Q & A July 11, 2004

Q & A 1. 2. 3.

Q&A 1.

Dear Mr. Alan Lee:

Questions:

1. If I visit China or other countries, can I enter and leave the U.S. anytime during this period when I work here legally?
2. Should I apply for a reentry visa before leaving the U.S.?
3. I was told it is easier to have my visa done in a third country, e.g., Mexico. If I go to Mexico, can I return to the U.S. with my H-1 visa?
4. If I visit China directly, will I definitely obtain a visa there for returning to the U.S.?
5. What should I do to ensure that I would be able to enter the U.S. to work?
6. If I invite my parents to visit me, what criteria should I meet or what kind of documents I need in order for them to obtain visa? What type of visa should they apply? What is percentage of success?

Xiao
California

Dear reader:

1. Unfortunately you will not be able to travel freely during the time that you are in the U.S. on H-1B visa status. From your letter, it appears that you were granted a change of status to H-1B by the U.S.C.I.S., and that you do not have an actual visa in your passport at this time. The change of status allows you to remain in the U.S. pursuant to your H-1B status, but leaving the United States to travel to countries other than Canada or Mexico (on a short-term basis) would subject you to standard visa issuance procedures at the U.S. consuls or embassies before you would be able to return to the United States.

2. Advance parole is not available to H-1B holders unless they are able to qualify under other situations, e.g.-H-1B holder with an adjustment of status application to permanent residence (I-485) pending with the CIS.

3. There is a perception that visa issuance at the consulates in Canada or Mexico is easier than in many home countries. However, in order to qualify for H-1B issuance in these countries, you must have a prearranged appointment with the specific consulate. If the consulate after looking through your paperwork believes that the consulates or embassy in your home country would be better able to judge H-1B eligibility, it will deny the H-1B application. In such event, you must remain outside the United States until you can be issued the H-1B visa, unless there is some other basis for you to return to the States.

4. There is no guarantee that you will be issued a visa in China or any other country for return to the United States. However, the H-1B visa has a dual intent clause - that an individual can intend to immigrate while at the same time qualifying for an H-1B status so long as he/she is willing to return to the home country if the permanent residence application has not been completed by the time that H-1B status expires. Therefore U.S. consulates and embassies cannot deny H-1B visas on a charge of the applicant's having an immigrant intent such as in the case of other non-immigrant visas.

5. If you are truly worried about returning to the United States, you should perhaps think seriously about whether you are willing to take the risk that you may encounter difficulties in delay or actual visa issuance when applying overseas for the H-1B visa. If you do decide to go anyway, you should ensure that you are fully documented including having the original I-797 H-1B approval sheet, entire copy of H-1B filing, and originals of your educational documents, etc.

6. By virtue of the H-1B visa, you will be able to show financial support for your parents. You can also address a letter to the specific U.S. consulate or embassy guaranteeing their support, and that they will return to China at the conclusion of their visit; and send over an I-134 affidavit of support form with copies of your latest tax return, job letter, paystubs and latest banking statement. Your parents will be applying for B-2 visiting visas. The issuance of B-2 visas is in the discretion of the consular officer who interviews your parents. As long as the consular officer is convinced that they will return to China after the period of visit, he/she will issue the visas.

Q&A 2.

Dear Mr. Lee

I emigrated to the U.S. from Taiwan in October 2002, and obtained my citizenship at the beginning of 2003, since my parents were U.S. citizens and I was 15 years of age.)

Questions: Can I return to Taiwan in the near future? Will I be held in Taiwan for military duty reason?

California

Dear reader:

We do not purport to be experts in the law of Taiwan or any other country. We exclusively deal in U.S. immigration and nationality laws. Generally U.S. citizens are discouraged from enlisting in the military of other countries as this encourages dual allegiances. U.S. citizens are supposed to owe their allegiance to the United States only. We do note, however, that it is increasingly more difficult to take back U.S. citizenship once given. We communicated with the Taiwan Affairs overseas office in New York and received the following information:

If the male is under the age of 15, he can use a U.S. passport to travel. From January 1st of the year that he turns 16, he can renew his Taiwan passport and obtain an overseas status stamp of Taiwan after proving that he has been overseas for four years and has a U.S. passport. He can then travel to Taiwan for less than four months. Upon our asking what the circumstances would be if a U.S. citizen used his U.S. passport to travel to Taiwan, a representative said that if he held registration in Taiwan, he would be kept in Taiwan unless he had fulfilled his military service. Readers wishing to verify this information can call the Taiwan Affairs overseas office at (212) 486-0088.

Please further note that service in the armed forces of a foreign state is cause for taking away U.S. citizenship if such person serves as a commissioned or noncommissioned officer.

Q&A 3.

Dear Mr. Lee:

My relative, 56 years old, was granted to immigrate to the United States in 1999 and is a permanent resident. He has epilepsy. In the beginning, he would come to the U.S. twice a year (as to maintain his permanent resident status). Recently, his epilepsy has erupted a few times. He thought about seeking medical treatment in Taiwan because of the national medical insurance he has as well as other convenience such as those concerning medical expenses. He knew the medical expenses in the United States are extremely high. In case his epilepsy erupts, he would not be able to pay for the medical expenses. As a result, he dares not to come to U.S. to live with his family. Questions:

1. Are the patients of epilepsy in the United States qualified for medical insurance given by the government, especially those that are given to people who are disabled (he has filled a affidavit of support at the time of his application, that he, before becoming a citizen, can not apply for benefit)?

2. In his situation, if he cannot benefit from medical insurance from the government, is it possible to seek medical insurance from private insurance companies? What would likely be the monthly premium then?

Hsie

Dear reader:

1. As a sufferer from epilepsy, any emergency medical services are allowable in your situation. However, long-term institutional care may be a ground to invalidate your permanent residence. The taking of other benefits like Medicaid and food stamps do not constitute a basis to find that you are a public charge and subject to removal, but does not affect the authority of benefit granting agencies to seek repayment for these means tested public benefits from your sponsor under the I-864 affidavit of support which was signed as part of your immigration process.

2. As this is an immigration column, we do not canvass private insurance companies for their monthly premium rates. I do note that many insurers do not insure, have a waiting period for benefits, or restrict benefits in situations involving pre-existing conditions.

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.