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Q I am a U.S. citizen married to an Indian national in India. What is the fastest way to get my husband here: visitor’s visa, fiancé visa, or visa petition filing? I want to bring my spouse here as soon as possible.
A Your anxiety is totally appreciated. However, all of the options might not be available. A visitor’s visa is for someone to come to the United States for a short stay and then return. An intention to return and ties to the home country are most important. Marriage to a U.S. citizen would obviously refute the intent to return. Under limited circumstances, upon discretion of the Consular Officer, a visitor visa might be issued to your husband if he is able to prove the reason for a visit to the United States and proof of ability and intention to return. However, I do not suggest you depend on this method and waste precious time.
Fiancé visas are also available to spouses of U.S. citizens. However the current processing times, at least in California, are the same for fiancé visas and relative visa petitions (for a parent, spouse, or child). A little time is saved in the post-petition approval process since fiancé visas are non-immigrant visas and the relative visa petitions require immigrant visa processing.
I recommend filing a visa petition for spouse as soon as possible. Your spouse might be able to come to the U.S. a little sooner (may be a month or two sooner) with a fiancé visa, but upon arrival in the United States will have to file for adjustment of status, spend fees on an attorney and filing fees, or filing fees alone, wait for three months or more to obtain employment authorization, appear at the visa interview at a local immigration office, and then sometimes face delays caused by local immigration office. It makes sense to wait in India for the extra time and have your spouse arrive on permanent resident status with the ability to work right away and no other immigration issues to deal with.
Q I have filed a Labor Certification with my employer. We received an audit letter from the Department of Labor. What can I do?
A Certification by the Department of Labor (DOL) is essential to proceed with the process. Typically, if the recruitment campaign is well run, obtaining certification from DOL is very easy. However, in certain cases, if there is a mismatch between the job offered and the employee’s qualification, or if the recruitment campaign is not run correctly, an audit will be conducted by the DOL. The best possible way to handle this situation is to assess the merits of the audit letter. An employer or employee should only continue with the process if the facts of the case are honest and clear.
The alternate option and practical way is to withdraw the labor certification and re-file after ensuring that the questions raised in the audit letter are satisfied. For example, if the audit letter challenges employer and employee’s qualifications, then the recruitment campaign should be run with lower or different qualifications for the same job and the response should be well documented.
The process might be time-consuming and costly, but it is better than the alternative of wasting additional time during the audit and having the application for labor certification be completely rejected.
Madan Ahluwalia has been practicing law since 1995. He can be reached at madan.ahluwalia@ahluwalia-law.com. You can also visit his website atwww.ahluwlia-law.com