Published on Lawyers.com and the Epoch Times on October 4, 2013
Q & A 1. 2. 3. 4.
Q&A 1.
Can Deferred Action Person Qualify for Adjustment of Status I-130?
If a person is being petitioned by spouse who is a U.S. citizen, can one qualify for petition without having to leave the country? I read about the I-130, will one qualify for that?
Mr. Lee answers:
The I-130 petition for alien relative only verifies the relationship between the parties and that the petitioner is either a US citizen or lawful permanent resident. Adjustment of status is done through form I-485 application for adjustment of status to permanent residence. In your question, the individual attempting to qualify for adjustment has received deferred action, which I imagine is through the administration's recent Deferred Action for Childhood Arrivals program. If the individual came to the US legally, he or she could adjust status to permanent residence upon the petition of a US citizen spouse. Otherwise the administration's program does not give a special privilege or status by itself to allow its approved participants to adjust status. That being said, the program has a component under which approved applicants may be able to apply for advance parole to leave and reenter the country legally. Although nothing has been said so far, there is the distinct possibility that leaving and reentering the US under an advance parole would allow the individual to be considered eligible for adjustment of status if married to a US citizen.
Q&A 2.
DO I Eligible for H1B CAP Exempt, Please Help Me.
Hello Experts, I got my first H1B approval in 2006 and came to US in 2007 and starting working from then. And came back to India in 2011 and my visa got rejected when I went for stamping,reason insufficient docs . From 2011 till 2013 till date working offshore(India) with same client. Now i want to apply H1B again with another employer as my job is confirmed. And i was inside US on H1B status for about 3years and 2 months. Can i apply for remaining period under cap except as my first H1B approval got in 2006? Thanks all for your help in advance.
Mr. Lee answers:
Yes, you should be able to apply for the remaining period of up to the six years limit if you are approved for another H-1B petition. The time that you have spent working for the same employer overseas does not count towards the six-year limit. U.S.C.I.S. gives you the choice as to whether to come to the US under a new H-1B cap if available or under your former H-1B petition.
Q&A 3.
Do I Have the Right to Reclaim that Fee?
I hired a lawyer for my visa application to work in the US. I paid for the lawyer fees while the company I worked for would pay for the visa application fee ($2400). The lawyer cashed the companies check order that the INS was suppose to cash a new check from him. In April 2013 the lawyer filed my visa application to the INS but the application returned together with the $2400 application fee (annual visa cap was reached). The lawyer kept the fee in order to apply for the visa next year on my behalf. Now the company I worked for is bankrupt. Can I claim this fee now, although my lawyer received that money from that employer? Thanks.
Mr. Lee answers:
As the company sent a check to the lawyer, the $2400 appears to be the property of the bankrupt company and not you. There does not appear to be from your fact situation any contractual arrangement between you, the company, and the lawyer that would give you any rights to the company's money.
Q&A 4.
I Became Permanent Resident in 2010, Have Been Married for 20 Years. My Husband is in Undocumented Status. We File Taxes Separately. May I Petition Him?
Mr. Lee answers:
Looking at the September visa chart, the F-2A category for spouses and unmarried children of lawful permanent residence is now current, which means that any immigrant visa petition that you file on his behalf would not take long to bring to fruition provided that the category does not backlog. He would not be eligible to adjust status to permanent residence since he is undocumented, but a choice that you could both think about would be your petitioning for him, having him consul process his paperwork, and upon mandatory refusal by the Consulate or Embassy, file a waiver of the bar for being illegal in the country. (I assume that your husband has no other grounds of exclusion). You could also wait until you become a US citizen before applying and, dependent upon whether your husband entered the country legally or not, be able to have him adjust status here without leaving or go through the I– 601 A program under which he would apply for and wait for the results of the illegal presence waiver application in the States before deciding to go overseas for the immigrant visa interview. Also your husband could wait for the results of action in the House of Representatives on comprehensive immigration reform, which should be decided by the end of the year.
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