Published on Lawyers.com and the Epoch Times on April 29, 2016

Q & A 1. 2. 3. 4.

Q&A 1.

Last Action Rule H-1B and H-4

Recently my employer filed for my Wife's H-1B and we had to file for her H-4 Extension as her H-4 is expiring end of July. The employer filed her H-1B in Premium processing, so we are expecting a reply before end of May. 1. Say if she gets her H-1B approved before we receive her H-4 extension what status would she be on starting Oct 1st? Oct 1st being the effective date of H-1B in general.

Mr. Lee answers:

In my opinion, the last action on an H-1B cap case is the automatic change of status on October 1st. It would not make sense to regard the approval of such a case as the date of change of status since the status cannot go into effect until October 1st. Where F-1 students are holding OPT until the date that the H-1B is filed in April, U.S.C.I.S. regards them as F-1 students during the cap gap period between the ending of their status and October 1st. Thus to be consistent, your wife should be regarded as under H-4 status until the effective date of the H-1B.

Q&A 2.

Can my Boyfriend Get Deported with Me Being Pregnant?

Can my boyfriend get deported even if me and him are expecting a child in August but he has court in June

Mr. Lee answers:

Having an unborn child in the U. S. is not protection against deportation. It is a factor that your boyfriend and his legal representative can put before opposing counsel from DHS in a request for prosecutorial discretion. In the event that such is not successful, the subject could be brought before the immigration court to either obtain a continuance or a longer period of time for voluntary departure.

Q&A 3.

My I-130 Approved, But Green Card I filed with Expired.

I did renew green card and got it in mail. What should I do? My I-130 was approved yesterday and I had a question about it. I am a PR and applying for my husband who lives abroad (has never been to US) So, the green card I filed with for the I 130 expired at the beginning of this month. I did get a new one and the card arrived in my mail as well. Do I need to show them my new Green card (if so, how)? Since the I 130 I filed had the now already expired card. Please let me know. I know that I have to wait for the priority date now, but is there anything I can do to prepare for the next processes so that once priority date becomes active, I can go to the next step ASAP.

Mr. Lee answers:

The fact that since the time of filing the I-130 your green card expired has no effect upon an I-130 that has already been approved. At the time that your husband is being interviewed for his permanent residence at the U. S. consulate or embassy abroad, he may have to show that you are still residing in the U. S. But I assure you that your permanent residence did not expire with the expired green card. Also I note that you have already filed for and received a new card. At this time, you do not have to do anything as the National Visa Center will send you and your husband further instructions when the priority date is close to becoming current. Obtaining some documents too soon may result in their expiring prior to the interview.

Q&A 4.

Cross Chargeability to Wife's Parents?

I am the principal applicant in my employment based immigrant visa petition. Since the priority date of my country of birth is not current, I was wondering if I and my wife could be charged to her parents' country of birth since her parents were visiting only temporarily at the moment. Assuming that I can have enough evidence that my wife is chargeable to her parents' country of birth, can I use that country of chargeability? Note that I am the principal applicant and she is the derivative.

Mr. Lee answers:

If your wife’s parents were only visiting temporarily in her country of birth and you are able to establish that fact, your wife could be charged to her parents’ country of birth. The fact that you are the principal applicant and she is the derivative is acceptable for purposes of cross chargeability.

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.