Important disclaimer - the information provided in these chats is not legal advice

Important disclaimer - the information provided in these chats is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. This transcript has been edited and the answers may be different from those given in the actual chat. Although efforts are made to ensure that the answers are correct, ILW.COM cannot and does not offer any warranty, express or implied, that the answers contained herein are accurate statements of law. The transcript is provided for informational purposes only. Viewers must not act upon any information without first seeking advice from a qualified attorney outside the context of this transcript or this chat session. ©Copyright American Immigration L.L.C.. ILW.COM

Moderator: Tonight ILW.COM welcomes back Greg Siskind. He is one of the nation’s topimmigration attorneys, and is a recognized expert on J visas. His website is http://www.ilw.com/visalaw/

Mr. Siskind: Hi folks. My name is Greg Siskind. I am an immigration lawyer and am looking forward to answering questions this evening. Just by way of introduction, I practice law in Memphis, Tennessee, but our firm is well known as the Internet firm, for our pioneering use of the web and listservs, to service clients throughout the world. I've managed our firm's web site since 1994 and am also the editor of our 27,00 plus subscriber newsletter. I am also the author of the new J Visa Guidebook published by Lexis Publishing. If you have J waiver questions, I am game to try and help. But I am happy to try and answer anything you want to shoot my way.

Q: I have a question regarding the six-year limit for H-1B visas. I came to US in December 1994, on an L-1 visa. I changed my employer and got an H-1 in February 1996. How do I count my time for the six-year limit? Do I have to count from December 94 or February 96? Some people say the L-1 time does not count towards six years limit. Others say it does. Can you please clarify this for me, please. Thanks in advance.

A: Time spent in L-1 status counts to the six-year H-1B limit. And vice versa. Time spent on an H-1B counts toward the five and seven year L-1 limits. So you would begin counting in 1994.

Q: I am planning to marry my German girlfriend. We have been seeing each other for two years now. How can we do this most quickly? Our INS Service Center is in Nebraska. Is she allowed to visit me once I have filed for a K-1 visa, or does she have to stay out of the country? In your other chats, there was an "option" to come to the US, wait for sixty days, then get married, then submit the I-130. Is this a possibility?

A: There are basically three ways to go. Each has up side and a down side. First, there is the K-1 visa. This is for fiances of US citizens. One must first apply to INS, then through the consulate to get the K-1. After arriving, the couple has 90 days to get married and apply to adjust status. The plus here, is that this is a relatively fast and "clean" way to get someone to the US. Allow four to eight months on average. The down side is that four to eight months may be too long for some; you still have to apply to adjust status, (a pain), and you may have gaps in work authorization if you don't move quickly in applying for adjustment after arriving.

The second way to go is to enter the US in visitor status, wait a while (there is no minimum - 60 days is probably okay; I usually recommend 90), then marry and file for adjustment of status. You must be prepared to answer the question of whether you entered under false pretenses. If you wait a while to apply, this is less likely to be a problem. After marrying, file an adjustment of status application at the local INS office. This is not as "clean" as a K-1 and carries some risks.

Finally, a couple can marry overseas and process via a US consulate. This is the slowest way to get to the US. You will have to file an I-130 in advance in most cases at an INS Service Center. While the INS does try and take these cases more quickly, there is still a lot of inconsistency here. In any case, you might be looking at a year to enter. The upside - you can marry abroad if that is your wish. Also, you enter with permanent residency status in hand.

Q: A certain lawyer here in Houston had done my H-1, labor and also my I-140. During the first week of April, I had provided him with all my green card paperwork along with the fees. To date, I haven't received a receipt from INS. On speaking with an information officer at the Texas Service Center, she said there was no I-485 application on file for me. I have been trying to reach that lawyer for several days. Yesterday I learned that he is no longer practicing. Now I don't know if he ever mailed my package. What are my options? Can I switch lawyers?

A: Unless you can get hold of the lawyer, I would assume the paperwork has not been filed. At this point, you would have received employment authorization in all likelihood. I would prepare to re-file as quickly as possible. I would probably report this lawyer to Texas' lawyers' board of professional responsibility. I suspect that he would have several complaints if he has done this poor a job communicating with clients.

Q: What are the options for an undocumented alien married to a US citizen in 1999, with two children, who are also born here in the US? Will I be deported once the application process is started?

A: The process is not going to be easy. Your problem is this. You are not eligible to adjust status under 245(a) as the spouse of an American, because of the unlawful entry. (I assume there was an unlawful entry - correct me if I am wrong). That means you have to process abroad. If the unauthorized stay here is greater than six months, but less than a year then you'll be facing a three-year bar on reentering the US. If the unauthorized stay has lasted more than a year, the bar stretched to ten years. In this case, if you leave to get your green card at a consulate, you'll need to get a waiver of the reentry bar. Showing hardship to a spouse is a ground for a waiver. Though hardship to US citizen children is not a reason for a waiver, the impact the separation has on your children has an indirect bearing on your wife. So this would be important. Generally speaking, we have not found these cases to be as tough as in other categories.

Your other option is to wait out the law. Congress could very well reinstate a provision in the law that would allow you to pay a penalty fee and process in the US. That could happen in as soon as a month or two. Or it may never happen. This is obviously a tough decision to make. Stay and risk being illegal for years. Or leave and risk not being let back into the country.

Q: I have been married to a US citizen for almost thirteen years. We have no children. I live and work in San Francisco area. I have to renew my green card next February 2001. I'm also thinking of becoming a US citizen. However, I was recently convicted of driving under the influence of alcohol, (DUI). It was a first offense- misdemeanor. Can I renew my green card with this conviction or am I going to be deported? Would this conviction hinder me from becoming a US citizen? Also, I'm thinking of getting a divorce.

A: If this is simply a driving under the influence of alcohol conviction, with no damage to other property or other people - you should be fine. You must be careful, however. The INS recently rounded up thousands of Texas immigrants with multiple DUI convictions on the grounds that having three such convictions equates to an aggravated felony. This would mean, basically, lifetime banishment.

Q: My company stopped paying me from May 2000, because they had no work for me. They recently informed my insurance company that they are terminating me on June 30, 2000. But so far I didn't receive any communication from my company. Am I living out-of-status? Another company is willing to transfer my H-1, but they are going to file my H-1 transfer petition only on July 24, 2000. Am I in trouble? What should I do to protect my status? Any information in this regard is much appreciated. Thanks in advance!

A: You will probably not be held to be out of status. Labor Department rules that would bar benching and hold you out of status have been "on the bench" for two years so this is probably not a huge problem yet. Nevertheless, you need to immediately get another firm to sponsor your change of status. Because you were never formally terminated, you should be okay. I should also mention that any work for another employer would be a status violation. Don't work for another employer until a new H-1B approval is issued.

Q: I am a US citizen. My wife is both Canadian and a US permanent resident. We are living permanently in Canada. She has a reentry permit which will expire in six months. She has both a BS and an MS in engineering and is a software contractor for US clients. All her work is tele-commuting except for occasional on-site visits that last three or four days. After her re-entry permit expires, what status should she use for visits to client sites. Are B-1 or TN possible? She is a sole proprietor.

A: The B-1 and TN visas may not be so easy to get since she is married to a US citizen and both those visas require showing that the applicant has non-immigrant intent. As an independent contractor, your wife might want to look at setting up a company in the US and entering on an E-2 treaty investor status or on an H-1B visa for the company she is servicing. You may also want to try and keep the green card alive by spending more time in the US. You might want to read the article I wrote on this subject at http://www.visalaw.com/99oct/20oct99.html . It covers avoiding abandonment of green card status.

Q: Will a misdemeanor conviction for shoplifting cause a problem in getting an H-1B visa extension?

A: The answer is going to depend on how the sentence reads and the definition of the crime in your state. Shoplifting can sometimes be an aggravated felony, though often it is not a problem. Assuming it is, then you're going to have to disclose the arrest and conviction when applying for the visa stamp. Even if it does not affect admissibility, you'll still need to discuss the arrest in your immigration paperwork simply because the question is there. Interestingly, for someone in the US in non-immigrant status, there is no question on arrests in the paperwork for people changing status.

Q: My question is whether my aunt can claim citizenship by virtue of being born to one US citizen parent, who also lived in the US for the required period of time. Assuming that she can, can her children also claim citizenship by virtue of their mother's recognized citizenship? If so, what happens to her children who are permanent residents of the US? Would the newly recognized citizenship supersede these?

A: The answer will depend on when your aunt was born, how long her US citizen parent lived in the US, the marital status of her parents at the time she was born, and other considerations. Assuming that after such a review, we determine that she is a citizen at birth, we would seek a US passport and/or a certificate of citizenship.

Once we have that paperwork, we would then need to look to see if the aunt had the requisite residency time in the US, to pass on citizenship to her kids. If so, they could leapfrog past their green cards and apply for citizenship right away. Lots of "ifs" here.

MODERATOR: ILW.COM would like to thank attorney-Greg Siskind for taking time out of his schedule to chat with us. You can contact Mr. Siskind at his website http://www.ilw.com/visalaw/.