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

MODERATOR: Welcome to chat at ILW.COM tonight. We are very pleased to welcome back one of the world's best-known immigration attorneys, Greg Siskind. His website is . Welcome back to ILW.COM Mr. Siskind.

MR. SISKIND: Hello. My name is Greg Siskind. I practice immigration law in Memphis, TN (home of Elvis), but actually have a client base that is spread across the US. I'm here to answer your questions tonight on immigration law. I know we have a lot of people here tonight. That’s a surprise given that we've got some kind of sporting event going on. So let's move on to the questions.

Q: I am a Canadian citizen. I have been married to an American for three years. I filed for the removal of my conditional status last August 1999, and received notice last September that my card has been extended for one year. I still have not received anything else. I cannot get through when I call the INS telephone number they gave me. I have also written to INS, but have received no response. What should I do about travel? I just got a new job. What about my work permit? Does it normally take this long? Help!

A: As long as you keep your I‑551 status valid, then you should not have a problem reentering. As for getting the approval on the removal of conditions, you may want to get your Congressman's office to help you. They're good at getting some of these types of problems unstuck.

Q: Do you have any news about moving the Registry date up to January 1, 1986? What if you came in September 1986?

A: First of all, you should know that the chances of that bill passing are not great despite the President's support. Republicans are definitely not in favor and the Democrats have just rolled over on linking the amnesty to raising the H‑1B cap. There is still a chance, but I would not wager on it. I believe the amnesty is a rolling amnesty where the date from which one must be in the US will move forward a year each year.

Q: What do you mean by “Rolling Amnesty”?

A: It means that each year, the date which people eligible for the amnesty must have been here will advance one year. So next year, the date would advance to 1997 and the next year the date would advance to 1998.

Q: I have just received approval from IDES (Illinois Department of Employment Security) to advertise for the position that we are seeking to fill. It took me two years to get to this stage. Can you please tell me the average waiting time from this point until I get my green card? It looks as if I have to go to a US Consulate for visa processing, as my H‑1B expires in about 19 months. Does one have to go to a US Consulate at his home country or can he go to a consulate in Canada or Mexico?

A: The amount of time remaining for you is hard to judge. You must get through the advertisement stage. Then you must have the US Labor Department approve your application and then your I‑140 must be approved by INS. I'd say that you're looking at twelve to fifteen months for this. You then have to apply for consular processing in your home country consulate or apply for adjustment of status in the US. You cannot pick a closer consulate.

You should consider doing both adjustment and consular processing in order to get work authorization to tide you over after your H status ends, but you'll get the advantage of the faster consular process rather than slower adjustment of status.

Q: My H-1B petition has been approved. I am still waiting for the INS final J-1 waiver of my two-year home residency requirement. It is being processed by the California Service Center of INS (CSC). Is it possible to obtain my H-1B visa at the consulate by showing only the Department of State recommendation? If not, how can I expedite the final J-1 waiver from INS?

A: The consulate will only accept the INS approval notice. As for expediting with INS, that will not be easy. Has it been longer than the time stated on the receipt?

Q: I am in the US on an H‑1B visa. Six months back I was arrested for a misdemeanor. The charge was “Patronizing a Prostitute.” I went through the pre‑trial diversion and completed that successfully. Now I am going back to my country on vacation. I need to know can this arrest and my pre-trial diversion cause a problem at the port‑of entry when return?

A: I think you are probably OK, but I would probably go to an immigration lawyer to have him or her review the court documents to ensure that you are not somehow inadmissible based on the exact language of the statute under which you were convicted.

Q: When I was seventeen a petition was filed for my mother and I. Her brother was the petitioner. I was bumped off, because I had gotten too old. My spouse filed an I-130 for me in February 1999. Now I am out of status. What are my alternatives to obtaining legal status in America? My spouse is a US citizen (USC). Would I have to leave the country to pick up my green card at the US Consulate in my home country?

A: Assuming you entered with inspection, you will probably be able to eventually process in the US, because you will be able to adjust status in the US as the spouse of a US citizen. There may be other options available as well. My general advice is that if you are out of status, you should always get a consultation with an immigration lawyer since the stakes are enormous.

Q: My wife and I filed our I‑485 last November. In June of this year my wife received her fingerprinting notice. But I did not receive mine, even though I am the principal petitioner. We immediately informed the INS and requested the INS to issue my fingerprinting notice. It has been two months and no response. Any ideas how to resolve this in a speedy manner? Also, I am thinking about filing another I‑140 EB‑1 through consular processing? Is it a good idea?

A: You need to keep bugging the INS on this. And if you get nowhere, get your Congressional representative to help, or get an immigration lawyer who may have other channels to getting to the right person at the INS. It might not be such a terrible idea to file a new I-140, but I would hope that the fingerprint issue would be resolved well in advance of the second I‑140 getting approved. But this is a creative way around the problem.

Q: My Alien Registration Card has an error in my length of residency status. It shows I have been a permanent resident since October 1998. In fact this was the date I

entered the US through Honolulu on a non-immigrant J-1 visa. Actually my status was changed from J-1 to permanent resident in August 1996. I base that on the date indicated on my wife's card. We had both applied for a change of status together. She was my dependent. My permanent residence was employment-based. My question is, which date and place should I put when I apply for naturalization?

A: You should put the actual date of permanent residency and not what is on the card. You need to get your card corrected, however. I believe you'll need to file an I‑90 with your local INS office to correct the problem.

Q: I was told by an immigration lawyer that in order to get an E‑2 Treaty Trader Visa, an investment of fifty-thousand dollars to seventy-five thousand dollars was enough. I was also told that this money did not necessarily have to be my own money, rather loans could be used to meet the requirement. Can you please advise how this can be done? Are credit card loans acceptable also? Lastly how long on average does it take to get an E‑2 visa? Thank you.

A: I am not sure I would agree that borrowing the money will be okay. Indebtedness usually is not going to work if it is secured by the assets of the business. It might work if it is secured by personal assets, or if the debt is unsecured altogether. This would seem to make credit card debt OK. Though it would seem incredibly foolish given the Mafia‑like interest rates charged by the card companies. E‑2 visas take usually just a few weeks at a US consulate.

Q: My husband is American and I'm Canadian. We have a baby. Do I have to file any specific paperwork for her? She was born here in Florida. Is she automatically an American citizen? Does she have any Canadian rights?

A: Your daughter is an American and you should apply for a passport for her. As for Canadian rights, I am not an expert on Canadian immigration law and will have to pass on this.

Q: My boyfriend is from Mexico and his visa expired two months ago. Is there any way that he could obtain permanent residency in the US without marriage? If we do plan to eventually marry, what will be the implications of my marriage to an illegal alien? If he returns home to Mexico will his falling out of status cause him to be rejected from acquiring another visa?

A: I cannot really speak to what he can do to get a visa without marriage because I know nothing of his background. But overstaying his visa is going to make getting legal on his own tough without leaving the US. I would suggest getting a consultation with a lawyer on this issue. Marrying him probably will have the best results for him. You can get a green card for him this way. The story might be different if he entered without inspection, but he did come in on a visa. If he is going to go home before six months have elapsed from the expiration of his I‑94, in order to avoid the nasty three-year reentry bar if he leaves

Q: The first three-year term of my H-1B1 visa will expire soon. If a new employer files a petition to extend my H-1B, will I be able to work for that employer following the expiration of my visa, while the petition is still pending? Or must I wait until my new employer’s petition is approved?

A: Unfortunately, you will not be able to work for the new employer until the new approval notice comes in. There is a provision in a pending H‑1B bill that would allow you to work while the change application is pending, but this is a proposal far from becoming law.

Q: Applicants for naturalization must be literate and have knowledge of the history and government of the United States. What information do you suggest I study for this?

A: I am not usually one to praise the INS, but they actually do have an excellent web page for preparing for the naturalization exam. They actually have an online practice test as well as information on the questions. Go to

Q: (1). Will a five-year period be required prior to adjustment of status even for those doctors who filed their National Interest Waiver Petitions (NIW), before Nov 12, 1998? Can we hope for flexibility in the NIW regulations after the comment period?

(2). If an immigrant visa is denied at a consulate for, say, lack of substantial evidence, can a valid H-1B visa be used for return? Or would it be canceled?

(3). Are the adjustment of status times for NIW physicians likely to improve in the future?

(4). Does the INS or consulate need a job offer for an EB-1 to qualify an applicant for a green card?

(5). If I am moonlighting during my J-1 period, will that be a problem for me at any stage in the processing of my processing toward permanent residence?

(6). Finally, does your firm have an office in India?

A: You have a lot of questions and I'll try to get to them one by one. With respect to the NIW, if you filed properly before 11/12/98, you should be able to get the three-year requirement. I am not positive if the new regulations have changed this, but I believe as long as your application is still pending or in appeal, you'll get three years.

If your immigrant visa is denied, as long as it is not denied for something like fraud, and you are otherwise complying with your H‑1B visa, then you are okay to keep the H‑1B.

Adjustment of status times may get a little bit better. But I would not expect big changes.

To get an EB‑1 visa, a job offer is not technically necessary, but from a practical point of view, you will not have much of a chance in convincing the INS that you have extraordinary ability if you are unemployed. Self-employment is a different story, but you'll need to show you are doing work in your field at an extraordinary level.

Moonlighting can be a problem on a J‑1 because it is unauthorized work and you would be in violation of your visa status. You might have to consular process. Definitely consult with your immigration lawyer on this. Finally, we do not yet have an office in India (though we are in early stages in negotiating with an Indian firm on this).

Q: I am currently a J-1 visa holder. My husband is a J-2 dependent. I am changing my job and visa to an H-1B. My husband will get an H-4 and won't be able to obtain permission to work. He is a chef, so the chances to get his own H-1B visa are very limited. We were told that he could get some company in his field to sponsor him for permanent residence. But how he can obtain such a sponsorship if he is not allowed to work under the H-4 status?