Q&A’s published on the World Journal Weekly on July 25, 2021 1. Can My Dad Come Back to the US? 2. H1-B 6-years Tenure 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. 4. I am With a Pending Asylum Case. I Want to Withdraw Asylum and Go Back to My Country. 5. Can I Stay More Than 1 Year if My B2 Visa Extension Application (I-539) is Still In Review?

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.