Published on Lawyers.com and the Epoch Times on January 8, 2016
Q & A 1. 2. 3. 4.
Q&A 1.
Will Getting Married Affect Her Immigration Status?
I want to get married to an immigrant. Can we get married legally? Her mother filed for her already and is pending case. What would happen with her status? Can I file for her after we get married? I will be a US Citizen by then. p.s. She entered the US legally about 10 years ago.
Mr. Lee answers:
If your intended's mother only has a green card and filed for her under the F-2B category as the single son or daughter of a permanent resident, her getting married to you would destroy the petition. If her mother is a US citizen, the marriage would change her petition category from F-1 (single son or daughter of a US citizen) to F-3 (married son or daughter of a US citizen). That being said, your marrying her in a bona fide marriage would probably be her best step as she entered the country legally and would be eligible to adjust status approximately 5 to 9 months after your papers are filed for her immigration. Unless she has maintained legal nonimmigrant status or has the benefit of section 245 (i), she would not be eligible to adjust status under her mother's petition when it becomes current and would have to seek consular processing. I do note that with the President's executive action of November 20, 2014, a person in her situation should be able to apply for and see the result of an I-601A provisional waiver application prior to deciding to complete her mother's immigration petition in a consular interview overseas.
Q&A 2.
Can a Date of Birth be Changed on a Citizen Certificate?
Mr. Lee answers:
Unless the date of birth on the citizenship certificate was the mistake of U.S.C.I.S., the agency will not change the date of birth on the certificate. The instructions to the form N- 565 Application for Replacement Naturalization/Citizenship Document specifically state that “U.S.C.I.S. is prohibited from making any changes to an incorrect date of birth if one has completed the naturalization/citizenship process and sworn to the facts, including the wrong date of birth.”
Q&A 3.
Can I Go for H-1B Visa Stamping & H-4b Visa Stamping for My Wife at the US Embassy?
Or that is invalid because I re-entered The US using advance parole?
Currently; I am working on h1b visa & I've pending I-485 "employment based". I re-entered last time using advance parole. Currently, I am still working for the same employer who filed H1b & GC. I just got married & I want to bring my wife to the USA before my I-485 gets approved. Class of admission on my I-94 is DA & is valid for 1 year from the entry date.
Mr. Lee answers:
Reentering the U. S. on an advance parole instead of H-1B is not a permanent choice. The individual holding an H-1B status can simply go outside the United States and come back in using the H-1B visa instead of advance parole the next time. And so you can go overseas and have H-1B and H-4 stamping for yourself and your wife before your I-485 is approved.
Q&A 4.
Green Card Holder Filing I-130 and I-485
I am a Green-card holder for 5 year (I plan to file N-400 soon), my fiancé have a 10 year visitor's visa. She came to the US last September and we decided to get married in the US, December 2014. In January 2015 we filed the I-130 and the I-485, concurrently. The I-485 was rejected (because a priority date could not be established) and the I-130 was accepted. I received the receipt (I-797C for the I-130). My Wife's date to depart is quickly approaching, and we are wondering if she can wait here or go back to her country? Also, Should I resend the I-485 since the rejection notice for the I-485 stated that an I-797 can be provided with the I-485?
Mr. Lee answers:
If you are sponsoring your wife under your green card status, the priority date of the I-130 petition must be current for visa availability under the Dept. of State monthly “filing date” chart and she must be in valid nonimmigrant status to be eligible for the I-485 to be filed. If not, she can either return or wait for you to become a U. S. citizen. Upon your citizenship, her category would change to immediate relative, a preference which is always available, and her overstay would not prevent her from filing an acceptable I-485 application.
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