MVP LAW GROUP – Immigration Q&A Forum, Friday, June 7, 2013

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – U.S. Citizenship
I recently received a Green Card. Next year, I am going to marry my US Citizen Fiancé. How long do I wait to apply for Citizenship?

Answer #1
As it appears, you did not obtain your green card through marriage, as you have yet to be married. Accordingly, you must wait five (5) years to apply for Citizenship. In addition to the time period, there are other eligibility requirements.

Question #2 – U.S. Citizenship
How long does it normally take to become a US Citizen?

Answer #2
It depends. If you received your green card through marriage, then the waiting period is 3 years, subject to additional eligibility requirements. If you received your green card through employment, then the waiting period is 5 years, also subject to additional eligibility requirements.

Question #3 – DACA
Is there a minimum age requirement for DACA applicants?

Answer #3
Yes. Anyone requesting consideration for deferred action under DACA must have been under 31 years old as of June 15, 2012. The applicant must also be at least 15 years or older to request deferred action, unless the applicant is currently in removal proceedings or have a final removal or voluntary departure order.

Question #4 – DACA
If someone has applied for DACA status, can he/she travel outside the US?

Answer #4
Generally no, they may not travel until a decision is made on the DACA application, unless the travel is related to employment, education or humanitarian purposes and the applicant seeks permission directly from the USCIS prior to departure.
Please see below as taken from the USCIS website:
If you travel outside the United States after August 15, 2012 and before your request for deferred action is adjudicated, you will not be considered for deferred action under this process.
Deferred action will terminate automatically if you travel outside the United States without receiving advance parole from USCIS. If USCIS approves your request for deferred action, you may travel outside the United States only if you receive advance parole from USCIS before traveling.
Application procedures for advance parole for individuals with deferred action are being finalized. USCIS expects to incorporate those requirements into USCIS Form I-131, Application for Travel Document, in the near future and will inform the public when the new form is available. Should you have a compelling need to travel outside the United States before the new instructions are issued for reasons related to your current employment, education or humanitarian purposes, you may submit Form I-131 and request advance parole from USCIS by attaching a copy of your DACA approval Form I-797, and a letter that explains your compelling need to travel to your application

Question #5 – H-1B Nonimmigrant Visa
My 6 year period of H1B Visa will expire in Dec 2013 and my labor application is still pending for approval. Am I eligible to apply for a visa extension?

Answer #5
It depends upon several factors.

• Have you ever left the U.S. since your initial arrival in the U.S.? If so, you may be able to recapture the time you spent outside of the U.S. in a recapture/extension petition.
• When was the Labor application filed on your behalf? If it has been in a pending status for 365 days or more, then you may be eligible to file a one (1) year extension based upon AC21.
• Although you are able to submit an extension up to 6 months prior to the expiration of the visa, you may wish to wait to see if your case is approved within the coming months; however, you would still need to file and obtain approval of the I-140 petition.

Question #6 – Employment Based Immigration
For the last 4 years I have been working as a contractor in the IT sector as an EB3 worker. Last May, I completed my MBA. Is it possible to change my category from EB3 to EB2?

Answer #6
You should speak with one of our experienced Immigration Attorneys to determine your eligibility.

Question #7 – Family Based Immigration
If I live out of the US, and apply for an I-130, do I have to come to the US for my interview appointment?

Answer #7
No. Once the I-130 petition is approved, you will have to appear at the nearest Consulate for the interview appointment, once it is arranged with the Consulate through the National Visa Center. This process is called Consular Processing.

Question #8 – Family Based Immigration
My husband recently filed an I-130. We have included all the documentation that was required. How long will it take for USCIS to respond?

Answer #8
Current processing times indicate a period of 6 months for the adjudication of Form I-130. If further evidence is required, a Request for Additional Evidence will be issued, which will further delay the final adjudication of the petition by a USCIS Officer.

Question #9 – General
On the USCIS website, what does it mean if the status of the application states that it is now changed to “post decision activity?”

Answer #9
This means that the government has reached a decision in your case. For example, if you applied for DACA, the govt. has either approved or denied your petition.

Question #10 – Family Based Immigration
My wife came here from France four years ago with a visa waiver. Now that we are married, we filed an adjustment of status. Will she need to return to France for the immigration interview?

Answer #10
No. She will likely attend the interview at a USCIS local field office.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, June 21, 2013!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!