THE RUSSELL LAW FIRM, P.L.

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. The quick answer is usually no. It usually take about 4 to 5 years, for the priority date to become current, assuming you entered legally and unless you can remain in the US in a valid legal non-immigrant status while the application is pending, you cannot remain. However, if you are in the US illegally there are other complex issues such as the 3 year or 10 year bar that could apply in your case if you do.

Q. If I marry a US citizen, can I stay in the United States while my husband/wife petitions on my behalf?

A. Typically yes, if you originally entered the US legally, even if you are now out of status. However, people who legally entered as a crewman or people who entered illegally cannot adjustment their status unless they fall under the sunset provision of INA Section 245i.

Q. Can my attorney’s office call the USCIS Services Center regarding my case? Can my attorney get the USCIS to expedite my case?

A. It is very difficult to speak with an immigration officer directly at USCIS. We can only speak to an information officer by calling the customer service number 1800 375-5283, regarding your case after the processing time indicated on your receipt notice has passed can sometimes get your call transferred directly to the Service Center. Some Service Center has a hotline but only for a limited type of cases. There are limited circumstance where an attorney can get your case expedited such as a humanitarian consideration.

Q. I heard that if I contact my Senator/Representative, they can get the USCIS to expedite my case; is this true?

A. Your Senator or Representative cannot usually intervene to expedite your case. If significantly more time than estimated processing time listed on your notice of receipt has lapsed, they 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 influence the outcome of you case.

Q. Why is it taking longer than the processing time listed on my notice of receipt to process my case?

A. The processing times indicated by the USCIS on your notice of receipt are estimated processing times only. They do not guarantee that your case will be adjudicated by that date.

Q. If I have my residency application pending, can I travel on my current nonimmigrant visa or do I need to get advanced 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 vis and the original I 7-97 receipt notice for the adjustment of status application. All other nonimmigrant with pending adjustment applications must obtain advance parole before traveling outside the U.S.

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 permit an alien to spend a maximum of six years in the US in H status, without differentiating between H-1B and H-4 classifications. The law does not therefore seem to allow a change of status from H-1b to H-4 after the six years have been expended.

Q. Why did I get a Request for Evidence on my case?

A. Requests for Evidence are becoming more and more common in all types of cases with the current atmosphere at the USCIS. Many times they may ask for items which you have already submitted or which may not be legally required for your case. Your attorney can help you deal with these requests effectively. They are not an indication that your case will be rejected; they are merely a request for further documentation.

Q. I am a Canadian "Landed Immigrant" )a permanent resident of Canada). Can I apply for consular processing of U.S. permanent residency at a U.S. consul in Canada?

A. Generally Canadian consuls will allow landed Immigrants to process for permanent residency. It is always a good idea to contact the consulate in question to determine their specific procedures.

Q. My Work Permit Card(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 different Service Centers depending on the basis for your work permit.

Q. If my H-1B status is due to expire before my I-140 is approved, what options do I have? Can I change to F-1 )Student) status in order to remain lawfully present until I am able to file my I-485 to adjust my status to that of a permanent resident?

A. You may change status to F-1 or any other non-immigrant classification for which you are qualified. You may also leave the country and pursue consular processing rather than adjusting your status within the US.

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 currents status. Working on an employment-prohibited visa can permanently bar an alien from adjustment of status in the future.

Q. Can I "recapture" time I spent outside of the US during my H-1B eligibility to buy more time in that status after the end of my six years.

A. In some circumstances, aliens who have reached the end of their six years H-1B, eligibility, but who have spent significant periods of time outside of the U.S. during that time, may be able recapture time spent outside the U.S. The INS requires that the time spent outside the U.S. be "meaningfully interruptive" of the alien’s H-1B employment (e.g., sick leave but not vacations). The burden of proof lies with the petitioning employer and the INS is granted wide discretion in determining whether there was meaningful interruption of employment.

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 "civil surgeon"? How long do the medical exam results remain valid?

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 INS. Medical exam results are valid for one year.

Q. What will happen to my status and employment authorization if my F-1 Practical Training expires before I have an H-1B approval?

A. You must retain valid employment authorization at all time in order to work in the US. If your F-1 practical training expires before you have H-1B approval, you must be removed from your company’s payroll and cease working; however, if you maintained valid non-immigrant status through the filing of your H-1B petition, you may remain physically in the US while that petition is pending, even if your time in F-1 status expires before you receive a decision from the INS.