Category: Q&A

1. How Strict is the 30 Months Travel Rule When Applying for Citizenship?

I have been out of the country for around 31 months total in the last five years. Can / should I still apply for citizenship? To get the number down to 30, I would have to stay for nearly a year more (I was out of the country 5 years ago). It was a calculation mistake from my part. However, the last absence (1 month 9 days) was partially due to the death of my father overseas. Would it help my case to attach a death certificate, and a plea for mercy?
 
Mr. Lee answers:
Where individuals are applying for naturalization based on the five-year rule, the 30 month physical residence rule is mandatory. The absolute minimum physical presence is 30 months, and you should not make an application until you are sure that you have 30 months physical residence during the past 60 months before application. I further note that many immigration officers may give individuals problems even where they meet the bare minimum eligibility requirement of 30 months.

2. Can We Still File for A Visit Visa If We Have Another Case Open?

We have an immigrant visa case that has been approved, but due to visa limitations will probably not be ready for another 5-10 years. Can we still apply for a visit visa without causing an issue with the immigrant visa?

Mr. Lee answers:
Many people in your situation have applied for visitors visas and had them approved even when an immigrant visa petition has been approved where the availability date is far away. The decision on a visitor’s visa will be in the discretion of the consular officer. Applicants should be clear on the visitor visa application form that they do indeed have an immigrant visa petition approved. Failure to so indicate would constitute misrepresentation.

3. RFE on H-1B Amendment Petition. Can H-4 Travel to India?

My husband is on valid H1B visa and I am on H-4 visa, due to change of client the company has filed an amendment petition and my husband got a Request for Further Evidence (RFE) on that petition. So currently my husband’s company have responded to RFE and waiting for USCIS to respond back. In this situation can I travel to India on H-4 visa?

Mr. Lee answers:
Your H-4 visa is dependent upon your husband’s continuing H-1B status. If the denial of his application would place him out of status, you should not be thinking of traveling at this time. If the denial is of a future position and would not affect his present H-1B position, then you may be able to make the trip as your husband would still be maintaining status even if there is a denial.

1. Man Wants to Marry American Woman on Disability and Live in USA.

51 years old Canadian man in love with 40 years old American woman on disability. Man wants to work in USA & marry woman and live in USA w/her. She has 2 kids from previous marriage, so must stay in USA. He wants to have a child w/her, too, if possible. Both in love and want a life together in USA. But she can not support him financially. He wants to be able to work and prove he don’t want state aid for himself. What can be done? He has aunt & cousins down southern USA states. She lives in northern part of USA. He currently resides in Canada but visits USA when he can. Been dating 2 1/2 years.

Mr. Lee answers:  
If you are in Canada, your American girlfriend can apply for you as a K-1 fiancé; you would interview at the American Consulate in Montréal; enter the US and marry within 90 days; and then submit an application on form I-485 to adjust status. Insofar as financial support is concerned, your aunt or one of your cousins could be a cosponsor on your I-864 affidavit of support. When you are approved for your residence status, you are allowed to work and support yourself.

 2. Is It Better for My Parents (Who Are Not Yet Permanent Residents) to File For My Sister or For Me, a Citizen, to File for Her?

I am currently a US citizen and I would like to file and get green cards for my parents who live outside the US. Once they get their green cards, they are looking to file for my sister who is single and over 21 years of age. I wanted to know if it’s better for them to file for her or if I should try and file for her. Which process is easier and better?

Mr. Lee answers:
You and your parents can both file for you sister. Visa availability times are changeable and the time for sibling petitions may speed up in the future. Also your sister’s circumstances may change, e.g. her getting married, which may necessitate a backup plan. Neither application is complex where there are common parents.

3. Work Permit

I filed for my husband but he lost the work permit, they are now scheduling an interview. What should we do apply for another work permit or wait?

Mr. Lee answers:
If your husband is being scheduled for an interview already, and you are fairly confident that he will pass the interview, he should probably wait until the interview. If this is an adjustment of status case to permanent residence, an immigration examiner is empowered to give a temporary I-551 stamp of permanent residence which allows employment and travel until the green card arrives.

1. Is It Possible for Someone to Get Their Green Card Early?

For example, Tom’s mother has petitioned years ago for her children to become permanent resident of the USA. Tom has heard of a new immigration law which allows persons using a visitor’s visa to travel to the US, consult a lawyer, pay $4000 and their plea for a green card will be fought in court. Tom is told that this process will take 6 months the most. My question to you is ‘is this true?’, ‘Does this law exist?’, ‘Will I really get my green card if I do what Tom did?’, ‘Is this legal?’ 

Mr. Lee answers:
There is no new immigration law that I am aware of allowing children who have been petitioned for to jump the line on their immigration based upon being in the US and paying money for the green card to be fought over in court.

 2. Can My Husband Become a Resident? I Am a U.S. Citizen But He Has Dream Act

Mr. Lee answers:
If your husband entered the US legally, and has no other disabilities or grounds of inadmissability, he should be able to adjust status to permanent residence upon your sponsoring him. If entering illegally and he is not under proceedings with DHS and manages to leave the US under advance parole, he may be seen as having been inspected and paroled into the US upon his return and may be able to adjust status to permanent residence. Otherwise he might be able to apply for permanent residence under the I-601A program under which you would file the I-130 petition for alien relative, have it approved, and he would then file for a waiver of the 10 year bar on form I-601A for being in the country illegally for one year, wait for its result, and if approved, go overseas for an immigrant visa interview in his home country. Adjudication of the waiver would depend upon his ability to establish that you would suffer extreme hardship if he was refused a waiver.

3. How to Expedite Visa for Unmarried Child?

The unmarried child is 29 yrs old. Petitioned in 2011 by green card holder parent.

Mr. Lee answers:
There is no way to expedite an immigrant visa for an unmarried child over the age of 21. The backlog is approximately 6-8 years from the date of filing. The child and parents must be patient unless the child has another way to immigrate.

1. My Mother-in-law Is Having Medical Issues That Require Surgery. How Can I Get Her Here Quickly to Help Here With My Medical Insurance?

Mr. Lee answers:
Your mother-in-law may apply for a B-2 visiting visa and such could be given in the discretion of a US consular officer. You might be able to help by providing whatever documentation you can that she would have her medical bills covered once she is here. She may also have to convince the US consular officer as to why she could not obtain the appropriate surgery in the Philippines, which is not to my knowledge a medically backward country.

 2. My Fiancé of 9 Years Is Here Illegally. How Can He Become a Legal Citizen?

Mr. Lee answers:
If you are a US citizen, you marry him, and he entered the US legally and has no disabilities, e.g. fraud, immigration proceedings or crimes, you could apply for him on form I-130 petition for alien relative, he could adjust to permanent residence on form I-485, and after he has held the green card for three years, he may be able to apply for US citizenship as long as he has lived with you constantly for the three-year required period of residence after being awarded the green card. If he did not come into the country legally, he might still be able to obtain permanent residence under the I-601A program if you are a US citizen, petition for him under form I-130, and he applies for and is approved for an I-601A waiver which is based upon extreme hardship to you if such cannot be granted. If he is approved for the waiver, he would then go overseas for an immigrant visa interview which would in all likelihood be quite normal in its nature.

3. I’m a Legal Resident, Have 2 D Felonies Non-Violent and 2 Misdemeanor for DWI Only, I’m Married to a Citizen. Can I Still Become a Citizen After 5 Years?

In total I have 4 DWIs in a 10 years span. On my 3rd and 4th DWI I was sentence to 1-3yrs in state prison in NY witch I did 1 1/2 in prison, I come out because I made parole. I’m on parole right now for the next year and a half. All my DWI’s it has been because I was sleeping in the car, never got caught driving it. I have been in the US since 1988 (28yrs), I am 35yrs old, almost my whole life I’ve been here in the US. My mother is a citizen, but she become a citizen when I was 21. I got my resident when she petition me on her residence years, I was 13 years old, my brothers and sisters are too citizens. I have a 12 year old son born in NYC and I’m married to a born US citizen. I’ve been paying taxes since 1998. Can I still become a citizen after 3 or 5 yrs? And should I apply for citizenship after 3 or 5 years.

Mr. Lee answers:
U.S.C.I.S. would not naturalize anyone who was on parole. With your record, you would probably also have to convince Immigration that you have reformed even after your parole has ended for an officer to consider your case favorably. Perhaps a longer period of time to show reformation (5 years after your last offense) would be appropriate before you attempt to apply for naturalization. Good works would also be helpful such as volunteering in halfway houses, soup kitchens, churches, donating blood, etc., to show that you have really turned over a new leaf.

 

1. Can You Change Visa While Being in USA?

My son was on F-1. After finishing his Masters’ he applied for OPT which was denied on March 13, 2017 since he had applied earlier but never utilized his OPT since he went on to do another Masters’ and never informed INS about it. Now another University is willing to give him J1 visa. So is it possible for him to change status without leaving USA? What is his status now? He is afraid that he might get denied at US embassy in India if he was to leave US for stamping. He is Indian citizen. 

Mr. Lee answers:
From our understanding, an F-1 student can change status even after the OPT is denied in 2 situations – denial before completion of studies and an applicant would then have a full 60 day grace period; and after completion of studies but before the 60 day grace period ends, and an applicant would have 60 days from the date of the decision. If the OPT is denied after the 60 day grace period, there would be no additional period of time. If out of status, your son can request a late change of status from U.S.C.I.S., but if denied would have to leave the U. S. for consular processing if he wanted to be in legal nonimmigrant status.

 2. Do I Have a Criminal Record in the USA?

I recently travel to the USA with a tourist visa, but my visa was revoked after admitting I was seeking employment. I signed a withdrawal of application for admission, my phone was search and was at the airport till it closed. Was then taken to a correctional facility where I was cavity search and locked up for the night. I asked if I was been arrested or if I was suspected of any crime was told no. But I believe I was suspected of some crime after being locked up in that manner.

Mr. Lee answers:
It appears that you encountered a rude coming to the US, but you do not have a criminal record. As you signed a withdrawal of application for admission, your visa was canceled. For you to reenter the US, you would have to convince an American consular officer to issue you another one.

3. When Can An Asylee Naturalize?

I was granted asylum in March 2012. So I applied green card on March 2014 and got green card on October 2014. The date on my green card is October 1014. I had heard that I will be eligible for citizen after 5 years after the day I was granted asylum but now date on my green card is October 2014. So I got confused really. What date should I follow for to apply citizenship? If I fallow green card I will have to wait more about 9 month. Could you please suggest me better. 

Mr. Lee answers:
As an asylum seeker granted permanent residence, you are entitled to a one-year rollback on your green card. The date on the card should be October 2013. You can request a replacement card from U.S.C.I.S. through form I-90 application to replace permanent residence card.

1. Can a DACA Recipient Who Is the Son of a Permanent Resident Adjust Status?

I am 20 years old. My mom, dad, and brother overstayed our visas. I do have an I-94 record. My Dad is a permanent resident.

Mr. Lee answers:
If your father becomes a US citizen and files a petition for you before the age of 21, you would be eligible to adjust status to permanent residence as the immediate relative of a US citizen. Failing that, you would only be adjustable if you are entitled to the benefits of §245 (i) under which your father would have had a labor certification application or immigrant visa petition filed by April 30, 2001, and be physically present in the States on December 21, 2000. However, even in that scenario, your case would fall under the F-11 category as the adult son of a US citizen and you would have to wait for that quota to clear before you could file for adjustment of status. That category has a 8-9-year backlog for people born in most countries of the world. I note that with 245(i) benefits, your father could sponsor you under the F-2B category as the unmarried adult son of a permanent resident and the waiting time would be approximately 7-8 years. 

 2. DV Lottery

I am one of the lucky selectee of 2017 lottery, on my interview day everyone was asked to swear but the officer did not ask me to swear, does it mean anything?

Mr. Lee answers:
Sometimes officers do forget to place people under oath before interviewing them. As long as the case is approved, the lack of placing you under oath is of no consequence.

3. Can I Travel by Air Through Temporary ID in State of US

I’m a victim of domestic violence and I am staying in safe house in Atlanta, GA.I want to move to Seattle, WA. I don’t have a permanent ID. Can I move to Seattle by air through temporary ID.

Mr. Lee answers:
It may be very difficult for you to do so with a temporary ID. Looking at the more liberal forms of identifications required by the Transportation and Safety Administration (TSA) on its website, a foreign government issued passport is OK along with driver’s licenses or other state photo ID cards issued by the Department of Motor Vehicles (or equivalent). I also note that the TSA may soon start enforcing a law that requires states to comply with a set of federal standards when issuing driver’s licenses in order to allow people to board airplanes. 

1. Am I Eligible for Applying I-485?

I am an EB5 petitioner with priority date of Aug. 12, 2013. My I526 was proved on Oct. 2015 but I was told my petition would be reassessed during my visa interview this July. It has been 8 months after the interview and we haven’t got any news about my case. I have been living in the U.S. for 3 months. Am I eligible for applying I-485 or is there any way to get my case expedited? 

Mr. Lee answers:
The problem with an I-485 application at this stage (assuming that there is no ineligibility) may be the question of your intent in entering the US. If you came on a visiting visa, a U.S.C.I.S. officer may feel that you abused it in gaining entry to the US when your true intent was to immigrate – especially as you already had a case pending for immigration with the US Consulate. So you may be eligible to file for an I-485, but may find it problematic. For cases which are “stuck” at a US consulate, there are no great ways to expedite although constant communication with the consulate, lawyer’s assistance, contact with the visa office in Washington, and/or congressional assistance may be helpful as long as the petition has not been sent back to USCIS.

 
2. How Long Does It Take for CSPA Review at NVC?

My priority date is current already. Should I send a letter to them about the review to make it faster?

Mr. Lee answers:
When the priority date is current, CSPA review at the NVC is fairly quick. Your sending a letter would be recommended to remind the NVC of your CSPA concerns.

3. Is My Immigration Process Out-of Reliability Because I Worked Abroad Few Days?

I have got a job in a company that have relations with Brazil (which is very understandable because I’m the only one that speaks Portuguese in here) So I’ve traveled to Brasil 3 times this year for work matter and now I want to spend the new years ( 1 week ) with my mom that it’s really sick and old. 1st time: 4 days -> 9th April to 12th April 2nd time: 3 weeks -> July 3rd July – 27th July 3rd time: 2 weeks -> 9th October – 26th October Since I have applied to remove conditions in July and receive the one-year-extension-letter on 8th August and I have not receive any biometrics appointment letter. Should I be scared? Should I go to Brazil to visit my mom anyways? Is my process out-of reliability because I worked abroad few days? I make really good money and I’m not willing to change my job. Is there any action that I must do in order to improve my process reliability?

Mr. Lee answers:
I assume that the conditional green card is on account of marriage and not EB-5 investment.  When you pay the fee properly for the I-751 application to remove the conditional basis of conditional residence, you can expect a normal process of fee receipt and biometrics. If you have not yet received a notice for biometrics, you should call the National Customer Service Center (NCSC) (1-800) 375-5283 and ask what happened. Travels outside the US for short periods of time, especially to visit an old and sick parent, should not affect the progress of your case. Working abroad for a few days likewise should have no effect. As I further assume that you are applying based upon a joint filing with your spouse, you might wish to take him or her with you on your travels to further prove that you have a bona fide marriage.

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. 

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. 

 

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.