MVP LAW GROUP – Immigration Q&A Forum, Friday, January 3, 2014

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
I am an US Citizen and I applied for an Immediate Relative Petition (I-130) for my husband. How long does the process take to adjust his status?

Answer #1
The I-130 generally takes 6 months to adjudicate; however, the USCIS has released the following statement concerning the extended processing times for Form I-130.

The USCIS has been receiving feedback from the public expressing concerns regarding extended processing times for Form I-130. USCIS is working on the delays as part of their goal of preserving family unity. In the last few months the processing time has went from October 2012 to February 2013; that puts the processing time to around 9 months. We have found in practice that current I-130 processing is taking between 6 months to 11 months. USCIS’s goal is to return to an average processing time of five months by May 2014.

Please note that once the I-130 is approved, there is still another process to be completed, depending upon where the applicant resides – if the applicant already lives in the U.S. – Adjustment of Status by filing Form I-485 with the USCIS; if the applicant lives abroad, by Consular Processing through a U.S. embassy and the National Visa Center…another estimated 6 month processing period.

Question #2 – Employment Based Immigration
I am currently awaiting my green card. My Mother’s was approved, my case is still pending. Both filed at the same time. My case was filed as Dependent, EB3. Employment based. When do you think I will receive my green card?

Answer #2
Was a Request for Evidence issued on your case? It is possible that your case has just been overlooked. Contact the USCIS to determine the expected time frame of when the USCIS expects to make a decision on the case. Try contacting the USCIS at 1-800-375-5283 to initiate a Service Request.

Question #3 – Re-Entry Permit
What does a legal resident have to do to stay outside the U.S. for more than 6 months?

Answer #3
If a Legal Permanent Resident of the U.S. wants to make trips outside of the U.S. for periods of 6 months or more, they should prepare and file a Re-Entry permit with the USCIS, Form I-131. Still, you should contact an Immigration Attorney to discuss your specific situation.

Question #4 – Deportation
Can a person who was deported from the U.S.A ever return to the US legally?

Answer #4
It depends. If a noncitizen was deported from the U.S., they are not supposed to attempt to reenter for a specified period of time, if ever. It depends upon factors such as the reason for removal, and whether the person was convicted of a crime, etc. You should contact an Immigration Attorney to further discuss.

Question #5 – Family Based Immigration
I already filed my I-130 form and I need to get a work permit. How long do I have to wait to get a work permit?

Answer #5
The I-130 petition for Immigrant Relative must first be approved before you are eligible to file Form I-485. Ancillary benefits of filing Form I-485 are employment authorization (I-765) and advance parole (I-131). Unless you qualify to receive a work permit some other way, you must wait for the I-130 petition to be approved, and the I-485 filed, along with Form I-765 and I-131, and you must wait for the I-765 to be approved before you will receive a work permit.

Question #6 – Citizenship
I just received my U.S. citizenship. Can I file for Citizenship for my son who was not born in the U.S?

Answer #6
No. You will need to go through the process of family based immigration and sponsor your son for an immigrant visa. As a U.S. citizen, immediate relatives are not subjected to the preference categories/priority dates listed in the visa bulletin released by the Department of State.

Question #7 – Family Based Immigration
If a person has a permanent visa, what happens if their US Citizen spouse passes away? Can they remain in the US Legally?

Answer #7
Your question is very general in nature and without other details; we cannot provide an answer in this forum. Please contact an Immigration Attorney to discuss the specifics of your case.

Question #8 – H1B Nonimmigrant Work Visa
Can my employer pay 95% of the prevailing wage or is it fixed to the rigid 100% when filing for H-1B?

Answer #8
Your employer must pay 100% of the prevailing wage when filing for H1B.

Question #9 – Employment Based Green Card
If an individual changes companies while pursuing a green card, do they have to start the process all over?

Answer #9
It depends upon what stage in the process they have completed. If they have filed only the Labor and I-140 and not the I-485 and want to move to a new company, then yes. If they have filed Labor, I-140 and I-485, it is possible to change employers through an AC21 portability filing, if the new position is the same or substantially similar to the one as provided for in the original certified Labor filing with the previous company, and the I-485 has been pending for 180 days or more.

Question #10 – Family Based Immigration
My father got an approved I-130 with me as a beneficiary. Can I seek an adjustment of status if the priority date is current?

Answer #10
If you are in the United States and your priority date is current and you are otherwise eligible to adjust, you should be able to submit the requisite paperwork with the USCIS to adjust status to that of permanent resident.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 17, 2014!

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