Immigration Q & A May 2011

Author by Edward Boreth

A company is sponsoring me for an H1-B visa, but the attorney has told me I cannot start work until the first of October. Why is that?

Each year Congress permits 65,000 new H1-B visas to be granted. Additionally, USCIS accepts 20,000 petitions for aliens with advanced degrees (known as the Master’s Cap). Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas. Each year, after the cap amount of petitions has been received by USCIS, no more new H1-B’s will be accepted. In 2011 the cap was met on January 27 and USCIS will not issue any new H1-B’s until the 2012 fiscal year, which begins October 1, 2011. The first day of filing for petitions for 2012 was April 1, 2011. As of April 7, USCIS has received 5,900 H1-B petitions subject to the cap. Of course some H1-B petitions are not subject to the cap and are available year round, such as petitions filed by Institution of Higher Education or non-profit research organizations.

I am a permanent resident and would like to apply for US citizenship. However, I have been arrested for theft. My friends tell me that I cannot get my citizenship because of the arrest. Is this true?

Immigration rules can be very complicated and this is a perfect example. Some people with theft arrests can get their citizenship, while others will face deportation. This is why you should always consult an attorney before applying for citizenship. You have not given me enough information to tell you what will happen in your case. First, I will need to know what was the outcome of the arrest. Were you charged in court, did you enter into a plea agreement, was the case dropped or did you have to go to a pretrial diversion program? An arrest does not always count against you for immigration, usually only a conviction does. However, immigration counts some things as a conviction when the state does not. The value of the alleged stolen property may also make a difference in your case. I will also need to know the date of the arrest and the length of the sentence imposed, even if it was probation. If the arrest was too close after the first time you came to the U.S., you may end up facing deportation. However, you must wait five years after a theft conviction before applying for naturalization. Of course, if you have more than one conviction, the result may be different. Confusing? Absolutely. The answer could be good or the answer could be very bad. That is why, as with any other criminal history, you should discuss your case in detail with an immigration attorney before you file for citizenship.

I am a US Citizen. I would like to apply for my mother and my 15-year old brother. Will my brother be included in my petition for my mother, and how long will it take for them to come to the US?

As a citizen, you can petition for your mother and the process should take no more than a year, or considerably less in some cases. Unfortunately, your brother will not be included in her petition. You have to file a separate petition for him and there is quite a waiting list for the siblings of citizens category. Now it is about 10 years. When your mother gets her green card, she can petition for your brother (as long as he stays unmarried), but that wait will also be long – about eight years as of now. Once your mother gets her US citizenship, the wait will decrease by about a year and one half.

I just became a US citizen. I want to apply for my daughter, who is 28. She came to the US as a tourist six years ago, but overstayed her visa. How long will it take her to get her green card?

While you are eligible to file a family petition for your daughter, your daughter will probably not benefit from your filing. If she has overstayed her tourist status, she has lost eligibility to adjust her status pursuant to your petition. Only spouses and parents of US citizens can adjust status in the US despite an overstay. To make matter worse, if your daughter has overstayed by more than one year, and if she leaves the US to process her case at the US Consulate in our country, she will face a 10-year bar from reentering the US, regardless of your petition for her.
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.
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.