Published on Lawyers.com and the Epoch Times on September 2, 2016
Q & A 1. 2. 3. 4.
Q&A 1.
Already Filed Form I-751 to Remove Conditions, Unfortunately Going Through Divorce
My wife and I filed to remove conditions on my permanent residency, I did the biometrics appointment, and I also received my form i-751. Unfortunately, we are filing for divorce. What should I do in this situation? Are there any forms I need to fill out once the divorce is final?
Mr. Lee answers:
Once you have commenced or completed divorce proceedings, you are no longer eligible to remove the conditional basis of your residence status through the joint filing of you and your wife. You must notify U.S.C.I.S. of the situation in order that the agency can consider your application on the basis of your having had a bona fide marriage which is now being dissolved or dissolved or some other basis. Please note that the agency cannot approve an I-751 based on a pending divorce, but will give you time to complete the proceedings.
Q&A 2.
C-1D Visa
I’m in c1d visa and I married an American citizen. May I apply for a green card or work permit?
Mr. Lee answers:
Just from your facts, since you came into the US under a C-1 transit visa with a D crewmen designation, you are not allowed to change to another non-immigrant status. Neither will you be allowed to adjust status to permanent residence in the US in the future unless you have the benefit of §245 (i), which allows most individuals who are illegal in the US to adjust status upon a fine payment of $1000 so long as they had an immigrant visa petition or labor certification application filed on their behalf by April 30, 2001 and were physically present in the US on December 21, 2000. If you have overstayed by 180 days or 1 year, you are barred from reentry for 3 and 10 years respectively. If that is the case and you are thinking in terms of marriage immigration, you and she may explore the possibilities of you applying for an I-601A waiver based on extreme hardship to her. Unlike the regular I-601 waiver, the I-601A allows a qualified individual to submit the waiver application in the States and wait for the result before deciding to go overseas for consular processing of an immigrant visa. Whether you are able to get a green card or work permit through political asylum or other means is something that cannot be determined as there are not enough facts in your question.
Q&A 3.
Marry to a Green Card Holder
I want to get married to the girl that already in US, she doesn't have any documents. I have a 10 years GC. Will it be faster for her to get a green card I will marry her now, and after I get a citizenship, we will send all the documents for her green card. Or should we just wait till I get a citizenship?
Mr. Lee answers:
When you say that the girl does not have any documents, I assume that you mean that she did not enter the country legally. If so, she will have to leave the U. S. in order to get the green card unless she is a beneficiary of section 245(i) under which an individual can adjust status to permanent residence in the U. S. if he or she had a labor certification application or visa petition filed by April 30, 2001, and was physically present in the U. S. on December 21, 2000. It would likely be faster for her immigration if you became a U. S. citizen. I note that if your girlfriend has been here without status for 180 days or one year after entry without documents, she would be barred from entering for 3 or 10 years respectively if she left the U. S. You and she may explore the possibilities of her applying for an I-601A waiver based on extreme hardship to you when you are married. Unlike the regular I-601 waiver which is only available after denial at a consular interview, the I-601A allows a qualified individual to submit a waiver application of the 3 and 10 year bars while in the States and wait for the result before deciding to go overseas for consular processing of an immigrant visa.
Q&A 4.
What is the Path of Least Resistance Toward Entitlement to Work for My Spouse?
Both my wife and I are Canadian citizens. We may be required to move to the US for a job in the near future, at which point I would be applying for an H-1B visa. It is my understanding that she would be issued an H-4 visa to accompany me. However, she would also like to work when we relocate. We're wondering what that process looks like. Notes: 1) I've read that selected H-4 visa recipients are now being allowed to work, but it's unclear to me what the conditions entail. 2) She would also be qualified for an H-1B visa should we be able to find a sponsoring employer.
Mr. Lee answers:
Generally speaking, persons holding H-4 status are not allowed to work. The exception is for those dependents whose spouses have had an I-140 preference petition approved or have applied for an extension past the standard six-year limit on H-1B visas (which can be given where the applicant has had a labor certification application pending for at least 365 days). If your wife is able to find a sponsoring employer for H-1B petitioning, it would have to either be a cap-exempt employer (Institute of higher education, nonprofit organization related to or affiliated with an institute of higher education, nonprofit research organization, or government research organization), or she would have to wait until an employer can sponsor her for H-1B under the H-1B visa lottery in April. If your wife is well known in her field, she may be able to have an employer apply for her under the O-1 extraordinary alien visa. She may have other options, but those would probably not fit your wish of the path of least resistance.
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