Q&A’s published on the World Journal Weekly on May 22, 2022 1. My H-1B 6-year period is ending on May 31, 2022. My home country is India. My employer is stating my green card process now 2. How long does it take usually for I-130 to get to the NVC stage? 3. I-751 filed jointly then divorce? 4. Will My Divorce Affect my Naturalization Application? 5. Pending I-485 (marriage base), maintaining F1 status, using EAD 6. Can An Illegal alien obtain a professional license such as for cosmetology?

1. My H-1B 6-year period is ending on May 31, 2022. My home country is India. My employer is stating my green card process now

My firm is going to start the first step of GC filing which is (PWD + Job Ad) at Feb end. And Perm approval can take more than H-1B max out time. Current processing time (PWD + Job Ad) can take 8 months. So my PERM will be filed around Oct 1. To get 1 year of ext after H-1B max out, PERM should be pending for > 1 year. But between Oct 1/2022 (perm filing day) and my last H-1B day(May 31/2023), there are only 8 months. I have 1 month of time to recapture because I was out of US on H-1B, so my H1B can be extended till June 30, 2023 after recapturing the time. But I still left with 3 months time before the PERM pending completes 1 year time. Can I go to back to my home country now on vacation for 1 month (Apr 1/2022 – Apr 30/2022), after that I will work from India for 2 months (May 1/2022- June 30/2022). That way when I return from India, My employer can extend the H-1B to recapture the lost time which is in total: 1 month(earlier vacation) + 1 month(this vacation) + 2 months(working)

Mr. Lee answers,
There is the possibility that you can work in India to extend the time that you can recapture for purposes of your H-1B visa status. You can also wait and see whether the PERM labor certification will be approved within an acceptable period of time. If so, your employer can apply for premium processing of the I-140 petition. If the I-140 is approved, the American Competitiveness Act in the 21st Century (AC-21) allows for extension of H-1B status so long as the beneficiary’s country quota is backlogged.

2. How long does it take usually for I-130 to get to the NVC stage?

I filed an I-130 as of November 15, 2021. I got married to my wife in Nigeria in August 2021 and have petitioned to bring her to the US. My petition is with the Texas service center for several months now, with no change. According to their site, it can take up to 10 months, so my question is does that mean just for the I-130 to be processed or for it to get to NVC and process so that she can come to me? Also can she come to visit me in the US or will this cause issues with immigration?

Mr. Lee answers,
Each of the service centers of USCIS have their own processing times. The estimated range from the Texas service center means that it may take up to 10 months for the I-130 to be processed. After approval, I-130 petitions are expeditiously sent to the National Visa Center within days. After receipt by the NVC, you and your wife would send the NVC documents and when the documentation process is complete, the NVC will work with the US embassy or consulate to schedule an interview for your wife in Nigeria. On visiting during this period of time, your wife should ensure that she tells the truth about the pending petition and does not commit fraud or misrepresentation in either obtaining a visa (if needed) or speaking with a US immigration officer at the port of entry. 

3. I-751 filed jointly then divorce?

I applied jointly for the removal of conditions in January 2019. My ex husband at the time was emotionally abusive and cheated on me with prostitutes on craigslist ( I have screenshots and copies of the messages and pictures he was sending). We had a real marriage and a lot of strong financial evidence, however I could not stay with him anymore due to what I mentioned. I consulted a lawyer who told me to file for divorce but to not notify USCIS unless they send a request for evidence or call me in for an interview. One of the reasonings for this is that in California, the minimum time to get a divorce decree is 6 months. At the time I filed in May, the I751 application had been pending for 5 months. As soon as a I filed, I moved out and changed my address with USCIS. Fast forward to February 2020, I received my green card without an RFE or an interview. Of course I was relieved and happy. My divorce was finalized a year after receiving my green card. I am terrified, help!

Mr. Lee answers,
In my opinion, your immigration status is likely okay. You filed for the I-751 while you were still living together, you did not begin a divorce action until five months later, you never received an RFE or interview notice, and you received the green card before the divorce was finalized. I do not believe that you had an affirmative duty to tell USCIS during the time the petition was pending that you were initiating divorce proceedings. 

4. Will My Divorce Affect my Naturalization Application?

I am a permanent resident since 2008. I am waiting for US citizenship interview. Can I file for divorce? My spouse is a green card holder too. Is it affect for my naturalization?

Mr. Lee answers,
If you obtained your permanent residence in 2008, I do not see how filing for divorce at this time would have any impact on the naturalization interview unless you immigrated through your spouse’s petition and USCIS discovers that the marriage was fraudulent. 

5. Pending I-485 (marriage base), maintaining F1 status, using EAD

My green card application is pending. I received my EAD couple days ago and started using it. I am also F1 student. My question is, once start using EAD am I falling out of f1 status? Or is it possible to maintain F1 status as well while using ead? In case terminate my F1 status and my green card application gets denied, will I still have a chance to see a judge?

Mr. Lee answers:
The difficulty is that the EAD use is inconsistent with F-1 status, and USCIS would consider you out of status if you only had to rely upon the F-1 to stay legally in the US and it knew of your use of the EAD. If your green card application is denied and your F-1 status terminated, you would have the right to see the immigration judge although the timing of hearings is difficult these days because of the pandemic. I also note that under the Biden administration, your type of case would not be considered a priority for removal, and so you may not receive a notice to go to immigration court even if you wanted to do so.

6. Can An Illegal alien obtain a professional license such as for cosmetology?

I applied for DACA a few months before they put a hold on DACA last year.

Mr. Lee answers,
While venturing to say that state professional licenses are generally not given for immigrants without status, you can check your particular state board’s rules on licensing to ascertain whether there is room for exception.