Q: My husband is from India, and I am a U.S. citizen by birth. My husband came to the United States illegally. We got married Nov. 8, 2003, and went through what we thought were the right steps to get him legalized. My husband was deported. Now I have to go to India and bring him back. I have heard of a new law that was passed that I would have to remarry my husband in India and live there for 60 days before we can even start a visa process for his return to the United States. Is this true?
A: Based on your circumstances, I recommend that you seek expert immigration advice. Without knowing the full circumstances and the reasons for your husband’s deportation, it is difficult to provide any advice.
It is true that U.S. consulates in India now require 60 days of residence before they will accept your petition. However, I do not know of any law that will require you to remarry. I strongly suggest that you seek expert advice.
Q: I filed a petition for my family in India under the F2A category for their immigrant visa in October 2002. Now if my daughter gets over the age of 21, will the Child Status Protection Act protect her?
A: The Child Status Protection Act became effective on Aug. 6, 2002. This is a complicated statute and essentially, it provides that any immigrant petition that is pending as of Aug. 6, 2002 (or where there is no final action on the beneficiary’s adjustment application or immigrant visa application) is subject to the provisions of this act.
This law addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays. The age-out protection for the children of permanent residents works in this way. Essentially, you take the age of the child on the date when an immigrant visa becomes available and reduce it by the number of days the immigrant petition was pending. In addition, the beneficiary must seek to acquire the permanent-residence status within one year of such availability. For example, an individual child who is 21 years and six months old on the date the visa numbers become available, but whose immigrant-visa petition was pending for eight months, would have his or her age reduced by eight months and would continue to be considered a child.
When you later become a naturalized citizen and your child is still under 21, then your child becomes an immediate relative and will be deemed to be a child for the purpose of visa issuance, regardless of his or her age at that time.
Q: I am on H-1B visa and my green card application in EB-3 category is in process. The labor certification is done. My employer in Santa Clara, Calif., is offering me a promotion from software developer to project lead. If I accept the promotion, will it effect my green-card application?
A: Applications for labor certification take a long time and it is unrealistic to expect that an employee will remain in the same position for 3-5 years. Therefore, as long as you are in the same occupation, your green-card application should not be impacted. For the purpose of your I-140 petition, I recommend that your employer indicate that it is filing your petition in the same position as the one indicated on your labor-certification application.
Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 294-7999.