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 have been in US for more than 3 years on an L-1B Visa. I am now planning on changing to an H-1B visa with a different employer. Can I start working for the new employer from the day the H-1B is filed? If not, if the H-1B is approved, when can I start working for the new employer?

Answer:

A foreign national who is changing their status from an L-1 to an H-1B nonimmigrant cannot begin working on the H-1B when the petition is filed. Many people become confused about this point, since the H-1B is portable. This means that if a foreign national is working on an H-1B and another employer files an H-1B petition for them, the employee can begin working for the new employer as soon as the new petition is filed. This only happens, however, when the foreign national is already in H-1B status.

In cases where the foreign national is filing to change of status from another nonimmigrant visa to an H-1B, they cannot begin working on the new H-1B until the start date on the I-94 that is issued upon approval of the petition. If that start date is the same as the date the petition was approved, the foreign national can begin employment as soon as the petition is approved. If, however, the H-1B petition is being filed under the H-1B cap “lottery” between April 1st and September 30th, then the I-94 will have a date of October 1st, and the foreign national will not be able to begin employment on the H-1B until that date. They must maintain their nonimmigrant status until that date.

2) Question:

If someone is out of status and has given birth to a child here in the U.S., can they apply for a green card or can they apply for work permit?

Answer:

Probably not. A U.S. citizen can file an I-130 immigrant visa petition for their parent, as an Immediate Relative; however, the child cannot file the I-130 until they are at least 21 years old.

Also, while Immediate Relatives (parent, spouse and unmarried children under 21 of U.S. citizens) are eligible to apply for a green card despite having fallen out of status, this rule only applies when the foreign national’s last entry into the U.S. was a legal admission or parole after going through inspection at the port of entry. A foreign national who entered the U.S. without inspection is usually not eligible to apply for a green card in the U.S., although some exceptions exist, such as 245(i). They may be eligible to apply for an immigrant visa at the U.S. consular post in their home country.

If, however, a foreign national with a U.S. child is put in immigration proceedings before an Immigration Judge, they may be eligible to apply for Cancellation of Removal based upon showing sufficient hardship to the child. Be aware though, that  Cancellation of Removal is a relief from removal that is entirely up to the Immigration Judge’s discretion.

3) Question:

I am a U.S. citizen, and I am planning on getting married soon. I want to apply for my husband’s green card. The problem is that I am only 17. My parents are consenting to the marriage. Will I be able to apply to sponsor my husband for a green card?

Answer:

There are two issues raised in your question (I am going to assume that your husband is either outside the U.S. or entered the U.S. legally). The first issue is whether your marriage will be recognized by USCIS so that you can file a petition for your husband. The second issue is whether a minor can petition for their spouse.

USCIS will recognize a marriage as valid when two conditions are met. First, the marriage is considered legal where it occurred, and second, the marriage is not considered to be void in the state where you intend to live together. As long as the marriage will be recognized as legal in the state or country where you will be getting married and as long as the state you will be living in recognizes the marriage as valid, then USCIS will recognize the marriage as valid despite the fact that you will be married as a minor.

The second issue is a bit more complicated. There is no age limit for a U.S. citizen or permanent resident to file an I-130 petition for their spouse. Therefore as a 17 year old, you can file the petition for your husband. However, in order for your husband to be able to apply for a green card in the U.S. or an immigrant visa at the consulate abroad, you must submit an Affidavit of Support on their behalf. An Affidavit of Support cannot be filed by a minor. Therefore, you can start the process once you are married, by filing the immigrant petition. But your husband will not be able to apply for a green card or immigrant visa until you turn 18.