Q & A June 11, 2006

Q & A 1. 2. 3.


Q&A 1.

Interviewing for an H-1B Visa Outside the U.S.

Web Lee Reader asks:

I obtained H-1B status in U.S. in 9/04 using my original name, the same year, I went back to Taiwan and received the H1-B visa at AIT. I am currently working in U.S.. However, I changed my name in 2005, and filed the labor certification thru an attorney under the new name 2 months ago. Because I am planning to go back to Taiwan, I inquired with AIT and USCIS with the name issue. AIT indicated that I must have the new name on I-797 before I could go back to Taiwan applying H1-B visa; and USCIS told me to file an amended I-129 with my new name in order for me to obtain I-797 with the new name. I have submitted the Amended I-129 to the USCIS at this time. My questions are:

1. If I successfully obtain the I-797 with the new name, when is the best time to go back to Taiwan for H-1B visa?
2. Should I complete the Taiwan H-1B visa before my attorney filing the I-140 or I-485?
3. If I go back to Taiwan for the H-1B visa after the I-140 or I-485 was filed, will I be denied visa due to the filing of immigration status and must stay in Taiwan until the change of status is complete?

Dear reader:

1 The timing of when to travel to Taiwan to apply for an H-1B visa will be largely up to you and your employer. If you are concerned with waiting times, you can check the Department of State website for the current waiting times of visas in Taipei.

2 The filing of an I-140 or I-485 has no effect upon the ability of an H-1B holder to obtain an H-1B visa at U.S. consulates or embassies.

3 No. However, an H-1B visa may still be refused on other grounds such as inability to show that this is a valid position, or problems emanating from prior visa applications or an illegal status in the States.

Q&A 2.

Options for a U.S. Citizen in Bringing the Boyfriend to the States

Chen Reader asks:

I have just received my U.S. citizenship. I want to marry my high school boyfriend, who is a Chinese but currently in England studying. I want him to come to the U.S. as soon as possible. My questions are:
1. Can my boyfriend adjust stats in the U.S. if he uses B1 visa entering the U.S. and then get married here?
2. How long will it take if I apply for him as fiancé? Do I have to go to England visiting him? What documents do I need?
3. How long will it take if we get married either in England or China and apply immigrant for him?

Dear reader:

1 Individuals who enter the United States under B-1 or B-2 visas (business or pleasure) must have the right intention at the time of obtaining the visa and at the time of entering the U.S. consistent with the restrictions on those types of visas. If your boyfriend is only using the B visa to enter in order that he can marry you and adjust status in the U.S., this might be seen as some form of visa or entry fraud by a U.S.C.I.S. examiner.

2 A better alternative is the K-1 fiancee visa if you both intend to marry and have him adjust status in the States. Typically your boyfriend should be able to come over from England within six months from the date of your application at the U.S.C.I.S. service center having jurisdiction over your place of residence. You must have the intention to marry within 90 days of his arrival in the U.S., have a bonafide relationship with him at this time, and have seen him within the past two years. You should provide documentation of your relationship including photographs and other evidence of your communications, and proof of your U.S. citizenship. The application generally involves filling out the appropriate forms (I-129F and G-325A for both of you), providing passport type photos for both, and writing a statement detailing your entire relationship and intent to marry.

3 If you are married before making an application, you can either petition for your husband through a K-3 petition if you wish him here on a nonimmigrant basis (married version of the K-1) or through the I-130 immigrant visa process. The K-3 typically takes 2-3 months more than a K-1, and immigrant visa processing is generally longer. Immigrant visa processing in England would be quicker than in
China (estimate 6-8 months) because of the smaller numbers of individuals from that country attempting to immigrate to the States. The same processing in China usually takes between a year to a year-and-a-half if there are no complications.

Q&A 3.

Filing I-485 Adjustment of Status Applications and Leaving the U.S. on Advance Parole

Zheng Reader asks:

My wife and I came to the U.S. under B2 visa visiting our U.S. citizen son in Maryland. We received 6 months stay on I-94. We have already entered for 3 months and our son is planning to apply green cards for us. Our questions are:

1. Should our applications send to Chicago Center or California Service Center?
2. Due to our health problems, we need to go back to China for treatment. Can our son apply for us while we are in the U.S. during our legal stay period, and then we go back to China waiting for fingerprint and interview notice? Can we fill in our China address on the application so that the immigration can mail the notice to us directly?
3. What will be the consequences if we apply advance parole at the time of filing but we cannot come back to the U.S. within the time allowed?

Dear reader:

1 All family based I-485 cases are now sent to the Chicago lockbox of U.S.C.I.S. regardless of the place of residence of petitioner and beneficiary in the United States. The Chicago lockbox fees in the cases and transfers them for preliminary processing to the National Benefits Center aka Missouri Service Center in Lee's Summit, Missouri. If sending by the Post Office, you should use the address:

U.S. Citizenship and Immigration Services,
P.O. Box 805887,
Chicago, IL. 60680-4120.

For non-U.S. post office deliveries like FedEx and other private couriers, use the address:

U.S. Immigration and Immigration Services,
427 South LaSalle, 3rd floor,
Chicago, IL.. 60565-1098.

2 Once an adjustment of status application has been filed, leaving the U.S. without advance parole invalidates the I-485 adjustment filing (unless individuals hold H or L statuses). If you cannot wait for the advance parole, your son can file for an I-130 (petition for alien relative) on your behalf at the service center having jurisdiction over your son's place of residence and can have the approved petition forwarded to the American consulate in Guangzhou. You would then present documents and interview in the American consulate for your permanent residence.

3 U.S.C.I.S. typically gives 1 year validity on advance parole authorizations (Form I-512). The approval allows multiple entries during the one year. U.S.C.I.S. does not of course encourage individuals to spend most of the time outside the U.S. while waiting for their adjustment of status cases to be completed. Currently, however, there is no hard and fast rule as to how long an individual can be outside the United States during the authorized period of advance parole. In your case, your worries about exceeding the period of parole while waiting for your I-485 case will probably not be realized as U.S.C.I.S. is scheduling most adjustment of status cases for interview within six months of the date of filing if it believes that an interview is warranted. In cases like yours (parents of a petitioning U.S. citizen), U.S.C.I.S. may decide to waive the interview requirement and to approve your cases without interview. If you are outside the United States on advance parole at the time that the approval is given, you should re-enter the U.S. in order to be accorded the proper status.

 

Copyright © 2003-2006 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.