The Immigration Law Link

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.

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:

Quickest

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.

Quick

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.