--Q&A 12/13/06--
Q- I had entered the USA without immigration inspection. While there I attended two colleges, had a FBI fingerprint and then went legally to Canada. I was in the US from January 1997-December 2004. I now live in Canada for two years in a row. My girlfriend is an American. Is it possible for me to immigrate without facing the 10 year bar? We plan on getting married next year. If not, is it possible for me to get a nonimmigrant waiver to finish my college degree? I only had one semester left to finish my degree.
A- You are subject to the 10 year bar. You will need a waiver. This is a very complicated process and timing of the various applications are critical. I would suggest a consultation at least in this matter even if you do not choose to have an attorney handle the matter.
Q- I came from India to US on last month (with B1 visa). My port of entry is Cincinatti. In my I-94 they didn't mention any expiry date. Will this be a problem when I leave the country? If I want to get that expiration date here, how much time will it take and where can I get one?
A- An expiration date should have been listed on your I-94 card. You can get this oversight corrected by going to any Customs & Border Protection office. A list of offices is available on www.cbp.gov.
Q- I applied for citizenship (N-400) on July 2003 and attended the interview and passed the exam in April 2004. My case has been pending until now. When I asked they said they had sent two names to FBI for checking, one being my full name and one being first and last names without my middle name. The full name has cleared but the name without my middle name remains pending. I have tried to convince them that I always use my full name but they said both names have to come back. Please advise me if there is any way to contact the FBI to check if they have already sent the clearance for the second name or not. It's been almost 3.5 years since I applied.
A- Unless you are willing to file a lawsuit against USCIS and the FBI, immigration lawyers have found no other solution for this problem.
Q- I find a need to seek for an answer to a rumour I recently heard from a recriuiter, that the US has placed a temporary freeze on H1B applications. I was unaware a new application could be made until April 2007 to begin with and am thus even more mystified by this news. Is it true, and what are the circumstances surrounding it that lead the government to make such a decision? Any idea on when the freeze will thaw, if truly frozen at all?
A- There is an annual cap of 65,000 H-1B petitions that can be approved. The cap opens up on October 1 every year, which is the beginning of the government’s fiscal year. Once 65,000 petitions have been approved, no new petitions can be approved again until October 1 of the following year. The H-1Bs are all used up for this year. You can begin filing new petitions as early as April 1, 2007 but they cannot be approved with an employment start date any earlier than October 1, 2007. There are some petitions that are not counted against the cap. For more information, see our article on the H-1B cap.
Q- I am currently filing a notice of objection against Canada Revenue Agency regarding a tuition fee claim made payable to American colleges where I obtained my education. Unfortunately, I discarded my official receipts and CRA nailed me on it. If the objection is not resolved, I may take Canada Revenue Agency to court via appeal. Canada Revenue Agency most likely shares information with American authorities about Canadian citizens. My question is whether this could possibly affect future U.S. entries on a nonimmigrant status such as TN or H-1B. I also have a brother who ooften enters and departs the United States frequently on business trips.
A- Unless you are being charged criminally for failure to pay taxes, any dispute would not affect you in entering the United States. It would not affect your brother even if your charges were criminal in nature.
Q- I am a Canadian citizen and I just married an American in October. I am presently living and working in Pennsylvania on a TN which expires in June 2007. I've been on TN status and reapplying every year since June 2003. Both my husband and I reside together. We are looking for the simplest, least expensive way to change my status to permanent resident. I've been doing research. Do I need to file: I-485, G-325A, I-130 (I know my husband files this), Affidavit of Support, and Medical Exam? It seems like a lot and it's stressing me out.
A- Yes, there are a lot of forms, but once you understand the purpose and what is needed, things should go smoothly. While the forms are filed with the National Benefits Center through a Chicago address, your case will be interviewed in Philadelphia. For Philadelphia, the process is taking about 6 months at the present time. From your email it does not seem necessary for you to have an immigration attorney representing you, but you may want to consult with an attorney to guide you through the process. I do this quite often with both local clients and clients throughout the United States. I charge $150 per half hour consultation time. Usually the first consultation, I go over the process, forms, and necessary filing procedures. If clients feel it is necessary, I schedule an additional consultation to review everything before you submit it.
Q- My mom petitioned my brother when she was a LPR and it was approved. During that period of time my brother was single. In the meantime, my brother waited for his visa number according to the visa bulletin but he got married so he sent a notice of change of status to NVC. NVC sent back the case to CIS. Up to date, my mom became a US Citizen and now, we dont really know what to do. We dont know if my brother lost his petition and residence with his wife? Does my mom have to file again all the papers as a US citizen? What do you think we must do?
A- As there is no family-based preference category for married sons and daughters of permanent residents, your brother lost his eligibility for an immigrant visa based on the I-130 filed by your mother when he got married. NVC properly returned the I-130 petition to USCIS for revocation due to his marriage.
In order to proceed with a permanent residency application on the basis of his relationship to your mother, your mother would need to file a new I-130 petition on his behalf as the married son of a U.S. Citizen (family based third preference). It will be several years before the priority date of the petition will be current in this category.
Q- I am afarid and do not know whether I have made a big mistake with my I-824 application. My PERM and I-140 were approved this year under the category of EB-3. My priority date is 01.2006. Still long way, I know. Because of my status, I filed I-824 in July and then returned to Japan in August. My questions are:
1) In the form I-824, Part I, I wrote the employer:s name there but not mine.
2) In Part 2, I checked "B" ---- to notify the consulate Osska/Kobe, Japan
3) In Part 3, I wrote my name and address in Japan there.
Maybe I have to write my name in the Part 1, and should check "D" that they should notify I-824 approval to NVC. But I am not sure. I have also attached the cover letter indicating that the approval should notify to the consulate in Japan. If this is wrong process, it will cause a serious delay. May I ask your best advise for not being my case delayed and process correctly? Should I write a letter to USCIS and ask them to send I-824 approval to NVC? Their processing date for I-824 is April 2006 in mid October.
A- To answer your questions:
1.) Part 1 of the form should be your name/ info
2.) Part 2 of the form should be checked “D”
3.) Part 3 was filled out correctly
I am not sure how USCIS will treat the request. Box “B” in part 2 of the form is used on nonimmigrant petitions. USCIS may understand what you were trying to accomplish with the form, and may not. They may send you an RFE (“Request for Evidence’) asking you to clarify.
After the I-824 is approved, the file should be transferred to NVC for immigrant visa processing. They will send the fee bill to the address they have on file for you, and will then send you an Instruction Packet. You will have to submit your application to the consulate and the consulate will call you in for an interview.
Q- I used pre-approved labor from employer A and my 140 was approved in March 2005. My 485/EAD/AP was filed in July 25, 2005 while working with employer A. I changed my employer in November 2005 and also ported my 7th year H1/485/EAD/AP to employer B using AC21. My case is with Vermont Service Center. Questions,
1) My AC21 was applied in November 2005 i.e. before completing 180 days with 485. I checked in the USCIS website, it shows 485 is active and under processing. I didn't receive approval notice for my AC21 for acceptance of my GC process. Will it be problem in approving my 485?
2) I checked with USCIS website for my 485 under Vermont, it shows the current processing date as August 8th. My 485 was not approved yet.
3) I havent used my EAD and I am maintaining my H1 status with employer B. I did use my AP to visit India for a couple of weeks. I heard from the people that I lost the H1 status because I used AP. Is that true?
4) My 8th year H1 was filed on 10/21/2006 for three years extension based on my 140 approval. Will it be a problem in approving since I used my AP?
A- 1.) As there are no regulations in place to interpret AC21 there is no reliable answer to your question. Based on current USCIS guidance, however, it would appear that even if you ported before 180 days had passed, the I-485 should still be approved so long as 180 days pass between I-140 filing and I-485 approval, IF your new employment is in the same or a similar occupational classification and your new employer can demonstrate the ability to pay the wage that was offered to you in the labor certification.
2.) You may want to call the USCIS at 1-800-375-8253 to place a status inquiry if the USCIS processing time report shows they are working on cases filed after yours.
3. & 4.) USCIS has stated in memoranda that even if you enter the U.S. on Advance Parole, you can continue to extend H-1B status in the U.S. provided you otherwise maintained your status. While our office has successfully done this for people, please be aware that USCIS memoranda are not binding guidance and USCIS can choose not to comply with them.
