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:
- 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.
- 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.
- If we move to another state before I receive a permanent Green
Card, what procedures are we supposed to do?
- Is it correct that we file my son’s case under I-130?
- 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?
- 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?
- Are there any other ways to shorten the time for my son to
come to the U.S?
- Which visa is the most appropriate for him to apply when he
goes to the American consulate?
- If we move to another state, will it affect my sons’
immigration case?
Ms. Huang
Dallas
Dear reader:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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