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 – For 90 days, immigration allowed everybody file form I-140 with form I-485 To adjustment of status. This regulation will end October 31. My question is: This regulation will be extend after 10/31/02 or not?
A – You are mistaken. The new regulation allowing simultaneous filing of I-140s and I-485 petitions does not expire after 90 days. This is a permanent change.
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Q – I have H-1B Visa (exp 11/31/2002), my I-140 and I-485 pending. Do need to apply for extension of my H-1B. Thank you.
A – You will not be work authorized after 11/31/02 unless you have an employment authorization document through your adjustment application or you have extended your H-1B. So make sure you apply for the H-1B extension if you have not received the work card by the expiration date.
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Q – Hi, I have a question. If I am a citizen of Kyrgyz Republic (Kyrgyzstan) but currently live in US – should I write on the application form my US address or the address where I live now? Thank you very much!
A – I would use a US address if it were me. But you can put any address you want. This is the address they will send the winner’s package to so be sure it is one that will work for a while. Don’t count on the State Department having your packet forwarded.
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Q – We stayed in US in J-1 visa, after finishing this visa, we moved to Canada (not moved to citizenship country to fulfill J-I exchange visitor visa condition. But now we like to get H1visa in US. So we need waiver from my citizenship country. Now we are outside of USA, so we are eligible to apply waiver? If any special application form is available? Please inform me. Thank you.
A – You can apply for the waiver from inside or outside the US. As for what your best options for a waiver might be, I’d really need to interview you to determine them.
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Q – My mother became permanent resident (Green card holder) of USA in Nov 2001. On 14th of Feb 2002 she went to India (her home country) for a visit. She is planning to come back in the month DEC 2002. Her stay in India (Outside USA) has been more than six months but within 1 year. Does that affect her status of permanent resident? Has she over stayed outside of USA that can affect her status as permanent resident? Can she be denied re-entry based on overstay outside USA, if any?
A – She probably will get nothing but a stern warning, but she should nonetheless be prepared to document her ties to the US. You might find the article on my web site at http://visalaw.wpengine.com/01jan4/12jan401.html helpful. And she should plan on spending most of her time here if she wants to keep her green card.
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Q – My girlfriend just got a B2 visa valid for 10 years, how long can she stay/ask before she has to go back to her home country 6 month, 12 month, more?
A – Actually, the INS typically will only grant a 30-day stay unless you provide a good reason for needing longer (this is merely a proposed rule, but the INS has been acting as if it is final). The maximum they can grant is six months at a time.
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Q – Hi, I want to apply for visa green card lottery but I’m belong from Pakistan (Pakistan not eligible for entry). But right now I’m studies in USA so I have a question that can I apply for green card lottery or no…. thanks for reply.
A – You are not eligible merely because you are currently residing in the US. Your eligibility is normally determined by the country of your birth.
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Q – Hi. I am a physician on J1 visa doing my residency in US. Can I emigrate to Canada after I complete my training if I don’t find a waiver?
A – I am not an expert on Canadian law (try Leonard Pearl in our Toronto office at lpearl@visalaw.com). But I can tell you that probably cannot satisfy the home residency requirement in Canada. The only way you could is if you were residing in Canada before coming to the US or you are a Canadian national.
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Q – Could you possibly answer the following question? I have heard that the time needed to get a green card in EB-1 category has recently increased considerably. How long does
it take on average these days?
A – I don’t necessarily agree that I-140s are a lot slower than they used to be. Times seem to be about what they have been for some time. You can see I-140 times by going to our web site at www.visalaw.com/processing.html. The times seem to range from 2 to eight months depending on the service center in question.
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Q – My H-1B status expires soon. Can I keep working while it is pending? When should apply for an extension. And how about the green card.
A – You automatically have your status extended while you wait so from the point of view of being allowed to continue working, just file before the I-94 expires. On the other hand, if you need to travel abroad while the extension application is pending, you could have trouble reentering the US. Since the application will take 3 or 4 months to approve and you are allowed to apply up to six months prior to expiration of the I-94, I probably would apply somewhere between four and six months ahead of the expiration date.
As for starting the green card process, I would apply for that sooner rather than later just because the process takes so long that you don’t want to be stuck well into the process having to start again. If the market is tight for teachers right now, I would start sooner rather than later.
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Q – When my mother was naturalized, my sister’s category was changed from F2B to F1. We would like to request that their category be returned to F2B as the wait will be shorter (Philippines). Where do we send the request to? Please advise.
A – According to a memo released a few weeks ago by the State Department, “At this time, it is not known how this request to the Attorney General will be made or what formalities will be required.” We will need to wait a bit longer to see how the INS and State Department intend to implement the new law.
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Q – I would like to know if two people can get married by phone in another country?
A – Depends. First, the marriage ceremony conducted via telephone would need to be legal in the place it is performed. Second, the marriage will actually need to be consummated by cohabitation between the parties after the ceremony. The Immigration and Nationality Act defines “spouse” in a manner that excludes parties that are not physically in each other’s presence. So this would exclude telephone, proxy, radio, video and similar absentee marriages unless they have been consummated.
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Q- I am a US citizen and my fiancé is here on a work visa from Mexico. What steps do I need to take to get legally married in the US? We are both 19.
A – You might find the article on my web site at http://visalaw.wpengine.com/00jul4/12jul400.html helpful.
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Q – If I change jobs can I transfer the processing (H1-B and green card) to the new company (if the processing is not complete by then), or at which stage of the green card processing can I transfer it to the new company or will I have to start the entire green card process again with the new company?
A – You should be able to switch H-1B employers with a change of status application, but you risk having to start the green card process all over again if you leave now. There is a provision that would allow you to move employers six months after you file for your adjustment of status if you are going to a job in the same or a similar occupation. But even this is risky.
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Q – Could you please inform me if there are any exceptions to the two-year home-country physical presence requirement for those who were on J-1 visa in the US and are married to a citizen of the US? Thank you!
A – There is a waiver available based on a hardship to a US citizen if the J-1 visa holder has to satisfy the home residency requirement. Merely being married to a US citizen would not be enough to avoid the home residency requirement, but if there are genuine hardships that would result from having to comply with the home residency requirement, then you might have a case. The State Department would require you to show a hardship if the two of you are separated AND a hardship if both of you go abroad to satisfy the home residency requirement.
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Q – I would like to acquire the following information:
1-When applying for green card lottery, would it be possible to put a U.S. address (a relative address) for mail returns, to make sure that I will be getting the answer to the green card lottery, since I am an Iranian citizen and the mail services in this country are not reliable.
A – Yes, you can use any return address you like for the lottery and using a return address in the US is not a problem.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.