Category: Q&A

1. Do I Need to Apply for Citizenship or Just Green Card?

I am permanent green card holder, what need to be renew before October 2017; i have 2 reckless driving tickets for last 10 years, what was dismissed, and 1 Breaking and Entering (in my own house!) because my tenant was mad – I evict her and she file this on me, it was dismissed too.

Mr. Lee answers:
No one needs to apply for US citizenship if he or she does not wish to do so. If your question is whether you can apply for US citizenship instead of only the green card, the law requires that you demonstrate good moral character during the five-year period prior to the application (three years if based upon marriage to a US citizen and applying on the basis of three years). If the courts dismissed the three charges against you without having you acknowledge guilt, then you may very well be able to meet the good moral character requirement provided there is nothing else in your background of a negative nature.

2. From H-1B Back to TN Status

1. When I first entered to US, I crossed the US border (Point of Entry, POE) with TN visa (Canadian Nafta visa) for 3 years period. 2. I applied the status change from TN to H1b during my work stay in a University in US. 3. Currently, I have I-797A (H1-b approval document) for myself and my family But I have not crossed US POE yet after I-797A approval and do not have H1-b visa stamp on my passport. 
If I have another job in the US elsewhere and I want to work in US with TN visa, what do I have to do? 1. Do I need to back to Canada and re-enter to U.S. POE with necessary document for the new TN visa? or 2. Do I need to back to Canada and have H1-b visa interview and re-enter to U.S. POE with H1-b visa stamp then, apply visa status change to TN? I want to find the best way to keep work in US but another company.

Mr. Lee answers:
To work in the US with another TN status, you should go back to Canada and reenter a US port of entry with the necessary documents for a new TN stamp. The status that you have in the US depends upon the status that you enter the US with.

3. Will Doing an Exchange Program Abroad While Pursuing a Master’s Degree in the US Exclude Me From the H-1B Master’s Cap?

I am currently doing a Master’s degree in the US under a F-1 visa and I received an offer from a company willing to sponsor a H-1B visa after I graduate. This is a 2 year degree and I am currently on my first year. If I enroll on an exchange program and complete part of my Master’s degree outside the US and get some of my credits from a University outside the US will I still be eligible to the 20,000 Master’s Cap on the H1B visa. I understand that this cap is only for advanced degrees from US Universities so I am wondering whether I will still be eligible if part of my degree takes place outside the US.

Mr. Lee answers:
As long as you obtain a masters degree from a recognized US Institute of higher education which is not a for-profit institution, the degree should be recognized for purposes of the US Masters cap.

1. Can I Travel Outside the United States While My H-1B Extension is Pending?

I have an H-1B status that is valid until July 2017, and the visa in my passport is good to the same time. Should I file for an extension of H-1B status before or after my planned trip to China for 2 weeks in April? Does it make any difference? In addition, is it possible for me to take further trips during the time that my extension is pending with U.S.C.I.S.? Will I have any problems with reentering the U. S.?

Mr. Lee answers,
Whether you apply for an H-1B extension now or after you come back from your trip in April when your stamped visa is still valid is up to you. Either situation would likely be okay. On the other hand, if you travel outside the US while your extension is pending but at a time that your stamped visa has already expired, you would not have a legal visa by which to return to the US. A consular officer would most likely inform you that you should stay in the home country until your H-1B visa is approved at which time you could apply for a new H-1B visa stamp. 

2. H-1B Was Approved and In Administrative Processing at Consulate – Can a New Employer File Without Me Going Through H-1B Lottery Again?

Employer A filed for my H-1B in April 2016, was selected, the petition approved, and forwarded to the American consulate in my home country where I am living. I went for the visa interview in November and the case is now under administrative review. I have heard nothing for the past 2 months, but an employer A’s lawyer thinks that my case will be sent back to Immigration to be reviewed. Employer B is now interested in sponsoring me under a new H-1B. Can he do this while the first case is under review? If he can, do I have to qualify again for the H-1B lottery?

Mr. Lee answers,
A new employer may be able to submit a new H-1B petition on your behalf, and it is extremely likely that you will not be asked to undergo the selection procedure again. However, the petition would have to be approved by U.S.C.I.S. and forwarded to the American consulate or embassy and you would have to interview for the visa again. Dependent upon the reasons for which your case from the employer A is under review, you may be queried on the same issues.

3.Is There An Age that I Have to be to Marry My Boyfriend and Sponsor Him for the Green Card?

I am living in California, age 16, a U. S. citizen by birth, and my boyfriend from Taiwan is 20 years old and we want to be married. He came in with a legal visa and is still a student at a local college. When we are married, can I immediately sponsor him for the green card? What is the minimum age for me to do this? Do we need my parents’ consent to be married?

Mr. Lee answers,
To be married in California at your age, a quick perusal of the law indicates that you would need parental consent and a court order if under the age of 18. Some other  states will allow you to marry at 16 or 17 without parental consent. Under U. S. immigration law, there is no minimum age to be married and to fix your husband’s papers assuming that you are a US citizen. However, you must also fill out the I-864 affidavit of support form for your spouse, and the law requires that you be at least 18 years of age in order to fill it out. Without your support paper, your husband would not be able to emigrate.

4. Can I Still Do Reinstatement to F-1 Student After 5 Months for Emergency Reasons?

I had to stop going to school, the school notified me of my being out of status, but was not able to return to school within 5 months because of personal emergency reasons. I am now ready to return, but it is now 9 months since the school’s notification, and I’m wondering whether Immigration will accept a reinstatement application now. I know that the law says that reinstatement applications are to be given to Immigration within 5 months.

Mr. Lee answers,
While difficult, you may still be able to successfully request a reinstatement after 5 months. U.S.C.I.S. provides that if you have been out of status for more than 5 months at the time of filing the request for reinstatement, you must also provide evidence that your failure to file within the five-month period was the result of exceptional circumstances and that you filed your request for reinstatement as promptly as possible under those exceptional circumstances.

 

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.