Category: Q&A

1. Can I send my 12-year old daughter to school while waiting for adjustment of status?

I married an American citizen and we are currently in the process of adjustment of status. Can my daughter go to school while the process is pending?

Mr. Lee answers:
Since you are married to a US citizen, you are considered an immediate relative of the US citizen, and violations of status would not bar an adjustment of status to permanent residence. Therefore, sending your 12-year-old daughter to school should have no effect on the immigration process.

2. Can I remove my husband from application for sibling immigration application?

My husband has added himself as co sponsor in the immigration case I applied for my siblings in Pakistan. Can I somehow remove him

Mr. Lee answers:
You may be able to withdraw your husband’s co-sponsorship by communicating with the agency which is holding your sibling’s application at this time. I do note, however, that the NVC and consulates are sometimes reluctant to continue processing cases where a spouse does not put in the I-864 A form. This may be because the agencies want to see more of a level of support, want to see the whole picture of the petitioner’s ability to support, because there are mixed assets belonging to both parties, or for other reasons. So you can make the request, but there may be some resistance.

3. N-400

I was reading the N400 form and it said that I had to be married to a US citizen spouse before filing the N 400 form. Me and my wife are going through a divorce. We were together for 9 years and I have 2 kids with her. And I got my green card through her. Will I be able to become naturalized?

Mr. Lee answers:
I believe that you have misread the form. There is nothing in the law that requires a person like you to be married to a US citizen spouse before filing the N-400 application unless you are attempting to file under the three-year instead of five-year rule for citizenship. If filing under the five-year rule, you should be able to file for naturalization as long as you are not barred by any of the grounds outlined in the application questions.

4. Can J-1 visa holder marry a US citizen during the grace period?

Does the j1 need to file form I-103 and I-485 before grace period ends? I’m marrying my gf who is here in America on a valid J1 visa. I’m marrying her before her visa expires. But her visa expires very soon after . Is there a time frame that we must file the forms I-130 and I-485? My question basically is asking do we have to file the forms before the visa expires even if she is already married ? Does being married give us long time frame to get the documents all together with accuracy? Or do we still have to file the permanent residency forms before the visa expires even though she is married .

Mr. Lee answers,
Assuming that the J-1 visa holder is not under a two-year home residence requirement, such a person is not constrained by time if marrying a US citizen and filing for adjustment of status to permanent residence. While it is always better to file while in status, it is not a necessity for immediate relatives of US citizens (spouse, parent, or child under 21 and unmarried). We have in the past adjusted the statuses of immediate relatives who entered legally and were out of status for over 20 years. 

5. H-1B to F1 visa

I came for MS on F1 then changed to OPT then to H1B. Now, want pursue PhD on F1. Will history of F1-OPT-PhD make it difficult to get F1? Spouse is currently pursuing MS in US.

Mr. Lee answers:
In your situation, I do not believe that it should be that difficult for you to obtain a F-1 visa status or F-1 visa. You have exhibited an upwards progression in your studies and with the H-1B. The period of time that you have spent in the US already may be of some concern, but a reasonable adjudicator would likely say yes to allowing you to go forward with your plan of studying for a PhD. 

6. F-1 Student Visa

I have my brother who has applied for a university here in states and he got admitted. He still has a filed I-130 pending petition. Will he be able to get his F1 visa?

Mr. Lee answers:
The question of whether to give a discretionary F-1 visa at the consulate or embassy is up to the US consular officer. Where there is a pending I-130 petition, the weight to be given to it may depend upon the length of time that the applicant will have to wait to immigrate to the States. Consular officers usually give less weight or importance to the petition where the waiting time is longer. For example, if you filed a sibling F-4 petition for your brother five years ago and it is still pending, the consular officer will know that it will probably take another nine years for it to come to fruition. If otherwise convinced that your brother has nonimmigrant intent, he or she would probably issue the visa. 

7. Do I need an I-601A waiver?

I’m a DACA recipient before the age of 18 and have renewed ever since, without leaving the country ever. I’m looking to go through consular processing because I entered without inspection. Do I need to file a 601A waiver even though I haven’t accrued any unlawful presence?

Mr. Lee answers,
If you became a DACA recipient before the age of 18 and have renewed ever since, you would not have acquired unlawful presence and would not require a waiver for that before returning home for consular processing.

8. How to cancel N400 application or biometric?

After two weeks of submitting the N400 application, got involved in DUI. the case is still pending, and received a biometrics appointment date. How to cancel the biometric appointment as I know my application will be denied? This is my first DUI and no other criminal record.

Mr. Lee answers,
You do not have to go to the biometrics appointment if you are giving up the case. You can further write a letter to USCIS requesting cancellation of the application. If you filed online, you can upload a message. I note that having one DUI is not an automatic bar to naturalization. While deniable as impinging on good moral character, the entire circumstances may be taken into account by the officer. 

9. Is form i-824 a must to get to the NVC?

USCIS sent me a notice stating I need to file i-824 for them to forward my case to the NVC because on the I-130 i had chosen the adjustment of status route but i ended up leaving the USA. I’m so disappointed, i-824 will add about 550 dollars to the cost of the immigration process. Is it possible to eventually get to the NVC without filing i-824?

Mr. Lee answers,
In your situation, an I-824 Application for Action on an Approved Application or Petition will be necessary. In the far distant past, USCIS used to transfer approved petitions upon request. However, with the advent of the I-824 form, USCIS now requires payment and the form for the transfer of cases.

1. Do I Have to Stop Work if C9 EAD Expires Before Receiving Physical Green Card as I-485 is Approved?

I have been employed under OPT. OPT expiring in 2022. My I-485 online case status changed to “Case has been approved” yesterday. Have not received notice and card in physical mail yet. What is my immigration status at this moment? At what point is my OPT considered invalid? My C9 EAD card(which I did not use, because I maintained F1) that I got from pending I485 is expiring next week. So if my C9 EAD expires before I received my plastic green card in mail, will I have problem staying at where I work currently? Do I have to leave job after my C9 EAD expired even i-485 has been approved assuming my OPT is going to be invalid? Thank you so much in advance.

Mr. Lee answers:
Practically speaking, it would not appear to make much consequential difference as to what you do vis-à-vis your work where USCIS has already approved your I-485 adjustment of status application. If the unofficial online notice is correct, you should receive the official notice and green card shortly thereafter. The date should coincide with the unofficial online notice date. Technically speaking, however, employment authorization on the green card does not begin until you receive the green card itself. Your C9 card which I understand that you did not use is expiring next week, so you are authorized to work under that until next week. You have said that your OPT is expiring in 2022. So if you have not yet received the green card, you should technically be able to continue work on your OPT until you actually receive the physical green card. I do not believe that this is a fish or fowl situation. Interesting question. 

2. Are Unintentional Mistakes on ETA 9089 Relevant to the Scope of N-400 Question 31?

N-400 question 31 asks “Have you EVER given any U.S. Government officials any information or documentation that was false, fraudulent, or misleading?” Wouldn’t any typo or a mistake in any submitted form or application automatically imply yes to this question? Suppose an ETA 9089 had a typo in employment dates but that this was corrected by submitting EVLs with the corrected dates at the I-140 stage which was approved. If so, would I still bring this up?

Mr. Lee answers:
In the situation that you have given, your answer should be “no” to the question. Any question pertaining to fraud or misrepresentation on an immigration application requires that the applicant made the fraud or misrepresentation intentionally. In your case, you have stated that this was a typo and was corrected at the I-140 stage. 

3. My Son Does Not Have My Surname. How Do I Petition for Him?

I am USA citizen but my son who lives in his home country does not have my surname. How do I approach this problem as I would like to petition for him?

Mr. Lee answers:
You have to prove that your Mexican son is your son through birth certificate, baptismal certificate, schooling records, or other evidence. A list is on the instructions to the I-130 Petition for Alien Relative form. If unable to provide convincing evidence, you can offer to take a DNA test. In addition, if you are the father (not the mother), you will also have to show proof of parental care of your son prior to his reaching the age of 18 years.

4. How Long It Will Take to Invite My Brother to USA

I am an American citizen and I have US passport.   my brother is Egyptian and is 29 years old and married but lives in emirate country so I want to ask how long for him to come to USA?

Mr. Lee answers:
For the month of February 2022, the F4 category for sponsored siblings of US citizens is available for immigration visas for those who filed before March 22, 2007 for all countries of the world except for India, Mexico, and Philippines natives who must wait longer. If born in all other countries, the waiting time is thus 14 years currently. 

5. I never filed taxes and NVC asks for affidavit of support. Can I find a joint sponsor?

I applied I-130 for my wife and 2 kids, but I never worked in the State and never filed taxes.  Now NVC asks for an affidavit of support and I have a joint sponsor.  Is it OK? What form I have to fill out and what I have to do to send it to NVC?

Mr. Lee answers:
Even if you never worked in the United States and never filled out a tax return, you would still have to supply your I-864 affidavit of support in addition to having a bona fide and credible financial joint sponsor who can provide the financial support for your family. The financial sponsor would have to fill out another I-864 affidavit of support form and supply materials such as tax returns for the past three years, current job letter, payslips, and record of assets if he or she wishes them to be considered as part of the financial support.

6. Regarding H-1B Stamping

I have my H1b petition approved, and I am not getting the visa appointment dates available. Please can you tell me that, can I enter in US with my b1/b2 visa and change the status to H1b in US. I have a valid B1/B2 visitor visa. 

Mr. Lee answers:
There are two difficulties with your plan. The first is that coming to the US and immediately trying to change status to H-1B could raise questions concerning your actual intent under B1/B2 when you came in, and whether it was inconsistent with the type of visa under which you entered. The second is that there is no separate form to change status for persons who already have approved H-1B petitions marked for consular processing. Your petitioner would have to file the H-1B petition all over again in a H-1B amendment requesting change of status instead of overseas processing.

7. About Travel Document I-131

My wife petition for me for the green card. We had our interview in July 2021 and since then my I-485 case is under review. I would like to know if I can apply for a travel document i-131 and go out and come back in the US without issues? I have my EAD since June 2021. We have been married for more than two years. 

Mr. Lee answers:
You can apply for an advance parole document, but should be aware that except for emergencies, applications can take over six months to process at this time. Insofar as problems perhaps arising with an advance parole document in your situation, you may be on tenterhooks if the I-485 application is denied while you are outside the country. At that point, you might be at the mercy of the local CBP practice on the admission of denied I-485 applicants holding advance parole documents. In many quarters, it is thought that legally speaking, the advance parole automatically expires with the I-485 denial since the advance parole is an ancillary application to the I-485 and its life is dependent on the fate of the I-485.

1. Is there a list to find out if your person you want to bring back can come back?

My husband was deported about 22 years ago and I would like to bring him home to USA. I want to know if there is a list or something to fined out before I do all this paper work if they will even think about letting him back to the USA.

Mr. Lee answers:
There is no list of which we are aware that designates people who can come back to the US after being deported. Generally speaking, a deportation or removal order is in effect for 10 years when a person leaves the US under an order of removal or deportation. If you are concerned that your husband is otherwise barred, I suggest that you obtain a copy of your husband’s immigration file and consult with an immigration attorney. 

2. I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do?

I’m US Citizen and my husband has only a work permit but if I want to apply for a visa for my mother-in-law and father-in-law, what do we have to do, there are too old but they are alone in India so we playing how we bring them here.

Mr. Lee answers:
To apply for your in-laws to live here permanently on immigrant visas, your husband would have to become a US citizen to sponsor them. To apply for them to visit the US, they would have to go through nonimmigrant visa application interviews at the American Consulate overseas. You could help by guaranteeing financial support and that they will leave at the end of their period of visit. Kindly note that visitor visas are given in the discretion of the consular officer. 

3. I’m on B2 visa currently here in USA. I have pending spouse visa application petitioned by my US citizen husband. Can I get EAD?

I’m currently in USA using a b-2 visa. I have a spouse visa application pending petition in NVC by my USC husband. I would like to work and get EAD while waiting for my immigrant visa interview.

Mr. Lee answers,
You can apply for an EAD if you choose to file for adjustment of status through form I-485 application to adjust status to permanent residence. Work authorization through form I-765 is an ancillary benefit that can be applied for by those filing for adjustment. I note that if you file for adjustment, you should request the NVC to stop processing your matter for a consular interview. 

4. A Multiple filer?

I have filed a I-129F (petition for alien fiancé). I wish to cancel the petition since the relationship has ended. The case is still pending however, therefore it has not been approved or denied. Once I write to immigration and the case is cancelled, if in the future I wish to file another I-129F for another fiancé, would I be considered a multiple filer?

Mr. Lee answers:
Assuming that the petition is not approved, and you have only filed once, you would not be considered a multiple filer. The instructions to the I-129F form define who is considered a multiple filer: 1. You are filing this petition on behalf of your fiancé(e) and you previously filed Form I-129Fs on behalf of two or more fiancé(e) beneficiaries; or 2. You are filing this petition on behalf of your fiancé(e), you have previously had a Form I-129F approved, and less than two years have passed since the filing date of your previously approved petition.

5. Can I file Green Card while I am on TN visa in the US

I am on TN visa here in the US and want to apply for GC. What is the way out.

Mr. Lee answers:
A TN visa is not dual-purpose and the TN holder must have nonimmigrant intent. When a TN holder begins to apply for permanent residence, the more chances of having a problem with status occur when the person continues trying to go in and out of the United States and may be questioned by Customs and Border Protection (CBP) when reentering. We suggest to our clients that they curtail their travels during the time of petition/application with USCIS unless they are adjusting status and obtain advance parole documentation. They should also obtain an EAD to work legally under those circumstances.

6. How can I sponsor my sick sister if I am a US Permanent Resident?

My sister lives in México and is very ill. I am a US Permanent Resident and want to know how I can sponsor her.

Mr. Lee answers:
There is no immigrant visa category that allows a permanent resident to sponsor a sibling. Assuming that you are able to make provision for her medical treatment in the US which she is incapable of receiving in Mexico because of the more advanced state of medicine in the US, you may be able to have her apply for a visitor visa to come for medical treatment.

1. Can I do part-time work like paid expert consulting (outside my employer) with an EAD+AP card related to my I-485 EB1-B green card application?

I am currently on an O-1 Visa, which expired in July 2021. My employer had applied for a renewal (still pending), and they said that I am still in status and able to work as long as the O-1 renewal has been pending for less than 240 days without any decision. I have since received my EAD+AP card for my EB1-B Green Card sponsored by my employer. My employer indicated that they will now withdraw the O-1 renewal application, since I have received my EAD. Additionally, my I-485 for AOS has also been approved. My question is whether I can now take up part-time paid employment outside of my employer (while also continuing to work for my employer) on my EAD+AP card (which I have in hand), or will this in some way jeopardize my future naturalization from permanent resident to citizen? I currently have an offer to do some part-time paid consulting (paid by the hour). Is it okay for me to accept this and receive payment?

Mr. Lee answers:
Under the circumstances that you describe under which you will continue working for the employer that sponsored you for the EB-1B green card, your taking on additional part-time paid employment is fine. You have an EAD allowing you to take on employment which is not confined to your present sponsorship which EAD may soon be superseded by the green card that you will receive since your adjustment of status application has been approved. Under either situation, the additional employment would be allowed. In green card situations based upon employment, USCIS would mainly be concerned at naturalization whether the applicant had an intention to work with the sponsoring employer when the green card was given. In your situation, that would not appear to be a concern as you state that you will continue to work for your employer.

2. Stay and work on H1B while Max out nearing

Arrived in US on Dec 2016 on B-1, change of status to H-1B in Feb 2017. My new employer will be applying for PERM in Mar 2022- What are my chances for Best Case Scenario, perm approved I-140 Approved. Worst case scenario any Audits How can I file for 7th year extension If I exhaust my H1 b then can I work outside US for same employer while my PERM/I140 being processed.

Mr. Lee answers:
Your best-case scenario appears to be no problems with the labor certification application and having an approved I-140 by the time that the six years runs out on your H-1B status. In that case, your company can file for an extension of the H-1B while you are in the US. The chances on that depend upon the labor certification application description and requirements, how the recruitment process goes, and the financial viability of your company – all of which cannot be foretold without knowing all of the facts now and when your company begins the process. The worst-case scenario is that your labor certification application is denied and your avenue is closed. In less dire circumstances in which there is an audit which delays labor certification approval until after your six years is up, you can either attempt to remain in the US on another nonimmigrant status or go out of the US and work for the same employer or another employer until you have an approved I-140 petition, at which point your employer can file a H-1B petition extension for you, which if approved, would allow you to return to the US. 

3. Can I move to the US while I wait for my green card?

My brother filed an I-130 and I live out of the US. Do I have to wait for my green card 10+ years or can I get a special visa and move to the US meanwhile?

Mr. Lee answers:
There is no special visa that would allow you to come to the United States ahead of the time that you are entitled to do so under your brother’s petition. On the other hand, you may be able to enter through some other nonimmigrant category such as H-1B specialized occupation worker or L-1 intracompany transferee as those are dual intent visas under which the fact of applying for immigration would not be negatively considered by a consular officer in adjudicating the visa application. Other nonimmigrant visas which require nonimmigrant intent such as visiting or student visas could still be given in the discretion of an American consular officer taking into account all the circumstances of the application.

4. I am currently on h1 b visa and I’m married to US citizen I would like to resign my job due to personal reasons and I have not started the process for adjustment of status.

I need to be vaccinated to apply for green card and in the meantime can I change my status to b1 and stay with my husband.

Mr. Lee answers:
Probably the better thing for you to do is to allow your H-1B status to expire if there will be a gap between your resignation and the time that you file for permanent residence under your marriage case. Expiration of status is not a bar to adjustment of status in your circumstances. In addition, a change of status application to B-1 or B-2 involves an assertion that you will be leaving the country at the end of the temporary period of stay. Such an application is not to be a stopgap to your morphing into permanent residence.

1. Can I change from F-1 student to B-2 tourist and how long would it take to process?

Can I change from F1 student to B2 tourist? If approved can I travel and come back with tourist visa? Would I be receiving a copy in the mail? How long would it take to process?

Mr. Lee answers,
It may be possible to change from F-1 student to B-2 tourist, but such is mostly impractical at this time to a number of situations. The USCIS service centers are generally backed up on this type of adjudication and could well take over nine months and even longer to make the adjudication. If you file, you will receive a receipt, but it may take a long time before you receive an actual decision. If you decide to file and are still in the US by the time that your requested time is close to expiration, you should leave or take some other action to preserve your nonimmigrant status. Please note that a change of status is not a visa, it is only notated on a paper. If you travel outside the country, you would need to apply for a tourist visa in most cases to return as a tourist. 

2. While pending parents I-130 in US.  Can they travel out of US?

I have filed parents I-130 after 3 months of their arrival in US. I didn’t file I-485 yet. Can they travel out of US and come back on a visitor visa while their I-130 is still pending in US? Do they need to file for travel document I-131? Can they apply for I-485 back home?

Mr. Lee answers:
The difficulty here is that your parents’ visiting visas require nonimmigrant intent, and they could have a problem reentering the country if they are questioned by a CBP officer on that, Probably the best solution is for your parents to file I-485 applications and obtain I-131 advance parole documents to travel in and out of the US during the time of processing. I note that advance parole applications are taking time for USCIS to process, and so your parents may not be able to leave for possibly 5-10 months after filing. I-485’s are only filed in the United States. If your parents wish to process their papers overseas, they would do it on form DS-260 immigrant visa applications. 

1. Husband is waiting for visa interview on my petition I’ve cosponsor. Last year I was unemployed. What is the minimum value of income for tax return?

My cosponsor has income than 50,000 in 2020. What is the minimum value of income for tax return I’ve to add?

Mr. Lee answers,

There is no adding together of the income and assets of you and your cosponsor unless your cosponsor is also a household member. Otherwise, your I-864 and his/her I-864 are considered separately. In looking at your cosponsor’s income, the adjudicator generally looks to see whether the affidavit of support is credible and the number of dependents that the cosponsor is supporting along with any others that he or she has sponsored in the past and is still legally obligated to render support to if the immigrant later receives means tested public benefits. Looking at the poverty guidelines, income of $50,170 is sufficient to support seven individuals including the cosponsor. 

1. How to change a student visa to a tourist visa?

I’m currently an F1 student and want to change to tourist visa B2 because can’t continue school anymore. How long does it take to process? if approved?

Mr. Lee answers,
In looking at the various service centers of USCIS and their published times in adjudicating changes of status to “other” categories like B-2, they are generally taking a long time. The Texas Service Center is taking between 10-13 months, California Service Center 19-25 months, Nebraska Service Center 9.5-12 months, Vermont Service Center 11.5-15 months, Potomac Service Center 10.5-13.5 months, and the National Benefits Center 2.5-4.5 months. I note that USCIS adjudications have been delayed because of the pandemic, and have hopefully begun to speed up. 

2. Can a mistake in form N-400 be fix in the interview?

I answered NO instead of YES in question about military. I was in a mandatory Military service in my country of origin. My Interview was already scheduled. Could it be fixed at the interview? Can I have any trouble?

Mr. Lee answers,
Yes, you will be given opportunity at the time of the naturalization interview to correct any item on the N-400 application. If the officer does not ask the question, you should volunteer that you were in mandatory military service. 

3. What do I need to do to change my J-1 Au Pair Visa to marriage visa?

I arrived in the US on a J-1 Au Pair visa. It is due to expire in October, however whilst here I have met my girlfriend and we intend to get married. I am wondering how to ensure that I am able to stay here with her as we do not want to be apart. I am unable to be an Au Pair when I am married as the program states that I will have to exit the program if I am married, therefore I am trying to understand how to stay in the country with her legally until everything is processed. Any help would be appreciated.

Mr. Lee answers,
Assuming that you are not subject to a two-year home residence requirement because of the J-1 visa, you should be able to stay in the States if you are marrying a US citizen or permanent resident. With a permanent resident, you would have to file the I-485 application for adjustment of status with USCIS prior to the expiration date of your J-1. The I-485 filing would place you in a quasi-legal status until the time that the agency makes an adjudication on your application. 

4. Can and should I apply for adjustment of status with an approved I-526 awaiting a consular interview while being in USA on a b1/b2 visa?

 I had applied for EB-5 which got approved in Feb 2020. Since I was in Hong Kong, I went through consular processing and my case stands as documentarily complete at NVC awaiting an interview. Before two months I came to USA on non immigrant Business Visa (B1/B2). There is again a surge in Covid cases in HK and lockdowns and curfews are being laid down and so the Embassy is shut again. Q1) I wanted to know how it would be if I were to apply for Adjustment of Status? Q2) Are there greater chances of my getting a refusal since I came on a nonimmigrant visa and am applying for becoming an immigrant ? Would the 90 day rule adversely affect my application? Q3) Say if I do apply and get refused, would I still be able to go back to HK for Consular processing ?

Mr. Lee answers,
A concern with USCIS may well be why you are applying for adjustment of status here while you are awaiting a consular interview on the approved I-526 petition, and the related concern of whether you had a preconceived intent to adjust status when you came to the US. It may come down to an immigration examiner’s perception of what is going on. There is probability that you will be interviewed instead of an interview being waived, and in such case, the examiner may question and evaluate your explanation. I do note that the deterioration of conditions in HK vis-à-vis Covid would appear to be a reasonable explanation for deciding to adjust status instead of returning for consular processing. If you are refused, you may face problems with your consular processing in HK dependent upon the speed of resetting consular processing and the attitude of the interviewing officer toward your attempt to adjust status in the States. 

1. Can an immigrant be household member if main source of income is abroad?

I am a U.S. citizen, sponsoring my husband. He owns a business abroad and that is our household income (I am unemployed.) Can he be considered a household member on the I-864, or must it be U.S. employment?

Mr. Lee answers,
While an intending immigrant’s assets can be used to provide for support if the petitioner does not have the ability to support on his or her own, an immigrant’s overseas job income is generally not considered for purposes of an affidavit of support since the immigrant is coming to the US and supposedly giving up his or her position in the home country. 

2. How long after getting married I can file immigrant paper for my spouse?

How long after getting married to a Mexican (non-us citizen) do I have to wait to start filing for his papers? Can I begin a few Weeks after or do I have to wait for a specific time period?

Mr. Lee answers,
There is no specific time period during which a petition must be held off after the celebration of a marriage. We have had many people file green card petitions for their spouses in the week after the marriage ceremony. I note that we did see one time that a divorce decree stated that the couple could not remarry for a certain period, but other than that, I do not know of any other restrictions.

3. Fiancé Visa or Marriage Visa

Would it be easier to get my fiancé a fiancé visa to come to the US from Mexico & get married here then apply for a green card or would it be easier to just get married & then begin with the process of fixing him papers?

Mr. Lee answers,
In general, a marriage shows more of a level of commitment to a consular officer then an engagement. That being said, a consular officer will look to determine at time of interview whether-in his or her opinion-there is a bona fide relationship. 

4. Nationality changes in I-130

I filed an I-130 petition for my sister in August 2010. When I filed the petition, my sister was a Peruvian citizen. She has recently become a naturalized citizen of Spain. How can I notify the Visa center of this change? Will her change in citizenship speed up her priority date (I’m thinking maybe there are less people from Spain than Peru requesting immigration)?

Mr. Lee answers,
To notify the National Visa Center of any changes of circumstance, you can send an email communication to it at https://nvc.state.gov/inquiry. The change in citizenship will not impact your waiting time as both Spain and Peru are listed under “All chargeability areas except those listed” with visa availability in the August visa bulletin “final action dates chart” confined to those who filed petitions before 3/1/07.

5. Do I have to pay international student (F1 visa) tuition for a four year university if my i-485 is approved (Adjustment of Status)

I am an international student under F1 visa in U.S. My mother applied for her green card in 2006 and got did her interview with my father in 2019 and was approved. I didn’t go to the interview with them since I was in school, they are waiting on their visas to come but because of Covid it has been push back. But since my i-485 will be approved, do I have to still pay tuition as an international or a California resident? ( the school is UCSD )

Mr. Lee answers,
Generally speaking, an individual with a pending I-485 application is not considered to be a permanent resident with all the rights and privileges including in-state tuition payment. However, you can check with UCSD to determine whether it has a different policy. California appears to be a progressive state for immigrant rights.

1. Can I apply for a work permit in USA while on a Visa Waiver Program?

I enter by a visa waiver program for 6 months. Can I apply for a status to work?

Mr. Lee answers,
I doubt that you can apply for a work permit if entering the US by waiver for six months. I assume that the entry was not for working purposes, and it would likely take USCIS six months plus at its current pace to process an employment authorization application even if you were eligible. 

2. Can I file I 485 while I-130 is pending?

I’m under non-immediate relative (Unmarried son/daughter). I’m now in F1 status.

Mr. Lee answers,
If and when your priority date becomes current under the Department of State monthly visa bulletin, you can file for adjustment of status on form I-485. There are two monthly charts – “filing dates” and “final action dates”. USCIS determines which chart can be used during each month for filing adjustment of status applications. So for example, if the filing dates chart has reached your priority date but not the final action dates chart and USCIS decides to go with final action dates for the month, you cannot file your adjustment of status application. Also of course, you must continue to maintain your legal nonimmigrant status to file form I-485 since you are not in an immediate relative category.

3. Can I enter from Canada using B visa as my H-4 stamping is delayed in Canada?

I got my H-4 visa letter and I also have a B visa. Due to my office work I need to travel back and forth from Canada to US for family. Can I switch between B visa & H-4 during different entries? For example, I use B1/B2 first as H4 stamping is not issued, and in next visit get H-4 and use that?

Mr. Lee answers,
It seems as if the plan depends upon whether CBP believes that your entry under a B visa is for a short period of stay, and not a substitute to stay in the US for a long period of time in lieu of an H-4 visa. 

4. Change of status from H-1B to B1 and after approval of I-140 change back to approved H-1B?

My PERM is just being filed, it was delayed due to the prevailing wages delayed approval. My six years H-1B max out by Sep 30, 2021, not sure if with current Covid situation it will be approved by then. I also have approved B1/B2 Visa until 2026 with the same company that filled my PERM. My question – Is it safe to change the status from H1B to B1/B2 as both are with the same company. With current timelines, I see the possibility of getting I-140 approved by Nov’ 2021 and after that they have to apply H-1B extension again with approved I-140. During this process, can I change back from H-1B to B-1/B-2 and back from B-1/B-2 to H-1B?

Mr. Lee answers,
Assuming that you have an acceptable reason to change status from H-1B to B-1 or B-2 status in the States, your plan may be possible – but note that the change of status application will likely still be pending at the time that you have the I-140 petition approved and your petitioner is putting up papers for your H-1B. At that point, USCIS will look to see whether the change of status request is approvable before deciding on whether to put you back into H-1B status without your having to leave the States. 

5. A Green card holder wants to apply F-2B for son – currently an international student. How long will it take for his green card?

[1] I am a green card holder, want to file my son F2B. He is international student USA (India Citizen, 22 Age, un-married). How long it would take his GC? [2] While on Student visa (F1) if i file F2B will that restrict him getting OPT based on his Masters?

Mr. Lee answers,
Currently, the August visa bulletin “dates for filing” chart shows that there is visa availability for those who submitted petitions before 9/22/16 under the F-2B category for unmarried sons and daughters over the age of 21, and the “final action dates” chart shows availability for petitions filed before 9/22/15. So it will likely take approximately five years before an adjustment of status application can be filed as long as USCIS accepts the “dates for filing” chart when your son’s priority date becomes available. (That is assuming that visa chart progression remains approximately the same). On the question of OPT, in our experience, we have not seen students denied OPT by USCIS where they have had immigrant visa petitions pending or approved. 

 

1. Can My Dad Come Back to the US?

My dad was deported back in 2013 and he was deported due to a false charge that he had against him and I was wondering if he can come back in to prove that he is innocent and he also had a disability too! I don’t know if there can be something done about it!

Mr. Lee answers:
Generally speaking, DHS would not allow a deportee to return to disprove a charge for which he was convicted or pleaded guilty. To DHS, having a disability is not a persuasive reason for coming back to the US, especially with the present emphasis on enforcing the public charge provisions.

2. H1-B 6-years Tenure

I was in USA from Sep 2014 to July 2018. As my extension was denied I left USA . I was approved again as cap exempt in September 2019 again and re-entered USA in Jan 2020 So in current tenure am I eligible To get 6 years again till Jan 2026 since I Was already outside for more than a year?

Mr. Lee answers:
As you were outside the US for more than one year before assumedly filing and coming back in under a new H-1B petition, you are eligible to remain in H-1B status for another six years. 

3. Should a Receipt # be Generated or Is It Enough If the Petition is Filed Within the 60 Days Window to be Considered in Status.

I now have a new employer B willing to transfer my Visa. They are filing LCA on July 21st. My questions are 1.) My 60 day grace period ends on August 13th. 2.) Should a receipt number be generated or is it enough if the petition is filed within the 60 day window to be considered in status.

Mr. Lee answers:
It is sufficient that a petition be filed within the 60 day grace period for an H-1B transfer. A receipt is not required as long as the petition is properly filed and not rejected for any errors. I note that USCIS has been giving warning that its issuance of receipts is delayed. 

4. I am With a Pending Asylum Case. I Want to Withdraw Asylum and Go Back to My Country.

I have applied Asylum in May 2016 and my asylum case is still pending. The situation in my country is getting better and I want to withdraw my asylum case and go back to my country. In the future, If I want to come to the US, Will I get a visitor visa?

Mr. Lee answers:
The issuance of a visitor’s visa to the United States after leaving the country is in the discretion of the US consular officer. The length of time that you stayed in the US will be a negative factor in deciding whether to issue the visa. I note that if you are in proceedings before the immigration court, you will find it very difficult to withdraw your asylum case. If your pending asylum case is with USCIS, there is the added risk that the asylum office may issue you a notice to appear before the immigration court instead of only terminating your case. 

5. Can I Stay More Than 1 Year if My B2 Visa Extension Application (I-539) is Still In Review?

My in law came to the US on March 2020, and we requested extended visa before 6 month expiration of visa. It is still under process and my in law passed 1 year in the US now. Can she still stay here with pending application?

Mr. Lee answers:
The immigration rules allow a person with a pending application to remain in the US until the adjudication. That being said, if USCIS approves an extension of stay, it will only give the period of time requested. As such, if the applicant receives the approval after the requested time has passed, he or she immediately becomes illegal as there is no legal authority to stay past an authorized date. An applicant who wishes to remain in the US past the date requested on an extension application should file another timely request for extension. If not timely, an applicant can file a late extension request giving the reasons for the delay in filing.