Published on Lawyers.com and the Epoch Times on September 12, 2014

Q & A 1. 2. 3. 4.

Q&A 1.

Overstay and Marriage

I left voluntary the country after 11 months of overstaying my visitor visa. If I'll re enter the U.S. without inspection, illegally, and get married to a US citizen, will I have the possibility of having a green card?

Mr. Lee answers:

The difficulty of entering the country without inspection is that you will not be able to adjust your status to permanent residence here in the country unless you have the benefit of §245(i) under which individuals can adjust status even though illegal upon payment of a fine amount so long as they had a labor certification application or I-130 petition filed by April 30, 2001. Also you are probably aware that by overstaying your visitor visa by 11 months, you are barred from the country for 3 years from the date of your leaving.

Q&A 2.

Can a Person on H1 Open a Subsidiary LLC of His Foreign Corp. and Run Business?

He is sole owner of foreign corp.  He will hire USA citizen as a CEO and wife (on work visa) as director / HR administrator to oversee operations.

Mr. Lee answers:

A person on an H-1B visa is allowed to be a passive investor in an enterprise in the U. S. However, he or she is not allowed to run the business as that would be unauthorized work. If you will be entirely hands-off and only collect dividends from the operation, such would likely be OK. But if the idea is that you will actually run the business and only employ a CEO and director/HR administrator, that would likely be seen as unauthorized.

Q&A 3.

What is the Legal Validity of Payment Agreements for PERM Filing Costs by the Employer?

I read that the employer cannot hold the employee responsible for the costs. Is that true?

Mr. Lee answers:

It is true that an employer cannot hold the labor certification applicant responsible for costs associated with procuring PERM filing and approval. These costs include attorney’s fees, expenses, and advertising charges. These must all be borne by the employer. After the labor certification phase, the employee is allowed to pay for the rest of the case including I-140 and either adjustment of status or consular processing of the immigrant visa.

Q&A 4.

Can a Judgment of Indefinite Deportation on a Minor Drug Distribution Conviction be Reversed After a Certain Period? If So, What is the Process?

He was caught with and convicted of distributing marijuana and ecstasy and did 2 years in jail. After which he was deported back to Jamaica indefinitely. It has been 6 yrs now and all of his immediate family lives in Florida so he has no support system. Could you please tell me if there is any possibility of him returning to the states if his judgment was stamped indefinite? His daughter is 8 yrs old now and I'm afraid that I am waiting pointlessly here in the states for him to return so that we can marry and start a life together. Thank you for any direction you can offer.

Mr. Lee answers:

It would appear that the person of whom you speak was convicted of an aggravated felony – distribution of drugs. The immigration laws do not allow a waiver in this situation. It would also appear in his situation that his only relief would be through obtaining a governor’s pardon for the offenses.

Copyright © 2003-2017 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.