Mayzel Law Group
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FAQ
 
  1. My spouse is petitioning for me but he/she does not meet the income requirements stated in the I-864 affidavit of support because he is a student. What can we do?

  2. In what type of cases We have to present the Affidavit of Support?

  3. I won a Diversity Visa lottery. Do I have to submit an Affidavit of Support?

  4. I won a Diversity Visa lottery and have been in the U.S. for four years. Do I have to leave the U.S. in order to obtain my green card or I can do it in the country?

  5. I live with a man for seven years but he is not divorced and his wife is not in the U.S. and that is the reason why we can not get married. He applied for political asylum 10 years ago. 6 years ago, his claim was denied and his case is currently on the appeal. I filed for political asylum 7 years ago and my case is before an Immigration Judge and has not been resolved. We received a notification that we won the DV lottery. Can we still get the green card without leaving the U.S.?

  6. I work for one company having an H-1B visa for two years. Currently, I got an offer from another company who is willing to support my H-1B visa. How long will the INS take to process my H-1B transfer? 

  7. I am an H-1B/H-4/F-1/etc., and I am interested in forming my own company. Can I do this legally or will I be jeopardizing my current status?

  8. My green card has been approved. How long will it be valid? What do I have to do to renew it? 

  9. What happens to my green card if I go abroad for an extended period?

  10. What is the procedure for getting fingerprints done for the INS?

  11. How long are fingerprints valid?

  12. How can I check on the status of a case that I have pending at the INS? (INS Phone Numbers) 

  13. I called the INS automated phone system and it says that my case "cannot be found at this time." What is wrong?

  14. I think my case has been pending too long at the INS Service Center. How long should it take?

  15. What is a Reduction in Recruitment Labor Certification, and what are the Requirements? 

  16. If I am in the U.S. and my visa expired, can I re-new the visa without leaving the U.S.?

  17. When I go to the U.S. Consulate to get my H-1B visa, what do I bring?

  18. How Long Do I Have to Enter the U.S. after My H-1B Is Approved?

  19. How can I find out if I can go to Canada or Mexico to get my visa stamped instead of going all the way to my home country?

  20. If an alien has filed a timely application for a change of nonimmigrant status to that of a student and the INS receipt indicates that it will take a long time for the application to be adjudicated, what would be the implications of the alien beginning to attend school prior to the adjudication?

  21. I am a permanent resident of the United States and would like to apply for my citizenship. What is the policy on this and when can I do it?

  22. If my permanent residency was approved four years and six months ago, when can I apply for citizenship?

  23. If I entered the U.S. as a refugee on March 26, 1996 but received my green card approval on July 31, 1998, what date is considered as a start of my permanent residency?

  24. What is a visa waiver?

  25. Is my country on the list of visa waiver countries?

  26. How does an individual obtain a temporary visa to enter the U.S.?

  27. Who is entitled to an H1B status and for how long?

  28. What does the Labor Certification process for Green Cards entail?

  29. What is a National Interest Waiver ( NIW )?

  30. Can an individual obtain permanent residence through investment?

  31. How can I obtain permanent residence by marriage to a U.S. citizen?

 


1: My spouse is petitioning for me but he/she does not meet the income requirements stated in the I-864 affidavit of support because he is a student. What can we do?

You need to prove income from an alternate source. The requirements are that the sponsor's income must be 125% of the poverty line income for a family of that specific size. The instructions on the form (downloadable from a number of places on the web) spell out the details and numbers. The key language in the instructions includes: "If the petitioner cannot meet the income requirements, a joint sponsor may submit an additional affidavit of support." Even if the spouse or relative who filed the petition doesn't meet the numbers, they still need to do the affidavit. The sponsor and joint sponsor must be:

  • A U.S. citizen or permanent resident 

  • At least 18 years old 

  • Domiciled in the United States or its territories or possessions.

The additional sponsor can be anyone with a logical relationship to the beneficiary AND who is willing to undertake the enforceable legal promise which makes up the affidavit. In plain English, if the person sponsored becomes unable to financially fend for themselves, the financial burden is on the affiant. Only after the sponsored immigrant can be credited with 40 qualifying quarters of work, leaves the U.S. permanently, or dies, is the affiant off the hook. 

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2: In what type of cases We have to present the Affidavit of Support?

Practically in all cases when you apply for permanent residence with exception of the employment-based cases where the employer petitions for you and your source of income and living will derive from this employment. 

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3: I won a Diversity Visa lottery. Do I have to submit an Affidavit of Support?

If you are in the U.S. and file for adjustment of status based on DV, you have to submit an Affidavit of Support. If you are out of the U.S. and will have your interview for the green card in the U.S. Consulate out of the country, you can provide both, the Affidavit of Support and a job offer letter from a potential employer.

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4: I won a Diversity Visa lottery and have been in the U.S. for four years. Do I have to leave the U.S. in order to obtain my green card or I can do it in the country?

It is a very complicated question and requires more history and details. It depends on whether you have maintained your lawful status in the U.S. (then, yes), or if you have not, whether any petition or labor certification had been filed for you or your that time spouse before January 14, 1998 (then, also, yes), or you filed a political asylum claim while being in lawful status (then, also, yes), or you have not filed any petitions and then you have to consult an attorney in person to discuss all particularities of your difficult situation. Isabella Mayzel has a substantial experience in this category of cases when in absolutely hopeless cases the clients were granted the green card.

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5: I live with a man for seven years but he is not divorced and his wife is not in the U.S. and that is the reason why we can not get married. He applied for political asylum 10 years ago. 6 years ago, his claim was denied and his case is currently on the appeal. I filed for political asylum 7 years ago and my case is before an Immigration Judge and has not been resolved. We received a notification that we won the DV lottery. Can we still get the green card without leaving the U.S.?

Yes, you can only if he gets divorced and you two get married. The main condition of your success will be the filing of both your political asylum claims while you were still in lawful status. Consult our office on details and will be happy to resolve your problem.

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6: I work for one company having an H-1B visa for two years. Currently, I got an offer from another company who is willing to support my H-1B visa. How long will the INS take to process my H-1B transfer? 

While it seems the processing times for H-1B transfers should be shorter than for new H-1Bs, this often is not the case. One should count on a transfer taking about the same time as filing for a new H-1B. The only good news in that process is that the quota requirements do not apply to the transfer.

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7: I am an H-1B/H-4/F-1/etc., and I am interested in forming my own company. Can I do this legally or will I be jeopardizing my current status?

This is indeed a "frequently asked question," particularly in light of the fact that many immigrants to the U.S. have high ambitions and entrepreneurial aspirations. As always, I will preface the response by telling you that there are a myriad of details and issues which prohibit us from giving you a specific response which will apply in all cases. However, here are some general guidelines. 
Unlike most nations in the world which have a single system of incorporation, the United States is different: each state, district, or territory has its own rules governing the formation and maintenance of corporations, partnerships, limited liability companies, etc. In most states, a corporation can be formed by any individual, even individuals who are not physically residing in the United States. To form a corporation, there are a number of parties involved:

  1. The incorporator: Most frequently, this is the attorney or certified public accountant who acts to establish the corporation.

  2. The directors: At the formation of the company, the directors responsible for undertaking the company's business must be identified. These initial directors identified in the articles of incorporation can subsequently be amended as needed.

  3. Officers of the corporation: Officers are elected in the by-laws of the company, which take place at the initial organizational meeting after the company has been established and is registered with the state. At such time, the President, Vice-president, Treasurer, and Secretary are elected by the directors.

Most individuals in most visa categories - immigrant and nonimmigrant - are not violating any laws by appearing as an incorporator, director, or officer of a company, provided that they are not being compensated for "working" for the company.

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8: My green card has been approved. How long will it be valid? What do I have to do to renew it? 

Permanent Residency cards are currently issued for 10 years, unless its based on condition (residency based on marriage before the second anniversary). Currently, renewals are made in person, at the local INS office; this policy based upon new INS reorganization.

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9: What happens to my green card if I go abroad for an extended period? 

The answer depends on the amount of time you are planning to spend out of the country.

  1. 1. If you will be out of the country for less than 180 days, then you should have no problem with re-entry the U.S. and your Green Card alone should get you across the border.

  2. If you will be out of the country for more than 180 days but less than a year, you can use your Green Card to enter without a re- entry permit; however, it is highly recommended to obtain a re-entry permit and always use caution when embarking on such extended stays as your intent may be questioned upon re entry.

  3. If you are planning to be out of the country for more than one year and you do not obtain an advance permission -- such as a re-entry permit - you will be construed as having abandoned your permanent residence.

If you obtain a re-entry permit, make sure you return before expiration of the period of validity to avoid suspicion. Remember, there is no absolute guarantee that even a re entry permit will preserve your residency as it is only considered an "application" for admission. In the worst case scenario, your re-entry can be denied and you can be ordered excluded.

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10: What is the procedure for getting fingerprints done for the INS?

As of the end of March, 1998, the new procedure requires the individuals to send a fingerprint fee with their applications, and then the INS sends them an appointment for fingerprints.

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11: How long are fingerprints valid?

From 12 to 15 months.

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12: How can I check on the status of a case that I have pending at the INS? (INS Phone Numbers) 

If you have the receipt number of your case, there are phone numbers you can call to check on your case with an automated system at each of the 4 service centers:

  • Eastern Service Center (Vermont): (802) 527-4913 (Receipt # starts with "EAC")

  • Northern Service Center (Nebraska): (402) 323-7830 (Receipt # starts with "LIN")

  • Southern Service Center (Texas): (214) 381-1423 (Receipt # starts with "SRC")

  • Western Service Center (California): (949) 831-8427 (Receipt # starts with "WAC")

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13: I called the INS automated phone system and it says that my case "cannot be found at this time." What is wrong?

We recently received an update from the American Immigration Lawyers Association (AILA) which further explains some information about INS Direct, the automated phone system of the INS. Issues have arisen with our clients and others that we speak to where the automated phone system will not have the most current updated information. For example, the automated system will say that the file cannot be found, or will not have information that a request for additional evidence was received, etc. The reason for these problems is that when the phone lines for INS Direct are down for any reason, information entered into the CLAIMS system (Computer Linked Application Information Management System), INS' computerized database, does not get entered into the INS Direct System and is permanently skipped from being entered in the system. Basically, as we have been indicating in the past, if the automated system indicates that the file cannot be found or does not have some other information entered that you believe it should have, it should not be cause for alarm. The information is still there at the INS on their CLAIMS system, but just not on the INS automated phone system. If you do become concerned, you can have your attorney follow-up with an officer by holding on the line during business hours. Note: We recommend only holding after the estimated amount of time on the receipt notice has expired, since the INS officers have to take time away from adjudicating cases to answer telephone inquiries.

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14: I think my case has been pending too long at the INS Service Center. How long should it take?

There is an estimate of the amount of time the INS Service Center says that your case should take on your receipt notice that they send you. These times are subject to change, and are sometimes updated on the automated phone system. The estimated processing time is in business days. Therefore, if, for example, the estimated time for your case is 60-90 days, then this would be based on business days, which would come out to be 12-18 weeks.

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15: What is a Reduction in Recruitment Labor Certification, and what are the Requirements? 

Reduction in Recruitment allows employers to circumvent the recruitment process required for Labor Certification by demonstrating a good pattern of recruitment. In order to request a Reduction in Recruitment, an employer must demonstrate that during the preceding six months, he or she has made good faith efforts to recruit U.S. workers for the job opportunity. While what constitutes good faith may vary according to the Department of Labor Region, certain principles apply across the board:

  1. The Job must not be Unduly Restrictive: It should not require unusual job duties, the education and experience requirements should not exceed the SVP, and there should be no special requirements. Essentially, the ads must not be tailored to the individual.

  2. The salary must meet the Prevailing Wage.

  3. There should be a high level of documentation of Extensive Recruitment. A few ads will not be sufficient. The employer must be able to demonstrate that recruitment has been proliferate for the six months. The advertisement is required to be in the most readable and popular sources of the area for this type of the profession. For example, if your labor certification concerning a skilled worker (such as Welder, Car Mechanic, etc.), a State newspaper ad would satisfy the requirements; however, if the labor certification is concerning a professional (such as Computer Programmer or Financial Analyst), the ad should be published in the Regional newspaper.

  4. The DOL will tend to favor large established companies over small new ones. Large companies are more likely to have ongoing personnel needs and established recruitment practices, whereas a small company will generally be looking only to fill a specific position. Therefore, the DOL is more likely to give the larger company the benefit of the doubt.

  5. High Shortage Occupations and Regions will have a better chance at successful RIR than others. If the DOL recognizes a general need for personnel in a given occupation or region, they are more likely to approve the RIR.

  6. No U.S. Workers Available: If the employer can also demonstrate that there are no U.S. workers available, the DOL will be more likely to approve the RIR. Therefore, in addition to documenting the recruitment efforts, the employer should also document the response and reasons why an applicant was denied.

  7. Use DOT Jobs: The DOL is more likely to approve the RIR when the job is a standard DOT job. Unusual jobs will receive a higher degree of scrutiny.

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16: If I am in the U.S. and my visa expired, can I re-new the visa without leaving the U.S.?

You can but only if you have the same type of visa in your passport you had entered the U.S. using this visa. The renewal process does not apply to the renewal of B1/B2 visas.

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17: When I go to the U.S. Consulate to get my H-1B visa, what do I bring?

  • H-1B approval notice

  • Passport for you and any family members you wish to bring with you

  • Birth certificate for you and any family members you wish to bring with you

  • A copy of your H-1B application package (if you have it)

  • A copy of any professional licenses you possess (if applicable)

  • A copy of any degrees you possess (if applicable)

  • A letter from your future employer verifying employment (if possible)

  • A copy of your marriage certificate (if applicable)

  • Any other documents you think may be important.

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18: How Long Do I Have to Enter the U.S. after My H-1B Is Approved?

The general rule on the topic is as follows: once you get your H-1B visa stamp in your passport, it is good for the period indicated. As long as the stamp is still valid and you can show the job is still available (if asked) then you can enter on the stamp. Further, as long as your approval notice is still valid and you can show the job is still available (again, if asked) you should be able to get an H-1B stamp in your passport.

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19: How can I find out if I can go to Canada or Mexico to get my visa stamped instead of going all the way to my home country?

The phone number to make appointments at the border posts in Canada and Mexico is (900) 443-3131. Additionally, there is a website that can be used to make appointments at these posts, located at http://www.nvars.com.

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20: If an alien has filed a timely application for a change of nonimmigrant status to that of a student and the INS receipt indicates that it will take a long time for the application to be adjudicated, what would be the implications of the alien beginning to attend school prior to the adjudication?

There will be none. There are no statutory or regulatory violations if the student attends school prior to the adjudication of his application to change status.

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21: I am a permanent resident of the United States and would like to apply for my citizenship. What is the policy on this and when can I do it?

The is a two part question, depending on the basis for permanent residency. If the permanent residency is based upon marriage to a U.S. citizen, the permanent resident can apply for citizenship after 3 years after the day the permanent residency is approved. If the permanent residency is based upon anything other than marriage to a U.S. citizen, then the permanent resident can apply for citizenship after 5 years after the day the permanent residency is approved.

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22: If my permanent residency was approved four years and six months ago, when can I apply for citizenship?

The INS instructs that you can apply for citizenship not earlier than four years and nine months after you were granted your permanent residence.

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23: If I entered the U.S. as a refugee on March 26, 1996 but received my green card approval on July 31, 1998, what date is considered as a start of my permanent residency?

The refugee status is an exception to the general rule. The time when he entered the U.S. is considered to be the start point for the permanent residency even though he is finally admitted only at the time of his permanent residency interview and approval. He gets a so-called roll back to the day of entrance. Therefore, March 26, 1996 is considered to be the start of your permanent residency. You will be able to apply for citizenship on or later December 26, 2000.

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24: What is a visa waiver?

The Visa Waiver Pilot Program (VWPP) enables citizens of certain countries to enter the U.S. and stay up to 90 days for tourism or business without obtaining a visa.

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25: Is my country on the list of visa waiver countries?

There are 26 visa waiver countries: Andorra, Argentina, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, San Marino, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. If your country is not listed above, then it is not a visa waiver country and a visa is required for you to enter the United States.

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26: How does an individual obtain a temporary visa to enter the U.S.?

One can enter the U.S. temporarily for a variety of other reasons: as a visitor or tourist, business person, student, or employees etc. These temporary visas are known as "non-immigrant" visas and are issued at U.S. embassies and consulates located in most countries. At the issuing embassy or consulate, the visa officer must be convinced that the visa applicant will not remain in the U.S. after expiration of the authorized stay. The burden is on the applicant to demonstrate through strong personal, professional, or other evidence that his/her intent is to depart the U.S. within the prescribed time frame. Visas may be valid for one or more entries into the U.S. and are accordingly referred to as single entry or multiple entry. A visa, however, does not automatically guarantee entry to the U.S. The immigration Officer at the U.S. port of entry makes that final determination.

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27: Who is entitled to an H1B status and for how long?

In order to qualify for H-1B status, one must have a job offer from a U.S. employer offering a salary commensurate with the prevailing wage rate for persons in that occupation and geographic location. One must also possess the minimum of a university baccalaureate degree (which should be considered equivalent to a degree from an accredited university in the U.S.) in the specialty occupation.

There is a limited number of H1Bs that can be issued each fiscal year (Oct 1-Sep 30), usually in three-year increments, with a maximum duration of six years. The six-year clock can be paused if the person departs the U.S. for one year. A few examples of positions considered professional in this category are: accountants, computer programmers, dietitians, graphic designers, journalists, researchers, and scientists.

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28: What does the Labor Certification process for Green Cards entail?

This process is for persons immigrating under the following Employment-Based categories:

Second Preference: Members of the professions holding advanced degrees who do not meet the national interest waiver criteria;

Third Preference: Skilled workers, i.e. those capable of performing work requiring at least two years experience or training, for which qualified workers are not available in the U.S.;

Professionals, i.e. those with baccalaureate degrees; and

Other workers, i.e. unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the U.S.

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29: What is a National Interest Waiver ( NIW )?

The Employment-based Second Preference Category involves members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Although this category generally requires an employer and labor certification, the Attorney General may waive this requirement if the work by the foreign national is in the "national interest."

To qualify for a national interest waiver the individual's work must benefit the U.S. in the national interest. Since the term "national interest" has not been defined in the statute, certain factors are taken into account in determining national interest. These factors include improvement of: the U.S. economy; wages and working conditions for U.S. workers; education, health care, the environment, and housing. An interested government agency request is an added factor, which is given considerable weight by the INS.

Please note that approvals in this category have become more difficult to obtain since August of 1998, due to a case known as the "New York State Department of Transportation (NYSDOT)" case. INS is scrutinizing these petitions more carefully and in many instances is applying a higher standard similar to the "extraordinary ability" standard.

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30: Can an individual obtain permanent residence through investment?

In order to qualify as an immigrant investor, the individual must invest at least $1 million in a new commercial enterprise, which employs at least ten U.S. citizens on a full-time basis (exclusive of the individual, spouse, and children). If the investment is made either in a rural area or an area experiencing high unemployment, the minimum investment may be reduced to $500,000, but the latter option has a restricted quota of 3,000 investor visas for what are termed "targeted investment areas."

Due to the limited number of people applying under this category, the INS has issued regulations allowing more subjective and less literal readings of the law in these cases. However, because of fraud issues, there is a two-year conditional status accorded to such investors, similar to the conditional status of spouses of U.S. citizens.

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31: How can I obtain permanent residence by marriage to a U.S. citizen?

If the U.S. citizen resides in the U.S., a petition and an application must be filed to the INS office having jurisdiction over the petitioner's (U.S. citizen's) residence is the first step. The papers filed can include applications for employment authorization and a travel permit. The INS issues the employment authorization and temporary travel permit within 90 days in the process. The couple will be scheduled for an interview, which may take place about a year after filing the application, depending on the INS office.

The INS will examine identification, wedding photographs, and documents (such as tax returns and insurance documents) and interview the couple to establish the legitimacy of the marriage. If unconvinced, they may conduct separate interviews and investigate at the couple's places of work and residence.

If the U.S. citizen resides abroad:
The immigration paperwork is generally processed at the appropriate U.S. consulate. At some locations, it is possible to file all the paperwork directly at the consulate. In other cases it is necessary to first submit a form to the INS. After that form is approved, the remaining processing, including the interview, takes place at the consulate. The procedure is similar but the waiting time may be less.

Conditional Green Card:
If the marriage is less than two years old when permanent residency is granted, the Green Card will expire in two years. The couple will be required to submit a joint petition to remove the two-year condition within the 90-day period immediately preceding the Green Card expiration. If the marriage has been terminated due to death or divorce, or if the immigrant spouse is a victim of spousal abuse, the immigrant spouse may apply to the INS for a waiver of the joint petition requirement.

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