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CAN I GET MARRIED AGAIN?
Question: I arrived in U.S. with K-1 visa three years ago. I married my fiancee and we stayed together for 5 months. I never applied for my green card and my I-94 card has long expired. I am now involved in new relationship and will be marrying again. Can I marry again? Do I have to go home and begin K-1 process again? Martin Klementowski, Ontario, California
Attorney Hilda Surtida: Aliens who enter the U.S. on a K-1 visa are not eligible to adjust status except if the application to adjust status is based on marriage to the fiancee who filed the K-1 petition, and such marriage occurred within 90 days from the date of entry. If you meet this requirement, then you remain eligible to adjust your status based on that marriage, even if you are now divorced from your spouse, and even if your 1-94 card has expired. The only problem you might have is if your spouse refuses to sign an affidavit of support, which is a requirement for the application to adjust status. Your case is complicated and you should immediately consult an immigration attorney.
EVIDENCE ABOUT MARRIAGE FOR 1-751?
Question: In filing I-751 joint petition to remove conditions on residence, how much evidence is required to prove the marriage? Ismael De los Santos, New York , New York
Atty. Hilda Surtida: The more evidence you submit to USCIS in support of the I-751, the better your chances are in getting I-751 approved, and getting the interview requirement waived by USCIS. As evidence of the prior 2 years tax returns, go to the nearest IRS office and request a computer printout from IRS or, better still, obtain certified copies from IRS. You must also submit evidence of assets jointly owned and debts jointly owed by you and your spouse (such as car registration/loan, credit card statements, etc.)
OK FOR POLITICAL ASYLUM?
Question: I was born in Yugoslavia but grew up in England. I never was naturalized as a British citizen. I came here on a visitor's visa in the early 1980s and overstayed. Can I be granted political asylum? Charles Meyer, San Diego, California
Attorney Allan Wernick: If you had the right to live and work indefinitely in England, you are probably ineligible for asylum. To get asylum, you must show that you stayed in the first country where you could live freely with the same rights and protections as other residents. A person who had these rights is said to have "permanently resettled" in that country. On the other hand, even if you are not eligible for asylum, the USCIS cannot deport you to any country where you will face persecution. Even if you were permanently resettled in England, you may be eligible for a lesser status known as "withholding of deportation" if you can prove that you will be persecuted if you return to your homeland.
GREEN CARD vs PERMANENT RESIDENT
Question: My fiance, from Italy, wants to get a green card. When we marry, I want to sponsor him for permanent residence. I want to sponsor him for a green card. What is the difference between a having a green card and being a permanent resident? Maricel Hainlen, Los Angeles, California
Atty. Allan Wernick: A person with a "green card" is a permanent resident. Green card refers to the identification card issued to permanent residents. It is also sometimes called an alien registration card. The proper term now is permanent resident card. Just prior to World War II, all non-citizens, or "aliens" as they are called by our laws, were required to register with the federal government. At that time, all of the identification cards issued to aliens were the same. After the war, the then Immigration and Naturalization Service (INS) began issuing different cards to aliens depending on their status. Those who were eligible to reside permanently in the U.S. were issued cards that were green in color and to this day a person who is a permanent resident is said to have a “green card.” To fight counterfeiting, over the years, the USCIS has changed the design and color of the card. Today, newly issued cards are an off-white color.
WORK PERMIT WHILE WAITING FOR GREEN CARD
Question: I am a permanent resident. I have a son who is 24 and unmarried. He is here unlawfully and he has been waiting for 2 1/2 years for his appointment for a permanent resident visa at the U.S. consulate in London. Is it possible for him to get a temporary work permit so that he can get a part time job? Brittany Morrison, Anaheim, California
Atty. Wernick: Unless your son qualifies for a temporary work visa, it is unlikely that he can get a work permit before he becomes a permanent resident. He'll probably wait an additional three or four years before the consul calls him for his interview. You'll just have to make do until then.
GREEN CARD AFTER DIVORCE?
Question: A year ago I married a U.S. citizen and filed for permanent residence. Three months later I was interviewed by the USCIS, but the case was neither denied nor approved. Now I am separated from my wife and we are considering divorce. Should I withdraw my application? Ralph Everete, Long Beach, California
Atty. Wernick: It is too bad your marriage isn't working out, but if your wife continues to support your case, you don't have to give up your quest for a green card. She can continue to sponsor you even if you're not happily married or even living with her. The USCIS can approve your case so long as no divorce proceeding has begun and you and your wife do not sign a separation agreement. Of course, you must prove that you didn't marry your wife just to get a green card. To show that yours was a "real" marriage, try submitting your wedding pictures and photos of you and your wife together on vacation or at parties. You can also submit envelopes from letters or bills addressed to you and your wife at the same apartment or home, and affidavits (sworn statements) from friends, neighbors or religious leaders stating that they know you as husband and wife. If you think that the USCIS doubts that your marriage is real, get an immigration law expert to help you.
CREDIT CARDS AND GREEN CARD
Question: I am an 18-year-old student who has recently filed an I-485 on account of my father's H-1B, an employment-based visa. I have already received my Employment Authorization Document (EAD) and I now work as a secretary. The problem is I would like to get a credit card, but I'm off to a rough start. It seems that, due to my lack of credit history, I can't really get any card. My EAD is only two months old and I am awaiting permanent residence. How do I get a credit card of any kind at this point? Helen Pring, Los Angeles, California
Attorney Bernard Wolfsdorf: After an applicant files for adjustment of status to permanent resident he or she is often in a state of immigration limbo -- neither permanent resident nor nonimmigrant, which is why the applicant often needs an advance parole permit to travel outside the U.S. Fortunately, such individuals can receive one-year renewable employment authorization cards. Your problem in obtaining a credit card without a credit history is only partially because of your immigration, but is probably due primarily to your lack of credit and earning history. If you can persuade your parents to countersign a guarantee or to add your name to one of their cards this should resolve your problem.
IN CANADA DURING THE WEEKENDS
Question: My friend, a green card holder, recently had a romance with a beautiful Canadian, who lives in Canada. My friend would like to visit her every weekend. Here are my questions: 1) Can he legally work in the U.S. from Sunday night to Friday night and live in Canada on Saturday and Sunday? 2) For a regular commuter like him, how does the USCIS keep track of his travel? 3) If he kept on doing so, he would live in the U.S. for 70% of his time and 30% in Canada. I think the rule requires him to live in the U.S. for another two years before applying for citizenship. How does the USCIS count his residency in the following two years? Carla Djurklou, Seattle, Washington
Atty. Wolfsdorf: A green card holder must generally live and work in the U.S. (1) An absence for 48 hours, even on a weekly basis such as this, should not be a problem. (2) USCIS will usually enter this data every time he travels abroad but sometimes when people drive across the border it's very casual, and inspections are not recorded. To qualify for citizenship, one generally needs five years of permanent residence of which half (2 1/2 years) must be spent physically present in the U.S. Physical presence is only broken where one is out of the U.S. for more than six months. In this case, the applicant can apply four years and nine months (one is allowed to apply three months early) from the time he received this "greencard" or permanent resident status.
GRACE PERIOD FOR H-1B?
Question: I just got laid off and my employment was terminated early this month. I am and H-1B visa holder and was wondering how long can I stay in the U.S. legally? Is there a grace period for H-1B visa? Michael Abuggao, Riverside, California
Atty. Wolfsdorf: There is no legal grace period at the end of an H-1B if you are terminated. You should immediately apply to change to another status to avoid unlawful presence. There is sometimes an unofficial 2-3 week grace period, but since there is nothing in the regulations specifically allowing this, I recommend you change to another status immediately.
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What you need to know about H-1B work visas
By Carl Shusterman
Editor's Note: Our Ask the Experts column is designed for our readers to interact with top immigration lawyers who will each answer questions on specific topics. Carl Shusterman is a former chairman of the American Immigration Lawyers Association, Southern California chapter. Readers may get in touch with him through the magic of cyberspace at carl@shusterman.com. Immigrants without computers can still contact him at (213) 623-4592.
Question: My husband and I are on separate H-1B visas. I will be laid off soon and I am currently interviewing with other companies. How long can I remain on the current visa and in the U.S. after being laid off? What are my options if I don't get another job?
Shusterman: The immigration laws and the USCIS regulations provide no guidance on how long a person may remain in the U.S. between H-1B jobs. If you don't already have another H-1B employer lined up, I would suggest you immediately apply for H-4 status, and when you secure another offer of employment, change your status back to H-1B.
Question: How should one go about the labor certification process from H-1B to green card?
Shusterman: Labor certification is a process whereby a U.S. employer demonstrates to the U.S. Department of Labor that it is unable to find qualified U.S. workers available for a particular job. You should sit down with your lawyer to discuss the strategies.
Question: How long does the USCIS usually take to process an H-1B application?
Shusterman: That depends on where your job is located. Processing times vary from 15-30 days if you work in a state where the processing is done by the USCIS's Vermont Service Center. On the other hand, if your job is in California, the California Service Center typically takes up to four months to process an H-1B petition.
Question: I run a small software corporation with 4+ years in business. Any special issues in sponsoring an H-1B employee from India?
Shusterman: Of course, when the employer is small, the USCIS may demand additional documentation, such as tax returns. The employer or company will be asked to demonstrate its financial viability and its ability to pay the salary of the H-1B employee. Under regulations yet to be issued by the Department of Labor, if a certain percentage of your employees are H-1B visa holders, you will be subject to additional requirements including the requirement that you first seek a U.S. worker to fill a job opening before submitting a petition for an H-1B employee.
Question: After H-1B approval, can I start work from the approved starting date, even if I have not received the real paperwork by that date?
Shusterman: Under USCIS regulations, once a person obtains H-1B status, he or she has only a limited time to begin working for a petitioning employer. The employer and the employee should both have notice that the H-1B petition, or change of status, has been approved.
Question: If a person on H-1B marries an American citizen then what is his status?
Shusterman: H-1B, of course! U.S. citizens who would like their spouse to obtain permanent residence in the U.S. should immediately submit a combined visa petition and application for adjustment of status together with their H-1B spouse.
Question: If the USCIS approves my H-1B from December 1, can I go to the U.S. embassy in November to get the visa stamp, given that I am currently living outside the U.S. ?
Shusterman: No. The State Department regulations allow you to obtain an H-1B visa and enter the U.S. no more than 10 days before the beginning of the validity period on your approved petition.
Question: Is it legal for employers to demand money invested for H-1B visa, such as air ticket, from an employee who is leaving the company?
Shusterman: The Department of Labor takes the view that any monies paid by the H-1B visa holder to the U.S. employer have the effect of lowering the employee's wage. Since one condition of filing an H-1B petition with the USCIS and a Labor Condition Application (LCA) with the Department of Labor is that the employer pay the “prevailing wage” to the H-1B visa holder, if the amounts which must be remitted to the employer have the effect of reducing the employee's salary below the prevailing wage, the employer would be in violation of the law.
Question: Between the period an H-1B visa is approved and the practical training expires, is it legally correct to work for the same company in Canada ?
Shusterman: There is no legal impediment to doing so. However, for those of you who are working for companies with no offices abroad, the USCIS has relaxed its rules for F-1 students and J-1 exchange visitors seeking to change to H-1B.
Question: How many H-1B visas can you apply for simultaneously?
Shusterman: There is no limit. One of my clients is working for three H-1B employers simultaneously.
Question: I have an H-1B visa. How hard is it for me to apply for a return visa if I go back to China ?
Shusterman: Many persons from China who originally entered the U.S. as visitors or students, and who changed their status to H-1B are concerned about this issue. The answer varies according to your occupation, your personal circumstances, and the U.S. Consulate in China , which has jurisdiction over your case.
Question: If you are working as a professional in a computer software company with 5+ years experience but you do not have a bachelor's degree, is it still perfectly feasible to get an H-1B visa?
Shusterman: No. The USCIS considers 3 years of experience to be equivalent to 1 year of university education. Therefore, you would need 12 years experience if you have no college education.
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