Published on Lawyers.com and the Epoch Times on November 13, 2015

Q & A 1. 2. 3. 4.

Q&A 1.

How a Canadian Citizen Whose Wife is American, Get a Working Visa in the States?

Both my wife and I are Canadian citizens, living in Canada but my wife is also an American Citizen. We are planning to move to California within few years and I was wondering how easy it would be for me to get a working visa in the States. One little detail: I also own a small (online) business in the States since 2007 and been paying taxes.

Mr. Lee answers:

If your wife is a US citizen, she can sponsor you for US permanent residence at any time. Since the I-130 relative petition and consular processing take approximately a year, she could begin sponsoring you about a year prior to your planned date of settling in the States. You would eventually interview for the immigrant visa at the American consulate in Montréal at which time your wife would have to show ability to support you financially. If not, she could have a cosponsor such as a relative or friend in the US guarantee your ability to live here permanently without becoming a public charge. I also note that your wife will have to demonstrate domicile in the US which can be shown by property, a record of voting, payment of taxes, job or promise of the job, etc.

Q&A 2.

B1/B2 to H-1B Change of Status (Already received a job offer)

I arrived in US on B1/B2 visa to visit my family and the visa is valid for 6 months ending in March 2016. I applied for a job online after one month of my stay as a visitor and after several rounds of interview I received a job offer letter from a company. The job is in line with my degree and is related to my professional experience. My question is can my B1/B2 visa be converted to H1B now that I have a valid employer and what is the process to convert my B1/B2 visa to H1B and how long it will take.

Mr. Lee answers:

The first question here is whether your employer is cap-exempt or not. Under the immigration laws, most H-1B's are applied for under a cap system in which organizations make the applications in the first five business days of April and if the case is accepted and approved, H-1B work can begin in October. The exception is for the cap-exempt cases which can be filed at any time. Those are cases filed by institutes of higher education, nonprofit organizations affiliated with or related to institutes of fire education, nonprofit organizations performing research, and government organizations performing research. If you are being sponsored by a cap-exempt organization, it could put in an H1B petition for you and request a change of status to H-1B now. If not, you would become illegal in March even if your employer sponsored you for a cap H-1B in April since the work would not be available until October. You would have to figure a way to keep yourself legal until October if you wanted a change of status. Otherwise you could leave the US and wait for the H-1B to be approved and the work to become available in October 2016. Under such circumstance, you would be allowed to enter the US on September 20, 10 days before the allowable date for beginning work.

Q&A 3.

Convert E3 to H-1B

What is the likelihood of getting H-1B visa at the consulate if I try to convert from E3 to H1B provided I have an approved petition?  I can't think of any good reason to provide to Visa officer other than I have to apply for green card. Since H1B is a dual intent visa whereas E3 is non dual intent, is that going to raise the red flag?

Mr. Lee answers:

If you have an approved H-1B petition and are holding an E-3 at this time, there is every good possibility that you will be given the H-1B visa as long as there are no other questions of substance by the Consulate. It is a perfectly valid reason to switch over to H-1B that you wish to immigrate in the future. The H-1B visa as you point out is a dual intent visa which everyone including consular officers are aware.

Q&A 4.

I got an Asylee Status Staying in US for 4 and a half Years Already. Can I Go Back to that country for a Short Visit?

I would like to pay a short visit (2 months) to my home country from where I departed to seek a political asylum in the US a few years ago? Will it have any implication on my current PR status / US citizenship application in near future?

Mr. Lee answers:

U.S.C.I.S. discourages persons who have gained political asylum from attempting to return to their homeland of persecution until they have become US citizens and this country can better protect them. That being said, the fact that you have already had political asylum and permanent residence granted means that sufficient time has passed so that it would be difficult for anyone to accuse you of having submitted a fraudulent political asylum application. Also circumstances may have changed in your home country during that period of time that affect your view of whether you would still be persecuted. Finally the length of time that you are thinking of going back – two months – is sufficiently short so that most immigration inspectors would not be overly concerned when you return.

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.