Month: January 2012

Dear Atty. Lou,
 
We need your help.  I am currently in the United States on an H1-B visa, with my husband on H-4.  We have been approved for an extension for another 3 years, after the initial 3 years passed.
 
We would like to know if there are any other options for our case after the current 3 years expires or even within the 3-year period, aside from going back to the Philippines or extending for another year. Thank you.
 
Joy

Dear Joy,

Generally, the professional working visa known as the “H1B” may be held only for a maximum of six years. In certain cases after your sixth year, there may be limited options, which you may avail of aside from going back to the Philippines.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) permits an H1B visa holder to extend the status beyond the sixth year if certain conditions are met. An H1B worker may be eligible for extension if a qualifying labor certification application or an I-140 petition has been pending for at least 365 days prior to the H1Bs requested start date on the petition seeking the extension.

You may want to request your current employer to start processing your petition for immigrant visa. Before your sixth year expires, you may only extend in increments of one year if the above conditions are met. You did not mention what type of occupation your employer petitioned you for. There are certain positions that do not need labor certifications and are pre-certified by the Department of Labor as shortage occupations. These pre-certified occupations do not have to go through a labor certification process. If your case is pre-certified, you may want your employer to directly file for the petition for immigrant worker. Otherwise, you may want to start with an application for labor certification.

The other option you may wish to consider is filing for a change of status. There are different types of nonimmigrant visas you may apply for depending on whether you fulfill the eligibility requirements and the circumstances of your case.

The purpose of a change of status is to allow non-immigrants in meritorious situations to avoid the delay and expense of departing from the United States and returning, in order to engage in activities other than those permitted in his or her original or current nonimmigrant visa category.

The United States Citizenship and Immigration Services or the U.S.C.I.S allows changing nonimmigrant status to new classification only upon approval of a petition. One of the major requirement is effecting a change of status is that the foreign national must have maintained lawful nonimmigrant status. Timing is critical in changing status from H1B to another nonimmigrant visa. It must be filed during the time that your H1B is still valid.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or 1-888-930-0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com

Dear Atty. Lou,

I heard about a proposed provisional waiver and would like to know if this will apply to my husband. He came here in the United States without inspection (jumped ship) in 2001. We got married here. We were never married in the Philippines because I was petitioned single but we were gifted with 3 kids all born in the Philippines. They all came with me as an immigrant.

I filed a petition for my husband (I-130) and this petition was approved in 2006. During that time I was still a permanent resident. I just got my citizenship last 2008. My question is this- if the proposed provisional waiver will approved, will my husband be qualified to apply even if I was not a citizen yet when his petition got approved? If so, are there any things to be considered or to be done while waiting for this waiver to get publish and approved?

Thank you very much Atty. Lou. Any answer given is highly appreciated.

Sandra

Dear Sandra,

The January 6, 2012 announcement of the Department of Homeland Security is a Notice of Intent to accept and adjudicate “waiver” applications within the United States for those who have incurred unlawful presence. It applies to immediate relatives of U.S. citizens with approved petitions.

Generally, immediate relatives, referring to spouses, minor children and parents of U.S. citizens, may file for adjustment of status based on an approved petition. Unfortunately, there are certain immediate relatives who cannot adjust and these individuals include those who entered without inspection at the time of their last entry and had incurred unlawful presence. Those who are not allowed to adjust the status in the United States are asked to leave the country to get their visa at the U.S. consular post abroad.  If they have been out of status for more than 6 months or 1 year, they will be subjected to the 3-10 year bars. This means that they will not be able to return to the country for 3-10 years depending on the number of months they spent in unlawful status.

Recognizing the problem, the Department of Homeland Security announced its proposal for individuals who may be barred from re-entering. The new proposal will allow those subject to the bars to file their waiver of unlawful presence within the United States. The waiver must be accompanied by proof indicating extreme hardship to U.S. citizen spouse or parent. Only after getting a favorable decision on the waiver will the individual need to depart to get their visa at the U.S. Embassy in Manila.

Applications filed at the consular offices of the United States embassy is usually protracted especially for those that do not have U.S.C.I.S offices in their post. In some embassies where they already have U.S.C.I.S officers adjudicating, some jurisdictions will still take several months, or even years, to decide on these waiver cases. The length of time it takes for the waiver to be processed is the same length of time the individual applicant is separated from his family waiting anxiously for the decision. To address the problem, the proposed policy now allows filing of the waiver first within the United before departing to get the visa abroad. This is now referred to as the “stateside waiver.”

In your case husband’s case Sandra, since he is already in possession of an approved petition, he may avail of the benefits of this new regulation. It will not matter whether you were a green card holder at the time you initially filed the petition. Filing the waiver within the United States is just the first step. To include in this waiver are substantial supporting documents to show extreme hardship to you as the U.S. citizen spouse. If the waiver of unlawful presence is approved, your husband can depart to obtain the visa at the U.S. embassy in Manila.

It is important to note the U.S. consular officer is not prevented from denying the visa based on other grounds of visa refusal such as criminal convictions and prior deportations. The reason is that the policy will only waive one of the many grounds of denial for issuance of visa. It only waives “unlawful presence”. A careful assessment of your husband’s case by a legal professional must be made before his departure for purposes of obtaining his visa abroad to avoid complications and unexpected consequence.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)