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.
*
1) QUESTION – I have a friend from El Salvador. She is under TPS. Her boyfriend is a us citizen and they are planning to get married. Could she change her status as a Permanent Resident and Does she have to leave the country in order to receive the green card?
ANSWER – The answer depends on your friend’s status prior to getting TPS. If she entered the US illegally and no one has ever filed for a green card for her before, it is likely she will have to return to her country to collect the green card and await a waiver of the bar on reentering the US (assuming she was here for more than six months after entering illegally). If she entered the US legally, she may not need to leave.
*
2) QUESTION – I sponsored my nanny and she is about to get her green card in a few months. I asked her to leave in November because she won’t be here next summer and I need my son to bond with someone new before his sister leaves for overnight camp next summer. Will this be a problem for her immigration wise seeing that we have been withholding taxes and she has to file a 2002 return? Is it Ok for her to leave before she gets her green card? She has a work permit and social security number.
ANSWER- If she has had her adjustment of status application pending for at least six months and goes to work doing something that is the same or very similar for another employer, she should be okay.
*
3) QUESTION – My cousin, just received her working permit. She got it through skilled labor application (I-485). She just wondering how much longer she has to wait to receive a news regarding her green card? (She went through the finger printing, etc. already). Thank you in advance for your response.
ANSWER- Check the processing times for the INS service center handling the case at www.visalaw.com/processing.html.
*
4) QUESTION – I have a question about the new rule released today by INS regarding concurrent filing. I have two green card cases currently under processing, one through my current employer and another one through a prospective employer. The federal labor through my current employer is under processing. My labor with the prospective employer was approved and I filed for I-140 two weeks back. With this new rule, I can file for I-485 petition now. My concern is, if my I-140 petition through prospective employer gets rejected for some unexpected reason in the next couple of months and I get labor approval through my current employer in the meantime, would I be able to file for I-140 and I-184 again through my current employer without loosing my legal status. Please advice. Thank you.
ANSWER- Under pre-existing rules, you can submit a substitute I-140 while the adjustment of status application is pending and I do not see why you could not continue with this practice.
*
5) QUESTION – If there is no home residency requirement, in all likelihood the person can reside in the US while an adjustment of status application is pending. She would be able to apply for an employment authorization document and once that document is issued, it would be permissible to work for a new employer. Once the adjustment application is pending, she also is free to quit her job.
ANSWER – A J-1 holder who is not subject to the 2 year home residency requirement is planning to marry a US Citizen. While the adjustment of status application is pending, can she reside in the U.S.? If so, must she continue to work for the J-1 sponsor, or can she quit this position, and await the final disposition of the application? Thanks.
*
6) QUESTION – Hi, I’m married to a Canadian citizen and we’re going to go back to the states so I can finish my schooling. Will she need a some sort of visa to get across the line to live with me? Any help you can give will be greatly appreciated. Thanks.
ANSWER – You will need to get your wife an immigrant visa or a K-3 visa for her to come with you and you should start planning as quickly as possible. I have had a number of cases over the years where couples were forced to spend many months apart or remain stuck in Canada much longer than expected because they did not start early in planning for a visa. Visitor status requires you to demonstrate an intention to leave the US when the status ends. As a spouse of a US citizen, your wife will likely find it difficult to convince a border officer of her intentions to go back to Canada. Your immigration lawyer should be able to advise you more on your specific options.
*
7) QUESTION – Hi, if I’m a U.S citizen and wish to sponsor my half brother as a resident, is that possible?
ANSWER- Yes. You can sponsor a half sibling. They are treated the same as any other siblings.
*
8) QUESTION – Do you think that now would be a good time to file for citizenship? The reason why I am asking is because of what the Ins is going through?Do you think that citizenship would be affected by the Ins being reassign under the homeland security department? Thanks
ANSWER – I don’t think we will see changes in naturalization procedures even with such a move. The INS’ history as far as processing times goes is pretty erratic and I would always recommend taking a close look at filing applications as early as possible. I certainly have no reason to believe the process will be made more difficult.
*
9) QUESTION – Recently My application to renew L-1A status was denied. My first L-1A was approved for 1 year. My question is as follows. I’m returning back to my home country and I wish to renew my daughter’s B1/B2 Visa. All the family (Me, my wife and other 2 children still have the B1/B2 Visa valid). On the form DS-156 there is a question of If you have ever been denied a Visa. This means about Consulate denying a Visa? or a change of status in the United States is considered a Visa and they I am supposed to answer “Yes” is that question. It is very confusing. Some people tell me that a change of status or extend of status is not considered a Visa and Only it is considered a Visa when a Consulate stamp it on the passport.
ANSWER – I agree with this. A change of status is not a visa application. Only an application at a consulate would be a visa application. So I think you can truthfully say no about a visa denial.
*
10) QUESTON – My husband has been filled for petition from his brother (US Citizen) under 245i program. It is said in the paper that it will take one to three years to process, and it has been one year already. How long does it usually take since he has filed under 245 i program? Is there any way to get quicker to process? What is the benefit while we are waiting for? We have twin children who are 19 years old, and live in New Jersey. Do you think that they can take driving license while we are waiting our green card?
ANSWER – The I-130 may take one to three years to process. But then there is the 12 year queue to contend with and just because there is a petition on file does not mean your husband will have legal status in the interim. The good news is that if you can find another route to a green card, the filing by your brother-in-law will allow you to use 245i for a different petition. You need to find a strategy quick if you have any hope of getting the kids green cards.
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.