|
Date: August 26, 2002
Host: Andrew Wilson and Rex Velasquez 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 with attorneys Wilson and Velasquez on August 26, 2 p.m. Eastern (1 Central, 11 Pacific). Mr. 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/
Rolando Rex Velasquez is the Managing Partner with the immigration law firm of Jon Eric Garde and Associates. He was previously the professor for Immigration Law at the University at Buffalo School of Law. Mr. Velasquez received his J.D. from the University at Buffalo School of Law where he was the recipient of the Connelly Award for Excellence in Trial Advocacy. He earned his Masters in Business Administration through the Executive MBA Program from the University at Buffalo School of Management. Mr. Velasquez has an extensive background in immigration matters. His immigration experience includes over nine years of government experience with the US Immigration and Naturalization Service, including seven years as an INS Trial Attorney (prosecutor). He was hired through the Attorney General's Honors Grad Program. He has traveled to other cities throughout the country on behalf of the INS litigating Immigration Court cases before leaving government service. Mr. Velasquez served as one of the designated Special Interest (High Profile and Anti-Terrorist) counsel for INS.
Live Chat Transcript Andrew M. Wilson: "Good afternoon joa11. Do you have a question?"
joa111: "hello, I have a question"
joa111: "I will soon marry a United State's Citizen. I'm an alien who overstayed a tourist visa. Will I need to show immediately to INS with I-130 and I 485 my new husband's Federal income tax return for recent 3 years? Which years he has to show? We've lived together like a married couple for 1 year (common law marriage), he put me on his income tax return in 2001. But we are waiting for my divorce. Now we know that the he has to fix his tax stuff. Will that influence my living and staying here? What all we have to do?"
yamehta: "Hi"
Andrew M. Wilson: "Yamehta: Good afternnon. Do you have a question?"
Rolando Rex Velasquez: "Hello, Yamehta. Do you have a question for us today?"
yamehta: "My labor certification was approved under 245(i) and my lawyer has filed for i-140 at the same time I've received my removal proceedings in the state of Connecticut(cont)"
yamehta: "Now my lawyer in CT says I should file i-485 with the judge in CT and my immigration lawyer says we can file it in Vermont office could you kindly solve this confusion?"
Andrew M. Wilson: "Joa: When you say "fix his tax stuff", what does he have to do?"
yamehta: "Moreover, my sponsor's financial status wasn't very good in the year 2000-2001."
yamehta: "Question: will this affect my application for a green card?"
Andrew M. Wilson: "Yamehta: Your employer sponsor will have to show the ability to pay your salary. Will that be possible? What size employer is it?"
yamehta: "It is a Super 8 motel. They've paid enough in the renovations and in franchisee fees but they've enough cash in bank."
joa111: "I have no idea what we and where and how should start. I think we will annul our common law marriage. I'm married in foreign country and waiting for divorce. I learned this all only recently when I started look at what is needed for INS after marriage."
Andrew M. Wilson: "If they have enough money through proof on tax returns or a corporate bank account, you should be fine. Also, that is a big company with more than 100 employees, so that should work in your favor as well."
Andrew M. Wilson: "Yahmeta: What route is your attorney taking with the I-140 and adjustment? What is the basis for you being in removal proceedings?"
Rolando Rex Velasquez: "Joa: A foreign national who properly gets admitted to the US, but overstays the temporary period authorized, may seek adjustment of status from within the US if married to a USC. That's for starters..."
yamehta: "It is not a big company; it is a motel with a staffing of about 16 to 17 employees."
Andrew M. Wilson: "Joa: You will absolutely need proof of the dissolution of your earlier marriage before you could file any paperwork with INS."
Rolando Rex Velasquez: "Your spouse who will be filing the Affidavit of Support, needs to provide the last 3 years of tax returns starting with the most recent tax year."
Andrew M. Wilson: "Yamehta: But it is a nationally recognized chain isn't it?"
Rolando Rex Velasquez: "We are not tax experts, so if you think there are issues regarding his income tax returns, talk to an experienced accountant about that part."
Andrew M. Wilson: "Hello Emily and Steve. Getting married and filing for a green card if I remember correctly. How can we help you today?"
Rolando Rex Velasquez: "INS only cares that the sponsor earns enough money so that you don't end up needing public assistance."
emily&steve: "Hi. How are you?"
Rolando Rex Velasquez: "You cannot marry your fiancé until you finalize your divorce."
Andrew M. Wilson: "Good. Are you married yet? Started any paperwork?"
Rolando Rex Velasquez: "You will need to present proof of the divorce when you file your paperwork."
yamehta: "The basis of my removal is working without papers. The INS caught me on my job. I got the continuance my concern is will they still deport me after having my labor certification approved and i-140 filed."
emily&steve: "Yes, Mr Andrew. We have already got married. We do have all the forms with us right now but we don't know what form to send to where.."
Andrew M. Wilson: "Yamehta: There is no guarantee that by having an approved labor certificate and I-140 that they will not act on your removal proceedings. However, those are two big things in your corner, and they are certainly equity considerations in your favor. The farther you get in the green card process, I think the better you will be with respect to your removal issue."
Andrew M. Wilson: "Emily and Steve: All the INS forms are sent to the local INS office that has jurisdiction over your residence. What city and state do you live in?"
yamehta: "Thanks, Mr. Andrew."
Andrew M. Wilson: "Yamehta: Good luck."
Rolando Rex Velasquez: "Yamehta: If your I-140 gets approved while in proceedings, you may be able to file the I-485 with the Immigration Judge."
emily&steve: "We live in California in the city of Vallejo."
Rolando Rex Velasquez: "I'm not sure how unauthorized employment is going to impact on your case off the top of my head."
Andrew M. Wilson: "Emily and Steve: Is that near San Diego or L.A. or further north?"
yamehta: "Thanks, Rolando."
Rolando Rex Velasquez: "emily&steve: are you close to SF, SD, or LA?"
emily&steve: "we are close to sf; 40 miles from there."
joa111: "After my divorce I get marry here. Which paper do I need for INS? I'm worried about what INS will say about income tax return in 2001 when I'm there already like his wife."
Andrew M. Wilson: "Most likely then all of your I-485 adjustment paperwork will be filed with the San Fran office. I would call and confirm their procedures so you know you are filing correctly."
Rolando Rex Velasquez: "Joa111: Assuming you have no other complications in your immigration history, to file a complete application packet you will need to file the following forms: I-130, I-485, I-765, I-864, & G-325."
Andrew M. Wilson: "Joa: I do not think INS will have a problem with you listed on the tax return. Him filing a tax return is very important though."
dadra: "Hi, Mr. Andrew Wilson."
Rolando Rex Velasquez: "The I-130 is the petition filed by your USC spouse petitioning you."
emily&steve: "We were thinking of filing with the Sacramento office."
Andrew M. Wilson: "Dadra: Do you have a question?"
Rolando Rex Velasquez: "The I-485 is the application for adjustment of status to that of lawful permanent resident."
Rolando Rex Velasquez: "The I-765 is employment authorization application."
dadra: "I just wanted to know some details as to how I could file for a extension of the work permit after getting divorced."
Rolando Rex Velasquez: "The I-864 is the Affidavit of Support."
Rolando Rex Velasquez: "The G-325 is a biographic data sheet."
dadra: "You said that I should get work visa."
Andrew M. Wilson: "Emily & Steve: Are you closer to Sacramento? Best thing to do is to call either office and ask which has jurisdiction over your residence."
Rolando Rex Velasquez: "Hello Dadra. Do you have work authorization now?"
dadra: "Did you mean like a h1-b on my own with employers sponsorship?"
Andrew M. Wilson: "Dadra: What stage at you at with immigration proceedings?"
emily&steve: "Oh, okay."
dadra: "Can I not file for a extension of EAD 1-765 on my own?"
dadra: "Yes, I do have EAD RIGHT NOW."
dadra: "But it expires next year in April."
emily&steve: "Mr. Andrew, is it better that we type out the forms or write them?"
dadra: "So I want to know if I could file for a extension without still being married."
dadra: "Also, you said that I could get the green card in the mail. Does that mean being divorced will not stop the green card proceedings?"
Rolando Rex Velasquez: "Dadra: is your EAD based upon a pending application for adjustment based upon marriage to USC?"
Andrew M. Wilson: "Dadra: I am assuming you got your EAD based on a I-485 adjustment that is pending? If so, when will the I-485 be approved? Any time frame from INS?"
dadra: "Well, we applied for the green card this year in Feburary."
dadra: "Mean while also applied for the work permit and got the work permit in April."
dadra: "No we didn't get any time frame."
Andrew M. Wilson: "Emily & Steve: Typing is better if you can do it."
Rolando Rex Velasquez: "Emily &Steve: Nothing in INS instructions say to type, but if your handwriting is illegible..."
dadra: "I don't know what the usual time is for such an application to get approved in the Texas ins center."
Rolando Rex Velasquez: "Many of the forms can now be prepared online on the computer."
Andrew M. Wilson: "Dadra: INS will not know that you are divorced, unless your husband informs them. If you get divorced before you receive the green card, there are several problems you could run into that could hinder you from getting the green card."
Rolando Rex Velasquez: "Joa111: you've been awfully quiet. Do you still have other questions?"
dadra: "We did get the EAD's though, doesn't that mean that the 1-485 is approved?"
Rolando Rex Velasquez: "Nope, approved EAD means I-485 not approved yet."
Rolando Rex Velasquez: "Approved I-485 means you don't need EAD anymore."
joa111: "INS will not ask why I'm already on his income tax even I couldn't be his wife? Isn't it a reason, for example, for my deportation etc? That we lie...."
Andrew M. Wilson: "Dadra: Your green card is based on marriage to your husband who is filing for his green card. If you get divorced before that is final, your green card is in jeopardy."
dadra: "Okay, so does that mean that I cannot apply for the work permit extension either?"
joa111: "Yes, I'm still worried."
joa111: "Or I'm afraid, sorry my English."
dadra: "Can you please tell me what the time is for the 1-485 to get approved these days, after getting the EAD's"
emily&steve: "For the past year and a half, my wife been traveling back and forth to see me. I was here on july 29 on a visa waiver and we got married 2 weeks later. Is there gonna be any problem?"
joa111: "You know, I've never done anything against law and now…overystaying..and now this."
dadra: "Is there any way at all that I could save my situation any way, without showing that I am still married?"
Andrew M. Wilson: "Dadra: If your I-485 is still pending, you probably could still file for an extension of your EAD. However, if they ask questions about qualifying based on a pending I-485 due to your marriage, it may get tricky. Also, they may question the different addresses. Also, that green card is going to come to his address, how would you get your hands on it?"
joa111: "More, my husband with who I'm getting divorce, Im afraid that he will inform INS that I'm here illegally. I've been getting divorce more 1 year."
Andrew M. Wilson: "Emily and Steve: I do not think they will give you a hard time for that. Every office is a little different, but I do not think that will be a huge problem."
dadra: "Well, if I could send in a forwarding address wouldn't that work?"
joa111: "More questions: do we have to fix this income tax before visiting first time INS? Or do we have a time for later?"
Rolando Rex Velasquez: "joa111: again, we're not tax experts. Issues such as - do you reside in a state that recognizes common law relationships? Is it a misrepresentation on a tax form to declare a common law dependency?"
dadra: "If I don't change the address, how will it make the situation better, if I file from the same address as his?"
emily&steve: "My wife still has until Nov. 29 on her visa. When do you think is the right time to file and how long would it take?"
Andrew M. Wilson: "Dadra: You may be able to get through the entire process and receive the green card. There really is no way to predict one way or another. You must realize though that you are eligible for a green card based on your marriage. When that is terminated, your ability to obtain that green card is in serious doubt. There is no way to say yes or no on whether it will work. If INS asks for an interview or discovers that you are no longer married, you may not get that green card."
Rolando Rex Velasquez: "These are running through my mind, but if you are asking if it's an INS issue, then no."
Rolando Rex Velasquez: "I presume you're not getting an immigration benefit by being a declared dependent on a tax form."
Rolando Rex Velasquez: "Your best bet is to consult a tax expert like an accountant or tax lawyer."
dadra: "Okay, what is the time frame in your best knowledge that the Texas INS take to send in the approval for the 1-485?"
joa111: "I know that we have to fix tax with tax expert. I'm curious how INS look at that."
Andrew M. Wilson: "Emily and Steve: You should file as soon as you can get the paperwork ready. It could take 150-250 days to process."
dadra: "How long does it take for the green card to come after the approval?"
Andrew M. Wilson: "Dadra: You should have a receipt from the Texas Service Center that shows current processing times. They change often, so your receipt will be most accurate."
emily&steve: "Can my wife go to school at the moment before I file the paperwork?"
dadra: "Okay, sir, so how do I save my status in the USA? Is there any other way other than getting a h1-b visa?"
dadra: "Is there any other way or chance that I could stay legal in US without being married?"
Andrew M. Wilson: "Emily and Steve: She may not have the status to go to school. I would speak with the school though, because, again, they all have different rules and regulations for foreign nationals."
Rolando Rex Velasquez: "Joa111: Again the INS main interest in the tax returns is in making sure your soon-to-be spouse earns enough money to support the household."
emily&steve: "Is it true that there is strictly no change of status on a visa waiver program?"
Andrew M. Wilson: "Dadra: It is impossible to say without knowing a lot more about your situation. If you have a degree and a job offer, there may be a fit for an H-1B. To learn more about your options, feel free to visit our web site at www.srs-usvisa.com"
Rolando Rex Velasquez: "emily&steve: no change of status off VWP."
Rolando Rex Velasquez: "You can pursue adjustment to LPR status based upon marriage to USC."
dadra: "I have both but my employer will not sponsor me; they don't sponsor workers."
Rolando Rex Velasquez: "Hello Mark44, can we help you today?"
dadra: "Is there a way to self sponsor on the basis of a job?"
Andrew M. Wilson: "Emily and Steve: Correct. You can adjust based on marriage, but you cannot change to an F-1, H-1B etc. Since you are married, the foreign national (whether wife or husband) should stay in the U.S. while you file your paperwork and until you receive your approved I-131 advance parole."
dadra: "Can I file for H1-B without an employers sponsorship?"
Andrew M. Wilson: "Dadra: Self sponsor really does not exist. The only thing you could possibly do is invest and start a business; that requires a lot of money though."
dadra: "I have a masters in business and I will be starting work soon."
dadra: "Okay so in your best opinion right now my only way to salvage my situation is either get H-1B or stay married?"
emily&steve: "Mr. Andrew, what is a f-1 or h1-b?"
joa111: "Thank you, Rolando and Andrew."
Narj44: "Hi Mr. Velasquez, I have been out of status for 5 years (had an F-1 visa); my I-94 says D/S. I know the 3 or 10 year ban would not apply to me till an Immigration Judge or an INS officer says so. I want to go back to my home country to visit my family and come back with a work or tourist visa; do I have any chances? (I am single)."
Andrew M. Wilson: "F-1 is a student. H-1B is a work status/visa. You do not need to worry about those. You should focus on the I-485 adjustment of status process for the green card."
Rolando Rex Velasquez: "Ooooh, you gotta be careful."
Rolando Rex Velasquez: "When you go back to your home country and apply for a visa, you're going to have to disclose your prior status."
Andrew M. Wilson: "Dadra: I can only comment on your immigration issues. If you stay married, your chances of receiving your green card are better. If you want to get an H-1B, you will need a job offer from a U.S. company and show that you have a degree or its equivalent."
joa111: "When I overstayed tourist visa, can I leave US and come back? Can I get back? Or I should wait for marriage with USC and then I can travel?"
Rolando Rex Velasquez: "That will probably prompt the interviewer to ask you about school, how long you attended, how long you stayed in the US."
dadra: "Okay sir thank you very much, I appreciate your help.
God Bless You."
Rolando Rex Velasquez: "Given your initial question, if a DOS employee hears that, your chances of an approved tourist visa are slim."
Andrew M. Wilson: "I am sorry that we are out of time. dadra---Good luck with your decision. I wish their were easier answers for you.
Emily and Steve: Call the INS office to see which has jurisdiction and to get filing procedures. We will be back a week two weeks from today. No chat on labor day."
Narj44: "Mr. Velasquez, yes, I have been going to school and got an MS degree 6 months ago but because the way I applied, I do not have an I-20."
Rolando Rex Velasquez: "What kind of work visa were you thinking of anyway?"
Narj44: "I do not know, probably an H-1 or even an F-1 since I would like to do a doctorate."
emily&steve: "Mr. Andrew, last question please. WHat do you think is my wife's chance of living here permanently?"
Rolando Rex Velasquez: "Arguably, an I-94 stamped "D/S" will not trigger a finding of unlawful presence. But a DOS interviewer can still deny you a visa after hearing that you failed to get I-20's all along to preserve your status."
joa111: "Thank you."
Rolando Rex Velasquez: "Emily & steve: sorry, Andrew signed off, but from what I've seen, your wife's application appears approvable."
Rolando Rex Velasquez: "Just don't travel abroad until she gets her status."
Rolando Rex Velasquez: "Mark44, why didn't you get I-20's all along while going to school?"
Narj44: "Mr. Velasquez, I got sick (depression) and time had gone by, I was out of status, and decided to apply to a university as a citizen (I do not know why I made that decision)."
emily&steve: "Thank you so much Mr. Rolando. I feel a little relieved now. God bless you. Thank you again."
Narj44: "Mr. Velasquez, I guess I have more chances of staying here marrying a US citizen \ here, don't I? Or, in your opinion, what would be the easiest way to fix my status here?"
Rolando Rex Velasquez: "Well, all I can say is that a false claim to US citizenship constitutes a permanent ban from the US if done for any purpose/benefit under immigration laws or any other Federal or State law. So the issue is whether your false claim qualifies as a Federal/State purpose. You should have a full consultation with an experienced immigration attorney that is protected by attorney-client privilege."
Rolando Rex Velasquez: "That way you can discuss confidential matters not disclosable in a public chat."
Rolando Rex Velasquez: "FYI - Student visa abuse is a ground of inadmissibility for 5 years after date of violation."
Rolando Rex Velasquez: "Sorry if this isn't the news that you wanted to hear, but I hope I'm pointing you in the right direction."
Rolando Rex Velasquez: "If you feel comfortable with it, you can post a question on the Immigration message board, or chat again online next week."
Narj44: "Mr. Velasquez, that is hat I wanted, to go into the right direction, thank you very much for your input!"
Rolando Rex Velasquez: "Still, I recommend you have a consultation with an experienced immigration attorney. You're welcome!"
Narj44: "I will Mr. Velasquez. Have a good one. Thank you again."
|
