Published on Lawyers.com and the Epoch Times on August 22, 2014

Q & A 1. 2. 3. 4.

Q&A 1.

H4 and H1 Questions

My wife is currently on H4 and she is planning to apply for H1 now. Assume that she gets H1 but she does not work for next 6 months. Now after 3 months, I am planning to apply for H1 extension, would I able to still apply for H4 extension for my wife along with my H1, because of her unused H1B.

Mr. Lee answers:

U.S.C.I.S. goes by the last event rule. For cap H-1B’s, the effective date would be October 1 or whatever date afterwards the H-1B change of status for your wife is granted. If your wife is not asking for a change of status to H-1B, the effective date would be when she returns from overseas with the H-1B visa. If your H-1B/H-4 petition is approved under your wife’s first situation requesting the change of status, the result would likely depend upon the date of your approval. If before the H-1B comes into effect, her employer could simply request a withdrawal of the H-1B. If after, your attempt to extend her status would probably be ineffective since it would be inappropriate to extend where she needs a change of status. In your wife’s 2nd situation of not asking for a change of status, your H-4 extension would be appropriate at any time before she enters from overseas with the H-1B visa.

Q&A 2.

U.S. Citizenship

I am currently a permanent resident of the US and would like to become a citizen. I have lived in the US since 1987, and have two American children, as well as a residence in FL. I recently returned to Canada in January 2014. My question is regarding the 3month physical presence requirement, since I am in Canada. What are my options for applying for citizenship?

Mr. Lee answers:

The three-month state residence requirement is not applicable to those returning to the same state or U.S.C.I.S. field office jurisdiction after the trip abroad. As long as you are still returning to the same residence, you can apply for your citizenship at this time.

Q&A 3.

Could the Department of State Argue that Since I Was Giving Child Support, I Was Separated from My Wife and Affect Petition Process?

I was a J1 visa holder. I married a Permanent Resident 3 years ago and we had a child in the US. I recently moved to my country to comply with the 2 year HRR. We decided that she will stay in the US to finish her college degree. She is now applying for public assistance to be able to pay for tuition, daycare, and other expenses after our savings are gone. However, the department of Human Resources told her she has to open a case for child support in order to receive public assistance. We haven't brake up. I am not missing child support payments. I send 50% of my salary every months, which is not that much in the US, to support my family. If child support is ordered, could this affect the petition process when she decides to file a petition for me? Should she continue with the process?

Mr. Lee answers:

In addition to filing a petition for you, your wife will also have to file an I-864 affidavit of support. As she is applying for public assistance, she would not appear to have the wherewithal to guarantee your support in the country and would have to have a cosponsor do such. A consular officer may be curious as to why a cosponsor would be willing to sponsor you financially if he or she is not financially supporting your wife. The question of the child support goes also to the issue of the financial support that can be shown for you. As you are sending 50% of your earnings to support the child, there would be no negative implications on your good character even if the amount does not entirely cover the cost of your child's support. 

Q&A 4.

Selective Services

I am 35 this May. I am applying for us citizenship, but never knew about the selective services. Was here at that time? I was 29 when I got my green card.  Before that I was an illegal alien from 21 to 28. Please help what do I need to put on the question at the U.S. citizenship form.

Mr. Lee answers:

Many people are in your situation who did not know about the need to register for Selective Service before or even after applying for the green card. You will have to obtain a letter from Selective Service and accompany that with your own letter explaining that you never knew about having to register for Selective Service previously. On the form itself, you would knowledge that you were required to register, but did not. 

Copyright © 2003-2017 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.