-- Q&A 4/13/06--

Q- My husband got an I-140 approved in 2004 and then he left for Singapore as a faculty member in a university there. We are interested in continuing our green card applications. The questions are how to file I-824 form and how long it will take to get it approved. The second question is whether we can have an interview in Singapore (we are residents of Singapore and have Chinese citizenship). The third question is whether I can apply for an H-1 to come back to the US if the consular office rejects our case.

A- An I-824 can be used if the I-140 was originally filed requesting adjustment of status, but your husband would now like to consular process for his immigrant visa. If the case is already at the National Visa Center, no I-824 is needed. He may have to contact his former US employer/ I-140 petitioner in order to find out where the case is. He will also want to make sure the I-140 petitioner did not withdraw the approved I-140 petition. Note that in order to obtain the immigrant visa, he will need an updated letter of employment from the US employer who filed his approved I-140 petition, stating that they are still willing to give him the job described in the I-140 petition upon his admission to the United States as an immigrant. The employer must also verify that they will pay him the wage offered in the underlying I-140 petition.

If an I-824 is needed, you can check the processing times for I-824's online at www.uscis.gov. The I-824 application would be filed with whatever USCIS service center approved the I-140 petition. Most consulates have a procedure in place for bypassing the I-824 processing time. (See our article on I-824 applications). You would have to contact the consulate in Singapore to ask what their procedures are.

If your husband is still eligible for the immigrant visa, you can process it through Singapore. Consular processing is done at the applicant's place of residence.

Depending on your husband's preference category and his priority date, an immigrant visa may or may not be currently available. For information on immigrant visa availability, see our article on immigrant visa preference categories.

Denial of the immigrant visa would not preclude you from entering the United States in H-1B status, unless the immigrant visa is denied because you are inadmissible to the U.S., e.g. because of a criminal record, health related issues, or past immigration violations.

Q- My girlfriend has an EB3 visa(nurse), she will be leaving the Philippines by next month to work in a Hospital in the U.S. and process her paper to get a Green Card. We are planning to get married a week before she leaves. Is it advisable for us go get married? Is there a problem in the future when she process her paper for a green card because her status in the paper at the embassy is single ?

A- If you plan to come to the U.S. with your girlfriend, you should by all means get married before she enters the U.S. on her immigrant visa. That way, you can accompany or follow to join her in the US as her spouse. You will be counted against her preference category and be accorded permanent residence along with her. If you do not get married before she enters the U.S. on her immigrant visa, then you will not be able to accompany her. She will have to wait until she gets her green card, and then sponsor you for permanent residence either as her fiancée or, if you get married prior to your coming to the US, as her spouse. Either way, your wait in coming to the U.S. to be with her will be MUCH LONGER if you do not get married before she enters the U.S. as a permanent resident.

Q- I am married and have 1 child. I and my wife were born in India, and my son in Lisbon. Our Citizenship: Portuguese. My father was born in Goa at the time when Goa was a Portuguese territory, so he became "automatically" Portuguese. I always followed my parents up to 18 years old, and done my Higher Studies in Lisbon, and we never lived in India. I came last year via H1-B (wife H4).
Actually, I-140 process is pending. May I claim that Portugal is my birth country using cross chargeability as my father is Portuguese (born in Portuguese territory Goa in 1923)? And is it better in our case to choose Consular process, more favorable to cross chargeability instead of Adjustment, USCIS less favorable to cross chargeability?

A- You are chargeable to the country in which you were born unless you can prove that you were born within a foreign state in which neither of your parents was born and in which neither of your parents had a residence at the time of your birth. If you can prove that, your country of chargeability can be the foreign state of either parent.

This is not the "cross chargeability" rule. Cross-chargeability states that a child who is accompanying his parents as an immigrant to the U.S. can be charged to his parents' country of birth; or that one can be charged to the country in which his or her spouse was born. Because you are not accompanying your father to the U.S. as his dependent, you are not eligible to claim his country of birth under the cross-chargeability rule. Instead, you may qualify under the other chargeability rule mentioned above, which applies to people who were born in countries in which their parents were not citizens or residents.

If this chargeability rule applies to you and you can prove it, it does not matter whether you consular process or adjust your status. Chargeability rules apply in the same manner in either case.

Q- I have a 10 year multiple entry B1/B2 visa. What happens if my company (US based, 20 years old) decides to get me an L-1 visa? Is my B1/B2 cancelled?

A- No, most consulates will not cancel the valid B1/B2 visa.

Q-I'm in OPT (Optional Practical Training) currently and my F-1 visa is expiring in August 2007. I am getting my H-1B filed. Should I be able to stay in the U.S. from September 12 until October 1? Do I need to go out of the country? Which is the best method to file the H-1B, consular processing or change of status?

A- As your status expires 60 days after your OPT ends, you are out of status as of September 11, 2006. In some years the former INS provided what was called "cap gap legislation" which specifically allowed students to stay in the United States once an application to change status to H-1B was filed with a start date of October 1st. However, as USCIS no longer controls students' statuses because of the SEVIS program being switched to Immigration & Customs Enforcement, CIS is no longer allowed to issue such regulations and those regulations have to come from ICE. This past year ICE refused to authorize the "cap gap legislation."

If such "cap gap legislation" is authorized this year, then you will have nothing to worry about. Otherwise I would propose the following scenario as a possible solution: make an appointment for an H-1B visa interview at one of the U.S. consulates in Canada during the first 10 days of September. If necessary, depending on your country of citizenship, obtain a Canadian visa to attend the consulate and obtain your H-1B visa. You will then be able to come back to the United States no earlier than September 20th on your new H-1B visa.

Of course, your OPT ends July 13th and you cannot continue working for your employer, nor may you begin working for your employer again until October 1st, even though you may return to the U.S. on October 20th.