USA Immigration News & Answers

Question: My mother came to visit me when I had an operation in 2007 and its been so wonderful to have her here that I don’t want her to leave -I am getting really spoiled with her cooking for me every day.

I am a U.S. resident now, pending for my U.S. Citizenship, since  I filed in October of 2007. My mom’s I-94 expired last year in August, so we hired someone to file and extension and she got approved until February 2008. Now that her extension I-94 is expiring, I really don’t know what to do.

I was wondering a few things: First, how many extensions can a person apply for? Second,  if  my mom overstays the time allowed, will that effect her once I file for her Green Card after I become a U.S. citizen?

Answer:  That’s a good question. While a visitor can often obtain one extension for an additional six month’s stay, it can be very difficult to obtain approvals for additional extensions. When applying for any extension, it is necessary to provide detailed reasons as to why the extension is needed, this is even more crucial for a second extension. The USCIS makes the determination on a case-by-case basis and  can always deny the extension, if they are not convinced that the person truly intends to remain here as a non-immigrant, i.e. only on a temporary visiting basis.

In most cases, I would advise against filing a second extension because of the risk of denial. However, because you will be a U.S. Citizen soon, it is possible for your mother to obtain her Green Card through you, regardless of her status, since she is an “Immediate Relative” (as are spouses, parents and minor children of U.S. citizens).

The only real danger is that once she overstays for 180 days, if you don’t file for her residency and she leaves the U.S. , she will be barred from re-entering for 3 years and if she remains in the U.S. over 365 days, then leaves, she is barred for 10 years. Another concern is that once she overstays for 180 days or more, even when you file for her Green Card, she will not be able to travel abroad during the processing of her U.S. Residency. In this case, she won’t be able to leave the U.S. until she obtains her Green Card, which could take more than one year.

Question: My girlfriend is currently here in Miami visiting me and she is  on a B1/B2 tourist visa. We are planning to get married next month. I am here on an H-1B work visa. Can she change her status to an H-4 without leaving the U.S.?

Answer: Assuming that you marry and file the change of status before your girlfriend’s current I-94 expires, then the request to change her status to an H-4  following your marriage can be done  without her having to leave the U.S.. It takes between 60 to 120 days to received the H-4 approval, so don’t worry if you don’t receive it right away.

The Department of Homeland Security recently issued tips for making Freedom Of Information (FOIA) requests. FOIA requests are generally made in immigration cases where an immigration case has been filed for the immigrant in the past and he or she does not have a copy of the applications and documents necessary to apply for a new immigration case.

Tips to remember when making a FOIA request include that the FOIA request should be for copies of documents, not for information. Requests for information will not be answered.
For instance, if you are seeking information such as the date you entered the U.S. and you know that an immigration application was filed in the past which contains that information, on the FOIA request, you would properly request a copy of the previous immigration case, for instance “copy of  I-130 & I-485 petition and all supporting documentation” , NOT merely requesting the date you entered the U.S..

Copies of immigration receipts and approvals, including forms I-797 Notices of Action, for instance regarding an I-130 approval are generally not available through a FOIA. In order to obtain a duplicate I-797 Notices of Action Approval Notice, Form I-824 generally needs to be filed. This can take from several months to a year to obtain.

Finally, original documents you may have mistakenly sent to the USCIS in the past cannot be obtained through a FOIA and information about another individual cannot be sought  without the individual’s consent. FOIA requests are generally made on Form G-639 (available online at: uscis.gov)  and must be in writing.

The National Records Center will not take requests over the telephone. The current address to file for G-639 to request copies of  immigration related documents is: 

U.S. Citizenship and Immigration Services
National Records Center, FOIA/PA Office
P. O. Box 648010
Lee’s Summit, MO 64064-8010
(816) 350-5570
Fax (816) 350-5785
uscis.foia@dhs.gov

Question: I heard about you in a newspaper article and I was wondering if you could give me some legal advice about filing for a family member.  I am currently  a permanent resident with a green card and in February 2008 I am  eligible to  file for my citizenship.  I was wondering if there was any  way I could file an application to sponsor my mother right now, so she can get her Green Card?

She came on a tourist visa but overstayed and has been here for over 6 years. Now her Driver’s License has expired.  I really hope there is something I can do to help her now.  I was also wondering if I could fill out the form and send it in for my  citizenship just before my five years of legal residency?  Any advice you  can give me will be greatly appreciated and thank you in advance for your  time.

Answer:   This is a very common question. Once you obtain your citizenship (approx. 1 to 1 ½ yrs or more due to recent expected delays in processing), you can file for your mom. There is no immigration category for a permanent resident (Green Card holder)  to sponsor a parent. Be careful, since if you file now, before you are actually a citizen, either your application will be returned to you, or the USCIS may accept your case, then deny it and you will lose your filing fees! Just be patient a little while longer and Good luck!

Question: I am graduating from high school soon and have begun the application process for attending college in the U.S. on a student visa. I applied for financial aid, but the college is requiring proof that I am an eligible Non-Immigrant Alien for Financial Aid ( Pell Grant etc.) What do I need to give them to qualify?

Answer: Generally, international students on F-1 Student visas are not eligible for financial aid. The US Dept of Education (DOE) requires proof of US permanent residency (I-551 stamp or greencard) for financial aid purposes.  Under the current rules, you can receive federal student financial aid only if you are a U.S. citizen or an eligible noncitizen. For financial aid purposes, an eligible noncitizen is one of the following: 1) U.S. permanent or conditional resident, 2 “Refugee,” “Asylum Granted,” “Indefinite Parole,” “Humanitarian Parole,” or “Cuban-Haitian Entrant” .

Foreign nationals in the following categories are not eligible for financial aid/grants, but may be eligible for state or institutional aid by completing the FAFSA for  that aid: F-1, F-2, M-1 student visas, J-1, J-2 exchange visitor visas, B-1, B-2 visitor visas, G, H or L visas “Temporary Protected Status” .

Get ready, H-1B visas are arriving again! The USCIS will begin accepting H-1B visas on April 1, 2008 for the new 2009 fiscal year, which begins on Oct 1, 2008. This means that you should start preparing no later than late February for the early April filing (Petitions are actually sent out on March 31st). Last year, H-1B visas were all used up within the first several days, with the USCIS receiving some 200,000 applications, for only 65,000 visas. Due to this overwhelming demand, the USCIS used a   “random lottery” system to randomly select application for acceptance for processing.

Estimates are that it will be worse this year. But remember, if you are applying for an H-1B and your I-94 will expire before Oct 1, 2008, if the USCIS approves your H-1B, it will be for consular processing, meaning you will need to pick it up at a U.S. consulate. With time getting so close, those of you who’s I-94’s are expiring may want to consider applying for F-1 student visas to fill the gap between now and Oct 1, 2008. 

Many people do not realize that USCIS regulations allow foreign nationals in the U.S. legally as tourists and those on other types of visas to change over to an F-1 Student Visa inside the U.S., without having to leave and apply for one abroad (which is often much more difficult). Even students who have graduated and are now on OPT, which will expire before Oct. 1, 2008 can go back into an F-1 status to fill the gap.

For background, the H-1B visa is the most common type of employment-based work visa. To qualify, the foreign national must have at least a Bachelor’s degree or it’s equivalent (12 yrs or more in a professional capacity) and must be sponsored by a U.S. company who is offering the foreign national a job which requires at least a Bachelor’s Degree. The H-1B is issued for 3 years and can be extended for another 3 years.

To obtain U.S. Residency (Green Card), the next step is to go through the Labor Certification process, now called PERM. Once the PERM is approved, if the foreign national possesses a Master’s degree (or Bachelor’s degree, plus five years of experience in the field) and the job offered requires a Master’s degree, he or she (and dependant family members) can immediately file for U.S. Residency and obtain the Green Card in approx 8 –18 months.

If the foreign national possesses a Bachelors degree, the I-140 Immigrant Visa is filed and there is a wait until a visa becomes available. Current waiting time for a visa in this category is about five years, however, once the labor certification and immigrant visa has been approved, the H-1B visa can be extended until a visa is available to apply for residency. 
Please Note: The USCIS provides 20,000 additional H-1B visas to individuals with Advanced degrees (Master’s or above) from U.S. universities.

Question: I just became  a US Citizen last week, I am planning on marrying my fiancée who lives with me . She said that she entered the U.S. legally and then later applied for an extension of her I-94 but it got denied, so she and her  kids stayed in the U.S. anyway. Once we marry next month, will I be able to file for her Green Card or is she ineligible because she is not in legal status? Also, she has two children, one 6 and one 9, can I apply form their Green Cards as well?

Answer:   If you are a US citizen and your fiancé entered legally, (with inspection by an immigration officer-being issued an I-94 card), then she should be eligible to adjust to a green card even though she has failed to maintain legal status. This is also true of her children. USCIS regulations allow U.S. Step-parents to petition for minor children of their spouses, as long as the step-parent relationship is established before the step-child’s 18th birthday.

This means that as long as the marriage takes place before the children turn age 18, you as the step-parent can sponsor the children for their Green Cards.

Question: Hi, most of my family is living in the U.S., so I really want to find a way to immigrate through my family. I  am 22 yrs old, currently here in Miami for the Christmas holiday and I have to go back home to  finish my last year of my university, but I might want to change to a college here. Is there anything I can right now to get started? Do I need an attorney to get a student visa?

Answer:  Well, that’s a really big question. Since I don’t know what relationship your family members in the U.S. have to you, for the benefit of our readers, I’ll go through all the possible categories with the timing (waiting line) for each:
U.S. CITIZENS SPONSORING FAMILY MEMBERS:
If you have a parent, brother /sister, spouse or adult child  in the U.S. who is a U.S. Citizen, a family immigration petition can be filed for you. The waiting time for an Immigrant visa depends upon what your relationship is to your relative.

For instance, if you have a U.S. Citizen spouse or an adult child, there is no waiting time at all, just regular USCIS and consular processing time (about one year). Also, if you have a U.S. tourist visa and you either marry a U.S. Citizen (real marriage) or you have U.S. Citizen adult child, you can stay in the U.S., file for your residency here and wait inside the U.S. to obtain your Green Card (usually about 6 months to one year).

However, if you have a U.S. Citizen parent and you are single, then you would be in the 1st Preference category (unmarried daughter of a US citizen) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in January of 2002 for most countries. That means a wait of about six years or so if the petition is being filed now.

If you have a U.S. Citizen parent and you are married, then you would be in the 3rd Preference category (married daughter of a US citizen) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in April  of 2000 for most countries. That means a wait of about seven to eight years or so  if the petition is being filed now.

Brother/Sister, called “sibling” petitions take the most time of all, in the 4th Preference category (sister or brother  of a US citizen) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in June of 1997 for most countries. That means a wait of about eleven to twelve years or so if the petition is being filed now.

PERMANET RESIDENTS (“GREEN CARD” HOLDERS) SPONSORING FAMILY MEMBERS:
If you have a spouse or parent  in the U.S. who is a Permanent Resident (“Green Card” holder) a family immigration petition can also be filed for you. And again, the waiting time for an Immigrant visa depends upon what your relationship is to your relative.

If you have a Permanent Resident spouse then you would be in the 2A category (Spouse of a Permanent Resident “Green Card” holder) which now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in January of 2003.  That means a wait of about five years or so if the petition is being filed now.

If you have a Permanent Resident parent and you are SINGLE,  then you would be in the 2B  category (unmarried, adult daughter of Permanent Resident “Green Card” holder) now (current Visa Bulletin December 2007) has Immigrant Visas for I-130 petitions filed in October of 1998.   That means a wait of about nine to ten years or so if the petition is being filed now. However, if you were to get married before your parent becomes a U.S. Citizen, the family petition would be cancelled, since there is no immigration category for the adult, married child of a Permanent Resident, only single adult children.

Student Visa (F-1):
If you were like to pursue your education here, you can apply to a U.S. college, take the TOEFL test, get the I-20 issued, then apply to the USCIS to change your status to a Student Visa (F-1) while you are still here, without going back, since it is often difficult being issued a student visa from a U.S. Consulate abroad.

Some schools will assist you in applying for F-1 visas with the USCIS and some will not, therefore it depends upon which school you apply to and how helpful they are in making sure that your application is properly prepared and complete, as to whether you need the assistance of an attorney or not. Good luck!

Question: I was a permanent resident when I applied for my wife to get her the green card about two years ago.  I just  became a US citizen a few months ago. My wife is living in America with me while she is working on an H-1B work visa. I want to file for her Green Card as soon as possible. Should I file another I-130 form and send all the information again or I should inform the immigration office that my status has been changed to Citizen and ask them to modify the first I-130 form for my status change?

Answer:  Now that you are a U.S. Citizen,  your wife can file for her adjustment of status to Permanent Residency. There is no requirement to notify the USCIS of your Naturalization before filing her Green Card application. The USCIS requires that either an approved I-130 notice, I-130 receipt notice  or new I-130 with the filing fee be included along with the full adjustment of status package to obtain your wife’s Green Card.

Since you already filed the I-130 for her, the I-130 receipt or approval would be enclosed, instead of a new I-130 application.  If your wife was outside the U.S. and processing through a U.S. Consulate, the USCIS would need to be notified to upgrade the I-130 and start the consular processing procedure through the National Visa Center.

Question:  I have a Travel Permit valid for 1 year and I want to go back home to visit for Christmas, then again in May of 2008 for my brother’s wedding. My question is - how many continuous days can one be outside the U.S.? How many times can I go outside the U.S.?

Answer:    There is no specific limit on the number of trips or duration, except,  you must return prior to the expiration of the travel permit (advance parole document). Therefore, if  your Form I-512 Advance Parole expiration date is 12/15/2008, you must enter the US on or before 12/14/2008.

Remember that adjustment-based residency applications require that you live in the U.S., therefore, it might not help your adjustment case if you remain outside during much of time you are waiting for adjustment, unless it is for purposes such as you describe, a wedding, short vacation, etc.