Published on Lawyers.com and the Epoch Times on August 15, 2014
Q & A 1. 2. 3. 4.
Q&A 1.
H-1B Recapture
I have been in USA from 2000 - 2005 on H1B visa and returned to my home country. My visa expired in 2006. Now I found that I can recapture those unused days. Can you please let me know whether I am eligible to file H1B cap exempt and recapture the days I spent out of US now?
Mr. Lee answers:
Present law allows you the opportunity of either recapturing the time that you have left on your initial H-1B or applying for new six-year H-1B subject of course to the H-1B cap unless you are being petitioned for by a cap-exempt institution. In order for you to recapture, an employer would have to file for your new H-1B and the burden of proof would be upon you to show that you did not use up all 6 years.
Q&A 2.
O-1 Visa Application for Green Card
I'm from Europe and work in the US for a company who got me an o-1 visa, valid until 2016. I would like to start the process of getting a green card ASAP even though my Visa is still valid for 2 years. Can I apply independently or does the company have to be part of the process?
Mr. Lee answers:
If you are extraordinary in your field and meet the standards for EB-1A processing, you can essentially sponsor yourself as both the petitioner and beneficiary on Form I-140 petition for immigrant worker. While participation by a company is not required, statements by its personnel on how extraordinary you are and the level of work that you are doing along with verification of your continuing work and salary are usually included in this type of case.
Q&A 3.
I Need Information for Filling Out I-134 for My Fiancée
She needs to take it to her interview in Manila. I am self employed and in a partnership. My K-1 gross income for my share of the business is $36,000. My net is $24,789. My fiancé has 2 young boys and the poverty requirement of %125 is $29,000. I don't know which of my K-1 numbers they will look at. Is the gross before deductions going to be good enough to satisfy the I-134 affidavit of support?
Mr. Lee answers:
The figure that people look at is the gross income figure minus expenses. Where there is a difference between the amount of income needed and the poverty guidelines, you can add in bank accounts and other assets to make up the difference. You can also have a cosponsor give another affidavit of support to assure the consular officer that sufficient funds will be available for support.
Q&A 4.
Am I Still A Legal Immigrant?
I came to us in 1993. I have physically lost my green card document somewhere, and have no other id except my original county's passport, and a SS number I was given by the American IRS when I was young. Am I still a legal immigrant? Is there a way to verify my status? I have had some minor problems with the law here since then, but would like to regulate my immigration status now. Is that possible? How much would that cost? I’m Polish and in NJ.
Mr. Lee answers:
If you have taken no actions like leaving the US for long periods of time, you would still be considered a green card holder at this time. Even if the validity date on the green card expires, you are still a permanent resident. I suggest that you schedule an infopass with your local field office of U.S.C.I.S. to see whether an officer would be willing to look for your green card number. If it cannot be done that way, you could attempt to file a freedom of information act request with U.S.C.I.S. If that fails to yield the information that you require, you could attempt to approach Social Security and ask its representative to look into your file to see whether he or she could disclose your green card number to you. Once you obtain your green card number, you can file an I-90 application to U.S.C.I.S. to replace your lost green card.
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