Published on Lawyers.com and the Epoch Times on August 5, 2016

Q & A 1. 2. 3. 4.

Q&A 1.

From B-1/B-2 to H-1B?

Recently, I and my wife got USA visit visa. If either of us get a job from cap exempt employer, can we immediately change status from B1/B2 to H1B?

Mr. Lee answers:

Persons who obtain visiting visas to the U. S. are supposed to have an intent to only be visiting this country. If they take actions very soon after the date of entry, e.g. begin H-1B paperwork within 30 days of coming to the United States, there is a presumption that they had a preconceived intent to abuse the visa as they never intended to return. In such circumstance, a change of status could be denied. On the other hand, U.S.C.I.S. does allow changes of status where it does not appear that such was the purpose of the persons applying for such when they entered this country. Activities begun after the 60th day lose the presumption. This is called the 30/60 day rule.  

Q&A 2.

Advance Parole

How risky will be to leave the U.S under advance parole and be able to come back If I was caught by US customs when I was 15 years old? I was granted advance parole under (Deferred Action for Childhood Arrivals) but I was caught by U.S customs 12 years ago, no drugs or anything related just trying to reunite with my family. So my concern is how likely is to leave the U.S and be granted access back? Will this situation play a big factor in the decision?

Mr. Lee answers:

The question is what happened when you were caught by U. S. Customs 12 years ago. If you were summarily removed by Customs and Border Protection back then, you would be subject to reinstatement of the order if your record is discovered at the port of entry during your return to the States. The DACA program allows an individual to remain in the U. S. under quasi-legal status for a period of time during which employment authorization is granted. However, the approval of DACA status is contingent upon an individual telling the truth on the I-821D application. On it, you are asked to list all of your entries to the U. S. An argument could be made that the DACA grant cannot serve as protection for among other reasons the fact that it was illegally obtained if you did not disclose the earlier entry. In the event that you were not ordered removed and did state the fact of your encounter on the DACA application, you would likely be OK to return under the advance parole.  Such a history could later give you a problem on getting the green card through regular immigration procedures like family or employment as you may be questioned on this, although a later advance parole might provide the basis to apply for adjustment here as an immediate relative of a U.S. citizen, eg. marriage to a U.S. citizen. 

Q&A 3.

Form N-400 Regarding My Wife's Status?

On the form N-400 asks for the Information on my Wife's Re: the date she became a Legal resident and for her green card number. What's supposed to the correct answer since she's not a legal resident?

Mr. Lee answers:

There is no one correct answer, but people commonly put down “undocumented”, “illegal”, “no legal status” or simply “NLS.” 

Q&A 4.

Emergency Travel Out of the Country with Pending H-1 to H-4 Change Of Status

I am currently on H1 B with the same employer since the past 31/2 yrs. 2 weeks ago I applied for a COS from H-1B to H-4 ( post marriage) and have received a receipt from USCIS. Due to a critical family emergency I need to travel out of the country. According to what I have read, once i leave the country my application for COS will be abandoned and I will have to go to the consulate in my home country to get my H4 stamped. I know it is not the optimal scenario but I would appreciate any feedback/advice/shared experience I can get about my situation. Also what are the documents I should carry with me to the consulate for the h4 stamping. ( I have never been out of status and my husband has a stamped approved h1 b and will remain in the US )

Mr. Lee answers:

You should bring back your marriage certificate, proof of termination of all prior marriages for both you and your husband, proof of your bona fide marriage such as photographs together, lease or deed, utility bills, telephone bills, banking statements, etc., your husband’s original I-797 H-1B approval sheet, his employment letter, proof of his recent pay, tax returns and H-1B petition copy. 

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.