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Carolyn Frazier Soloway

Carolyn Soloway’s Answers

4 total

  • I applied for renewal of my R1 and still it is pending due to back ground check and how long it will take?

    I'm in R1 visa as a Religious Minister (Christian) from 2005 to 2008 and applied for renewal for two more years from April 2008 to April 2010. I am checking with USCIS office regularly and they say my case is pending due to back ground check. The ...

    Carolyn’s Answer

    What you are waiting for is probably a site visit and not an FBI background check since you are apply for a two-year extension of a non-immigrant visa. This would be the case if your religious organization has not yet had the required site visit. We handle many religious worker visas, both temporary and permanent and we have found that the wait for a site visit is the usual cause for delay. You could make an INFOPASS appointment by going to the website www.uscis.gov and then asking the officer if it appears that a site visit is the hold up. If this is the issue, your attorney could write to the USCIS where your case is pending and ask specifically for the site visit to be arranged. You are legal to remain in the US while your extension application is pending, but not to work until you receive it. Working "without pay" with the expectation that you will be paid later or even in consideration of the employer holding the job open for you would most likely be construed as unauthorized employment so you want to avoid that. If you and your employer feel you cannot wait any longer, your employer could consider filing a Mandamus action in federal court. This is a legal procedure available when it becomes necessary to force a government agency to take action.

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  • After my I-130 approved if my spouse becomes US citizen, can I still upgrade my petition for Adjustment of Status?

    I filed I-485 adjustment of status based on I-130 approval (spouse of GC holder) and after one week, my spouse became US citizen. Do I have to bring this to USCIS's attention? Can I upgrade my I-485 and will it make my process any faster? What ...

    Carolyn’s Answer

    I think this question needs more facts. It sounds like you may have filed the I-485 prematurely because there is quite a waiting list in the Family-Based second preference. You are not entitled to file for Adjustment until the priority date is current. Without knowing your priority date, it is impossible to completely answer this. However, assuming you did file early, it is unlikely that USCIS will allow it to remain pending. Rather than have a denial with possibly being placed into Removal proceedings, if your spouse is now a US citizen, the safest thing to do would be to withdraw the prematurely filed 485 (if this is the case) and to refile it as an Immediate Relative. You can still utilize the already approved I-130 since it is entitled to be upgraded without re-filing. It is the I-485 which is a problem. It is always crucial to know what you are eligible for and to make sure all requirements are met prior to filing any case with USCIS.

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  • Aftering marrying a U.S. citizen I re-entered the U.S. under a student visa, will this negatively affect my adjustment of status

    I married a US citizen while on an F-1 visa in the US. A few months after marrying, we traveled to India for one month and I re-entered under my student visa. I have been in school for the past year but am now applying for an adjustment of statu...

    Carolyn’s Answer

    Yours is a situation requiring careful preparation for your Adjustment Interview so that you can present your intentions and facts appropriately. A student visa is a temporary visa and your use of it would only have been proper if you intended to go to school and then return abroad when you finished school. Having married a US citizen could, arguably, make the intention to return abroad questionable in the eyes of a USCIS examiner. However, if you and your spouse were unsure where you would live after graduation or if your plans changed at some point after entry, you should have no problem with your Adjustment of Status. It is always important to remember that USCIS has much discretion in the Adjustment process so it is important to carefully prepare, especially when you have a potentially complicated issue such as this. If you had filed within 30 days of entry, there would have been a presumption that you intended to remain permanently when you used the student visa and that would have been evidence of visa fraud so at least you are beyond that hurdle. On the other hand, if you knew, when you entered as a student, that you were going to file for Permanent Residency, you may wish to consider filing the I-130 with a request for Consular Processing to avoid any allegation that your entry as a student was fraudulent. If you do not apply for Adjustment, you will have established that your intention was to go to school (which you did) and then to depart the US.

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  • My US citizen spouse is unemployed, will that affect my petiton for adjustment of status?

    My husband is a US citizen, but has been unemployed for that past three years. He wants to petition for my adjustment of status. Will he being unemployed be a set back?

    Carolyn’s Answer

    As the petitioner, you must fill out an Affidavit of Support as part of your application on behalf of your husband. However, for petitioners with low, or even no, income, you can accompany your own affidavit of support with one from a co-sponsor. There are also certain provisions which allow you to use your assets instead of income and, in some circumstances, the beneficiary's own assets and income. Many people feel that they cannot file on behalf of a spouse or other relative because they are unemployed, but this is not the case. You can file. A competent immigration attorney can assess your specific situation and assist you in preparing the proper documents to fit your circumstances.

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