Archive for Adjustment of Status

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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H-1B Priority Date Transfer with New Employer

Posted in H-1B, Nonimmigrant Visas with tags , , , on July 26, 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.]

Dear GuruImmigration,

My current employer has filed my green card under EB3 category…i recently got I-140 approval a month back and I have NOT filed my I-485 as I am still waiting on my priority date to be current….

Now the question I have is: If I change my employer, can I use this priority date with my future employer?

If yes

can I use this priority date with my future employer for EB2 category as I already have more than 5 years of experience?

I am software professional and I have will remain in same industry even though I change the employer.

sincerely appreciate your response..

Answer:

This is an interesting question. The same I-140 can be used, or “ported,” when you change employer as long as the I-485 has been pending for 180 days or more, and the new job is in the same or similar occupational classification as the job in the I-140 petition. So, after you are allowed to file the I-485 (when priority date is current) and it has been pending for 180 days or more, then the same I-140 can be used with the same priority date. However, USCIS may view the attempt to upgrade the same job position from EB-3 in the I-140 to EB-2 as not being the same or similar classification (EB-2 requires Master’s degree or number of years equivalent). That is, an entry level position in a particular field may or may not be considered similar occupational classification as a supervisory-level position in the same field. It really depends on analyzing the described job duties of the two positions before a more informed opinion could be given.

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.

 

How Do I Get a Work Permit?

Posted in work permit with tags , , , , , on December 26, 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.

The work permit, or employment authorization document, is a document issued by U.S. Citizenship & Immigration Services (USCIS), usually with a validity of one year, and renewable.  It allows the holder to legally work at any job, and it is also the document needed to get a social security number and a driver’s license.  So, how and when can an immigrant get one?

At the outset, it must be stated that:  a work permit is not something that is applied for as an end in itself, but only as an incidental, or side, benefit accompanying a main immigration application that results in the benefit of permanent residence, and only when the immigrant initially appears to qualify to apply for that main application. Sometimes, a potential client will ask us, “I don’t have any immigration papers but I just want to apply for a work permit. Can you help me?” We’d have to politely explain to this person that there is no such thing as “just applying” for a work permit. You must first see if you qualify for some larger main immigration benefit and apply for that benefit before you could get a temporary work permit.

Most immigrants receive a work permit shortly after their main application for “adjustment of status” to permanent residence is filed with USCIS.  This is the application that will allow an immigrant already in the U.S. to receive the benefit of permanent residence (green card).  However, not every intending immigrant in the U.S. qualifies to file for adjustment of status.  There are requirements of who can and when. At the time of filing the adjustment application, the immigrant will either be in-status on some kind of temporary nonimmigrant visa, or out-of-status on that visa or illegal but qualifies under immigration rules to file for adjustment.  Since the adjustment application will take four months to a year or more for USCIS to schedule an interview and to decide the case, the person is given the side benefit of a work permit so that they can work and take care of themselves in this country while the adjustment application is pending.  The law recognizes in this kind of situation that the immigrant must be given a means to legally work and not just sit there doing nothing.  Therefore, a separate application for the work permit, the I-765, is filed with USCIS at the same time the main adjustment of status application is filed.

The work permit card is then usually mailed to the immigrant about a month and half to three months after the applications are filed.  This card can be taken to the Social Security Administration office to apply for a new social security number and to the local DMV to apply for a driver’s license. If the adjustment application is ultimately denied — there are numerous grounds on which the immigrant may be denied, or is “inadmissible” to the U.S. — the work permit will also be terminated.  If the adjustment application is ultimately approved, then the person’s status becomes a permanent resident or green-card holder, and there will be no need for employment authorization since a green-card holder is entitled to live and work permanently in the U.S.

We stated above regarding the main immigration-benefit application that the immigrant must “initially appear to qualify to apply for that main application.”  What this means is that, for example, with an adjustment application, the immigrant must upon initial review appear to qualify to file for adjustment of status.  Examples?  Well, someone who is still waiting in what we call Stage 2 (has an approved I-130 or I-140 petition, but who is still waiting for a visa number because their priority date is not current yet), is not qualified to file for adjustment yet.  Or, someone who is not classified as an immediate relative, but whose visa is out of status, generally will not qualify to file for adjustment. There are other examples.  A person like this who applies for adjustment of status will have the application quickly rejected after USCIS personnel has done an initial review of the application package, and so no work permit is given.

So, to obtain a work permit, you must be at the point where you are now qualified to file for some type of application resulting in permanent residence.  U.S. immigration law provides many methods for immigrants to receive a green card since there are so many types of immigrants and circumstances (although as a practical matter only a handful of methods are used for the vast majority of immigrants). Some intending immigrants simply do not qualify under any method for a green card due to their being either out of status on their visa, being illegal in this country, or simply do not have enough time or have the right relationship to qualify. We routinely consult with people who, unfortunately leave the consultation with no solution under current law. Such a person cannot get a work permit.

Many immigrants whom we have helped are familiar with receiving their work permits not through the adjustment of status application but through a political asylum application. Political asylum is another type of immigration application eventually leading to permanent residence which gives a work permit as a side benefit. A grant of the asylum application will allow the person to remain (and work) permanently in the U.S. and then apply for permanent residence a year afterward. Under the law, a work permit must be given to the asylum applicant within 90 days. Thus, it was and still is a fast way to obtain a work permit in this country: to just apply for political asylum even if the person came to the U.S. illegally. However, asylum requires that the person must have experienced and does fear genuine persecution in their homeland due to their race, religion, nationality, political opinion, or being a member of a distinctive social group, and the persecution is a genuine verifiable reality in that country. People from countries that are stable or peaceful do not normally qualify for asylum. Yet, many people, such as from Mexico (a country in which the government is not persecuting its citizens for the most part), have been deceived in the past by unscrupulous immigration services, “notarios,” and sometimes lawyers, who promised they could obtain work permits quickly for them, but who did not tell these people that they were applying for political asylum on their behalf. Since the asylum application can take years to be decided by USCIS – sometimes 10 years – the applicant gets a renewed work permit every year and thinks that their immigration status in this country must be legal. Eventually, at the asylum interview, however, these people inevitably cannot prove their asylum case as described in their own asylum applications (many did not even read before signing what was in their applications), and so their asylum case is denied. USCIS then puts these people into removal (deportation) proceedings without exception.

There are other less well-known types of immigration applications for certain groups of immigrants, such as NACARA, TPS, cancellation of removal, application for deferred action, etc., that also allow the applicant to receive a work permit as a side benefit. Some of these, such as TPS (temporary protected status) and deferred action, in fact, do not necessarily lead to permanent residence for the applicant but do involve giving him or her a longer term of stay in the U.S. that does not end on a definite date in the immediate future. These applications are more specialized and are beyond the scope of this article.

It must also be pointed out that there are certain people here on nonimmigrant visas who do work for U.S. companies.  For example, H-1, or L-1 visa holders.  However, the difference between these people and someone with a work permit is that the person with the work permit can work for any employer and can change to a new job anytime, whereas the person with the H-1 or L-1 visa can only work for that particular employer who petitioned for them on their nonimmigrant visa.  If the visa-holder wishes to work for another employer, they have to go through the process of finding a new employer to file a new petition for them in that visa category.

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-130 Approval Is Not Green Card!

Posted in Lawful Permanent Residence with tags , , , , , on August 30, 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.

The I-130 Petition for Alien Relative is probably the most common immigration form filed by people in the U.S. immigration system. A lot of people contact us right after the I-130 petition has just been approved. They’ve been waiting for years and happy. They want to know what they can do to claim their green cards right there and then!

Sorry, we have to tell them. The I-130 approval is a necessary first step for immigrants but does not necessarily entitle them to a green card right away, except for “immediate relatives.” The purpose of the I-130 petition is simply to classify the immigrant as a close relative of the person filing the form to put them into one of the recognized categories of U.S. immigration law. So, when U.S. Citizenship & Immigration Services (USCIS) approves the I-130, it is simply saying in effect: “OK, we find this immigrant is indeed your spouse/son/daughter/sibling as you claim.” That’s all. They’re not saying the immigrant got the green card. Not yet.

Family-Preference Categories

The five family-preference, or relative, categories are:

F1: unmarried sons and daughters 21 and over of U.S. citizens
F2A: spouses and children under 21 of legal permanent residents (green-card holders)
F2B: unmarried sons and daughters 21 and over of legal permanent residents
F3: married sons and daughters 21 and over of U.S. citizens
F4: brothers and sisters of U.S. citizens

In the above, “F” just stands for “Family.” The U.S. citizen or permanent resident filing the I-130 for his or her relative will be referred to as the “petitioner” and the relative(s) will be referred to as “beneficiary” or “beneficiaries.” From the categories listed above, yes, of course you are probably wondering, “What about spouses and children under 21 of U.S. citizens, shouldn’t they be listed somewhere?” The answer is, yes, but not in the five categories above. They are part of a separate and special category called “immediate relatives” that was mentioned. Whereas, the relatives in the categories above are in the “family-preference categories.” F1 has the highest preference and F4 has the lowest preference. Meaning there are generally more visas allocated each year to the higher preferences although every category has a limited number of visas allocated to it each year. Obviously, the F4 category is the slowest category because it has the lowest priority, i.e., the least number of visas available each year for it. Waits of 10 years or more is normal for F4.

Long Waits for I-130 Approval and for Visa Numbers

The problem is that an I-130 filed for a relative in one of these preference categories usually takes years just to be approved. Let’s call this Stage 1: from the time of filing the I-130 until its approval. For example, as of May 31, 2013 (latest data available), it’s taking about 3 1/2 years until approval for an I-130 in the F1 category at the California Service Center (CSC), and almost 1 1/2 years until approval at Vermont Service Center (VSC). For brothers and sisters (F4 category), it’s taking about 3 1/2 years until I-130 approval at CSC and almost 3 years at VSC. These are average processing times reported on the USCIS website; your own petition may be longer or faster. You’d think it’s normally not too difficult to prove that someone is your child or sibling, and you’d be correct, since usually USCIS only asks to see birth certificates (except for marriage cases because of the prevalence of fraud). Yet, they can take that long to get through Stage 1! It is thus not surprising that when they receive the I-130 approval notice from USCIS, the beneficiary and their petitioner feel such happiness that they believe the beneficiary’s green card has been approved or will be soon.

The truth is that, after getting through Stage 1, most of the times the beneficiary still has to endure another wait, sometimes very long. That wait is for a visa number to become available. Let’s call this Stage 2: from I-130 approval until a visa number is available. As mentioned, there are limited number of visas available each year in each category. It’s first-come first-served, so whoever got the I-130 filed for them first will be in line ahead of another person who was petitioned for at a later date. The date that USCIS receives the I-130 is called the “priority date.” This is the date that determines if there is a visa number in your category.

The U.S. Department of State publishes the Visa Bulletin each month which you can use to check what priority dates are current in your category. Once there, click on the link for the current month (or latest month). For example, the August 2013 Visa Bulletin, under the F1 category, shows the cut-off date of “01SEP06” for beneficiaries who are citizens of most countries (that is, not India, China, Mexico, or Philippines, who have their own columns in the Visa Bulletin table — Mexico and Philippines are notoriously slow since there is so much demand for visa numbers from those two countries). This means that currently as of mid-August 2013, only I-130 petitions filed for unmarried sons and daughters 21 and over of U.S. citizens before Sept. 1, 2006 have visa numbers available for most countries.

Example: As an example of the Stage 2 wait for visa number after the I-130 has been approved, let’s say you’re a U.S. citizen petitioning now for your unmarried daughter over 21 (F1 category) from Mexico, so the priority date is in August 2013. Currently, for the August 2013 Visa Bulletin, visa numbers are available in the F1 category for those Mexicans with I-130s filed on or before Sept. 1, 1993 (almost 20 years ago). So, even after the I-130 has been approved, which could take 3 1/2 years for F1 as seen above at California Service Center, your daughter still has to wait for about another 16 years before a visa number is available for her to immigrate. Or, let’s say you’re a U.S. citizen petitioning for your brother now from the Philippines. Looking at the same Bulletin, visa numbers are currently available in the F4 category for those Filipinos with I-130s filed on or before Jan. 8, 1990 (more than 23 years ago!). So, even after the I-130 has been approved, which could take about 3 years for F4 at CSC, your brother still has to wait about 20 more years for a visa number, or to get through Stage 2.

Looking up the Visa Bulletin can only give an estimate as to when a visa number will become available. It is impossible to give a precise answer as to how fast each category will move in the future, especially if your priority date is several years behind. For some months, the visa numbers can move very fast, but then they will slow down, barely moving at all. All one can say is, for example, right now, the August 2013 Visa Bulletin shows that in the F3 category (married sons and daughters of U.S. citizens), the priority cut-off date is 08DEC02″ for most countries, which means only those F3 petitions filed prior to Dec. 8, 2002 have visa numbers, for beneficiaries of most countries. If your priority date is in 2007, for example, then it may take five years, more or less, until there is a visa number available for you.

Note: Sometimes, USCIS takes so long to approve the I-130 due to whatever glitches or problems in the particular case that Stage 1 becomes much longer than it should, so that once the I-130 is approved, the Stage 2 wait for a visa number can be relatively short. In even rarer cases, on the date that a visa number becomes available for the beneficiary’s particular priority date, the I-130 is not even approved yet! That is, Stage 2 and Stage 1 are effectively reversed. In that case, the beneficiary still has to wait until the I-130 is finally approved before they could proceed to Stage 3.

Note: Sorry, but we cannot answer for free questions of the type, “I’m in so-and-so category, with I-130 petition filed on so-and-so date. How long do you think I have to wait?” This blog article was originally written to show people how to use the Visa Bulletin to look the information up themselves and to estimate how long the wait might be in their own cases. Hundreds of people have asked this question on the blog or emailed us when they can do this themselves. It is quite easy to do. As mentioned, using the Visa Bulletin will give you only an estimate of the wait. No one can predict precisely how quickly visa numbers will move in the next few years. Not even USCIS or us lawyers can tell you for sure.

No Benefits While Waiting for Visa Numbers to Be Available: During the wait until a visa number is available, or in Stage 2, the fact that a beneficiary has an I-130 filed for them does not mean that they get any immigration benefit because of that I-130. The same thing during Stage 1. If the person is here in the U.S. in unlawful status, they must take care not to be picked up by USCIS and put into removal (deportation) proceedings.

Also, people ask us this all the time but with only an approved I-130, the person does not get a temporary work permit if a visa number is not yet available. Neither will they get a driver’s license since the DMV will not issue a license unless the person has work authorization in the U.S. or proof of legal status. In other words, if you’re here illegally or you’re out-of-status on your visa, the I-130 by itself does not do anything to make you legal. This is just a false hope. It’s amazing how many of our clients were duped by notarios, non-lawyers, and even bad lawyers who told them otherwise about what the I-130 could do for them.

For example, some immigrants are under the mistaken impression (or given bad advice) that despite the long waits for visa numbers above, as soon as they have an I-130 filed for them and received by USCIS, or receive news of the I-130’s approval, that they can start filing for their green card or to be legal at that moment. There is no such thing. Be careful: filing such application or paperwork too early will, at best, leads to rejection of the application and loss of filing fees, and at worst, may result in removal proceedings if the immigrant is out-of-status or illegal in this country. Unless the immigrant is an immediate relative, there is no shortcut or going around Stage 2 before the next step for the green card can be taken.

What Happens Once Visa Numbers Are Available

However, after the wait when the priority date is finally “current,” meaning that a visa number is finally available, the beneficiary at that point can proceed to the final Stage 3: actually applying for permanent residence or green card status. This stage has three different possibilities:

a. If the beneficiary came to the U.S. originally with a visa or was inspected, is still in status and does not have serious grounds of inadmissibility, he or she can file for adjustment of status in this country, similar to the “easy” boyfriend or girlfriend scenario described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”

b. If the beneficiary came illegally or has been out-of-status (and not an immediate relative), then he or she must go back to the home country and apply at the U.S. consulate, with the 3- or 10-year bar being an obstacle (except for those out-of-status/illegal for 180 days or less), a difficult situation just like the boyfriend or girlfriend that was described in “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” There is also a category of those who came illegally or who have been out-of-status who can apply for adjustment of status here (and not have to apply in their home country), if they have had certain old petitions filed for them in the past.

c. On the other hand, if the beneficiary is outside the U.S., they will file the immigrant visa package with the U.S. consulate in their country, submit police background and medical checks, among other documents, and then be interviewed at the consulate to receive the immigrant visa (unless if they had spent more than 180 days illegally/out-of-status in the U.S. on a prior stay). With the immigrant visa in hand, they can be admitted to the U.S. as a legal permanent resident.

A very important benefit for these family-preference categories is that the spouse and children under 21 of the main beneficiary are also entitled to immigrate at the same time, and in the same order of priority as him or her when a visa number is available.

Good to Be Immediate Relatives

The exception or shortcut to all the long waiting described above is the category of “immediate relatives” mentioned. This is composed of three subcategories: (1) spouses of U.S. citizens, (2) children under 21 of U.S. citizens, and (3) parents of U.S. citizens when the citizen is at least 21. There are always visa numbers available for these people in unlimited numbers. So, they are highly preferred, or favored, in the U.S. immigration system, much more preferred than those in the five “family-preference categories” above. For an immediate relative, on the date the I-130 is filed, they can skip Stages 1 and 2 and go directly to Stage 3 if they qualify for adjustment of status in the U.S. to green card. If they’re outside the U.S., only Stage 1 (filing of I-130 until approval) has to be waited for, Stage 2 would be zero.

One major advantage for an immediate relative is that both the I-130 petition and the adjustment application are allowed to be filed concurrently, i.e., filed at the same time. Compare that with immigrants in the family-preference categories who must first wait for an I-130 to be approved (go through Stage 1), which could take years as described above, then wait for Stage 2 to complete, and finally proceed to Stage 3 for the adjustment application to green card.

So, to sum it up, if you are someone interested in immigrating to the U.S. and you are not an immediate relative, having a U.S. citizen or legal resident relative file the I-130 for you, despite the long wait for visa numbers, is still good future planning because it reserves your place in the line. We can assist you with filing the I-130 since approval can sometimes be difficult.

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.

 

Student visa holder married green card holder, what can she do?

Posted in Lawful Permanent Residence, Nonimmigrant Visas with tags , , , , , on August 18, 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.

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

Dear GuruImmigration,

My sister is a F1–name removed–currently maintaining status. She married a Green Card Holder (DV) in April 2009. They have not filed any petition yet as she wanted to continue studies as a F-1. They have been living together.

She is going to graduate in May 2010. Now she wants to file family petition and remain in the US with her husband.

(1) Do we file I-130, I-485, I-765, I-131 together at the same time?

(2) Can she remain in the US until there is a decision on her I-130 OR will she have to continue going to school?

Answer:

The husband is a legal permanent resident (LPR or green-card holder) and can only file an I-130 for your sister. The I-485 application to adjust status to permanent residence CANNOT and must not be filed together with the I-130 or it will be rejected because the husband only has a green card and not a U.S. citizen yet. The I-485 can ONLY be filed once a visa number is available for your sister as the wife of an LPR. That’s because the immigrant who marries an LPR has to proceed one step or stage at a time, and the first step that must be taken is filing the I-130 and wait until it is approved by U.S. Citizenship & Immigration Services (USCIS).

The I-130 is approved relatively fast but it does not grant your sister the right to file the I-485 until a visa number is available in her appropriate category of relatives. As the wife of an LPR, she is in the F2A category of relatives, which is running about 4 years behind in visa numbers, more or less. She’ll have to maintain lawful status in this country (continuing going to school, change to H-1B, E-1 visa, or whatever other nonimmigrant visa she qualifies for independently), while waiting in the 4 years or else she will jeopardize her chance of filing an I-485 in the future due to being out-of-status. Not until there is a visa number available for the F2A category will the I-485 finally allowed to be filed. And as stated, no visa numbers are available for a few years in that category if an I-130 is filed today. To understand this issue read the article “I-130 Approval Is Not Green Card!” as a whole, with particular attention to what we have called the “Stage 1” and “Stage 2” waits in that article.

So, in essence, marrying an LPR is less “advantageous” than marrying a U.S. citizen, because an immigrant who marries a citizen can file an I-130 together with the adjustment of status (the I-485) and work permit and all that quickly since there is no wait for a visa number. This is obviously the scenario described in our article “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?” However, if one is in love with an LPR, then that’s who one is in love with!

Also, many immigrants continually make the mistake of thinking that as soon as their LPR spouses file the I-130 for them, that they can stay in this country regardless if their nonimmigrant visa (the student visa in this case) is out-of-status. No! The I-130, even if it is approved, does NOT grant any right to a person to be in this country or to get a work permit or a driver’s license whatsoever. A person who is out-of-status on their nonimmigrant visa is subjected to removal (deportation) proceedings at any time. Whether they will actually be served papers to go to court for those 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.

The way to get out of this quandary is if the husband files for citizenship and gets approved in the meantime. That will reduce your sister’s wait and make things easier. Of course, saying that the husband could file for citizenship does not mean that it’s a done deal. He will have to wait until he’s been an LPR for 5 years, then go through the actual process of applying, and then he may or may not get approved, depending on his behavior and records since he became an LPR.

Best,

Larry L. Doan, Esq.

GuruImmigration

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.

 

 

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.

 

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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