Please find below another installment in our popular regular series of frequently asked questions about immigration law. 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 here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.
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Question: I came to the United States seven years ago. Soon after I came to the US as a green card holder, I started working for my employer. I guess because all of the reported problems with employers hiring illegal aliens, my employer is now requesting proof that I am legal to work in the US, but I cannot find my green card. What do I do?
Answer: You can file Form I-90 with USCIS to obtain a new lawful permanent resident card. USCIS may stamp your passport as evidence of your lawful permanent residence while a decision on your application (Form I-90) is pending. However, when you file this form, you will have to be fingerprinted and criminal background will be checked. If you have a criminal record, we strongly advise that you consult an attorney at Spar & Bernstein, P.C., as certain criminal convictions may render you removable from the US. Furthermore, since you have been a resident for more than five years, you may want to consider filing for naturalization.
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Question: I came to USA with an H-1B Visa; my family’s H-4 visa was also issued with me. After coming to USA I transferred my H-1B visa to new company and I got my transfer approved and I got a new H1-B with new I-94, my question is whether they can travel with the old H-4 or not?
Answer: If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.
In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.
Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.
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Question: I came to the US 8 years ago on a tourist visa and subsequently overstayed my allotted time. I’m married now and have filed for my adjustment of status. I have not yet received my green card. I have an emergency back home. A friend suggested I should obtain an advance parole to travel home and then return. Can I do this?
Answer: In theory, yes, you can. However, you are taking a big chance. The Immigration Service will most likely grant you the advance parole and you will be able to leave the country. However, upon return several things can happen. Upon your return, you will be allowed back in the United States, but you will be subject to a ten year bar to obtaining your green card as a result of your overstay. You would require what is called an I-601 waiver at your adjustment interview. The I-601 waiver is based on hardship to your wife who I presume is a US citizen and is granted only on discretionary basis. Meaning, that your adjustment of status can be denied and you may not get your green card depending on the amount of hardship you can prove. That’s why you’re taking a chance.
