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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1) QUESTION -I have a pending Employment-Based I-485 application (receipt date 11/14/00 ) filed in Nebraska . Needless to say, I am becoming a little restless since the entire Green Card process has taken about 5 years at this point. Is the I485 the last step to getting a Green Card, or is there more?
ANSWER – This is basically the last step. Once it is over, you will get a one year stamp in your passport indicating that you are a permanent resident. A few months later, you will get a card that documents the same thing (that’s the actual green card). But once the I-485 process is over, you are a permanent resident.
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2) QUESTION – If a green card application is an employment based petition, are you obligated to remain with the petitioning employer after the I-485 is approved? If you leave employment with the petitioning employer, will the INS care? (I am familiar with the AC21 106(c) provision for changing employers, but the direction I would like to go in would not be considered a similar occupational classification, in fact I’d like to go back to school instead of work.)
ANSWER -If you are going into a different field, then the traditional rules would apply. There is no official amount of time you must stay with an employer, but you will want to stay long enough so that you will not be considered to have had fraudulent intentions regarding your intentions to stay permanently with an employer. Lawyers will tell you different amounts of time that are considered safe. The minimum usually heard is three months, though some are more conservative and will say six months or even a year. Of course, the point of the new law passed in AC21 is to make it clear that in cases where the government takes its time in adjudicating a case, the immigrant should not be punished by being forced to remain an excessivel long period of time with an employer. So it should make the INS ease up on targeting people who leave employers too quickly after an adjustment application is finished. But this is just my best guess.
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3) QUESTION – My son turned 14 last September 28, 2001. In accordance to the Immigration law, we applied for a replacement green card two weeks prior to his birthday. His passport was stamped in lieu of the green card good for one year and we received a notice of action form stating that the papers were sent to Vermont for processing. I inquired twice as to the progress since it is almost 9 months since we applied. The INS Vermont did not respond to our inquiry.
ANSWER – It is not unusual to wait upwards of a year for a replacement green card. The INS will give an additional one year stamp without too much difficulty and you should ask the local INS office at that time to inquire again.
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4) QUESTION – Could you please advise on when the 6 month Minimum Admission Period for B-2 tourist visa holders is canceled and the 1-month default Admission Period takes effect.
ANSWER – The proposal to go to one month I-94 periods is just that – a proposal. There is no timetable for the change because the INS has not announced a final rule. And given the tremendously hostile reaction that greeted the proposed regulation, some are speculating that it may not ever go final. If it does go final, then it would only affect new I-94s, not people currently in the US .
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5) QUESTION – When the INS proposed that a H-1B employee can extend his stay beyond 6 yrs if his labor petition was filed more than 365 days back and I-140 is pending with INS, does the 365 day labor processing period include the time when the petition was under processing by the state SESA agencies before it moves to federal labor level or does the clock starts only when the case moves to the federal stage ?
ANSWER – First, the H-1B rule you refer to is the actual rule, not a proposed one. Second, upon filing of the case with the State the clock would start.
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.