Legal Options

Q: My student visa expired in December 2000 and later I was married to a U.S. citizen in October 2002. Unfortunately, the marriage will end a divorce next month. My next removal hearing is in December 2003. Will I be able to stay if a company sponsors me for an H-1B visa?

A: It sounds as though you have already been placed in removal proceedings. Therefore, it does not appear as though you will be able to stay, even if a company applies for your H-1B. Depending on your circumstances, you may be able to re-enter on the H-1B visa, but it is important that you have competent legal representation at your hearing in December 2003 so that you can discuss these options with your lawyer.

Q: I filed my application for permanent residence status (I-485), and it was received by INS on Jan 7, 2002. I gave my fingerprints in May 2002. Till now I haven’t received my final green card approval. I have had my Employment Authorization Document (EAD) and parole visa extended twice already. How long do I go on extending my status? Please advise me about what to expect.

A: I-485s (applications for adjustment of status) are low-priority with the service centers. U.S. Citizenship and Immigration Services (USCIS) has advised that starting January 2004, they will start making progress in processing I-485 applications. Until your application is approved, you will have to continue to renew your EAD and advance parole annually.

Q: My husband, a permanent resident of the U.S. since August 1999, filed for my immigration in June 2001. Is there any way the visa processing can be expedited?

A: I suggest that your husband apply for his naturalization in May or June 2004. Once he becomes a U.S. citizen, he can upgrade your petition since you will then be classified as an immediate relative. I suggest this since you do not qualify for the V visa; as this visa is available only for petitions received by the INS on or before Dec. 21, 2000.

Q: I am on a B-1/B-2 visa and overstayed in the U.S. for two weeks. I have a multiple 10-year B-1/B-2 visa. Can I continue to use this visa to come back to the U.S. in the future?

A: Starting Oct. 1, 1996, any person who has “overstayed” (remained in the U.S. beyond the expiration date on their I-94 arrival/departure document) will not be able to use the same non-immigrant visa. Therefore the law automatically voids the visa stamp in the passport as soon as one continues to remain illegally in the U.S. or falls out of status.

Q: I work for a very small company that has five employees. Out of these, four are on H-1B visas. I have been with the company for about one year. Can the company file for my green card?

A: Assuming that your employer can estab-lish non-availability of U.S. workers, you should consider the issue relating to the company’s ability to pay. After you obtain the labor certification, an application (I-140 Petition) has to be filed with the USCIS. At that point, your employer must be able to establish that it had the ability to pay at the time your application for labor certification was filed and this obligation remains until your application is adjudicated.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 294-7999.

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