husband entered the US on a parole status instead of a visa, you could possible work to adjust his status to permanent residence n the US without leaving.  The major forms that you would be dealing with would be the I-130 relative petition and the I-485 adjustment of status application.  If he entered the country illegally without being paroled, does not qualify under section 245(i) as having been the beneficiary of a labor certification application or immigrant visa petition by April 30, 2001 and being physically present in the US on December 21, 2000, you may think of processing under the I-601A program which allows an advance waiver of the penalty for being illegal in the US for a period of time.  The relevant forms for that would be the I-130 relative petition, and after that is approved, the I-601A application form for a provisional waiver.  If approved, your husband would ultimately complete his case at the American consulate or embassy in his home country, but if everything else is okay, he would be allowed to come back with an immigrant visa right after the interview.  For further information you can check out the USCIS website at uscis.gov.

2. What Is The Best Option for a Legal Permanent Resident to Get the Spouse From a Foreign Country?

Other than petition, what would be the fastest and easiest way for an LPR to get the spouse from foreign country, Philippines and how long will it take?

Mr. Lee answers
The best way would be for the LPR to become a US citizen and to petition under that category. Failing that, some other options could be through the immigration investor EB-5 program if your spouse has the wherewithal to invest, or he might qualify for a working category with dual intent such as H-1B specialized worker or L-1 intracompany transferee. Also if your spouse is an extraordinary alien in a specific field, he may be able to qualify under an O-1 nonimmigrant visa or EB-1A immigrant visa.

3. Which Eligibility Category Exactly Am I Under If My Visa Expired and Then I Got Married While Being Out of Status?

Mr. Lee answers:
You are illegal when your visa status expires. If you are married to an undocumented immigrant or green card holder, your status would still be illegal. In the event that you marry a US citizen, and you file for an I-485 adjustment of status application, you would be in a U.S.C.I.S. state of grace while the adjudication is ongoing.