--Q&A 8/3/06--
Q- My aunty is staying in the US for the past 20 years and is also a green card holder. She runs a restaurant in the US. How can she help me for the visas, especially for the work permit visa?
A- If the restaurant has a seasonal peak load you could possibly qualify for an H-1B as a seasonal worker, but this would only allow you to remain in the country during that peak season. In order to qualify for H-2B, the restaurant would have to post advertisements to recruit US workers. If anywilling and qualified workers applied for the position, then an H-2B petition could not be filed for you.
Alternatively, you may qualify for an H-1B if you are a chef and your aunt's restaurant is ain a large hotel or is a prestigious restaurant. In order to qualify, you would need to be primarily engaged in management duties as opposed to working in front of a stove. Expert testimony from a culinary professor or hospitality management academician is often needed to prove that the position is so complex that it requires a person degreed in culinary arts. A detailed job description giving the various management responsibilities, authorities, and budgets is recommended. You would also need to prove that you qualify as a specialist based on your education in culinary arts or the equivalent work experience.
Q- I got my H1B visa documents with my name written wrongly in the INS document. I wonder if I should request changing my name in the INS before I go to get the visa or should I give t a try?
USA employer sent me a letter from his lawyer explaining the error to INS's staff. Is that sufficifcent to get the visa?
A- The discrepancy between your passport and I-129 Approval Notice could cause you problems when you apply for a visa at the Consulate. If the I-129 petition was filed with your name appearing correctly, and it was through USCIS error that the names were reversed, then your employer's lawyer should be able to get USCIS to issue a new approval notice. Simply notifying USCIS of the error is not enough; you need to actually get a new approval notice.
Even if you do get a visa issued with your name written wrongly on the approval notice, you may have problems when you attempt to enter the US using the visa and passport. And if you don't have problems there, you will most certainly have a problem when you apply for a Social Security Number. Social Security won't issue you a Social Security Number unless the name on your passport matches the name on your I-94 card.
Q- My husband has applied for GreenCard. I140 is approved. We just applied DS230. We have not received any consular interview notice. We selected Consular Processing instead of I140, I485. 1. Now I am H4 and find a job. If I applied for TN at port of entry, will I be denied for immigrant intent? 2. How to explain the immigrant intent? 3. I heard If we applied for I485, it is immigrant intent. Could you explain why? 4. For consular processing, which step is considered as immigrant intent? why?
A- In order to enter the U.S. in TN status, you have to show that you have nonimmigrant intent. Legacy INS has instructed its border officers that the mere filing of an I-140 is not dispositive of immigrant intent; however the approval of an I-140 plus the filing of an immigrant visa application is a much stronger indication of immigrant intent.
The outcome really depends on what port of entry you go to and what officer you get. Some officers will inquire into your immigrant intent and others will not. If you are asked, you have to disclose the fact that you applied for an immigrant visa.
The fact that you have chosen consular processing is in your favor, because you can argue that you will not become a permanent resident upon *this* admission to the US in TN status; you will have to travel abroad to obtain the immigrant visa before you can be readmitted to the US as a permanent resident. However, some officers follow this logic and others do not.
If you apply for a TN and are refused, you should request to withdraw your application for admission, and should be readmitted to the US as an H-4. The absolute worst case scenario is that you could be placed into expedited removal proceedings and barred from the US for five years, if the officer thinks you are committing fraud. However, this is highly unlikely.
Q- I have one question regarding AR-11 forms: I arrived in the US in 1995 on TN status. Then progressed to H1B status in 1996, and by 2000 achieved green card status. I am now looking into filing N-400. Before 9/11, I was never aware that when an alien moves in the US that they should file AR-11. I moved 4 times in the US between 1995 and 1999 and never filed AR-11 due to sheer ignorance. When I obtained my Green Card, the INS was made aware of my permanent address in the GC application via consular processing. I have not moved since 1999 so there's been no need to file AR-11 since obtaining LPR status.Will this scenario have any impact on my N-400 applications?
A- In my experience, the Immigration Service only uses the failure to file the AR-11 as a means of deporting persons that they deem undesirable but do not want to reveal evidence or sources of information.
For naturalization, it would normally only be a factor in determining good moral character and as you were not aware of the requirement, it does not show a lack of good moral character because you did not comply. When I was an Immigration Examiner, I never asked the question as to whether the AR-11 was filed in interviews, nor have I heard it asked in any interview since 9/11.
At a forum shortly after 9/11 I asked all present including several immigration attorneys and INS officers if they knew what the AR-11 was. None of those present, including the INS officers knew what it was. Given the general ignorance of the requirement to file the AR-11, it will not be held against you.
Q- I'm a us citizen I want to bring my parents and small sister of 16 to usa will it delay the entry of my parents because of my sister secondly actually my father is in USA with a visitors visa can I petition his case can he stay with me till the approval of his application please want an answer thank you
A- As a US Citizen, you can file "immediate relative" petitions for your parents. As your immediate relatives, immigrant visas are immediately available to them. For your father who is present in the US, you can file an I-130 immigrant petition and I-485 application for adjustment of status concurrently with the National Benefits Center. (However, if your father entered the US as a visitor, with the intent of your petitioning for him, then you can't file for him. See our article on "nonimmigrant intent" at http://www.usvisahelp.com/art_
If your mother is outside the US, then you can only file an I-130 petition for her at this time, at your local USCIS service center. As soon as it is approved, she will be eligible to obtain an immigrant visa from the US consulate in her current country of residence.
You can also file an I-130 petition for your sister, and that filing will not slow down your parents' admission to the U.S. However, as the "brother or sister of a US Citizen" she would be in the family based fourth preference category and it will take around 20 years (or more) for a visa number to become available to her. However, once your parents become permanent residents, they can also file petitions for her. As the daughter of a permanent resident, it will take either around three years, or around 10 years (depending on whether your sister gets married; and on how quickly your parents can file a petition for
her) for a visa number to become available to her.
Multiple petitions can be filed on behalf of one person. So you could file a petition for your sister, and your parents could also file petitions. It never hurts to have more than one way for a visa number to become available to a person. In the unfortunate event that either you or one of your parents were to pass away before a visa number becomes available to your sister, there would be other petitions in place already that would secure a visa number for her.
