Q&A’s published on Lawyers.com and the Epoch Times on February 7, 2020 1. I came back in with my California ID.  How can I now apply for my green card? Do I have to return home? 2. H-1B Extension filed on 1 day before I-94 expiry date. When should I apply for change of status from H1 to H4 to avoid out of status? 3. My husband had a misdemeanor for theft under $50 which has been dismissed. Will that affect his application to become a citizen?

1. I came back in with my California ID.  How can I now apply for my green card? Do I have to return home?

Married to a U.S. citizen, have one child.

Mr. Lee answers:
If you passed an immigration inspection coming back to the United States with your California ID, you would appear to meet a requirement of adjustment of status in the US which is to either be inspected and admitted or paroled. You would have the burden of proof to show that you actually entered through this method. In addition, dependent upon the circumstances, you may have to overcome some obstacles including obtaining a waiver for misrepresentation if there was trickery at the point of inspection or obtaining a waiver of the 3 or 10 year bar if you illegally stayed in the US for 180 days or one year respectively (dependent upon your status) before going outside and coming back into the country.

2. H-1B Extension filed on 1 day before I-94 expiry date. When should I apply for change of status from H1 to H4 to avoid out of status?

I am currently on 7th year H-1B & my I-94 expiry date is 3/12. My employer applied for 8th year extension based on pending I-140 on 3/9. I feel my out of status will start from 3/12 & will not have chance to re-apply for either H-1B extension or change status from H-1 to H-4 if my H-1 extension get denied. Please let me know if I need to file for H-1 to H-4 immediately or wait until H-1B extension result.

Mr. Lee answers:
If your I-94 expiration date was March 12 and your employer applied for your eighth year extension on March 9 and the H-1B petition was properly receipted by the expiration date, the extension petition would be legal as long as the I-140 or labor certification application has been pending 365 days. In point of fact, most immigration practitioners including me would argue that you have a 10 day grace period from the ending of your H-1B status in which the petition extension could be filed. I do not quite understand the concern unless there are other factors in your H-1B extension petition which have not been explained.

3. My husband had a misdemeanor for theft under $50 which has been dismissed. Will that affect his application to become a citizen?

My husband it a permanent resident. We want to send the application to become a citizen to help me get my residency. We have filled out the application but are uncertain on one part. About 2 years ago he was charged with theft under $50 which we worked on and got it dismissed but when he has applied for a job it still appears. We want to know if it will affect his application.

Mr. Lee answers:
With the N-400 application for naturalization, your husband must put down the information concerning his arrest and the disposition. Since the case was dismissed, it should not have an effect on the naturalization application unless your husband admits that he committed the crime.