Published on Lawyers.com and the Epoch Times on May 19, 2017

Q & A.

How Strict is the 30 Months Travel Rule When Applying for Citizenship?

I have been out of the country for around 31 months total in the last five years. Can / should I still apply for citizenship? To get the number down to 30, I would have to stay for nearly a year more (I was out of the country 5 years ago). It was a calculation mistake from my part. However, the last absence (1 month 9 days) was partially due to the death of my father overseas. Would it help my case to attach a death certificate, and a plea for mercy?
 
Mr. Lee answers:

Where individuals are applying for naturalization based on the five-year rule, the 30 month physical residence rule is mandatory. The absolute minimum physical presence is 30 months, and you should not make an application until you are sure that you have 30 months physical residence during the past 60 months before application. I further note that many immigration officers may give individuals problems even where they meet the bare minimum eligibility requirement of 30 months.

Can We Still File for A Visit Visa If We Have Another Case Open?

We have an immigrant visa case that has been approved, but due to visa limitations will probably not be ready for another 5-10 years. Can we still apply for a visit visa without causing an issue with the immigrant visa?

Mr. Lee answers:

Many people in your situation have applied for visitors visas and had them approved even when an immigrant visa petition has been approved where the availability date is far away. The decision on a visitor's visa will be in the discretion of the consular officer. Applicants should be clear on the visitor visa application form that they do indeed have an immigrant visa petition approved. Failure to so indicate would constitute misrepresentation.

RFE on H-1B Amendment Petition. Can H-4 Travel to India?

My husband is on valid H1B visa and I am on H-4 visa, due to change of client the company has filed an amendment petition and my husband got a Request for Further Evidence (RFE) on that petition. So currently my husband’s company have responded to RFE and waiting for USCIS to respond back. In this situation can I travel to India on H-4 visa?

Mr. Lee answers:

Your H-4 visa is dependent upon your husband's continuing H-1B status. If the denial of his application would place him out of status, you should not be thinking of traveling at this time. If the denial is of a future position and would not affect his present H-1B position, then you may be able to make the trip as your husband would still be maintaining status even if there is a denial.

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.