Immigration FAQs

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.

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.

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.

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.

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.

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.

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.

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.

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.

A: 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.

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.

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.

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.

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.

A: 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.

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.

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.

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 (603) 334-0700. NSC is working with NVC to improve processes, which it reiterated in response to a follow-up question about delays.

A: 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.

A: A U.S. Passport is required to enter the United States by either land, air, or sea.

A: You can apply for advanced parole which allows you to leave the United States and re-enter 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.

A: NSC does not adjudicate reinstatement requests. The USCIS Field Office handles these. Please visit www.uscis.gov to find a local Field Office.

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.

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.

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.

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.

A: We do not recommend filing an application which is fraudulent.

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.

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.

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.

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.

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.

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.

A: You should always go to court when a hearing is scheduled. A criminal judge is not an immigration judge and he/she cannot deport you. He/she may however inquire into your status to explain that you may have immigration consequences for convictions. If you don’t go to court then a warrant will be issued for your arrest. This is not a good option. There is always a chance that Immigration and Customs Enforcement could be notified of your unlawful status.

A: If your brother returns within 6 months of his last exit from the United States, then he should have no problem when he returns. If your brother returns after 6 months of his last exit from the U.S., then Customs and Border Protection can question his intent to permanently live in the United States. Your brother should bring evidence when he returns to the U.S. of the reason why he stayed so long outside of the country. Evidence can include your mother’s medical record and documents which show intent to permanently reside in the U.S. These documents are tax returns, evidence of employment in the United States, evidence of immediate family members in the U.S., and other documents showing his intent.

A: If a person did not enter legally and is now working for a company who wants to sponsor him, then that individual will not be able to adjust status to permanent resident in the United States. Entering without inspection is inadmissibility to getting a green card.

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 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.

A: This will depend on whether or not your boss can maintain the business in the United States during his absence.

A: You can go to Canada to get your visa renewed, however, please keep in mind that you may need a visa issued by Canada to enter the country. Also keep in mind that many other individuals seek to renew their visa at the U.S. Consulate in Canada.

A: No, you will not be approved for a student visa. However, you are not required to have a visa to attend college. Some schools may require a social security number, but you can apply for a tax I.D. number and use that instead.

A: As long as you are prepared to prove that your marriage was bona-fide at the time, you can still have conditions removed from your green card even if you are divorced. Since your I-751 is currently pending, it may be advisable to wait until it is approved.

A: Contact an experienced tax advisor.