World Journal Weekly Q & A - June 6, 2010

Q & A 1. 2. 3. 4.


Q&A 1.

Can Reader With Exclusion Order Adjust Status to Permanent Residence With I-122 Card Given at Entry?

A reader with exclusion order asks:

I used a snakehead in 1995 and he gave me a passport that I tore apart in the airplane before getting to the United States.  I was arrested by Immigration and let go after a few days.  I was given the white card which says I-122 for hearing in May 1995.  I went to court and lost my political asylum and lost again on appeal.  I am now married to a U.S. citizen and we have a child.  What can I do?

Dear reader:

With an I-122, you were in exclusion proceedings.  You are not counted as either having been inspected and admitted or paroled, two requirements for eligibility for adjustment of status to permanent residence.  In other words, the mode of your entry does not allow you to adjust under the regular law.  You may, however, adjust status to permanent residence despite the exclusion order if you are a beneficiary of Section 245(i).  That section allows adjustment upon payment of a $1,000 fine if the applicant is otherwise qualified and filed either an application for labor certification or immigrant visa petition by April 30, 2001, and was physically present in the U.S. on December 21, 2000.  Under an earlier and still effective version of Section 245(i), applicants can adjust status without physical presence in the country on a date certain if they either filed a labor certification application or immigrant visa petition by January 14, 1998.

Q&A 2.

MBA Reader Needs to Choose Between Two Possible Sponsoring Employers -- Which One?

A MBA reader asks:

I just received my MBA and have optional practical training until July 1, 2010.  I want to file for H-1B and the green card.  I have a choice of two sponsors, a dry cleaners with two locations or a capital trading company.  The dry cleaners has about 15 employees and the trading company about 60.  The dry cleaners has already promised to sponsor me for the green card and the trading company is taking a wait-and-see approach.  Which one should I choose?

Dear reader,

Strictly from an immigration viewpoint, the better choice for success appears to be the capital trading company.  That type of organization would appear to be more suited to your degree and have more need of your services than a dry cleaners.  The size of an organization also matters in the adjudication of H-1B petitions.  Assuming that both organizations have the financial wherewithal to guarantee a prevailing wage, the better sponsor in our estimation would be the capital trading company. 



Q&A 3.

How Can Reader Get Employer to Sponsor Under EB-2 Instead of the EB-3 Category?

A Hong Kong reader asks:
 
I am born in Hong Kong and hold a U.S. master's degree in architecture.  I work as a junior architect in one of the bigger architectural firms.  I have H-1B status until 2011 and my company is willing to sponsor me for the green card.  The problem is that the company's requirement for my job is only a bachelor's degree and one to two years experience.  With a bachelor's degree, I would fall under the third employment preference which is only available for applications filed by April 2003.  If I can do the advanced degree second preference case, my case will be quick because that category is open for people like me who were born in Hong Kong.  How can I persuade my employer to agree to do my case with a master's degree?

Dear reader:

An employer for labor certification can only request the requirements which are normal within the occupation and the company for the position to be certified.  A labor certification application asks only for the minimum requirements.  If your employer is adamant that a bachelor's degree is its requirement for the position, then you are unfortunately stuck with an employment third case if you and the company decide to go forward with the labor certification application.  I note that even if your employer agreed to put in a master's degree requirement, the Department of Labor might reject your case anyway on the basis that a junior architect position does not require a master's degree.  On the other hand, if your employer is willing to offer a higher position to you which does require a master's degree, then it would be possible for it to sponsor you under the employment second category.  Another alternative of course is to transfer your H-1B status to another organization with a position which requires a master's degree. 

Q&A 4.

What Are the Best Ways to Sponsor My Parents and My Brother?

A reader asks:

I want to file immigrant visas for my parents and brother.  I think my parents will receive their green cards in about 6 months and my brother’s case will take 8 to 10 years.  What are the best ways to sponsor them?

Dear reader:

You must file separate petitions for each of your parents and also for your brother.  Your parents fall within the immediate relative category, which does not allow dependents.  Although your times of 6 months for your parents to get the green card and 8-10 years for your brother to get one are slightly optimistic, your estimates are in the ballpark.  The question of whether and when to apply for your brother will depend upon his plans.  If he is thinking of coming to the U.S. to study under F-1 visa, a filed immigrant visa petition would be seen as a negative factor in applying for the F-1 visa.  That is because F-1 status requires a non-immigrant intent.  An I-130 petition filed on his behalf indicates immigrant intent.  The same thinking applies for a possible future application by your brother for a B-1 business visa or B-2 visitor visa.  Barring that scenario, you can apply for him under the F-4 sibling category at this time.  At a later point, your parents upon immigration could also petition for his immigration.  That category (F-2B) is backed up approximately eight years at this time.  If your parents subsequently become U.S. citizens (after the five-year eligibility period), they could conceivably knock down your brother's waiting period by approximately two years.  The faster way for your brother to obtain permanent residence if he is a university graduate might be for an organization to sponsor him for H-1B status as a non immigrant worker and ultimately sponsor him for labor certification.

 

Copyright © 2003-2012 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.