3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

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.

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1) QUESTION:

I am a U.S. citizen and I would like to file a petition for my daughter, who has two children, both under 21. Since it will take many years, they may be over 21 when the visa is current. Would they still be eligible to come as unmarried children under 21?

ANSWER:

It depends on how long it takes for USCIS to approve the immigrant petition (I-130) and how old they are when a visa becomes available under the petition. The longer USCIS takes to approve the I-130 the better. This is because the time that it takes for USCIS to approve the I-130 petition is subtracted from the children's ages on the date a visa becomes available. This is a benefit provided under the Child Status Protection Act (CSPA).

For example, let’s say your oldest grandchild is 14 years old now. Assuming your daughter is married (F-3 preference category), lets us assume it will take 9 years for a visa to become available for a petition that is filed now, so that the child will be 23 on the date that a visa becomes available under the Visa Bulletin. Let us also assume that it will take USCIS 3 years to approve the I-130 petition. We could therefore subtract the 3 years the petition was pending from the child's age when a visa became available (23) and the result would be that the child's age for this purpose would be 20 and she would be able to get a visa with her mother.

Taking the same facts from the hypothetical situation above, if USCIS were to approve the I-130 in only a year, the child’s age would then be 22 (23 years minus one year) and she would not be able to get a visa with her mother.

Another requirement is that the child must apply for a green card or immigrant visa within one year of a visa becoming available for the petition under the Visa Bulletin. Also there are different calculations for the unmarried child of a U.S. citizen who is under 21.

Until a visa becomes available under the petition, it is not possible to say for sure whether the child can benefit under the CSPA, as a derivative beneficiary of their parent. But this should give you an idea of whether there it would be possible for the children to benefit.

2) QUESTION:

I would like to apply for a green card, but I have poor credit and I owe money on my credit cards. Will this be a problem?

ANSWER:

Having poor credit or debt is not a basis for USCIS to deny a green card application. You must show that you will not become a public charge. If your application is based upon a petition by an employer, this is met by the fact that your employer will be placing you in a full-time position that pays the required wage. If your application is based upon a family member filing a petition on your behalf, the petitioner will have to file an Affidavit of Support on your behalf stating that they will be financially responsible for you so that you do not end up having to go on welfare. The creditors cannot sue them for payment, but if you accept any public benefits, such as welfare payments, the government can sue them for reimbursement.

3) QUESTION:

I am a fashion designer and I have a Bachelors degree and have been working for more than five years as a fashion designer since then. My company wants to sponsor me for an immigrant petition, and I would like to have it filed as an EB2 rather than an EB3 because of the long wait for the EB3. However, I have been told that I cannot use experience with my current company to meet the five years experience requirement for the EB2. Is this correct?

ANSWER:

As a background to this answer, immigrant petitions are categorized according to the minimum qualifications for the position. A third preference petition (EB3) is for skilled workers, professional workers, and other workers. A second preference petition (EB2) is for professions which require a masters degree or the equivalent or persons of exceptional ability. The equivalent of a Masters degree, for these purposes, would be a Bachelors degree and five years of progressive relevant experience. The preference category for your petition is important as there is generally a longer wait for a visa to become available for a third preference petition than there is for a second preference petition.

It is true that you cannot use experienced gained in the same position, with the same company, to show you have the five years experience. This is because the company is stating in the petition that a Bachelors degree and five experience years is the minimum requirement to be able to perform the job. But this would not be true, because you did not have a Bachelors degree and five years experience when you started in the position, so that is obviously not the true minimum requirement.

But, you can sometimes use your experience gained with the company if the company is sponsoring you for a position that is different and not substantially comparable to the position you were in when you gained the experience.

Also, to be eligible for a second preference petition, the actual minimum requirement for the position must be a Masters degree or the equivalent, which is a bachelors and five years experience. Having a Bachelors degree and five years experience does not make you eligible for a second preference petition if the position is not one that requires a Masters degree or the equivalent. Most positions do not normally require a Masters degree. For example, according to the Department of Labor Standard Occupational Classifications, the position of Fashion Designer does not normally require a Masters degree or the equivalent, and would not normally qualify for a second preference petition.