-- Posted 8/3/05--

Q-A person enters US on a H1 visa, and his company applies for an immigrant visa. If that person's I-485 application is denied for whatever reason, will that person be able to come back to US on a H1 visa (second 6 year term) again after staying out of US for 1 year? Will the INS doubt that person's intentions?

A- As the H-1 has dual intent, having previously filed for permanent residence will not cause problems with the issuance of the H-1 visa for another six years. However, the reason for the denial of the I-485 application could be a factor. If the denial was based on grounds that would make you inadmissible, you would need a waiver to return on the H-1.

Q- As an R-1 religious worker, can I file the I-360 petition form by myself using my home address or only my employer can file for me through the church's address?

A- The regulations governing I-360 filings state that the "petitioner," or the person/ entity that files the I-360, can be either the alien (you) or a religious organization. By filing yourself, you would leave open the possibility of being reassigned to different churches within the denomination, whereas if the church files, you are tied to working for that specific church throughout the permanent residency application process.

You should be aware that while the regulations allow self-petitioning, it is a rather unusual practice and that in most cases a church or other religious organization files the petition. However, we recently filed an I-360 with a Minister who self-petitioned and it was approved.

Q- What is a same or similar occupational classification? More specifically, for a person who is in IT (software development), how is the term "similar occupation" interpreted? Does this mean as long as I am in the field of software development and doing software development work, technical skills (like Java, C++) does not matter? Or the technical skills should also match?

A- Here is the best answer to your question that I can give in light of the fact that there is little guidance in this area of immigration law. Although AC21, the law that provided for portability, was enacted more than four years ago, USCIS has never issued regulations interpreting AC21. USCIS has issued several policy instructions regarding AC21, but has never issued anything interpreting "same or similar" so at this point, every case is considered on a case by case basis. What we have done in our cases is to show how the job descriptions match when there is a difference in job titles. It is also important to see how the DOL classified the job under the Dictionary of Occupational Titles (DOT) and show how the new job would also be classified under that code. Salary could possibly be an issue as well, especially if it is significantly less than the salary listed on the labor certification.

Q- I am married to a U.S. Citizen. I have temporary permanent resident status. My spouse wants to divorce. Is there any way to do this and still remain in the U.S., or will I be deported?

A- As you know, by the 2 year anniversary of your permanent residence approval, you and your wife are required to file a joint petition. If you get divorced before that, you can file separately for a waiver of that requirement. You would have to show that the marriage was a valid marriage and not just for immigration purposes.

Q- I have a question on priority date retrogression. Mine is labor substitution case. I-140 was approved and I-485 filed in December 2002. The labor certification used by my employer to substitute me has the priority date of 1997, but my I-140 was filed sometime around May 2003. Now, my question is that for labor substitution cases, will USCIS take the original labor certification receipt date as the priority date, or the I-140 receipt date? I have searched various forums but could not find an authoritative answer.

A- The I-140 approval should give you the priority date. It will list the approval date and the priority date. Check that. It should show the date of the original filing of the LC, not the I-140. If it does not, you need to have your attorney correct this.

Q- In June 1999 I was interviewed for my I-485 based on the I-140 filed by Employer A. In October 1999, I left Employer A to work for Employer B in a different profession. Having not heard from the INS, Employer B filed an I-140 in July 2000, which was approved in November 2000. When we tried to substitute the original I-140 from Employer A on my pending I-485 we found out that the I-485 was approved in May 2000 based on Employer A's petition. I have been a permanent resident ever since. Given the history of my file will I have problems filing for naturalization?

A- Your case took place after AC21 allowed portability so the DAO will look at that law and apply it to your case. As there are no regulations yet the DAO will only have the CIS and legacy INS memos as guidance. If the second position is not "the same or similar" it would seem that you did not meet the requirement to intend to work for the original petitioner indefinitely at the time your adjustment of status application was approved. When I was an INS Examiner, I was involved in several such cases that resulted in revocation of the adjustment (this can only be done within five years of the granting of adjustment) or deportation. I would recommend that you have a consultation with an experienced immigration attorney and lay out all the facts and develop a strategy that will keep you in the U.S.

Q- I have an H-1B from Company A. Then I was transferred to Company B. Now I am working with Company B (for 2 months). Can I go back to Company A without a transfer petition (if they have not revoked my H-1B) without any legal issues?

A- As long as Company A has not revoked their petition, you may go back to them. Legacy INS has written a letter verifying this.

Q- I am a Canadian citizen. I want to apply for a TN visa. But last year I was charged with an offense of obstructing a police officer and got a conditional discharge with probation of 18 months. How will this affect my application?

A- You may or may not have a problem with entering with this conviction but I would need to know more information before I could say for sure. You would need to get an original court record including a copy of the Information Sheet. It depends on what section of the law you were charged under and whether the crime, as defined in the relevant criminal statute, defines a crime involving moral turpitude or an aggravated felony under the immigration law.

Q-My mother is a permanent legal resident in the USA, and will be filing an I-130 petition for me, her unmarried 27 year old son, to join her as a legal immigrant. How long can we expect this process to take? And what happens if I happen to be in the US visiting her when the interview comes up?

A- As the unmarried son of an LPR, you would be in the Family Based 2B category, which is currently backlogged to October 15, 1995. Or, if you were born in Mexico it is backed up to March 1992. If your mother filed the I-130 petition tomorrow, you would be assigned a priority date with tomorrow's date. Depending on where your I-130 petition is filed, it could take anywhere from a few months to a couple of years for the I-130 to be approved. However, after it is approved, you will need to wait for your priority date to become current before you can file the permanent residence application. Assuming you were not born in Mexico, then it will take approximately 13 years for your priority date to become current.

In order to enter the US as a B-2 visitor for pleasure, you are required to have nonimmigrant intent, meaning you have to have a foreign residence which you have no intention of abandoning, and you are entering only for a temporary period for some bona fide visitor reason such as visiting your mother. Once your mother files the I-130 petition on your behalf, it will be somewhat more difficult for you to prove your nonimmigrant intent. At first it will not be an issue, but the closer your priority date comes to being current, the harder it will be to prove that you don't intend to stay in the US permanently once your priority date is current. Therefore it is unlikely that you will be in the US visiting your mother when your priority date becomes current. But if you are, it is possible for you to file an I-485 adjustment of status application which allows you to stay in the US while it is pending, rather than filing for an immigrant visa at the US consulate in your home country.

One other issue you should be aware of is that if your mother becomes a citizen before your priority date becomes current, it will bump you up into the Family Based First Preference category of "Unmarried sons and daughters of US citizens", for which priority dates of March 15, 2001 are current. The wait in that category is only 4 years. Your mother would generally be eligible to file for citizenship after 5 years of permanent residency.

Also, if you get married at any point before receiving permanent residency status, you will become ineligible for a green card as the child of an LPR. Only when your mother obtained her citizenship would she be able to re-file for you as a "married son of a US citizen," for which priority dates of January 1998 are now current.