MVP LAW GROUP – Immigration Q&A Forum, Friday, August 2, 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 Green Card
Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization?

Answer #1
According to the recently updated FAQs released by the USCIS, the answer to the question is yes. As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages.

Question #2 – Family Based Green Card
Do my same sex partner and I have to live in a marriage equality state to apply for his green card?

Answer #2
According to the recently updated FAQS released by the USCIS, the answer to the question is No. USCIS will review the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

Question #3 – Deferred Action for Childhood Arrivals
Are there educational requirements to be eligible for DACA?

Answer #3
Yes, in addition to other eligibility requirements. In order to be eligible for DACA, an applicant must be: currently enrolled in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or they are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

Question #4 – H-1B Nonimmigrant Visa
I have applied for an H-1B Visa. My wife has applied for a H4 Visa. Do we need to apply for an H4 Visa for all of our children? 2 of our children are under 2. The other one is 12 years old.

Answer #4
If your children are not U.S. citizens, then yes you will need to include them. Your children should have been included in your wife’s H4 application (Form I-539).

Question #5 – Employment Based Green Card
My spouse and son have received their Green Cards but I have not. I filed for all of our Green Cards through my employer. Do you think there is a problem with the processing of my case?

Answer #5
From the facts you have provided, your spouse and son are your derivatives. Generally, the USCIS would not approve their cases without approving your case first. You may wish to contact the USCIS at 1-800-375-5283 to determine the issue with the delivery of your green card.

Question #6 – Green Card General
Once my wife gets her green card, can she travel out of the US?

Answer #6
There are certain restrictions once receiving a Green Card, especially in terms of traveling for long periods of time. She is able to travel; however, for purposes of maintaining LPR status, she should not be outside of the U.S. for more than 6 months at a time, without obtaining the proper re-entry permit.

Question #7- Employment Based Immigration
What is an AC21 Portability letter?

Answer #7
The American Competitiveness in the 21st Century Act (AC21) permits an individual to seek new employment when the following conditions are met:
• New employment must be the “same or similar” occupational classification;
• Form I-140 has been approved, or is approvable when filed concurrently with I-485;
• Form I-485 has been pending for at least 180 days.
Your attorney sends a letter to the USCIS explaining that you have invoked the AC-21 portability provision and includes evidence of your eligibility with the letter.

Question #8 – Green Card
Later this year, my EAD and AP are expiring. When is the earliest that I can file my renewal petitions?

Answer #8
You can file the renewals 120 days prior to the expiration date.

Question #9 – H-1B Nonimmigrant Visa
I just got my H-1B approval; can I get a Social Security Card?

Answer #9
Yes! Make sure you check the Social Security Number (SSN) website, “Get Or Replace A Social Security Card” and carry all the required documents to SSN Office when applying for your SSN.

Additional resource: Social Security Numbers for Noncitizens

Question #10 – H-1B Nonimmigrant Visa
Earlier this month, my employer moved my job location from New York to Virginia. Do they need to submit an amended H-1B?

Answer #10
Under the regulations, an H1B amendment is required if there has been a material change in the employment terms of the H1B petition. The USCIS considers the relocation of an employee outside of the Metropolitan Statistical Area (MSA) or a move from one state to another state, a material change, requiring the filing of an amended H-1B petition.

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 16, 2013!

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