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 have a pending adjustment to permanent residency (form I-485) as a wife of a US citizen. Can I receive unemployment benefits? Also, could I receive unemployment benefits when I am eventually granted the Green Card?

A - Eligibility for unemployment benefits is a function of state law and not immigration law so I am not an expert on this subject per se. I would, however, check the web site for the agency in your state that administers the program. I am fairly sure that green card holders are entitled in every state to unemployment insurance. Not sure about others, however.

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Q - I am a US citizen and my sister is not. She came here on a student visa and graduate from college. She worked at a bank after school for a year on the practical training visa. However, her visa has now expired. Can I apply for permanent residency status for her? Will I have to pay a special fee to have this done?

A - You can apply for permanent residency for her, but that merely enters her into a queue with a wait that is more than 10 years. And your sister cannot remain legally in the US in the interim merely because you have filed this. She'll need to find another way to stay legally in the mean time such as by continuing on in non-immigrant visas like a student visa or a work visa.

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Q - My friend is an illegal woman who married a citizen. He signed the paperwork for her I-485 but it has not been submitted to the INS. He has met someone else and wants out of the marriage. Should she still submit the paperwork so she can get a work permit, she is hoping he will change his mind before the interview takes place.

A - Submitting the paperwork and then not being married at the time of the interview is a good way to get placed in deportation proceedings. I'd be very cautious about that. When the interview comes around the examiner will really have no choice but to deny the case. Definitely make sure your friend consults with a lawyer to see what strategies are available.

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Q - My sister is a graduating PhD at a university. Her area of study is plant virology. Can she qualify for the NIW/EB1 visa category?

A - It is normally very difficult to qualify for an national interest or extraordinary ability-based green card right out of a Ph.D. program. We usually recommend working for a couple of years on an H-1B or O-1 visa before going for the green card in this category. A labor certification-based green card may be easier at this stage in her career. Of course, if she has some outstanding accomplishments or is working in a critical capacity on a very cutting edge project, I might be more optimistic. You may want to get her CV together and discuss with a lawyer to see if the criteria for either of these cases is going to be met here.

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Q - I am writing on behalf of my husband and two others. They are a cover band currently working in entertainment in pubs and clubs in and around our country. They have just met up with an American singer who was visiting our country over the past months and now they would as well as promote their original music with the intention of getting a record deal. What we would like to know is how they go about getting a working

visa?

A - Typically, bands come to the US on P visas. You would want to show that they have been very successful in your country and that they meet a host of different criteria supporting such a finding. . You might find the article on our web site at http://www.visalaw.com/00apr4/12apr400.html helpful.

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Q - I am interested in dual citizenship.  I was born in Mexico and still have my mexican birth certificate. I am now an American citizen as of 9/99. How can I get dual citizenship? What is the form that I have to use for this process?

A - It is possible both in the US and in Mexico . For Mexicans, you have to appear before your nearest Mexican Consulate in the US or directly before the Ministry of Foreign Affairs (Secretaria de Relaciones Exteriores). We recommend you appear before such a government agency as soon as possible because the term to apply for the dual citizenship expires on March 20, 2003 .  Pursuant to some rumors in the Congress, the period might be extended, but it has not been confirmed yet. For the US , you don't need to do anything else. (Thanks to Mariano Esparza in our Mexico office for his help here)

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Q - I hold an L-1 visa and recently married a green card holder. If I want to change jobs, do I need the new company to sponsor an H-1, or is there another way of doing it because I'm married to a green card holder?

A - Your marriage to a green card holder is not likely to provide any immediate effect unless you were married before your spouse got the green card. The backlog for green cards for spouses of permanent residents is several years and you are not entitled to remain in the US while it is pending unless you are maintaining a non-immigrant visa. Once your wife becomes a citizen, things will change and then you can apply for adjustment of status and get an employer authorization document. I'm presuming you have not applied yet for the green card, but if you have, then obviously things may be faster.

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Q - Hi I am US Citizen and filed an I-130 application a couple weeks ago for my wife. I have already received my receipt stating that they have received the fee and it will take from 150 - 999 days to process. I also have a 1 year old daughter conceived in the same marriage. My question can file a K-3 visa right know for both of them or should I acquire my daughter's passport and social security card a different way.

A - The K-3 should be an option for you and probably is the best way to go if it is available. This is the visa category for spouses of US citizens residing abroad. It is a new category and is designed to speed up the process of getting relatives to the US (compared to the traditional way which could take one to two years. For the K-3, you are already past the first step which is to get the I-130 filed and get a receipt. You are now probably eligible to file the K-3 application with the INS.

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Q - My son lives in the US . I am a German citizen and want to be closer to my son. He is one year old. I would like to get a residence permit to be able to part in his life.

A - You will not be able to get a green card through your son unless your son is 21 years old. So you will need to find a strategy that is completely independent of your having a child in the US . That probably means looking at getting a temporary visa to work, study, or run a business and later look at getting a green card.

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Q - How can I find good immigration lawyer?

A - You might find the article on our web site at http://www.visalaw.com/hal.html very helpful.

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Q - I am an American citizen.  I am wanting to marry a Mexican citizen who is here with no green card, visa, etc.  Will our marriage make him a citizen?

A - If your fiancé entered the US illegally, then your marrying will probably not have the immediate effect of making him eligible to apply for the green card. Unfortunately, he'll most likely need to leave the US and then you would need to apply for a waiver for him to reenter and apply for the green card. The good news is that these waivers are usually not that hard to secure. The bad news is that they can take a couple of months or more to get.

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Q - If you are on J1 and in the mean while your green card comes along what happens then?

A - That depends on whether you are subject to a requirement to return to your home country for two years as is the case for many J-1 visa holders. That would be the case if you received any government funds (either from the US or from your home country), if you engaged in graduate medical training, or if you were here working or studying in a field that the US State Department has listed in its list of skills lacking in specific countries. If you are subject to a home residency requirement, you would either need to go back your country for two years or get a waiver of the home residency requirement before you could get a green card.

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Q- My wife's green card expires this July.  To avoid paying renewal fees, we want to apply for her citizenship.  But since the citizenship application will take some time and may go beyond this July, does she in the meantime still need to get her green card renewed before she becomes a citizen? 

A - I would go ahead and apply for a replacement green card. You'll find that even though your wife will not lose her legal status as a permanent resident while waiting for citizenship, having proof of being a permanent resident is very important. By the way, the INS just lowered fees substantially on most applications. Check our latest newsletter or go to the INS web site at www.ins.gov for the new fee amounts.

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Q - I got married in August last year. I have a multiple visa. My hubby is in USA and is a green card holder. I plan to visit him next month. We have not registered our marriage yet. If my hubby applies for my citizenship I cannot go back to my country. someone told me about V-1

visa. But we can have a traveling document?

A - I presume you were not married to your husband before he got his green card. If this is the case, things will not be so simple for you. First, the V Visa does not apply in your case because it only covers marriages that took place prior to December 2000. The problem is that there is a long queue for green cards for spouses of green card holders (at least five years) and you are not entitled to remain in the US while you wait. You also need to know that when you enter on your visitor visa, a border officer has the authority to deny your entry if he or she believes that you will remain in the US beyond the authorized stay of your trip. Having a permanent resident spouse could potentially be perceived negatively and might lead to your being turned away. You will probably want to consult with an attorney to see if there are other ways to come to the US that do not depend on your spouse's sponsorship. By the way, if you were married before your husband got his green card approved, you may be eligible for something called "following to join" which would allow you to apply right away for permanent residency.

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Q - Is there any limit to how many times (and how often) someone can visit the U.S. using the Visa Waiver Program?  Also, can someone apply for the K engagement visa while they are here under the Visa Waiver Program?

A - There are no limits on how many times you can enter using the Visa Waiver Program. However, a border officer always has the discretion to deny you entry if they suspect that you have intentions to remain permanently in the US, are working illegally here, or are otherwise not going to comply with the rules. Leaving and reentering the US too frequently and with very short gaps between leaving and reentering will potentially draw suspicions.

As for applying for the K-1 visa while here in the US , that should not be a problem as long as you leave the US in a timely manner. In fact, it is the more appropriate to do this than to enter on the Visa Waiver and then marry and apply for adjustment while on that same trip.