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 an Indian citizen residing in Ecuador, South America. My mother is a US resident since 2002. If she sponsors me ,will I have to go back to India.

A - You should be able to process the visa in Ecuador if you are residing there (i.e. you are not just a tourist). The State Department has a rule requiring consulates to process people RESIDING in the consulate's jurisdiction and not just those who have the nationality of the country where they are living. Some consular officers don't always seem to understand this, but your immigration lawyer should be able to succeed if they document your residency properly.

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Q - We are finally scheduled for our interview (family based application) and I was wondering if we'll receive the actual green card right after the interview is over? I read somewhere that nowadays they stamp your passport instead and mail you the green card?  Will you be able to travel outside the US immediately after the interview, even if you don't have the actual green card in your hand yet and just a stamp in your passport?  

A - The answer on how quickly you’ll be granted permanent residency after the interview depends on the local office and the examiner. In some cases, you can be interviewed even though the case is not completed. Security checks may remain to be completed; documents may still be missing; etc. Assuming the case is ready to approve, you will likely be granted permanent residency and an I-551 stamp will be placed in your passport. That is the legal equivalent of the green card which may take several months to arrive. You can travel and work with the stamp in the same way as you would use the green card. The main difference is that one is valid for a year and the other is valid for two or ten years (depending on the basis for the green card).

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Q - Can I apply for a normal processing for my H1b application and upgrade that to Premium processing at a later stage?

A - Yes, this is permitted. You would only need to have a receipt from the initial application and then file the premium processing form and fee.

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Q - Is someone who returned to Mexico after Voluntary Departure was granted at Master Calendar subject to a re-entry bar?  Can they return on a K-1 Visa or is there an amount of time required before all legal immigration efforts can start again?

A - The re-entry bar depends on how long the person was here prior to being put into Removal Proceedings and prior to the issuance of the Voluntary Departure order

If she was in the US legally and complied with the Voluntary Departure order, there will be no bar. If she was here illegally or "out of status" for more than one year prior to the institution of proceedings, there is a 10-year bar for which she will need a waiver to return on a K1. This is a complicated issue and you should definitely consult with your immigration lawyer.

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Q - A 4 year old child born to a U.S. Citizen mother in Mexico is currently living in the U.S. and entered without inspection.  The child has not been legitimated.  Can he acquire U.S. citizenship or must he go through the I-130 Petition process?  If so, can he qualify to apply for an adjustment of status or must be apply for a visa abroad?  Note: the mother did live in the U.S. for more that one year prior to her child's birth.

A - According to the given facts, the child acquired U.S. citizenship at birth as long as the mother was a U.S. citizen at the time of the birth and as long as she was continuously present in the U.S. for one year prior to the birth. There is no legitimation requirement when the citizen parent is the mother, and once citizenship is automatically acquired it cannot be lost (except through denaturalization or revocation).

The Immigration and Nationality Act Section 309(c) states that a person born outside of the U.S. and out of wedlock shall be held to have acquired at birth the nationality status of his mother if:

1.  the mother had the nationality of the United States at the time of such person's birth, and

2.  the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

You should consider having the child apply for a U.S. passport. A person may apply for a U.S. passport directly to the passport office without submitting an application for a certificate of citizenship. If the passport is granted, it is conclusive proof of U.S. citizenship.