Published on Lawyers.com and the Epoch Times on July 11, 2014
Q & A 1. 2. 3. 4.
Q&A 1.
Will I Have Problems With My Adjustment of Status?
I came to the US in 2012 on a J1 visa, I had a serious issue with the company and decided to send me back home but instead I overstayed for about 4.5 months. At time of leaving I didn’t have problems at the airport. Before I left I met a man who would become my boyfriend and who's now my husband. I was back home for about 7 months, when I decided that I wanted to go to the US to visit my boyfriend. I filled the form to apply for a tourist visa, in which I never said that I overstayed for almost 5 months, because I didn’t want to get in trouble. Anyway, I got my visa, came to the US, after almost 5 months in the US my boyfriend asked me to marry him, so we did. Now I'm filing to get my green card. My questions are: will I have any problems because of my previous overstay. Will they find out I lied about it on my visitor visa form? I'm really worried they going to deny my petition. What can I do?
Mr. Lee answers:
You have an interesting question, but I believe that you would likely have no problem when you apply for your green card as long as you are not subject to the 2 year foreign residence requirement. Most misrepresentations that we see have to do with companies and positions or family members in the US. I have not heard of a situation like yours being brought up at an adjustment of status interview.
Q&A 2.
May I be Qualified for an H-3 Special Education Visa Having a Background in Business?
I graduated in Business in my home country (Brazil). After that I came to US with a J-1 visa as an Au Pair. During this time I took care of 2 twins autistic kids and with this experience I got an opportunity to work for a company in US in a training program. I'd like to know if I would be qualified for an H-3 special education visa, since I'm planning to change my status of J-1 for a H-3 right now. Would this be possible?
Mr. Lee answers:
The H-3 visa involves a training program in which an organization offers to train someone with the goal that the training will benefit the organization when the training is complete and the beneficiary goes back to the home country. U.S.C.I.S. looks at the structure of the organization, the structure of its training program, whether it has trained individuals in the past, what is been the fate of those that it has trained, etc. You should discuss the possibilities of the H-3 visa with the company and perhaps with a lawyer familiar with H-3 program adjudications. I assume that you are not subject to the two year foreign residence requirement which is many times associated with obtaining a J visa.
Q&A 3.
F-2 to F-1 Change Of Status With Name Mentioned in Spouse's Pending I-140 EB2-NIW Petition?
I had a question regarding EB2-NIW. I am on F-1 visa (on OPT STEM) and have recently applied for EB2-NIW and my I-140 is currently pending. My wife has F-2 visa and her name is on my petition. She has recently admitted to grad school and wants to start her studies next Fall. I was wondering if she is able to file for change of status to F-1 and whether her name in my I-140 may cause denial of her F-1 or not, and if yes will that make any problem for the I-140 application or her F-2 visa status. Also, should she mention immigration intent in her F-1 application? Besides, is it any different if we both apply for I-485 based on pending I-140?
Mr. Lee answers:
Our viewpoint is that the I-140 petition is for the principal applicant and not for any dependents who are mentioned on the I-140 petition. Everything being equal, your wife should be able to file for a change status to F1 successfully. If she is in the US and applying for a change of status on form I-539, there is nowhere on the form to ask whether she has immigration intent. It is your choice as to whether to file the I-140 and have it approved first or file it with the I-485 adjustment of status applications provided that your priority date is current. If you decide to submit the I-485 applications at this time, your wife would forgo making an application for F-1 as she would already have applied for permanent residence.
Q&A 4.
Employment Authorization Document?
I am a permanent resident in USA and I am living in NJ now. My husband was entered to USA through Mexico in the last September / 2013 as an asylum and he has been released from a detention center in Louisiana after hearing interview on 10/18/2013 and the Supervisory asylum office has found that my husband has demonstrated a credible fear of persecution or torture. Also, his first court will be at July 15 / 2015. And now he is living with me since he has been released. Before one month I filed form I-130 for my husband and sent it to the USCIS center and they accept my application also they mailing me my husband USCIS ALEIN NUMBER. And now He need to work at this time because the green card procedures take long time I want to know the suitable form that he has to apply to make him authorized to work during the green card procedures period. I want to know how long this procedure takes and if there is a fee for that form?
Mr. Lee answers:
Your husband will not be able to obtain employment authorization through your petitioning for him. That is because there is no current priority date and he is not eligible to adjust status in the US as he is not in legal status. He may be able to obtain employment authorization through his asylum application, however. To do so, he or his attorney would have to file the asylum application with the office of the immigration court first and then after 150 days (assuming that it has not yet been denied), he would be eligible to apply for employment authorization on form I-765 employment authorization application. The legend for employment authorization for an asylum candidate is C –8.
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