Published on Lawyers.com and the Epoch Times on September 18, 2015

Q & A 1. 2. 3. 4.

Q&A 1.

I-601A and Misrepresentation Fraud

My husband came into the country on a fake visa, he thought it was the real deal and later found out it was fake. And he was involved in a string of visa fraud in Argentina. they withdrew his application sent him back on the airplane home with his own ticket he paid for was never charged , so what we are asking will he qualify for the 601A or do we need to do an 601 regular.

Mr. Lee answers:

The I-601A program contemplates an individual being here in the U. S., not a person who is already outside the country. Your husband will have to do a regular I-601 waiver following denial of the immigrant visa at the home consulate and wait overseas while it is being adjudicated.

Q&A 2.

O-1B Visa Has Been Approved. Can I Leave the U.S. While I'm Waiting?

After studying in Boston for almost 3 years, I moved to Seattle where I'm currently working since August 2014 with an OPT, which expired in August 2015. I've applied for an O-1b (Artist Visa) which has just been approved yesterday (it took almost 2 months!) and the USCIS customer service told me that it might take up to 30 days to process. As far as I understand, my Petitioner is supposed to receive a package (form I-797 maybe?) with instructions on what to do next, by October 1st. I would really like to go back to my country in September, but I'm not sure if I'm allowed to do so, since my OPT expired. Is it true that I need to go back to my country anyway to get the Visa at the American Embassy? Can I ask my petitioner to send me the documents to my country, once he receives them?

Mr. Lee answers

If you timely applied for a change of status along with classification under the O-1B category, you are allowed to remain in the U. S. without leaving assuming that the change of status was granted along with the O-1B. That information will be on the approval sheet that is sent to the petitioner. That being said, if you decide to leave the U. S., you must apply for the O-1B visa at the American consulate or embassy unless you are a Canadian national. You can have your employer send the documents to you when you are out of the country in order for you to arrange an interview with the American consulate or embassy.

Q&A 3.

DAPA Recipients

We are eligible for DAPA.  My fiancé has a green card application from 95.  I-130 was approved. We have three citizen kids.  He had one incident where he got arrested.  He had a shotgun, lots of charges but they were ALL withdrawn/dropped. No charges at all. Will he still be eligible for any of this? He was charged but never convicted.

Mr. Lee answers:

For a person to be excludable under U. S. law based on crime, there must either be a conviction or the admission of excludable acts. Unless your husband admits to the charges, he would not be excludable and would remain eligible for a green card and DAPA.

Q&A 4.

How Can She Stay Here to Have Baby and Will Baby be US Citizen if Born in the US to a Guatemalan Mother and Dual Guatemalan/US Citizens Father?

I'm asking for a handyman employee of mine: He has dual Guatemalan and US citizenship; she is only a Guatemalan citizen, residing in Guatemala. Currently, she has been visiting here in Florida for 7 weeks. She is now 6 weeks pregnant; baby due in April. Apparently she has a 10 year D-something visa to visit the US but must leave the US every 6 months (that will be December 26). They were married in Guatemala in May 2013, but not here in US, although attempting to have it recognized here. For health reasons she wants to stay past the 6 month Visa restriction with her husband and have the baby here, have marriage recognized here, and ultimately live here in US with husband and child.

Mr. Lee answers:

The potential difficulty here is that the couple was married prior to her coming to the US and U.S.C.I.S. may think that she came to the US with the intention of never going back. On the other hand, good things in your friend's favor for arguing that she did not try to circumvent regular US immigration procedures of waiting overseas could be that she was not petitioned for permanent residence prior to coming to the country (if that is true) , an intervening event occurred that made her reluctant to go back home (the pregnancy), and if she had the 10 year visa previously and not just for this trip. (Kindly note that I assume that you mean that she has a B visa instead of a D visa. The latter type of visa is for crewman such as a flight attendant and such individuals are not eligible to adjust status in the U. S.) 

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.