Category: Q&A

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.

 

1. H-1B or L-1 and Then Green Card?

I have a 3 year degree in accounting, and have been the accounting controller in our family business in Taiwan (35 people in company and $3 million USD in sales) and want to be in the U. S. under H-1B or L-1 status with the ultimate goal of getting the green card. The company has a subsidiary in Canada with 10 employees and will start up a new company in the U. S. with me at the helm, initial capitalization of $100,000, and the initial plan in the first year is for the company to have 3 people including myself and U. S. sales of $750,000. What is the best approach?

Dear reader,
H-1B visas for private companies are capped in number and applications are only accepted at the beginning of April. The employment would have to be for a specialty occupation. A good time to start the case is in January.  2 possible problems are that you do not have a four-year baccalaureate degree in accounting and that the new company that you are starting would seem to be quite small to have the need for an accounting professional or manager. A startup L-1 is possibly a better option, but would have to include a solid business plan as to how the company plans to expand within the next year. Assuming that the visa is approved, U.S.C.I.S. would only give a period of one year, and the U. S. company would have to apply for an extension of your status by showing its growth after the first year. Assuming that it grows well, it could then sponsor you for permanent residence under the EB-1C multinational executive or manager category if you were transferred to the U. S. in an executive or managerial capacity. This is a fairly quick route to immigration and can usually be accomplished within 1-2 years after the EB-1C application is submitted. Please note that if the company does not grow, U.S.C.I.S. may have problems in granting you an extension for permanent residence. If you and your Taiwan company see possible problems with growing a small company in the U. S., you may wish to rethink your plans and attempt to acquire an existing company with employees and sales. Such could pave the way for easier entry under both L-1 and green card.

2. I-601A

I sneaked into the United States in 1995, applied for political asylum in 1996, lost and was ordered deported in 1998. My mother came to the U. S. in 2006, applied for me in January 2007, and became a U. S. citizen in 2010. I got married in 2016, my wife has the green card, and we have 3 children – 3, 4, and 7 years old. She has tried twice to become a citizen, but cannot pass the English test. How can I get my green card?

Dear reader,
Under the expansion to the I-601A program, you may be able to ultimately immigrate to the U. S. For you to do that, you can probably use your mother’s petition for you as the base. For the month of June 2018, the available date for the F-3 category of married sons and daughters of U. S. citizens is up to 3/15/06, and so the time for visa availability is probably between 1-2 years. In the meantime, you can file an I-212 conditional application for permission to reapply for admission into the U. S. after deportation or removal with the local U.S.C.I.S. field office. Such application would look at your immigration record, any criminal record, and all of your equities. Assuming that such is approved, you would then file for an I-601A application for provisional unlawful presence waiver with U.S.C.I.S. in which the standard for adjudication is whether there would be extreme hardship to a U. S. citizen or permanent resident spouse or parent if the waiver was not approved. If both the I-212 and I-601A applications are approved, you could then complete consular processing and return overseas to the home consulate or embassy, where you would likely have a normal immigrant visa interview and be able to return to the U. S. with an immigrant visa.

1. U. S. Citizen with Overseas Business Wants to Sponsor Mother for Permanent Residence – Problems?

I became a U. S. citizen in 1996 and have spent most of the last 10 years in Taiwan conducting a successful professional business. My mother (80 years old) now wants to immigrate to the U. S. to join my brother and sister. Our father passed away 5 years ago. My brother and sister only have green cards, and so I would have to be the one to petition. Can I do that without problems?

Dear reader,
There are no confines on the length of time that a U. S. citizen can be outside the United States. That being said, the immigration laws do require that you demonstrate domicile in the U. S. at the time that your mother will be interviewing for permanent residence. The demonstration of domicile is one of the requirements of the I-864 affidavit of support form that you would have to fill out. In discussing the notion of domicile, the State Department believes that the I-864 can be accepted if the petitioner satisfies the Department of State officer by a preponderance of the evidence that he or she will establish a domicile in the U. S. on or before the date of the intending immigrant’s admission and the Foreign Affairs Manual (FAM) gives examples 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., registering children in U. S. schools, and voting in a U. S. election.

2. Just Got Green Card From Marriage, Want to Sponsor 20-year-old Son in U. S., But Any Problems With His F-1 Visa?

I married a U. S. citizen who applied for me and I just got my conditional green card. My son was over the age of 18 at the time that we got married, and so he could not be included. He is 20 years old, and studying in the U. S. at Princeton University. He is afraid that if I file the petition for him, he will have a problem in traveling in and out of the U. S. in the future. Is that true? If so, what can we do? His visa is good until 2019.

Dear reader,
An F-1 student should have nonimmigrant intent, and the filing of an I-130 petition can be taken as an indication that your son does not have that requisite intent. At the present time, he could likely travel in and out easily until the expiration of the visa even if you file an immigrant petition for him. The difficulty may come up if he decides that he wishes to renew the visa in 2019 (please note that he does not necessarily have to have the visa renewed to remain legally in the U. S as the visa only controls travel in and out of the States and he is legal as long as he maintains a valid I-20 and keeps up his full-time schooling). At that point, he would have to disclose that an immigrant visa petition has already been filed on his behalf. Depending on the consular officer, he or she may or may not issue the visa. Arguments on the side of issuance are that your petition for him would take a number of years before your son could immigrate and that your son’s studies would end long before the immigrant visa is available. If you decide to do that, the I-130 petition should be marked for consular processing instead of for adjustment of status to emphasize that point. Another alternative is that you can leave it to your son to find another way to immigrate in the future as many F-1 students ultimately remain in the States through employment immigration or marriage. The difficulty there is that a failure by your son to find a sponsoring employer or life partner can ultimately waste more years during which his immigration petition through you could be moving forward. So unfortunately, there is no bright line choice, and you and he will both have to assess the possible risks and rewards of your future actions.

3. Came as K-1 Fiancé, Did not Marry, Now Married to Another U. S. Citizen with 2 Children – Can I Adjust Status to Permanent Residence Through My Wife’s Petition?

I entered the U. S. in 2002 under a K-1 fiancé visa, stayed with her and her family for about 6 months, but we never married like we were supposed to. We had arguments and she always threatened to send me back. We split up after 6 months, and I got into a relationship with someone else in 2010, got married in 2011, and we have 2 children ages 5 and 6. Can my wife do something for me to adjust my status to permanent residence since we have a marriage they can be proven as real?

Dear reader,
The law does not allow adjustment of status where an individual entered the U. S. under a K-1 and never married the petitioner. Your wife could apply for an I-130 Petition for Alien Relative for you, have that approved, and you could return to your home country for an immigrant visa interview with 2 obstacles – you would have to convince the American consular officer that you did not engage in fraud or misrepresentation when you entered the country under the K-1 visa, and you would have to ultimately file an I-601 waiver application for the ground of excludability of being in the country unlawfully for a year which carries a 10 year bar. If the waiver is approved, you would be able to return as a permanent resident.  Assuming that all goes well, please note that the period of time that you would be outside the U. S. would be approximately 9 months-one year.  Alternatively, you could do nothing and if caught by ICE, you could apply for cancellation of removal (the 10 year green card) before the immigration court. You would have to prove 10 years residence in the U. S., good moral character, and that your removal would cause exceptional and extremely unusual hardship to your wife and children. Please note that cancellation of removal is only available when you are before the immigration court, and is not an application that you can give to U.S.C.I.S.  Because of the difficulty of having cases placed in proceedings affirmatively before the immigration court, some lawyers and consultants have resorted to filing political asylum applications with or without the knowledge of their immigrant clients to get their cases for cancellation of removal before the court, a practice frowned upon especially where the asylum case has little merit.

4. Problem with the In-laws and We Got Divorced – Can I Still Get My Permanent Green Card?

I came into the country in 2014 as an F-1 student, maintained my status, and married my husband in 2016. We applied for my green card and I got a conditional green card in January 2017. We were living in Ohio since we both went to school at the same university there, but after graduation in June for both of us, he wanted us to move back to California to be with his parents. His parents and me do not get along, and so my husband and I argued a lot, and got divorced in November 2017. I have kept all of our documents. Can I still get a permanent green card at this time?

Dear reader,
The law allows conditional permanent residents to obtain permanent status if they are able to prove that they had a bona fide marriage at the inception. In your case, you say that you have kept all of the documents, and that would be very much of a help to prove that you did have a bona fide marriage. As you are now divorced, you do not have to wait to file within the 90 days before the 2nd anniversary of your obtaining conditional residence. If you wish, you can file for removal of the conditions on your residence status (form I-751) at this time with all proof of the bona fide relationship.

1. If My Boyfriend Was Almost Killed in His Country Can He Get Asylum Even Know He’s in Jail For Illegal Entry Twice

My boyfriend was here once before got sent back but almost got killed when he got better he fled and got on federal probation while we lived got raided they charged him with illegal entry for the second time.  But he can’t go back they will kill him and I also gave some info to help catch somebody and worked with an officer to get my boyfriend good help and probation was happy and everything do you think know he’s got a chance.

Mr. Lee answers:
If your boyfriend has the probability of being persecuted in the home country, he may be able to stay here in the country even though he may have had a prior order of removal. When DHS attempts to reinstate the prior order of removal, he can still make an application for withholding of removal or withholding under the Convention against Torture in which he will have the burden of proof of showing that it is more likely than not that he would be persecuted. The immigration judge in most instances withholds action on the case while DHS sets up a reasonable fear interview. Assuming that he passes that, he would have his day in court to apply for withholding of removal.

2. My NVC Case Preference Category Was Changed From F-2B to F-1

My question is can I ask to keep my case at F-2B? What I can do in this case?

Mr. Lee answers:
To keep your case preference F-2B, you would have to have the assent of U.S.C.I.S. and communicate back with the Service center which approved the I-130 petition. There is no set procedure for doing such, and so it may take quite some time before U.S.C.I.S. confirms that you may keep your F-2B visa classification.

3. U.S. Citizen Wants to Apply Green Card for His Wife While Both Living Abroad

I have two question regarding my sister immigration status. She and her husband are living in Iran now, and his husband is a US citizen an wants to apply green card for her. My first question is: 1) Since his husband does not have bank account in US now, can she list me as her financial supporter in her application? (I am living in US on H-1B visa) 2) is it required that his husband proves that he intends to live in US? If it’s needed how he can support his intention? 

Mr. Lee answers
Unfortunately you cannot be a financial supporter in an immigrant visa case. A cosponsor can either be a permanent resident or US citizen. At the time that the wife will be interviewing at the US Embassy for the green card, the husband will have to prove domicile in the US. Domicile can be shown in a variety of ways, such as possession of a US home, US job offer, US bank accounts, a recent pattern of voting in the US, etc.

 

1. Family Sponsored Immigration Visa

I am a US Citizen and in 2007 I completed the application process to sponsor my brother to come to the USA. As of now, we are not sure what the status is. We have both called the NVC and they cannot provide an answer as to why it is taking so long, if there is an issue or provide an estimate of when the visa will be provided. What other options exist for us at this point because at this rate it may about 25 years for this visa to be processed.

Mr. Lee answers:
The status of your case appears to be that the 1-130 petition has already been approved and your brother is waiting for the priority date of 2007 to become available before he can immigrate. Currently the process is taking approximately 13 years for persons born in most countries of the world except for India, Mexico and the Philippines which takes longer. As your brother has already invested 10+ years in the process, he probably needs to only wait another 3 years or so to immigrate if from any country other than those three. If he has good education or working skills, he may be a candidate for employment-based immigration. If he has much monies, he could conceivably look at the US immigrant investor scheme to immigrate. For those options, he or you may wish to consult an immigration attorney for details.

2. Come Into U.S. Illegal What Is The Option to Get a Green Card

I came here by Porto Rico I am on paroled, I am married now my wife filed for me so now what to do with the other case they gave me an I-94.

Mr. Lee answers:
It is unclear what you mean by reference to “the other case.” If there are complications, you should of course consult with a knowledgeable immigration attorney. The below advice pertains to a situation in which an individual was paroled into the country without further complications such as removal or exclusion proceedings. If you were paroled into the US and are now married to a US citizen spouse who has already filed for you, you may be able to adjust your status to permanent residence without leaving the country as the immigration laws allow adjustment of status to those who are either inspected and admitted or paroled into the country. If your spouse has a green card, you may decide to wait until she becomes a US citizen. If unable, impractical, or unwilling to become a US citizen, you and she may decide to explore the Administrations I- 601A program under which persons who are barred by their unlawful presence in the US may be able to obtain a provisional waiver of the 3 or 10 year bar, and complete their immigration by interviewing for an immigrant visa at the US home consulate or embassy. The waiver would be based upon extreme hardship to your wife If you are not able to remain with her in the US.

3. In Removal Proceedings

I am currently in removal proceedings and would like to inquire whether I can obtain a driver’s license. I have an approved I-130.  Can I obtain a driver license with the I-130 and my passport?  I have a proof of address.

Mr. Lee answers:
Most Department Of Motor Vehicles require an employment authorization card and social security number.  There is no right to obtain employment authorization from the Department of Homeland Security by virtue of just being in removal proceedings with an approved I-130.  If you have some other relief available such as an I-485 adjustment of status application pending with the I-130, you would be able to obtain employment authorization, obtain a Social Security card, and thus be able to show such to the local DMV to obtain a drivers license.  Otherwise the issuance of driver licenses is up to the discretion of each state, and there are a number that give driver’s licenses to undocumented immigrants.  Your state, Georgia, does not. 

 

1. J-1 Visa & H-1 Visa

I am currently on J-1 visa, and I am medical resident with Marshall University in WV. I will sign a contract with university of Arkansas. My question is tha I am getting married in September and I have to travel to Jordan in order to do so. If I change my J-1 visa to H-1 to start the process for the license before September, do I have to enter USA on H-1 or I can enter through J-1 visa which is valid for 4 years from now. If this is the case would it be late if I wait tell Oct. after I come back from my honeymoon to start the H-1 visa process. I need to start working by Jan or Feb.

Mr. Lee answers:
If you need to start working by Jan. or Feb. and are getting married in Sept., I will assume that your J-1 will continue with Marshall University and that the H-1B will be with the University of Arkansas. So if you intend to continue your J-1 with Marshall University when you return, the appropriate visa would be the J-1 even if the H-1B petition is still pending or approved. Please note that if the University of Arkansas is filing for a change of status, leaving the U.S. during the pendency of the H-1B is considered an abandonment of the change of status.

To meet the timeline of Jan. or Feb., the University of Arkansas could file your H-1B petition in Oct. and hope to have it approved in time. The University would be filing at the Vermont Service Center which is presently processing cases anywhere from 3 weeks to 4 months. It could also request premium processing (if the case is pending and the time is near) under which U.S.C.I.S. will reach the petition for adjudication within 15 calendar days for an additional fee of $1225 and the filing of form I-907.

2. Will It Impact My H-1B Appeal Case If I Have a New Job When I Wait For the Result?

I’m now working for employer A with my full time CPT, A applied H-1B for me this year but it was denied, we just submitted motion for reconsideration. Heard the appeal process could be 1 year long. If I transfer my CPT and work for employer B, will it impact my H-1B appeal case? If new employer applies H-1B for me next year, will it impact my H-1B appeal case?

Mr. Lee answers:
As long as employer A continues with your motion for reconsideration, your H-1B matter would not be affected by your transfer of CPT and working for employer B. A petition by your new employer for H-1B status next year would also not impact your H-1B appeal case as long as the first employer is willing to continue.

3. Change Visa Status From B-2 to F-2?

I am currently in United States on B-1/B-2 visa which is expiring on August 2018. My wife is on an F-1 visa and we are staying together. We both have marriage certificate from U.S. office, I-20 updated with both of our names, my letter, her bank statement, and passports. The only confusion that I am getting is regarding the sponsorship letter in the U.S. Do I have to show this stating that I will sponsor myself or my spouse should show that letter from her side?  Are the letter and bank documents sufficient stating that I/her will provide all the expenses during my stay in the United States? 

Mr. Lee answers:
U.S.C.I.S. is concerned over your ability to be adequately supported during the time that you are under F-2 status so that you are not tempted to work unlawfully in the country. You can provide your own letter explaining how you will be financially supported. If you or your wife have sufficient financial resources, you could show that. If your wife has a financial sponsor for her F-1 schooling, that same financial sponsor if capable could also provide you with an affidavit of support. An affidavit of support can also come from any other reliable source and is usually done with an I-134 affidavit of support form, job letter, bank letter or latest banking statement, and the last year’s tax return.

 

1. How to Sponsor My Nephew for Visiting Visa?

My brother, who I have sponsored and has been granted a visa to the US, wants me to sponsor his 4 yr old child too.  Both my brother & sister-in-law, have visiting visas to the US, but now they would like me to be a sponsor to my nephew, who is 3.5 yrs old. Plus, they want me to sponsor the mother-in-law, who cares for the boy. What forms do I need to complete? What is required from me?

Mr. Lee answers:
The assistance that your brother is asking from you does not appear to have much success potential. It would take a very sympathetic US consular officer to grant a visiting visa to a small child and for someone who is not a parent to take care of him while in the States. This would especially not look good since your brother and his wife have visiting visas to the United States also.  Questions would be why they did not present the child to begin with when they applied for their visas, and also why they need the mother-in-law to take care of the child if they are here in the US on visiting visas. Would the answer be because they are planning to stay and illegally work in the States?  I suggest that you might ask your brother to reconsider his request to you if this is the case. 

2. Is There Any Way For Me to Get Back Into America If I Am Under a 10-Year Bar?

My parents took me to America when I was 9 months old. We stayed for my entire life up until 3 years ago. I am currently in Korea and I would like to go back for college. But I heard that I cannot because I’m under a 10 year bar. I really need to go back to study. I’m ok with living on my own. Is there any way I can go back before 10 years?

Mr. Lee answers:
Assuming that you left the US after you turned 18 (10 year bar only applies to those in US at 18 who were illegal for a year or more), you can apply for an F-1 visa at the American consulate or embassy and apply for a waiver of the 10 year bar. The procedure will vary from Consulate to Consulate, and you may wish to communicate beforehand with the American consulate or embassy in Korea as to whether it wishes you to bring in waiver papers at the time of the F-1 visa interview. It will then be up to the consular officer of whether to recommend a waiver to the Admissibililty Review Office (ARO) of DHS which makes a final decision as to whether a waiver can be approved.

3. Citizenship Through Marriage

I need to apply for citizenship through marriage based green card. My wife traveled for six month to INDIA. Am I still eligible for 3 years?

Mr. Lee Answers:
In applying for citizenship based upon the three-year rule involving marriage to a US citizen, U.S.C.I.S. expects that the alien will be constantly with the US citizen spouse. Whether you can do it on the basis of three years where the wife traveled to India for six months may depend upon whether your wife had more than one trip, e.g. three trips of two months each, the timing in between the trips, or whether you accompanied her when she traveled to India. If your wife traveled to India one time for six months without you, it is questionable that U.S.C.I.S. would allow you to take advantage of the three-year rule.

 

1. Son Wants to Apply for Mother Previously Denied at Consulate in a Marriage Case – Any Foreseeable Problems?

My parents were divorced in 2002, and my mother remarried a U. S. citizen in 2004. He applied for her and she had an interview at the American consulate in Guangzhou in 2005 at which time she was denied because the consular officer was not convinced that the marriage was bona fide. I came to the U. S. through my marriage to my U. S. citizen wife in 2014 and just became a U. S. citizen this year. If I apply for my mother, will she have a problem from her old case or will she be OK since she is now applying on the basis of my application for her?

Dear reader,
The difficulty with cases that are rejected for the consul’s not believing the marriage is that U. S. law will not allow a person found to have engaged in a fraudulent marriage to immigrate under any visa petition category to the U. S. If your mother has proof that the marriage is indeed bona fide such as a child with the U. S. citizen husband or much proof that they had a bona fide relationship from 2004 for a long period of time such as constant communications, correspondence, monies sent from the husband to the wife, trips to China over the years by the husband to visit her, etc., she could put that forward to erase the presumption of fraudulent marriage. Lacking that, some consular officers may still have doubts in their minds on the bona fides of the marriage, but settle upon allowing the applicant to file an I-601 application to waive grounds of inadmissibility – in effect, leaving the decision up to U.S.C.I.S. Other consular officers may be fully convinced that there was a fraud marriage, and simply deny an application like your mother’s without giving recourse to any relief.

2. Cap-exempt H-1B Moving to Non-cap Exempt H-1B Got RFE, Company and Applicant Have Questions.

My current H-1B is non-cap and with a university in the Northeast. It will expire on August 31, 2018. The school is not applying for an extension, and I worked it out with a private company to sponsor me for a cap H-1B in April. I was selected, but we just got a request for evidence (RFE) from U.S.C.I.S. that asks a lot of questions as my new employer is a computer consulting company. The company lawyer says that any response will take about 60 days to process from the time that we send it back. Assuming that we will not get a final answer until after August 31, what are my options? I began working with the private company since June 25, 2018, while still working for the university. Can I continue to work after August 31? Can I travel out of the U. S. during the time that the RFE is being processed?

Dear reader,
In your case, any authority to work as concurrent employment with the private company while at the university would cease when the H-1B work ends with the university. At that point, you would have to wait for the H-1B by the private company to be approved before continuing to have the authority to work for it. (Please note that as a cap H-1B only begins on 10/1/18, you would have to wait until that date even if the petition is approved in September). During the time that you are still working for the university, you can travel outside the U. S., but only upon the expectation that you will continue to work for the university when you reenter the States. If you are not visa exempt or have a current H-1B visa, please be aware that it may take time for the U. S. consulate or embassy to process an H-1B visa for you. In that situation, there is also the possibility that administrative processing or denial at the consulate or embassy could leave you with no option to return to the U. S. until the H-1B at the computer consulting company is favorably adjudicated.

3. I-485 Adjustment of Status Application Was Denied Because of Medical Examination Mistake by Doctor – Should I Appeal or Refile?

I filed my I-485 application to adjust status to permanent residence based upon employment with my company in 2016. For some reason, my case took a long time, but I received a message from U.S.C.I.S. in March 2018 to give in a new medical examination because the old one had already expired. I went to the doctor’s office, took all the new tests, and sent in the medical result in a sealed envelope to the Texas service center. I just received a denial of my I-485 in late June saying that the medical result that was in the envelope was only a copy and not an original and that I had not given a sufficient response. This is baffling to me because I did not have a chance to look at what the doctor sealed in the envelope. Can I appeal the case? Can I refile?

Dear reader,
At this time, the choice appears to be between filing a motion to reopen with a new medical or refiling your I-485 case. (The law does not allow an appeal of an I-485 denial at this stage. U.S.C.I.S. is not likely to issue a notice to appear (NTA) to you for you to go before the immigration court under your circumstances.) Some factors that you may wish to take into account are that a motion to reopen is variable in time and with uncertain result while a new I-485 filing generally adheres to published processing times of U.S.C.I.S. and the result would likely be favorable if there are no other inadmissibility factors. Please note that any motion to reopen must be received by U.S.C.I.S. within 30 days of its sending you the decision. Good luck to you!