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Family Immigration

Adjustment of Status, B Visitor Visa, Family Immigration, Green Card

Extend a visitor visa or apply for a green card?

Q: I am a US Citizen, and my mom is a citizen of China. She is here on a B-2 visa for a visit and she’s considering extending her stay or applying for a green card. Which is a better choice?

A: Yes, either extending a B-2 visitor visa or applying for permanent residence (a green card) might be possible for your mom. I’ll list some guidelines below to help you start to think about this situation:

Extending a B-2 visa: B-2 tourist visitors may be granted extensions up to 6 months after their status expires. To request an extension, your mom needs to apply before her current visa expires. I recommend she applies after being in the US about 3 months. When she applies, she needs to provide a reason for her request, and provide evidence of the reason if possible. A common reason for extending a B-2 tourist visa is related to health issues. Sometimes a visitor needs to stay longer because of a doctor’s order, or in order to obtain medical treatment.

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Employment Immigration, Family Immigration, Green Card

My Green Card is expired. Have I lost my permanent residence status? What should I do?

Q: My Green Card is expired. Have I lost my permanent residence status? What should I do?

A. Your status as a permanent resident does not change just because your card is expired. You remain a permanent resident unless your status is terminated by “final administrative order of exclusion, deportation, removal, or rescission (8 CFR § 1001.1(p)). Also, an expired permanent resident card only shows that a person’s card has expired. It does not show that the person’s work authorization has expired (8 CFR § 274a.12(a)(1)).

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Death of Petitioner, Family Immigration, Green Card

Can my friend get a green card if the person who filed is deceased?

Q: My friend has been waiting a long time for her green card. Her brother filed for her a while ago, but he passed away. Can she still receive a green card?

A: The short answer is yes, it may be possible. It is an easier process if your friend lives in the US, but even if she does not live in the US, there is a chance she can get the green card. For the long answer, keep reading!

 

To begin, your friend’s brother is considered a petitioner since he filed an application for her, and your friend is a beneficiary of the application. Previously, the death of a petitioner meant that the beneficiary could no longer receive permanent residency (a green card) except in rare cases where DHS would agree to humanitarian reinstatement. This was referred to as the “widow’s penalty” as many surviving beneficiaries were widows after their petitioner-spouse passed away. Now there is relief available under INA section 204(l) in addition to humanitarian reinstatement. Below is a brief description of the two options.

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Family Immigration, Green Card

Husband is a permanent resident and I have a great job in Italy. Should I get a greencard?

Q: My husband is a permanent resident in the US. I’m living and working in Italy in a job I love. Can I get a green card, and should I? I would like to continue traveling back and forth and working in Italy if possible.

A: Yes, if your husband is a permanent resident (LPR) he can likely submit a petition for you to obtain a green card. Spouses of LPR’s are not immediately eligible, and need to wait until their priority date is current. Right now, the wait is about 1.5 years. While a petition is pending, you could remain in the US only if you had another valid status. You may have trouble traveling in and out of the US while your petition for permanent residency is pending, but travel is possible. You’d have to show that you had intent to return to your country (by showing your job and property owned, etc).

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EAD Work Permit, Family Immigration, Green Card

Green card holder petitioning spouse

Q: I live in the US and my new husband lives in Canada. I am a permanent resident and would like to sponsor my spouse for a green card. How long will the process take, and can he come live with me in the US and obtain a work permit while he waits for the approval?

A: Congratulations on your recent marriage. Yes, green card holders (also called permanent residents or LPR’s) can petition for their spouses, however, the priority dates are not current for spouses of LPR’s. The Visa Bulletin shows that the current wait is about 6 months for these spouses. That means you could submit a petition for your husband, and then he would wait about 6 months initially, and then another 6-9 months for general processing. Filing a marriage petition for your spouse would not in itself give him a status in the US. He could only enter and remain in the US if he has another separate valid visa status. Most likely, he would need to wait in Canada until the process is complete.

If you are eligible to naturalize, that could help speed up the process a bit. Spouses of a US Citizen do not have to wait, and are immediately eligible to apply (meaning they only wait the general 6-9 months.)

 

Family Immigration

How can I change from J1 Visa to H1B?

Q: I am an Indian citizen on a J1 visa in the US. My J1 expires next year, and I’m interested in changing to an H1B visa. How can I do this?

A: You need to find an employer willing to sponsor an H1B visa for you. There are 3 main things to work out as you consider changing from J-1 to H-1B:

  1. J visa holders subject to the 212(e) two year home residency requirement and J’s for graduate medical education without waivers are not eligible to change status to H-1B in the US. You may need to look into a waiver, or consider returning home to India for 2 years.
  2. Your education level and occupation need to fit with the H-1B requirements. USCIS has a list of H-1B requirements here.
  3. Think about the availability of H-1B visas and the timing. H-1B visas work on a lottery system. Employers petition for employees in the spring, and employees who “win” the lottery begin working in October. The amount of H-1B visas is capped at 85,000, and last year 233,000 applied. Yes, ouch! These can be tough odds. However, because you are on a J-1, you may have connections at a University. As you may be aware, Universities and some non-profit organizations are not subject to the 85,000 cap for H-1B visas, and employers can petition for an H-1B employee at any time.

As you can tell, there are several pieces to think about all together in your situation. This list should help you sort out the main considerations, and an attorney could review these areas in more detail and help you or your employer through the process.

Adjustment of Status, Employment Immigration, Family Immigration

*UPDATE* October 2015 visa bulletin helps with backlog

***UPDATE 9/25/2015

[From American Immigration Lawyers Association (AILA)]

Update: On September 25, 2015, the Department of State published a revised Visa Bulletin for October, rolling back the “Dates for Filing” for several visa categories. This “Revised September 25, 2015″ Visa Bulletin supersedes the previous Visa Bulletin for October, which was published on September 9, 2015.

Please note that the following “Dates for Filing” have changed:

Category (9/9/15)
Filing Date
NEW (9/25/15)
Filing Date
Difference
EB-2 China 5/1/2014 1/1/2013 1 year, 5 months
EB-2 India 7/1/2011 7/1/2009 2 years
EB-3 Philippines 1/1/2015 1/1/2010 5 years
FB-1 Mexico 7/1/1995 4/1/1995 3 months
FB-3 Mexico 10/1/1996 5/1/1995 1 year, 5 months

 

October 2015 Visa Bulletin allows some to apply to adjust status years before priority dates are current

The October 2015 visa bulletin has something new to help with backlogged categories! It includes separate charts with new dates for employment-based (EB) and family-based preferences who are adjusting status in the US. Starting October 1st, these I-485 adjustment applicants can apply to adjust status based on dates from this new chart. Those filing for the adjustment of status will be able to apply for work permits, social security numbers, and Advance Parole travel documents. Note, however, that although these individuals can apply to adjust status, they will still need to wait for the priority dates to become current before USCIS will approve the adjustment to permanent resident.

For example, citizens of India in the EB-2 category can use the priority date of 7/1/2011 to apply for an adjustment of status, rather than waiting to apply for adjustment based on the 5/1/2005 date. When applying for the adjustment of status, applicants can apply at the same time for work permits and travel documents. These applicants would then wait for green card approval until the priority date became current (by watching section A of the employment-based preferences, which currently has a date of 5/1/2005). However, during the wait, they could have a pending I-485, a work permit and a travel document.

See more information from Lexology, and from the National Law Review.

Children, Family Immigration

I am a US Citizen and want to sponsor my parents and 16 year-old brother for a green card.

Q: I am a US Citizen and want to sponsor my parents and 16 year-old brother for a green card. Since my brother is a minor and a dependent, can we just list him on my parents application – can he join them?

US Citizens over 21 years old and can apply for a green card for their parents. Parents are considered immediate relatives for immigration purposes, and they do not need to wait in line for a visa number. However, your brother could not just follow along as part of your parents’ application and would need his own separate petition. Unfortunately, because a brother is not considered an immediate relative, he would also have a long wait. Brothers and Sisters of US Citizens over age 21 are 4th preference, or the F4 category in the visa bulletin, and the wait is over a decade.

 

Usually in these situations, there would be another (faster) pathway for the brother after your parents become permanent residents. Keep in mind that turning 21 or getting married can make a difference in priority dates for your brother. If your parents are able to become permanent residents, then their unmarried children under 21  would be F2A category, which has a much shorter waiting period than unmarried children over 21 (F2B).  Your family would benefit from a consultation with an experienced immigration lawyer to talk through the dates and timing of these different paths.

Asylum, Family Immigration, Green Card

I have asylum status and just got married. How long until new Filipino husband can join me in the US?

Yes, you can eventually bring your spouse to the US, but I am sorry to inform you that this will take some time. You will need a green card or US Citizenship before you can apply for your spouse because the marriage happened  after you received asylum status. I would recommend you apply for your spouse after you have received your green card as it will likely be a bit faster than waiting until you are a US Citizen.

As asylee is generally eligible to apply for a green card after 1 year in the US in asylum status. After you’ve applied it could take between 6 months to 1 year to receive your green card. Once you have the green card, you can then submit a petition to sponsor your foreign national spouse.  Unfortunately, you then will need to wait another 1-2 years because a spouse of a green card holder is the F2A priority category, and this category is not current. See the visa bulletin for how long F2A category (spouses of permanent residents) are waiting.