MVP LAW GROUP – Immigration Q&A Forum, Friday, September 13, 2013

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Question #1- Family Based Immigration
I was married to a U.S. citizen for 4.5 years. Seven months ago, my husband passed. We were not separated and were living together at the time of his death. Neither of us filed an immigrant application during our marriage. May I still file an immediate relative immigration petition based on my marriage to my deceased U.S. citizen husband?

Answer #1
Yes, you may still file an I-360, Petition for Amerasian, Widow(er), or Special Immigrant based upon your marriage to a deceased U.S. Citizen. You may self-petition for an immediate relative petition based on a marriage to a deceased U.S. citizen if you:

  • Were married to the deceased U.S. citizen for at least two years;
  • Entered the marriage in good faith and not solely to obtain an immigration benefit;
  • Were not legally separated or divorced at the time of his death;
  • Are Able to file the immigrant petition within two years from the date of the death; and
  • Have not remarried after his death.

Question #2 – Marriage
Could my upcoming marriage impact the I-485 process? I just got my approved I-140 and want to apply for my I-485.

Answer #2
A definitive answer to your question would require a discussion concerning your circumstances. Is your priority date current? Is your spouse a U.S. Citizen, an LPR? Will they be filing with you? Are there children involved? ETC. It is recommended that you speak with a qualified Immigration Attorney to discuss your specific circumstances.

Question #3 – Employment Based Green Card
Why should you file and I-140 and I-485 concurrently?

It is recommended that you file the I-140, Immigrant Petition for Alien Worker, along with the I-485, Adjustment of Status petition, when you are able to file them concurrently, because filing concurrently allows you to file the I-485, along with the I-765 and I-131 (ancillary benefits) rather than waiting for the I-140 to be approved first before being able to submit the I-485 application. Your priority date must be current in order for you to file the I-140 and I-485 concurrently.

On the other hand, if you are not able to file concurrently because your priority date is not current, you must submit the I-140 petition first and wait for it to be approved, and also wait for your priority date to become current prior to being able to file the I-485 and receive the ancillary benefits of employment authorization and advance parole.

Question #4 – Green Card
Three days before my Green Card expired; I applied for Green Card renewal online. I received a confirmation, a receipt, and an I-797. In one month, I have to travel overseas for a family member’s wedding. Will I have a problem re-entering the U.S.?

Answer #4
You should not, if you have the evidence that you have mentioned pursuant to the following – Section 264 of the Immigration and Nationality Act (INA) states, “Every alien in the United States . . . shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations . . ..” It also says, “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him . . .. Any alien who fails to comply with [these provisions] shall be guilty of a misdemeanor …” The specific requirements and procedures for applying to renew an expiring green card are contained in the Code of Federal Regulations [CFR] at 8 CFR section 264.5.

However, if you are not comfortable with the evidence you have, you may schedule an InfoPass appointment at your local USCIS Office to obtain further evidence of LPR status in the form of a stamp in your passport.

Question #5 – Family Based Green Card
About 5 months ago, I had concurrently filed for my mother’s I130 and I485. I also applied for advance parole and received the approved document. Today, I got a letter from USCIS that my mother’s application is a potential” interview waiver case” and it mentioned that there’s a delay of approx. 6 months in processing the case. My mother would like to leave for a short time to go see my other sister in South America. In the light of current situation and with advance parole document is it ok for her to leave for a couple months?

Answer #5
Our firm always recommends that applicants not travel when you have a pending case with the USCIS for a variety of reasons unless there is an emergency and you must leave. Yes, your mother has the advance parole document – however, she could potentially miss her appointment – she should be fully aware of all of the risks involved before making a decision to travel. It is recommended that she contact a competent immigration attorney to discuss the specifics of the case before leaving the United States for a couple of months.

Question #6 – Green Card
Just recently, I got married and I’m in the process of applying for my green card. I have a baby with another woman. Will this situation affect my green card processing?

Answer #6
It should not; however based upon the limited information that you have provided, it is recommended that you contact an experienced Immigration Attorney to discuss your specific circumstances.

Question #7- H-1B Nonimmigrant Work Visa
My employer is in the process of filing an extension of my H-1B. Since my last H-1B Approval, the title of my job has changed. Will this cause any problems in extending my H-1B?

Answer #7
As long as the position is a Specialty Occupation that requires an individual holding at least a U.S. Bachelor’s degree or its foreign equivalent in a specified field and you possess a U.S. Bachelor’s degree or its foreign equivalent in that specified field and are otherwise technically/professionally qualified for the job, it should not cause any problems in extending the H-1B.

Question #8 – Employment Based Green Card
Can my company still sponsor an employee for green card even though we filed for bankruptcy in 2008? Our business has been successful the past 4 years.

Answer #8
If your sponsoring employer can successfully show that it has the financial ‘ability to pay’ your proffered wage, then your company should be able to sponsor you as an employee for the employment based green card process. Your sponsoring company should speak with a qualified Immigration Attorney to discuss pursuing an employment based green card which will encompass a discussion concerning their current financial status.

Question #9 – H-1B Nonimmigrant Work Visa
My EAD ended in June 2013. Now I am on a Cap Gap until Sep 30 as my new H1B is still pending. Can I still work or I have to leave the country or I can go on some kind of leave (paid or unpaid) here in US?

Answer #9
You may continue to work under the CAP GAP extension. Pursuant to the regulations, once a timely filed request to change status to H-1B on October 1, 2013 has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.

Question #10 – Employment Based Green Card
I have an EB-1 Green card and my employer wants me to leave the country to work for a few months. Do I have to apply for Advanced Parole to re-enter the US?

Answer #10
Considering that an LPR who stays outside of the U.S. for 6 months or more per year risks losing his/her green card when trying to reenter the U.S. due to possible abandonment, filing for a re-entry permit may be a good option for you. You should speak with a competent Immigration Attorney to discuss the specifics regarding your trip/time spent outside of the U.S. while in LPR status.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 27, 2013!

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