--Q&A January 13, 2006--
Q- I filed for my 485 through my spouse. My spouse filed for her labor certification in Jan'02, her 485 in Oct '02, and received her 4 85 approval in Oct of 2004 -- she is now a green card holder. We were married in Dec 2003 and I filed for my 485 through her in Feb 2004. My wife and I are both Indian nationals and she was an EB3 applicant. When I go to the visa bulletin and try to find out the processing dates, it says Jan 2000 for EB3 Indian nationals -- I understand that this date is the date of application for labor certification, however, I did not have to do that. Having said that, how do I get a sense of processing/cut off dates for people in my category i.e. "for final stage through spouse"? The INS web site continues to say that it is processing May 2004 appli cations and it should take 500 to 600 for my applicaton to be approved, however, its been well over that time since I applied in Feb 2004.
A- As a derivative applicant of your wife, you are counted as part of the same preference category she is part of (EB3). Therefore you are subject to the EB3 backlog noted in the Visa Bulletin, just as if your employer had filed an EB3 I-140 petition for you. You also inherit your wife's priority date.
As a permanent resident, your wife can file an I-130 petition to sponsor you, in addition to the adjustment of status application that you have already filed. As the spouse of a permanent resident, you would be in the family based 2A preference category, for which priority dates of before February 8, 2002 are now current for Indian nationals.
You cannot have two adjustment of status applications pending at the same time. However, if the priority date for your I-130 petition becomes current prior to the priority date for your wife's I-140 petition becoming current for you, then you can request USCIS to associate the pending I-485 application with the approved I-130, Family Based 2A petition instead. This would give you a shot at possibly being able to adjust status more quickly.
Which priority date will become current more quickly is anyone's guess. However, it never hurts to have more than one possible path to getting the green card.
Q- This is my situation: I've been employed by a construction company for the past three years with an H-1B that they just renewed. Since May 2005 I have been working for the new open office in Central America. I've been physically in Central America since October. I work as a manager for the firm here and only report to the owner of the company. They are willing to sponsor my green card application. Can I apply under the EB-1 category?
A- To qualify, you would have to prove a total of one year outside the U.S. Any trips to the U.S. would subtract from that year and would need to be made up by more time abroad.
In addition, you would have to show that for that one year, you managed other managers who supervised other employees and that you spent the majority of your time managing rather than conducting operations for the company.
Q- I am a permanent resident of the USA. I had applied for Canadian immigration long before coming to the US. Now I have been called in for an interview. I was wondering if getting permanent residence in Canada, considering that I will not live there, will jeopardize my green card or not?
A- The establishment of permanent resident status in Canada does not in itself constitute abandonment of your permanent resident status in the U.S., but is a very strong indicator that you intend to abandon residence in the U.S. I have known Inspectors to contact the Canadian officers before sending the person back to get proof from the Canadians that they are aware that you don't intend to relinquish U.S. residence. Doing so could jeopardize your Canadian status. Your actions, if coupled with additional indicia that you intend to abandon residence, such as spending large periods of time outside the U.S. and/or your establishment of a home, or your obtaining a job or starting up a business in Canada could result in a finding that you abandoned your residence.
If any of these additional factors are present, then upon reentering the US after travel abroad, you may be questioned and could be asked to sign a statement that you relinquish your permanent resident status. The issue could also be raised when you apply for naturalization.
Q- I am in the US on an H-4. My company has viled an L-1 for me in Chennai from India which means I have to go back to India to get stamping. Is there some way that I can get an L-1 appointment transferred to the US and get L1 stamping in the US?
A- You can apply for a change of status in the U.S. and don't need to get a visa stamped in your passport unless you travel outside the U.S.; then you will need a visa in order to be readmitted. You can't get a visa stamped in your passport within the U.S., but again, you don't need to get a visa unless you travel abroad. You don't need a visa in order to begin working. You only need a USCIS approval notice, which you can get by mail in the U.S.
Q- I am in Blanket L1 visa that expires on November mid also my I-94 is till that date. I got the visa till November mid because our company's blanket petiton expires on that date. My company has got extension for the Blanket petition indefinitely. Also I have already applied for I-94 extension. My dependants are also travelling in the same petition. But their travel may be delayed because they still not have received their visa stamp from our embassy.
Once they get the visa and they travel to US, most probably they may get I-94 till November mid too, so incase if they reach couple of days before the visa expiry. I may not be able to apply for an extension for them before expiry date.So please advise how can I legally apply for an extension for them?. I heard there are couple of points in which INS may excuse with reasonable reason. What are the way to present these to INS?
A- You can use premium processing to expedite the extension of your L-1 status. It costs $1000 and guarantees that USCIS will process it within 15 calendar days. If it is approved prior to expiration of your family's current visas, then they can enter the US as your dependents on their old L visas, and be admitted until the date on which your new L-1 expires. To do this they would need to carry a memo from an attorney setting out the law allowing people to enter the US on an old visa and a new approval notice, as many Customs officers are unaware of this provision in the law. They would also need to bring proof that they are your relatives and that your status has been extended.
Q- I want to know if spouses can make use of INA 245(k) based on their partner filing employment based AOS.
A- Yes, the benefit of 245(k) is available to derivative spouses in adjustment of status.
Q-If my husband has been approved and has to go to the consulate in Mexico am I required to go when I have to work and take care of the children?
A- It is usually not necessary to accompany your spouse to the interview although it is sometimes beneficial.
Q- I was married to a U.S. citizen on 5/3/02. I am a green card holder now and I have been a permenent resident from 11/8/02, so Iwant to file for natrulization as soon as possible. Do I need to wait until three years exactly or can I file for naturalization before three years?
A- You can file the naturalization application 90 days prior to reaching your 3rd year of permanent residence.
The following is 8 CFR 334.2(b):
"(b) An application for naturalization may be filed up to 90 days prior to the completion of the required period of residence, which may include the three-month period of residence required to establish jurisdiction under Section 316(a) or 319(a) of the Act."
In your case you can file 90 days before 11/8/05. Start with that date on your calendar and count backwards exactly 90 days to see when you are eligible to file.
You should cite 8 CFR 334.2(b) in your cover letter when submitting your naturalization application. (E.g. "I am submitting this application 90 days prior to fulfilling my 3 year residency requirement, pursuant to 8 CFR 334.2(b), which states..." and then copy the above quote).
Q- I just have gotten my mother's green card. She has to go back to Iran to get things squared away which would take awhile. My question is whether her stay in Iran can be more than 6 month but less than 12 without any legal obligations. We want to tell the truth regarding her absence from to INS upon her return. People say different things & I am confused. Sincere appreciation for your time.
A- There are two places where an absence of 6 months but less than one year will be an issue. The first is when she re-enters the US after the 6+ month absence. She will be considered an applicant for admission to the US and could be found inadmissible to the US if she has any criminal or other inadmissibility issues. At that time, there will also be an inquiry as to whether she has abandoned her permanent residence. She will be asked about the reason for her absence and will need to demonstrate that she continued to intend to be a US permanent resident the entire time she was outside the US. She should present evidence of owning or renting a home in the US, paying US taxes during her absence, family ties in the US, or any other ties to the US. She should also be prepared to explain the temporary nature of her visit abroad. It helps if the reason for staying outside the US was compelling, such as the illness or death of family members abroad; wrapping up legal obligations abroad, selling a home abroad, etc.
The second place the 6+ month absence will come up is on her naturalization application. In order to naturalize she will have to have spent 5 years in permanent resident status. That period of residence is considered interrupted by an absence from the US of over 6 months but less than a year, unless she can prove to the satisfaction of the Service that she did not abandon her US residence. Please read our article called "Issues of Intent" . The last section of the article is on maintaining residence for naturalization purposes. This explains how she would prove, when filing her naturalization application, that she did not abandon or break the continuity of her U.S. residence when staying outside the US.
Please note the more long trips she takes outside the US the less likely it is that USCIS will believe she did not abandon her residence or break the continuity of her residence for naturalization purposes.
Q- I am presently working as a science teacher at a school in Hawaii under an H-1B visa category. I plan to transfer work and there is another school in Georgia that is willing to sponsor me for the visa. Does this involve just a transfer or is a brand new H-1B application necessary? My present visa is valid until June 2006, although the name of my present employer is specified on the visa. If I transfer to another school next year, shall I need another H-1B petition?
A- It is called a transfer of the H, but the employer needs to file the same paperwork as for an initial H-1B.
Q- I have an LC approval filed one year ago. My 8th year in H-1B status will end soon. I am considering whether I should continue with my post-6-year H-1B extensions. If I stop, and my H-1B status ends, and I work on an EAD while my I-485 is pending, can I file another H-1B extension in the future, assuming my H-1B is still pending?
A- The CIS has stated that it will only apply the AC21 rules in an extension case. Unless their interpretation of the law changes, you would not be able to do as you propose.
Q- My girlfriend is from Brazil and entered the country legally with a B-2 visitor visa. Prior to her visa expiration, she filed a change of status request to an I visa. Wince filing her application, her B2 visa has expired. We are scheduled to go to Hawaii for a vacation in the next several weeks. Should we be concerned about being hassled at airports since her only form of identification is her passport?
A- There is no immigration inspection between Hawaii and the mainland. That is not to say that officers from Immigration and Customs Enforcement do not check the identification of people traveling within the country. Keep a copy of what you submitted and if you have the filing receipt you should have no problems.
