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 need information on a case where a husband is a naturalized US citizen and the wife is in Mexico . She qualifies for an H-1B. Getting her through the K-3 visa will take 6-12 months. Can we file for an H-1B visa for her or will the INS/consulate not grant it because she is married to a USC?

A - Marriage to a US citizen is definite NOT a problem in an H-1B case.

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Q - I have a friend who decides to use his company to sponsor me for H-B1 even though I'm not going to work for his company, I want to know if its o.k. to use the H-b1 to work in another company who is unwilling to sponsor.

A - This is a dreadful idea and you really should reconsider. You would be committing fraud and risk being deported and can forget immigrating to the US . The company that knowingly hired you would also be exposing themselves to serious problems. You should only work for companies that sponsor you for the visa and should not come into the US unless the job is genuine.

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Q - My employer just laid me off. They are asking me to sign a document waiving the right to sue them in exchange for severance pay as well as waiving the right to ask for a return ticket home under the H-1B rules. Is this legal?

A - Your employer is obligated to pay for your return ticket home if you decide to leave the US . The employer is not obligated under immigration law to offer you a severance pay package. As for your right to sue the employer for damages, this is really not an immigration law question and will instead be governed by the labor laws in the state where you are living. You should consult a lawyer specializing in such matters in your local area. So your signing or not signing the agreement should not affect your immigration status. You should, however, quickly make plans to ensure you remain in legal status. If you are still employed, you should definitely consider filing a change of status application to a B-1/B-2 visitor classification so that you remain in legal status while you search for a new position.

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Q - My spouse wants to start working and I thought he would get EAD sooner by adjusting status here in US than opting for Consular processing. Is my understanding wrong..

A - That would be a good reason to adjust status. If you file for adjustment of status, you can simultaneously file in most cases for an employment authorization document and be working legally on that work card within just a couple of months. Consular processing can take six months or more and there is no right to work in the interim as a benefit of having filed such an application. There is also the possibility of applying for both, though you should be careful and discuss this option with an attorney. The INS takes the position that you cannot do both. However, there is arguably nothing in the law which supports this position. In an employment-based case, when you file an adjustment of status application and then request the INS notify a consulate for purposes of consular processing the green card, the INS will consider you to have abandoned your application and will normally terminate the adjustment application. However, if you initially request consular processing and then file for adjustment later, the INS has typically not terminated the adjustment application. Again, speak to your attorney about this. For you attorney readers out there, I would be interested in knowing your experience with following such a strategy. Just email me at gsiskind@visalaw.com.

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Q - I've heard that 5 year waivers will soon be available (entry waivers for people that have a drug conviction) instead of the current 1 year waiver. Have you heard when they will be  available and at what cost?

A - This, to my knowledge, is just a rumor and I would be very surprised if there were any truth to it. We hear rumors like this all the time and they are almost always related in no way to reality.

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Q- Because of the war in Vietnam , my dad lost all of his documents -which included the marriage and divorce certificates with my mom. Can my aunts (my dad's sisters who are now in U.S. ) be able to provide the affidavits to explain the situation? In the back of the I-130, there is a section of using affidavit if do not have a real document. I'm very anxious on your response since I prepare to apply for my dad to come to the US and I need to file the I-130 form with the INS.

A - Generally speaking, if you can prove that a document is not available (a letter from an official in your home country usually works), then you can use an affidavit instead.

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Q - I and my wife are greencard holders for 5 years and fulfill all requirements for applying for naturalizations.  We have a  daughter who is 12, do we need to file a separate N-400 form for her or any other form?

A - You do not need to file a separate application for your daughter. After you naturalize, you can file an N-600 application for certificate of citizenship to be able to document that she has naturalized through you.

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Q - I am citizen of Ukraine . I have been in the USA for 5 years. I am currently working as an accountant on Employment authorization card. I am on student visa here. How long would I have to wait to get my Green card and Citizenship if I would marry US citizen?

A - Depends on the local INS office. Times can vary dramatically from place to place. You can compare INS offices for adjustment of status processing if you go to my web page at www.visalaw.com/localtimes.html.