Published on Lawyers.com and the Epoch Times on October 18, 2013
Q & A 1. 2. 3. 4.
Q&A 1.
Can I File at the US Embassy for Reentry Permit for All of My Family?
In 2006 myself and my wife and two children were granted green cards through the diversity lottery program. We traveled in 2006 and in 2007 to USA and stayed there for short period of time. Since 2007 we have not traveled again to USA. In 2012 my wife gave birth to our third child but my third child - son does not have a green card. Now we want to relocate back in USA and use our green cards which will expire in 2017. Can we use our green cards to live, work and for our children to study in USA? Are our green cards still valid? I found in Internet we can apply for reentry permit, can we? How our third child can come with us to USA since he has no green card? What we need to do? We have relatives in New York and would like to stay with them at first. We are in Turkey right now.
Mr. Lee answers:
You appear to have lost your right to permanent residence by not having returned to the country since 2007. If you and your family attempt to reenter the States with your green cards, you will likely encounter problems with Customs and Border Protection once it understands that you have been out of the country for so long. A reentry permit can only be legally applied for while you are in the country. As you no longer have a right to come to the US with your green cards, your third child also has no right to enter. It appears that you would have to go through the immigration process all over again in order to come to the US as immigrants.
Q&A 2.
Tourist Visa
I'm married to a US citizen for 3 years now, I just got my 10 year green card last month. I can apply for US citizen now coz I've been married for 3 years for a US citizen. I'm thinking to bring my mom for a visit this Christmas and I've been told that I cannot do that because I'm not a US citizen yet. My question is if my husband who is a US citizen can do the paperwork asking that he wants to bring his mother in law for Christmas. If yes, how much it will cost for all the paperwork and what we need to do next.
Mr. Lee answers:
We do not quote fees while answering questions on lawyers.com. For fees, you would have to contact us for a consultation. As for your other questions, since your husband is a US citizen and you are a green card holder, either you or your husband could invite your mother over for a visit. Visiting visas are given in the discretion of the American Consulate. Besides the forms, your mother would have to present some evidence showing her intent to return to the home country after the visit. You and/or your husband would supply an affidavit of support on form I-134 and supplement it with materials such as job letter, bank letter, and tax return. You and/or your husband could also write a letter of invitation outlining your plans when your mother arrives and guaranteeing that she will return home after the period of visit.
Q&A 3.
Question Regarding Last Action Rule in Case of H-1B and H4 Becoming Valid on Same Date
I am on L-1B visa for Company A. My wife is working on EAD (L2 dependent).Company B filed for my H1B and H4 for my wife and it has been approved on 25th June. Meanwhile, my wife also has got her H1B approved from Company C and was approved on 16th May. Questions:
1) On Oct 1st, my H1B with Company B will become valid and so will my wife's H4 filed by company B. My wife's H1B filed by Company C also becomes valid on that date. Does this mean she will be on H4 status on 1st Oct?
2) In case she is on H4 status on 1st Oct, can we do something now i.e. before 1st Oct so that her status changes to H1B on 1st Oct? Can it be expedited?
3) Can we file for cancellation of her approved H4?
4) Should she go out of country and enter on stamped H1B visa after 1st Oct? 5) Can we file Change of Status request right now so that she is on H1B on 1st Oct? Can it be done in premium?
Mr. Lee answers:
Under the last action rule, the last action taken by U.S.C.I.S. is the one that controls the status of the individual in the country. Your wife is presently on L-2 status and she has both H-4 and H-1B statuses which will become valid on October 1. In that situation, she should send a withdrawal letter to U.S.C.I.S. requesting that her H-4 approval be canceled. In this way, she will maintain her L-2 status until the H-1B becomes valid for work on October 1. There is no need for your wife to leave the country after October 1 and reenter on a stamped H-1B visa unless she really has plans to travel at that time as long as she takes the step of notifying U.S.C.I.S. that she wishes a cancellation. A cancellation request is done by letter and not accompanied by fee. Therefore there is no premium processing for such a request.
Q&A 4.
L-1B RFE Moved to H-1B
I got RFE on my L-1B Extension in august 2012 mean while my fresh H1B got approved in October 2012 through different Employer B and I move to H1B. My L1B employer withdrew the petition after I moved to H1B. Now I am planning to move to different Employer C who is will to process my GC. Is it safe to move to new employer on receipt? Will I get any question during my GC about my L1B RFE period and transition to H1B period? Will there by any impact of my move from L1B RFE to approved H1B jumping?
Mr. Lee answers:
As you presently have H-1B status and are contemplating a move to a different employer who will undoubtedly sponsor you for a new H-1B, you can transfer to the new employer upon obtaining a receipt of the new H-1B filing. The difficulty that you may have is the same as everyone who takes advantage of this rule since you will have left the approved employment for new employment which is not yet approved. If the H-1B transfer petition is denied, you would be out of status. If your new employer sponsors your green card process, you should not have to worry about the period of time that you received an RFE on your L-1B petition. After all, U.S.C.I.S. did approve your initial H-1B petition.
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