Published on Lawyers.com and the Epoch Times on March 7, 2014

Q & A 1. 2. 3. 4.

Q&A 1.


My OPT Ends in Dec and my Employer has Applied for Form 9089 Before Filing I-140. I’m Going Back to School Fulltime. Can I Drop School?


My OPT ends this Dec and my employer has filed for Form 9089 certification for me. Since I need to maintain status I decided to go back to school fulltime in F1. Is it possible for me to drop school once this is approved after the end of my OPT Date? I understand if I receive a receipt number for the I-140 I can stay in status until my H1 is applied. Also what is the possible estimated time for the approval of the Form 9089 and to generate a receipt for the I-140?

Mr. Lee answers:

Without any problems, the 9089 PERM labor certification process takes approximately 8 months. Generating a receipt for the I-140 takes approximately 3 weeks. Unfortunately for you, receiving a receipt for the I-140 does not keep you in legal nonimmigrant status. Unless you are also able to file for form I-485 adjustment of status, you would be effectively out of status once you drop out of school. You would then be ineligible for change of status to H-1B although you could conceivably have the petition approved and pick it up outside the US. I also note that even if you were able to file for I-485 adjustment of status, that action would place you in a quasi legal status and not legal nonimmigrant status. You would still then be ineligible for change of status to H-1B and again have to pick it up outside the US.


Q&A 2.

I-864W for Kids

I am trying to help a waiter at a restaurant where I go for Lunch/Dinner regularly. Here are is details. Need some guidance with his family immigration please...particularly form I-864W.
1. He is a naturalized US citizen. He has been working in the US with contribution to Social Security since 1994. He has the necessary records from Social Security Administration.
2. His income is below the Poverty line. He has records of Federal Tax filings.
3. His wife and 2 kids are in Bangladesh. He has all marriage records. His son was born in March 2001 and daughter was born in April 2004. Since he has already contributed to Social Security for more than 40 quarters, it seems he surely can file I-864W for his wife. Questions:Can he also file I-864W for the kids? Will he have to file 3 separate I-864W or just one since both his kids are minors?

Mr. Lee answers:

The I-864W is not for the petitioning US citizen or permanent resident, but for those who are applying for permanent residence and can show that they have worked for 10 years in this country. In such case, they are not required to have an I-864 affidavit of support from a petitioner. However, they must be able to show that they will be able to maintain themselves at the poverty guideline level of 100%, and not necessarily the125% required of other petitioners to support intending immigrants.



Q&A 3.

Can I Exclude my Fiancé Son From Affidavit of Support Since He's Not Coming?

My fiancé has never been married, but has a son out of wedlock. Do we need to prove this at interview and prove she's decease? His son is living with his deceased mom's parents. We listed him on K-1 petition even though he won't be following or coming no time soon.

Mr. Lee answers:

As long as the American consular officer approves the K-1 visa, the decision of whether to bring a child or not is up to the petitioner and beneficiary. So you certainly can exclude your fiancé's son from your affidavit of support if he is not coming.


Q&A 4.

I Made False Statements in Previous Visa but They Refused me Under 214 (b) After that I apply for Immigrant Visa F2A

I have my I-130 approved and now my interview is soon. In my non-immigrant visa petition I put that I’m not married and now my certificate of marriage indicate the opposite. I’m ineligible for immigrant visa?

Mr. Lee answers:

At the visa interview, you would likely be refused based upon your past misrepresentation, but given an opportunity to apply for an I-601 waiver of excludability which is grantable if you are able to show that your being barred from the US would cause extreme hardship to a US citizen or permanent resident spouse or parent.

 

 

Copyright © 2003-2014 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.

 
   
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