Immigration Chat Archive

Date: February 23, 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 February 23rd, 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

janRN: "Hello, i'm a nurse in the philippines, came here as tourist last nov. 06 and was able to file for I-140,I-485 & EAD last July 07 and began working in a hospital. I renewed my EAD last July 08 and on Aug 08, via my lawyer, it was approved and that card was ordered for production but until now i haven't received any card from USCIS neither my lawyer. I constantly inquiring on my lawyer but he recommended to just wait for the GC and not to reapply. Unfortunately my I-140 was denied because of Posting requirement issue. Right now we filed for MTR and result is still pending. Can I still work while the decision is still pending? My lawyer advise me to just work unless he say so. My I-485 is still pending. What's the best thing to do at this point since there's a retrogression, because my lawyer's suggesting to just re-apply for I-140 but I have to go home to Phil."

Adotfriz: "Hello, I have a complicated and in depth question concerning my boyfriend. My boyfriend is originally from Mexico and came to the United state when he was five. His entire life he has applied for residency and been denied. He has no accent when he speaks English, and looks/dresses extremely professional. He has also had jobs ranging from a sous chef at Smith and Wolensky in New York, worked at American Express, and is now working at the Ohio State Medical center. He is also close to completing his bachelors in pre-med at Ohio State. Although much of this is hard to believe, He has found ways around everything in order to fulfill his dream of becoming a doctor. He is, however, still very much illegal and I fear we will hit a wall when it comes to applying to medical schools. I suppose my question is, what is the best way for him to apply for residency? I feel this is an extreme case and also that he has conquered and completed so much. However, technically he has done everything illegally since he is not a citizen. We have been together for two years and I am now feeling comfortable with marriage but would that significantly help his chances of becoming a resident? He also has two sisters who are U.S. citizens. Does it matter if he has family members that are legal? Are his chances better if he has graduated college? I have no idea what our next step is and would appreciate any advice."

blueidwolf: "I am engaged to my fiance from Algeria. He was in trouble and served 10 years in prison. Will this keep him from being able to come to the states on a fiance visa to be with me? I would appricate any information you could give me. Thank you, Blue"

Modoukah: "Hello, I would like to get information about how to get back to the United States. I was living there for thirteen years and my father got sick, thats what brought me back here.I tried once but i was denied a visa back to the United States by the United States Embassy in my country, The Gambia. I had been working there for a long time and was paying taxes,married to a United States citizen,law abiding and would like to get information and help regarding how to get back to the United States.Your cooperation would be highly valued. Thank you"

tammy 69: "my husband and 2kids applied for asylum 2005 and are permanent residents of the US.i had tried to join my family and i was refused a visa to join them, i have lived in the US before . i am now stuck in africa without my family, how do i get a visa to join my family."

Hope888: "I'm in removal proceesings after my asylum was denied at BIA and I appealed to 4th circuit court. While the case still pending, I married a US Citizen. My lawyer filed the I-130 petition and asked for a rehearing and to have the case remanded back to immigration court. It was also denied. Meanwhile I asked another lawyer to reopen the case with immigration court and it was also denied. They said it was filed umtimely. I asked three diffirent lawyers and all they said that I have to get out of the country and file for the waiver because they won't adjust my status here even with the I-130 approved. Right now we're still waiting for the I-130 that has been transfer to local office but we are not receiving any update from them. My question is, What are my chances to get my status straight? Any advice would be greatly appreciated."

brahmanlife: "I am the derivative beneficiary of a petition filed on behalf of my father by one of his USC brothers, i have already turned 21 this past year hopefully in the next month or so our case number will be up, well I am wondering if i have actually been maxed out? If so what are my options? Thank you."

Jill Apa: "Adotfriz: "Hello, I have a complicated and in depth question concerning my boyfriend. My boyfriend is originally from Mexico and came to the United state when he was five. His entire life he has applied for residency and been denied. He has no accent when he speaks English, and looks/dresses extremely professional. He has also had jobs ranging from a sous chef at Smith and Wolensky in New York, worked at American Express, and is now working at the Ohio State Medical center. He is also close to completing his bachelors in pre-med at Ohio State. Although much of this is hard to believe, He has found ways around everything in order to fulfill his dream of becoming a doctor. He is, however, still very much illegal and I fear we will hit a wall when it comes to applying to medical schools. I suppose my question is, what is the best way for him to apply for residency? I feel this is an extreme case and also that he has conquered and completed so much. However, technically he has done everything illegally since he is not a citizen. We have been together for two years and I am now feeling comfortable with marriage but would that significantly help his chances of becoming a resident? He also has two sisters who are U.S. citizens. Does it matter if he has family members that are legal? Are his chances better if he has graduated college? I have no idea what our next step is and would appreciate any advice.""

Adotfriz: "Hello"

Jill Apa: "Adotfriz- if your boyfriend last entered the U.S. without a visa, he has a very hard road ahead and one that may not get him where he needs t obe under the current state of the law. In terms of residencies, he cannot work if he does not have work authorization. He cannot hold himself out as a U.S. citizen or permanent resident or even a temporary visa holder who has permission to work. If he does, he could complicate his case much more. If you got married after being together for two years, it will likely be seen as a legitimate marriage, but he would not be able to get a green card from inside the U.S. if he last entered illegally. If he overstayed a visa, marriage will cure that problem. If the last entry was illegal, however, he will have to leave the U.S. to get a visa from Mexico. Upon his departure, he will trigger a 10 year bar to his return. Siblings who are permanent residents or U.S. citizens will not help him in the immediate future. Unless the law changes, or unless he had green card paperwork filed for him by April 30, 2001, there is essentially no relief from the problem."

Adotfriz: "Well he entered with a tourist visa with his mother in 1989 and never returned back. So he really didn't enter the U.S. illegally, but after that visa expired then yes, he has been here illegally ever since then..does that matter?"

Jill Apa: "Adotfriz - that makes a huge difference. In that case, he is still considered "illegal" now, but a legitimate marriage to a U.S. citizen will allow him to apply for a green card from inside the u.S. without having to leave and trigger the 10 year bar to reentry."

Adotfriz: "Oh well that is better news"

Adotfriz: "Do you know of any other things that the governemtn takes into account, other than just marriage, when is comes to approving a green car. Like I stated earlier, he has a tax i.d. number, and has always paid taxes. He is also a Junior in Pre-med at Ohio state. Do you think any of these things would benifit him?"

Jill Apa: "Adotfriz - obviously, marriage is what starts things off. If you really want to marry for the right reasons and you are in a legitimate relationship with this person, you can file the appropriate immigration paperwork, which will include an I-130 petition and an I-485 application."

Jill Apa: "Adotfriz - immigration does have the right to deny a green card application even though the person may be eligible under the appropriate statute. This is called a decision in "discretion". The fact that he came here as a child and had no other choice but to overstay a visa in order to be with his mother is something that they acknowledge. The fact that he has finished school is another plus. The only thing that may hurt him is if he ever used false documents to obtain any type of benefits or whether he's ever lied on any kind of applications to say that he is a U.S. citizen."

Adotfriz: "Yes, it would definitely be for the right reason. So even if he has entered legally into the country, but has been here for 20 years illegally, he still is eligible for a green card by marriage without having to leave the country..correct? Well someone helped him out at Ohio State and put him as an international student. Therefore he is paying international fees , and not claiming to be a citizen. However, at the current job he has, yes he has lied with a falsa soc. security number which apparently was never checked."

Adotfriz: "So presenting a fake soc. security number in order to to be employed in the various places that he has worked is the extent of anything i know of"

Jill Apa: "Adotfriz - you are correct about the marriage and the fact that he would not have to leave to get the visa under these circumstances. You are also correct that the use of a fake social security number in order to obtain employment could pose a serious problem. I would encourage you to consult with an experienced immigration lawyer first before completing any of the required paperwork."

rob566: "Can you recommend somebody with waiver experience with Russian embassy (my wife is a K1 overstay)."

Adotfriz: "Alright thanks, one last question. After a year he was lloking at going back to mexico to attend Medical School in Guadalajara. If he returned, would it be better to marry here in the U.S. prior, or in Mexico. and then try to return once he finished school. The only thing is, if he went back to Mexico and then tried to return, would the governement still take into account the time he spent in the U.S. because there would still be record of him working at the Ohio state medical center and of him earning his bachelors here too. Right?"

Jill Apa: "rob565 - I cannot recommend someone that has specific experience with an embassy in Russia. Many immigration lawyers have experience with the waiver process though."

Jill Apa: "Adotfriz - if he returns, regardless of the reason, before he is approved for a green card, he will be barred from returning for 10 years due to the fact that he has been in the U.S. in an illegal status for all this time. The only way to try to waive that 10 year bar is to file a hardship waiver through a U.S. citizen/lawful permanent resident spouse or parent. these are difficult waivesr to obtain, so I would not suggest leaving for Mexico unless he is prepared to be gone for the 10 years. The government will certaily know of his whereabouts."

rob566: "Do you know anyone good?"

Adotfriz: "Wow, so even if we were married while he was in Mexico, he would still be barred from returning, or he would be unable to be approved for a green card while down there?"

Jill Apa: "rob565 - try the "find a lawyer" function on this website or try to search for an attorney through the American Immigration Lawyers Association."

Jill Apa: "Adotfriz - he would be barred from returning for 10 years, which means he is not eligible for the green card once he steps outside of the U.S., regardless of his marital situation."

Adotfriz: "Oh alright, that's pretty extreme. Well thank you for your time and advice."

Andrew MacDonald Wilson: "Good afternoon Hope."

lgr1: "I need to renew my US Passport and state that I now have another citizenship, with Canada. Im US born and married a Canadian in 2000. While living in Canada with my husband I decided to become a citizen (2007) to strengthen our family bond. I also know Canada allows new citizens to maintain their original citizenship. Later that year I moved back to the USA and sponsored my Canadian husband to move over as a legal resident. Hes been granted his visa and now resides in the US with me."

lgr1: "Now that I have to renew my US passport, I need to state Ive become a citizen of another country. I dont know what to write. It is NEVER my intention to give up the US citizenship so I want to have an iron clad document so theres no chance of my passport being denied OR worse, me losing my US citizenship. Please advise what and how to handle the passport renewal."

Adotfriz: "Oh actually, one more question. If we were to marry now, for example, do you know approximately how long it takes to get a green card. I'm sure it probably depends on the person or circumstance, but on average how long? I know nothing about this so I am clueless if it is 2 weeks or 2 years."

Andrew MacDonald Wilson: "Igr--You should be fine as a dual national of the U.S. and Canada. Many people are citizens of both countries at the same time. You may simply provide information that you have become a citizen of Canada and answer any question accurately and honestly."

Andrew MacDonald Wilson: "Hope----Do you have a question?"

Jill Apa: "Adotfriz - It depends on where you live and the processing times there. It could take anywhere from 6 months to 2 years depending on the particular situation."

Adotfriz: "Ok thanks"

lgr1: "Thanks Andrew. All I read (off internet) is to line out a statement and provide documentation on when I became a citizen of another country. I suppose I can be pretty brief in my statement, I was just hoping to find some example. I believe they don't provide me the opportunity to answer questions."

Andrew MacDonald Wilson: "Igr---I do not think there is really an set example that you need. A simple statement "I became a citizen of Canada on...." along with evdience of your CDN citizenship should be fine."

lgr1: "Thanks, I plan to renew this week."

alok00: "Hi!"

alok00: "i can't see any messages"

Jill Apa: "alok - hello. Please go ahead with your question."

alok00: "Jill, i was on H1b. I recently got my GC. I dont have job from last 3 months. Should I eligible for unemployment?"

Andrew MacDonald Wilson: "Alok--How did you obtain your green card?"

alok00: "My GC is based on marriage"

alok00: "I got it based on Marriage"

Andrew MacDonald Wilson: "Alok---Each state is different. You should check with your state's unemploymenty office to see if you qualify under your facts. You need to also looka t ay I-864 affidavit of suppotr issues from your rgeen card paperwork and requiremnts for your spouse to support you fianncially and if that will be an isuse if applying for unemployment."

alok00: "actually my wife's income was not enough so we have used I-864A"

Andrew MacDonald Wilson: "alok---One thing to look at is if the state could go after any money for your 864A sponsor if you apply for unemployment."

alok00: "Actully 864A was my self"

alok00: "i had a nice job when my wife filled for my GC"

alok00: "her income was not enough to sponsor me"

Andrew MacDonald Wilson: "alok----Oh I understand. You used your income as household income because you had been living together for a certian period of time. In that case, I belive you need to check with the unemployment office to see if a permnanet resident is eligible to apply for unemployment."

alok00: "oh ok thanks"

alok00: "so status change will be considered to get the unemployment"

alok00: "from H1B to Permanent Residence"

Andrew MacDonald Wilson: "alok---I believe every state is different with their specific rules. I think you need to contact the office and be accurate and honest with your facts and see if you qualify."

alok00: "got you thanks"

alok00: "one more question - With my mother in law - in the interview of the GC the officer did not stamp i-551 on the passport. They said that u can use i-512L advance parole document. Can she use that paper?"

alok00: "She has to go to India on Wednesday"

Andrew MacDonald Wilson: "alok---When was tis interview? Was her green card case approved?"

alok00: "Yes. the interview was on last friday and her green card got approved"

alok00: "She is planning to come back after 3 months"

Andrew MacDonald Wilson: "alok--If her green card is approved, her advance parole should no longer be valid. It should not be used for travel. She should mnake an INFOPASS appointment and have her passport stamped with I-551 stamp so that she can travel."

alok00: "what if we get the GC by that time and send it to india so that she can use when she comes back. Can we do that? Because she will be coming after 3 months"

alok00: "And we will get it before that"

Andrew MacDonald Wilson: "alok--Remmeber that now sahe is a permannet residnet ofd the U.S. she needs to reside in the US and spend the majority of her time in the U.S. if she does not, she could run the risk of CBP claiming she abandoned her permannet resident status. if she knows she will need ot be outside the U.S. for long periods of time, she should look at the reentry permit."

alok00: "I understand that"

Andrew MacDonald Wilson: "alok--I think it is safer to get her passport stamped before she leaves."

Alex22: "I have a question about the Affidavit of Support documentation. My parents will have an immigrant visa interview soon. I sent all of the required documents to NVC.(originals + copies) as well as I-864 and I-864A forms. Since I am not working I don't have enough income I used the income from my wife. The problem is that the incomes from me and my wife in 2007,2006 and 2005 are not sufficient to meet the poverty guidelines. Starting from September 2008 my wife started to work permanenty full time and now she makes more then enough to reach the poverty guidelines in 2008. I made a copy of my federal tax return and W'2 forms from 2007 year and also I include a few of my wife's pay stubs copies and I submitted to NVC (showing here annual income, weekly income etc..) I was wondering if this(my wife's pay stubs) should be enough in order to show that we have enough income or should I submit more documents from my wife's employer? On the forms I stated my wife's current income(which is more then enough to meet the guidelines) I will me more then happy if you answer this to me. I just wanted to make sure that I am on the right step."

alok00: "What my concern is, if we get her GC here while she is in India and send that GC to India so that she can use it in reentry. Can we do that?"

Andrew MacDonald Wilson: "alok---I have never advised a client to do so so i am not sur eif there would be an issue with doing that. the stamp in er passport is evidence of her permannet residnet status. I would not leave without some evidence of her approval (what if her green card is delayed or does not come in time?)"

Andrew MacDonald Wilson: "Alex---It used to be that tax returns for the past three years were required. Now the focus is more on the last tax return. In addition to the tax return, recent pay stubs aand a recent letter from employer is very useful for the intyerview."

Alex22: "but we didn't make enough income in the last return so now begining sept. my wife started to work and now she makes more then enogh"

Alex22: "can we use the income that she is currently making?"

alok00: "Andrew I don't understand one thing that why the immigration officer said you can use the Advance Parole document while reentry if her GC is approved."

Andrew MacDonald Wilson: "Alex---If the last atx return does not show enough income to meet the gudelines there may be an issue. If htey have been scheduled for an interview that issue has probably been at least initially reviewed, but your wife should absolutely have recent pay stubs and a recent letter from the employer provided. If you have bank accounts/investments that help, those should also be included. Hopefully her recent incoem will be enough, if not they may require a different joint sponsor."

Alex22: "I already sent the pay stubs"

Andrew MacDonald Wilson: "alok--I do not understand that either. if green card is approved, EAD card and advance parole are no longer viable. I know offices that takes those from the individual when approved. THos eoffices then stamp the passport or have the individual make an INFOPASS appt for stamping."

Andrew MacDonald Wilson: "Alex---I mean the most recent pay stubs and most recent letter possible."

alok00: "So basically we can not even use the EAD either?"

Alex22: "I didn't sent the letter, I will give to my parents if the consul ask for that"

brahmanlife: "good afternoon"

alok00: "What are the consequences if we use the EAD while getting the GC?"

Jill Apa: "Brahman - hello. please go ahead with your question."

Andrew MacDonald Wilson: "alok----EAD is no longer valid if approved for permanent residency. I think it is prudent to get the passport stamped before she leaves."

brahmanlife: "my fathers brother petitiioned for him and i have already turned 21 our priority date still has not arrived but if it follows the same then w/in the next month our priority date should be up, my question is did i already age out?"

Alex22: "on the I-864 and I-864A it is asking also for the most current income...so I assume that that is the income that my wifes makes right now"

alok00: "Andrew is there any procedure to take INFOPASS appointment?"

Andrew MacDonald Wilson: "brahmanlife----How long was I-130 pending? How old are both of you now?"

Andrew MacDonald Wilson: "Alex--Correct."

brahmanlife: "my dad is 53yo, it has been pending roughly about 13yrs"

Andrew MacDonald Wilson: "alok--Simply go online at https://infopass.uscis.gov/info_en.php"

brahmanlife: "actually 14"

Alex22: "so I don't think that sould be a problem if the prevous federal tax is not enough?"

brahmanlife: "im 21 in july ill be 22, and my father is gong to be56"

Andrew MacDonald Wilson: "Brahman--I mean the actual I-130 petition. When was it filed and approved?"

Andrew MacDonald Wilson: "Alex---Not sure since it has only been about 6 montsh showing income that meets guidelines. Usually they like to see last tax return that meets guidelines."

alok00: "Thanks Andrew"

Andrew MacDonald Wilson: "Brahman----If your PD becomes current say by July 2009, if I-130 remained pending for more than one year, you should still be eligible to obtain green card under the child status protection act if you move forward for your green card when PD is current."

Alex22: "Thanks"

brahmanlife: "im looking it was receipt may 3 a995"

Andrew MacDonald Wilson: "Alex--Hopefully recent income will be enough, but again, general rule is thaey like to see last tax return meet guidelines."

Alex22: "I understand"

Alex22: "now I am scared"

Alex22: "if they got denided."

Andrew MacDonald Wilson: "Brahamn--When was it approved?"

Andrew MacDonald Wilson: "Alex--There should be the opportunity to addres sany affidavit of support issue and get a different joint sponsor if necessary."

brahmanlife: "sorry it was receipt adn approved it says it says notice date jan 8 1996"

Jill Apa: "Alex - they generally don't issue an out and out denial if the income is not enough. They usually send a request for additional information and tell you that they would want a different joint sponsor."

Alex22: "but the income is more then enough"

Alex22: "she makes more then enough a year"

Hope888: "I'm sorry Andrew just find out th text box"

Andrew MacDonald Wilson: "Brahman---Generally you subtract the tiem the I-130 was pending from your age. if you are less than 21 after that calculation when you are ready to move forward because pD is current, you should still be eligible. if not, you may still qualify from automatic conversion to family based 2B prefernce."

Jill Apa: "Alex - the main thing to remember is that if the agency asks for more information or for another sponsor, you should comply as best as you can since that's when they can deny - they will use the excuse that you failed to comply with their request as the reason."

Andrew MacDonald Wilson: "Our time is unfortunately up for today. We will be back next week."

Alex22: "but"

Alex22: "I sent all of the documents in NVC"

brahmanlife: "thank you"

Alex22: "The NVC told me that the case is completed and they will forward the petition to the embassy"

Alex22: "so, If the NVC says that everthing is fine, then that means that it is?"

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