Q: I applied for US citizenship by submitting the n-400, but I have 2 trips within the last 5 years that lasted 9 months. What can I do?
A: Among many other requirements, those who apply for naturalization need to show they meet continuous residence and physical presence.
Continuous Residence means the applicant has resided in the US for 5 years before applying, or resided continuously for 3 years if he or she is a qualified spouse of a US Citizen. Trips outside the US that last more than 6 months can disrupt continuous residence, as can trips longer than 1 year.
Physical Presence means the applicant was physically present in the US more than half of the time. Applicants need to show they were present in the US for thirty months or more within the last 5 years (or 18 months out of the last 3 years for qualified spouses of US Citizens.) Also, US law requires that applicants have resided for at least 3 months in state where they apply for naturalization before submitting the application.
Since you mentioned two trips that were between 6 months and 1 year, this response will focus on continuous residence, though you should also check to make sure you meet physical presence requirements. This information is meant to be general and review the most common situations. For specific advice related to your case, be sure to speak with a qualified immigration attorney.
Q: I am sponsoring my wife for a green card. She has 2 children from a previous marriage. Can we add her children to her green card application as derivatives or dependents?
A: Your wife’s children may be able to receive permanent resident status (green cards), but not as derivatives of your wife. Your wife is considered an Immediate Relative for immigration purposes, and so her children would need to qualify on their own for permanent residency. Generally this is done by the stepparent (you) sponsoring the stepchildren. Here’s how it works:
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.
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)).
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.
Q: I am on an F-1 visa studying in the US. What options do I have to obtain a green card in the US?
A: This is a BIG question! Generally, green cards are obtained through employment opportunities, family relationships, or via asylum status. Here is a quick summary of the options:
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).
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.)
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:
- 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.
- Your education level and occupation need to fit with the H-1B requirements. USCIS has a list of H-1B requirements here.
- 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.
[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:
||1 year, 5 months
||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.