--Posted 3/14/05--

Q- If I have an approved labor cert, can my employer file for I-140 even though the priority date is not current?

A- Your employer can file the I-140 petition at any time. However, as a rule you cannot file your permanent residence application (I-485 adjustment of status or consular processing) until your priority date is current.

There is one situation where you may be able to file the permanent residence application even if your priority date is not current. That is, if you use consular processing (as opposed to adjustment of status) and you are married to someone who was born in a country for which priority dates are current in your visa category, then some consulates allow you to use your priority date as if you were from your spouse's country. In that case you would be able to apply for consular processing upon approval of your I-140.

It is not clear whether this is possible with an adjustment of status application.

Q- I am a registered nurse and I had my I-140 approved but I worked without authorization. What are my chances of getting my I-485 approved, or should I use Consular Processing?

A- It depends on how long you worked without authorization. Section 245(c)(8) of the Immigration & Natinoality Act states that you may not adjust status to permanent residence if you have ever worked without authorization. However section 245(k) says that if you are filing an employment based adjustment of status application, up to 6 months work without authorization will be forgiven. If you worked over 6 months without authorization, you would be ineligible to adjust and would have to file a consular processing application. There could be problems with your consular processing application if your unauthorized employment ever caused you to misrepresent facts in order to procure a visa or admission to the U.S.

Q- I am working on a TN visa and my wife lives with me in the US on a TD visa. I heard recently US Immigration had started issuing work permits to treaty dependents. Is that true? If it is true, what is the procedure to obtain one?

A- The treaty dependents that are allowed work authorization are only those in the E-1 or E-2 category, not the TN. Sorry.

Q- I am a conditional resident. I applied for removal of conditional basis of status. It was joint petition; it has been 4 months since I got receipt. In how many months does INS usually schedule the interview? Now my husband is giving me a hard time saying he is not ready to give the interview and may withdraw the petition. Can I apply for a waiver then?

A- The Immigration and Nationality Act requires that the interview be conducted within 90 days of the date on which you submitted the I-751 petition to remove the conditions on your permanent residence. Sadly, the requirement is totally ignored by the CIS. Time to interview varies by local office and can range up to 2 years after filing.

There are 4 ways your conditions of your residence can be removed. One is by filing the joint petition and both of you appearing at the interview. If your husband withdraws the petition or fails to appear for the interview then this will not work. The second is if your husband has abused you or your child, you can file a waiver application as a "battered spouse." The third is that if your marriage is terminated (i.e. you have obtained a legal divorce and not just separated), and you can prove that failure to file the joint petition or for your husband to attend the interview was not your fault, then you can file a waiver application. If you show that the marriage was entered into in good faith, the waiver will be granted. The fourth way, which you can use even if you are still legally married, is to file a waiver application showing that "extreme hardship" would result if you are deported. The basis for the extreme hardship must have arisen between the time of the marriage and the time the I-751 is due.

Q- I got my green card in May 2000. I have lived in California most of that time but moved to NYC 2 years ago. My parents are still in L.A. and I still have my drivers license addressed there. Given the shorter processing time in L.A., can I file my naturalization there instead of NYC, which is taking close to 2 years?

A- I would assume that the District Adjudication Officer (DAO) will assume that you are emancipated from your parents. The DAO will look to the normal indicators of residence, where you work, is the assignment temporary (limited contract date), what your living arrangements are (do you have weekly room at the Y or rent an apartment; and is that apartment furnished or do you own the furnishings?). And where do you keep your stuff? Do you file income taxes in CA, and if not, why not?