Please find below a list of frequently asked questions. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers to these are to be used for guidelines purposes only as the questions here are specific to that particular individual’s case, and may not necessarily be the best advice for your situation.
Question: I entered the US on a visitor’s visa three months ago. My visitor’s visa is valid for period of five years. Can I stay in the US for five years?
Answer: No, you cannot remain in the US for five years. A visa allows you only to cross the US border. When you enter the US on a visitor’s visa, the Immigration Officer will staple a little white card, called an I-94 arrival/departure record, into your passport. The I-94 arrival/departure record dictates how long you can remain in the US. The Immigration Officer will stamp a date on your I-94 card. Generally, the time period the Immigration Officer will grant to remain in the US is six (6) months. You must depart the US before that date stamped on your I-94 unless you change your status to another valid nonimmigrant status or file to adjust your status to lawful permanent residence. Note: A visitor’s visa does not give you permission to work in the US. Also, if you plan to change your status to another nonimmigrant status or file for a green card, keep the I-94 as proof of your lawful entry into the US as USCIS will ask for your I-94 card in any future filings.
Question: My father, who is a green card holder, filed for me, and recently my application was approved. Can I now marry my girlfriend and file for her green card?
Answer: Have you entered the United States as a permanent resident? You must stay single until you actually become a permanent resident. You only obtain your permanent resident status after you enter the United States with your green card. Many beneficiaries of green cards have been found inadmissible because they got married right after the approval of a visa application, but before entering the United States. You have two options: either wait for your father to become a US citizen, if he wants to and is eligible to become one, and then marry your girlfriend as their is a visa category for married sons of US citizens; or, enter the United States with your immigrant visa and then return home to marry your girlfriend, and thereafter file for her.
Question: I have been issued F-1 and I fulfilled only 1 year of my previous J-1 HRR. It was not difficult to get it once you show all the funding documents from school. I am on a PhD program now. If I decide to stay in my home country for 3-months periods several times – can I fulfill my second year of HRR in that way? The question is does it have to be consequent or I can split it like this?
Answer: You cannot do that as far as I know. The HRR has to be in one solid 2-year chunk. Brief absences – a week or two may be permitted but should be made up by spending that much extra time in your home country.
Question: Should H-1 be renewed while the AOS is pending?
Answer: Bottom-line, I think H-1 should be renewed. A few months ago, we used to feel strongly that AOS applicants should keep their H-1 active for several reasons. EAD issuance was erratic and CIS had discontinued issuance of interim EAD’s (that is, if in 90 days your EAD is not issued, you could walk with a Infopass appointment to your local CIS office and get an EAD). Thus, EAD’s were unreliable and given for only a year. You could have interruptions in your work.
Question: After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time.
I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.
Answer: This is up to the discretion of the consulate and then again up to CBP when you land in USA. Consulates have the discretion to issue you a B visa – despite your presumed immigrant intent – if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.
“To some lawyers, all facts are created equal.”
- Justice Felix Frankfurter
“Laws should be like clothes. They should be made to fit the people they serve.”
- Clarence Darrow
“A jury consists of twelve persons chosen to decide who has the better lawyer.”
- Robert Frost
“The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.”
- Jimmy Carter
“The United States is a nation of laws: badly written and randomly enforced.”
- Frank Zappa
By Melissa Desvarieux
Immigration Attorney, The Law Offices of Spar & Bernstein
In recent months, the Immigrations and Customs Enforcement (ICE) has forced thousands of undocumented workers to lose their jobs: between 1,500-2,000 lost after the highly publicized raid of American Apparel in Los Angeles and over 1,200 janitors fired in Minneapolis after a similar but much quieter immigration audit of a janitorial company called ABM Industries.
Then came, late last week, this jarring news out of Washington: ICE Assistant Secretary John Morton announcing there’d be 1,000 new workplace audits to hold employers accountable for their hiring practices.
Which is, for many of the people I deal with, especially the ones anxiously waiting for immigration reform, a very frightening turn of events.
Because in the course of my work, it’s not uncommon for clients to reveal they either don’t have proper documents or are, in fact, not legally present in the US. But these same people, surprisingly, sometimes tell me they not only have managerial positions or work for Fortune 500 companies but have even been employed by these companies for between 10-20 years.
Now, with the government making it compulsory for heads of companies to hand over employee documents, the disturbing consequences will be this: 1) the business community will be shaken to its core, with places having to lay off chunks of its workforce, and 2) people who are good, qualified workers but unable to prove their citizenship will have their sense of security abruptly ripped out from under them and ultimately have no choice other than to leave the jobs they’ve given their hearts and souls to.
Former CNN blowhard Lou Dobbs, pondering a run in politics after abruptly quitting cable news a couple of weeks ago, is suddenly and ever-so-curiously trying to reach out to the very community he’s been demonizing for years – Latino immigrants.
In a below-the-radar interview with the Spanish-language network Telemundo last Friday, Dobbs, who’s already declared he’s not ruling out a presidential run and reportedly is eyeing a third-party run against New Jersey Sen. Robert Menendez in 2012, completely reversed his bitterly adament, long-time stance against immigration, saying he now supports a plan to legalize the millions of undocumented workers in this country.
“Whatever you have thought of me in the past, I can tell you right now that I am one of your greatest friends and I mean for us to work together,” he so shockingly said in a live interview with Telemundo’s Maria Celeste, an immigration advocate who had long called for CNN to dump Dobbs. “I hope that will begin with Maria and me and Telemundo and other media organizations and others in this national debate that we should turn into a solution rather than a continuing debate and factional contest.”
Yeah, right, Lou. We believe you. And all aspirins are alike.
By Mariana Vázquez-García
New York Immigration Attorney, The Law Offices of Spar & Bernstein
One question I’m asked all the time is: What’s the quickest way to get my green card?
Here’s the answer:
If a person enters the United States legally (with a visa) and he/she marries a U.S. citizen, or is the parent of an adult U.S. citizen (at least 21 years old), or the minor child (under 21) of a US citizen, then he/she can apply for their adjustment of status right away. And if all else is fine (which means no arrests, no previous deportations, not a fake marriage, etc…), he/she can get their status adjusted in a few months.
More ways: Investing $1 million in a new company that hires 10 U.S. employees as a result of that investment. Or proving that you are extraordinary in your field of business: athletics, arts, science. Or being a tenured professor in a University; executive or manager of a intra company transferee. Or having a labor certification in the EB2 category as a person working in a job requiring a master’s degree or equivalent bachelor’s plus five years experience.
If a person wins the Diversity Visa Lottery and otherwise qualifies for permanent residency, he/she will get it in less than two years.
Not So Quick
Every other way will take several years.
Brad: I’m going to the Caribbean.
Mariana: It will include watching the parade & giving thanks for all the good people in my life.
Adam H: As usual, my wife and the two little girls are splitting time between my Dad, my Mom (who are divorced) and her parents. We call it the triangle of love.
Jared: Going down to New Orleans to have turkey with my future in-laws…and might catch an LSU football game when I’m down there.
Bindhu: I am going to visit my parents and family in Chicago.
Donna: I will be cleaning my home and cooking up a storm.
Shannon: I will be spending a glorious day with loved ones, showing appreciation and gratitude for all the blessings I have had this year.
Katie: Just cooking with the family and relaxing. Trying to think of somewhere to go last minute with the hubby. Maybe Atlantic City.