Q & A December 12, 2004

Q & A 1.

Q&A 1.

A bonafide B-1 or B-2 visitor can adjust status in the United States

Reader Guan asks:
1. I entered U.S. in June under Hong Kong’s B1/B2 visa. The approved stay in the country at the customs entrance was 6 months. Can I apply for any working permit in U.S. using a B1/B2 visa (if I have an employer to sponsor me) ?
2. When a non-resident and/or non-citizen wants to work in U.S., the employment data form usually is required to answer questions like, if you can legally work in the USA, should we answer yes or no? Because if an America company hires a person, in theory, the company must be able to help the future employee applying for working visa or H-1. Am I correct?
3. When an applicant who holds B1/B2 visa and is hired to work in US, must the applicant go back to his country and apply employment visa at the local consulate? Which government agency should the employer submit its application?
4. Can a B1/B2 visa holder apply for adjusting status in U.S.? For example, marring a U.S. resident or student F-1 visa?
5. Under immigrant petition for alien worker, there is an outstanding teacher category. What is outstanding teacher? Do I need to obtain an offer letter from America school before applying? Can a tutor apply this category? Do I need a college diplomat?
6. Hong Kong and Macao usually does not have political and religious persecution. Is it correct that people from these 2 areas are not qualified for political and religious asylum as the people from China?
7. If I marry a U.S. green card resident with a marriage license issued in Las Vegas, what type of family category does it belong to? Where should I submit the petition for alien relative and how long will it take to process at the present time? Can I obtain working permit prior to obtaining immigrant paper? Do I have to leave U.S. when my B1/B2 visa expired?
8. In Hong Kong, a divorce will not be finalized unless a separating period is met and a Court has issued a divorce paper. Can I get married in Las Vegas with a green card holder without obtaining the Hong Kong formal divorce paper and filled in the divorce date as the separation date on the marriage paper? I believe that the Las Vegas marriage bureau does not require submitting a copy of the previous divorce paper before register for marriage.

Dear reader:

1. A B-1/ B-2 visa is not for work. However, nothing in the law precludes a bonafide B-1 or B-2 visitor from changing status while in the States in legal status.

2. On employment application forms, you should be truthful in stating that you are not authorized to work legally in the U.S.. If you wish to add that you are eligible for work upon sponsorship by the organization, you can do so. Otherwise, the information you provide would be misleading to an employer.

3. An applicant in valid B-1 or B-2 status may be allowed to change status while in the U.S. without having to leave the country. Such application would be submitted to the U.S.C.I.S. regional service center.

4. A B-1 or B-2 visa holder may be able to apply for adjustment of status to permanent residence. While in valid status, the visa holder could marry an F-1 student and transfer his or her status to F-2 dependent. (This of course is only a nonimmigrant change of status). Marrying a permanent resident while in B-1 or B-2 status will not make the applicant legal in the U.S. because of the long backlog for this category and the U.S.C.I.S. ' rule that filing a I-130 petition alone does not freeze an individual's legal status. If the B-1 or B-2 holder becomes illegal during the period of waiting for the quota to become current, he/she might not be able to adjust status to permanent residence and might subject himself or herself to the 3 or 10 year bars if he/she left the U.S.. Marrying a U.S. citizen would be a viable way to obtain permanent residence even for expired B-1/B-2 holders. Of course, this presupposes a bonafide marital relationship in which the parties live together as husband and wife.

5. The immigration laws allow all outstanding professors and researchers to apply for permanent residence without the need for labor certification so long as the institution is willing to offer them permanent employment. You would obviously not qualify under this category given the tenor of your questions.

6. It would be difficult for individuals from Hong Kong and Macau to qualify for political asylum based on fear of persecution from China at this time. Of course, if there is repression of these areas by China in the future, the outlook could change.

7. Marriage to a permanent resident belongs to the F-2A category which currently has a backlog of over four years. Upon marriage, your spouse can submit an I-130 (petition for alien relative) to the regional service center of the U.S.C.I.S. having jurisdiction over your spouse's place of residence. If your spouse is close to becoming a U.S. citizen, he/she may decide to hold off filing until the citizenship is conferred. Under a recent U.S.C.I.S. memo, the agency will adjudicate I-130 petitions when the priority dates become current. In other words, your spouse might not hear anything from the U.S.C.I.S. for four or more years after receiving the receipt of filing. The I-130 filing does not confer employment permission and you are not allowed to file for an employment card until you are able to file an I-485 (adjustment of status to permanent residence) application. If you overstay the period of B-1 or B-2 stay and your spouse never becomes a U.S. citizen, you might certainly have problems obtaining your permanent residence as detailed above.

8. A separation date is not a divorce date. If you marry before the divorce is finalized, your new marriage would be bigamous. Meeting the documentary requirements of the registrar in Las Vegas does not determine the legitimacy of your marriage.

Copyright © 2003 - 2004 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.