Category: Q&A

1. Is the Immigration Status Affected by Medicaid and Using a Tax Credit Toward Paying Premium Health Insurance?

I am an American citizen and I my husband is on a green card. I was granted Medicate and during the process he was granted one for three months and then it was terminated by Medicate due to his immigration status. I applied for a health insurance for him via the market and we were giving tax credit toward our premium due to our low income. Would that be considered as governmental aid and affect his immigrant status when we apply for his citizenship? If so what shall we do?

Mr. Lee answers:
The question of government aid is not one that is asked on the naturalization application. I seriously doubt that the subject would ever come up in a citizenship interview. 

2. Can I Travel Outside the Country With An Open Criminal Case?

I have an F-1 VISA. I’m hoping to travel home to Canada for a weekend but I am summoned to appear in criminal court on a date after that weekend. Will there be any issues upon re-entry to the United States as I’m here on a F1 student visa.

Mr. Lee answers:
Although I am not aware of all the databases of diverse agencies that the government is tapping when it admits individuals into the country, I believe that the government is more concerned about convictions than arrests. If you already have a valid F-1 student visa, your chances of reentry are good. If you do not have a valid one and must apply for the visa at an American consulate or embassy, you may have to explain the circumstances of the arrest and be subject to a discretionary grant or denial of the visa. If you are a Canadian citizen, you do not need a visa in your passport to enter the country under F-1 status and must only pass inspection at the port of entry. 

3. K-1 Visa Sponsorship

For a K1 Visa Application, Do they look at your Gross Adjusted Income, Gross Income, or Total Income for sponsorship qualification?

Mr. Lee answers:
For sponsorship qualifications, total income is usually a more accurate gauge than adjusted gross income or gross income. Although K-1 petitioners would use Form I-134 for the affidavit of support, the I-864 affidavit of support for permanent family-based sponsorship gives a good idea of what is being sought by DHS as the instructions request total income to be designated if filing IRS forms 1040 or 1040A, and adjusted gross income if filing form 1040 EZ.

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1. Divorce Before the Expiry of the Conditional Green Card

I married my girl friend of 3 years last year in August. My girl friend became a US citizen this January and I got my conditional green card in October. After living together for 3 years and being married for one, I can already see our marriage cracking. I don’t think it will survive more than few months anymore due to our differences and career issues. I want to know what can be done at this stage? so we can get out of this stressful relationship and also get my permanent green card, after all we have been together for 3 years and we tried our best to make it work.

Mr. Lee answers:
You can apply for removal of the conditional basis of your marriage-based green card as long as you are able to show that you are divorced and had a bona fide marriage at the inception. You should of course preserve all evidence of your marital life and living together prior to the marriage although I do note that documentation after the marriage is considered much more important. Items such as lease or deed, rent receipts if renting, utility bills, banking statements, credit card bills, health and life insurance, cable bills, etc. along with photographs are prima facie evidence of a marriage. I assume that you would have time by now to gather joint documentation. I note that the burden of proof is upon you to prove a bona fide marriage where you are applying on the basis of having had a marriage which is dissolved.

2. E-2 Visa

My nationality is Portuguese but I’ve got over 15 years living in Spain, with lawful residence permit and a property. Can I apply for an E-2 visa? I’m looking to become self-employed in the US. Portugal is not a treaty country but Spain is.

Mr. Lee answers:
Unfortunately treaty investor visas (E-2) depend upon the person having a passport of the treaty country. Having permanent residence and a property in Spain is not the same and does not qualify you to be considered an E-2 alien of Spain.

3. Extend a B-2 Visa

We came to united state 2 weeks ago as visitors.  We got visas but we want to extend it.  How can we do so?

Mr. Lee answers:
Usually visitors to the US are given six months at entry unless there are other factors in their case, at which time Customs and Border Protection can give a lesser amount of time. If you are indeed given a much smaller amount of time to stay, you should check the entry stamp to see whether there was something written there that would preclude change of status or extension of status. If not, you can extend a period of stay through filing form I-539 Application to Extend/Change Nonimmigrant Status with appropriate fee to the U.S.C.I.S. service center having jurisdiction over your place of residence.

 

1. Travel Document

I’m not a U.S. citizen. I’ve been here for 7 years, lost my father and now my mother is very ill. How can I obtain paperwork to travel to see my sick mom in Jamaica for a week? 

Mr. Lee answers:
Whether you can leave the US for a week to see your sick mother depends upon your immigration status. If you are a permanent resident, you can leave the US and return as long as you have a valid passport. If you are not yet a permanent resident, but have papers pending, you should consult with an immigration lawyer to see whether leaving the country would prejudice your application. If you have no status whatsoever and nothing pending, your trip to Jamaica would generally be one way as you would not be allowed to return. 

2. Financial Sponsorship

I marry a man who is on an F-1 visa.  He wants to change it to I-485 but he needs a sponsor. Is there another way? The thing is we don’t have a lot money. I’m in school as full time student. I have two children from a previous marriage, we are making ends meet by my SSI. He is on OPT now looking for a job but his time is almost up. I have no way of being his sponsor and I don’t have anyone that can do it. If he could get just a little more time maybe a month more then I will hopefully have a job and he could as well. He is a IT and I’m working on my associates degree for billing and coding.

Mr. Lee answers:
If your husband has a willing friend or relative who can be a cosponsor, that would suffice as long as it is a credible offer of sponsorship. Your husband probably knows friends and contacts through his schooling. If he wishes to remain legally past the time of his OPT, he could reregister as a student at his last institution or another one that is willing to accept him. With more time, he may be able to find a job or you may find one also. I also note that the law allows a person who is not in status like your husband to still obtain adjustment of status to permanent residence through a US citizen spouse as long as otherwise qualified. 

3. Change of Status

I married a US navy and I’m my J-1 status what would be need to do so I can change my status. My visa will expire at July 2017 but we gave a grace period for 30 days. What would be our next step because I already change my name on my social security?

Mr. Lee answers:
The question is whether your J-1 visa is bound by a two-year foreign residence requirement. If so, you would either have to satisfy it or waive it before you could apply for an adjustment of status to permanent residence. I suggest that if you are not subject to the two-year requirement, you and your husband can begin the process and you can file adjustment of status papers to the Chicago lockbox of U.S.C.I.S. If you are still subject to the two-year requirement, you would hold off on the adjustment of status paperwork until you have cleared yourself of it. I note that an individual who has been inspected and admitted and who is now out of status is still allowed to adjust status to permanent residence if married to a US citizen as long as otherwise qualified.

1. Meaning of Bar

What does it mean to get bared from the country?

Mr. Lee answers:

Being barred means that you are not admissible to the US for a certain amount of time, in some cases 5 or 10 years based on summary and regular removal orders, or 3 and 10 years based on being illegal for 180 days and 1 year respectively. Waivers are available in many circumstances on non-immigrant and immigrant bases. 

2. Can An Indian Get Asylum?

In my case I loss all my wife also. I don’t live India. My sister family is there so I want live with my children. My wife was suicide death. So here I’m very disappointed. 

Mr. Lee answers:
Unfortunately, your circumstances do not describe a case for political asylum which can only be granted for reasons associated with political opinion, nationality, membership in a social group, race, or religion. If there is more than you describe, perhaps a case may exist.  In any event, you may wish to consult an immigration lawyer to go over any viable options available to you. 

3. My Company is Not Letting Me Quit My Job & Threatening Me. Can I Come to US & Apply Asylum Based On This Fact?

I am from India currently residing in India. I have an employment with an Indian company & I want to quit my job, but my company is not letting me do so & threatening me saying that they would not issue my relieving letter (which is a must requirement to do job in another company) until & unless I pay them the bond amount of $50,000 which is impossible for me to pay them. In a sense I feel I am being deprived of my fundamental right i.e. ‘Right to work’ & apparently I am treated slave, so my basic query is that based on this fact can I seek Asylum in USA, obviously I would apply after arriving to USA. Please help me & tell me if my case stands legitimate reason for applying asylum in United States.

Mr. Lee answers:
You would of course have to be in the US to apply for asylum. The US consuls will not give you a visa for that purpose. Based upon your fact situation, I do not believe that you have a promising case. Economic persecution even by the state has a very high standard before asylum can be granted. Your facts do not meet the standard in my opinion.

1. Spouse Visa (L-2) Extension Application After I-94 Expiration Date

My company forgot to file the L2 visa extension request for my wife along with my extension request and my wife’s I-94 is already expired on 4/18/2017. I already got visa approval from USCIS on last week. Is it possible to file L2 extension for my wife right now on any exceptional category right now even her I-94 is expired over 1 month. If Yes please share the detail, so that i can go for extension.

Mr. Lee answers:
USCIS may excuse late filings to extend non-immigrant status on form I-539 application to extend/change status under the following conditions:
1. The delay was due to extraordinary circumstances beyond your wife’s control;
2. The length of the delay was reasonable;
3. Your wife has not otherwise violated her status;
4. Your wife is still a bona fide nonimmigrant; and
5. She is not in removal proceedings. 

 Hopefully the adjudicating officer will believe that the company’s failure constitutes extraordinary circumstances if your wife submits the application. 
 

2. Do lawyers check applications ?

Do lawyers check applications when you ask them to if you fill it out on your own?

Mr. Lee answers:
That depends on the lawyer.  We generally believe that consultations are general in nature to go over client situations, and not to check applications filled out by them.

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. 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.