Archive for the Adjustment of Status Category

Can My Out of Status Boyfriend Get H4 Status Through Me?

Posted in Adjustment of Status, H-1B, Nonimmigrant Visas, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , , on August 3, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Hi GuruImmigration, I am currently an H1B visa holder. I want to marry my boyfriend who’s tourist visa expired in September 2012 (so he’s out of status). My company just informed us that in October 2014, they would petition us if we want to. My question is, If I marry him now, can he adjust his status to H4? If not, once my employer applies for my greencard, can he adjust his status and receive his greencard when I get mine?

Please help!

Answer:

Normally, spouses of H-1B visa holders receive H-4 status.  However, because your boyfriend’s already out of status, he cannot “change status” from tourist visa to the H-4 visa while still in the US after he married you (it’s not “adjust status” because that term is only for going to green card).  He must go back home to try to receive the H-4 visa at the U.S. consulate.  This is why remaining in-status is so important.

The problem is, because he’s been out of status for more than a year by now, he will get the 10-year bar as soon as he leaves the US and tries to apply for admission as an H-4 at the consulate.  The bar means he cannot be admitted back to the US for 10 years from date of departure.  Unfortunately there will be no waiver possible for this, which is only possible if extreme hardship can be shown to a spouse or parent who is a US citizen or legal permanent resident (LPR or green-card holder) when he is denied the H-4.  In this case, you are neither a citizen nor LPR, so no waiver is possible (assuming he doesn’t have a parent who’s a citizen or LPR).

If you manage to receive the green card through your employer in the future, then your future husband will also not be able to adjust status by being a dependent on your case because he’s been out of status for so long.  He’ll have to go home and try to apply for permanent residence there.  However, the 10-year bar will also apply if he leaves the US.  The only difference then will be that you will be an LPR, so the two of you will have to prove that you’ll experience extreme hardship if he is denied the visa to immigrate (due to family separation and other factors). It will be a hard case, but not impossible, and will require attorney assistance.

Follow-up question:

How about this statement I found on another site:

“The dependent spouse and child of an employment-based beneficiary are considered derivative beneficiaries. They are therefore eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary.”

Follow-up answer:

Yes, that statement would indeed be true when the derivatives are in-status. If the derivatives are out of status while in the US, they cannot adjust when it’s employment-based unless it’s only 180 days or less out of status. Unfortunately, your boyfriend has been out of status for more than a year.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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J-1 Out-of-Status and Happily Pregnant

Posted in Adjustment of Status, Lawful Permanent Residence, Nonimmigrant Visas with tags , , , on July 22, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

This summer the Blog will be updated frequently with the popular question/answer feature, composed of actual and recent consultation questions taken from the Guru’s file and his answers.

Dear GuruImmigration,

I have a J1 visa for 3 more years but the contract i came for its already expired, its been 1 years after that.

I just got pregnant and our marriage plans are going to be much sooner now.

We dont have insurance now and im not working so we were thinking i could get insurance from him after marriage.

And if not maybe get all our papers done so we could go to my native country and i could give birth there.

We really dont know exactly what to do, any idea? Thanks a lot.

Answer:

First of all, congratulations for your pregnancy! If you were not on the J-1, then you could marry your US citizen fiancé (assuming he’s a US citizen), and adjust status to a green card while remaining here. Unfortunately, as you probably know (or should know), most J-1 visas have the two-year foreign residency requirement preventing them from applying for a green card until they go back and live in their country for at least two years. You would have to check the J-1 program that sponsored you and see if the requirement applies to you.

Assuming it does apply to you, you would have to apply for a waiver to waive this requirement. The waiver can be obtained through a few ways, including showing extreme hardship to your US citizen spouse and child if you were forced to live apart from them. It’s not easy to get, however, and realistically, usually only succeeds with help of an immigration lawyer. I recommend you consult with one.

As for your health insurance, as far as I know, a spouse is covered on his/her spouse’s health insurance if the premium is paid, regardless of their legal status in this country.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Nonimmigrant Visas and Why Maintaining Status in the U.S. Is Important

Posted in Adjustment of Status, Change of Status, Extension of Status, Lawful Permanent Residence, Nonimmigrant Visas with tags , , , , , , on August 14, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people ask us what is a Nonimmigrant Visa? Isn’t everybody an immigrant to the United States? Well, no. Even though the media and everyday language tend to refer to everyone who comes to the U.S. as an “immigrant,” commonsense would dictate that that is not always the case. There are people who simply want to come here to visit for a while, or for another purpose such as going to school or work for a company for a period of time. For those people, the only way they can come to the U.S. legally is to be approved for a nonimmigrant visa at the U.S. consulate in their homeland.

These types of visas are always issued so that the person is allowed to stay for only a limited length of time in the U.S., never permanently. The period could be as short as a few months to as long as a few years, depending upon the purpose the person has in coming to the U.S. The problem is when people treat their nonimmigrant visa as a permanent visa. They begin to feel they can just stay here indefinitely. We actually get this quite often with clients who consult with us. Most of them of course know ahead of time they’re allowed to stay here for a limited length of time, yet many call us after their stay has expired because they assumed that an immigration lawyer would make everything alright. Well, usually we can help, but sometimes we cannot. After a person has overstayed, it is usually difficult to fix the problem or would be very costly to the client to fix, short of the client going back to their country.

Consequences of Overstaying Visa

What are the consequences of overstaying one’s nonimmigrant visa? First of all, you will not be allowed to extend status (get more time on your stay here), but must leave the U.S. and reapply for a new entry. Secondly, you’re not allowed to change status while in the U.S. to another nonimmigrant visa. Say you came here with a tourist visa to visit friends at an American college, but then decided you like the school so much you want to go there, too. You can apply to change status to a student visa if you do so before the end of your tourist stay (which on a tourist visa is usually 6 months). However, if you wait until after your stay has expired, you won’t be allowed to change status but must go back to your country and apply for a new student visa.

Or, say you’re here on a student visa pursuing a bachelor’s degree at an American university. Now, you’re graduating and have received a job offer at a U.S. high-tech company. You would need to obtain an H-1B visa in order to be allowed to work at your job. You can apply for change of status to H-1B if you do it prior to the end of the time allowed you as a student (usually 60 days after graduation or end of optional-practical-training work permit), but not after.

Another consequence of overstaying a nonimmigrant visa, which is very undesirable and can be disastrous, is the inability to adjust your status to permanent residence (not to be confused with “change of status” discussed above), as described below.

The worst consequence of overstaying is that an overstayer is subjected to removal (deportation) at any time. Whether they will actually be served papers to go to court for removal proceedings is another story (due to lack of resources on the part of Immigration & Customs Enforcement). But understand if a person is out-of-status, this could happen any time. Jan. 19, 2010 update: For example, see the comment of another reader whose brother overstayed a tourist visa for two years and thought he could continue to stay here, until one day the police or immigration agents came to his house to put him into deportation.

Extension & Change of Status

Extension of status or change of status (to another nonimmigrant visa type) while still in the U.S., when allowed, is obviously highly desirable since the person does not have to leave and reapply for a new entry or apply for the new type of visa at the U.S. consulate in that person’s country. He or she would apply with U.S. Citizenship & Immigration Services (USCIS) here and await a decision while remaining in the U.S. This obviously saves time, money, and hassle.

Sometimes a person overstayed their nonimmigrant visa through no fault of their own. In those unusual situations, the immigration law does have a provision to excuse the overstay and the person can still apply for change of status. However, it is not always easy to prove that it was no fault of one’s own. The assistance of an experienced immigration lawyer is usually necessary in those cases.

Of course, a person who overstayed their visa can leave the U.S. and reapply for the new visa at the U.S. consulate in their country. However, at the visa interview, their overstay will be discovered and the visa probably denied. Or, if they try to come back to the U.S. on the original visa, usually the overstay will be discovered by the immigration officer at the airport, and that visa will be canceled and the person denied entry. Ouch!

By the way, the length of validity, or when the nonimmigrant visa expires, as printed on the visa itself, has nothing to do with the actual length of stay permitted by the immigration officer when a person arrives in the U.S. For example, many B-1/B-2 tourist visas have a 10-year expiration printed on them. That is simply the length of time the same visa can be used to apply for entry at the airport. The tourist will not be allowed, as some people mistakenly believe, to visit and stay in the U.S. for ten years! The immigration officer will give him or her 6 months in most cases because that’s the maximum length of initial stay on a tourist visa (it can be extended by another 6 months maximum while still in the U.S.). The officer will give the tourist a little slip called the I-94 with the red-ink expiration date that’s stapled to a page inside the passport and stamped with the final day of stay. Some nonimmigrant visas, such as the F-1 student visa, will receive the I-94 with the “D/S” notation, meaning that they are allowed to stay for the “duration of status,” or until the end of their educational program or other activities.

A nonimmigrant visa is like a contract or agreement. If you break the promise of complying with the terms of the agreement (by overstaying), you are penalized under the agreement. Instead of contractual damages, however, you are penalized by not being allowed to extend or change status or to return quickly to the U.S.

Serious Consequence of Overstaying: No Adjustment of Status to Green Card

Many nonimmigrant visa holders eventually are petitioned for a green card by a close family member who is a U.S. citizen or legal permanent resident (LPR), or petitioned by a U.S. company for a green card while they’re in the U.S. The problem: unless they are being petitioned for as an immediate relative, overstaying by even one day will result in not being able to adjust to green-card status in the U.S., and they must go back to their own country for U.S. consulate processing. Most people, when they have a choice, would rather go through adjustment of status here rather than do consulate processing as it is obviously less costly and less time-consuming.

However, there is quite a large population of nonimmigrant visa holders who have overstayed by more than 180 days in the U.S. The problem is, even if they have an approved I-130 family petition and not classified as an immediate relative, as soon as they set foot outside the U.S. to go back to their homeland to apply (if they want a green card – there is no other way), the 3- or 10-year bar will kick in. As a result, they will not be approved by the consulate for the final visa to return to the U.S. for 3 or 10 years, unless they qualify for the extreme hardship waiver, which is not easy to get. This is a very risky situation. Only those non-immediate relatives who have I-130 petitions with priority dates (filed dates) on or before April 30, 2001 will be spared this return journey to their country and can adjust their status here.

Good News for Overstayers

The good news is that, as we described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, by marrying a U.S. citizen in a bona fide marriage, even an overstayer can remain here and adjust their status to green card. Indeed, being a spouse of a U.S. citizen is one type of immediate relatives mentioned above. Perhaps because that option is so readily available, many people don’t take being out-of-status on their nonimmigrant visas too seriously since they know in the back of their minds they could always marry a citizen in the future.

Of course, a true and bona fide boyfriend or girlfriend may not be available at a given time because one is not in love! If that’s the case, such a person may continue to live in the U.S. out-of-status, which is not easy at all since he or she won’t be able to obtain a work permit or social security number legally. A person here on an expired work visa, such as an H-1B, might have had a social security number issued previously when he or she was working in legal status, but once they become out-of-status, although the SSN might still exist the person cannot legally obtain work authorization. Thus, people who have been out-of-status for a long time eventually get tired of living “underground” like this and call us for help on a marriage case. At that time, we are of course happy to help and explain the options available, especially the potential risk of having a marriage that does not appear real. But for the most part, people are sincere and have a genuine citizen spouse willing to help them and the process to get the green card is smooth.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?

Posted in Adjustment of Status, Immigrant Visas, Lawful Permanent Residence, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , , , on August 7, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

In a previous post, “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, we promised that we would discuss the hard, maybe extremely hard, marriage cases. Well, those are the ones in which the applicant came to this country illegally, the vast majority of times by crossing the border without inspection. There is a huge number of these folks living in the U.S., especially people from Mexico, El Salvador, Guatemala, and sometimes mainland China. That’s not a surprise since the U.S. southern border was and still is to some extent relatively easy to cross without inspection.

It usually comes as a shock when we tell these people that even though they are married to a U.S. citizen, they still must go back to their homeland to obtain final approval to return permanently to this country, unless they had a previous immigrant petition filed for them by April 30, 2001. However, most people simply don’t have the benefit of having a previous petition filed for them, so the green card cannot be approved while they are in the U.S. For example, Mexicans in this situation would have to travel to the U.S. Consulate in Juarez, Mexico, which is just across the border from El Paso, Texas, to be interviewed and obtain approval, a process called “consular processing.”

Just across the border from Texas? No problem, let’s book a ticket…

But wait, not so fast! The problem is, these people had been living in the U.S. illegally for many years prior to departing for their homeland. If at least a year illegally, which is common, then the immigration law imposes a harsh 10-year bar against these people from getting their cases approved if they are now in their country trying to apply to return, even if they have a U.S. citizen spouse and children waiting back in the U.S.! This is perhaps even a bigger shock to people. If more than 180 days to less than a year illegally then they face a 3-year bar from returning, which is still too long.

Note: These bars apply not only to people who came to the U.S. illegally and then leave the U.S. (to apply overseas with or without full knowledge of these bars), but also to those who have been out-of-status on their visas (came legally) and then leave the U.S. before getting a green card (the departure is the key, if no departure then no bar). Also, we get asked all the time whether a child “brought” here by his or her parent “unwillingly” is considered to come here illegally. The answer is yes, there’s no excuse! If the child crossed the border without inspection (illegally) with his or her parents or other people, the child will have the 3- or 10-year bar be an obstacle now, unless he or she leaves the U.S. by the time they turn 18 1/2 and is trying to apply from overseas.

We’ve seen many people made this journey without adequate prior information and legal advice, and now they’re stuck in their country without a way of returning to the U.S. except by entering illegally again. Juarez, Mexico, is used here as an example only. If a person came here illegally from a country much further from the U.S., the journey back to the homeland and then being stuck there because of the bar is a scary prospect! Only if they had been illegal in the U.S. for 180 days or less will there be no bar, but not too many people fall into that category. Also, time living illegally in the U.S. while under 18 does not count.

These bars were put into the law by Congress in 1996. Since then, many of us in the immigration law community have been pushing Congress to get rid of them. We may have some success with the new Obama Administration in the next four years. Meantime, the same law that added these bars does provide a way of overcoming them, and that is through what’s known as the “extreme hardship” waiver. Basically, the applicant has to prove to the immigration officer that the denial of their case (which means no visa issued to enter the U.S.) would result in extreme hardship to his or her spouse or a parent, if the spouse or parent happens to be a U.S. citizen or legal resident.

Extreme hardship is not an easy standard to meet. It is not merely the claim that you will be separated from your spouse and family in the U.S. because every one of these cases involves separation. It is something more, encompassing emotional, psychological, financial, and material hardship that the family will suffer. Documents and evidence must be submitted to demonstrate these hardships. For a realistic chance for the waiver to succeed, all the evidence should be marshaled and put together by an immigration attorney experienced in this type of matter. Otherwise, it will be too easy for the consular officer to deny the waiver.

To make it clear, the 3- and 10-year bars do not take effect if the person never leaves the U.S. However, if they remain here, they cannot become legalized under current law if they are not immediate relatives. There is no way to get their papers here! People continue to ask us if there is a way but no, there is absolutely no way to do it while remaining in the U.S., we cannot do magic if it’s not within current law. It’s the person’s choice, of course, to go or to stay. Going will lead to possible approval by the consulate overseas for permanent residence at a considerable risk, while staying will lead to the same old same old of being illegal in the U.S. and not having any papers. It’s really almost a Catch-22 situation for immigrants.

2013 update:  For certain applicants who are immediate relatives and who are already in the U.S., a new “provisional waiver” has been available since March 4, 2013, where the applicant can apply for the waiver here rather than being forced to apply only in their home country.  Thus, the Catch-22 situation is eliminated for these applicants.  However, the applicant has to have a spouse or parent who’s a US citizen or has a green card in order to qualify for this provisional waiver.

When you search the internet for information on green card through marriage, be careful of sites that discuss how the immigrant spouse can file for “adjustment of status,” “adjustment,” or “Form I-485” without even mentioning these bars. “Adjustment of status” is the process of filing for the green card here in the U.S. without having to leave. It simply is not possible if the immigrant came illegally and is now relying on a petition filed after April 30, 2001!

The only exception for the immigrant spouse who came illegally to the U.S. is if he or she had a previous immigrant petition filed for them prior to or on April 30, 2001. This could have been a family I-130 petition filed for them by a relative or former relative who was a U.S. citizen or legal resident, or even a labor certification or employment petition filed for them by an employer offering a permanent job. If that is the case, the good news is that the person does NOT have to travel to the U.S. consulate to get their green card but can adjust their status here. This is the famous 245i law that many immigrants have heard about. They would fall into the “easy” cases described in our previous article. An extra $1,000 penalty is necessary in addition to regular filing fees, but that’s a whole lot better than having to leave the U.S. and be confronted with the 3- or 10-year bar!

Update: A lot of people married to US citizens (or planning to marry) have sent us comments and questions after reading this article, who arrived in the U.S. with a visa or otherwise inspected upon entry, and are worried now that they have been out-of-status for so long. Please note that the article you just read is not applicable to you but to those who crossed the border illegally. Your situation is described in the previous article “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?” As explained there, even if you have been out-of-status for many years, that violation is forgiven if your citizen spouse is going to petition for you for the green card. The 10-year bar will not apply to you unless you make the mistake of leaving the U.S. for whatever reason before receiving the green card.

Copyright © 2009-2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?

Posted in Adjustment of Status, Lawful Permanent Residence with tags , , , , on August 5, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

This is probably the most common question we get asked by people who are here in the U.S. and want a green card. While most people might have heard from the media and common knowledge that marriage to a citizen is the fastest way to obtain a green card, or permanent residence, the answer may surprise you: Yes, you can, but it may be very hard depending upon how you came to the U.S. and what you’ve done since.

The reason for this is that U.S. immigration law has changed so many times over the years. Each time it changes, the process gets more complicated. So, yes, a foreign person can ALWAYS be petitioned by his or her US citizen spouse. But, petitioning is only the first step. It simply is a finding by the immigration authorities that the couple is indeed validly married to each other. What about the next step?

If the applicant came to the U.S. with a visa or was inspected in some way at the border or airport, then that’s the best situation. They can file to adjust their status to get a green card at the same time that their U.S. spouse file a petition for them, rather than having to wait for the spousal petition to be approved first (which could take a year or more) and then filing for the green card. There is no waiting period for a visa to become available. The only waiting would be the processing time U.S. Citizenship & Immigration Services (USCIS) takes to decide the application, which is about six months, for example, in Los Angeles, and in most USCIS offices throughout the country.

This is all done without the applicant having to leave the U.S. to finalize the process. It does not matter how long the applicant has been in the U.S., even if they have been out-of-status for a long time on the visa  they used to enter the U.S.  Finally, as long as the applicant does not have reasons that prevent them from being admitted to the U.S. such as criminal convictions, previous overstay in the U.S. followed by departure, drugs, health/mental problems, or other specified problems under the law, their case is approved. This is the easy green-card situation that many people hope for.

Unfortunately, there are a large number of people who came to the U.S. illegally by crossing the border, especially from countries such as Mexico, El Salvador, Guatemala, and sometimes China. They were never inspected upon entry. Those are the hard cases we mentioned at the beginning. In fact, they can be extremely hard! That will be dealt with in our next post.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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