Ask Visalaw.com

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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Q - I filed my I-360 application and received a notice from BCIS on May 9, 2003. Since it takes about 90-240 days to process this type of application, my question is can I file for an I-485 application while my I-360 is still pending? I would appreciate your help in clarifying this issue for me.

A - Unfortunately, there is no concurrent filing for I-360 immigrant visa applications. You can only file adjustment applications with employment-based green card applications in the case of I-140 employment-based green card applications.

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Q - I am working in the U.S. with a H1-B1 for a little over 1 year and my wife is H-4. We have a son over 2 years old who was born in VA and now an American citizen. Using this family connection, can we apply for Green Card (LPR)?

A - There is a fairly common myth that anti-immigration zealots typically enunciate that people come to the US to have babies as an avenue to getting the parents legal status in the US. This is not the case. Children born in the US are US citizens. However, they cannot sponsor their parents for green cards until they turn 21 years old. The children are entitled to stay in the US, but their parents are not, and if the parents want the child to stay, they have to make arrangements for someone else to raise the child. Obviously, that rarely happens.

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Q – I have a friend who is in the US for about 3 years and married a US citizen, but wants to divorce now, and his spouse is his sponsor. What does he have to do in order to divorce her and what if any complications are there in something like this? I would greatly appreciate any kind of help you could give me.

A - The answer depends on where your friend is in the process. If the adjustment application is still pending, your friend's situation is not going to be good. The couple still needs to be living together in good faith at the time of the granting of the initial green card. If the green card has been approved, but your friend has conditional permanent residency (you'll know this if the green card has a two year expiration date), then it is possible the situation can be handled successfully if your friend requests a waiver of the I-751 joint filing requirement (that's the requirement that the sponsoring spouse jointly file the application with the green card holder). Your friend really should consult with a lawyer.

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Q - Please I wish to know the latest date for the submission of documents for the 2004 successful applicants.

A - DV-2004 winners must complete processing by September 30, 2004. If you are processing at a consulate, you can send the documents in now and should assume that the process will take six or more months. If you are processing in the US, your local INS/BCIS will not take the application until October 1, 2003. You need to be very proactive to make sure your case is moving along properly since the processing agencies (particular the INS/BCIS have a notoriously bad history when it comes to getting these cases processed in a timely manner).

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Q - My husband is a green card holder and is living in Florida. In April this year he has applied for my immigration. On this basis I may get the immigration visa within 3 years. In May 2004 he is expected to get US nationality. As it is a long period of wait, so my husband after becoming US national intends to apply to the immigration authorities to shift my case from the green card holders file to the US nationals file. In this way he thinks that the visa will maybe issued within 6 months. Do you think the US immigration allows the shifting of the case from the green card holders file to the US nationals file?

A - Actually, your husband does not need to do anything for you to qualify in the US spouse category once he naturalizes. You will "automatically convert" to the new category. If you are outside the US, you or your attorney will want to notify the INS/BCIS of your new status if they have not yet approved your I-130 petition. If you are outside the US and your I-130 has been approved, you or your attorney will want to notify the US State Department of your changed status so that they can get the process started to get your green card at a consulate.