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These immigration questions and answers are from many sources, including AILA (American Immigration Lawyers Association) as well as our own client conversations.
Q: What Does the New Public Charge Rule Mean for You?
A: On February 22, 2020, the United States Citizenship and Immigration Services (“USCIS”) confirmed that it will implement the new “Inadmissibility on Public Charge Grounds” final rule on Monday, February 24, 2020. The new Public Charge rule will apply only to applications and petitions postmarked (or submitted electronically) to USCIS on or after February 24, 2020. We address some of the most common questions and concerns regarding the new Public Charge rule that we have recently received under our Immigration Alert page
H-1B Visa Program Questions
View our Video on H-1B Q & A
Q: What is an H-1B working visa & who is eligible?
A: A “specialty occupation” non-immigrant employment visa. It helps those with bachelor’s or advanced degrees, those working for the Department of Defense, or those working as a fashion model, work in the USA for certain periods of time.
The H-1B has several levels and criteria that qualify you in various ways. Some fall under the quota system, and others do not. It’s very important that you and your employer work very closely together to determine the requirements, and the timing, as there are deadlines for some H-1Bs, and for others, it may be better to apply at a different time of year when it’s not competing for attention with those satisfying the deadlines.
Your H-1B visa may be for up to three years. Any renewals generally do not extend beyond six years. Some family members of the H-1B visa holder may seek H-4 nonimmigrant visas.
Q: Is there a limit to the number visas issued?
A: Each year 65,000 visas are issued for bachelor degreed non-immigrants and 20,000 visas are for master degreed non-immigrants.
Q: What are the deadlines for applying?
A: Start getting your paperwork ready in March. You can apply in early April is when you can first apply. for the next fiscal year which starts October 1st. You cannot start work until October 1st.
Q: How long does the H-1B process take? I am looking for a job and I will need a visa, and this kind of visa seems like my most likely option, but I am concerned about the time frame. I need to start working soon.
A: There are a few steps that must be completed before filing for an H-1B nonimmigrant visa. First, a prevailing wage must be submitted to the Department of Labor which may take 6-8 weeks. Next, a Labor Certification Application must be submitted again to the Department of Labor and this takes 1 week before it is approved. Once the documents are gathered and the petition submitted, it can take anywhere between 2-7 months depending on whether it is the first petition or a request for an extension. Thus the complete process may take between 4-9 months.
Q: I applied for an H-1B visa but I have not received approval yet. Does this likely mean that I have missed out this year? Is there any way for me to come to the US and start the job I was offered and apply again next year?
A: Usually when you have missed the lottery for the H-1B visa, United States Citizenship and Immigration Services returns your application to the employer who petitioned for you. This is how you know that you were not selected. You cannot come to the United States and work unless you have a visa that allows you to work here. There are other visas such as the L-1 visa which allows managers or individuals with specialized knowledge to come from a company abroad to a company in the U.S. to work. The companies, however, must be related. An example is a parent company and its subsidiary.
Q: What if my job ends do I have to leave the country?
A: If you are terminated for any reason you have a 60-day grace period to find a new job, then you have to complete the paperwork reflecting the change. If you quit, there is no grace period and your H-1B visa will come to an end.
Q: What if my employer wants to give me a promotion?
A: The job has to remain the same job core. Your status cannot change from full-time to part-time and/or your payment cannot go down. You can get a raise without any issues. Basically, you have to continue to do the same core job in the same location. If not, your H-1B will need to be amended.
Q: How long does the H-1B process take? I am looking for a job and I will need a visa, and this kind of visa seems like my most likely option, but I am concerned about the timeframe. I need to start working soon.
A: There are a few steps that must be completed before filing for an H-1B nonimmigrant visa. First, a prevailing wage must be submitted to the Department of Labor which may take 6-8 weeks. Next a Labor Certification Application must be submitted again to the Department of Labor and this takes 1 week before it is approved. Once the documents are gathered and the petition submitted, it can take anywhere between 2-7 months depending on whether it is the first petition or a request for an extension. Thus the complete process may take between 4-9 months.
Q: I was one of the lucky people to get one of the H-1B visas and I was due to start working in October. I was just told by my employer that they are downsizing and won’t be hiring me. Is there anything I can do to protect the visa? Can I transfer it to another job if I can find one?
A: Yes, you can transfer to another job if you can find one. Your new employer will have to file a new H-1B petition for you.
Legal Permanent Resident (LPR) Questions
A legal permanent resident (or LPR) is a person who has been given permission to stay in the United States.
Q: Can you travel internationally while an LPR?
A: You must have your passport issued by the country where you are a citizen, and to return to the USA, you must have your Green Card. It’s also helpful to have other documents such as your US driver’s license. You can also lose your permanent residency by staying outside the US for a long time, moving temporarily or permanently, calling yourself a non-immigrant on your taxes, or failure to file income taxes while living outside the United States. If you know you will be outside the USA, but don’t want to lose your LPR, apply for a re-entry permit, and consider applying at the nearest embassy or US consulate for a returning resident visa. Of course, this does not apply to members of the US armed services or civilian employees of the US government overseas on official business.
Q: I am a citizen of Bolivia and a permanent resident of the US and I want to sponsor my son to come to the US. He is not married. I am eligible for naturalization in about 5 months. Should I wait until I am a citizen to sponsor him, or will it make no difference?
A: You should file a petition for him as soon as possible. This is because the petition can be upgraded once you become a United States citizen. Also, there is not a major difference in the priority dates for unmarried sons and daughters of U.S. citizens and unmarried sons and daughters of permanent residents. Thus, in either case, an individual would have to wait approximately 6-7 years before their priority dates become current under each category. If your son is under the age of 21, then he will qualify as a child of a permanent resident and have a short waiting period of approximately 3-4 months unless the numbers regress or slow down. Once you become a United States citizen then he will be considered an immediate relative and you do not have to worry about priority dates. He will be able to apply for an Immigrant Visa immediately.
Q: I am from Mexico but am a permanent resident of the US. I have a large family back home – brothers, sisters, parents, cousins, aunts, and uncles. I would love them to come here for a better life, but I want them to do it legally. Which relatives can I sponsor? I can naturalize next year. Will that make a difference? How long does the process take?
Answer: As a lawful permanent resident you can petition for your parents, spouse, or children to come to the United States. However, they will not be able to immediately apply for an immigrant visa once the petition is approved because they have to wait until their visa numbers become available. The visa numbers are updated monthly on the visa bulletin by the Department of State. Once you naturalize, you will be able to petition for your parents, spouse, children, and even your siblings.
Your parents can immediately apply for an Immigrant Visa once their petition is approved because they are considered immediate relatives. Your spouse will be considered an immediate relative as well as your children who are under 21. You will not be able to file a petition for your aunts, uncles, or cousins either as a lawful permanent resident or as a United States citizen. I would suggest filing for your parents, spouse, and/or children under 21 now because you can upgrade those petitions once you become a United States citizen. This will also save you some time. You should file a petition for your brothers and sisters once you become a United States citizen.
I-130, Petition for Alien Relative – Questions
View our Video on I-130
Q: My parents live in Honduras. I am a resident here and would like to know if I can bring my parents here and help them. What is the process and how long does it take?
A: While your parents are free to come to the USA as tourists, you can only petition for permanent residence for your parents when you are a United States Citizen. When a citizen, you must petition for them with a Form I-130, Petition for Alien Relative. I would suggest filing a separate petition for each one of your parents as a safeguard if one of your parents passes away. Parents of U.S. citizens are considered immediate relatives so they don’t have to wait for a long time to get a visa number. The I-130 petition will take 3 to 6 months for adjudication. Once it is approved, your parents can come to the United States through consular processing on immigrant visas. They’ll receive their Green Cards once they arrive in America.
Q: My brother petitioned for me with an I-130 application and it was recently approved. I am now sending in an I-485. Back in 1980, when I was only 21 years old, I applied for an amnesty program. I was given a work permit. In 2006, however, I was denied an extension of the work permit because my lawyer lost the amnesty case in court. Is this going to affect my I-485 application?
A: This will depend upon what the outcome of your case was in court. If you received an order of deportation, then that can affect your I-485 application. The United States Citizenship and Immigration Services would not have jurisdiction to rule upon the case. Most likely you will have to request a motion to reopen your case because you are now able to adjust. Requesting a joint motion to reopen with the Department of Homeland Security is the best way to go. Also make sure that the petition filed by your brother was filed before April 30th, 2001. If not, then you will not be able to adjust in the United States and will have to pursue consular processing.
Q: I am a permanent resident and I filed an I-130 application for my daughter about 9 months ago. Since then she has married. Does this affect the application?
A: Yes, your daughter’s marriage will remove her from the preference categories and she will no longer be able to apply for an Immigrant Visa until you become a United States citizen. Immigration law does not allow a lawful permanent resident to sponsor a married son or daughter.
Q: My mother, who was a US citizen, sponsored my sister to come to the US from Honduras. Sadly, my mother died two weeks ago. Does my sister need a new sponsor? What happens to her priority date?
A: If your sister is not in the United States, then, unfortunately, her petition will be automatically revoked and she will lose her priority date. A petition remains valid only if the petitioner dies when the beneficiary is in the United States.
Employment Authorization Document (EAD) Questions
Q: If an F1 student with D/S status does unauthorized work what is the process of canceling his/her status? Can ISO cancel it without forwarding the case to an immigration judge? Does CBP have the same authority to cancel an F1 visa for work violations?
A: Unauthorized employment automatically violates an F-1 status. When an ISO makes this determination (that a person has violated their status), the person is referred to ICE for removal proceedings and ICE makes that determination. You would need to contact CBP for the procedure for removal proceedings. Neither USCIS nor CBP cancels visas issued by DOS. ICE contact info: [email protected], or call 703-630-3400. Also, for the CBP web site, visit www.cbp.gov and go to travel, then international visitors, or call 877-227-1511. To contact the Dept. of State, visit www.state.gov.
Q. For F-1 students with approved OPT who intend to engage in self-employment, does the time that the student is setting up the business (forming a legal entity, getting a business license, taking professional exams, etc.) count as employment, or would NSC view these preparatory activities as unemployment and therefore count against the 90-day maximum unemployment period for maintaining F-1 status?
Answer: The SEVIS Policy Manual says that a student on OPT may be self-employed and must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program. In response to a follow-up question about the 90-day period, NSC responded that all the cases it has seen involved situations where the student already had the business set-up.
Q: I came to the US on a visitor visa but I don’t want to go back to Colombia. When I came I had every intention of leaving, but now with a month left on my visa the thought of going back, there is filling me with dread. What are my options? I have a college degree and I speak fluent Spanish.
A: You have a few options. You can enroll into a school and obtain an F-1 student nonimmigrant visa. If you believe you require more time to enroll in school, then you can request an extension of your B-2 visitor status with USCIS. Another option is if a company is willing to petition for you for an H-1B nonimmigrant visa; however, you have to maintain status until your change of status is granted.
Business Owner: Undocumented
For more Q & A watch our Video on Work Permits, Social Security Numbers, and Taxes
Q: I own a business here in the US. It is very successful. I pay all my taxes and I have hired a lot of workers. My problem is that I am here illegally. I have been here 9 years but I have no relatives who are US citizens and I have worked so hard to build my business and I am a respected leader in my community. I am very worried that my status will be discovered and I could lose everything I have worked for. Is there anything proactive I can do? If I have to leave I would have no choice but to close the business and then lots of people would suffer.
A: There are no proactive steps you can take to gain status in the United States. There is a possibility of applying for asylum, however, you must explain why you did not file for asylum within one year of your last entry which is difficult to overcome. If you do get picked up by Immigration and Customs Enforcement, then you can explain the benefits you have provided to your community and to others and they have discretion whether to institute proceedings against you
I-824, Application for Action on an Approved Application
Q: Please describe the process Nebraska undertakes when an I-824 is approved and the case is to be sent to the National Visa Center (“NVC”) for following-to-join immigrant processing. What customer service options are available when the significant time has passed between the I-824 approval and when the beneficiary is notified by the NVC that the case is ready for further processing? This file-transfer process causes considerable hardship to families who are unable to obtain redress from USCIS (which just confirms that the I-824 was approved) and the NVC (which just claims it doesn’t have the case).
A: When NSC approves a petition, it sends copies of relevant documents to the NVC for further processing. If petitioners are experiencing delays in hearing from NVC, they can contact NVC at [email protected] or (603) 334-0700. NSC is working with NVC to improve processes, which it reiterated in response to a follow-up question about delays.
Q: If a relative of F1 student files and I-130 for the F, then, what are the risks of traveling for F1 because F1 is not a dual intent visa?
Answer: CBP (U.S. Customs and Borders Protection) makes determinations on admissions requests. Please direct this question to CBP through its information center that can be found at www.cbp.gov.
Q: What is the risk of trying to cross the border in Mexico without my passport? I have been restricted from using my passport because I am behind on my child support. Could I use my certificate of citizenship and my ID?
Answer: A U.S. Passport is required to enter the United States by either land, air, or sea.
Q: I am waiting for my Green Card application to be processed and it has already taken more than a year. I need to travel for my work and I am worried that I will lose my job if I cannot go on this trip. I am also afraid to tell my boss that my Green Card has not been granted yet. Can I request permission to leave and come back without abandoning the application? Do I have to tell my boss (he is not my sponsor)?
A: You can apply for advanced parole which allows you to leave the United States and reenter while your application for a permanent resident is pending with the United States Citizenship and Immigration Services. You do not have to notify your boss that you are applying for Advanced Parole.
Q: Other than a student being physically incapacitated, can NSC offer some examples of extraordinary circumstances that would be viable for allowing reinstatement for a student who has been out of status for more than five months.
A: NSC does not adjudicate reinstatement requests. The USCIS Field Office handles these. Please visit www.uscis.gov to find a local Field Office.
Re-enter US: Permission and Waiver
Q: I applied for asylum back in 2001. In December of that year, it was denied. I appealed the case until 2005 with my last motion sent to court. In 2007, I left the US. I married and became a Canadian citizen with the same asylum case I had filed in the US. In December 2013, I returned to the US. I was curious to find out about my case here so I contacted an immigration official, he tells me I must leave the country because I have pending deportation. What do I need to do?
A: If you have been ordered removed by an Immigration Judge, then you are not allowed to enter the United States for a period of at least 10 years unless you obtain permission to enter. If you entered unlawfully or are currently overstaying your status, then you may have invoked the permanent bar from the United States if you return to Canada. You can either request to reopen your case if there are circumstances that warrant reopening or you can return to Canada and apply for permission to reenter before your next entry. The procedure for requesting permission and waiver to reenter the United States depends upon whether you are attempting to enter as an immigrant or a nonimmigrant.
DACA – Question
Watch our latest Video by Immigration Attorney and Partner Francis Fungsang
Q: I have a 12-year-old son. He crossed the border with me when he was 6 years old. Is he going to be able to apply for DACA in the future?
A: If your son entered the United States on or before June 15th, 2007, then he will be eligible for DACA once he turns 15 and meets the other DACA requirements.
Q: Three years ago my family came to the US from the Dominican Republic with a tourist visa. We overstayed because of my son’s medical condition and because we found him treatment here with a wonderful neurologist. He was born with cerebral injuries and is much better under treatment here than I could ever have afforded in my country. What can my husband and I do to remain here?
A: You may be able to request Humanitarian Parole, however, this is usually done before seeking entry into the United States. If you are discovered by Immigration and Customs Enforcement to be unlawfully present in the United States, you can explain to the officers your situation. ICE has discretion in deciding to institute proceedings or not.
Q: I am a permanent resident. Do I have to wait to become a citizen to legally change my name? My father gave me a boy’s name that I don’t like and I was told that I could change my name.
A: You do not have to wait until you are a citizen to change your name. You can change your name in accordance with the procedures set forth in your state.
Fraudulent Filings are Breaking the Law
Q: I came to the US as a student and I paid a girl to marry me so I could get a Green Card. I am unable to locate her and I need to file the I-751. I am worried that USCIS will discover my fraud. Can I still file the I-751 without her?
A: We do not recommend filing an application which is fraudulent.
Student Wishes to Stay
Q: I came to the US on a visitor visa but I don’t want to go back to Colombia. When I came I had every intention of leaving, but now with a month left on my visa the thought of going back there is filling me with dread. What are my options? I have a college degree and I speak fluent Spanish.
A: You have a few options. You can enroll in a school and obtain an F-1 student nonimmigrant visa. If you believe you require more time to enroll into school, then you can request an extension of your B-2 visitor status with USCIS. Another option is if a company is willing to petition for you for an H-1B nonimmigrant visa; however, you have to maintain status until your change of status is granted.
10 Year Visa with 6 Month Expiration
Q: I just arrived from Venezuela 2 weeks ago. I was lucky to get a 10-year visa with an expiration of 6 months. There is no way I am returning to Venezuela, Is there something I can start doing with an attorney.
A: The ten-year visa just means that you are allowed to travel to a port of entry into the United States where you will then be inspected by an Immigration Officer. The period of time you have to remain in the United States is stamped into your passport which is usually 6 months. If you fear to return to Venezuela because of persecution or harm you suffered there or you fear persecution or harm, then you may be able to apply for asylum in the United States.
You must apply for asylum within one year of your last entry, you could also apply for a student visa and go to college or university to extend your stay. You would have to show intent to return to Venezuela after your studies because it is a nonimmigrant visa.
Immigrant Investor Options
Q: My brother owns a business in Mexico, He is tired of the crime in my city. He has a very good offer to sell his business for cash. Is there any way for him to use this money to invest in the US and get a visa to bring my family?
A: Your brother may be able to self-petition himself and apply for an immigrant visa under the employment-based fifth category. However, this requires an investment of $500,000 or $1,000,000 in a business in the United States that creates full-time jobs. He may also be able to apply for an E-2 Investor Visa which will require him to invest a substantial sum in business in the United States where he will generate an income more than just to sustain him and his family.
10 Year Cancellation
Have more Questions View our Video on Non-LPR 10-Year Cancellation of Removal
Q: Who is eligible for 10-year cancellation? How long is the process?
A: To be eligible for 10-year cancellation and adjustment of status for certain nonpermanent residents, a person must have been physically present in the United States for 10 years, must have good moral character, must not have certain criminal convictions, and must establish that a qualifying relative will suffer exceptional and extremely unusual hardship. The process can take several years because of the backlog the Immigration Courts face with cases.
Q: People who overstay a tourist visa and do nothing about it. What do they need to do? What are their options?
A: People who overstay a tourist visa are considered to have overstayed their status. They begin to accrue unlawful presence after their status expires. A variety of options are available to these individuals; however it is dependent on a number of factors such as how long that person has been unlawfully present in the U.S., what country they are from, any harm they experienced in their country, etc.
Q: People who do not show up for deportation hearings out of fear but want to take care of the situation. What do you suggest?
A: Always attend your deportation hearings. If you do not, then you are ordered removed in absentia which means without you there. Once you receive an order of removal, then you would need to file a motion to reopen your case. You must show a lack of notice for your hearing or an exceptional circumstance that prevented you from attending.
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