Immigration Chat Archive

Date: April 25, 2005
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 with attorneys Wilson and Apa on April 25th, 2005, 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

Lukasz: "In January 2004 my wife who is a Permanent Resident in USA filed a I-130 petition for me. I¿m an F-1 student complying with the immigration law (I¿m taking four classes every semester and I will graduate in December 2005). Until now the I-130 Immigrant Petition for Relative was approved and sent to the Department of State National Visa Center where they will assign me (for about three year) a visa number. My question is if I can travel to my home country Poland for the summer break and return without any problems. I heard that filing I-130 makes me an intending immigrant in the eyes of the USCIS. What this means is that I would no longer qualify for non-immigrant intent and therefore might not be admitted to the US. Is this true? Can I go back to my country?"

Bill Mitchell: "I am a UK citizen in US on an L1 visa exp Dec 2006. I married my fiancee - a US citizen - Feb 2005 and would like to apply for residency. I have two questions 1) Can I maintain my L1 status while my application is pending? 2) Do I have enough time to change status overall before my L1 visa expires? Best regards Bill Mitchell"

saurinhiran: "I am Saurin Jani. I work as Statistical and Research Analyst in Hollings Cancer Center, Medical University of South Carolina,Charleston. I would like to get more informaton on Green Card process."

saurinhiran: "I am Saurin Jani. I work as Statistical and Research Analyst in Hollings Cancer Center, Medical University of South Carolina,Charleston. I would like to get more informaton on Green Card process."

saurinhiran: "I am Saurin Jani. I work as Statistical and Research Analyst in Hollings Cancer Center, Medical University of South Carolina,Charleston. I would like to get more informaton on Green Card process."

efg2005: "I came here February 2004 on an K3 visa & K4 for my daugther. My husband who is a US citizen have'nt file the change of status till now. The worst part is that we did'nt get along and I move out of his house, and now he wants to file a divorce. I was thinking of applyng for a working visa since I work as staff assistant in a state government since April of last year. I spoke to our Personnel Officer but he advise me to see an Immigration Lawyer. I also ask my supervisor and the department head about a recommendation that they still need my service, and they said that they are willing to make one for me. My question is it possible that I can apply for a Working Visa? What other option I have? Please I really need help."

melany: "Hi everybody"

efg2005: "Good afternoon everybody"

Jill Apa: "Good afternoon everyone."

Bill Mitchell: "good afternoon"

Jill Apa: "efg2005: "I came here February 2004 on an K3 visa & K4 for my daugther. My husband who is a US citizen have'nt file the change of status till now. The worst part is that we did'nt get along and I move out of his house, and now he wants to file a divorce. I was thinking of applyng for a working visa since I work as staff assistant in a state government since April of last year. I spoke to our Personnel Officer but he advise me to see an Immigration Lawyer. I also ask my supervisor and the department head about a recommendation that they still need my service, and they said that they are willing to make one for me. My question is it possible that I can apply for a Working Visa? What other option I have? Please I really need help.""

Jill Apa: "efg - unfortunately, you cannot change status from inside the U.S. if you entered on a K-3. What type of educational background do you have?"

Jill Apa: "Bill Mitchell: "I am a UK citizen in US on an L1 visa exp Dec 2006. I married my fiancee - a US citizen - Feb 2005 and would like to apply for residency. I have two questions 1) Can I maintain my L1 status while my application is pending? 2) Do I have enough time to change status overall before my L1 visa expires? Best regards Bill Mitchell""

efg2005: "I have a 4 degree college in the Philippines"

Jill Apa: "efg - does your degree directly relate to your current position?"

efg2005: "yes"

efg2005: "i work as a staff assistant in the state governemtn"

efg2005: "i got a career service position last december."

Jill Apa: "bill - you can maintain your L1 status even though you are now married to a U.S. citizen and intend to immigrate because the L-1 allows for "dual intent". Has your wife filed any of the green card paperwork for you yet?"

Bill Mitchell: "Jill, we are about to - trying to find a suitable lawyer to help"

Tara M Wiker: "I am a USC living in Santiago, Chile. I married my Chilean husband a little over 6 months ago, and I have been living and working in Chile for almost a year now. We want to start the process to come to the US together. However, nothing is easy and my husband and I have a few "obstacles". He is 17 years old, he has not finished high school. I know this is a "sticky situation" but we love eachother and I just want some advice. Will it be impossible to get the visa?"

melany: "We went to interview and officer sad that the sponsor's income(my husband - USC) should be more or equal at least 125 percent of the Federal poverty line for EACH 3 last years.Does it right?"

Jill Apa: "efg - depending on the duties related to the position, you may be eligible to apply for a work related status like an H-1B. However, because you cannot change status from within the u.S., you would have to go home to pursue a visa if the application for status is actually approved. You can continue to work under your K3 EAD because the K3 is not yet expired and the marriage is not yet terminated. However, if you are not going to pursue permanent residency through your spouse, you need an alternative plan. I would suggest seeking the advice of an immigration attorney who can review your job duties as well as your resume to see if an H-1B or another nonimmigrant classification is a good fit for you. The good news is that many of the work related visas are reserved for people who are college educated so you likely have a good chance of getting another type of status. I would suggest, however, that you seek professional advice as soon as possible. If an H-1B is a good option, you need to be aware that there is an annual cap so you need to act quickly in order to be able to get yourself in under this year's cap."

Bill Mitchell: "I understand I may receive a work permit relatively quickly but green card can take much longer - should L1 expire I will be subject to advanced parole for visits to UK?"

Jill Apa: "bill - as far as processing times go, it is hard to tell. The I-130s are going pretty quickly, but, depending on where you live, the application to adjust status may take a while. If you are in a large city, chances are it could take a year or two to get to the marriage interview stage. You could use the find a lawyer feature on this website to help locate an attorney."

Jill Apa: "tara - the age difference is one thing that will likely cause more scrutiny of the paperwork - are you much older than your husband?"

Tara M Wiker: "I will be 23 on Friday"

Jill Apa: "melany - there is a requirement that a petitioning spouse earn a certain amount above the national poverty line. The agency generally needs to see the last 3 years of income tax returns - if the income meets the standard currently, but did not meet it in the past, you could submit evidence to show why. Or, if the agency is really going to dig in its heels, you may need to find a co sponsor for the I-864."

Jill Apa: "Tara - that's not too bad of an age difference. Do you have a job and a place to live when you come back to the U.S.?"

Tara M Wiker: "Yes. We will be staying with my parents. And, also, they will co-sign the Affidavit of Support."

Jill Apa: "Bill - yes. If your L1 expires before you are able to complete the green card process, you need to have advance parole before you can travel outside the u.s. Without it, you will not be able to get back in and the agency will consider your application to adjust status abandoned."

triantic: "Our interview went smoothly accept for 2002/2003 (Melany is my Wife). Is there a formal process or law/section we should reference as we submit our 2004 1040 which is over 165K? Finding a co-sponsor is difficult. We are married and I've never used public assistance, and the only 2 years out of the last 10 were 2002/3"

Bill Mitchell: "thank you - my main concern - I visit my children from previous marriage approx 4 times per year in UK - I can file in advance if necesssary for those trips but was not sure if advance pariole is only granted for exceptional cases (death in family etc?)"

melany: "What kind of evidens it could be - it's not so easy to find co- sponsor .My husband makes lot more money than requirements"

efg2005: "Thank you very much Jill for the advice. Now my next move is to find a good lawyer for my case."

Jill Apa: "Tara - keep in mind that you will have to show "domicile" for the I-864. This does not mean that you have to move to the u.s. before your spouse, but you do have to show that you have taken signficant steps toward returning to the u.s. A job offer is always a good indication as well as a place to live. I don't think it will be "impossible" for you and your husband to be able to come back to the u.s., but there are a few issues because of the age difference as well as the fact that you are not currently living in the U.S. I would suggest at least consulating with an immigration atty before you star tthe process so you have a handle on all the issues."

Jill Apa: "bill - in your case, advance parole is applied for with an I-131 application and is granted for the purpose of allowing travel during the adjustment process. It does not require a humanitarian or urgent need."

Jill Apa: "efg - I am glad to provide you with the information. Best of luck!"

guls_27: "my husband has submitted the spouse application one month back for the canada immigration but he still hasnt recieved a file number and cant check the status of the application. how to find out whats happening and how long will it take?"

Jill Apa: "melany - did your husband not make the required salary during the past few years?"

triantic: "I did not in 2002 0r 2003 but far exceeded it in 2001 and 2004"

Jill Apa: "triantic/melany - what was the reason that there were no tax returns filed for those particular years?"

triantic: "tax returns were filed but did not meet the 125% requirements"

Tara M Wiker: "Jill - Thank you for the advice. I am guessing it will not be too easy to find a US immigration attorney in Chile"

triantic: "I was unemployed/underemployed in post 9/11 recession"

Jill Apa: "triantic - you have to explain the reason for the major jump in salary if the previous years did not meet the standard. The agency is just concerned about you not being able to support your wife. They will look at assets as well as salary."

triantic: "so do I send a letter requesting reconsideration by the Immigration officer who interviewed us? those are the only 2 years out of 10 where I was even close and I have never used public assistance etc..."

Jill Apa: "tara - you don't need an attorney in Chile. Most U.S. immigration lawyers represent individuals all around the world and we do it through email and phone correspondence."

Bill Mitchell: "Thank you Jill - last question - so I do not bneed to apply for advance parolefor each trip? I can apply for an overall period spanning several trips until i485 is completely processed?"

Jill Apa: "triantic - did you get a denial or a request for further evidence?"

triantic: "A request for further evidence. She wanted us to find a co-sponsor but I do not want to impose on family"

Jill Apa: "bill - if approved, the I-131 should provide you with permission to travel for an entire year."

guls_27: "Can someone please tell me whats this file number for canada immigration about?"

Bill Mitchell: "fantastic - thank you - you guys ioffer a great service"

Jill Apa: "guls - we unfortunately can't answer questions regarding Canadian immigration - we deal exclusively with U.S. immigration issues. There is a message board on this website for Canadian immigration issues that you can try."

guls_27: "thanks....but the message board was not of much help"

Tara M Wiker: "Jill - How much do immigration lawyers usually charge? How much would a consultation be?"

Jill Apa: "triantic - you may want to consult with an immigration attorney who can review the paperwork as well as the request from the government. The attorney may suggest to try to argue that a co sponsor is not necessary. If that doesn't work, you need to start thinking about who you would ask. I know it seems like an imposition, but if the government is not going to budge on the issue, it may be the only way to get things done."

guls_27: "though i have another question...on us immigration itself if i have a sponsor how long does it take for the visa"

Jill Apa: "tara - fees for immigration lawyers vary from office to office. Best thing to do is to start shopping around."

Jill Apa: "guls - are you asking about a family sponsor or a sponsor through employment? There are many different ways to get to the U.S. and all of them have different time frames."

triantic: "I ran across this - For purposes of demonstrating means to maintain income, the total income, before deductions, in the sponsor's tax return for the most recent taxable year will be generally determinative. See section 213A(f)(6)(B) of the Act. - Which leads me to believe that 2004 is much more important than 2002/3 I may write a letter explaining the circumstances and my history of good employment/self sufficiency"

guls_27: "either of them... i have a first cousin who is having his own buiseness and is also a family"

Jill Apa: "Triantic - Yes, usually the most recent tax year is the one that they concentrate on. However, if there is such a discrepency, they may want to see more of a pattern of ability to support. AT this point, I would not write a letter on your own - if you don't properly address an RFE, the petition will get outright denied. You should consult with a lawyer first - an attorney will know better how to navigate through the system and if there is a proper response to the RFE, the lawyer should be able to take care of that."

Jill Apa: "guls - you can't obtain any type of u.s. immigration status through a cousin. What type of business does your cousin have in the U.S.?"

triantic: "Thanks you for your assistance!"

Jill Apa: "triantic - good luck!"

guls_27: "he has got petrol bunk"

Jill Apa: "pouang - do you have a question?"

guls_27: "and a perfume shop in a mall"

triantic: "Final question, how do we calculate assets for purposes of means testing?"

Jill Apa: "guls - is a petrol bunk the same as a gas station? What would you be doing for your cousin's business? Do you have any type of formal education?"

efg2005: "Jill, I have my I-485 ready to be filed. Do you think its a good idea to filed it?"

Jill Apa: "triantic - the calcuation of assets is tricky - that's another issue that I would take directly to an attorney."

guls_27: "yes it means a gas station and i am a graduate"

guls_27: "would be working for him in his gas station as manager"

melany: "Jill - I'll get the last answer for triantic , if you dont mind..."

melany: "May be a link or so ..."

Jill Apa: "efg - that's a difficult question to answer. if your spouse is intent on filing for divorce, once that happens, you are probably out of luck with pursuing a green card through the marriage. I would suggest that you seek the advice of an experienced immigration attorney who can go over all the issues with you, as well as the timing of things, to see if it is advisable to move forward. You need to be careful about that - the agency doesn't take kindly to people who pursue green card status through faulty marriages."

Jill Apa: "melany - please see above - I think I answered Triantic's last question regarding assets."

Jill Apa: "guls - what type of degree do you have?"

Andrew MacDonald Wilson: "EFG---Have you filed anything yet? Is the relationship likely to end?"

melany: "Thanks , Jill"

guls_27: "i am a b.com student"

Jill Apa: "melany - best of luck!"

guls_27: "i am sorry the person who is a citizen of us is my mothers own brother"

guls_27: "can he sponsor"

Jill Apa: "guls - if you have a business degree (at least a bachelor's/4 year degree) and you intend on coming to the U.S. to manage a business, there may be a fit for you. What is your nationality?"

Andrew MacDonald Wilson: "Pouang----Any questions?"

guls_27: "indian"

efg2005: "Thank you so much Jill."

Jill Apa: "guls - unfortunately, you can't get status in the U.s. based upon a family relationship with your uncle."

Jill Apa: "efg - you're welcome. Best of luck!"

Jill Apa: "guls - do you have any status in Canada right now?"

guls_27: "yeah actually my husband is permanent resident out there and he has applied for my immigration on spouse visa"

guls_27: "i also have a 10 year US mulitple entry visa"

guls_27: "i needed more help on the canada thing"

Jill Apa: "guls - does your husband want to come to the U.S. with you if you are able to obtain status? What type of background does he have and does he have any potential for a job opportunity in the u.S.?"

guls_27: "he is a CPA and yes if he gets a good offer he might move....right now he is banking more on the spouse immigration that he has applied for me"

guls_27: "incase that fails i am sure he has no other option but to move to the US cause thats the other visa that i have right now"

Jill Apa: "guls - I'm sorry we can't help out with the Canadian issues. You can try to contact a firm in Toronto that we use for questions on Canadian immigration - Guberman, Garson & Bush can be reached at 416-363-1234."

guls_27: "well thank you so much for that help....yup let me try them out...do they have any website too"

Jill Apa: "guls - I believe they do have a website. I hope that works out for you. Just remember that if you want to move to the U.S., you can't do it with your visitor visa. You and your husband are both educated and professional people so there may be plenty of options for you to get temporary work related status and then move on to permanent residency through a job offer."

Jill Apa: "pouang - can we help you with a question?"

guls_27: "mine is a B1 B2 multiple entry visa"

guls_27: "I had got this visa through General electric company GE . i had worked for them on job training for 6 months in florida and thats how i got the visa"

guls_27: "is this kind of visa a visitor visa?"

Andrew MacDonald Wilson: "Pouang---Any questions?"

Jill Apa: "guls - sounds like it. If your visa says "B1/B2" on the front, it is just a visitor's visa. Just because the visa is valid for 10 years does not mean that you are permitted to stay in the U.S. for that long. When you enter the u.s. as a visitor or in any other status, you are issued an I-94 card that indicates exactly how long you are allowed to stay. If you overstay that card, you open yourself up to many serious problems."

Andrew MacDonald Wilson: "ak68---Any questions?"

ak68: "I was on H1B visa nad then got marrie3d to a USC"

ak68: "and resigned from my H1B company."

guls_27: "yeah thats right... i had to fill that form...if i visit on that visa and then get my relative to apply for my work permit by working for him... that should work.."

ak68: "Filed for AOS but before the interview"

ak68: "the petitioner withdrew the appl. and"

ak68: "filed for divorce"

ak68: "1) How do I know the status of my AOS appl.It was filed in Fresno, CA"

Andrew MacDonald Wilson: "ak68----Did you file and receive work and travel permission based on your adjustment filing?"

ak68: "yes"

Andrew MacDonald Wilson: "ak68---When do those expire?"

ak68: "04212005"

ak68: "only work permission"

Andrew MacDonald Wilson: "ak68---So it already expired?"

ak68: "after she filed for divorce, I recevied a notice(219 I think) that my Work Permission stand cancelled"

ak68: "yeah"

ak68: "I moved out and changed my address"

ak68: "but after the 219(for cancelleing my work permission), I haven't received any notice"

Jill Apa: "guls - be careful with that as well. If you come here as a visitor, you are essentially affirming your intent to just stay for a short while and then go back home. If you file paperwork to change status to an employment based status very shortly after your entry as a visitor, the agency may frown upon that and find that you had a preconceived intent to find work in the u.s. when you said you were just going to visit. It's not something to play around with - if you have a job offer and want to pursue a work related status, do it the right way by filing the paperwork and getting the visa from your home country. If your true intent is just to visit and look around for a job, that's different."

ak68: "and its almost more then 7 months"

Andrew MacDonald Wilson: "ak68---Well it obviously sounds like your green card paperwork will not go through. Italso sounds like you may not hav eany status to be in the US now. Do you have any other H-1B opportunities?"

Andrew MacDonald Wilson: "ak68---Do you have any receipt notices or your EAD with your A# on it?"

ak68: "I just have my WAC of my H1B"

ak68: "and only the A # for my AOS applicaion"

Andrew MacDonald Wilson: "ak68--What about your EAD?"

ak68: "my H1B WAC # says that the petition was approved"

ak68: "the EAD has only the A#"

ak68: "Does it mean that my H1B is still valid"

ak68: "I did not use my EAD"

Andrew MacDonald Wilson: "ak68---you may want to call a 1-800 number to see if you have been palced into proceedings. the number is 1-800-898-7180 and they will ask for your A#. This may provide you some info if you have been palced into proceedings but do not know. Also, since it does not sound like you have status to be in the US, you should consult with an immigh atty to see if you have accumulated unlawful presence based on the denial paperwork you received."

ak68: "How do I know if any letter or notice was issued to me for my Marg application other then the 219"

Andrew MacDonald Wilson: "ak68---You could also file a FOIA with your local immigration office. has your H-1B approval notice expired? Did the company notify immigration that you no longer work there or have you continued to work there?"

ak68: "its more then 6 months after that notice and I tihnk I have accumulated unlawfull presence"

ak68: "no my H1B is stil valid till 09/202005"

Andrew MacDonald Wilson: "ak68---Have you continued to work at that employer?"

ak68: "yes"

ak68: "but did not get paid"

Andrew MacDonald Wilson: "ak68---So you have continued to work on that unexpired H-1B?"

Andrew MacDonald Wilson: "ak68---Why no pay?"

ak68: "I checkd my WAC # from staus check online and it says the applcaition was approved and nothing beyond that"

ak68: "well, its a consulting company"

ak68: "and I did not get any project"

ak68: "I can take 6 months vacation though in a year"

Andrew MacDonald Wilson: "ak68----if you ahve continued to work under your approved H-1B for the same compoany, that H-1B may still be valid. if you want to extend your ability to staya nd work in the US, probably need to extend that H-1B."

ak68: "but how do I know if my H1B has not been cancelled"

ak68: "my mployer told me(verbally) that he canceled it since I got maried"

ak68: "but when I check the status of my WAC # online(BCIS.gov) ot only says that the applicoation as approved"

Andrew MacDonald Wilson: "ak68---if you have still been working under the H-1B, and the company did not send a letter to immigration cancelling the H-1B, it still should be valid. if the employer sent a letter to immigration saying you no longer work there and they received a cancellation, then it is cancelled."

ak68: "from where can I confirm this cancellation issue"

Andrew MacDonald Wilson: "ak68--Probably easiest with the employer."

ak68: "he's saying it verbally"

ak68: "but he did not gice me any pink slip or any termination notice"

ak68: "gice = give"

Andrew MacDonald Wilson: "ak68--Ask if he sent a letter to CIS."

ak68: "ok"

ak68: "what if he says verbally he did then?"

ak68: "but isn't the employer required to send pink slkip or any termination notice before cancelling the application"

Andrew MacDonald Wilson: "ak68---If the H-1B was not cancelled, it should save you from any unlawful presence issues right now. Any new H-1B opportunities? Verbally does not really mean anything for an unlawful presence analysis."

ak68: "am looking into it"

ak68: "and am sure that I'll get new H1"

Andrew MacDonald Wilson: "We will be back next week. Good luck."

Andrew MacDonald Wilson: "ak68---No one is ever sure. I do not even know what you do. But we will be bcak next week."

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