-- Q&A 8/21/07--
Q- I filled my GC from NJ on Sep 2004 RIR process and still waiting for my labor certification to get cleared in the mean time I completed my 6 years of H1B visa and started extending my H1B visa once a year (not to mention real painful procedure). I am Indian Citizen and my wife is German Citizen. She is in on dependent H4 visa. My wife is born in Germany (Birth Certificate Proof) and had Turkish Passport previously. Before we got married she changed her citizenship from Turkish to German as she is eligible to be German citizen by birth. Now the question is,
1. Is there anyway I can take advantage (speed up my GC process) of my wife being German Citizen by birth?
2 . Am I qualified to process through EB2? Education: 12 Year School + I have Bachelors Degree in Computer Science (3 Year Degree) + Diploma in Computer (2 Year) have BS Equivalent education evaluation certification. Experience: 10 Years of Experience out of which 3 year from the current company.
3. If I re-apply for my GC Labor thru Perm process what will be the status for my old or original GC labor applied thru RIR process?
4. My company lawyer suggesting that I should not change my GC labor filing from RIR to Perm because I will loose my priority date. Is that true or do I have to be worried about this since I will be filing using cross chargeability (providing I am eligible)
5. Assuming I am qualified (providing the above scenario in my favour) what will be the time period it would take from the date of filing till I get my GC?
6 . What are the possibilities that my GC process will drag beyond the expected period?
A- 1.) Chargeability is based on country of birth. Since your wife was born in Germany, she is chargeable to Germany. Therefore, if she is applying for a green card as your derivative, you should be able to claim cross-chargeability based on her country of birth, which will mean that your visa number becomes available more quickly.
2.) You may qualify for EB2 if you have the equivalent of a U.S. degree and can prove 5 years of progressively more responsible work experience through letters from previous employers and/or co-workers. In order to take advantage of EB2, however, your employer would need to file a labor certification that required a Bachelors Degree plus 5 years of progressively more responsible experience. The priority date would be established for the EB2 classification when that labor certification is filed.
3.) You cannot have 2 labor certifications pending based on the same job offer. If you file under PERM you either have to (a) prove that the new filing is exactly identical to the old one and ask to recapture the priority date established by the first filing, or (b) withdraw the first labor certification and re-file under PERM and lose your priority date. The problem with option “a” is that it is difficult to prove that the job offer is precisely the same and if the DOL does not believe it is the same, you will lose your priority date anyway.
4.) Cross-chargeability has nothing to do with the issue of whether you will lose the priority date. Your attorney is correct that if you don’t prove the jobs offer in the PERM is precisely the same as the one in the RIR, you will lose your priority date.
5.) Processing times depend on several factors including DOL processing times, USCIS processing times, and movement of visa numbers as well as how long it takes to get applications filed. It is impossible to predict at this point.
Q- I would like to know whether I can apply for I-485 at present based on Child Status Protection Act. My case diary is following:
- August, 1996: My mother applied for I-360 (Religious Worker)
- December 1996: I-360 Approved
- End of December, 1996: Applied for I-485 (All Family Members)
- January, 1998: 1st interview -> INS did not decide (I do not know the reason why, my mother told me that we did not bring passport)
- End of December, 1999: 2nd Interview and Approved all family members and got approval stamp on passport. However, immigration officer cancelled my stamp after he asked my age. I was 21 years and 10 months at that time.
- I did not receive any letter from INS until now. Mybe they sent some notice, but we moved after obtainment of green card. Therefore, we do not know we did not receive INS letter.
Questions:
1) How can I check my Green Card process is pending or not.
2) Child Status Protection Act was effective from August 6, 2002. According to the CSPA, "Retention of priority date- in the case of a child who turns 21 while a family-based, employment-based, lottery-based green card application is pending who is not eligible to claim to be under under 21 for purposes of seeking a green card, the child may still retain the original date issued upon receipt of the original petition and it is not necessary to file a new application because the case will be automatically converted to the appropriate category (F2B). In this case, I think I should be automatically converted as a F2B, son or daughter of permanent resident category. Therefore, If my case is still pending (means I did not receive any notice from INS), can i apply for I-485 as a F2B case? (I think my priortity date has passed already).
A- If your immigrant visa was denied in December 1999, your case is no longer pending. It ended when the case was denied. Unfortunately, the CSPA only applies to cases that remained pending after the effective date of the Act (August 6, 2002). Therefore, CSPA does not revive your application.
Q- When I used to live in Ohio I was an ESL student with B1/B2 visa, I wanted to change my status in order to become a college student, it was denied, so I decided to come back to Peru 3 months later after I got the letter because I really wanted to get into college, so now I go to school for Economy. Well I would like to know my status because my father and my sister( got her B1-B2 3 days ago) are planning to visit my family in Ohio and I would love to go with them, my B1/B2 expires in 2011 but I am not very sure if I’m able to travel. When I went back, the Peruvian officer stamped a different date in my passport, like I stayed i USA only 20 days which is not true, even in my Peruvian immigration record says 20 days out of Peru .
A- If you did not overstay your previous B-2 I-94 card and your B-2 visa has not been cancelled, you can use it to apply for admission to the U.S. as a B-2 visitor. You will need to present evidence at the port of entry that you have a residence in Peru that you have no intention of abandoning; that you have money to support yourself in the U.S. without working; and that your stay is for a limited purpose and period.
Q- Is a person entering the US on a business visa bound by the 90 day rule for "non immigrant intent" before applying for H-1B? Can a person apply for a H-1B in the home country, enter the US on a business visa and then wait until the H-1B is granted (if I-94 is valid till then)?
A- An H-1B is a nonimmigrant status, even though it gives dual intent. So filing for change of status to H-1B after entering the US as a B-1 business visitor does not raise a presumption of immigrant intent. However, your stated purpose in entering the US on a B-1 must be consistent with the filing of an H-1B if you are going to file the H-1B petition shortly after entering the US on the B-1. If the H-1B is filed prior to your B-1 admission, the filing of the H-1B must be disclosed when you apply for the B-1 visa and/or admission to the US on the B-1.
Q- I have R-1 visa and I wanted to apply adjustment of status. In that application do I need to apply I-140 or not? According to R-1 we are under EB4.
A- You need to have either an I-360 religious worker (EB4) petition approved, or you need to have a labor certification and I-140 petition approved on your behalf. I-360 petitions are generally preferred because the labor certification is not required and the requirements for the I-360 are basically the same as for the R-1 except that you must also prove that you have 2 years of experience as a religious worker in the denomination. If you go the I-140 route, you could potentially have a much longer wait for the green card because of visa number unavailability.
Q- I was born in thePhilippines but have been living in Thailand for the last 35 years. I am married to a Thai, and followed my spouse's citizenship 32 years ago. Both my spouse and my son were born in Thailand.
In 2001, my US citizen brother petitioned for me. In 2004, my US citizen mother also petitioned for me. While my mother's petition is still pending, my brother's petition was approved but I was charged to the Philippines, which could keep me waiting for about 20 years. On the contrary, the waiting period for Thailand is only about 5 years. My question is : How do I request for cross-chargeability based on the country of birth of my spouse?
A- If your husband will accompany you as a derivative family member based on the petition filed by your brother, then you can request cross-chargeability by writing to the National Visa Center and asking that you would like to be charged to Thailand based on your husband’s birth in that country. Cite section 202(b) of the Immigration and Nationality Act when you request cross-chargeability. You can quote INA 202(b) in your request.
The National Visa Center’s address is: The National Visa Center, 32 Rochester Avenue, Portsmouth NH, 03801-2909. Alternatively, you can email NVC at NVCINQUIRY@state.gov.
Q- I fell in love with a great guy in Egypt. We have been trying to get together for 7 years. He was on yesterday online very upset. He left cry8ing saying many years, yet no progres. I don't want him to give up. Please help. He has knocked on so many doors to be told no, he can't come to me. I'm handicapped and can't leave the USA. Please help us get together. Would a letter to the embassy explaining why I can't come to him, and that I need him to come to me, help?
A- There are a few ways of achieving his admission to the US. If you are simply dating and not engaged, it would be difficult because the only option is a visitors visa and it will be difficult for him to prove he has a residence abroad which he has no intention of abandoning, if he is coming to be with his U.S. citizen girlfriend. The visitors visa is not impossible to obtain in this situation, if he can prove compelling ties to Egypt such as continuing work and family obligations there. But if he has tried and been refused for a visitors visa in the past, it gets more and more difficult with each application.
If you are engaged, you could sponsor him for a fiancee visa so that he can come to the U.S. for you to marry him. One of hte requirements for the fiancee visa is that you have met in person in the last 2 years. However, this requirement can be waived if it can be shown that traveling would cause extreme hardship to you. This would require you providng, with documentation from a physician, that you are disabled and unable to travel; and that your fiancee has been prevented from coming to visit you.
Q- I'm wondering what the steps are for getting a K-3 visa if a UK citizen was coming to the U.S. Would we have to notify the government before he came over to get married, and what would we have to do after that so he'll be able to work here? Is the process long? Also how long would he have to live int he US in case we plan on living in the UK after a year?
A- Assuming you are a U.S. Citizen, the appropriate visa sounds like a K-1 fiancé visa (K-3s are for spouses of US citizens). The first step is to file an I-129F petition, which is currently taking about 6 months to process. After it is approved, your fiancé would have to apply for a K-1 visa at the US Consulate in London. You would have to check with the consulate to see how long K-1 visa processing is taking. He would then be able to enter the U.S.
A K-1 visa is considered a quasi-immigrant visa, meaning the K-1 visa holder must marry you within 90 days and must file a permanent residence application. He must intend to live in the U.S. permanently. If he plans on leaving the US after a year, the visa won't be issued. He can apply for employment authorization along with the permanent residency application and it takes about 90 days for issuance.
Q- I am a holder of an H-4 visa. What are the things I can do legally so I don't end up staying at home and do nothing? I know I can attend school but not get employed unless a change to H-1B is attained. Can I do volunteer work?
A- If the volunteer work is something people normally do on a volunteer basis, and you are not receiving compensation of any kind, then it's permitted. However, if the work is something people normally get paid for an you are offering to do it without pay, then it's still considered by USCIS to be employment and you are not authorized to engage in it. Even with volunteer work, you should be careful because USCIS can consider a wide variety of things to be "compensation" apart from money, including free meals, travel expenses, etc.
Q- I want to go and live in United States of America doing some small job. Sir where and have can i apply for U.S visa and papers and document is required and how much will be the fees. Where can i get U.S visa application form. Sir i am requesting you sir plece give me full information about processing and guidence so that i can go go united states of america with your help.
A- In order to obtain an employment based nonimmigrant visa you need to have a U.S. employer willing to sponsor you and in most cases you need to have a Bachelor’s Degree or its equivalent. Our office cannot assist you in finding an employer; we would assist with the visa process when you have a job lined up with an employer who is willing to file the paperwork on your behalf.
Q- I received my green card after marrying my US citizen wife last year. Since my green card was through marriage, it is conditional for 2 years. At present, I have suspected my wife of cheating on my and if that is the case, I will divorce her, disregarding the fact that I am still on a conditional green card. If I do that, when do I need to file my I-751 to waive conditions? Does it have to be before 90 days of hte expiry of the conditional status or do I have to file it right away after I get a divorce?
A- You need to file it upon the divorce. If the divorce is not completed before the 2 years of conditional status, you would be advised to file the I-751 based on extreme hardship to extend your card.
