US Immigration Questions

  1. Friday, 28...
    Question:
    Answer:

    This question is raised often and debated much amongst lawyers focusing their practice on employment-based immigration.  I have a call scheduled with a corporate client who is considering the legality of accepting a volunteer in their for-profit IT business.

    I intend to inform them that under US immigration laws, if the work is performed for NO remuneration or other benefits, it would not violate the law. This issue has been explored in my blog entry here.

    The problem, however, is that the Fair Labor Standards Act (Federal Law) does not permit for-profit employers to hire unpaid "interns" or "volunteers." See this link for FLSA standards according to US Department of Labor. There has been considerable litigation on this issue with employers on the losing side. So, please consult your employment law counsel before deciding on retaining the services of unpaid employees.

  2. Wednesday,...
    Question: Approved I-140 having PD December 2012 with company A. Currently on 6 year H-1B. Will be transferred to company B. I guess I will be getting three year extension with approved I-140. Can I retain old PD once GC process is started by company B, even if company A withdraw I-140 ?.
    Answer:

    Employees retain PD even if the old employer withdraws the approved I-140. PD is lost only if USCIS revokes I-140 for fraud/misrepresentation. Do remember, however, there is no right to H-1 extensions based upon a withdrawn I-140. 

  3. Tuesday, 18...
    Question: How do I know if my visa is voided or not? I applied for a change of status while in the USA and got a denial, so I left the country 11 days after, with my I-94 already expired. Some people say my visa is voided, but where can I check this?
    Answer:

    That is covered by section 222(g) of INA. See this link: http://www.uscis.gov.edgesuite-staging.net/ilink/docView/SLB/HTML/SLB/0-...

    "(g) 2/ (1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay."

  4. Wednesday,...
    Question: I have 14 years of overall IT experience and performing Manager, Service delivery role for past 3 years. Planning to enter USA in L-1A visa. I have a team of 30 resources, working in Chennai, Shanghai and San Jose. They all report to me. <br> My Questions:<br> 1. How long I need to wait to initiate the GC process?<br> 2. Do I have a choice of selecting the type - EB-1 vs EB-2?<br> 3. I don't have bachelors or masters degree. Will that be a barrier for applying GC?<br> 4. Should I apply ONLY through my employer or can I apply myself
    Answer:

    1. You can apply for green card without any wait.
    2. Yes, but EB-1 is a gazillion times faster for Indian-born people.
    3. Degree is not a requirement for international managers/execs.
    4. Your employer needs to apply. 

  5. Thursday,...
    Question: What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?
    Answer:

    This section of the FAQ applies to continuing F-1 students who travel outside the United States for five months or less.

    Students should consult their Designated School Official (DSO) prior to traveling. Your DSO generally works in the International Student Office. You must have a current SEVIS Form I-20 endorsed for travel and your DSO needs to be able to verify that your SEVIS record is accurate and up-to-date.

    1. What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?

    • A Form I-20, endorsed for travel and signed by your DSO
    • You have been out of the United States for less than five months
    • A current passport valid for at least six months after the date of your reentry or, if you are from one of the countries listed below, a passport that is current through the date of entry
    • A valid, current visa or you traveled to contiguous country or adjacent island for less than thirty days
    • Financial information showing proof of necessary funds to cover tuition and living expenses

    If you are from a visa exempt country, you do not need a visa to reenter the United States from the western hemisphere, but make sure that you present your I-20 to be admitted as an F-1 student and not a visitor.

    2. What if my F-1 student visa has expired?

    You can stay in the United States on an expired F-1 visa as long as you maintain your student status. However, if you are returning home or traveling to a country where automatic revalidation does not apply, you must have a valid visa to return to the United States.

    Ensure that you have all the documentation you need for your visa application and allow sufficient time for processing a new visa. The documentation you may need for a new visa includes, but is not limited to the following:

    • A Form I-20, endorsed for travel and signed by your DSO (see your DSO before you travel)
    • Original evidence showing proof of necessary funds to cover tuition and living expenses
    • Evidence showing your intention to return to your home country upon program completion, including evidence of compelling social and economic ties to your home country
    • If you have applied for or had optional practical training (OPT) approved, bring a copy of your Form I-20 endorsed for OPT and your Employment Authorization Document (EAD), if you have one

    The Department of State recommends that you apply for a visa in your home country. For more information about visa applications visit the Department of State (DoS) website at http://travel.state.gov/.

    You can apply in a third country for a visa, but you will not be able to return to the United States until DoS issues your visa. In some cases, this could take several weeks if DoS requires a background check. If DoS denies your visa, you will not be able to return to the United States. Be sure to check the DoS website for specific information pertaining to each embassy or consulate.

     

    If you have an expired visa and a terminated record, we strongly advise that you do not travel outside the United States until your SEVIS record shows that you are in active status. If you do travel, you may not be able to renew your visa or return to the United States.

    3. As a continuing student, will I need to pay the I-901 SEVIS fee if I travel outside the United States?

    No. See the I-901 FAQ for detailed information on the I-901 SEVIS fee.

    4. I wish to travel to Canada, Mexico, or one of the islands (other than Cuba) adjacent to the United States. Can I return if my visa is expired?

    Yes, in most cases. You can usually revalidate an expired visa automatically when returning from a visit of less than thirty days to Canada, Mexico, or one of the islands adjacent to the United States (other than Cuba) provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process is known as automatic visa revalidation.

    However, if you meet any one of following criteria, you will not be able to automatically revalidate your visa.

    • You applied for a new visa and DoS has not yet issued it to you
    • You applied for a new visa and DoS denied the application
    • You have a terminated SEVIS record indicating that you are out of status
    • You have been out the United States for more than thirty days

    5. Which islands are defined as “adjacent islands”?

    The adjacent islands are:

    • Saint Pierre
    • Miquelon
    • Cuba
    • The Dominican Republic
    • Haiti
    • Bermuda
    • The Bahamas
    • Barbados
    • Jamaica
    • The Windward and Leeward Islands
    • Trinidad
    • Martinique
    • Other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea

    ( INA, Section 101(b)(5))

    6. How do I know if I have a terminated record in SEVIS?

    Your DSO can tell you your SEVIS record status and give you appropriate travel related advice.

    7. I want to travel outside the United States, but my SEVIS record is in terminated status. Can I return if I travel?

    If you need to travel on a terminated record, you must first visit your DSO. If your school has requested a data fix, the DSO will put your help desk ticket number on your Form I-20 and report your pending travel to SEVP.

    There is no guarantee that Customs and Border Protection (CBP) will readmit you to the United States if you travel on a terminated record. In most cases, CBP inspectors will allow you to reenter the United States if you are otherwise admissible and your DSO has properly annotated your Form I-20. It is likely, however, that the CBP officer at the port of entry will send you to secondary inspection while they determine whether you are eligible to return to the United States.

    8. Can I travel outside the United States if I have a Form I-485 adjustment of status application pending?

    No, not without advance permission. If you depart the United States with a pending Form I-485, you have abandoned your application unless you receive permission in advance from USCIS to return to the United States. We call this Advance Parole. Additionally, CBP may also consider you ineligible to return to the United States as an F-1 student because your application to change status to that of a permanent resident is evidence of intent to immigrate, which is inconsistent with nonimmigrant student status.

    9. Can I reestablish F-1 student status by obtaining a new initial Form I-20 and reentering the United States?

    Yes. However, you will be considered an initial student for SEVIS purposes. You will have to pay the I-901 SEVIS fee again and you will lose any time that you have accrued toward qualification for training (OPT) or employment.

    You must have the new Form I-20 showing that you are entering on a new SEVIS ID number.

    You should be aware that the CBP inspecting officer will determine whether or not to admit you to the United States with the new Form I-20. If you did not comply with the terms of your status during a prior stay in the United States, the CBP officer may decide that you are not eligible to reenter.

    10. Can I reenter during the 60-day period after finishing my program or OPT?

    No. The 60-day “grace” period is only to prepare to leave the country.

    11. Can I reenter if my request for OPT is pending?

    Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address.

    12. Can I reenter if I left while on OPT?

    If USCIS has approved your OPT you will be expected to have your EAD in hand to re-enter the United States, in addition to your Form I-20, valid passport and visa, and a letter of employment if you have one. If you exceed the limits on unemployment while outside the United States, you will not be eligible to re-enter the United States in F-1 status.

    13. Are there any other requirements for travel outside the United States?

    The questions above outline the general requirements for reentry for F-1 students. However, because individual circumstances vary, consult your DSO, embassy, or legal advisor before traveling. Planning for your trip early ensures that you have enough time to get all of your travel documents in order.

    If you are not returning to your home country, you should check the requirements of the country you are visiting. Some countries require a visa. You may also need a transit visa for countries where you are making a connecting flight. Be sure to check before you travel. Most countries have immigration websites that provide visa information. If you have additional questions, please contact SEVP atSEVP@ice.dhs.gov or call us at 703-603-3400.

    For more information please visit this link: http://www.ice.gov/sevis/travel/faq_f2.htm



     


     


  6. Wednesday,...
    Question: I am on F-1/OPT extension which expires on March 2014. Is there any grace period so that my employer can file my H-1 visa. Do I loose my status after March or is there any grace period. If I come under current status when can I file my H-1?
    Answer:

    When your application for H-1 is filed within 60 days of OPT expiring and within the time for the H-1 quota, you are protected by cap gap extension rules. See: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specia... 

  7. Monday, 10...
    Question: What is expeditious naturalization?
    Answer:

    Expeditious naturalization is available to individuals who are seeking to naturalize as the spouse of a U.S. citizen who is regularly stationed abroad. The eligibility requirements for this category of naturalization applicants are outlined in section 319(b) of the Immigration and Nationality Act (INA) and section 319.2, Title 8, Code of Federal Regulations. Although U.S. Citizenship and Immigration Services (USCIS) gives priority to and provides special handling for these types of naturalization applications, an interview, which is a mandatory part of the application process, cannot be scheduled until your background checks have been completed. 

    Where can I obtain forms and information about Naturalization Requirements? 

    You may obtain the N-400 application form and a copy of A Guide to Naturalization from our website at www.uscis.gov. 

    What requirements must I meet for naturalization under section 319 (b) of the INA? 

    • You must be a lawful permanent resident at the time of your interview. 

    • You must meet the applicable naturalization requirements outlined in sections 3 1 2 and 3 16 of  the INA and Title 8, Code of Federal Regulations (physical presence is not required), 

    • You must be married to a U.S. citizen and living together in a valid marital union. 

    • Your U.S. citizen spouse must be "regularly stationed abroad" as: 

    o A member of the U.S. Armed Forces; 

    o An employee or an individual under contract to the U.S. government; 

    o An employee of an American institution of research recognized as such by the Attorney General; 

    o An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States; 

    o An employee of a public international organization of which the United States is a member by law or treaty; or 

    o A person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the United States. 

    • You must show evidence that you will depart to join your U.S. citizen spouse within 45 days of your naturalization. 

    What does the term "regularly stationed abroad" mean regarding my spouse's employment? 

    The term "regularly stationed abroad" means that the overseas employment contract for your spouse clearly shows that your spouse's employment will continue abroad for at least one year after the date that you will be naturalized. When possible, you should file your application prior to your departure overseas. If you are already overseas, you should file your application only if the end date of your spouse's employment contract will allow you to meet the eligibility criterion of having at least one year remaining overseas at the time of naturalization. 

    Where can the interview and naturalization take place? 

    As an applicant for naturalization under section 319(b), you may be interviewed at any USCIS office of your choice in the United States, including Guam, Puerto Rico, and the U.S. Virgin Islands. If you choose to be interviewed at our office, you will be naturalized the same day as your interview, in most cases. Please note that, if you want to change your name, you cannot be naturalized by our office. You will be required to attend your oath ceremony at a Federal Court. Court ceremonies are held only one day each month and, depending upon when in the month you are interviewed, it may take at least two months to be scheduled for a ceremony. As stated previously, although U.S. Citizenship and Immigration Services (USCIS) gives priority to and provides special handling for these types of naturalization applications, an interview, which is a mandatory part of the application process, cannot be scheduled until your background checks have been completed. 

    May I file my naturalization application if I am a conditional resident? What should I do? 

    If you are a conditional resident, you may file for naturalization. If you are within the 90 days of the two-year anniversary (the expiration date on your green card) or if your naturalization application will not be processed prior to your two-year anniversary, you must filed a Form 1-751, Petition to Remove Conditions on Residence, according to the instructions on the form. If you have already filed your 1-751 Petition, please notify our office so that the Form 1-751 may be considered and adjudicated at the time of your naturalization interview. 

    What documents should I submit with the Form N-400, Application for Naturalization? 

    • A cover letter directed to USCIS advising that you are applying for naturalization under section 319(b) of the INA. You must state on your cover letter where you wish to be interviewed. 

    • Application fee. Please visit our website at www.uscis.gov for a listing of the current fee. 

    • Fingerprint fee OR two(s) sets of FD-258 fingerprint cards. 

    o If you are living overseas at the time of filing your application, you must go to a U.S. Embassy/Consulate or U.S. installation to have your fingerprints taken. You do not 

    need to pay a fingerprinting fee to USCIS (you must check with the entity taking your fingerprints to find out if there is an associated fee). 

    o If you are living in the United States at the time of filing your application, you must submit a fingerprinting fee so that you can be printed at an Application Support 

    Center. Please visit our website at www.uscis.gov for a listing of the current fee. 

    • Documentation to establish that your U.S. citizen spouse's employer is a qualifying employer and the length of your spouse's overseas assignment. 

    U.S. MILITARY 

    • Form DD-1278 issued no earlier than 90 days prior to the scheduled date of overseas travel, if you are authorized concurrent travel. If you cannot submit this form, the letter 

    from your spouse's Commanding Officer that is described below must also include permission for you to reside abroad with your spouse after naturalization. 

    • A letter from your spouse's Commanding Officer on official letterhead certifying that he or she is your spouse's Commanding Officer and the official date of rotation (DEROS) of your 

    spouse from the overseas assignment. 

    U.S. GOVERNMENT AGENCY (NON-MILITARY) 

    • A letter on official agency/department letterhead that states the facts of your spouse's employment, the basis of your spouse's hire (contract, permanent employee, etc.), and the 

    length of your spouse's overseas employment. 

    ALL OTHER EMPLOYERS (an American institution of research recognized as such by the Attorney General, an American-owned firm or corporation engaged in the development of 

    foreign trade and commerce for the United States, a public international organization of which the United States is a member by law or treaty, or a religious denomination or an 

    interdenominational organization with a valid presence in the United States). 

    • A letter on official letterhead which states: 

    o The title of the official attesting to the facts in the letter; 

    o The name of the institution, firm or corporation and whether the official has access to the company's records; 

    o The nature of the business that the employer conducts; 

    o The name of the State under the laws of which the employer was organized and the date of incorporation, etc.; 

    o The ownership structure of the enterprise; and 

    o The facts of your spouse's employment, the basis of your spouse's hire (contract, permanent employee, etc.), and the length of your spouse's overseas employment. 

    • A copy of your 1-5 51 permanent resident card (green card) 

    • Proof of your spouse's U.S. citizenship (copy) 

    • Your birth certificate (copy) 

    • Your marriage certificate (copy) 

    • Proof of termination of all prior marriages for you and your spouse (copies) 

    Fore more information please visit this page  http://www.uscis.gov/sites/default/files/USCIS/About%20Us/Find%20A%20USC... 

  8. Tuesday, 4...
    Question: What the Visa Expiration Date Means
    Answer:
    The visa expiration date is shown on the visa along with the visa issuance date. The time between visa issuance and expiration date is called your visa validity. The visa validity is the length of time you are permitted to travel to a port-of-entry in the United States.
     
    Depending on your nationality, visas can be issued from a single entry (application) up to multiple/unlimited entries.
     
    A visa issued for a single entry (denoted on the visa under “Entries” with the number 1) is valid, or can be used from the date it is issued until the date it expires to travel to a U.S. port-of-entry one time.
    A visa issued for multiple entries (denoted under “entries” with a certain number (2, 3, etc.) or “M” for multiple/unlimited entries) is valid, or can be used from the date it is issued until the date it expires to travel to the U.S. port-of-entry as many times as your visa states, provided that:
        Applying for a new visa is not necessary if your visa has not expired and you have not exceeded the number of entries permitted on your visa.
        Multiple uses of a visa must be for the same purpose of travel allowable on the type of visa you have.
     
    Please be aware, a visa does not guarantee entry to the United States. Additionally, the visa expiration date shown on your visa does not reflect how long you are authorized to stay within the United States. Entry and the length of authorized stay within the United States are determined by the Customs and Border Protection (CBP) Officer at the port-of-entry each time you travel.
     
    It is important to note that there are circumstances which can serve to void or cancel the period of visa validity. If you overstay the end date of your authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), your visa will automatically void or cancel unless;
     
    You have filed an application in a timely manner for an extension of stay or a change of status;
    That application is pending and not frivolous;
    If you have applied for adjustment of status to become a permanent resident (LPR, also called green card holder), you should contact USCIS regarding obtaining Advance Parole before leaving the United States.
     
    Admission to the United States and your Duration of Stay
    Upon arriving at a port of entry, the CBP official will determine the length of your visit.
     
    On the admission stamp or paper Form I-94, the U.S. immigration inspector records either an admitted-until date or "D/S" (duration of status). If your admission stamp or paper Form I-94 contains a specific date, then that is the date by which you must leave the United State. If you have D/S on your admission stamp or paper Form I-94, you may remain in the United States as long as you continue your course of studies, remain in your exchange program, or qualifying employment. The admitted-until date or D/S notation, shown on your admission stamp or paper Form I-94 is the official record of your authorized length of stay in the United States. You cannot use the visa expiration date in determining or referring to your permitted length of stay in the United States.
     
    Carefully review information about international visitor admission on the CBP Website.
     
    Extension of Stay
    If you came to the United States on a nonimmigrant visa and you want to extend your stay you must apply with USCIS before your authorized stay, denoted on your admission stamp or paper Form I-94, expires. It is recommended you apply well in advance of your expiration date. To learn more select USCIS, How Do I Extend My Stay?.
     
    Important Note: Providing permission to enter and/or remain in the United States. to persons holding a nonimmigrant visa is not the responsibility of the Department of State, and therefore Visa Services is unable assist you in this regard. All inquiries must be directed to USCIS.
     
    What if I Decide to Stay Longer and am Out-of-Status with the Department of Homeland Security?
    You should carefully consider the dates of your authorized stay and make sure you are following the procedures. Failure to do so will cause you to be out-of-status.
    Staying beyond the period of time authorized, by the Department of Homeland Security, and out-of-status in the United States, is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the United States. If you overstay the end date of your authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), your visa will generally be automatically be voided or cancelled, as explained above. Select Classes of Aliens Ineligible to Receive Visas to learn more.
  9. Thursday,...
    Question: Has USCIS clarified the distinction between unauthorized employment, failure to maintain status, and unlawful presence.
    Answer:

    USCIS has provided the following clarification:

    Background: A Form I-485, Application to Register Permanent Residence or Adjust Status, seeks to accord Lawful Permanent Resident (LPR) status to an alien who is the beneficiary of an approved employment-based (EB) or other immigrant visa petition, such as Form I-140, Immigrant Petition for Alien Worker. Section 245 of the Immigration and Nationality Act (the Act), as amended, is the statutory basis for adjustment, which is discretionary and regulated by U.S. Citizenship and Immigration Services (USCIS). 

    To adjust, an alien in the U.S. must apply, have an immigrant visa immediately available to them, and be admissible. They must also undergo a medical examination, security checks and, in some instances, an interview. An alien is not entitled to adjustment and a denied Form I-485 may not be appealed; however motions may be filed. Common grounds for the denial of an EB Form I-485 include failure to maintain a lawful status and/or engaging in unauthorized employment after admission. Much less common, yet noteworthy due to the lengthy statutory bars entailed, are denials due to unlawful presence.

    This clarification will address maintenance of lawful status, unauthorized employment, and unlawful presence as applied to adjustment under section 245 of the Act. (The information provided herein does not supersede existing USCIS statute, regulation, or existing policy. For additional information on the topics herein, readers should refer to official USCIS statute, regulation, field manuals, and binding policy.) Since lawful status and employment authorization are not required for adjustment under section 245(i) of the Act, emphasis will be given to sections 245(a) and (k) of the Act, under which the majority of EB applicants presently adjust.

    Section 245 Overview: Sections 245(a), (k) and (i) of the Act provide the three main “avenues” to adjustment. Eligibility under a specific section is contingent largely on the applicant’s means of entry to the U.S., maintenance of status, employment authorization (if applicable), admissibility under section 212 of the Act, and submission of required initial evidence. Section 245(c) of the Act describes the classes of aliens who are restricted from adjustment. These provisions are further applied by Title 8, Code of Federal Regulations, part 245, and Chapter 23.5 of the Adjudicator’s Field Manual. EB adjustments are also subject to a number of binding Service policy memoranda and precedent decisions.

    Section 245(a) of the Act applies to an alien who: 

    Is not restricted under sections 245(c), (d), (e), or (f) of the Act, or Title 8 CFR Part 245.1(c) (includes alien crewmen, transit without visa aliens, K-1 fiancées, conditional permanent residents, aliens in removal proceedings, inadmissible aliens without waivers and other classes), and

    Is present in the U.S. pursuant to a lawful entry (admission), and

    Has maintained, continuously, a lawful status from the time of their last admission until filing for adjustment, and

    Is in a lawful status upon filing for adjustment, and

    Has not, at any time since their last admission, engaged in unauthorized employment.

    A number of otherwise eligible aliens fail to maintain lawful status or engage in unauthorized employment after their admission, or they may not be in a lawful status upon filing for adjustment. This renders them subject to the restrictions under sections 245(c)(2), (7) and (8) of the Act and therefore ineligible to adjust under section 245(a).

    Section 245(k) of the Act provides certain preference aliens with limited relief from the aforementioned restrictions. The full section is as follows:

    (k) An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)
    (C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

    (1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

    (2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

    (A) failed to maintain, continuously, a lawful status;

    (B) engaged in unauthorized employment; or

    (C) otherwise violated the terms and conditions of the alien's admission.

    Section 245(i) of the Act, which was created and extended, respectively, by Public Laws 105-119 and 106-554, permits certain aliens who are further restricted under section 245(c) of the Act [and generally ineligible to adjust under sections 245(a) or (k)], to overcome those restrictions.

    Examples include applicants who failed to maintain a lawful status or engaged in unauthorized employment for more than 180 days; aliens who entered without inspection; crewmen and transit without visa (TWOV) aliens. The sunset of this provision was on April 30, 2001. However, section 245(i) remains available to an adjustment applicant who:

    Is the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001 (or is a grandfathered alien), and

    Has failed to maintain, continuously, a lawful status and/or engaged in unauthorized employment for more than 180 days since their last entry, or is otherwise restricted from adjustment under certain sections of 245(c) of the Act, and

    Was physically present in the U.S. on December 20, 2000 (applies only to principal applicants whose visa petition or labor certification was filed between 1/14/1998 and 4/30/2001), and

    Completes a Supplement A to Form I-485, and

    Pays a penalty fee of $1,000 (if aged 17 or older at filing).

    Under section 245(i) of the Act, an alien remains eligible to adjust regardless of unlawful entry, failure to maintain status or unauthorized employment. However, such aliens may be subject to the accrual of unlawful presence, which shall be discussed in that section.

    FAILURE TO MAINTAIN STATUS

    Title 8, CFR Part 245.1(d)(1) defines “lawful immigration status” to include nonimmigrant status (e.g. B2, F1, H1B, J1, L1A), refugee status and asylum. Temporary protected status (TPS) granted under section 244 of the Act and F-1 student occupational practical training (OPT) are also considered lawful status for adjustment purposes. Examples of persons not in lawful status include aliens who entered without inspection, aliens whose nonimmigrant status has expired, and parolees who were not inspected and admitted.

    In terms of Form I-485 adjudication, lawful status is counted from the date of the alien’s last admission until the Form I-485 is filed. Any gaps or violations that occurred prior to the alien’s last admission or after Form I-485 was filed are not counted. (These limitations do not, in any way, bar USCIS from scrutinizing an applicant’s full immigration and employment history within the record of proceeding to otherwise determine admissibility or eligibility.) Lapses or violations totaling 180 days or less are permissible under section 245(k) of the Act. 

    An alien fails to maintain lawful status when their status has expired, has been revoked, or has been terminated. In particular, an alien admitted as a nonimmigrant fails to maintain lawful status upon overstaying his or her authorized period of admission, as specified by the expiration date on the alien’s Form I-94 (Arrival/Departure Record) or Form I-797 (Notice of Action). Applicants also fail to maintain lawful status by violating the terms and conditions of their admission. This means that although the alien held (or was granted) a lawful status, he or she engaged in activities which violated the terms and conditions of that status.

    Example 1: Marie, who is the beneficiary of an approved Form I-140 immigrant visa petition, was last admitted to the U.S. as a B-2 nonimmigrant visitor on April 15, 2006, valid until October 15, 2006. She was not granted any other status and filed her Form I-485 on January 15, 2007.

    Marie was out of status from October 16, 2006, until filing for adjustment on January 15, 2007, a period of 91 days. She was also not in a lawful status at the time of filing her Form I-485. Consequently, she is a restricted alien as per sections 245(c)(2) and (7) of the Act and ineligible to adjust under section 245(a). However, Marie remains eligible to adjust under section 245(k) of the Act, because (k) does not require a lawful status upon filing and the aggregate period in which she failed to maintain a lawful status did not exceed 180 days.

    Example 2: Lee, who is the beneficiary of an approved Form I-360 special immigrant (religious worker) visa petition, was last admitted as an R-1 nonimmigrant religious worker on April 10, 2005, valid until April 10, 2007. Lee worked for the petitioning religious organization until July 4, 2006, then quit to pursue a nursing degree. Lee was not granted any other status. Lee files a Form I-485 on April 1, 2007, with the intention of returning to his Form I-360 employer once approved.

    By leaving the position that was the basis for his R-1 nonimmigrant status and attending school, Lee violated the terms and conditions of his admission from July 5, 2006, until filing for adjustment April 1, 2007, a period of 270 days. Consequently, Lee is a restricted alien as per sections 245(c)(2) and (8) of the Act and ineligible to adjust under section 245(a). Lee is also ineligible to adjust under section 245(k) of the Act, because the aggregate period in which he failed to maintain, continuously, a lawful status exceeded 180 days. Assuming Lee is further ineligible for section 245(i) relief, his Form I-485 would be denied.

    Additional Considerations:

    • Adjustment applicants who have been in the U.S. for extended periods may have multiple extensions of status (EOS) or changes of status (COS). If an EOS/COS is filed timely, but not approved until after the prior status has expired, the applicant will still be considered to have maintained a lawful status from the date the EOS/ COS was filed. The gap created by the period the EOS/COS request was pending with CIS should not be held against the applicant.

    • If an alien’s EOS/COS request is denied, his or her lawful status is considered to have ended as of the original expiration date. A denied EOS/COS does not confer a “lawful status” for adjustment purposes or have the effect of such status.

    • A previously filed Form I-485 that has been denied does not confer a “lawful status” for the purposes of re-filing for adjustment or have the effect of such status.

    • As set forth in Title 8 CFR part 245.1(d)(2), an alien’s failure to maintain lawful status may be forgiven for a particular period, provided such failure was through no fault of their own or for technical reasons. However, the burden of proof remains with the alien.

     

    UNAUTHORIZED EMPLOYMENT

    The term “employment,” for adjustment purposes, means any service or labor performed by an employee for an employer within the U.S. Employment after admission must generally be authorized by USCIS. EB adjustment applicants are most often authorized by being admitted in (or granted) an employment-authorized nonimmigrant status (e.g. H1B, L1, R-1, TN). It is important to recognize that such nonimmigrant classifications confer both lawful status and authorization to work, specifically for the petitioning employer.

    Certain aliens are authorized to work incidentally to their status, such as an F-1 nonimmigrant student who works on-campus as part of their study program. As per Title 8 CFR Part 274a.12, many classes of aliens, including asylees, refugees, certain nonimmigrant dependents and pending adjustment applicants, may also apply for an Employment Authorization Document (EAD). An EAD is generally not employer-specific.

    Section 245(c)(2) of the Act bars from adjustment an alien who “continues in or accepts unauthorized employment prior to the filing of an application for adjustment of status…” Section 245(c)(8) further bars “any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3), or who has otherwise violated the terms of a nonimmigrant visa.”

     

    Section 274A(h)(3) of the Act, as amended, states:

    (3) Definition of unauthorized alien. As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. 

    Title 8, Code of Federal Regulations, Part 274a.12(c)(9) states:

    An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I-485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CRF 274a.12 to engage in employment….

    Additionally, Title 8, Code of Federal Regulations, Part 245.1(b) states, in pertinent part:

    Restricted Aliens….

    (10) Any alien who was ever employed in the United States without authorization of the Service….For purposes of this paragraph an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application…

    Unlike lawful status, which is counted from the time of the alien’s last admission until the Form I-485 is filed, unauthorized employment is counted from the time of admission until the Form I-485 is approved. The filing of an adjustment application does not “stop the clock” for the purpose of assessing unauthorized employment.

    Unauthorized employment begins when an alien accepts employment without Service authorization or continues to work after their existing authorization expires. Unauthorized employment ends upon the alien being granted authorization or the employment is terminated. For any periods in which USCIS determines the alien engaged in unauthorized employment, the alien bears the burden of establishing that such periods were authorized, or that he or she did not, in fact, engage in unauthorized employment. Again, as per section 245(k) of the Act, periods of unauthorized employment totaling 180 days or less may be forgiven. 

    Important: Any overlapping days of unauthorized employment and unlawful status count only once against the 180 day aggregate of section 245(k), in favor of the alien.

     

    Additional considerations:

    • Routine absences from work, such as weekends, vacations, or sick leave do not interrupt unauthorized employment. The “aggregate” of section 245(k) refers to the sum of all such periods and not simply the actual workdays within a given period.

    • Unauthorized employment is not stopped by departing the U.S. and reentering with a valid advance parole document (Form I-512). In accordance with section 245(k) of the Act, an alien can begin to accrue time against the 180-day period for violations that occurred on or after the alien’s last lawful admission. An alien who enters the U.S. pursuant to an advance parole is not “lawfully admitted” and, therefore, cannot benefit from a new 180- day period.

    • Religious workers engaging in their qualifying occupation or vocation are considered to be “employed” for adjustment purposes and need authorization, even if their compensation is not monetary (room and board, stipends, health insurance, etc. are considered compensation).

    UNLAWFUL PRESENCE

    The unlawful presence statute was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (“IIRAIRA”). Unlawful presence is defined as an alien present in the U.S. after their “period of stay authorized by the Attorney General” expires, or present in the U.S. without having been admitted or paroled. Aliens who have been unlawfully present in the U.S. for more than 180 days may be inadmissible if they depart.

    Unlawful presence, which is an inadmissibility under section 212(a) of the Act, is not the same as failure to maintain lawful status or unauthorized employment. It is an entirely separate concept, both legally and in terms of determining adjustment eligibility. Unlawful presence is pertinent to adjustment because an alien must be admissible in order to be eligible to adjust.

    Section 212(a) of the Act states, in pertinent part:

    (a) Classes of aliens ineligible for visas or admission. Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

    (9)…(B) Aliens unlawfully present.

    (i) In general. Any alien (other than an alien lawfully admitted for permanent residence) who—

    (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, … is inadmissible.

    (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

    (ii) Construction of unlawful presence. For the purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled…

    Unlawful presence accrues when an alien in the U.S. is not in a “period of stay authorized by the Attorney General.” “Authorized” stay includes lawful status, such as nonimmigrant status, refugee status, TPS, and asylum. However, several additional periods qualify as “authorized” stays, including:

    • Grants of voluntary departure;

    • Grants of withholding or deferral of removal under the United Nations Convention Against Torture;

    • Legalization and special agricultural worker applications for lawful temporary residence that are pending through an administrative appeal;

    • Grants of withholding or suspension of deportation, or cancellation of removal;

    • Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of PL 99-603 through administrative appeal;

    • Grants of Temporary Protected Status and Deferred Enforced Departure; and

    • Applications for adjustment of status under section 245 of the Act (including section 245(i)).

    Additionally, there are several important statutory exemptions to unlawful presence:

    • Aliens under age 18 do not accrue unlawful presence;

    • Unlawful presence before April 1, 1997 (the enactment date of IIRAIA) is not counted;

    • Accrual of unlawful presence stops upon filing of Form I-485 (unless the Form I-485 was filed solely to prevent removal);

    • Aliens with timely filed pending EOS/COS applications do not accrue unlawful presence while their request is pending. If the EOS/COS is denied, unlawful presence resumes upon denial;

    • An alien admitted as a nonimmigrant for duration of status “D/S,” particularly F-1 students and J-1 exchange visitors, do not accrue unlawful presence until CIS finds such a violation while adjudicating a benefit and notifies the alien in writing;

    • Additional exemptions exist, including battered women and children described under section 212(a)(6)(A)(ii) of the Act and family unity beneficiaries.

    The above exceptions aside, an alien who departs the U.S. after being unlawfully present for a period of more than 180 days (but less than one year) is inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three-year bar. An alien who departs the U.S. after being unlawfully present for more than one year is inadmissible under section 212(a)(9)(B)(i)(II) of the Act and triggers the ten-year bar. Unlawful presence is counted as continuous, not aggregate, time in the U.S. (Exception: Unlawful presence is counted in the aggregate for aliens subject to the permanent bar under section 212(a)(9)(C) of the Act. Specifically, an alien who accrues an aggregate of more than one year of unlawful presence in the U.S., then departs and re-enters without inspection, is barred permanently. The illegal entry must have occurred on or after April 1, 1997.) It is critical to note that the alien must depart in order to trigger the unlawful presence bars. In the absence of a departure, the accrual of unlawful presence is moot.

    Section 212(a)(9)(B)(v) of the Act provides the (legacy) Attorney General with the sole discretion to waive the three- or ten-year unlawful presence bars, if the alien is the spouse or son or daughter of a U.S. Citizen (USC) or LPR. The alien must demonstrate that the refusal of their admission would result in extreme hardship to the USC or LPR spouse or parent. The dispensation of this waiver is rare and the burden of proof lies with the alien.

    Example 1: John is admitted to the U.S. as a B-2 nonimmigrant visitor on October 30, 2001, with permission to remain until April 29, 2002. He files a timely request to extend his B-2 status on April 15, 2002. This request is denied on June 1, 2002. John does not have any other status and subsequently departs the U.S on February 10, 2003. On August 12, 2004, he is admitted as an H1B nonimmigrant specialty worker. A Form I-140 is later filed and approved on his behalf. John files his Form I-485 on March 10, 2007.

    John was unlawfully present in the U.S. from June 1, 2002—the date his timely filed EOS was denied—until his departure February 10, 2003, a continuous period of 254 days. His departure, after being unlawfully present for more than 180 days, but less than one year, renders him inadmissible under section 212(a)(9)(B)(i)(I) of the Act and triggers the three year bar. Provided John does not qualify for the waiver, his Form I-485 would be denied.

    Example 2: Rita enters the U.S. as an F-1 nonimmigrant student on August 20, 2003, with permission to remain for the duration of her status (“D/S”). After attending school full time for one semester, Rita changes to part time, then drops out entirely. She spends the next sixteen months visiting friends across the U.S. and working as a house sitter. She then departs on July 1, 2005. After completing her degree abroad, Rita is admitted to the U.S. on July 30, 2007, as J-1 nonimmigrant exchange visitor. Shortly thereafter, a Form I-140 is approved on her behalf and she files for adjustment.

    Although Rita violated her F-1 nonimmigrant status and engaged in unauthorized employment for over a year prior to her departure, she did not accrue unlawful presence because she was admitted for “duration of status” and CIS did not find the violation while adjudicating a benefit or notify her in writing. Her departure therefore did not render her inadmissible under section 212(a)(9)(B)(i)(II) of the Act and did not trigger the ten-year bar.

    Further, her violation of status and unauthorized employment occurred prior to her most recent admission as a J-1 nonimmigrant. Provided she is otherwise eligible, her Form I-485 is approvable.

    Other important unlawful presence considerations:

    • The statutory unlawful presence bars under sections 212(a)(9)(B)(i) of the Act are not overcome by section 245(k) or (i) relief. Such an alien would still have to establish eligibility for the waiver;

    • Departing the U.S. with a valid advance parole document (Form I-512) is considered a departure for unlawful presence purposes. Advance parole does not relieve the alien from being subject to unlawful presence.

    For additional Service clarifications and policy regarding unlawful presence:

    • AFM Chapter 30.1(d)

    • March 27, 2003 memorandum by the CIS Chief, Inspections Law Division, Office of General Counsel:

    “Interpretation of ‘Period of Stay Authorized by the Attorney General’ in determining ‘unlawful presence’ under INA section 212(a)(9)(B)(ii).”

    • June 12, 2002 memorandum by the CIS Executive Associate Commissioner, Office of Field Operations: “Unlawful Presence.”

  10. Monday, 20...
    Question: I am planning to apply for H-1 through multiple employers. What are the precautions I need to take. I have my project end date in August, one of my employer will be representing with my current job. Will it be a problem later if the client details does not match ?
    Answer:

    If you are a quota applicant, you can apply through as many unrelated companies as you like. Do not be a party to any misrepresentation. 

  11. Tuesday, 14...
    Question: I have a three year Bachelors from India and 16 years of experience in US. Currently I have a pending EB-3 with a PD of 10/2006. I am wondering, if I do MS here (Online or Executive course), will I then qualify for EB-2 or do I need to show progressive experience from the time I get my MS?
    Answer:

    If the Master's degree is accredited, you do not need post-Master's experience for EB-2. There can be some issue about the 3+2 pattern of education, but an accredited Master's should fix it.

  12. Thursday, 2...
    Question: When is a foreign person considered an employee? If residing overseas, is the foreign person employee considered a broker? Should current authorizations be replaced or amended to be consistent with current guidance? Can multiple employees be covered under one authorization? How is an employee providing marketing services overseas identified in a license application? What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from? What value should be entered on the license application? How should the foreign person employee of a U.S. person be identified in the TAA or MLA? Who should sign the DSP-83 for the transfer of U.S. classified information?
    Answer:

    When is a foreign person considered an employee?
    A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.

    If residing overseas, is the foreign person employee considered a broker?
    If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.

    Should current authorizations be replaced or amended to be consistent with current guidance?
    Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.

    Can multiple employees be covered under one authorization?
    Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.

    How is an employee providing marketing services overseas identified in a license application?
    If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.

    What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
    This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.

    Wha value should be entered on the license application?
    DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.

    How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
    The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval. 

    Who should sign the DSP-83 for the transfer of U.S. classified information?
    The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis. 

    For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1

    http://www.uscis.gov/working-united-states/temporary-workers/frequently-asked-questions-about-part-6-form-i-129-petition-nonimmigrant-worker 
    http://www.bis.doc.gov/

  13. Thursday, 2...
    Question: I am on H-1B & my wife also on H-1B. After three months pregnancy leave my wife is planning not to work and to transfer from H-1B to H-4. She will not have last paychecks copy for three months so will it be an issue during transfer? Will she need to start the job again to get three paychecks copy ?
    Answer:

    Reasonable maternity leave should be considered "in status" period, so pay stubs should not be needed.

  14. Monday, 30...
    Question: Is there a direct way for me to get a green card or apply for EB-3 without my employer's support? My employer is unwilling to support me for any working visa and I am already out of the status due to this.
    Answer:

    Three options: Extraordinary Ability Aliens, National Interest Waiver and Investment (EB-5).

  15. Monday, 30...
    Question: Does the USCIS make a distinction as to whether a specialist physician works in a Medically Underserved Area vs Health Professional Shortage Area versus Physician Scarcity Area? My job falls in MUA, HPSA but not PSA , is this a problem for a specialist?
    Answer:

    NIW requires "You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)."

  16. Tuesday, 17...
    Question: How do I get a number and card?
    Answer:

    A Social Security number is important because you need it to get a job, collect Social Security benefits and receive some other government services. Many other businesses, such as banks and credit companies, also ask for your number.If you are a noncitizen living in the United States, you also may need a Social Security number. For more information, see Social Security Numbers For Noncitizens (Publication No. 05-10096). If you are temporarily in the United States to work, see Foreign Workers and Social Security Numbers (Publication No. 05-10107).

    How do I get a number and card?

    To apply for a Social Security number and card:

    Complete an Application For A Social Security Card (Form SS-5); and

    Show the original documents or copies certified by the issuing agency proving:

    —U.S. citizenship or immigration status [including Department of Homeland Security (DHS) permission to work in the United States];

    —Age; and

    —Identity.

    Then, take or mail your completed application and documents to your local Social Security office.

    Citizenship or immigration status: 

    The center accepts only certain documents as proof of U.S. citizenship. These include a U.S. birth certificate, a U.S.passport, Certificate of Naturalization or Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current U.S. immigration documents. Acceptable documents include your:

    Form I-551, Permanent Resident Card (green card, includes machine-readable immigrant visa with your unexpired foreign passport);

    I-94, Arrival/Departure Record, with your unexpired foreign passport; or

    I-766, Employment Authorization Card (EAD, work permit).

    International students must present further documentation. For more information, see International Students And Social Security Numbers (Publication No. 05-10181).

    Age: You need to present your birth certificate. (If one exists, you must submit it.) If a birth certificate does not exist, Social Security may be able to accept your:

    Religious record made before the age of 5 showing your date of birth;

    U.S. hospital record of your birth; or

    Passport.

    Identity: Social Security can accept only certain documents as proof of identity. An acceptable document must be current (not expired) and show your name, identifying information and preferably a recent photograph. Social Security will ask to see a U.S. driver's license, state-issued nondriver identification card or U.S. passport as proof of identity. If you do not have the specific documents asked for, Social Security will ask to see other documents including:

    Employee ID card;

    School ID card;

    Health insurance card (not a Medicare card);

    U.S. military ID card;

    Adoption decree;

    Life insurance policy; or

    Marriage document (only in name change situations).

    All documents must be either originals or copies certified by the issuing agency. Social Security cannot accept photocopies or notarized copies of documents. Social Security may use one document for two purposes. For example, Social Security may use your U.S. passport as proof of both citizenship and identity. Or, Social Security may use your U.S. birth certificate as proof of age and citizenship. However, you must provide at least two separate documents.

    Social Security will mail your number and card as soon as they have all of your information and have verified your documents with the issuing offices.

    What does it cost?

    There is no charge for a Social Security number and card. If someone contacts you and wants to charge you for getting a number or card, please remember that these Social Security services are free. You can report anyone attempting to charge you by calling our Office of the Inspector General hotline at 1-800-269-0271.

    Are there different types of cards?

    Social Security  issues three types of Social Security cards. All cards show your name and Social Security number.

    The first type of card shows your name and Social Security number and lets you work without restriction. Social Security issue it to:

    —U.S. citizens; and

    —People lawfully admitted to the 

    United States on a permanent basis.

    The second type of card shows your name and number and notes, “VALID FOR WORK ONLY WITH DHS AUTHORIZATION.” Social Security issues this type of card to people lawfully admitted to the United States on a temporary basis who have DHS authorization to work.

    The third type of card shows your name and number and notes, “NOT VALID FOR EMPLOYMENT.” Social Security issues it to people from other countries:

    —Who are lawfully admitted to the United States without work authorization from DHS, but with a valid nonwork reason for needing a Social Security number; or

    —Who need a number because of a federal law requiring a Social Security number to get a benefit or service.

    How do I get my child a Social Security number?

    It is a good idea to get the number when your child is born. You can apply for a Social Security number for your baby when you apply for your baby’s birth certificate. The state agency that issues birth certificates will share your child’s information with us. Social Security will mail the Social Security card to you. Or, you can wait and apply at any Social Security office. If you wait, you must provide evidence of your child’s age, identity and U.S. citizenship status. If you are filing an application on behalf of someone else, you must show us evidence of your relationship to, or responsibility for, the person for whom you are filing. You also must show us proof of your identity. Social Security must verify your child’s birth record, which can add up to 12 weeks to the time it takes to issue a card. To verify a birth record, Social Security will contact the office that issued it.

    Anyone age 12 or older requesting an original Social Security number must appear in person for an interview, even if a parent or guardian will sign the application on the child’s behalf.

    Adoption: Social Security can assign your adopted child a number before the adoption is complete, but you may want to wait. Then, you can apply for the number using your child’s new name. If you want to claim your child for tax purposes while the adoption is still pending, contact the Internal Revenue Service for Form W-7A, Application for Taxpayer Identification Number for Pending U.S Adoptions. For more information, see Social Security Numbers For Children (Publication No. 05-10023).

    What if my name changed?

    If you legally change your name because of marriage, divorce, court order or any other reason, you need to tell Social Security so that you can get a corrected card. If you are working, also tell your employer. If you do not tell us when your name changes, it may:

    Delay your tax refund; and

    Prevent your wages from being posted correctly to your Social Security record, which may lower the amount of your future Social Security benefits.

    If you need to change your name on your Social Security card, you must show us a document that proves your legal name change. Documents Social Security may accept to prove a legal name change include:

    Marriage document;

    Divorce decree;

    Certificate of Naturalization showing a new name; or

    Court order for a name change.

    If the document you provide as evidence of a legal name change does not give us enough information to identify you in our records or if you changed your name more than two years ago (four years ago if you are younger than age 18), you must show us an identity document in your old name (as shown in our records). Social Security will accept an identity document in your old name that has expired.If you do not have an identity document in your old name, Social Security may accept an unexpired identity document in your new name, as long as Social Security can properly establish your identity in our records.

    Citizenship: Also, if you are a U.S. citizen born outside the United States and our records do not show you are a citizen, you will need to provide proof of your U.S. citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

    Your new card will have the same number as your previous card, but will show your new name.

    How do I make sure my records are accurate?

    Each year your employer sends a copy of your W-2 (Wage and Tax Statement) to Social Security. Social Security compares your name and Social Security number on the W-2 with the information in our files. Social Security add the earnings shown on the W-2 to your Social Security record.It is critical that your name and Social Security number on your Social Security card agree with your employer’s payroll records and W-2 so that Social Security can credit your earnings to your record. It is up to you to make sure that both Social Security’s records and your employer’s 

    records are correct. If your Social Security card is incorrect, contact any Social Security office to make changes. Check your W-2 form to make sure your employer’s record is correct and, if it is not, give your employer the accurate information.

    You also can check your earnings record on your Social Security Statement. The Statement is available online to workers age 18 and older. 

    To review your Statement, go to www.socialsecurity.gov/myaccount and create an account.

    What if my immigration status or citizenship changed?

    If your immigration status changed or you became a U.S. citizen, you should tell Social Security so Social Security can update your records. To get your immigration status or citizenship corrected, you need to show documents that prove your new status or citizenship. Social Security can accept only certain documents as proof of citizenship for new and replacement cards. These include your U.S. passport, a Certificate of Naturalization or a Certificate of Citizenship. If you are not a U.S. citizen, Social Security will ask to see your current immigration documents.

    What if my card is lost or stolen?

    You can replace your card or your child’s card for free if it is lost or stolen. However, you are limited to three replacement cards in a year and 10 during your lifetime. Legal name changes and other exceptions do not count toward these limits. For example, changes in noncitizen status that require card updates may not count toward these limits. Also, you may not be affected by these limits if you can prove you need the card to prevent a significant hardship.To get a replacement card, you will need to:

    Complete an Application For A Social Security Card (Form SS-5);

    Present an unexpired original document with identifying information and preferably a recent photograph that proves your identity;

    Show evidence of your U.S. citizenship if you were born outside the United States and did not show proof of citizenship when you got your card; and

    Show evidence of your current lawful noncitizen status if you are not a U.S. citizen.

    Your replacement card will have the same name and number as your previous card.

    How can I protect my Social Security number?

    You should treat your Social Security number as confidential information and avoid giving it out unnecessarily. You should keep your Social Security card in a safe place with your other important papers. Do not carry it with you unless you need to show it to an employer or service provider.Social Security do several things to protect your number from misuse. For example, Social Security requires and carefully inspect proof of identity from people who apply to replace lost or stolen Social Security cards, or for corrected cards. One reason Social Security do this is to prevent people from fraudulently obtaining Social Security numbers to establish false identities. Social Security maintains the privacy of Social Security records unless:

    The law requires us to disclose information to another government agency; or

    Your information is needed to conduct Social Security or other government health or welfare program business.

    You should be very careful about sharing your number and card to protect against misuse of your number. Giving your number is voluntary even when you are asked for the number directly. If requested, you should ask:

    Why your number is needed;

    How your number will be used;

    What happens if you refuse; and

    What law requires you to give your number.The answers to these questions can help you decide if you want to give your Social Security number. The decision is yours.

    Contacting Social Security

    For more information and to find copies of our publications, visit our website at www.socialsecurity.gov or call toll-free, 1-800-772-1213 (for the deaf or hard of hearing, call our TTY number, 1-800-325-0778). Social Security treat all calls confidentially. Social Security can answer specific questions from 7 a.m. to 7 p.m., Monday through Friday. Generally, you’ll have a shorter wait time if you call during the week after Tuesday. Social Security can provide information by automated phone service 24 hours a day.Social Security also want to make sure you receive accurate and courteous service. That is why Social Security have a second SocialSecurity representative monitor some telephone calls.

  17. Tuesday, 10...
    Question: A couple of questions I have in extension to the I-140 withdrawal by employer are below. If I have I-1485 pending for more than a year via company A and I join company B using my EAD/AC21: a. what will be the impact if Company-A decides to withdraw/cancel/dissolve the I-140? b. Is there a possibility for a NOIR to occur on the I140 which had been approved in 2011? If yes what is the impact in either cases? What are the measures I need to take in either case?
    Answer:

    a. No effect on your AC21 right, but you cannot extend future H-1 (if you need them).

    b. Oh yes.

    You can just make sure the employer vigorously responds to an NOIR, if needed.

  18. Tuesday, 3...
    Question: What is Returning Resident Visas (SB-1)?
    Answer:

    About Returning Resident Visas (SB-1)

    A permanent resident (called lawful permanent resident or LPR) or conditional resident (CR) who has remained outside the U.S. for longer than one year, or beyond the validity period of a Re-entry Permit, will require a new immigrant visa to enter the U.S. and resume permanent residence. A provision exists under U.S. visa law for the issuance of a returning resident special immigrant visa to an LPR who remained outside the U.S. due to circumstances beyond his/her control. This webpage is about Returning Resident Visas. If you are an LPR unable to return to the U.S. within the travel validity period of the green card (1 year) or the validity of the Re-entry Permit (2 years), you may be eligible and can apply at the nearest U.S. Embassy or Consulate for a Returning Resident (SB-1) immigrant visa.

    If your application for returning resident status is approved, this eliminates the requirement that an immigrant visa petition be filed on your behalf with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). You will need to be interviewed for both your application for returning resident status, and usually later for the immigrant visa. An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination. Therefore, this involves paying both visa processing fees and medical fees.

    Spouse or Child of a Member of the U.S. Armed Forces or Civilian Employee of the U.S. Government Stationed Abroad - If you are the spouse or child of a member of the U.S. Armed Forces or of a civilian employee of the U.S. Government stationed abroad on official orders, you may use your Permanent Resident Card, Form I-551, to enter the U.S. even if it has expired. Therefore, you would not need a Returning Resident (SB-1) immigrant visa, as long as you:

    Have not abandoned your LPR status; and

    Your spouse or parent is returning to the U.S.

    Step 1 - Qualifying for Returning Resident Status

    Under provisions of immigration law, to qualify for returning resident status, you will need to prove to the Consular Officer that you:

    Had the status of a lawful permanent resident at the time of departure from the U.S.;

    Departed from the U.S. with the intention of returning and have not abandoned this intention; and

    Are returning to the U.S. from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible.

    Applying for a Returning Resident Visa

    If you wish to apply for a Returning Resident (SB-1) immigrant visa, you should contact the nearest U.S. Embassy or Consulate in advance of your intended travel (at least three months in advance, if possible) to permit sufficient time for visa processing. As part of the visa application process, an interview at the U.S. Embassy or Consulate is required. Review country-specific instructions and information by reviewing the U.S. Embassy or Consulate website where you will apply. 

    Required Documentation

    When applying for a Returning Resident (SB-1) immigrant visa, you should submit the following forms and documents to the U.S. Embassy or Consulate where you will apply:

    A completed Application to Determine Returning Resident Status, Form DS-117

    Your Permanent Resident Card, Form I-551

    Your Re-entry Permit, if available

    You must also submit supporting documents that show the following:

    Dates of travel outside of the U.S. (Examples: airline tickets, passport stamps, etc.)

    Proof of your ties to the U.S. and your intention to return (Examples: tax returns, and evidence of economic, family, and social ties to the U.S.)

    Proof that your protracted stay outside of the U.S. was for reasons beyond your control (Examples: medical incapacitation, employment with a U.S. company, etc.)

    A Consular Officer will review your application and supporting documents to determine whether you meet the criteria for Returning Resident (SB-1) status. If you do, you must be eligible for the immigrant visa in all other respects in order to be issued a Returning Resident (SB-1) immigrant visa.

    Required Fees

    The following are the required fees:

    Application for Determining Returning Resident Status, Form DS-117. Select Fees for current Department of State fees.

    Additionally, if you are approved for Returning Resident (SB-1) status, the following fees will be required based on the immigrant visa processing explained below:

    Form DS-230 application processing and security surcharge fees

    Medical exam and vaccination fees

    Step 2 – Immigrant Visa Application and Documentation

    The Embassy or Consulate will provide you with specific instructions for the remainder of the processing for your Returning Resident (SB-1) immigrant visa. While exact instructions may vary by Embassy or Consulate, these instructions will include:

    Before your interview:

    Instructions for your medical examination, including a list of required vaccinations

    Instructions for your interview, including the following documentation to bring:

    Form DS-260, Online Immigrant Visa Application

    Original passport;

    Two photographs, meeting Photograph Requirements

    A list of civil documents to bring to your immigrant visa interview, as requested by the Embassy or Consulate

    Review country-specific instructions and further information by reviewing the U.S. Embassy or Consulate website where you will apply.

    If Your Application to Determine Returning Resident Status is Not Approved

    If, after reviewing your Application to Determine Returning Resident Status, Form DS-117, and supporting documents, the Consular Officer determines that you do not meet the criteria for a Returning Resident (SB-1) immigrant visa on the grounds that you have abandoned or relinquished your residence in the U.S., it may or may not be possible to obtain a nonimmigrant visa depending on whether you have established a residence abroad to which you will return. If you cannot submit convincing evidence of compelling ties abroad, you may have to apply for an immigrant visa on the same basis and under the same category by which you immigrated originally.

    About International Travel and Permanent Residents

    As a permanent resident, before you depart the U.S. for temporary travel abroad and then seek to return to the U.S., you should review important information on the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Customs and Border Protection (CBP) websites. Learn about Travel Documents, including Re-Entry Permits and Form I-131, Application for Travel Document, on the USCIS website. For information for permanent residents returning to the U.S. from travel abroad, review the CBP website.

    Returning Legal Permanent Residents Who Obtained Such Status Based on Asylum Status - Asylum applicants, asylees, and lawful permanent residents who obtained such status based on their asylum status are subject to special rules with regard to traveling outside the U.S. For more information on obtaining proper documentation before you depart the U.S., see Benefits and Responsibilities of Asylees on the USCIS website.

    For Videos on SB-1 please visit these links:

    http://www.immigration.com/media/n-470/maintaining-your-green-card

    http://www.immigration.com/media/form-i-131/requirements-naturalization-...

  19. Monday, 2...
    Question: I can't locate my I-94 online. What should I do?
    Answer:

    If you tried to retrieve your I-94 from the cbp.gov online system and you receive a response that your I-94 is "Not Found", please read the following questions to help you check for mistakes and try to enter the information again:

    1. Did you enter your first and last name the same way it appears on your passport?  Please do not use dashes or titles.

    2. Did you enter the passport number that appears on the upper right hand side of your passport?

    3. Did you enter your country of citizenship (country that issued the passport, not where you currently live)?

    4. Under Class of Admission, did you enter the visa classification that appears on your U.S. visa OR, if you are traveling under the visa waiver program (VWP) enter WT/WB?

    5. If you entered your first and middle name and it is not found, try one name or the other.  Also try entering your first and middle name in the first name box.

    6. Try entering either your most recent date of entry or your original date of entry into the U.S.

    If you still cannot find your I-94, please contact your nearest* Customs and Border Protection Deferred Inspection Site and a CBP Officer will be able to assist you.

    *When you open the link to the Deferred Inspection Site, you will find an alphabetical list of locations within the United States. 

    Note:  Asylees and refugees should have received a hand written or stamped I-94 upon entering the U.S. and will not be able to retrieve I-94 information online.

  20. Wednesday,...
    Question: I am here on an H-1B and I am looking at quitting my job very soon to leave the country. I am aware there is no grace period for quitting on an H-1B and I don't have a choice but to work till the last day. I do however have a tourist visa that is valid until 2016. Can I quit my job earlier and still stay a week on the account of the tourist visa to pack up and leave; or would the tourist visa have to be activated only be re-entering?
    Answer:

    It has to be "activated." Note that under the circumstances reentry and hence "reactivation" is likely to be difficult.

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