Q & A December 12, 2004
Q & A 1.
Q&A 1.
A bonafide B-1 or B-2 visitor can adjust status in the United
States
Reader Guan asks:
1. I entered U.S. in June under Hong Kong’s B1/B2 visa. The
approved stay in the country at the customs entrance was 6 months.
Can I apply for any working permit in U.S. using a B1/B2 visa (if
I have an employer to sponsor me) ?
2. When a non-resident and/or non-citizen wants to work in U.S.,
the employment data form usually is required to answer questions
like, if you can legally work in the USA, should we answer yes or
no? Because if an America company hires a person, in theory, the
company must be able to help the future employee applying for working
visa or H-1. Am I correct?
3. When an applicant who holds B1/B2 visa and is hired to work in
US, must the applicant go back to his country and apply employment
visa at the local consulate? Which government agency should the
employer submit its application?
4. Can a B1/B2 visa holder apply for adjusting status in U.S.? For
example, marring a U.S. resident or student F-1 visa?
5. Under immigrant petition for alien worker, there is an outstanding
teacher category. What is outstanding teacher? Do I need to obtain
an offer letter from America school before applying? Can a tutor
apply this category? Do I need a college diplomat?
6. Hong Kong and Macao usually does not have political and religious
persecution. Is it correct that people from these 2 areas are not
qualified for political and religious asylum as the people from
China?
7. If I marry a U.S. green card resident with a marriage license
issued in Las Vegas, what type of family category does it belong
to? Where should I submit the petition for alien relative and how
long will it take to process at the present time? Can I obtain working
permit prior to obtaining immigrant paper? Do I have to leave U.S.
when my B1/B2 visa expired?
8. In Hong Kong, a divorce will not be finalized unless a separating
period is met and a Court has issued a divorce paper. Can I get
married in Las Vegas with a green card holder without obtaining
the Hong Kong formal divorce paper and filled in the divorce date
as the separation date on the marriage paper? I believe that the
Las Vegas marriage bureau does not require submitting a copy of
the previous divorce paper before register for marriage.
Dear reader:
1. A B-1/ B-2 visa is not for work. However, nothing in the law
precludes a bonafide B-1 or B-2 visitor from changing status while
in the States in legal status.
2. On employment application forms, you should be truthful in stating
that you are not authorized to work legally in the U.S.. If you
wish to add that you are eligible for work upon sponsorship by the
organization, you can do so. Otherwise, the information you provide
would be misleading to an employer.
3. An applicant in valid B-1 or B-2 status may be allowed to change
status while in the U.S. without having to leave the country. Such
application would be submitted to the U.S.C.I.S. regional service
center.
4. A B-1 or B-2 visa holder may be able to apply for adjustment
of status to permanent residence. While in valid status, the visa
holder could marry an F-1 student and transfer his or her status
to F-2 dependent. (This of course is only a nonimmigrant change
of status). Marrying a permanent resident while in B-1 or B-2 status
will not make the applicant legal in the U.S. because of the long
backlog for this category and the U.S.C.I.S. ' rule that filing
a I-130 petition alone does not freeze an individual's legal status.
If the B-1 or B-2 holder becomes illegal during the period of waiting
for the quota to become current, he/she might not be able to adjust
status to permanent residence and might subject himself or herself
to the 3 or 10 year bars if he/she left the U.S.. Marrying a U.S.
citizen would be a viable way to obtain permanent residence even
for expired B-1/B-2 holders. Of course, this presupposes a bonafide
marital relationship in which the parties live together as husband
and wife.
5. The immigration laws allow all outstanding professors and researchers
to apply for permanent residence without the need for labor certification
so long as the institution is willing to offer them permanent employment.
You would obviously not qualify under this category given the tenor
of your questions.
6. It would be difficult for individuals from Hong Kong and Macau
to qualify for political asylum based on fear of persecution from
China at this time. Of course, if there is repression of these areas
by China in the future, the outlook could change.
7. Marriage to a permanent resident belongs to the F-2A category
which currently has a backlog of over four years. Upon marriage,
your spouse can submit an I-130 (petition for alien relative) to
the regional service center of the U.S.C.I.S. having jurisdiction
over your spouse's place of residence. If your spouse is close to
becoming a U.S. citizen, he/she may decide to hold off filing until
the citizenship is conferred. Under a recent U.S.C.I.S. memo, the
agency will adjudicate I-130 petitions when the priority dates become
current. In other words, your spouse might not hear anything from
the U.S.C.I.S. for four or more years after receiving the receipt
of filing. The I-130 filing does not confer employment permission
and you are not allowed to file for an employment card until you
are able to file an I-485 (adjustment of status to permanent residence)
application. If you overstay the period of B-1 or B-2 stay and your
spouse never becomes a U.S. citizen, you might certainly have problems
obtaining your permanent residence as detailed above.
8. A separation date is not a divorce date. If you marry before
the divorce is finalized, your new marriage would be bigamous. Meeting
the documentary requirements of the registrar in Las Vegas does
not determine the legitimacy of your marriage.
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