If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q - I am here on H1 visa. I came on B1/B2 and had it changed to H-1B. I want to apply for green card. My H-1B is still single entry. I have been told that all the experience and qualifications I gained with the present employer cannot be used if I want to get my green card from the same person and that will create a difficulty for my green card. What can i do?

A - You are correct that experienced gained with the employer sponsoring a labor certification cannot generally be used. You'll want to advertise the position to require no more than what you had when you started the job. There are some exceptions if you can show that the job you are in is truly different than the job were you gained the experience. The alternative is to get a different employer to sponsor you. In that case, all prior experience, including experience gained with your current employer, can be used.

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Q - I’ve been in the USA for 18 months under a tourist visa. I got inside of the country March 2002 and got a permission for 6 months. I renew my permission twice what gave me the legal right to stay for 18 months. I left USA before my last I-94 expired in September 17 2003. I’m planning go back to USA in Middle of June. I’d like to know if I might have a problem to get inside of the country under a tourist visa again.

A - The length of time outside the US will help. You'll be pressed to show that you have the finances to stay in the US for a while and that you still have strong ties to your home country. But having complied with your visa the last time and remaining away from the US for many months is going to make things somewhat easier.

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Q - Can the applicant send the passport update renewal information to the service center while the I-539 application for extension of stay is pending? Will the update info be accepted at the time of adjudication or the service center only accepts the evidence sent initially?

A - Getting a case updated is very tough after the initial filing. Once electronic filing of I-539s starts later this month, this might be easier, but we'll have to wait and see. You should still notify the USCIS of the change and keep documentation of this notification so if you have problems later on, you can at least say you used your best efforts to keep the USCIS informed.

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Q - I am a "waived" J-1 teacher with a J-2 dependant, EAD working spouse. Our visa expires this summer. I have an offer to be a J-1 research scholar next year. If I get my new visa while on vacation at my home country, does my wife have to start over with the process of obtaining an EAD again?

A - This is a grey area, but note that the EAD is valid for the duration on the card OR the validity of the J-2 status. If that status terminates, she needs a new EAD. So the issue will be whether your J-1 terminates. Sounds like your status as a J-1 will continue so I would think you would be okay. But I'm copying a colleague who may have some other thoughts.

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Q - I am a tax attorney/CPA. I have a client who has a green card and has been living abroad. He is now applying for citizenship and has stated that he must live 6 months and 1 day a year in the US. Is this correct?  For how many years must he do this?  I have referred him to your office to assist him. I have in the past Prepared his tax returns as a full time resident of Mexico where he lived.

A - The rule is not that simple. Basically, there are a couple of residency rules that need to be met.

1. The applicant must have been physically in the US for at least 2.5 years out the five years prior to applying to naturalize

2. The applicant must have no absences of more than six months straight unless they have very good reasons for that and no absences of more than a year straight (good excuse or not).

3. The applicant must reside for 90 days in the district where they will be applying.

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Q - Can illegal immigrants apply for a SS # ?  If they do, are there any ramifications to be concerned with? 

A - No. An applicant must be authorized to work in the US in order to qualify for a Social Security Number. Even many people are legally in the US on visas have difficulty getting Social Security Numbers.