1. H-1B petition was just denied – do I have any options other than to leave?
My H-1B sponsor is a nonprofit organization associated with a university and filed my H-1B petition in June 2019. We received a request for evidence, responded to that, but got a denial on November 1. My optional practical training after graduation ended on August 15, 2019. What is my current status and what can I do?
Mr. Lee answers,
With the ending of your OPT, you are only given a 60 day grace period to leave the United States or to seek some other status. That time unfortunately ended in the middle of October. Denial of an H-1B petition in your circumstances does not give you any extra periods of time to remain here in the US. Your H-1B sponsor may look at the denial and see whether it can file a new H-1B petition if there are issues that can be overcome by additional explanation or evidence. It can also decide whether the evidence is sufficient for appeal or a motion to reopen and reconsider within 30 days of the denial to the Appeals Adjudication Office (AAO) of U.S.C.I.S. Please note, however, that such does not stop the accrual of unlawful presence which begins on the date of denial. If you are in the US for over 180 days from date of denial and lose the appeal or motion, you would incur a three-year bar upon returning to the US if you left. Depending on the strength of your case, you may decide in lieu of an appeal to the AAO to appeal to the US District Court. Many federal district courts have been more sympathetic to H-1B appeals than the AAO. You may also decide to seek a reinstatement of F-1 status if you intend to continue going to school, or a late change of status to some other visa category for which you may be eligible. Finally you may decide to leave the US, and later return to the country with legal visa status. Please note that for most countries, you would have to pass a visa interview at the American consulate or embassy before returning to the States.
2. Permanent resident sponsoring new spouse.
I am a permanent resident and me and my girlfriend wish to be married. She is not a permanent resident or US citizen, but is studying as an F-1 student. This will be a legal marriage, and we have known each other for three years. If we marry, will she be able to live and work here?
Mr. Lee answers,
Currently the F-2A visa category for lawful permanent residents sponsoring spouses and unmarried children under the age of 21 is open. Therefore if you are married, and assuming that the visa category remains open, you can file for her with form I-130 petition for alien relative, and she can simultaneously file an I-485 application to adjust status to permanent residence. If she wishes employment authorization or advanced parole to leave the US during the time of the processing, she can make separate applications for those at the same time on forms I-765 application for employment authorization and I-131 application for travel document.
3. Desperate to help out my husband who is illegal and has an order of deportation.
I am a US citizen, married to a nice man, and our baby was just born a few months ago. I knew he was illegal, though he lately told me that not only did he sneak across the border, but that he was caught and ordered deported, but never left. Now I am very scared, especially with the baby. I’m afraid that when he goes off to work in the morning in his truck, he may not come back. What can I do to help straighten out his status?
Mr. Lee answers,
You and your husband would have to undergo a four-part process assuming that he has committed no excludable crimes nor fraud before a US government official. You would initially file an I-130 petition for alien relative to accord recognition that this is a bona fide marriage and that you are a US citizen. At the same time or shortly thereafter, your husband would file for an I-212 application for advance permission to return to the US after removal or deportation. U.S.C.I.S. would be looking at a mixture of factors including hardship, the seriousness of his immigration violations, and his good record in the States. If the I-212 application is approved, he can then file for an I-601A application for waiver of grounds of inadmissibility, in this case from the ten year bar which is occasioned by his remaining in the US illegally for over one year. The standard for the adjudication is that your wife and any other qualifying relative like your parents if either or both held US citizenship or lawful permanent resident status would suffer extreme hardship if you had to return permanently to your home country. If all the petitions and applications are approved, your husband would then undergo regular consular processing at the American Embassy or Consulate in his home country with jurisdiction over immigrant visa applications. Upon successful interview, he would return to the US as a permanent resident.
4. Having problems with wife who is sponsoring my daughter, her stepdaughter – is there any effect on the application?
I was sponsored by my wife who is a US citizen and received my permanent green card. Last year, my wife agreed to sponsor my daughter who is 17 years of age in China. The I-130 petition is approved, but me and her have marriage problems and we are living separate at this time. Can my daughter still get the green card? If not, what should I do?
Mr. Lee answers,
A step relationship depends upon the validity of the underlying marriage. In the event of legal separation or divorce, your daughter would be ineligible for the green card as the bond between her and your wife is through your marriage and not by blood. To keep the case going, the best solution is to reconcile with your wife. The practical difficulty in these cases even if there is no legal separation is that you and your daughter are at the mercy of your wife as to whether she will continue the sponsorship. Currently the F-2A category for unmarried children under the age of 21 of lawful permanent residents is open, so your alternative is to file your own petition for her and the waiting time would be approximately one year taking into account processing times of both U.S.C.I.S. and the US consulate or embassy.
5. Can my daughter emigrate with me to the States now that she is 25 years of age?
My brother filed for me under the F-4 category for the sister of a US citizen in the end of November 2006. My petition was approved by Immigration in February 2010. My daughter was included in the petition, but she is now 25 years old being born in July 1994. Is she eligible to immigrate with me to the US?
Mr. Lee answers,
The priority date (if you are born in any other country than India, Mexico and the Philippines) was reached in October 2019. Under counting rules of the Child Status Protection Act (CSPA), she was 25 years and approximately 3 months old when the priority date became current. She is given a credit to her age for the time that the I-130 petition pended with U.S.C.I.S., in this case approximately 3 years and three months. As she was approximately 4 years and three months older than 21 in October 2019, she would be approximately 22 years old under CSPA counting, and would not qualify to immigrate with you under current law. I do note that there is some hope in the pending legislation sponsored by Richard Durbin, the Democratic senator from Illinois, in the RELIEF Act which would allow children to emigrate regardless of their present age so long as they were under the age of 21 on the date of I-130 filing.