Q The last time I entered the United States, I entered illegally. I have been here for three years. I am planning on marrying a U.S. citizen. Is there anything special I need to do?

A Anyone who entered the United States without first being inspected by an officer of the U.S. border patrol is considered to have entered the U.S. illegally. Technically, it is called “Entry Without Inspection” or “EWI.”

If you have come to the U.S. illegally on more than one occasion, spent a total of one year or more during your previous visits, and/or were deported at the end of a visit, you may be permanently barred from immigrating to the United States. Aliens who entered the U.S. illegally are usually not eligible to file for Adjustment of Status. However, you may be eligible to adjust the status in the U.S. if an employer or a family member filed an immigrant petition on your behalf either:

1)  before January 14, 1998, or

2) between January 14, 1998 and April 21, 2001, if you can also prove that you were physically present in the United States on December 21, 2000.

If your visa petition was approved, or was denied only because of a mistake by USCIS, you may be allowed to adjust status. If you believe that you fall into either of the two categories above, you should seek assistance from an experienced immigration attorney.

Q I am currently working on an H-1B visa and fear that I may be laid off. I have my Employment Authorization Document (EAD), and it has been more than 180 days since my I-485 was filed. Can I work for a new employer by filing an H-1B transfer petition if I don’t want to use my EAD? What would be my status if I can’t find a job for a month or two after being laid off? Is it possible for me to file for an H-1B transfer once I get a job after a month or two?

A It would be best for you to use your EAD to secure alternate employment as you do not have to wait for your new employer to file an H-1B petition to start work. You will remain in legal status if you use your EAD and are unable to find new employment quickly. However, if you remain in valid H-1B status, your new employer can file an H-1B transfer petition on your behalf. Once the H-1B petition has been filed by your new employer, you can begin working for them.

Q I entered the United States in H-1B status and am planning on getting married to a U.S. citizen. Once I am married, what will be my immigration status? What do I need to do to become a permanent resident?

A Once you are married to a U.S. citizen, you immediately become eligible to apply for a Green Card and are not subject to visa quotas. The first step to applying for your Green Card is to have your U.S. citizen spouse file an I-130 petition for you. You can submit your I-485 application to adjust status, I-765 application for work authorization, and I-131 application for travel document at the same time that you submit your I-130. It takes four-12 months for USCIS to process the application once it has been submitted.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

 

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