-- Q&A 10/26/06--
Q- I am wondering if I am eligible for a green card and how probable it is for me to get it. I understand it is hard to tell in advance. But I wanted to have some idea before I start the process. I have a Ph.D., have lived for 7 years in the U.S. and have a wife and 3 children, one of them a U.S. citizen. I am working at a financial company based in CA with H-1B status from September 2005. I have a published paper in an international economic journal. Unfortunately, I don't think my company has an intention to sponsor me for my green card.
A- With only one published paper it is very difficult to establish that you are one of the top financial people nationally or internationally, which is what is necessary in order to avoid a labor certification and sponsorship by your employer. It would also be difficult to show that you are going to benefit the U.S. nationally rather than just benefit your employer. You may want to consider finding an employer that is willing to sponsor you for permanent residence.
Q- I came to the U.S. in 2001 on H-1B provided by my current employer. They filed for my LC and then for green card. (I have a Masters Degree from India but the filings were done under EB3). I have also grown within the company, financially as well as career-wise. My current position and responsibilities developed into something much higher than what was filed at the time of the LC. It was a small private company, and I report directly to the President & CEO. Currently, my I-140 is approved and 180 days have passed since the I-485 was filed. Lately, there have been some organizational changes in the company, and I suspect that my job may be in jeopardy. I believe I can find a good job from another employer. But, will I be able to use AC21's provisions? If not, what other options do I have?
A- It would appear from what you have stated that you are eligible to utilize the provisions of AC21 as long as your new job is the same or similar to the job for which the labor certification was filed. You want to be certain that you anticipate the Immigration Service's requirements which have not yet been published by regulation. I have heard of many cases where it would seem that the AC21 requirements were met, but upon withdrawal of the I-140 by the petitioner, CIS has denied the adjustment of status application inappropriately. I would not be able to say for certain that you can use AC21 without reviewing your previous paperwork including labor certification.
Q- I've been studying in the U.S. for almost 8 years now. I'm graduating in December and getting my OPT, but I heard that if you study here for more than 7 years, you can apply for a green card. Is that true?
A- No, never has been and I can guarantee it never will be.
Q- I have a query regarding the entry of mother's name in my son's passport. My wife's passport has been issued in her maiden name. However her surname as entered in mine and our son's passport is the married name. I have obtained endorsement of our marriage by including my name in her passport. THe problem now is that while filling the visa application form the details are to be entered as per the passport. Since her married name is not specifically mentioned on her passport, should I enter her maiden name or her married name? The issue has arisen because of the discrepancy in the maiden name and married names as entered in the passport. Should I obtain new passports for myself and our son with her name included as her maiden name?
A- You should follow the instructions on the DS-156 and record her name as it appears in her passport (i.e. maiden name). In question 8 on the DS-156 where it asks for other surnames used, put her married name and write "married name" in parentheses after it.
Q- I am applying for my wife I485 ,however she doesn't have any birth certificate. She was born in Algeria unfortunately they didn't registered her.Afterward,they immigrated to Denmark where she got her citizenship.we tried to contact the Algerian embassy but unfortunately ,looks like there is no record to her certificate.The immigration sent us a letter requesting for a birth certificate, how should I deal with problem? What kind of document should I provide since the government doesn't have any records, do you have nay affidavit samples.
A- The following is from the Foreign Affairs Manual, Appendix C for Algeria, regarding availability of birth certificates:
BIRTH CERTIFICATE
Available. Birth certificates may be obtained from the city hall (Baladia) of the applicant’s place of birth. This document is called variously "Extrait des Registres des Actes de Naissance"; "Extrait des Registres de l'Etat Civil (Acte de Naissance)". In the case of a person whose birth was not recorded, one of the following documents may be issued by the appropriate local authority in lieu of a regular birth certificate: "Extrait du Registre d'Inscription des Omis a l'Etat Civil"; "Extrait du Registre Matrice (Valant Acte de Naissance)"; "Fiche Individuelle de Naissance"; or "Acte de Notoriete" executed by an official of the court house (Palais de Justice) at the place of residence of the applicant.
Q-I am in the U.S. in H-4 visa, recently I got my H1 approved. I wish to go to Canada for H1 stamping. I would like to know if by any chance I did not get my visa stamped, could I reenter the U.S. on my H-4 visa?
A- We have not had this specific issue come up with a client. Some consular officers will automatically go through your passport and cancel prior visa stamps before adjudicating the current visa application. Some attorneys have suggested putting a sticky note over the old visa stamp in your passport asking that the visa not be cancelled. If you explain the situation, I would think that the consular officer should be able to allo the prior H-4 visa to remain valid even if the H-1B visa application is denied, as long as there are no fraud or security issues involved. We are not suggesting that you apply in Canada and are not certain how this situation would be treated. However, this is the best information that we have and hope it assists you in making an informed decision.
Q- I am a docter by profession.I was sponsered a H-1B visa with family from a medical university (for research based work).My interview was in August 2006.The conselor approved my visa with family but said it will be issued after necesssary administrative processing which may take a minimum of 1 month .I have not received my and my family's passports to date.My joining date was 1st September 2006, but luckily, my employer considered my case and extended it for a month.Please tell me if there is anyway of finding out how long it may take,or someway of speeding up the process (any extra fees for urgent processing ..etc).Is there some one in the US govt I should be contacting or whatever is done in such cases, so I can meet my joining date.
A- You can try contacting the consulate for an update but my guess is that the visa is being held up for security clearances, which there is no way to speed up. They can take anywhere from a few days to a few months, depending on what the hold-up is.
Q- I was looking for some information about cross-chargeability. I am from the Philippines and married to a Portuguese for 10 years. My parents are American citizens. My question is: Can I consider using cross-chargeability to immigrate to America?
A- If your husband was born in Portugal you could ask, when filing your immigrant visa or adjustment of status application, that you be charged to Portugal instead of the Philippines, based on cross-chargeability.
Q-I had applied for H1B visa and i got the approval notification. My employer had given my first name interchanged and missed out my original Last in the petition document.
1. Will this be a problem when i go to the Visa interview at the consulate?
2. Or if i have to apply for a change of my name in the petition / I-797, what is the procedure, how long it takes to get changed? I have my Visa appointment at the consulate on Oct 31. Will i get the name changed before that.
A- While we have seen people with mistakes in their names get visas, the consulate does not have to issue a visa when there is no proof that the person on the I-129 and the person with the passport are one and the same.
Since the mistake was your employer’s, your employer must file a new H-1B petition. This should be done before you enter the U.S. so that your visa, I-94 card and Social Security Card all have the same name on them.
Q- I would have a help form for a visa for the USA.I have few means.I would be enrolled or be registrated in one of the us universities.Please help me.
A- Generally, an F-1 visa is appropriate for international students. Our office handles mostly business visas but we have some information on student visas available on our web site.
Once you are accepted at a U.S. university the school should guide you through the F-1 visa process.
Q- Is it still possible for me to apply for a working visa even if I have been denied thrice for a tourist visa? Will my previous denials affect my future application for a working visa?
A- Generally when a person is denied a visitor's visa, it is because the consulate believe that they are coming to the U.S. to work or live. If that was the reason for your denial, and you are applying for a work visa under the H-1B category, it will not affect issuance of the visa. Other categories such as J-1 or H-2 would still be affected by the refusal.
Q- I have an alien friend living in the U.S. She was married for 2 years and got divorced. Papers were filed, but they did not change her status because her ex-husband was not a citizen. She then got married again and is now getting an annulment. She also did not file any papers with the immigration for change of status. If she should decide to get married again, would this affect her in any way?
A- As long as your friend has not engaged in sham marriage arrangements as the basis for the marriages, prior marriages will not affect her ability to adjust status in the U.S. The burdern of proof, however, is on her to prove she did not marry the other husbands for the sole reason of getting a green card.
