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Michele Janine Da Silva

Michele Da Silva’s Answers

6 total

  • Can we renew EAD(issued based on spouse's H1 and apporved I-140) while spouse's H1 extension is underway? We got I-797c receipt.

    I have H1 valid until 9/13/15 so when we applied for EAD for spouse who is on H4 on basis of my approved I-140 she was given EAD until 9/13/15. Now we applied for H1 extension for myself and for my spouse and it might take a month for approval. Ca...

    Michele’s Answer

    You ca file Form I-765 along with documentation of your current H-4 admission or extension of stay. You
    must also submit documentation establishing either that the H-1B principal has an approved Immigrant
    Petition for Alien Worker (Form I-140), or that your current H-4 admission or extension of stay was
    approved pursuant to the principal H-1B nonimmigrant's admission or extension of stay based on sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21). For your convenience, you may file Form I-765 with Form I-539, Application to Extend/Change Nonimmigrant Status. However, USCIS will not process Form I-765 (except filing fees), until after USCIS has adjudicated Form I-539. You may also file Form I-765 at the same time as Form I-539 and Form I-129, Petition for a nonimmigrant Worker. The 90-day period for adjudicating Applications for Employment Authorization (Form I-765) filed together with Form I-539 does not begin until USCIS has determined whether you are eligible for the underlying H-4 nonimmigrant status, and that the principal is eligible for H-1B status.

    A person can only work during the validity period of her EAD card. If you were working with an immigration attorney, he/she should have advised you to renew your EAD at least 90 days prior to the expiration date in order to avoid gaps in the employment period. If you are not working with an attorney, I suggest that you contact an experienced immigration attorney to assist you with your case.

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  • Can I leave the country after 751-i was submitted but before I received the receipt?

    The conditional GC will expire before I leave. I can have someone check my mail box and overnight it to me when it comes (and before I return to the US).

    Michele’s Answer

    You should wait until you get the receipt for the I-751 and the letter stating that your card has been extended. You will need evidence of extension prior to leaving the country. You should contact an immigration attorney prior to leaving.

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  • How long do you have to live in the us to apply for citizenship and how do you go about it, and what is it all about?

    I want to apply but I don't kno what I have to do

    Michele’s Answer

    You can apply for US citizenship after 5 years of being a green card holder. If you received your green card based on marriage to a US citizen and are still married to that US citizen, you can file for US citizenship after 3 years.

    To apply you will need to file form N-400 along with the necessary supporting documents listed under the form's instructions. You will also have to take a test demonstrating your ability to speak, read and write English as well as pass the civic portion of the exam.

    If you have a criminal record, it is highly advisable that you consult an experience immigration attorney before filing for US citizenship.

    Michele Da Silva, Esq.
    www.LawDaSilva.com

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  • I married in December 2013 and wanted to go back to Europe, now I am overstaying because my wife is pregnant!

    We have married in December and we actually planned to move to Europe. A couple of weeks later we have learned that my wife is pregnant. Due to the fact that her pregnancy is a high risk pregnancy (she has sickle cell), we have decided to stay in ...

    Michele’s Answer

    Before I can render an opinion I need additional information. Is your wife a US citizen? What type of visa did you use to enter the US? When did it actually expire? Do you and your wife still intend to return to Europe?

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  • Married Filing Jointly or Married filing Separately ?

    I am a student here in F1 visa status , I got married with my G . F . who is a U . S . citizen on October 2012 . We already filed all the paperwork , so far its being reviewed by USCIS . We are about to file our Tax Returns for 2012 now . ...

    Michele’s Answer

    Immigration wants proof of financial ties to establish a bona fide marriage. Jointly filed tax returns is one way of demonstrating financial tie, but it is not the sole way. In my experience, immigration officers look to jointly filed return because the deduction for married couple who file jointly is greater than the deduction for married couple who file separately. Immigration officers also know that most married couple would file their return jointly to benefit from the greater deduction. I would file the turn jointly unless advised to the contrary by a certified public accountant.

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  • Married Filing Jointly or Married filing Separately ?

    I am a student here in F1 visa status , I got married with my G . F . who is a U . S . citizen on October 2012 . We already filed all the paperwork , so far its being reviewed by USCIS . We are about to file our Tax Returns for 2012 now . ...

    Michele’s Answer

    Immigration wants proof of financial ties to establish a bona fide marriage. Jointly filed tax returns is one way of demonstrating financial tie, but it is not the sole way. In my experience, immigration officers look to jointly filed return because the deduction for married couple who file jointly is greater than the deduction for married couple who file separately. Immigration officers also know that most married couple would file their return jointly to benefit from the greater deduction. I would file the turn jointly unless advised to the contrary by a certified public accountant.

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