FAQ

If you are applying for adjustment of status (i.e., asking U.S. immigration to change your status from a temporary nonimmigrant status to permanent residency), you generally cannot leave the United States while your application is pending or your application will be considered abandoned. There is an exception, called advanced parole or a reentry permit, that will allow you to travel abroad even with your pending adjustment of status (Form I-485) application. According to current USCIS processing times, you can expect this travel permit to take about 10.5 months to process. Source: USCIS Case Processing Times. NOTE: This is not legal advice, but general guidelines. Please contact an attorney for case-specific legal advice.

Based on the fact that your employee will still be performing the same responsibilities, we will not need to file an H-1B amendment. Generally, the only time that we will need to file an H-1B amendment is if there is a "material change in the terms and conditions of employment or the beneficiary's eligibility". Source: afm31-external.pdf (uscis.gov). Common examples of this would be if there is a change in worksite or changes in duties. You do not need an H-1B amendment if you are just receiving higher compensation for the same duties.

Based on these facts, this probably violates immigration law. According to 8 CFR 274a.1 (c), a company who uses a “contract, subcontract, or exchange entered into, renegotiated, or extended to obtain the labor of an alien in the United States, knowing that the alien is an authorized alien are subject to penalties.

The term hire means the actual commencement of employment of an employee for wages or other remuneration. For purposes of section 274A(a)(4) of the Act and 8 CFR 274a.5, a hire occurs when a person or entity uses a contract, subcontract, or exchange entered into, renegotiated, or extended after November 6, 1986 (or, with respect to the Commonwealth of the Northern Mariana Islands, after the transition program effective date as defined in 8 CFR 1.1), to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized alien The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent.

No. USCIS will deny the change of status if the B-1 or B-2 nonimmigrant enrolled in a course of study before filing the application for change of status or while the application is pending. 8 CFR 248.1(c)(3). Source: eCFR :: 8 CFR 248.1 -- Eligibility.

The following Aliens Present in Unlawful Status Who Do Not Accrue Unlawful Presence by Statute for Purposes of Section 212(a)(9)(B) of the Act (Statutory Exceptions)

(A) Minors Who Are under 18 Years of Age

(B) Aliens with Pending Asylum Applications (Including Children Aging Out and Dependents of Asylum Applicants)

(C) Aliens Physically Present in the United States with pending Forms 1-730

(D) Beneficiary of Family Unity Protection (FUP) Granted pursuant to Section 301 of the Immigration Act of 1990; 8 CFR 236.15

(E) Certain Battered Spouses, Parents, and Children

(F) Victims of Severe Form of Trafficking in Persons

(G) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status (COS] ("Tolling"). Source:https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf

Denials for Cause of Timely Filed, Non-Frivolous Applications for EOS or COS If a timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful presence begins to accrue the day after the request is denied. Source: https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf

Yes. Nearly all non-U.S. citizens in the U.S. must inform USCIS of their new address within ten days of moving (refer to 8 U.S.C. § 1305). Simply submitting a change of address form to the U.S. post office is not enough. You must directly notify USCIS of your new address by filing Form AR-11.

It depends on what stage you are in the green card process. If you are already a temporary green card holder, you may still be able to apply for a permanent green card while going through a divorce. If you are a victim of abuse by your spouse, you may be eligible to apply for a green card through the Violence Against Women Act (VAWA) using Form I-360.

However, in general, if your green card application is based on marriage to a U.S. citizen, a divorce could terminate your eligibility for lawful permanent residence (i.e., a green card). Simply maintaining your marriage on paper, without genuine marital intent, will not be sufficient. For example, if your marriage is questioned as fraudulent or your spouse refuses to attend the required USCIS interview, it could negatively affect your case. USCIS will closely examine the bona fides of your marriage under 8 CFR § 204.2(a)(1)(iii)(B) and the USCIS Policy Manual, Vol. 6, Part B, Ch. 2.

If you do not want to obtain one of the vaccinations required under the I-693 medical examination, there are specific steps you can take depending on the reason for the refusal, including the following:

• Medical Exemption: If you have a medical condition that contraindicates the vaccination, they may be eligible for a medical exemption. The civil surgeon can document this on Form I-693 under the “Vaccination Record” section. The exemption must be based on established medical guidelines as outlined in the Centers for Disease Control and Prevention (CDC) Technical Instructions.
• Religious or Moral Objections: If the refusal is based on religious beliefs or moral convictions, you can apply for a waiver by submitting Form I-601, Application for Waiver of Grounds of Inadmissibility. You must provide evidence supporting their deeply held beliefs or moral objections. USCIS will consider the waiver request on a case-by-case basis, as per 8 CFR § 212.7.

The following four steps need to be completed for the children to receive permanent residency.

Step 1: File Form I-130, Petition for Alien Relative

The first step in the family-based immigration process is filing Form I-130, Petition for Alien Relative. This form establishes the relationship between you, the petitioner (U.S. citizen or lawful permanent resident), and your family member, the beneficiary. You can file Form I-130 either online through the USCIS website or via paper by mailing the completed form and supporting documents to the appropriate USCIS lockbox facility. Filing online allows you to track your case status and receive electronic updates. The required documents typically include evidence of the qualifying relationship, such as a marriage certificate, birth certificate, and proof of your U.S. citizenship or lawful permanent resident status.

Step 2: Complete DS-260 and Provide NVC Checklist

Once USCIS approves the I-130 petition, the case is transferred to the National Visa Center (NVC). The next step involves completing Form DS-260, Immigrant Visa and Alien Registration Application. This form must be filled out online through the Consular Electronic Application Center (CEAC). The DS-260 collects biographical information about the beneficiary and is a crucial part of the visa application process. Along with the DS-260, the NVC will provide a checklist of documents that must be submitted, including:

• A copy of the beneficiary’s passport biographic page.
• Two passport-style photographs.
• Civil documents (birth certificates, marriage certificates, police certificates, etc.).
• Affidavit of Support (Form I-864) from the petitioner, demonstrating financial ability to support the beneficiary.
• Any additional documents specified in the NVC checklist based on your specific case.

All documents should be submitted electronically through the CEAC portal.

Step 3: Attend the Consular Interview

After the NVC processes the DS-260 and supporting documents, your case will be forwarded to the U.S. Embassy or Consulate in the beneficiary’s home country. The beneficiary will then be scheduled for a consular interview, where a consular officer will review the application and ask questions to determine the eligibility for an immigrant visa.

It is essential to bring the following items to the interview:

• A copy of the DS-260 confirmation page.
• The original civil documents submitted to the NVC.
• The beneficiary’s passport.
• Recent passport-style photographs.
• Any additional documents requested by the consulate.

The consular officer may approve the visa application at the interview or request further documentation or administrative processing. If approved, the beneficiary’s passport will be returned with the immigrant visa attached.

Step 4: Pay the USCIS Immigrant Fee and Obtain the Green Card

After receiving the immigrant visa, the beneficiary can travel to the United States. Upon arrival, the U.S. Customs and Border Protection (CBP) officer will review the visa and, if everything is in order, admit the beneficiary as a lawful permanent resident (LPR). Before or after arriving in the U.S., the beneficiary must pay the USCIS Immigrant Fee online via the USCIS website (USCIS Immigrant Fee Payment). This fee covers the cost of processing and producing the Green Card (Permanent Resident Card).

Once the fee is paid, USCIS will mail the Green Card to the beneficiary’s U.S. address, typically within 120 days of arrival. The Green Card serves as proof of lawful permanent resident status in the United States.

It depends on where you filed your application. If your application was filed with USCIS, you can check the status of your petition/immigration request by visiting USCIS Case Status Online at https://egov.uscis.gov/.

To change your status from F-1 to H-1B, your prospective employer must file Form I-129, Petition for a Nonimmigrant Worker, on your behalf. The petition must be submitted during the H-1B cap filing period, usually starting in early April (assuming you have been selected in the H-1B lottery), unless you are being petitioned by a cap-exempt petitioner. Your employment must be in a specialty occupation that requires a bachelor’s degree or higher, as defined in 8 CFR § 214.2(h)(4)(ii). Your employer must also file a Labor Condition Application (LCA) with the Department of Labor as required under 20 CFR § 655.700.

An E-2 visa is for nationals of treaty countries who invest a substantial amount of capital in a U.S. business, as outlined in 9 FAM 402.9. It allows the investor, or employees of the treaty enterprise, to manage the business. In contrast, an L-1 visa is for intra-company transferees who have worked for a foreign company for at least one continuous year within the last three years in an executive, managerial, or specialized knowledge capacity, as defined in 8 CFR § 214.2(l)(1). L-1 visas are not dependent on a specific country of nationality.

You can obtain an EAD by submitting Form I-765, Application for Employment Authorization, to USCIS. Eligibility categories include certain nonimmigrants, adjustment of status applicants, and others listed under 8 CFR § 274a.12. The processing time varies, and USCIS may require evidence of your eligibility category.

If you are applying for a green card through adjustment of status (Form I-485), you can apply for an Employment Authorization Document (EAD) by submitting Form I-765. Under 8 CFR § 274a.12(c)(9), adjustment applicants may work once they receive their EAD. Without an EAD, working while your application is pending may violate your current nonimmigrant status.

B-2 tourist visa generally allows a stay of up to six months per visit, as granted by the Customs and Border Protection (CBP) officer at the port of entry (8 CFR § 214.2(b)). Extensions can be requested by filing Form I-539 before your current stay expires, but approval is at USCIS discretion and requires a valid reason for the extended stay.

Processing times for Form I-130 vary depending on the service center handling the petition. Generally, it ranges from several months to over a year. You can check current processing times on the USCIS website, as outlined in the USCIS Policy Manual, Volume 12, Part A, Chapter 5.

Expedited processing may be available in limited situations, such as severe financial loss, urgent humanitarian reasons, or U.S. government interests. Requests are considered on a case-by-case basis, per the USCIS Policy Manual, Volume 1, Part E, Chapter 5. To request an expedite, you must provide evidence supporting your request when contacting USCIS.

Yes. According to the Foreign Affairs Manual (FAM), USCIS has determined that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying classification as an O-1 or O-3 dependent. The noncitizen may legitimately come to the United States for a temporary period as an O-1 or O-3 dependent nonimmigrant and depart voluntarily at the end of their authorized stay and, at the same time, lawfully seek to become an LPR of the United States. Further, as explained in 9 FAM 402.13-5(B) above, “dual intent” is permissible for O-1 visa holders. These same standards apply to O-3s accompanying the O-1 principal applicant. Source:https://fam.state.gov/fam/09FAM/09FAM040213.html