-- Q&A 5/11/06--
Q- How do I obtain a list of trips outside the U.S. for the attachment of the N-400 form?
A- You will have to compile a list based on your passport stamps, cancelled visas, personal records, travel calendar, etc., to the best of your recollection. You do not have to mention every time you left the U.S. for a one or two day trip to Canada or Mexico, but do need to list all of the longer trips.
Q- I am a permanent resident, but must wait until 2007 before applying for citizenship. My Canadian passport expires this year, and I was wondering if you know if I can get a US passport, or if I still need to get my Canadian passport renewed.
A- You won't be able to get a US passport until after you naturalize. However, Canadians are not required to have passports to enter the US.
Q- I filed an I-130 petition for my wife in January 2004 (while she was in the U.S. with a visitor visa) and while I was an LPR. The petition was approved by the Vermont Service Center in 2004 and forwarded to the NVC. The NVC completed the procedure after a year and instructed my wife to attend a scheduled immigration visa interview at the U.S. Consulate in Turkey. In fact, the NVC should have forwarded the petition to the appropriate INS district office. According to the instruction of the NVC letter, my wife left the U.S. to attend the IV interview in Turkey. But the U.S. Consulate denied to issue her a visa by claiming that she overstayed in the U.S. (the consulate suggested she file the I-601). I sent three letters to the NVC and askedthem what was the legal justification of their decision when they instructed my wife to go abroad. So far, I could not get the answer to what I asked. I filed all documents myself without a lawyer. I believe the NVC should recover its mistake and should instruct the consulate to issue my wife a visa. Meanwhile I became a U.S. Citizen in August 2005, before my wife left the U.S. Could you please advise me what to do? How can I protect my rights against the government's misconduct?
A- There are two procedural routes an applicant can choose in applying for an immigrant visa: consular processing and adjustment of status. With consular processing the applicant applies for the visa at a U.S. Consulate abroad. With adjustment of status the applicant applies by mail in the US and attends an interview at a USCIS district office. The applicant has the choice of which procedure to use. Since the I-130 form does not ask which process you would like to use, our firm usually writes on the margin of the form either "Consular Processing Requested" or "Adjustment of Status Requested."
When the I-130 Approval Notice is issued, it states whether the applicant will adjust status or consular process. (If you have chosen consular processing it states that the petition is being forwarded to NVC; otherwise it says the applicant will adjust status). The choice of which procedure to use ALWAYS rests with the applicant and it is the applicant's responsibility to choose the option most advantageous to her.
Once a petition is forwarded to the National Visa Center it is treated as an application for consular processing. You always retain the option of changing from Consular Processing to Adjustment of Status by filing an I-485 Application for Adjustment of Status with USCIS. The documentation that NVC sends you explains that consular processing requires the applicant to travel abroad to attend a consulate interview. It was your choice to go with consular processing, not the government's choice. NVC did not make the decision to send your wife abroad; your wife made the decision by using consular processing. She did not have to. She could have chosen to file an adjustment of status application. NVC cannot do anything to correct the situation.
The only way for her to receive an immigrant visa at this point is for her to apply for the I-601 waiver.
You should have used an attorney. If you did use an attorney to file any of this paperwork, you should sue the attorney.
Q- I have a friend in Delhi, not a family member. But I want to sponsor him and take full responsibility for him to come here and go to school and potentially become a resident. How do I go about that?
A- There are only two basic routes to permanent residency in the U.S. One is for a U.S. employer to petition for the foreign national, and the other is for a close relativeto petition for the foriegn national. There is no provision to sponsor a friend for permanent residency.
Q- In the US consulate in India at the time of restamping, what are the questions they are asking for L-1B people?
A- While we can't predict the exact questions that will be asked, the consulate could ask about any aspect related to your eligiblity for L-1 status, such as about how your job duties in the U.S. require specialized knowledge; how your job duties in India prior to your admission in L-1B status required specialized knowledge, and whether there has been any change in your job duties, etc. You may also be required to prove that you are still working for the company (e.g. by showing your pay stubs).
Q- I am an Indian citizen, working for a US company. The company provides scheduling solutions for the automotive industry. I have a bachelors degree and a masters degree related to my occupation. I have been working with the company from 2003 to present on an H-1B visa. We want to start the green card process. Will my education and experience qualify me for the EB2 category? I was told that since I have been working for the same company, my experience will not count. Can you clarify?
A- You would qualify for EB-2 based on your Masters Degree, so long as it is required for your job. You are only required to have experience for EB2 classification if you do not have a masters degree.
Q- I want to know if there's a way to re-open my case. It was filed by my adoptive father in 1991 and my visa was refused in 1992. Is there a way to reopen it? Do I have a right since I am the adopted daughter of a U.S. citizen?
A- It is not possible to reopen the case at this point. Your adoptive father would need to file a new I-130 petition on your behalf. In order to qualify for permanent residence as an adopted child of a US citizen, you have to have been legally adopted and must have lived in the legal and physical custody of the US citizen parent for at least 2 years prior to your 16th birthday. Unless those conditions were met, you would not qualify for permanent residency on that basis.
Q- My wife and I were out of status over 365 days in the past, but were allowed to re-enter with advance parole (w/o bar) and have been able to change to H-1B ever since. My wife has been traveling abroad and has had no problem renewing her H-1B visa. Does that mean that a ten year bar has been automatically removed? Will this out-of-status history be the subject of the interview for I-485 within the US?
A- Time spent out of status is not what subjects you to the 3 and 10 year bars, but time spent unlawfully present. See our article at http://www.usvisahelp.com/art_
Either way, you can be sure the issue will come up on your adjustment of status application. Time spent out of status has direct bearing on your eligibility to file an adjustment of status application in the US.
I'm also concerned about the fact that you said your wife entered the US on Advance Parole and then changed her status to H-1B. A person who enters on advance parole cannot change status.
