Q & A November 23, 2003

Q & A 1 2


Dear Mr. Lee:

During my OPT period after graduating from college, I found a Chinese company that was willing to sponsor me for an –H-1B visa. One month after I received the H-1 Visa, however, the company notified me that it was the last day for me to work, as I failed to pass the probation.

Questions:
1. Was the company unreasonable in some way?
2. Are there any laws that can protect me?

Mr. Wong
California


Dear reader:

  1. If you are on a period of probation, it would generally not seem unreasonable for a company to dismiss you if you have failed to pass the probation period. The fact that the company sponsored you for an H-1B visa status does not give you a right to a guaranteed contract with your employer. Whether there are other reasons which might make it unreasonable for the company to dismiss you is not apparent from your letter.
  2. As I do not know your particular circumstances other than what you have described in your letter, I cannot tell you whether you could be protected by civil rights laws, employment laws, etc. I note that labor laws dictate that you should be paid the amount which is stated on the H-1B forms. The employer is liable for the difference between actual wage paid and the wage as stated on the labor condition application which accompanies the H-1B filing.

Dear Attorney:

I got married with a U.S. citizen in January 2001. My husband petitioned for me in March 2001, and I got a conditional Green Card in September of the same year. He could petition for me to change the conditional one into a permanent one in 6/2003. My husband also petitioned for my son, who was 15 years of age and was the son of my ex-husband, in August 2001. The receipt we got in September 2001 said that it would take 175 to 225 days for my son’s case. After one-year waiting, we still didn’t hear anything from the BCIS. And no reply was made even when we wrote to BCIS in Taxes. We checked its website on 4/1/03, and the schedule had been changed to 990-999 days.

  1. If we move to another state before I receive a permanent Green Card, what procedures are we supposed to do?
  2. Is it correct that we file my son’s case under I-130?
  3. How long does it take for my son to be interviewed in the American consulate in Guangzhou, for he was petitioned by his U.S. - citizen stepfather, according to the current timetable?
  4. At the time when my husband petitioned for my son, he was only 15 years of age, will he be able to immigrate under the category of unmarried child (under age 17)? On the BCIS receipt, it said “under age of 21.” Was that the correct category?
  5. Are there any other ways to shorten the time for my son to come to the U.S?
  6. Which visa is the most appropriate for him to apply when he goes to the American consulate?
  7. If we move to another state, will it affect my sons’ immigration case?

Ms. Huang
Dallas

Dear reader:

  1. If you move to another state before the application to remove the conditional basis of your residence status is adjudicated, you should notify the office of BCIS which is holding your application by letter of your new address citing the receipt number of the application which you have pending before the BCIS. In addition, you should mal an AR-11 change of address form to the BCIS in London, KY.
  2. Filing of an I-130 relative petition alone for your son is correct if he is residing overseas. If here in the States, he could perhaps be eligible to adjust status to permanent residence at the local BCIS office.
  3. From the time that the BCIS approves the I-130 petition for your son, it can take anywhere from five months to a year for him to be interviewed at the American consulate in Guangzhou taking into consideration the time required to deal with the National Visa Center (liaison between BCIS and consular posts) and the consulate.
  4. As your husband married you while your son was under the age of 18, your son is eligible to emigrate as an immediate relative (unmarried child under the age of 21 of a U.S. citizen). It is fairly certain that your son will be interviewed before he turns the age of 21. However, if he passes the age of 21, he would still be counted as a child under the Child Status Protection Act.
  5. The method that you are applying under for your son is the quickest. I suggest that your son gather up all the documentation that he will need for his immigration so that he does not have to scramble for documentation at the final moment. These materials would include proof of birth, police certificates since the age of 16, passport, etc.
  6. It is most appropriate for your son to apply for an immigrant visa. He might find it very difficult to obtain other types of non-immigrant visas since he already had an I-130 petition for immigration filed on his behalf. Such filing would be proof of intent to immigrate, which is anathema to the granting of most nonimmigrant visas.
  7. If you move to another state, you should notify the Texas Service Center of the change of address. You might also check the processing times of the service center having jurisdiction over your new residence. If that service center's processing times are much quicker, you might consider filing a second petition with that service center.

 

Copyright © 2003 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.