William Lowell's Blog: December 2017

Sunday, December 3, 2017

Could I Apply for Green Card for My Wife and Son as Relatives of U.S. Permanent Resident?

Could I Apply for Green Card for My Wife and Son as Relatives of U.S. Permanent Resident? Question: I just received my Green Card in U.S. My wife and son are still in her home country. Could I to apply for Green Card for my wife and son as relatives of U.S. Permanent Resident? Answer: The spouse U.S. Permanent Resident Green Card category enables lawful permanent residents of the United States to sponsor their foreign spouses to live and work in the U.S. on a permanent basis. In addition, the unmarried children under 21 years of age of the spouse, and the unmarried children of the U.S. lawful permanent resident may apply for U.S. permanent residence as well. The spouse or child of US Permanent Resident Green Card category can be applied for from either inside or outside the United States. If in the U.S., the spouse must have made a legal entry to the United States and have maintained legal status. If outside the U.S., the spouse may not enter the U.S. until the visa is granted. http://www.greencardfamily.com/question/question2017/Permanent_Resident_Green_Card_091017.htm http://www.greencardfamily.com

I Want to Know How Could My Marriage Impact the I-485 Process?

I Want to Know How Could My Marriage Impact the I-485 Process? Question: My employment based I-140 has been approved, thank you very much for your great help and service! Now I plan to marry soon in my home country, and I want to file I-485 soon also. I want to know how could my marriage impact the I-485 process? and how could my wife join the I-485 application after the marriage? Answer: For your wife to join the I-485 application after the marriage, the marriage can be planned to coordinate with the immigration process. By doing so, your spouse becomes eligible for derivative immigration benefits. You do not want to receive the I-485 approval prior to the planned weddings, which will create an enormous problem. Generally, you should get married before your I-485 is approved. You should consider marrying either before the I-485 is filed, or before you are fingerprinted. The case cannot be approved without fingerprinting. http://www.greencardfamily.com/question/question2017/Marriage_Impact_I485_Process_091117.htm http://www.greencardfamily.com

How to Upgrade Form I-130 Petition After Becoming U.S. Citizen?

How to Upgrade Form I-130 Petition After Becoming U.S. Citizen? Question: I was a U.S. permanent resident when I filed the Form I-130 for my wife and children. Now I am U.S. citizen, how to upgrade my Form I-130 petition for my wife and children after becoming U.S. citizen? Answer: If you are now a U.S. citizen, you must file separate immigrant visa petitions (Form I-130) for each of your children. If you upgrade a family second preference (F2) petition for your spouse and you did not file separate petitions for your children when you were a lawful permanent resident (LPR), you must do so now. A U.S. citizen's child does not receive derivative status in an immediate relative petition. This is different from the family second preference (F2) petition where a child is included in his or her parent's F2 petition. Children born abroad after you became a U.S. citizen may qualify for U.S. citizenship. They should apply for U.S. passports. The consular officer will determine whether your child is a U.S. citizen and can have a passport. If the consular officer determines your child is not U.S. citizen, the child must apply for an immigrant visa if he/she wants to live in the U.S. http://www.greencardfamily.com/question/question2017/Upgrade_Form_I130_Petition_101617.htm http://www.greencardfamily.com

How to Upgrade Form I-130 Petition After Becoming U.S. Citizen?

How to Prove Our Marriage Is Real or "Bona Fide"?

How to Prove Our Marriage Is Real or "Bona Fide"? Question: As a U.S. citizen's wife, how to prepare documents to prove our marriage is real, for an USCIS interview? Answer: To obtain a U.S. Lawful Permanent Residence (Green Card) based on marriage, you will have to prove that the marriage is real or "bona fide". This means a marriage in which the two people intend, from the start, to establish a life together as husband and wife. An important step to prove the marriage is real or "bona fide" is joining your lives together. You should not wait until the last minute to look for ways that you can prove that you are really married, or that you live together, or that you trust each other enough to share financial and other personal matters. Also, you should take steps to prepare for a future together. For example, a U.S. citizen in a sham marriage might not remember to add his or her new spouse as a beneficiary to a company sponsored life insurance policy, while someone in a real marriage would or at least should. Thus, Some important steps to prove the marriage is real or "bona fide" might include: • make your spouse a beneficiary on your retirement account or other accounts that require or allow a payout to a beneficiary upon the holder’s death; • make sure that both spouses are covered under your health insurance policy, if the other spouse doesn't have his or her own insurance; • if you live together, add your spouse to your house deed, mortgage, or apartment lease; • if you live together, add your spouse’s name to your garbage, utility, cable, and other bills; • take out a joint credit card; • open a joint bank account; • file joint tax returns; • join a gym or club together; • buy a car or other major asset together. http://www.greencardfamily.com/question/question2017/Real_Marriage_112517.htm http://www.greencardfamily.com

The Difference between O-1 Visa and EB1-Extraordinary Ability Application

The Difference between O-1 Visa and EB1-Extraordinary Ability Application Hi William, What is difference between O-1 visa and EB1-Extraordinary Ability application? and what is difference between O-1 and other employment related nonimmigrant status, such as H-1B? Answer, The requirements for O-1 visa or status are similar to those for the EB1-EA, Alien of Extraordinary Ability, employment based permanent residence category. The difference is that the O-1 visa/status applies to those aliens seeking a non-immigrant status, while the EB1-EA standard is for those seeking permanent immigrant status. The O-1 visa/status is distinguished from other employment related statuses in that it applies to more types of work than other areas. For instance, H-1B status is limited to foreign professionals with at least a bachelor's degree for a specialty occupation, which cannot apply to alien artists, athletes or entertainers without such educational background. However, such as artists, athletes or entertainers can apply for O-1 visa/status. Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 visa/status could be obtained by those in H-1B status who have exhausted the full-authorized stay of 6 years. http://www.greencardapply.com/question/question17/O1_Visa_Extraordinary_Ability_090317.htm http://www.greencardapply.com

Can I Change to a Similar Job but with Different SOC Code and Higher Wage?

Can I Change to a Similar Job but with Different SOC Code and Higher Wage? Hi William, My form I-140 application has been approved and my form I-485 application is pending for more than 4 months. By using AC21 portability rule, can I change to a similar job but with different SOC code and higher wage? Answer, The job positions falling within identical SOC codes are generally considered as qualifying for AC21 portability. The same is true for positions within the same SOC broad occupational code, with first five digits match. The career progression to positions in different SOC codes can be acceptable for AC21 portability also. The AC21 qualification includes job progression to the management of functions, or positions that are the same or similar to the original sponsored employment. The AC21 same or similar requirement can also be met by positions in different SOC codes, even without career progression. If the evidence shows that the jobs share essential qualities or resemble each other, there is potential AC21 portability. This general recognition allows for variations in SOC codes that reflect different industries, but where the jobs are quite similar in duties, skills, requirements, and other factors. Wage differences are not determinative. Wage differences are to be reviewed in light of geography, inflation, promotion, employer size, industry, and other relevant factors. http://www.greencardapply.com/question/question17/AC21_Portability_Rule_090417.htm http://www.greencardapply.com

Qualify for the H-1B Requirement of Employer-Employee Relationship

Qualify for the H-1B Requirement of Employer-Employee Relationship Hi William, My potential employer is an independent contractor, and it may place me at a third-party worksite. Do you think my situation could qualify for the H-1B visa application requirement of "employer-employee relationship"? Answer, The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. USCIS clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including: establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation; demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services. http://www.greencardapply.com/question/question17/H1B_Requirement_Employer_091717.htm http://www.greencardapply.com

Eligibility Must be Established as of the Filing Date of the EB1 Petition

Eligibility Must be Established as of the Filing Date of the EB1 Petition Hi William, I recently read some USCIS' previous decisions about EB1-EA application, and found the decision statement like "the petitioner has not provided any first hand empirical evidence that this article or her work had already attracted significant attention from the scientific community at the time of filling the petition. Eligibility must be established as of the filing date of the visa petition." I want to know what will happen after the filing date if more evidence is generated which would help the EB1-EA application? Answer, For EB1-EA and EB1-OR petitions, usually USCIS claims that they will look at evidence for any of the clauses which you claim, as of the date on which you applied. It is true that "eligibility must be established as of the filing date of the visa petition". Therefore, petitioner must be careful to chose the filing date such that they have collected the most persuasive evidence. This is also a concern for many NIW petitioners. Generally, you should not use evidence after the filing date to make up for a deficient petition, which means that if you do not qualify for one of the criteria in the petition, you cannot later claim that now you qualify for it. Evidence after filing date can be considered useful if you prove to the USCIS that you are using this evidence to show that you are still equally productive or qualify for it as before. http://www.greencardapply.com/question/question17/EB1_Eligibility_091817.htm http://www.greencardapply.com

Write Reference Letter for Green Card Application Purpose

Write Reference Letter for Green Card Application Purpose Hi William: I am currently working for an NIH Agency under J1 visa, and would like to apply for Green Card under the EB1 and NIW (National Interest Waiver) categories at the same time. I want to ask my advisor at the agency to write a reference letter for me. Is it true that a NIH employee cannot write reference letter for Green Card application purpose. Answer: The NIH staff members may not write letters of reference/recommendation to or for submission to another federal agency in support of visa or Green Card applications, on behalf of the NIH Agency or on NIH Agency's letterhead. But an employee should be able to his/her own personal letter on plain stationery for an alien's performance and achievement. Also, the NIH staff members may send the requestor copies of any performance evaluations ("form of evaluation") which was previously prepared describing the person's relative skills, performance, development, etc., or copies of any letters of reference that previously wrote to evaluate his/her suitability for a job at another institution. Furthermore, an official letter may be written by a high level NIH official (IC Director, Scientific Director, or above) as part of the official agency (e.g. NIH) sponsorship of a candidate for NIH employment, and submitted by the Division of International Services-Office of Research Services (DIS-ORS), NIH, to the DHS-USCIS. DIS-ORS is the only office at NIH authorized to communicate with other agencies on immigration matters http://www.greencardapply.com/question/question17/Green_Card_Reference_Letter_101617.htm http://www.greencardapply.com

Apply for a Reentry Permit to Avoid Lose Immigrant Status

Apply for a Reentry Permit to Avoid Lose Immigrant Status Hi William: Thank you very much for your DIY packages. I purchased your NIW and I-485 DIY packages two years ago and have successfully obtained my Green Card. Now, my company will send me to work in my home country. How long can I remain outside the U.S. without losing my immigrant status? Do I need to apply for the Reentry Permit? Answer: If you are a lawful permanent resident and will be outside of the U.S. for more than a year, you will need to make special preparations for your re-entry before you leave the U.S. If you have applied to adjust to permanent resident status, you should be careful of any trip outside the U.S. The U.S. Customs and Border Protection (“CBP”) officers at airports have become increasingly probing about Green Card abandonment. If a trip outside the U.S. is anything more than short, you may need to demonstrate your ties to the U.S. to the CBP official at the port of entry, Reentry Permit is suitable for lawful permanent residents or conditional permanent residents who wish to remain outside the United States for more than one year, and for lawful permanent residents who want to travel outside the United States, but cannot get a passport from their country of nationality. http://www.greencardapply.com/question/question17/Reentry_Permit_101717.htm http://www.greencardapply.com

Can I Stay in U.S. Longer with My Non-immigrant Visa?

Can I Stay in U.S. Longer with My Non-immigrant Visa? Hi William, I have a non-immigrant visa. What will happen if I decide to stay in U.S. longer beyond the period of time authorized? Does that mean I will be out-of-status? Answer, If you would like to stay in the U.S. for a longer duration than originally planned, you will need to extend your nonimmigrant stay in the U.S. Many people refer to this as extending the visa. However, in reality, you are not extending the date in your visa stamp, but in your I-94 form. If you came to the United States on a nonimmigrant visa and you want to extend your stay, you must apply with USCIS before your authorized stay, denoted on your admission stamp or paper Form I-94, expires. With a non-immigrant visa, you should carefully consider the dates of your authorized stay and make sure you are following the procedures. Failure to do so will cause you to be out-of-status. Staying beyond the period of time authorized by the Department of Homeland Security and out-of-status in the U.S. is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S. If you overstay the end date of your authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), your visa will generally be automatically be voided or cancelled. http://www.greencardapply.com/question/question17/Nonimmigrant_Visa_102917.htm http://www.greencardapply.com

Is EB2 National Interest Wavier Application only for Scientists and Researchers?

Is EB2 National Interest Wavier Application only for Scientists and Researchers? Hi William, I have a Master degree, can I apply for NIW? Also, is National Interest Wavier green card application only for scientists and researchers? Answer, If you have a Master degree, it will depend your qualification for EB2 National Interest Waiver (NIW) application. An advanced degree or exceptional ability is only the statutory requirements for EB2 NIW petition. In addition to meeting the statutory requirements, you also need to prove that granting you permanent residence is in the U.S. national interest. It is not true that EB2 National Interest Wavier green card petition is only for scientists and researchers. Although a majority of NIW petitioners are researchers in various fields of science, the law does not exclude individuals working in any specific field or profession. In practice, USCIS has granted national interest waiver to engineers, actors, musicians, painters, movie directors, writers, educators, entrepreneurs, and chefs, etc. http://www.greencardapply.com/question/question17/National_Interest_Wavier_Application_103017.htm http://www.greencardapply.com

If I Am Laid off by My H-1B Employer, Can I Change Employer?

If I Am Laid off by My H-1B Employer, Can I Change Employer? Hi William, If I am laid off or terminated by my H-1B employer, am I out of status? If I receive advance notice that I will be laid off, before my validity period ends, can I change employer? Answer, If you are no longer employed by the U.S. employer who petitioned for your H-1B visa, and you are not being paid by that H-1B employer, then you are out of status. You can look for other employment with an employer who can petition for your H-1B transfer. When you transfer your H-1B employment to a new employer, USCIS will request pay statements, the sooner you find another H-1B employer, the better. You shold have little to no gap in your employment. Prior to being laid off, another qualified H-1B employer may file a Form I-129, Petition for a Nonimmigrant Worker, on your behalf with USCIS. In order to change employers without having to depart the U.S., the Form I-129 petition should have been filed prior to the termination of your job, and you should maintaining valid H-1B status. If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H-1B visa for the new employer. http://www.greencardapply.com/question/question17/H1B_Employee_Layoff_111217.htm http://www.greencardapply.com

Do I Have Go back to My Home Country to Get the H-1B Visa Stamping?

Do I Have Go back to My Home Country to Get the H-1B Visa Stamping? Hi William, How do get H1B visa stamping or re-stamping on my passport? Do I have go back to my home country to get the H1B visa stamping? Answer, If you hold H-1B visa or L1 visa, you may need to get the re-stamping upon the extension of your expired H-1B visa or L1 visa. H1B visa stamping in the passport is needed for a foreign national to enter or reenter the United States as an H1B worker. In other words, visa stamped on your passport is the authorization to enter into United States. For a U.S. consulate to issue H1B visa stamp in your passport, the passport must be valid for 6 months after the expiration of a U.S. visa. The re-stamping can be done at any U.S. consulate out side of United States. While some neighboring country allow to do re-stamping for foreign nationals, It is recommended to get the stamping or re-stamping done in your home country. The process of re-stamping is same as any new U.S. visa stamping, except that there is flexibility and different documents requirement. The applicant may need to appear for personal interview at the U.S. consulate. In order to get your H1B specialty occupation visa stamped, a list of documents must be submits which includes: A completed and signed non-immigration visa application form (Form DS-156). Separate form must be submitted for each applicant. 1) A completed Form DS-157. 2) A valid passport (at least six months validity remaining) for each applicant. If your passport will expire within six months, it is necessary to extend the validity period before your interview date. 3) One photograph (37x 37mm) for each applicant. 4) Original H1B approval notice (Form I-797). 5) H1B visa petition application form (Form I-129). 6) A Labor Condition Application accepted by the Department of Labor. 7) A support letter from your employer. It should include a description of your position, proving that the position is temporary and should also include a confirmation that the candidate will be a direct employee, and the salary level. Besides, the nature of the employer's business should be included. US company information which must include photographs of the inside and outside of the employer’s place of business, brochures, prospectus, and annual report. 8) Proof of your academic qualifications such as certified copies of your qualifications including university diplomas; mark sheets and any certificates you may have (if applicable). 9) A copy of the candidate's resume (curriculum vitae). 10) Fee for issuing visa stamping. http://www.greencardapply.com/question/question17/H1B_Visa_Stamping_111317.htm http://www.greencardapply.com

How Many Days Is Needed for Me to Renew the EAD in Advance?

How Many Days Is Needed for Me to Renew the EAD in Advance? Hi William, Since my I-485 application is still pending, I need to renew my EAD. How many days is needed for me to renew the EAD in advance of the expiration? Can I work when the renew process is pending? Answer, An alien applicant is permitted to request the renewal of an expiring EAD up to 120 days in advance of the expiration. It is advisable to take advantage of the full filing window, if the ability to work legally in the United States is based solely on the EAD. The U.S. Citizenship and Immigration Services (USCIS) is permitted to take up to 90 days to process EAD applications. Filing 120 days in advance allows enough time to accommodate additional minor delays or problems with the EAD request. USCIS is taking the full 90 days, or close to 90 days, to adjudicate EADs. There have been times in the past when the USCIS processed EADs more quickly. As a result, some EAD holders file their extension requests expecting processing times in keeping with those they may have previously experienced. The urgent problem faced by many who have delayed their EAD extension filings is the prospect of not being permitted to work between the expiration of the current EAD and the approval and issuance of the new EAD extension. Unlike an H-1B petition, there is no employment authorization granted based upon a "pending" EAD, even if it is an extension request. http://www.greencardapply.com/question/question17/Renew_EAD_112617.htm http://www.greencardapply.com

Do I Need the Paper Form I-94 Arrival/Departure Record?

When I arrived U.S. las month, I did not complete the paper Customs and Border Protection Form I-94. Do I really need the form as an admission process record? Answer, Foreign visitors to the U.S. arriving via air or sea no longer need to complete paper Customs and Border Protection Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record. Those who need to prove their legal visitor status to employers, schools/universities or government agencies can access their CBP (U.S. Customs and Border Protection) arrival/departure record information online at https://i94.cbp.dhs.gov. CBP now gathers travelers’ arrival/departure information automatically from their electronic travel records. Because advance information is only transmitted for air and sea travelers, CBP will still issue a paper form I-94 at land border ports of entry. If travelers need the information from their Form I-94 admission record to verify immigration status or employment authorization, the record number and other admission information they are encouraged to get their I-94 Number. Upon arrival, a CBP officer stamps the travel document of each arriving non-immigrant traveler with the admission date, the class of admission, and the date that the traveler is admitted until. If a traveler would like a paper Form I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting. Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP. An I-94 form is needed by all persons except U.S. Citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit. Air and Sea travelers will be issued I-94s during the admission process at the port of entry. A traveler lawfully admitted (or paroled) into the U.S. may print their lawful record of admission (I-94 form) from this CBP website. If someone requests your admission information, this is the form you would provide. http://www.greencardapply.com/question/question17/Form_I94_112717.htm http://www.greencardapply.com