-- 12/1/05--

Q- Currently I am living with my Filipina wife in the Philippines. My wife has been issued a CR-1 visa by way of Direct Consular File from the US Embassy in the Philippines. In January 2006, we will have been married two years. Some have suggested that I wait until my wife's and my two year anniversary sate, then enter the U.S., so my wife will be issued a ten year green card. Others have informed me it makes no difference how long my wife and I have been marreid because immigrants cannot receive ten year green cards until they have been in the USA for two years. Does it make any difference when my wife and I enter the country? Is it to my wife's advantage to just hold off till after our two year anniversary before entering the USA?

A- If you have been married for two years at the time your wife enters the U.S. using her visa, she should be issued a 10 year visa. If she enters the U.S. for the first time prior to your 2-year anniversary then she will be issued the 2-year conditional permanent resident card. The controlling issue that determines whether she is issued the two-year or the ten-year green card is how long you have been married at the time she is admitted to the U.S. as a permanent resident.

Because her visa is notated "CR-1" which stands for "Conditional Resident," she may be issued a 2-year green card in error. You should bring your marriage certificate to show the inspecting officer at the port of entry that you have been married for 2 years and request that she be admitted as an Immediate Relative rather than as a Conditional Resident. You may also want to bring a copy of INA 216(a)(1), which is the law setting out that the duration of the marriage controls whether she should be admitted as a "conditional" permanent resident or not. It states:

Conditional basis for status.-Notwithstanding any other provision of this Act, an alien spouse (as defined in subsection (g)(1)) and an alien son or daughter (as defined in subsection (g)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.

You can download this from the government's web site.

If the green card is issued with a 2 year validity period, then you can file form I-90 to get it corrected.

The visa should only have been issued with a 6 month validity period. Make sure that by waiting until your 2-year anniversary to enter the US, you are not waiting until after the immigrant visa has expired.

Q- My H-1B visa has a start date of January 15, 2006. I am a German national. The German hotline of the US Embassy says that it is possible to enter the US any time after the issue date (which would be now). The Austrian hotline says that it is only possible to enter the U.S. after the start date. In your FAQ's it says that entering the US is possible 10 days earlier. Who is correct? Is there any law text about this issue?

A- Immigration regulations at 8 CFR 214.2(h)(13)(i)(A) state: "A[n H-1B] beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition."

You can only apply for admission to the U.S. up to 10 days prior to the employment start date.

Q- In my I-94 I wrote the first name as last name. I went to the Social Security office and they are saying to go to immigration. Where is it? I am in New Jersey, recently I got driver license also.

A- If the error was due to the way you filled out the I-94 card, then you have to file form I-102 with USCIS to correct the error. This form can be downloaded from www.uscis.gov. You must pay the filing fee. If the error was on the part of the officer who issued you the I-94 card, then you can go to your nearest Customs and Border Protection office to get a new I-94 card issued.

Q- I have applied for L1 visa and my appointment date is March 2006. In between I am going to go to the U.S. on H-4 to mee tmy husband in Dec. 2005. I will be coming back for L-1 visa stamping. But since till now I haven't travelled I entered on the DS-156 form that I haven't been to the U.S. before. Do I need to update the DS-156 after I visit the US and come back for my visa stamping? Will there be any problems?

A- If you have already electronically submitted your DS-156 form then it can't be amended; however, you can bring an updated completed DS-156 with you to the interview to disclose the trip to the U.S. If you have not already filed the DS-156 online, then you can just update the form that you are going to submit so that it contains a disclosure of your trip to the U.S. in H-4 status.

The fact that you will have traveled to the U.S. in H-4 status is of no consequence to your eligibility for an L-1 visa, unless you somehow violated your H-4 status while in the U.S.

Q- My husband is here on K-3 visa and he has a work permit and he has filed the I-485. His interview is in January 2006 and he reads and writes little English. What is going to be asked at the interview?

A- At the adjustment of status interview, you and your husband will need to bring proof of your shared life together. For example, if you have any children in common you should bring their birth certificates. You can also bring copies of checking account or credit card statements in your joint names; proof of memberships in the same organizations such as a church; greeting cards or other mail sent to both of you at the same address; etc. The thrust of the interview is to determine the validity of the marriage even though the I-130 has already been approved. Otherwise, they will review the questions on the I-485 form.

Your husband will not be tested on his ability to speak English at the interview, and may use an interpreter if necessary. Each office has its own rules on interpreters; you should check with the local office on what their rules are prior to the interview.

Q- This question is for a friend of mine. Husband/wife immigrated to the US through P5 filed by wife's brother. After they got their green card, they went back to the Middle East for their jobs. They visited USA every year. They have 3 children, one born in India, one in the Middle East, and one in the U.S. The two born outside the U.S. also have immigration as they entered the U.S. before they were two years of age. All of the family immigrated to the U.S. in 1999 and stayed here. This year they went to India on vacation in June. The first child is 15 years old. His green card was issued in 1995 with an expiry date of 08/2005. He went to India and did not check the expiry. Now that the card is expired, what are the possibilities he may get into the US?

A- The child can file a form I-90 (which can be downloaded from www.uscis.gov), in person, at the U.S. Consulate in India. The I-90 form is used to request a replacement permanent resident card. However, I noticed that you said he had been granted permanent residence in 1995 but did not move to the U.S. until four years later in 1999. It may be found that the child therefore abandoned his permanent residence by remaining outside the U.S. for four years after being granted a green card. See our article on abandonment of residence.

Q- I have been in the U.S.A. for five years with an H-4 visa. Recently my husband changed his job and obtained a new H-1B visa, but the new company didn't change mine since this one is still valid. Next month they plan to apply for the green card through the PERM process. My question is if they can apply for my husband and me with different companies' names on the visa or if that matters at all.

A- Your ability to maintain H-4 status depends on your husband's maintenance of H-1B status regardless of who he works for. The procedure the company has followed is proper; you still have valid H-4 status as your husband's dependent. The only thing you should be careful about is that if your status expires before his does, you will need to file for extension of your stay on form I-539 prior to expiration of your current status.

Q- In December 2003 I put in a family based I-485 application based on marriage to a US citizen. Before this I had an F-1 status. My F- 1 visa expired in June 2004 and I did not renew it because I had filed the I-485.

In 2004, I had applied for and used my EAD with a different employer other than my current employer.

In Jan 2005 I started working for my new employer who filed a H1-B petition for me. In the meantime, from Jan 2005 to September 2005 (when my EAD expired) I continued to work with my EAD until my I-485 was denied in August 2005 and I filed a MTR in September 2005. My case has not been reopened yet. On the other hand, my H1-B petition was approved on July 25, 2005.

Is it right to say that I can continue to work for my employer based on my H1-B status since the I-485 was denied and there no longer exists an intent to immigrate? You have mentioned the dual intent doctrine a number of times on your website. Does this doctrine apply to me?

A- You technically went out of status when your F-1 status expired. You were allowed to remain legally in the US while the I-485 was pending, and you were permitted to work in the U.S. while your EAD was valid. However, once your I-485 was denied you had no legal basis for remaining in the U.S. Upon expiration of your EAD you lost work authorization.

The approval of your H-1B petition did not place you in H-1B status. It authorized you to leave the U.S., get an H-1B visa and return to the U.S. in H-1B status. Did you do this? If you never left the U.S. and reentered on an H-1B visa you never attained H-1B status.

The reason this is the case is that there are only three ways you can obtain a nonimmigrant status:

1.) Enter the United States with a visa for that status from abroad (unless you are a Canadian citizen and visa exempt);
2.) Apply for a change of status from one nonimmigrant status to another while you are in the United States; or
3.) Apply for an extension of a nonimmigrant status if you currently hold that status and wish to extend your stay.

You can only change status from within the United States if, at the time the petition is filed, you are in another status. You were not in status when your H-1B petition was filed; therefore you were ineligible to change status. The only way for you to enter H-1B status on the basis of your approval notice is if you leave the US and return on an H-1B visa.

If you continued to work after your EAD expired, then you worked without authorization. This could cause problems for a future adjustment of status application, depending on several factors. Also, depending on why your current adjustment application was denied you may also have future problems with adjusting your status.

Also, if you never obtained H-1B status by leaving the US and reentering on a visa, then on the date your adjustment of status application was denied, you began to accrue unlawful presence in the U.S. If you accrue 180 days of unlawful presence and then depart the U.S., you will be inadmissible to the U.S. for three years. If you accrue 365 days of unlawful presence and then leave the U.S., you will be inadmissible for 10 years.

Q- I am working in the U.S. on an R-1 visa since the last 6 months. After how many months will I be able to file I-360 for special immigrant?

A- In order to file an I-360, you must be able to prove that you have two years of full-time, paid experience as a religious worker. This experience can either be gained while on an R-1 or while outside the U.S. The experience must have been gained with the same denomination in which you will be working in the U.S. There is no specific requirement on how long you have to be on the R-1 before you can file the I-360. If you meet the above requirements, you can file the I-360 immediately.

Q- I became a permanent resident in May 2005. But at that time my kid was stil in China. So I filed I-824 (follow to join) for her and it was approved by USCIS in August. Now the case is at the Guangzhou consulate. I got a green card based on EB2/ NIW, the priority date is October 2004. But from October 1, 2005, there is visa retrogression for EB2 for Chinese. I wonder if my daughter's case in China will be affected by the retrogression?

A- You are correct that retrogression will affect the issuance of a visa to your duaghter. As your derivative, she is entitled to an EB2 visa number, and the EB2 category is currently backlogged for China, as you noted. She can only obtain an immigrant visa as your derivative after visa numbers become available again.

Q- My company transfered a specialized employee from the Canadian parent company to our U.S. affiliate on an L-1B visa 5 years ago. When we requested an extension 2 years ago, the officer at that time said L-1B visas were available as a commuter status, renewable indefinitely for up to 3 years at a time. Another officer confirmed this only a few weeks ago when we renewed an L1A v isa. When we recently petitioned for this communter L status, we were refused. Does this commuter status exist? We have been filing previous L1A and L1B visas at the port of entry at Champlain NY with no problems. If the L1B visa has expired, what w ould our options be to continue to bring this worker into the U.S.; we need him badly. Note: He continues to be paid through our Canadian company; does this make a difference?

A- L-1B status is initially granted for 3 years with one 2-year extension allowed, for a maximum period of 5 years stay in L-1B status. However, if your employee lives outside the US and regularly commutes to the US, spending less than 50 per cent of his time in the US, he can indefinitely extend his stay past the 5 year maximum. To do so he must prove his residence in Canada and prove that he has been physically been in Canada working at least 50 per cent of the time.

To prove his residence in Canada, he will need to present a title deed to his home or his current apartment lease. If he owns a home he should also present his most recent property tax bill.

To prove his physical presence in Canada 50 per cent of the past year, he should produce as much evidence as he can of transactions in Canada, including things like credit card and bank statements showing purchases made in Canada (with numbers blacked out); actual receipts from purchases in Canada; telephone, power, or other bills received at his Canadian residence.

Here in Buffalo (at the Peace Bridge) they will only extend an L-1B's stay past the 5th year in one-year increments, but some other ports of entry will allow L-1's to extend their stay in two year increments past the 5th year.

If you file the extension through the Service Center rather than at the border, they usually grant extensions in 2 year increments, but they are much more stringent on the amount and type of evidence you have to provide of the beneficiary's physical presence in Canada.