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Questions Answered on www.avvo.com

Question: Hi, I have 26 years old unmarried and I came in U.S. in March, 8 2012 from Italy. My father is U.S. citizen. In July, 16 2012 I requested for I-130 but they said I can’t ask for Residence or adjust status until bullet time of I-130. I don’t have Italy citizen but have the permanent residence for Italy law the same of the green card here in America.

Mr. Gokey’s Answer:  Family immigration to the US is broken down by category, with a certain number of visas allocated to each category. When more people apply than there are visas available, a line forms. You are in the category called “F1, unmarried sons and daughters of U.S. Citizens”. According to the July Visa Bulletin, that line is backed up to June of 2006, unless you are from Mexico (August 1992) or the Philippines (July 2000). In all events, you cannot file for an I-551 (“green card”) until your number in that line becomes current. If you marry, you change categories, and the waiting times generally become even longer.

Question: Right now, I am in India with valid H1B VISA which is in the name of my previous employer X, Now, my current employer -Y is going to fill L1B for me, for an immediate requirement which I needs to travel to USA in another 3 weeks. After coming to USA, Shall I still use my existing H1B visa ?

Mr. Gokey’s Answer: You are mistaken about having a valid H-1B visa. You lost your H-1B status when you ceased working for the employer who sponsored you for your H-1B and departed. You should not re-enter the United States on your old H-1B. Attempting to do so might be considered to be misrepresentation by Customs and Border Protection. An L-1 visa can be premium processed. If promptly and well prepared, it could potentially be available to you in 3-5 weeks. Your company should seek assistance from an immigration attorney in its preparation.

Question: If I am establishing an LLC on F1 visa while my work authorization is with company “X”
1) How frequently Articles of Organization and Operating Agreement can be changed ?
2) Can I have a contractor working for another company have as a signing authority by establishing a corp to corp relationship with the second company so that that company provides me the signing authority ?

Mr. Gokey’s Answer: I have noticed several questions along this line. You may be taking a significant risk. F-1 status is not intended to be used as an investor visa. It does not permit self-employment. Just because it may be possible to do each of the things you ask, when you ask them individually, that does not mean that they are a good idea, when put together. You should seek the advice of someone who will understand the whole picture, so that they can advise you.

Question: If I am married to illegal immigrant will it hurt me or him when I apply for citizenship ?

Mr. Gokey’s Answer:  It probably would not create a problem under present USCIS policies, and could be a benefit down the road. However, there could be circumstances about your case that could make it a problem. It would be wise to have an immigration attorney review all of the facts and assist you with your naturalization.

Question: I am getting engaged and married this August and I trying to find out the best way to bring her here from India. Regarding this process, I started filling out I-129F but instructions are ambiguous and not I am not sure if I need to fill I-130 or I-129F and in case if I have to go with I-129F, do I have to get here on K1 (fiancee) or K3 (spouse) visa. Looking to get advise on this process. What about applying tourist visa for her? Which is the fastest route to bring her to USA?

Mr. Gokey’s Answer:  It will probably take nearly a year under both the I-130 process (consular processing after marriage) and I-129F (fiance visa) process for her to enter the US. Under the I-130 process you must marry before you start, and when she arrives she will arrive with an I-551 (“green card”), and be work authorized. You can start the I-129F (fiance visa) process before marrying, and you must wait until she has arrived before you marry. However, then she has to file for Adjustment of Status, which means three more months before becoming work authorized, and substantial additional expense. In each case, having the assistance of an immigration attorney will help assure you make no errors that could delay the process by months.

Question: I am in my second renewal term in my H1b visa. I have never traveled outside of USA so it has never been stamped. Now I want to get married to a girl who is in F1 after she graduates. Will I be able to add her as H4 dependent to my H1b without getting my visa stamped or traveling outside the united states.

Mr. Gokey’s Answer: She would change status from F1 to H4 after you marry by filing an I-539 with appropriate evidence, either while in school or towards the end of her period of OPT.

Question: Im in USA and my H1B petition is approved while H4 is in extension.
H4 is expiring on 30th July,2013 and H1 is approved from 1st Oct,2013. Is this a problem ?
Can i work from 1st Oct,2013 on my approved H1 or is there any other process that i need to follow.

Mr. Gokey’s Answer: You should do something to maintain status between July 30 and October 1st. You could try to extend your H4 if you qualify, or you could try to change status from H4 to B2 for that period of time. You would be able to start work on your H-1B on October 1. You would want to assure anything you did did not supersede your H-1B. I recommend you consult the company immigration attorney who assisted with your H-1B Petition.

Question: I am from Bangladesh and is currently in H1B visa. I raised venture capital money and want to quit my job and work on my own company, I can pay myself salary from the VC money raised for my software company. But if I quit my job, I will lose my VISA. What are my options?

Mr. Gokey’s Answer: Depending upon the amount of money you raised and how you raised it, you may qualify for an E-2 investor visa (Bangladesh has the requsite treaty with the US) or an EB-5 investor visa. The former is an indefinite visa that does not lead to legal permanent resident status. The latter does lead to legal permanent resident status but the investment must be greater. Each involve many requirements and a complicated application. It may or may not be possible to change status from H-1B status to an investor visa in the US. You may wish to depart, and return on B-1 status to work on setting up your business while your investor visa petition is pending. There could also be a question of whether your activity raising these funds was appropriate to your H-1B status. You should definitely consult with an immigration attorney before doing anything further.

Question: I am an F-1 who applied for an EAD for OPT. I received an RFE requesting a copy of my current valid passport, visa or other legal photo identification document. I am in the process of renewing my passport so will my drivers license work for this?

Mr. Gokey’s Answer: If the Request for Evidence expressly refers to “other legal photo identification”, your driver’s license should work.

If you have your passport or a copy and it is current, you might want to furnish it, and explain you are renewing it. If it is not current, and you think you will receive back your renewed passport before the Request for Evidence is due, you might want to wait until you have the renewed passport, and then furnish it.

Question: I work for a company in EB3 position (minimum qualification bachelor’s and 2 years of experience). There are few positions in my company which are EB2 (minimum qualification is Master’s).
Can my employer file a green card for me in the position which requires Master’s degree(EB2) and claim it as an application for future employment and will employ me in that position after I get the green card?( I also have a Master’s degree).

Mr. Gokey’s Answer:  If you are currently working for your employer on a temporary visa such as an H-1B, your employer can sponsor you for a permanent visa in the same or a different position. If the different position requires a Masters degree, it may well fall in the EB-2 category. If you are from one of the countries with a backlog in that category, you would need to wait for your priority date to come current before moving into the new job. So, as a practical matter, the employer may not be able to start you in the new position for some time. (Even if there were not a backlog, it might take more than a year.) This is a complex area of the law, and there are many technical steps that need to be followed.

Question: I am a 10 years GC holder. and my husband is a US citizen. Were planning to sponsor her for a tourist visa here in the US. What requirements should we need for her to obtain that tourist visa and stay in the US for 6 months. She is 4th grade in their school in the Philippines.

Mr. Gokey’s Answer: The primary requirement is to establish that she has a residence and life in the Philippines to which she intends to return at the end of her stay in the US. A secondary requirement is to establish that you have funds with which to care for her while in the US. You could demonstrate the first requirement by documenting she has a good family life in the Philippines to which she intends to return. Present evidence that your parents have a home for her; are financially able to support her; are permitting her to take a temporary trip to the US; that she is going to school in the Philippines; that her school is permitting the trip; and such other evidence as you can gather to demonstrate the temporary nature of her visit to the US. She should have a round-trip airline ticket. She should understand that this is a temporary trip. You would demonstrate your financial ability to support her while she is in the US by providing past tax returns and current bank statements. (You might very well wish to provide substantial evidence of your own stability an excellent reputation in the form of employment records and a letter from your employer along with similar records for your husband, since human trafficking may well be a concern in the back of the mind of the adjudicator.) You may also wish to have an excellent explanation of how a 12-year-old girl is going to safely make a trip like that, along with an explanation as to why she is doing it, which explanation is consistent with a temporary trip. If you are not able to easily provide excellent evidence of all of these points, and/or if it is very important to you that she be able to visit, you should consult with immigration attorney. Absent excellent, well organized evidence, it would be likely for such a request to be denied, as the consulate may believe the real intent is for her to join to permanently in the US.

Question: Can I transfer from H1B to B2 then back to the same H1B again? Provided H1B is cap exempt and valid through 2015?

Mr. Gokey’s Answer: Your new employer will need to file an H-1B Petition on your behalf, which will be cap-exempt. This will need to be granted before you can start work for your new employer.

Question: H1B – Re Enter with Valid visa from previous employer ?

Mr. Gokey’s Answer: You can start work for a new employer after the new employer has filed an H-1B Petition on your behalf, so long as you remain in the United States. (It is safer to wait until it is approved before leaving your old employer, in case it is denied.) However, if you chose to depart the United States after leaving the employment of your first employer, you cannot properly return on your H-1B visa stamp for your old employer. You should get a new visa stamp. Further, you would not be able to get a visa stamp for your new employer until your new employer’s H-1B Petition on your behalf is approved. Many consulates in India are very particular about visa stamping. Your new I-94 would reflect the dates of your new stamp. (Keep in mind it will not be issued past the expiration date of your passport (or possibly six months before the expiration date) so you should pay attention to that as well. You should file a Change of Status for your dependents when your new employer does your new H-1B Petition, and they will get new visa stamps based upon your new Approval Notice when they next travel.

Question: I was in US for 22 years from 91 to 2012 traveling I got stopped at a checkpoint and got sent to Mexico, I have 3 kids, 20, 19, and 14, I left a minor and I am trying to get a visa but when I call the place they ask me questions as if I know what kind of visa do I need, they don’t give u any information, so how do I know what kind of visa should I try to apply for? I want to know what do I need to apply for a family or work visa and if affects that I was there for a long time I am married there I was going to sign the divorce that week when they send me to Mx I can’t do nothing from here.

Mr. Gokey’s Answer:  If your 20 year old child was born in the United States, the child may be a U.S. Citizen, and may be able to sponsor you in a year.

Question: If we have an approved visa transfer to another company and that H1 transfer was premium processed,, is there any number of days from the activation date on the approval notice in which the employee should start working?

Mr. Gokey’s Answer: The employee MAY start working for the new employer on the date that the petition was filed. The employee SHOULD start working for the new employer no later than the beginning of the approval period stated in the Approval Notice. That is to say: 1) the employee would no longer be work authorized for the old employer beyond that date; and 2) might not be status if the employee remained in the United States “on vacation” for a period of time before starting at the new employer. (If the employee was outside of the United States, it would create no problem if the employee took some time before entering in H status.)

Question: i registered for classes in the fall of this school yr and i’m also married and i’m filing for my I-130 and in the process of filing off those papers soon, but i’m out of status and i have filed for my reinstatement on the first of may. I just knee surgery a week ago ( i can barely walk i’m still in braces) an agent tells me i need to leave immediately and in which i have been here for 6 months out stat and he said he’ll check back on my status this week (i’m guessing this Monday) .My lawyer said he’ll call him on Monday morning early to talk to the agent about my case.What should i do this case although i do not want to get an unlawful presents and jeopardizes my educ. If i run and wait for my reinstatement pending papers to be complete could i get a unlawful presents behind my back?

Mr. Gokey’s Answer: This is a very complicated question, and you should obtain the opinion of a knowledgable immigration attorney. If you have accumulated more than six months of unlawful presence, you risk a 3 year bar on reentry if you depart. On the other hand, if your are in the United States on an F-1 or J-1 visa, and if your I-94 says “d/s” on it, it is possible that you have not accumulated any unlawful presence. If your school can reinstate you, or if you can complete your one-step immediate relative petition, you might correct any problem you currently have.

Question: How would i go about gettting a visa for my fiance to come to the usa, he from Africa.

Mr. Gokey’s Answer: If you are a U.S. Citizen you can seek a fiancee visa for your fiancee to come to the US to marry. It is a fairly complex process that takes close to a year. You must file appropriate forms, with appropriate supporting documentation. I have attached a link to some in formation on our website. If you are a legal permanent resident, you may need to consider applying for naturalization first, if you qualify. You should seek the assistance of an immigration lawyer to do this.

Question: I have an F-1 Visa and I just got married to a U.S. citizen. I haven’t been to college two months now and I think the college will report my status this month. Will it be safe to apply for Green Card a month from now, due to financial reasons, even if I’m out of status ? Will I get deported ?? Or could my wife file an I-130 to keep me from being deported ?

Mr. Gokey’s Answer: The answer depends in part upon when you last entered the United States, and the timing of your marriage. If you have been in the US going to school for years without departing then there should be no question. If you recently reentered after having quit classes, and immediately married, you could face an issue. Assuming the latter is not the case, you should be able to adjust status so long as you do not travel.

Question: I am a Canadian living in U.S.A and have a permenant resident card. What do I need to do to apply for dual citizenship ?

Mr. Gokey’s Answer: If you have children under the age of 18, they will gain derivative citizenship if you become a U.S. Citizen before they turn 18, and will not have to go through naturalization themselves. I strongly recommend this as insurance against the sort of problems young people sometimes get into, which can have serious immigration consequences.

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Updates on Deferred Action

The USCIS continues to release new information about Deferred Action for childhood arrivals. The details are not yet finalized. USCIS will start accepting applications on August 15. However, the advantages and disadvantages of deferred

 action are not yet fully known. Deferred action:• is generally available only to DREAMers;
• is not a path to legal permanent resident status;
• does require registration with the government; and,
• is good for two years at most, if granted.

If a person qualifies, deferred action can lead to temporary work authorization. Even more importantly, if applied for before a person turns age 18 (and to a lesser degree, age 19), deferred action can prevent the individual from accruing unlawful presence leading to a major problem with normalizing status. This might permit someone who eventually marries a U.S. Citizen to seek US legal permanent resident status through consular processing, without the need for a waiver of a three/ten year bar they may otherwise face. This could prove to be one of deferred action’s more important benefits.

Gokey Immigration Law Office will be conducting a number of low-cost ($20) one-hour webinars on deferred action, discussing deferred action processes and considerations, with updates on the latest news from the USCIS. If you would like be advised of our next deferred action webinar, let us know by mailing sarah@gokeylaw.com.

The USCIS’s latest information on deferred action can be found at:

http://tinyurl.com/8atzdzh

Immigration law is extremely complicated. You should consult an immigration attorney to understand how it may apply to your particular situation before acting.

New Telephone Scam Targeting Aliens

The American Immigration Lawyers Association recently issued a warning to all its members regarding a new scam targeting aliens:

“AILA has received reports of a new scam potentially victimizing aliens. According to one report, the individual will receive a call purporting to be from a USCIS officer, who will have certain correct information on the individual, including the individual’s name and address. The caller will state that there is some discrepancy in USCIS records, and ask for confirmation of data, such as an I-94 number, an “A” number, or a visa control number. The caller will then tell the individual that there is a penalty for not clearing up the discrepancy, and that the individual is to send a sum of money via Western Union, to an address the caller provides.”

Everyone should be cautious and report any suspicious phone calls such as these.

-From AILA InfoNet Doc. No. 12071935 (posted Jul. 19, 2012)

For Those Who Wish to Study in the United States: F-1 Visa

The U.S. offers a variety of options for foreign nationals interested in pursuing an academic education or language training program that results in a diploma, degree or certificate.  In addition to competitive academic curricula, studying in the U.S. gives international students opportunities to understand and experience culture in the U.S., which contributes to personal growth and development when they return to their home country.

Foreign nationals who want to study in the U.S. may apply for the F-1 visa. Although the J-1 and M-1 visas are sometimes used, most foreign students enter the U.S. in F-1 status.  Foreign nationals interested in pursuing the F-1 visa must first enroll in a USCIS approved academic educational program on a full-time basis. The academic institution will then initiate the necessary paperwork to enable a foreign student to obtain an F-1 visa.

F-1 students may also obtain work authorization in the U.S. depending on the length of their academic curriculum.  Spouses and unmarried children under age 21 may accompany or join the F-1 student to the U.S. in F-2 dependent status but they are not permitted to work.  Children are permitted to attend school (kindergarten to 12th grade).  Spouses may take recreational and avocational courses but not full-course studies.

Looking for more information about the F-1 Visa? Contact our office through out website at http://www.gokeyimmigrationlaw.com