MVP LAW GROUP – Immigration Q&A Forum, Friday, July 19, 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 – Family Based Immigration
My foreign born spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I still file an immigrant visa petition for my spouse?

Answer #1
Yes. According to guidance issued by the USCIS – any same-sex marriage that was officially recognized in a state or country permitting it will now count for immigration purposes. This will be true even if you now live (or plan to live) in a state that does not recognize same-sex marriage.

Question #2 – General
What is the Diversity Lottery?

Answer #2
The congressionally mandated Diversity Immigrant Visa Program makes available up to 55,000 diversity visas (DVs) annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States.

Question #3 – DACA
Can I renew my Deferred Action for Childhood Arrival (DACA)?

Answer #3
DACA was only announced on June 15, 2012, with implementation of the program beginning August 15, 2012, unfortunately, at this time there are no instructions for the renewal of the DACA program. However, you should keep track of your DACA/ EAD expiration and check our blog for updates on renewal at least 6 months prior to your card’s expiration date.

Question #4 – DACA
What would potentially disqualify someone from applying for DACA?

Answer #4
Various factors: Age; criminal history; if they did not enter the U.S. prior to age 16 and entered after age 16; if they were not continuously present in the U.S. since June 15, 2007 to the present; if they were not present in the U.S. on June 15, 2012; and for not meeting certain educational requirements.

Question #5 – Family Based Immigration
How long does it normally take to have my fiancée’ petition approved? We filed it about 7months ago.

Answer #5
According to the USCIS processing times, it is estimated that it takes approximately 4-6 months to obtain approval. However, in practice, it has taken anywhere from 5-9 months to obtain approvals.

If your case appears to be outside of the posted processing times by 30 days or more, you may contact the USCIS at 1-800-375-5283 to initiate a Service Request.

Question #6 – H-1B Nonimmigrant Visa
I have a H1B visa but lost my job a few days ago, can I remain in the US or is my H1B officially no longer valid?

Answer #6
The amount of time that an H-1B worker may stay in the country after being laid off or terminated is not defined in the law or the regulations. The date on the I-94 governs your lawful presence in the U.S., so as long as the I-94 has not expired; you will not begin to accrue any unlawful presence subject to the 3 and 10 year bars. However, you should speak with a qualified Immigration Attorney concerning your situation.

Question #7 – General
Can I travel to India for my sister’s wedding if I lost my Green Card? I have filed for a replacement but it has not arrived.

Answer #7
You should schedule an InfoPass appointment with your local USCIS office. At your appointment, share the circumstances of your situation with the USCIS Representative, show proof that you filed for a replacement and they may be able to stamp your Passport as evidence of your LPR status until your replacement GC is issued.

Question #8 – Family Based Immigration
My husband and I have divorced after 10 years of marriage. Will he be able to remain a resident of the United States?

Answer #8
It depends upon the circumstances of your specific case. It depends upon when you married, when you petitioned for his LPR status, if you have since removed the conditions of his residency, etc. We recommend that you speak with a qualified Immigration Attorney.

Question #9 – General
If my wife overstayed her student Visa, can she still apply to be a Permanent Resident? I am a US Citizen.

Answer #9
Your question requires an attorney consultation. It is not a simple question that can be answered on this type of forum. There are many factors that would need to be considered and evaluated. We strongly suggest that you contact an experienced immigration attorney for a consultation to discuss all of the facts surrounding your situation.

Question #10 – H-1B Nonimmigrant Visa
When should I start preparing my case for the 2014 H-1B Cap?

Answer #10
The FY2014 H1B CAP has concluded, it open on April 1, 2013 and was closed by April 5, 2013, with employment beginning on October 1, 2013. The FY2015 H1B CAP, will open on April 1, 2014, with employment to begin as of October 1, 2014. We normally begin to receive and prepare H1B CAP cases in November-December of the preceding year.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 2, 2013!

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