Immigration Q & A December 2011

Author by Edward Boreth

My family (me, my wife, daughter and son both above twenty years of age) entered the United States on a B1/B2 visitor visa about ten years ago. We extended our stay for another six months. Then my wife and I got our permanent residence status about six years back. At that time, my wife filed a family petition for our daughter and son. It was also mentioned in the petition that they were present in the US with their parents.  Subsequently their petitions were approved by the USCIS and their files were sent to NVC. Soon after, both my wife and I got our US Citizenship. So we informed NVC to change out petitioner’s status category to citizen. So – how can both my unmarried daughter and son get their permanent resident status here in the US? When a visa will become available to them, can they apply for change of status here? What will be the process for that?

If your son and daughter are out of status, they cannot adjust (change) their status in the United States based on a parent’s petition. Unfortunately, if they leave the US, they will be barred from returning for 10 years, even if they have an approved petition and a visa number available.

The only way they can adjust status on their parent’s petition is if they are “grandfathered under 245(i)”. That means that someone filed for them before April 30, 2011 or they were dependents on a petition filed before April 30, 2011 and they aged out before the visa number became available.

If your son and daughter marry US citizens, they will be able to adjust status without leaving the US.

I have a business in the United States. I would like to bring some people from India to work for me. How can I do this?

If you want to bring a specialist, you may consider an H1-B visa petition. To get an H1-B visa, your prospective employee must have a job offer from your company offering a salary at the prevailing or actual wage rate for persons in that occupation and geographic location (whichever is higher). He or she must also have the minimum of a bachelor’s degree (which should be evaluated as equivalent to a degree from an accredited college or university in the U.S.), or equivalent in the specialty occupation. The job offered must be a specialty occupation, requiring a bachelor’s degree or equivalent in the field of specialty.

The employer must file the necessary petition. Once the employer’s petition is approved, the employee must go the US consulate in his home country and have the H1-B visa stamped into his passport. Spouses and children under 21 years old will get the H4 visa, that will allow them to live and study in the U.S, but not work.

There are only a limited number of H1-Bs that can be issued each fiscal year (beginning October 1), usually in three-year increments, with a maximum duration of six years. This period can be extended under certain circumstances. Some types of employers are not subject to the annual quota. Some examples of positions considered professional in this category are: accountants, computer programmers, market research analysts, elementary school teachers, journalists, researchers, and scientists.

My wife came to the United States on a fiancée visa. We married soon after that and she received her conditional green card two years ago. Now it’s about to expire. What do we do to renew her green card? How long will that take and when can my wife apply for her US citizenship?

You and your wife need to jointly file a petition to remove the condition on residence. This has to be filed in the last 90 days of her 2 year green card. You should enclose as many documents as possible to prove that your marriage is real and you are living together. Your wife will receive a letter from USCIS after filing the petition. That receipt serves as evidence that your wife is a permanent resident, at least for one year from the date of the receipt. If more than one year has passed and you still have not heard from USCIS, your wife can go the local USCIS office, via an Infopass appointment, and have her passport stamped to evidence her continuing status. There is little you can do to make USCIS process your case any faster, but the good news is that your wife can apply for her citizenship three years after becoming a permanent resident without waiting for the removal of the condition on her permanent residence. If the citizenship interview comes before the condition is removed, the interviewing officer has the authority to remove the condition on her residence then and there, as well as proceed with the naturalization.

Will filing for bankruptcy affect my permanent resident status? Will it prevent me from becoming a U.S. citizen?

No. Bankruptcy, collections cases and a poor credit score have no effect on your green card. Only criminal cases put you at risk of deportation proceedings. You can file for U.S. citizenship as long as you do not apply for government assistance like Food Stamps. To become a U.S. citizen, you must show that you are not likely to become a public charge, but as long as you are employed or can show some other means of support (e.g. savings, family member), your naturalization application should not be denied on the financial basis. Of course you still have an obligation to support your dependents, and USCIS may ask for evidence of this, such as copies of checks, etc.

I am 55 years old and have been a green card holder for 16 years. I would like to apply for citizenship. I can answer the government questions in English, but I cannot write or read English. I heard that you have to be able to write a sentence in English. What should I do?

If you are 55 years old or older and have been a permanent resident for at least 15 years, you do not have to read or write in English to get your citizenship. You still have to answer the civics and government questions, but you can do that in your native language or in English. However, there will be no reading or writing on your test.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 16 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.