Q&A’s published on the World Journal Weekly on January 17, 2021 1. My H-1 change of status got approved and I have a L-2 extension in progress. If my L-2 is denied will I maintain my H-1 status? 2. Applied for asylum after being in the U.S. over 1 years and used a fake social security number. 3. Can my husband file a petition for me if he did not file taxes for the last 4 years and he was gainfully employed? 4. Affidavit of Support (I-864 Form) 5. Steps for I-601A?

1. My H-1 change of status got approved and I have a L-2 extension in progress. If my L-2 is denied will I maintain my H-1 status?

My L2 expired on 8/25/2020 and I filed for L2 extension. Meanwhile my employer filed H-1B change of status which got approved on 10/15/2020 and now I have a valid I94. On 10/20/2020, I sent a letter to USCIS to withdraw my L2 petition. On 10/23, I received NOA to appear for biometrics for I-539 ( L2 extension approval). NOA says that if I do not appear for biometrics, my petition will be marked as abandoned. My question is, if I do not go to biometrics and my L2 is denied, will I keep my H1B status? – Does “Last Action Rule” apply in this case?

Mr. Lee answers:
The last action rule generally has to do with approvals and not denials. If you are already approved for a change of status on your H-1B, an L-2 denial should have no effect since you are already holding a valid legal status. 

2. Applied for asylum after being in the U.S. over 1 years and used a fake social security number.

If someone came here with a visa & stays & it’s been expired for over 5yrs. Later applies for asylum and gets approved. Is that legal? Even while using a fake social security number to work in the 5/6 years period.

Mr. Lee answers:
The awarding of political asylum depends upon whether an individual can prove past persecution or a well-founded fear of persecution on account of race, religion, political opinion, membership in a social group, or nationality. A person applying for asylum who has been here over one year would have to show changed circumstances. Use of the fake Social Security number is generally not a ground to deny an asylum application although it may be considered a discretionary factor. 

3. Can my husband file a petition for me if he did not file taxes for the last 4 years and he was gainfully employed?

My husband has not filed a tax return for the years 2016- 2019. Can he petition for me?

Mr. Lee answers:
If your husband was gainfully employed and did not file taxes for the last four years, he is in violation of the tax laws. Without a record of having worked, it would be difficult for your husband to file for you and for you to pass the public charge ground of inadmissibility. If he really wishes to do so, he should consult an accountant or tax lawyer who can advise as to whether he can file late tax returns and the penalties for doing such. 

4. Affidavit of Support (I-864 Form)

I am trying to apply green card for my fiancé and have difficulties to find the right adjusted gross income. Is the one in first line on W-2 form or 8b 1040 form. 

Mr. Lee answers:
Your guiding light on what figure to put down should be according to the instruction on the I-864 form itself that “For purposes of this affidavit, the line for Total Income on IRS Forms 1040 and 1040A will be considered when determining income. For persons filing IRS Form 1040 EZ, the line for adjusted gross income will be considered.”  

5. Steps for I-601A?

I entered the U.S without documentation when I was 2 years old. I recently married my husband and we’re trying to get my papers. What are the steps?

Mr. Lee answers:
I assume that your husband is either a US citizen or permanent resident. Unless you qualify under section 245(i) having had a labor certification application or immigrant visa petition filed on your behalf by 4/30/01 and having been present in the US on 12/21/00, you would not be allowed to adjust status and must ultimately consular process your paperwork. The first step is your husband filing form I-130 petition for alien relative for you, having it approved and forwarded to the National Visa Center (NVC) of the Department of State, and then filing an I-601A application to waive the 10-year bar brought on by your unlawful stay. The standard for passage of an I-601A is proving extreme hardship to your husband (or a parent if your mother or father is a US citizen or permanent resident). Kindly note that this waiver application is only available to those who are inadmissible only because of being in the US in violation of law. Assuming that the waiver application is approved, you would complete the preliminary processing at the NVC, which would then set up an interview for you at the American consulate or embassy in your home country. Assuming that there are no other complications, you would likely return to the US with permanent residence within 30-60 days.