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Date: November 16, 2009
Host: Andrew Wilson and Jill Apa View Transcript | Archive Index For All Legal Chats The questions around immigration may be simple -- "How can I stay in the U.S.?," "How can I employ these people?" but getting the answers and the documents can eat up time and money. Learn more about immigration law November 16th, 2 p.m. Eastern (1 Central, 11 Pacific).
ANDREW WILSON graduated from Ridley College in St. Catherines, Ontario, received his B.A. degree from the University of New Hampshire and his J.D. degree from the State University of New York at Buffalo School of Law. He authored "TNs for Computer Professionals Under NAFTA" for the American Immigration Lawyers Association's (AILA) Immigration Practice & Procedure Under The North American Free Trade Agreement, 2nd Edition. He has also authored articles for Computerworld and been interviewed by CBS MarketWatch on the subject of H-1B legislation. Mr. Wilson is a member of the New York State Bar, AILA, and he is listed in the Best Lawyers Consumer Guide for immigration law.
Attorney Wilson's firm web site is: http://srwlawyers.com/
JILL A. APA Jill A. Apa has been practicing immigration law on an exclusive basis since 2001. She was previously employed by the firm Serotte, Reich & Wilson and just recently joined the immigration practice group of Damon & Morey, LLP. In 1993, Ms. Apa graduated magna cum laude with a dual B.A. degree from the University of New Hampshire. She then obtained her J.D. degree, with distinction, from Ohio Northern University. Prior to commencing a career in immigration law, Ms. Apa worked as a staff attorney at the Third District Court of Appeals for the State of Ohio. She also worked as an adjunct instructor of legal research and writing at Ohio Northern University. Ms. Apa is licensed in Ohio and New York. She has written legal articles and revised treatise chapters on various immigration issues for national and local publications, including AILA, Lexis Matthew Bender, The Buffalo Law Journal and The Daily Record (Rochester, NY).
Attorney Apa's firm web site is:
http://damonmorey.com
Live Chat Transcript ferari: "Hi hired an attorney for my parents greencard,it got approved and its with the NVC fro visa processing,but now the attorney totally stopped correspondance with me.I already paid him 80% of his fees.what to do?"
apolo: "I made a stupid mistake and was arrested from a dept store. The store personnel place the items at 1,300. I had a next day court and was assigned a lawyer. The next date is within 10 days. My appointed lawyer said that I would qualify for diversion. My questions are: 1. Will this prohibit me from applying for a extension on my I94( I hold a L2). My husbands co. applies for the extension. 2. Will my husbands extension be questioned because of my misconduct. 3. Will I be able to reapply for L2 in the future. 4. Will this prevent me from reentering US. Thanks"
John20099: "I am a US citizen married to a foreign national. I lived abroad with her for nearly six months and she came to the US on a conditional green card holder. Our marriage fell apart and even though I wanted to try to work out the problems, my wife didn⿿t seem interested in it. I did not file to remove her conditions. About a week ago she filed for a divorce and wants me to provide her lawyer a sworn affidavit in which I state that she got into the marriage in good faith. I am not willing to do this as I do not believe it is true. So now they are telling me that they will go after the I-864 filed on her behalf. I read somewhere that I could file and get a partial summary judgment on this matter. I live in Texas. The i-864 was filed by my relatives as I was not working and I did not have sufficient income. We don⿿t have any joint accounts or any other joint bills. I am willing to give her a no fault divorce but I am not willing to support any of her claims for immigration, especially since I think they are all false. I am not doing this out of anger or ego, I would have done all these things for her if I believed she had good intensions and she was truthful. She is just looking for immigration benefits. Please tell me, what are my options?"
John20099: "The very next day after I said that, my wife and her parents moved out of my apartment. By the way the parents came unannounced and were constantly harassing me to apply to remove the condition from the green card. All this happened about two months prior to the deadline for applying to remove conditions. When she moves out she told me she was going back to her country with her parents. She called me the next day and requested if I can file to have her condition removed. I refused saying that it is illegal especially since we are not living together anymore. She then tried to convince me to do it through several people and I refused each time."
Mr Zee: "My brother,wife and three kids are displaced and escaped death in Pakistan.They are Pakistani CitizenThey quailify under the international refugee convention as "Refugee". They arrived in Mexico.want to file asylum at US-Me border. Can they claim asylum at the US-Mex broder? Will they be permitted in US? How ..process and how you can help as an Attorny ...5 family memers already won refugee claims in Canada under the same situation.Please help"
argchr78: "Hi. I'm planning to go for stamping for my second h1-b. I'm a little bit nervous about the DS-156 questions as I think that Q38. regarding violation of visa terms apply to me. I was on f-1 from '91 to 2004. During one summer I worked off campus without employment authorization and payed taxes and filed taxes also. I'm want to go get my second h1b stamp now and i'm afraid to volunteer that i worked when I was not supposed to during my f-1 years. I know I should be truthful but if consulates do not verify employment with SSN administration during interviews, I rather not volunteer information that may hurt me. how big is the risk of not disclosing that information? During my first h1b i did check that box because I was denied COS from f-1 to h1b mistakenly by INS and was accruing unlawful presence so I left to do consular processing to come back in under h-1b. However, upon my return, the MTR was approved and the unlawful time accrued was no longer there as per law. This is why this time, I would not check Q38 due to unlawful presence. It's the working without authorization that is bothering me and my fear of them finding this out during the interview. Do you think I should check this box even though this happened long time ago while on f-1 and have not violated conditions of the new h-1b? If i do check it, can that upset the VO and lead him to deny my stamping?"
pinkchicken: "my fiance and i have recently filed a i-129f fiance visa in lagos, nigeria at the american embassy we got invited on june 10th 2009 to go for the 1st meeting, they sent him home with a request for more info. paper and said we would be placed under administrative processing. 5 months have went by and we recently got reinvited to the embassy for nov. 12th 2009, they denied him on misrepresentation of marrital status (212A C-6), neither of us were ever married and we are both free to marry, on the paper it states that he is banned from the us permanantly and cannot reapply, what can be done about this, the us visa processing center said there is a way for this to be lifted, cause we both believe there is some kinda mix up, i went over to nigeria nov. 13th - nov. 20th 2008, met his family, friends, and know for a fact he is not married, they have pics, of our engadgement we sent to the embassy as well as phone bills of 14,000 dollars showing our communication, as well as letters and pics from my family, and friends as well as his.........PLEASE HELP.........what do we do about this issue?"
nidkar: "Hi, I came to US on H4 visa March 2008 , I got my H1 approved by compnay A in Oct 2008 . My husband worked on H1 visa with Company A, his H1 visa was expired on March 2009 and he shifted his H1 to Company B, and my H1 was with previous consulting company A. My Company A lost their clients and could not pay me and I dont have any pay stubs, my Company A revoked my H1 in May/June 2009. Its November now, Can I go to India(my home country) and come back on H4 visa of my husbands company B. Thank you very much. nidhi"
LizSmithwick: "My name is Liz. I am a US citizen, born in the states. My boyfriend is from St. Vincent. He came here on a student Visa in 2002. When his student visa was about to expire, he got married. They were a bit careless and so none of his paperwork went through. At the time, he had his driver's license, work permit, was going to school. He has not been in school for the last three years because he was paying for her Bachelor's. He has receipts from his parents sending him money from his account in Bequia. His work permit has since expired, as well as his student visa and driver's license. They separated in July and he is signing the papers for divorce this week. We want to get married. I am afraid of the implications of us getting married and his status being expired. While I was looking up the requirements to get his status as permanent resident, I read something about a waiver, but could not figure out how to find the form for it. I want to be completely prepared before we go to meet a lawyer. Any information would be appreciated!!! Thanks!!!"
pinkish: "I am about to have my visa restamped next year.But an unfortunate event happened, I was arrested for DUI last month.My lawyer told me that my case will be dismissed, court hearing will be on Dec. 7.No one was hurt during the incident. My question is, is it safe for me to go home in the Philippines and have my visa restamped?I know I have to say "yes" to the question in the form where it's asked "have you ver been arrested" but I am hoping to get more tips. I've been reading about cases with DUI but I am not clearly sure of the real scenario. Thanks."
ferari: "hello i am a us citizen applied for my parents green card with a help of attorney ,it got approved and its with the NVC for further processing at this stage the lawyer ctopped correspondence with me for about 1 month now what can i do?can i continue the process myself?"
ferari: "hello anybody there?"
ferari: "hello jill i have a question i earlier posted,can you see that?"
ferari: "hello"
ferari: "hello jill i have a question"
ferari: "hello"
ferari: "hello jill"
Jill Apa: "Good afternoon. Please go ahead with your questions."
ferari: "i applied for my parents green card with the help of a lawyer and it got approved and its with the NVC for further processing but all of a sudden the lawyer just stopped correspondence with me..what can i do in this situation?"
NEW MEDIA: "I am on F-1 visa COS from H-4 being in USA last year. I am going to India to get F-1 stamping, but my husband's I-140 is approved with my name on it. DO you see any risk in F-1 stamping??? Thanks"
ferari: "i have been trying to contact him for the last 1 month but no reponse..can i contunue the process myself?"
Jill Apa: "Ferari - Have you received all of the paperwork that the lawyer has? have you tried the local bar association to see if he's still in business or what's happened to the practice?"
Jill Apa: "New Media - do you know what category your husband's I-140 was filed under, i.e., EB-3, EB-2?"
NEW MEDIA: "I have successfully completed my 2 semesters of Masters in US. Please Advise??"
ferari: "the NVC sent me the invoice for visa fees ,he is still practicing"
Jill Apa: "ferari - If the attorney is still practicing and you no longer want to use his services, you need to be clear about that. You can ask for a copy of the entire file and see if you want to handle the rest yourself or hire another attorney."
Jill Apa: "New Media - it may become an issue and it may not. You always have to be truthful when you answer questions posed by the consular officers so if they ask about an I-140 petition you have to let them know aobut your husban'ds case. The reason I asked about whether your husband is an EB2 or EB3 category for the immigrant visa is because those categories can be quite backlogged. The farther in time that your spouse will become eligible for an immigrant visa, the better chance you have of convincing the consular officers that your next admission as an F-1 is not going to lead to permanent residency."
ferari: "i paid him 70% of his fees already.if i dont hear from him and i want to comtinue with the process is that going to be any problem from the lawyer i hired?"
NEW MEDIA: "EB-2"
NEW MEDIA: "and got his I-140 approval in December"
Jill Apa: "ferari - a new attorney will likely charge you fees for the time it will take him/her to handle the case from there on out. Just because you paid the other lawyer doesn't mean the new one won't charge. Any fee disputes that you have with your existing lawyer have to be worked out between you two. That's where the local bar association can help step in as well."
ferari: "NVC visa center has the file now and waiting for to get paid for the visa and affidavit of support"
Jill Apa: "New media - what is the priority date for the I-140? In other words, when is he eligible for the visa? Does he already have an application for adjustment pending? Do you?"
ferari: "jill if i want to continue processing the case myself is that going to be a problem if the lawyer doesnt contact me ?"
NEW MEDIA: "Priority dates are backlogeed to Jan 05"
Andrew MacDonald Wilson: "argchr--Were you able to see my last response?"
argchr78: "no"
Jill Apa: "ferari - if the lawyer is already listed as the attorney of record, you need to let the NVC know that you are going to try the case yourself. Also, you need to be clear to the lawyer so that he knows not to touch the file any more and to provide you with all notices that arrive from either the NVC or the overseas consulate. If you simply stop communicating with the lawyer, there could be a serious misunderstanding about who is actually handlign the case."
argchr78: "my question is: I'm planning to go for stamping for my second h1-b. I'm a little bit nervous about the DS-156 questions as I think that Q38. regarding violation of visa terms apply to me. I was on f-1 from '91 to 2004. During one summer I worked off campus without employment authorization and payed taxes and filed taxes also. I'm want to go get my second h1b stamp now and i'm afraid to volunteer that i worked when I was not supposed to during my f-1 years. I know I should be truthful but if consulates do not verify employment with SSN administration during interviews, I rather not volunteer information that may hurt me. how big is the risk of not disclosing that information? During my first h1b i did check that box because I was denied COS from f-1 to h1b mistakenly by INS and was accruing unlawful presence so I left to do consular processing to come back in under h-1b. However, upon my return, the MTR was approved and the unlawful time accrued was no longer there as per law. This is why this time, I would not check Q38 due to unlawful presence. It's the working without authorization that is bothering me and my fear of them finding this out during the interview. Do you think I should check this box even though this happened long time ago while on f-1 and have not violated conditions of the new h-1b? If i do check it, can that upset the VO and lead him to deny my stamping?"
ferari: "its a silly question but i was wondering if the lawyer can do any harm to the case as it's already been approved and i am handling the case not him.but i have all the proof that i tried to contact with him so many times?"
Andrew MacDonald Wilson: "argchr--You always ahve to answer any question on the DS-156 accurately and honestly. if you knowlingly and purposefully misrepresnt information as part of the vsia process, you could be charged with fraud and have a lifetime bar to coming to the U.S. Working w/o authorization while in F-1 status does seem to be a violation of your F-1 visa."
Andrew MacDonald Wilson: "pinkish: "I am about to have my visa restamped next year.But an unfortunate event happened, I was arrested for DUI last month.My lawyer told me that my case will be dismissed, court hearing will be on Dec. 7.No one was hurt during the incident. My question is, is it safe for me to go home in the Philippines and have my visa restamped?I know I have to say "yes" to the question in the form where it's asked "have you ver been arrested" but I am hoping to get more tips. I've been reading about cases with DUI but I am not clearly sure of the real scenario. Thanks.""
Jill Apa: "Pinkish - please go ahead with your questions."
argchr78: "Can you tell me why working w/o authorization while on f-1 visa is not a violation of visa terms? I understood that f-1 cannot engage in unauthorized employment. What does the application refer to as "violation of visa terms"?"
Andrew MacDonald Wilson: "Pinkish--A DUI sgould not rende ryou inadmisisble to the US. You should still be abel to obtain your visa, but you will need to bring court disposition paperwork to show exactly what happened with the charges. if this is your first incident, this should not render you inamdisisble. if you have multiple incidents related to alcohol, this could cause a delay in visa processing as you could be looked at for health related reasons for admissibility."
Jill Apa: "Ferari - Can't predict, but it can be a problem when there is a lawyer's name attached to the case and all the people involved, including the government do not know that you're handling it alone. I can lead to miscommunication and you may miss certain documents - remember that the documents are usually sent to the lawyer, not the petitioner."
ferari: "thankyou jill for your answer"
pinkish: "I am about to have my visa restamped next year.But an unfortunate event happened, I was arrested for DUI last month.My lawyer told me that my case will be dismissed, court hearing will be on Dec. 7.No one was hurt during the incident. My question is, is it safe for me to go home in the Philippines and have my visa restamped?I know I have to say "yes" to the question in the form where it's asked "have you ver been arrested" but I am hoping to get more tips. I've been reading about cases with DUI but I am not clearly sure of the real scenario. Thanks.""
ferari: "thanks"
argchr78: "Hi Pinkish, if I may, a friend of mine had the same issue. He was charged with dui 2 years ago and was arrested for one day. he went to court and the case was dismissed I believe but his arrest record is there. He went to get his h1b stamped and the VO sent him for a physical evaluation and he needs to give the results to the VO"
Andrew MacDonald Wilson: "argchr78--I think working w/o authorization while in F-1 status is a violation of your F-1 visa terms. i do not think I can tell you why it would not be a violation of of your F-1 visa terms."
argchr78: "ok, sorry i misread your answer"
pinkish: "hi argchr78, thanks"
pinkish: "may i know from what country your friend is?"
argchr78: "colombia"
pinkish: "i see.but did he have his visa stamped successfully?"
argchr78: "Andrew, do most VO's reject a stamping when someone says he or she violated visa terms?"
pinkish: "it is really painful"
argchr78: "I have not heard back yet, I should know by the end of this week"
argchr78: "He's bee there for 2 weeks"
nidkar: "Hi,"
nidkar: "I came to US on H4 visa March 2008 , I got my H1 approved by compnay A in Oct 2008 ."
Jill Apa: "Pinkish - if the case is not yet concluded, I would suggest bringing a letter from your criminal defense attorney explaining that. Also, if your attorney anticipates that the case is going to be dismissed, I would include that in the letter as well."
argchr78: "Jill since Andrew left the chat, can you answer my last question please?"
frank999: "hi Jill and Wilson."
Andrew MacDonald Wilson: "argch--It really depends on the case and the specific facts of the violation etc. It is not a black and white issue of yes your visa will be denied or no it will not be an issue at all. It is a definte issue though that will need to eb addressed if you apply for a vsia and a full explanation as to how, why etc. you worked w/o permission. In general, it should not be a ground of inadmisisbility for you for an H-1B visa but the conusdlar office rcould look at previous visa application and ask why it was not disclosed then etc."
Andrew MacDonald Wilson: "frank--Good afternoon."
argchr78: "I understand the consequences of not disclosing this, but if i were to take the risk, can they easily find out in their computers about my work without authorization. There is a backlog of my eb3 and i have no valid stamp to travel and I want to go see my family"
frank999: "Good afternoon Wilson, Is there any significant change in rule for canadian wish to work in usa in TN1 visa? Initially Tn1 valid for 3 years for canadians?"
Andrew MacDonald Wilson: "Frank--if the person qualifies and the US employer requests 3 years, a TN may now be approevd for Tns. What occupation?"
frank999: "thanks wilson , for computer programmer analyst."
Andrew MacDonald Wilson: "Frank---programmer can be a difficult TN because programming is explicity prohibited for Tns under NAFTA. Would your position fall udner Computer Systems Analyst or Software engineer?"
Jill Apa: "Frank - do you have a bachelor's degree or at least 12 years related professional experience? The H-1B cap has not yet been hit so if the TN is not a good possibility, the H-1B may work for you."
frank999: "yes Wilson my work falls in coputer system analyst.If canadian want to visit for short duration in B2 at the airport POE ,which douments he needs? or he has to answers orally? or he has to keep documents?"
Andrew MacDonald Wilson: "Frank--You have to provide information on the purpose of your vsit, where you will go, what you will do and evdience of ties to return to canada (residence, employment, family if applicable etc.)"
argchr78: "how difficult is it to change from eb3 to eb2?"
argchr78: "i don't have a master's"
Andrew MacDonald Wilson: "argch---Depends on the permannet job offer, its requiremnts, your credentials etc. AN Eb-2 could be a position that requires a bach and 5 yrs experience. Have you been able to file 485 paperwork yet or still waiting for your PD to become current?"
argchr78: "waiting for PD to be current. I have July 2007 as PD"
argchr78: "my i-140 is already approved"
Andrew MacDonald Wilson: "argchr---So traveling under advance parole is not an option right now."
argchr78: "I don't think so, i has no AOS pending"
argchr78: "can the 5 years exp count with my same employer?"
Jill Apa: "Thank you to everyone for participating in our chat. Our time is unfortunately expired for today. Andrew and I will be back next week to answer more questions."
Andrew MacDonald Wilson: "Our time is up for today. We will be back next week."
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