Q. Why is there a picture of a dog on this page?
A. This is our office mascot, Charlie. He is not always here, but may occasionally greet you when you come in. Do not ask his advice as he knows very little about immigration law.
Q. What happened to the INS?
A. The Immigration and Naturalization Service, formerly known as the INS, has been eliminated by the Homeland Security Act in November 2002 and has been restructured into three separate agencies under the Department of Homeland Security: Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and Citizenship and Immigration Services (CIS).
Q. Can my attorney's office call a CIS Service Center regarding my case? Can my attorney get the CIS to expedite my case?
A. We are no longer permitted to call a Service Center and speak directly with an officer regarding your case. All inquiries are now handled through the government's National Customer Service Center. Prior to your case exceeding predicted processing times by 30 days or more, there is very little we can do to assist you. To check the status of your case within normal processing times, refer to the government's online case tracking system at https://egov.uscis.gov/cris/Dashboard.do
Q. I heard that if I contact my Congressperson, they can get the CIS to expedite my case. Is this true?
A. Your Congressperson cannot usually intervene to expedite your case. If significantly more time than the estimated processing time listed on your notice of receipt has lapsed or if there is an unusual problem in processing, a Congressperson’s staff may be able to make an inquiry regarding the status of your case if there is a compelling reason to do so, but he/she cannot normally influence the outcome of your case.
Q. How can I get my case expedited?
A. The government will grant requests to expedite cases only under very limited circumstances. When the immigration benefit is urgently needed in a time frame that is less than the normal processing time and the need for expedited processing was not the fault of the applicant or petitioner (e.g., the filing was made late), or when there is a great humanitarian basis to consider, the government will consider requests for expeditious handling. Under all other circumstances, requests to expedite will not be considered and may even delay processing. I-129s and most I-140s can be expedited through the use of the CIS's Premium Processing service, which requires the filing of an additional form and an additional $1,225 government fee. Initial processing is guaranteed within 15 calendar days under this system.
Q. Can I travel on my current nonimmigrant visa or do I need to get advance parole?
A. Adjustment of status (I-485) applicants who maintain valid H-1 and L-1 nonimmigrant status do not need to obtain advance parole prior to traveling outside the U.S. if they travel in possession of a valid H-1 or L-1 nonimmigrant visa. All other nonimmigrants with pending adjustment applications must still obtain advance parole before traveling outside the U.S. At this time, with the consular delays and security issues involved in issuing nonimmigrant visas, it may be a good idea to travel on advance parole if you currently have H-1 or L-1 status but do not have a valid visa.
Q. I am on H-1B status and want to switch employers. Do I have to wait for a new H-1B petition to be approved?
A. An H-1B worker can start working for a new employer after filing the change of employer H-1B petition with the CIS (rather than having to wait for an approval of that petition), provided that the worker has never worked without authorization.
Q. When my six years of H-1B time expires, can I then remain in the U.S. by changing my status to that of an H-4 dependent based upon my spouse=s H-1B status?
A. The regulations do now allow a change of status from H-1B to H-4 after the six years have been expended.
Q. If my H-1B status is due to expire before my I-140 is approved, what options do I have?
A. H-1B nonimmigrants whose labor certification or I-140 was filed at least 365 days prior to their H-1B expiration, may obtain extensions of their H-1B status beyond the six year limit (in either one- or three-year increments, depending on circumstances), until their immigrant visa petitions are decided or adjustments of status are granted.
Q. Why did I get a Request for Evidence on my case?
A. It is not uncommon to receive a Request for Evidence, particularly for 1st preference and National Interest Waiver I-140 filings. Your attorney can help you deal with these requests effectively. They are not necessarily an indication that your case will be denied; they are many times merely a request for further documentation, but appropriate, careful, and timely response is critical for a successful outcome.
Q. My EAD is going to expire in a few months. What is the procedure for renewing it?
A. Routine EAD applications should be processed through the Service Centers (for employment-based cases) or National Benefits Center (for family-based cases). The Service Center has 90 days to adjudicate the application. If more than 90 days have elapsed since the I-765 receipt notice date and you do not have an EAD, it is no longer possible to get an interim EAD in person at a District Office. You can make an InfoPass appointment at www.uscis.gov to inquire as to the status of your EAD. Because EADs are not backdated upon approval, be sure to apply for an extension well in advance of your current EAD’s expiration (up to four months in advance).
Q. Can I work for my employer before I receive my H-1B approval if I am not paid for my services? Can I be reimbursed for services rendered after the H-1B approval comes through?
A. Volunteer services for a prospective employer may constitute unauthorized employment if the alien will ultimately derive some benefit from the work. If the alien expects future compensation or benefits, volunteer work may violate the alien's current status. Working on an employment-prohibited visa can permanently bar an alien from adjustment of status in the future.
Q. Can I switch employers while my I-485 is pending or do I have to wait until I am granted permanent resident status?
A. An individual who has filed an I-485 and whose application to adjust status has been pending for more than 180 days is allowed to change jobs within the same or a similar occupational classification (similar job description, requirements, and job code) without affecting the validity of her underlying labor certification or I-140 petition, provided that: (1) the I-140 has either been approved or (if not yet adjudicated) has not been revoked; (2) s/he has never worked without authorization; and (3) s/he has valid employment authorization to accept employment with the new employer. These are very general guidelines only and there are many nuances to this provision of the AC21 law which continue to evolve.
Q. Do I have to get my medical exam done in the state where I live and work or can it be done by any designated Acivil surgeon?
A. All applicants for adjustment of status are required to have a medical examination performed by any civil surgeon who has been designated by the government.
Q. My friend's case is progressing more quickly than mine. Why?
A. It is not generally useful to compare the progress of your case with that of a friend's case. Various factors influence the rate of progression of a case, including cooperation of all parties in getting information and documents turned around quickly, and (most importantly) changing government processing times (as well as changing agency interpretations of laws, regulations, and policies). Remember that processing times with the CIS and other agencies frequently change quickly and without warning.
Q. Does my spouse automatically have H-4 status if I am granted H-1B status?
A. No. Your spouse (and dependent children) must apply for and extend H-4 status separately. Remember to file a new I-539 for your spouse if you switch employers while on H-1B status so that your spouse's status will be extended for the same period of time as your current H-1B classification.
Q. If I marry a U.S. citizen, do I automatically obtain permanent resident or U.S. citizen status?
A. No. After you marry a U.S. citizen, your spouse must file a Petition for Alien Relative and you must make an application for adjustment of status in order for you to be granted permanent residency status. There is no automatic status given to a spouse of a U.S. citizen.
Q. If I marry a permanent resident, can I stay in the United States while my spouse's petition on my behalf is pending?
A. No. Your permanent resident spouse's filing of a Petition for Alien Relative does not preserve your status in the U.S. You must maintain some other immigration status in order to remain in the U.S. lawfully for the several years it may take for your priority date to become current under this family preference category.
Q. Am I required to let the government know when I move? How long does that obligation last and how do I do that?
A.Y es. Until you become a citizen of the U.S., you must always inform the government of address changes in writing within 10 days of the change. You can use form AR-11 for this purpose, which may be filled out and filed online at www.uscis.gov. File a separate Form AR-11 for each family member moving with you. Don't forget that you must separately inform the CIS of your address change with regard to any pending applications/petitions (this option is available at the end of the online AR-11 filing process). You should also notify your attorney of any address change.
Q. Do I need to carry my immigration papers with me at all times?
A. Yes. Foreign nationals 18 and older are required by law to carry evidence of status with them at all times, even within the U.S.
Q. What are the naturalization residency requirements?
A. The residency requirements for naturalization are multiple: (1) you must be a resident for five years (three years for some spouses of U.S. citizens); (2) those five years must be continuous; (3) the continuous residence must take place after you were lawfully admitted for permanent residence; (4) you must be physically present in the U.S. at least 2.5 years total; (5) you must be a resident of the state or USCIS district where the application is filed for at least 3 months prior to filing; (6) you must reside continuously in the U.S. from the date of filing the N-400 to your admission to citizenship.
With regard to (1), the INA defines residency specifically as the place of general abode, that is, "the principal, actual dwelling place in fact, without regard to intent." So while your intent may be relevant in terms of retaining your permanent residency upon entry, it is not relevant in residency considerations for naturalization.
With regard to (2), absences of less than six months are inconsequential for this purpose. Absences of six months to one year presumptively break the continuity of residence (the applicant can overcome the presumption with evidence that s/he did not intend to abandon residence in the U.S. during the absence). Absences of more than one year automatically break the continuity of residence for naturalization purposes, unless the person obtains permission from the USCIS prior to departing (which is only granted in limited circumstances). However, an applicant for naturalization who must satisfy a five-year residence period and who has been absent from the U.S. in excess of one year may file an application for naturalization four years and one day following the date of the applicant's return to the U.S. to resume permanent residence.
Q. I have a green card. What is the maximum amount of time I can spend outside the U.S. without jeopardizing my status?
A. This is a complex and frequently misunderstood issue. If you are planning to spend more than one year (up to two years) outside the U.S., you need to file for a reentry permit prior to departure. This does not mean that you cannot face abandonment of your green card if you make more frequent entries into the U.S. but are still residing abroad. Please contact an attorney regarding this complex issue.
Q. Is my employer required to pay my green card-related labor certification fees?
A. Yes, your employer is now required by law to pay all fees associated with the green card labor certification process, including legal fees, filing fees, and advertising costs. They may not seek reimbursement from you for those fees.
This Q&A is meant to provide general guidelines only and may not be constantly updated. Please contact an attorney regarding your specific circumstances.