Frequently Asked Questions (FAQs)

The following provides information to some of the FAQs we have received over time.  If reading this information your question remains un-answered, please contact our office.  In an effort to help others, we often add to the FAQs questions we receive via e-mail.

Question Index:

grey_bullet_big If my husband is married to a U.S. citizen, why can’t he apply for legal permanent resident status inside the United States?
grey_bullet_big How is the B-1 (Business Visitor Visa) useful?
grey_bullet_big What activity is permissible while for B-1 status holders?
grey_bullet_big Is it necessary to use an attorney or consultant?
grey_bullet_big When should my H-1B petition be filed?
grey_bullet_big Do I have to leave the country to obtain legal permanent resident status if I am married to a U.S. citizen?
grey_bullet_big Am i eligible to apply for political asylum if I am currently a student in the United States?
grey_bullet_big What is an “E” visa?
grey_bullet_big My friend was convicted of a drug offense, will he be removed?
grey_bullet_big My friend’s drug conviction was expunged, is he now eligible to apply for citizenship?
grey_bullet_big How difficult is it to obtain a National Interest Waiver?
grey_bullet_big What is a non-immigrant visa?
grey_bullet_big What is an immigrant visa?
grey_bullet_big Does my status as a legal permanent resident automatically expire upon the expiration of my green card?
grey_bullet_big How can i request a copy of my file from the Immigration Service?

 

Q. If my husband is married to a U.S. citizen, why can’t he apply for legal permanent resident status in the United States?
A. If your husband entered the United States without being inspected and admitted by a U.S. border officer, and he was never the direct or derivative beneficiary of a qualifying petition filed on or before April 30, 2001, he is not eligible to apply for permanent residence in the United States at this time. He may however be eligible to apply for an immigrant visa at a United States consulate in his home country, (consular processing) and upon the approval of his immigrant visa application return to the United States as a legal permanent resident.  In some cases, applying for a waiver of one or more inadmissibility grounds is necessary.  Though the waiver application process has become noticeably more complex and difficult, we continue to successfully navigate our clients through waiver and visa application processes at consulates abroad.
Q. How is the B-1 Business Visitor Visa Useful?
A. The B-1 business visitor visa can be very useful for a businessperson who needs to travel to the U.S. on short notice to attend meetings, trainings, presentations, exhibitions, and other similar activities.
Q. Is work permissible for someone in B-1 status? 
A. B-1 visa holders cannot work in the United States. Generally, activities of the B-1 status holder in the U.S. must be for the benefit of the foreign employer.  As the State Department’s Foreign Affairs Manual (FAM) puts it, “[e]ngaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor.”
Q. Is it necessary to use the services of an attorney to help me?
A. Just as in any area of law, you are not obligated to hire an attorney to assist you with your immigration matter.  However, immigration law is very complex and each case is unique in its facts and legal issues involved.  Therefore, to be successful more than just basic knowledge of immigration laws is required; you need expertise.  Many individuals prefer to hire an attorney to help them even with relatively easy matters to save time and have peace of mind that case is handled properly and professionally.  Additionally, it can be difficult to get correct information from the Citizenship and Immigration Service (CIS) because they have limited resources dedicated to understanding your issues and answering your questions accordingly.  For these reasons, we urge you to engage services of a competent immigration attorney to assist you with your immigration matter.  Please note that notarios are not licensed to practice law in the United States, their mishandling of your matter could cause you and your family irreparable harm.
Q. Do I have to leave the the United States to obtain legal permanent resident status if I am married to a U.S. citizen?
A. If you entered the U.S. without being inspected and admitted in any status, you probably are not eligible to apply for legal permanent resident status in the U.S. even if you are married to a U.S. citizen.  The exception to this rule is for individuals who have an immigrant petition filed on their behalf on or before April 30, 2001, and were present in the U.S. on December 20, 2000. Individuals who are beneficiaries of a petition filed before January 14, 1998 do not have to show that they were present in the U.S. in December 2000.  A person can be the beneficiary of an immigrant petition (for example the son or daughter of a legal resident) and still use the petition as the basis for filing a totally different petition based on their current marriage.
Q. Am I eligible to apply for political asylum if I am currently in the United States in student status?
A. Yes, if you fear returning to your home country because you believe you will be persecuted on account of your race, ethnicity, religion, political opinion or membership in a specific social group, you may be eligible to apply for political asylum. You must apply within one year of your last entry into the U.S. or show that there are changed circumstances if you are outside of the one year deadline.
Q. When can I apply for H-1b status?
A.  A petition for H-1b classification and/or status can be filed no more than six months in advance of the employment start date requested for the foreign worker. There is a congressionally mandated cap for H-1b petitions, currently set at 65,000 per fiscal year.  The first 20,000 petitions filed by U.S. employers on behalf of beneficiaries who hold a Master’s Degree from a U.S. university, are exempt from the cap.  Also, exempt from the cap are petitions filed on behalf of beneficiaries who work for, or are employed at an institution of higher education, or a non-profit organization affiliated with an institution of higher education.  Lastly, exempt from the cap are physicians who have obtained a J-1 waiver.  If you work for a university or some other non-profit institution, you may be exempt from the requirement.  However, due to the complexity of the regulations and CIS’s practice with cap exempt petitions, it is important you consult with a qualified and experienced attorney to determine if you are eligible H-1b classification and cap exemption.
Q. What is an “E” visa?
A. There are two types of E visas, both require the existence of a treaty between the U.S. and the country of nationality of the applicant. The E-1 is a treaty trader visa.  An individual may obtain this visa if he/she works for a company that is owned by a person who is in E status or would be in E status if he/she lived in the U.S. and the company does “substantial trade” with the U.S. There are additional requirements to be considered. The E-2 visa requires the applicant to make a “substantial investment” in a company in the U.S. and to be coming to the U.S. to use his/her expertise in running the company.  This visa also has additional requirements that need to be carefully analyzed before making an application. Both E visas have the advantage that they can be granted for up to five years and renewed indefinitely.
Q. My friend was convicted of a drug offense, will he be removed from the United States?
A. Very likely. If the offense is anything other than simple possession, your friend will be automatically removed from the country without any possibility of applying for relief. The only exception to that rule is if the conviction occurred before September 30, 1996 in which case the person could possibly apply for a waiver in removal proceedings. If the friend was convicted of a simple possession offense, he needs to consult an attorney to determine what his options.
Q. My friend’s drug conviction was expunged, is he now eligible to apply for citizenship?
A. If the expungement was for simple possession of a controlled substance and would fall within the Federal First Offender’s Act (FFOA), he may be eligible to apply for citizenship or other immigration benefits. If the friend had a conviction expunged that was for anything other than simple possession or the expungement is not equal to the FFOA, he is not likely to be eligible for any benefit and is likely to be orederd removed automatically without the possibility of being able to seek relief from removal.
Q. How difficult is it to obtain a National Interest Waiver?
A. Employment based petitions generally require a labor certification process. To bypass this process by showing that your work is in the “national interest” is not easy. You need to show that your work is national in scope, that it is important to our national interest, and that it would not adversely affect U.S. citizens to bypass the normal labor certification process. We have sucessfully obtained national interest waivers in cases such as for highly skilled artists, ballet dancers, musicians and researchers. The national interest waiver petition requires that a person have at least a masters degree.
Q. What is a non-immigrant visa?
A. A non-immigrant visa is one that is temporary in nature. All non-immigrant visas are limited in the length of time they can be issued, except for the E visa which can be renewed indefinitely for the length of time that the underlying business upon which the visa is issued is operational. Most non-immigrant visas are issued for a certain length of time and can be renewed, such as the H-1B visa which can be issued for up to three years and renewed for another three years.
Q. What is an immigrant visa?
A. An immigrant visa is one that confers legal permanent residence status. A person who obtains an immigrant visa is entitled to remain in the U.S. indefinitely after entry into the U.S. Legal permanent residence status is generally not revocable unless the person holding that status is convicted of certain crimes (making him/her removable) or he/she causes the visa to become invalid by committing certain acts, such as remaining outside of the country for a lengthy period of time. There is also a “conditional permanent residence” status that is conferred on persons granted permanent residence status through their U.S. citizen spouses who have been married less than two years at the date of obtaining legal residence. Those who have conditional residence must apply to remove the conditions on the residence before the expiration of the conditional period (two years).
Q. Does my legal permanent resident status automatically expire upon the expiration of my green card?
A. No. If you are granted legal permanent residence status, even if your card expires you are entitled to renew the card at any time. You must complete form I-90 and submit the proper fees and information.
Q. How can i request a copy of my file from the Citizenship and Immigration Service?
A. If you have a file at the National Records Center, you can submit a written request to: P.O. Box 648010, Lee’s Summit, MO 64064-8010, Attn: FOIA Officer. Be sure to include your full name, date of birth, and any information that will help them to locate your file, such as your A number or any other identifying information.