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FAQ - Immigation Law, Working Visa

Immigration Law

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Q1. Will a criminal conviction prevent me from obtaining a green card? What if I only want a temporary visa?

Below are common reasons that make a person ineligible for admission into the United States and therefore ineligible for a green card or a temporary visa.

- Health Related Factors
Generally, someone who is found to have a communicable disease of public health significance, such as HIV or Aids, is ineligible to apply for U.S. citizenship or a temporary visa. Also, someone who is found to have a physical or mental disorder that poses a threat to public property, safety or welfare will not be eligible for a green card or a temporary visa. A person who is found to be a chronic drug abuser or addict will also be prevented from entering the United States.

- Economic Factors
A person, who in the opinion of the immigration or consular official, that is likely at any time to become a "public charge" is not eligible to enter the United States. A public charge is defined as a person who by reason of poverty, insanity, disease, or disability would become dependent on the government for public cash assistance or long-term care at government expense. There are many ways to show that you will not be a public charge.

- Criminal Factors
Someone who has been found guilty of a felony conviction where the factual basis involves bodily harm to another (rape, molestation, murder) or to property (burglary, robbery, larceny) or guilty of certain drug offenses will likely be unable to obtain a green card or a temporary visa. Commission of these types of crimes can also result in removal and deportation where the person is already a green card holder. But the commission of a misdemeanor crime will not automatically prohibit you from obtaining a green card or a temporary visa. A misdemeanor offense is an offense where the imprisonment time is one year. Common misdemeanor crimes include a first time DUI conviction, petty theft (value of the stolen item is less than $400.00 dollars), or simple battery.
So the good news is that a DUI conviction will not automatically prevent you from obtaining a green card or a temporary visa. But of course an immigration officer will take into consideration the criminal conviction when assessing your case. In other words, the conviction is a factor but it should not be the only factor when the officer is assessing your case. With these types of situations, it is best to go with an experienced immigration attorney.
 
Q2. I have been in the US illegally for 2 years. Last month I married a US citizen. We plan on going to Europe for our honeymoon next month. Will I have any problems upon my return to the United States?

YES! In your position, and assuming you filed an "Adjustment of Status" application and your husband filed an "Immediate Relative Petition," you should remain in the United States until your Adjustment application has been decided. A person who departs the United States after being here illegally for more than 180 days but less than 365 and then tries to re-enter, will be denied entry for 3 years. A person who departs the US after being here illegally for more than 365 days and then tries to reenter, will be denied entry for 10 years. Thus, you should remain in the country until you get your green card. If you go to Europe next month, plan on not returning to the United States for 10 years.
Q3. I am currently married to a green card holder. However, my spouse is very abusive to me. I want to get a divorce, but I also want to get my own green card. Do I have to stay married to my abusive spouse?
No. You should definitely get out of your abusive situation. There is a law that allows spouses, either wives or husbands, to petition for a green card on their own behalf if they are married to either a green card holder or a United States citizen and have been battered or subjected to extreme cruelty by their spouse. In addition, you can also get divorced from your abusive spouse. If this situation applies to you, you should immediately contact an attorney familiar with both immigration and family law.

Working Visa

Q1. The company that is sponsoring my greencard application just declared bankruptcy and will be completely dissolved and out of business by October 1, 2004. I currently hold an H-1B1 for the company that is valid until May 2005. What will happen to my greencard petition? What will happen to my H-1?

Unfortunately, both your greencard application and H-1B1 will die along with the company. Are you sure that the company will completely dissolve? In some situations, a re-structuring of the company may still allow for the company to retain the green card petition filed on your behalf and may also allow for you to retain your H-1B1 status. However, if things are exactly as you say, in order to maintain your current status, you will need to find another H-1B1 sponsor and file a new H-1B1 petition prior to October 1, 2004. As for your greencard petition, you’ll need to find a new sponsor and start the process all over again from the beginning.
Q2. The RIR Labor Certification request that my company filed on behalf of my greencard petition has been approved. What is the next step and when can I start working for another employer? I currently am on the 6th year of H-1B1 authorization, which will expire on December 21, 2004. I prefer to remain in the United States until I get my greencard.

Once a Labor Certification has been approved, the next step for the sponsoring company is to file an I-140 (Petition for Permanent Employment) petition with the CIS. The subsequent approval of the I-140 petition signifies that you are qualified for the position and the company is qualified to hire you. The approval of the I-140 though does not in and of itself grant you the greencard. You still must either apply for consular processing in Japan, or if you prefer to remain in the United States, you can apply for Adjustment of Status.

Your question indicates that you want to remain in the US until you get your greencard. Thus you will need to file an Adjustment of Status Application. As for your question regarding working for another employer, under current CIS guidelines, once your Adjustment of Status application is filed, the receipt of your actual greencard will not be affected so long as you remain with your sponsoring company for at least 6 months after filing your Adjustment before you start working for another similar employer in a similar position and the concurrently filed I-140 is ultimately approved. Obviously, if the I-140 is denied, your Adjustment of Status will no longer be valid.

Please note that there are situations whereby you can change employers within the first 6 months of filing an AOS petition, but those situations come with varying risks and are not recommended here. However, please contact me if you want to discuss further.

Q3. I currently hold a J-1 visa, which will expire on October 1, 2004. Is it possible for my company to sponsor me for a working visa?

Some J-1’s come with a requirement that you must return home for two (2) years at the end of your J-1 authorization. If this is the case in your situation the only way that the company can sponsor you to remain in the US after your J-1 expires is by applying for a waiver of the 2 year residency requirement. If the waiver is granted, you will be eligible to remain in the country if your employers working visa application is approved.
Q4. I have just received notice that my H-1B1 petition has been approved to start on October 1, 2004 by the CIS. I am currently an F-1 student, and my employer has told me that I can go down to the US consulate in Mexico and get an H-1B1 visa. Is this true?

Under certain circumstances, it is possible to make an appointment and attend an interview at a US consulate in Mexico. However, you should be very careful. If your application is denied for any reason, including such minor things as forgetting to bring a copy of your old I-20, you will not be allowed to re-enter the United States from Mexico, and will be forced to return to your country from Mexico and will need to apply for the H-1B1 visa in your country.

*The above information is general in nature and should not be considered legal advice. Please consult with an attorney to discuss the specifics of your case.

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