F.A.Q

I entered the United States legally but stayed beyond the time authorized. Since then I have married a United States citizen. Can I apply for permanent residence?

Yes. You are an “overstay.” Generally speaking, overstays are eligible to apply for permanent residence pursuant to a family petition filed for them by their United States citizen spouse. An immigration attorney can counsel you on the many additional factors to consider.

I entered the United States illegally. Since then I have married a United States citizen. Can I apply for permanent residence?

It depends. You are in EWI status. (Entry without inspection). Under current law, a person in EWI status is eligible to apply for permanent resident status pursuant to a family petition filed by their Immediate Relative who is a United States citizen only if a previous family petition or labor certification was filed on their behalf before April 30, 2001. A consultation with an immigration attorney would be highly advisable in this case.


I want to apply for citizenship. I have a couple of arrests for minor offenses which happened more than five years ago. Will those old arrests cause me any problems?

It is very possible that “those minor problems” will indeed cause your application to be denied and, worse, you may be placed in deportation proceedings. Even if the arrests appear to be minor and even if they are older than five years, do not apply for citizenship or for a renewal of your green card without first consulting with an immigration attorney to assess the risks associated with the application.


I have received a Notice to Appear in Immigration Court. Do I have to have an attorney?

No. You may represent yourself in Immigration Court. Frequently the Immigration Judge will ask if you have an attorney. If the answer is no, the judge will frequently offer more time so that you may consult with an attorney before beginning your case. You may wish to consult with an attorney to see if some remedy is available to you. Many people appear in Immigration Court without the representation of legal counsel.

What are the penalties for remaining in the U.S. past the expiration date on one's latest I-94 card?
 
Anyone who has overstayed (remained in the U.S. past the expiration date on her/his latest I-94 card) - even for a single day - is not eligible to apply for a nonimmigrant (temporary) visa from a country other than the home country. This is because the law automatically voids the visa stamp in the passport as soon as one continues to remain illegally in the U.S. or falls out of status. If a person has a visitor's visa and unlawfully remains in the U.S. for 180 consecutive days or longer (up to one year), and then leaves voluntarily, there is a three-year bar to reentering the United States. If one stays unlawfully in the U.S. for an entire year or more, and then leaves voluntarily, there is a ten-year bar to returning to the U.S.
 
 
What is the H1B cap and how does it work? 
 
The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. This does not include the 20,000 additional visa numbers available to persons who have earned masters’ or higher degrees from U.S. institutions of higher education.
 
When should H1B cases for cap-subject cases be filed and how does the timing work?

The cap numbers become available at the beginning of each fiscal year. The government's fiscal year currently starts on October 1st. However, cases can be filed six months in advance of the requested start date. Therefore, cases can be filed on the preceding April 1st. Because there are so few cap numbers relative to increasing demand, one would be well advised contact an experienced attorney to start the process as early as December or January for the following fiscal year, so that the case can be filed to reach the USCIS on April 1st.
 
How do I change my status from tourist (B-2) to student (F-1)?

An individual who has not decided which school to attend in the U.S. may be granted a B-2 visa marked "prospective student" to allow entry to research and apply to schools. After the student is accepted to a school, the B-2 status can be changed to F-1. However, an individual who enters the United States on a B-2 visa may not enroll and begin classes until after the change of status has been approved. If one is already in the U.S. and has a tourist (B-2) or business (B-1) visa, it may be possible to change the status to F-1 by applying to the USCIS for a change of status. As long as one is in the United States, the change of status is valid. However, if one leaves the U.S. for any reason it is necessary to apply for a new visa that corresponds to the new status. Talk to an experienced immigration attorney before applying for a change, because there are some important legal issues one should consider.
 
I have a three-year bachelor's degree and more than five years of experience. Can I file as EB2? 

According to USCIS's current guidance, a three-year bachelor's degree from India alone, plus five years of experience, generally will not satisfy the requirements for EB2 classification.
 
I have a master's degree. Does that mean that I can get the green card through EB2?

U.S. Citizenship and Immigration Services (USCIS) requires a job’s requirements be at least a master’s degree or a bachelor’s degree and five years of progressive experience to be classified as EB2 during the I-140 Immigrant Petition stage. Before one gets to the USCIS, however, three factors related to job requirements need to be considered when filing a labor certification (LC) with the U.S. Department of Labor (DOL).

The first factor is the employer's minimum requirements for the position. The employer must require at least a master's degree or equivalent for the position. Also, other employees in similar positions with that employer must have masters' degrees or the equivalent. Generally, a bachelor's degree plus five years experience with another employer could qualify for EB2, if described correctly under the current USCIS and DOL interpretations for the EB2 classification.

The second factor is the maximum allowable educational requirement and experience requirement for the position, according to the DOL. The DOL classifies all jobs and assigns them a job zone, indicating the maximum allowable educational requirement and experience requirement. So, even if the employer requires a master's degree for the position, it may exceed the DOL's understanding of normal requirements for the position. If the education and experience in a particular case exceed the job zone assigned by the DOL, the case may only proceed if the company can demonstrate business necessity for the additional requirements.

The final factor is the employee's actual qualifications. S/he must hold a master's degree or equivalent, as defined by USCIS prior to commencing the employment.
 
Is a labor certification application and I-140 valid for only one employer? Does a change of employer make the above approvals void?

The labor certification and the I-140 is only applicable for a particular employer in the United States. Changing the employer requires that the person start the process over from the beginning with the possibility that the priority date can be maintained, in some instances.
 
Is there a law limiting the time a U.S. resident can stay outside of the U.S.?

The law states that a person who is a permanent resident is required to permanently reside in the United States. By remaining outside the country for long periods of time, one may be deemed to have abandoned permanent residency status. The permanent resident could end up having the green card confiscated by the USCIS officer. A permanent resident outside the United States for a year or more is generally required to have a reentry permit along with the green card and passport to return to the United States.
 
My green card was approved, but I want to leave the employer that sponsored my green card. Can I do that?

An employment-based green card process is premised upon the green card recipient working for the sponsoring employer once the green card is approved. Therefore, once the green card is approved, the green card recipient should work for the sponsoring employer for a sufficient period of time to prove that both parties intended that such an employment relationship exists. Therefore, it is risky to leave the employer that sponsored the green card too quickly after the green card is approved. Issues of fraud may arise and could create problems later when one seeks to apply for U.S. citizenship.

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