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| Immigration Questions and Answers Part 1 - by atty. g. castillo |
QUESTION: Can I travel if I have a pending petition?
should the alien have an overstay giving rise to a three or ten year bar to re-entry.
should the alien have an overstay giving rise to a three or ten year bar to re-entry.
For those with a visa stamp in their passport, they will be able to travel but will be considered to have
abandoned any change of status application that was pending when they left the United States.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I have an E-2 visa, can I file for a green card?
ANSWER: An E-2 visa like all other non-immigrant visas (e.g., H-1B, L-1A, F-1) only confers the right to a
temporary stay in the United States. To obtain the so-called green card, a proper petition must be filed and
approved. For those on E-2 status, the most common applications for green card are made through family
petitions by relatives and employment petitions by employers using the labor certification process.
Additionally, if the E-2 enterprise has the requisite ownership connection with the E-2 employees’ overseas
employer, a multinational executive petition (EB-1) might be possible—this subject was discussed in some
detail in a previous article.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I just got divorced and I have my conditional green card. How can I get my conditional green
card removed?
ANSWER: Divorced aliens, like all conditional permanent resident aliens, must take specific steps to
remove the condition on their permanent residency—the condition of course is the two-year limited
duration of their permanent residency. Normally, the alien and spouse petition jointly to remove the
condition during the 90-day period ending on the second anniversary of the grant of conditional
residence.
However, if the alien is divorced, the divorced alien can file for waiver of the joint filing requirement
simultaneously with the request for removal of condition. The emphasis is on “divorced.” Mere separation
would not rise to the level of divorce.
Failure to file for removal of condition will likely result in loss of permanent residency.
Whether divorced or not, the removal of condition is premised on proving that the marriage was entered
into in good faith as demonstrated by conduct during the two year conditional period.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: An employer is interested in hiring me. I just arrived here as visitor. Can they file H-1B for me right
away?
ANSWER: As discussed above in detail, the H-1B quota is closed for the 2007 fiscal year, although some
exceptions exist and some legislative changes might be forthcoming. However, assuming the H-1B quota
were available to the visitor, there would generally be no inconvenience to filing for H-1B right away
provided the visitor has status through the H-1B employment start date.
When an H-1B application is granted, the employment start date can be no earlier than the visa
availability date—e.g., first time H-1B applicants in April 2006 obtained H-1B approvals from October 1,
2006 onward. In that situation, to obtain a change of status to H-1B, the beneficiary had to show valid
status through October 1, 2006. Otherwise, the beneficiary would have to depart the country, process their
Service approval of H-1B classification at an American consulate, and re-enter on October 1, 2006 with an
H-1B visa stamp in their passport.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I have a student visa. Can I work?
ANSWER: Generally the F visa does not entitle the holder to work but rather to attend school. However,
during the course of their studies, there are three general exceptions:
(a) On-Campus Employment That Will Not Displace a U.S. resident or Pursuant to the Terms of a Scholarship,
Fellowship, Assistantship, or Postdoctoral Appointment
- The school will generally decide on whether the work displaces U.S. residents and the work is generally
limited to 20 hours a week.
(b) Off-Campus Curricular Practical Training
- NOTE: 12 months or more of Curricular Practical Training makes the student ineligible for future OPT
(c) Off-Campus Employment Authorized by the USCIS Because of Unforeseen Economic Necessity
An Employment Authorization Document will have to be obtained from the Immigration Services and it will
have to be shown, among other things, that the work is needed because of “severe economic hardship
caused by unforeseen circumstances beyond the student’s control”
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I would like to visit my family in my home country? I have a pending green card filed for me. Can
I travel?
ANSWER: As discussed above, an application for Advance Parole can be made but travel is not advisable
if applicant has more than six months of unauthorized stay.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I have H-1B approved in the US. My attorney advised me to get my H-1B visa from my home
country. When I was in the consular office, the officer denied my H-1B and my entry back to the U.S? Can I file
for an appeal?
ANSWER: From a practical point of view there really is no appeal or review procedure. Immigration law
delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final
say on all visa cases. By regulation the U.S. Department of State has authority to review consular decisions,
but this authority is limited to the interpretation of law, as contrasted to determinations of facts. Since
almost all visa denials are premised on factual determinations, those denials fall exclusively within the
authority of consular officers at the Foreign Service posts.
If the denial left room for the introduction of new evidence, then it is advisable that the denial be
reviewed with legal counsel and a response with additional evidence be made. If the denial was final, it
might still be possible to reapply when a stronger case can be presented.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I overstayed my visitor visa. Can I still file for an extension or an H-1B?
ANSWER: For those who entered legally but overstayed and are still in the U.S., the options for filing
anything else within the United States are limited. If the applicant has an extraordinary circumstance
beyond his/her control that prevented him/her from timely filing for extension of change of status, then
he/she can file and appeal to the discretion of Immigration Services. Otherwise, they must look to
exceptions like marriage to a U.S. citizen, section 245(i), and certain employment based I-140/I-485 filings
made before six months of unlawful presence accrue. The issues here are complicated and critical and
best discussed in detail with legal counsel.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: At one time I had H-1B but then filed for H-4 status because I was losing my job. Today, the USCIS
Online status says my H-4 is approved. I have a new employer who wants me to start with them right away.
How soon can I start working for the new employer?
ANSWER: The American Competitiveness in the 21st Century Act [AC-21] allows an H-1B transferee to
begin working for their H-1B petitioner upon filing of the H-1B transfer petition. In other words, the transferee
does not necessarily have to wait until approval of the H-1B petition to commence employment.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
should the alien have an overstay giving rise to a three or ten year bar to re-entry.
should the alien have an overstay giving rise to a three or ten year bar to re-entry.
For those with a visa stamp in their passport, they will be able to travel but will be considered to have
abandoned any change of status application that was pending when they left the United States.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I have an E-2 visa, can I file for a green card?
ANSWER: An E-2 visa like all other non-immigrant visas (e.g., H-1B, L-1A, F-1) only confers the right to a
temporary stay in the United States. To obtain the so-called green card, a proper petition must be filed and
approved. For those on E-2 status, the most common applications for green card are made through family
petitions by relatives and employment petitions by employers using the labor certification process.
Additionally, if the E-2 enterprise has the requisite ownership connection with the E-2 employees’ overseas
employer, a multinational executive petition (EB-1) might be possible—this subject was discussed in some
detail in a previous article.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I just got divorced and I have my conditional green card. How can I get my conditional green
card removed?
ANSWER: Divorced aliens, like all conditional permanent resident aliens, must take specific steps to
remove the condition on their permanent residency—the condition of course is the two-year limited
duration of their permanent residency. Normally, the alien and spouse petition jointly to remove the
condition during the 90-day period ending on the second anniversary of the grant of conditional
residence.
However, if the alien is divorced, the divorced alien can file for waiver of the joint filing requirement
simultaneously with the request for removal of condition. The emphasis is on “divorced.” Mere separation
would not rise to the level of divorce.
Failure to file for removal of condition will likely result in loss of permanent residency.
Whether divorced or not, the removal of condition is premised on proving that the marriage was entered
into in good faith as demonstrated by conduct during the two year conditional period.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: An employer is interested in hiring me. I just arrived here as visitor. Can they file H-1B for me right
away?
ANSWER: As discussed above in detail, the H-1B quota is closed for the 2007 fiscal year, although some
exceptions exist and some legislative changes might be forthcoming. However, assuming the H-1B quota
were available to the visitor, there would generally be no inconvenience to filing for H-1B right away
provided the visitor has status through the H-1B employment start date.
When an H-1B application is granted, the employment start date can be no earlier than the visa
availability date—e.g., first time H-1B applicants in April 2006 obtained H-1B approvals from October 1,
2006 onward. In that situation, to obtain a change of status to H-1B, the beneficiary had to show valid
status through October 1, 2006. Otherwise, the beneficiary would have to depart the country, process their
Service approval of H-1B classification at an American consulate, and re-enter on October 1, 2006 with an
H-1B visa stamp in their passport.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I have a student visa. Can I work?
ANSWER: Generally the F visa does not entitle the holder to work but rather to attend school. However,
during the course of their studies, there are three general exceptions:
(a) On-Campus Employment That Will Not Displace a U.S. resident or Pursuant to the Terms of a Scholarship,
Fellowship, Assistantship, or Postdoctoral Appointment
- The school will generally decide on whether the work displaces U.S. residents and the work is generally
limited to 20 hours a week.
(b) Off-Campus Curricular Practical Training
- NOTE: 12 months or more of Curricular Practical Training makes the student ineligible for future OPT
(c) Off-Campus Employment Authorized by the USCIS Because of Unforeseen Economic Necessity
An Employment Authorization Document will have to be obtained from the Immigration Services and it will
have to be shown, among other things, that the work is needed because of “severe economic hardship
caused by unforeseen circumstances beyond the student’s control”
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I would like to visit my family in my home country? I have a pending green card filed for me. Can
I travel?
ANSWER: As discussed above, an application for Advance Parole can be made but travel is not advisable
if applicant has more than six months of unauthorized stay.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I have H-1B approved in the US. My attorney advised me to get my H-1B visa from my home
country. When I was in the consular office, the officer denied my H-1B and my entry back to the U.S? Can I file
for an appeal?
ANSWER: From a practical point of view there really is no appeal or review procedure. Immigration law
delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final
say on all visa cases. By regulation the U.S. Department of State has authority to review consular decisions,
but this authority is limited to the interpretation of law, as contrasted to determinations of facts. Since
almost all visa denials are premised on factual determinations, those denials fall exclusively within the
authority of consular officers at the Foreign Service posts.
If the denial left room for the introduction of new evidence, then it is advisable that the denial be
reviewed with legal counsel and a response with additional evidence be made. If the denial was final, it
might still be possible to reapply when a stronger case can be presented.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: I overstayed my visitor visa. Can I still file for an extension or an H-1B?
ANSWER: For those who entered legally but overstayed and are still in the U.S., the options for filing
anything else within the United States are limited. If the applicant has an extraordinary circumstance
beyond his/her control that prevented him/her from timely filing for extension of change of status, then
he/she can file and appeal to the discretion of Immigration Services. Otherwise, they must look to
exceptions like marriage to a U.S. citizen, section 245(i), and certain employment based I-140/I-485 filings
made before six months of unlawful presence accrue. The issues here are complicated and critical and
best discussed in detail with legal counsel.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
QUESTION: At one time I had H-1B but then filed for H-4 status because I was losing my job. Today, the USCIS
Online status says my H-4 is approved. I have a new employer who wants me to start with them right away.
How soon can I start working for the new employer?
ANSWER: The American Competitiveness in the 21st Century Act [AC-21] allows an H-1B transferee to
begin working for their H-1B petitioner upon filing of the H-1B transfer petition. In other words, the transferee
does not necessarily have to wait until approval of the H-1B petition to commence employment.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
| For additional information and follow-up question, please e-mail Atty. Castillo at german@gcastillolaw.com or click here |
To schedule a consultation, please call tel. (281) 980-1385 or (281) 340-2027.
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INSIDE THIS ISSUE
GERMAN CASTILLO LAW OFFICE, P.C.
| Immigration Law and Intellectual Property |
| A P r o f e s s i o n a l C o r p o r a t i o n |
| German Castillo Law Office, P.C. 14090 Southwest Freeway, Suite 300, Sugar Land, TX 77478 Tel (281) 340-2027; (281) 980-1385; Toll Free Fax 1 (866) 416-0059; California: Tel (650) 270-5239 INTERNATIONAL OFFICE: PHILIPPINES: 6/F Padilla Building, Emerald Avenue, Ortigas Center, Pasig City, Philippines Tel (63-918) 906-8142 Fax (63-2) 631-1546 |
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