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David H. Stoller
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David Stoller’s Answers

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  • Just got a notice of intent to deny on my asylum application, what are the chances still getting an approval?

    I am from Belarus. Had been detained three time for just out speaking my political opinion. Been to a hospital once for four days with a mild concussion. Applied for asylum 2 months ago, had an interview 3 weeks ago, but today got a notice of int...

    David’s Answer

    Thanks for your inquiry. This is one of those questions that we get all of the time and the answer is, no attorney who is half way competent will guarantee anything to you other than the attorney will do his/her best to handle the work that the attorney is hired to do.

    We do not make decisions in cases and we do not have the authority to tell an officer, an Immigration Judge or anyone with the authority to make a decision to make the decision that you would like to have entered in your case. Rather, our job as your advocate is to assist the decision maker to get to the response that we would like them to have. Attorneys do not make the decisions, they work to persuade the decision maker that the decision which a client would like is the correct decision to be made through the application of applicable guidance.

    Having listened to many clients tell me many stories about many attorneys, I am always amazed at why clients believe that I am in a position to guarantee anything regarding the outcome in the case. I am hired to assist the decision maker to make what I believe is a decision which is in my client's best interest. But I am not hired to obtain a particular decision in a case such that I can tell a client with any sense of certainty exactly what the outcome is going to be in a case.

    Sounds like there are some issues in your case with regards to credibility. You indicate that your interview did not go all that well because you were nervous. Credibility is the most important part of any application for any immigration benefit. It does not matter how good your story is regarding why you believe that you would be harmed if you were to return to Belarus if the Asylum Officer does not believe that your story is the real thing.

    Belarus is one of those countries where the current country conditions are such that applications for asylum are someone easy to make out. In other words, there are severe limitations on the freedoms that we have here in the US and those that speak out against the Lukashenko government are very frequently punished in a way which is part and parcel of the protections which the US asylum laws are there to provide. And your story provides some of the basics which would suggest a decent application.

    But if you are not prepared to explain your case in a way which an Asylum Officer understands as being objectively reasonable in light of current country conditions, you will not find success with your case. And if you cannot provide an internally consistent recollection of the events which form the basis of your claim, the Asylum Officer will have an issue with believing that your story is believable.

    Asylum applications are won and lost on the ability of the applicant to recite his story and to inform the Asylum Officer why the applicant cannot return to his native country (or country of last habitual residence) on account of one of the five enumerated grounds. The conditions in the target country can be horrible, just like they are in Belarus, and if the applicant cannot tell his story in a way where the officer walks away believing the claim that application is doomed to fail.

    Rather than looking for someone who is going to promise you something that cannot be promised, find an attorney who will spend the time reviewing your application, reviewing the details of the notice of intent to deny (NOID) and who can provide a detailed response to the NOID. Truth is that if there are major credibility concerns with the application which have resulted in the NOID, it is going to take a whole heck of a lot to undo those credibility issues.

    Any potential applicant for asylum reading this response should seriously consider hiring an attorney BEFORE going to an interview and not being prepared to recount the asylum claim. Do it right from the beginning and consult with someone who can advise you correctly.

    Find the right attorney, draft a good response and hope for the best. Good luck.

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  • I applied for I140 & 485 on EB1C. EAD is received. Can I change my job now ? Can I reapply for 485 thru the new company ?

    Please advise

    David’s Answer

    Thanks for your inquiry. Unfortunately your inquiry does not provide sufficient information by which to make the determination as to whether you can undertake the course of action which you ask about. But let's discuss the legal standards.

    The idea that you are discussing is "porting" an approved I-140 from Company A to Company B. Some years ago, Congress passed legislation which would allow an employee to take an approved I-140 and move it to a new company who is willing to undertake the responsibilities and obligations associated with an offer of employment to a foreign national based on an approved I-140 filed by a different company. Let's call the company that initially filed the I-140 Company A and the new company Company B.

    Prior to this change in the law, the I-140 belonged to the employer and it was only the employer who held the cards when it came to the I-140. So the employee was stuck with Company A because it had filed the paperwork associated with the I-140 and this became quite onerous, especially as a result of long delays in the processing of employment based immigrants visas in the most commonly used categories.

    So when porting came along it was welcome relief. But the concept of porting has limitations. The most important is that porting can only be accomplished when the employee has filed a Form I-485 based upon the Form I-140 AND the Form I-485 has been pending in excess of 180 days. If those requirements are met, the employee can take the approved I-140 and move it from Company A to Company B. There are, however, some additional requirements beyond simply having the Form I-485 pending in excess of 180 days.

    The most important of these additional requirements is that Company B must offer employment which is the "same or substantially similar" to that which was offered in the I-140 filed by Company A. So porting is available after the Form I-485 has been pending the requisite period of time but at some point Company B must establish that the position which it offers is the same or substantially similar to that offered through Company A's Form I-140.

    Now there are some other nuances in these cases that deal with porting to self employment and porting to visa categories different from the one in which the I-140 was filed. With all of the complications which can occur when dealing with the possibility of porting the I-140, the best recommendation that anyone can provide to you is to speak to a qualified and knowledgeable immigration attorney BEFORE undertaking a course of action which you cannot take back.

    In some of these cases, you may be porting the I-140 to a new company in a situation where the company that filed the I-140 may no longer be interested in employing you. So if you decide that you are going to move to Company B and in so doing Company A is going to not take you back, you better make absolutely sure that the move from A to B is within the requirements set forth by the provisions permitting porting of I-140's. You do not want to be in a situation where you port to Company B only to have CIS question whether the porting that you have done is not consistent with the requirements of the Immigration and Nationality Act.

    Seems to me that you have just filed the I-485 and if you are already looking to port to a new company there is quite a bit that you should be discussing with both Company A and with Company B. This process is not one which started a few weeks ago, it is something that has been ongoing for an extended period of time. And I can imagine that Company A has spent resources on the application process. If there are no potential issues with Company A, make sure that Company B knows what it is walking in to and what it should expect in the process.

    A really good immigration attorney should be able to assist you and to provide the guidance that you will need in the processing of your applications. Good luck.

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  • Selling online for a F-1 VISA Holder

    Hi, I am on F-1 VISA status in US, so I have only work permit for on campus jobs. I would like to sell goods online (on ebay and amazon) as my hobby and some kind of income. Is there any violation if I only sell and ship to other countries for ex...

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. This is one of those inquiries where there is a "legal answer" and a "practical answer." The legal answer is that what you plan on doing may not technically fall within the scope of employment which would violate the terms of your F-1 status. But the practical answer is that you should steer far clear of any activity which may close to crossing a line that could lead to you losing your status here in the US.

    Whether a foreign national is engaged in unauthorized employment is sometimes a difficult question to answer. Rather than consider whether conduct would or would not cross the line into unauthorized, let's take a look at the intent of your visa. You are here to study and to do so on a full time basis. So anything that would take you away from conducting yourself consistent with the purpose of your visa is an activity that could be deemed to be violative of your status as a student.

    Now the likelihood of the Department of Homeland Security figuring any of this out is slim. Truth is that ICE agents are unlikely to be in a position to spend their time looking for folks who are blatantly violating the terms of their status by accepting unauthorized employment. So doing the work that you are discussing is something that is probably even more remote in regards to the possibility that someone from ICE would find out and then seek to do something about it.

    You never know what can go right and what could go wrong. And you would probably not like to be placed in a position where you are attempting to explain to ICE that your selling goods online is not "employment" within the meaning of the Immigration and Nationality Act. So the best advice that I could give is to just steer absolutely clear of anything that may cause an issue with your immigration status.

    If you do get unlucky and you do get caught you can essentially kiss your status in the US goodbye and that would likely be for a really long time. If you are lucky enough to be in a position to attend a school here and you can establish that the costs of attending can be covered without the need for you to accept unauthorized employment, I would just leave it there. It is just not worth the risk.

    If you still plan on going forward with this plan I would consult with someone or have someone on call, just in case. No one with any level of competence is going to advise you to engage in a course of conduct which could remotely be defined as violative of your status and if you are so advised, make sure you have that attorney on retainer so that if the worst happens, you are prepared. Good luck.

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  • Can working illegally get my asylum denied?

    I am an F1 student out of status for now a month. I have been in the US for now 8 months. I am currently employ on compus despite being out of status. I applied a week ago for Asylum. Is my current illegal work going to get my Asylum denied?

    David’s Answer

    Thanks for your inquiry. The answer to the question is that working in violation of your status is not going to render you ineligible for asylum. It could be a basis upon which an application for asylum is denied in the exercise of discretion, but the likelihood of that is relatively slim.

    I would be concerned that you are working on campus in violation of your status as that may create some issues for the employer and I would wonder why the university has not asked you for the proper paperwork to establish that you are indeed eligible to accept employment. With that said, unauthorized employment is not a grounds upon which your application can be denied.

    Sounds to me like you are not represented and I cannot tell you how important it is that you discuss your case with an attorney prior to the scheduled interview. At some point in the immediate future you are going to be called for an interview at the Asylum Office (most probably in Miami) and you will generally have but one opportunity to present your case before the Asylum Office and you need to make the best of that opportunity.

    Having handled many cases which are referred to the Immigration Court because the presentation of the case before the Asylum Officer was not handled properly, you should be advised that consulting with an attorney is very much in your best interests. Going to an interview without preparation and without an idea of what will be asked, how it will be asked and what is expected is much more likely to create ongoing problems with your case rather than a quick approval to the application.

    Asylum interviews are there to make sure that you have an opportunity to present your case and to present evidence as to why you cannot return to your home country. But if an asylum interview does not go well, this can lead to a determination that your story was not "credible" and if this determination is made, you may have an every increasing uphill battle to win your asylum case. I do not say this to scare you into hiring an attorney, I say this because I believe that a well represented asylum applicant is much more likely to win a case than someone who has never handled a case handling it on their own.

    Attorneys cost money and I can understand that resources are often times limited. Nonetheless, a consultation is not all that expensive (I charge $100) and it may provide you some insight about what to expect. I would urge you to find someone who can speak with you about the asylum process and to listen to what he/she has to say about what to expect.

    You are much better off understanding what to expect and to be prepared rather than going to an interview and being absolutely lost. Good cases can be turned upside down when foreign nationals are nervous and when they do not understand the proper limits of an asylum interview. I have in my experience with the INS and in private practice seen many good case get turned absolutely upside down by an asylum interview that goes much differently that was expected.

    There are a number of attorneys who can help you and who can assist in moving your case from where it is at to an approval. You need to have proper background evidence to establish what the current situation is in your country. And if you need someone to interpret for you a well versed interpreter can make a tremendous difference in the outcome of your case. The application for asylum is not all that difficult to complete, but completing it correctly and with an eye toward obtaining an approval is a difficult task that a well versed attorney can help you to attain.

    Good luck.

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  • Looking professional Immigration Attorney

    Looking for experienced Immigration attorney who understands crime and immigration consequences? Whom Do You recommend ?

    David’s Answer

    Thanks for your inquiry. Here is what you should look to do, review Avvo, review written qualifications, look at the employment history of the attorney and get a good idea of the kind of work that they do. Like my colleague Mr. Devore says, we will all tell you that we are the one that is going to be able to help you the most. And one of us is probably right.

    There are a lot of immigration attorneys out there and we all have different areas in which we concentrate. Some of us handle only employment based immigration, some of us handle a lot of family immigration, some of us do not want to ever see the inside of a Courtroom and there are others that live to be in Court. Avvo and other websites are quite helpful in trying to work through who is who and what is what.

    Having been on both sides of this as a former INS attorney, I can tel you that there are few attorneys who really understand the complexities of the immigration consequences of criminal activity. Since this is my opportunity to tell you about why you should look at my qualifications let me tell you why I think that I am a good choice.

    I worked on the other side and in fact I spent a significant period of my tenure with the legacy INS working in what was called the District Criminal Alien Program. My responsibility in this regards was to represent the government in deportation, exclusion and removal proceedings before the Immigration Court and the Board of Immigration Appeals in cases where foreign nationals had been placed in proceedings seeking their deportation from the US as a consequence of their criminal history.

    So I have literally handled thousands of cases in my career, the vast majority of them as a prosecutor. I traveled from prison to prison and jail to jail throughout the State and handled only these type of cases. I worked in this area during the time when there was a major change in the law (Illegal Immigration Reform and Immigrant Responsibility Act of 1996) and so I learned both the old law and the new law. Depending on the age of the criminal conduct in question it may be important to deal with someone who knows the pre-IIRIRA law and its impact on the post-IIRIRA landscape that currently exists.

    If I had it my way, I would handle only matters that relate to criminal conduct as it pertains to immigration law, but the truth is that there are a lot of attorneys out there and there is only so much work. But the advice you should have is that you need to find someone who you believe can advocate on your behalf and who is knowledgeable enough to handle whatever may come your way.

    A lot of choosing an attorney is finding someone who inspires confidence in you. There are judges, immigration officers and government attorneys with whom your case will cross and you need to feel that no matter what roadblock or obstacle comes your way, the attorney that you hire has your back and can adequately handle the situations that come your way.

    You want to have someone who knows how to effectively communicate through writing and who has the capability of explaining difficult concepts in the law as if explaining something that comes natural to the attorney. Being in Court with an attorney who cannot handle difficulties thrown your way is going to make you believe that you were better off on your own and you definitely do not want to be in that situation.

    Make a few appointments with different attorneys and find someone who fits well with your viewpoint and your way of seeing things. Keep in mind that each of us has his way of handling your case and our decisions about what to do and how to do it may be different. But we are professionals whose goal it is to ease your way through a difficult time. The right attorney will speak to you in such a way that you will know who he or she is and when you find that fit hire that attorney. But don't trust that we are all the same. The right attorney is out there. Good luck.

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  • Denied Deferred Action/Appeals

    I was never granted a waiver, voluntary departure nor advanced parole. Via an attorney USCIS denied it all. I overstayed a B2 while those requests were pending & now i have Def Act pending. How my parents convinced the attn to file it, i'm clueles...

    David’s Answer

    Thanks for your inquiry. I would suggest that you take your paperwork (or whatever you have) and take it to a local attorney who can review what you have and provide you with an independent opinion regarding whatever it is that you are doing. Not really sure what is going on here but you are the client and you decide what gets filed and how it gets or filed or whether it gets filed at all. Your parents do not make that decision for you and you need to understand the potential consequences of moving forward with what appear to be spurious appeals that are doing absolutely nothing but prolonging the inevitable and perhaps increasing the pocket book of the attorney who is handling the case.

    I am having some difficulty understanding exactly what it is that you have pending. Appears that there is an application for adjustment of status which has been filed but your inquiry does not provide any information upon which I can even render a guess as to how the application was made. Now with that said you have to understand that CIS will take just about anything that you send their way and they will process, even if the applications are dead on arrival.

    The position that CIS takes is that if you submit an application and it is correctly completed, signed in the right place and includes the proper filing fees it will be processed. One of the most common misconceptions that clients come to the office with is the idea that if CIS has taken an application and issued a filing receipt that there has been some type of determination that the application has merit. This is patently and absolutely false. And because of this misconception, there is an amazing amount of fraud that goes on.

    See a lot of bad people know how to submit applications which make foreign nationals think that there is some thing in process. Unfortunately, when many foreign nationals are provided with a filing receipt and a work permit they believe that all is good and that is not necessarily so. The folks that process applications are generally contractors - people that work for a company that has a contract with CIS, these are generally NOT CIS officers trained in the law. Rather, these folks are trained how to identify applications, how to make sure that the i's are dotted and the t's are crossed and that the filing fees are there. If those basic parameters are met, an application will be accepted for processing.

    It is not until later in the game, after filing receipts are issued and after work permits are issued, that a trained Immigration Services Officer (ISO) is assigned to a case. CIS will assume that if an application is filed and the filing fee provided that the individual filing the application knows what he is doing and wants to have the application processed. It is far after the filing fee payment is cashed that an ISO gets into the merits of a case and figures out whether the application is bona fide.

    Again I go back to the lack of information in your inquiry which would point someone trying to help you in the right direction to figure out what is going on. But what it sounds like to me is that you may have fallen victim to someone who keeps milking more and more fees and services for a process that has no merit. And when your parents are shown that something is pending, they think that all is well and good when it could be that there is nothing there but wasted fees, time and costs.

    I cannot tell you how many times I review paperwork provided to me in the first few minutes of a new consultation and tell a well intending foreign national that their application is not worth the paper the application is printed on. Too many scammers out there know exactly how much to do to get well intending foreign nationals to think something is in process when there is nothing but empty promises.

    So I think that the best advice for you is to go and speak to someone who has your best interests in mind and will speak frankly to you. Good luck.

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  • AOS success?

    I want to marry my girlfriend who I've known for over a year. I'm a US citizen. She came to the US as an au pair on the J1 visa (no 2 yr. rule applies), and that's when I met her. Her nanny family did not work out after 2 months and she was let g...

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. I think that the answer is that there is a good chance for success if the matter is handled correctly. Keep in mind that the most important parts of the case are that your fiancee arrived in the US lawfully on the J-1 visa and that the J-1 is NOT SUBJECT to the two year foreign residency requirement. So the basic elements of establishing eligibility for adjustment of status (AOS) are met.

    Now AOS is a discretionary benefit under the immigration laws. This means that any applicant for certain benefits must not only establish the required legal elements of eligibility for certain benefits, she too must establish that the benefit should be granted in the exercise of discretion. Well the question then comes what is discretion? And the answer is, hell if I know.

    As a general rule, the law is fairly clear that cases like your fiancee's should be approved absent any adverse discretionary issues. Here, the fact that your girlfriend did not work for too long under the terms of the visa through which she entered the US could be an adverse factor. Likewise, her having remained in the US for an extended period of time following the first job not working out could be considered an adverse factor. Finally, her acceptance of unauthorized employment may also be considered an adverse factor.

    When I add all of those adverse factors up I do not believe that these factors are so bad so as to warrant the contemplation that discretion should not be considered favorably on her behalf. Truth is that discretionary denials of otherwise eligible applicants for AOS are few and far between. But a lot of whether adverse factors may make things difficult can really depend on the officer that ultimately handles your case. Some officers take things more seriously than others and although I do not know how things work in Albuquerque, I can tell you that I would suggest that this would likely not be all that big of a deal here in Orlando.

    I would suggest that talking this out with an experienced attorney would make it well worth the cost of a consultation. If there are adverse considerations as it pertains to discretion then there is always the opportunity to present countervailing equities in your favor. The Board of Immigration Appeals discussed this issue in Matter of Arai and if you run a Google search on Matter of Arai, you will find a good discussion of what to consider in a case like this.

    I would suggest that when you research cases that discuss the exercise of discretion when it comes to AOS applications, you will see that your fiancee's case is not all that bad. But we never want to minimize a potential issue. A good attorney can help walk you through the process of what to expect and how you may be able to overcome the problems discussed in your inquiry. Sometimes life throws difficulties our way and we have to take what we are thrown and do something with it.

    I am certain that there is a story about the sacrifices that your fiancee had to make to get to the US and that can be told. I am certain that there may be some stories about the difficulties that your fiancee met when she arrived for his first au pair assignment and that story would need to be told. I am certain as well that there is a story about how your fiancee was able to get herself back on her feet despite these circumstances and that story is worth telling. A good attorney can assist you and your fiancee to tell that story and if that story is credible, you would have an excellent chance with success in your fiancee's case.

    Be careful out there as there a lot of attorneys who will tell you that it is not a big deal or that the situation is nothing to worry about. And while we hope that this is true, it always pays to be prepared. The problems that are discussed in your inquiry are fixable, spend the time that is needed to find a reputable attorney who can provide that fix. Good luck.

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  • How can get a US Passport for my son without his dad consent ? I need to travle and can't leave my baby alon ?!

    I do not have a court order of full custody. My baby is three months old, who was born in Pittsburgh,PA . I applied for a US Passport for him, I am not able to contact his dad ( my husband) over a year ( since I got a pregnant), both of us are n...

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. I would suggest that you contact an experienced attorney to see if the assistance of counsel may be able to get your situation across to the US Passport Office with the intent of convincing the Passport Office that it should issue a US Passport to your child. Let's discuss the issues here.

    When a child is born in the US, that child is usually a US citizen. With certain infrequent exceptions, US laws provide that anyone born in the US is considered a citizen of the US. Evidence to establish that the child has acquired US citizenship by birth is a birth certificate establishing birth in the continental US. I will not discuss the issues about birth in US possessions and other locations which can create all sorts of confusion.

    Now to obtain a US passport for a child under 16, the US Passport Office (USPO) requires both parents to apply for the passport. Keep in mind that the USPO is part of the US Department of State, this office has nothing to do with the US Department of Homeland Security or Citizenship and Immigration Services.

    The USPO has some pages on its website which discuss the type of situation which you have. If you enter the following search into Google "applying for US passport for child under 16 years", you should be taken to a page which discusses some of the issues of concern in your case.

    Both parents of the child are generally required to appear at the USPO or a qualified entity which can accept the application for a passport. However, there are circumstances where both parents cannot appear and there are forms available on the USPO web site to handle these circumstances. The Form DS-3053 is used when both parents cannot apply.

    Usually, the issue is that both parents cannot appear and the parent that can appear will obtain a notarized statement of consent from the non appearing parent indicating that the parent who is appearing has the consent of the appearing parent to take care of the application. From a personal note, I am married with two US citizen children and I used this form when my wife recently had to renew our children's passports over the summer. I signed the consent form and had it notarized and it worked, passports are now in hand.

    The Form DS 3053 also provides the parent who will appear with an opportunity to explain why obtaining the non appearing parent's consent is cannot be accomplished. There exists all sorts of reasons why the other parent cannot be there, refuses to be there or has disappeared from the scene such that it would be unreasonable to expect the other parent to appear. And with enough explanation, the USPO should be able to consider the statement and make a reasoned decision about whether or not to approve the request to issue the US passport to only one parent in the absence of the other's parent's consent.

    Where an attorney may assist is with the presentation of the explanation required as part of the DS 3053. Often times, you are filing this application in person with the child present at a post office or clerk of the court - these are designated entities which have been permitted to accept passport applications as if they are the USPO. The reality is that these offices are staffed with employees who are not USPO employees. And while they do their best to handle the easiest and most straight forward of cases, someone at one of these designated entities may not be so easy to deal with when it comes to a situation like yours.

    Be persistent. A designated entity is there to accept your application and to forward it to the USPO. Insist that the application be received and forwarded and let the designated entity know that you are aware that the application may not be approved. And if there is no getting past a qualified entity, go to the local USPO. That may require a trip, but you have to do what you have to do. There is definitely a way around this but you can't take no for an answer. Good luck.

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  • How do I notify the USCIS that I am now married?

    I'm in the F1 queue and I recently married. What's the proper way to notify the USCIS? Also, my sponsor is getting very old and suffering from ill health. While immigration is hardly the most important thing with respect to this - is there any ...

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. The answer to this really depends on where the case stands. Two ways to go about this. If the approved petition is still with CIS, you can send a letter to the service center which last handled the matter and inform it that you have now married. Provide a copy of the marriage certificate and ask that CIS records be updated to reflect that your marriage has now made the petition go from the First Preference to a Third Preference.

    If the case is with the National Visa Center (NVC), you should write a letter to the NVC asking for the same thing and providing the same material.

    Either way, make absolutely sure that you send the letter by mail which can be tracked and that you keep a copy of everything that you send. And under now circumstances should you let any application be processed with either CIS or the NVC thinking that you are single. If your correspondence ends up going nowhere, you should make absolutely sure that CIS and/or the NVC know that you are married before any further processing of an immigrant visa case is permitted to move forward.

    On the issue of the petitioner's health, that is something that only time can tell. If the petitioner does pass away, then the law provides that so too does the petition die with the petitioner. If that were to happen, there is a mechanism made available through which you can save the petition. There is nothing that you can do to pre-empt that right now, you just have to let time run its course and see what happens.

    The inquiry that you have sent comes from inside of the US and I am not sure if you are physically present here or if you are outside of the US, but either way you must understand that the submission an approval of the immigrant visa petition does not necessarily mean that you will be eligible to apply for adjustment of status in the US. Moreover, even if you are eligible for consideration of an application for adjustment of status that does not necessarily mean that your spouse will be eligible through your approved petition.

    My suggestion would be to discuss the case with an experienced immigration attorney. Take your filing receipt and approval notice with you and explain the situation to that attorney. I am concerned that you may believe that you are eligible for consideration of an application for adjustment of status where you may not indeed be eligible for that benefit. This can depend on when your petition was filed, it can depend on whether you are grandfathered under §245(i) if the Act and it can depend on your current immigration status in the US.

    Now that the wait for the availability of a visa has grown longer as a result of your marriage, now would be a really good time to sit with an attorney and attempt to figure out what you need to know about the application process ahead of you. Instead of guessing what is what and who is who, find a licensed an experienced attorney who can assess your situation and provide you an appropriate strategy to resolve your situation as quickly and as correctly as possible. Good luck.

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  • H4 files after H1 COS approved and can I work after LCA applied but not approved.

    I was on L1 to H1 COS boat. H1B approved on Oct 09. Got the approved paper on Oct 17. I resigned the L1 employer on Oct 17 and planning to join the new employer on Oct 22. 1. I worked for around a week with my L1 employer (Oct 09 to Oct 17). ...

    David’s Answer

    Thanks for your inquiry. Both you and your employer need the advice of a god immigration attorney because you have all sorts of potential problems working here. Let's see if we can answer each of your inquiries.

    One the first, the answer would depend on whether you had an approved L-1A to cover the time that you were working between 10-09 and 10-17. If the L-1A was approved for that period of time, then you would potentially be good on the L-1A side of the house. But then you said that there is an approved change of status as of 10-09. This could potentially be seen as a violation of the H-1B status as you were issued a Form I-94 to work on the H-1B as of 10-09 and continued working on the L-1A. Truth is no one is probably going to know that unless they read this site, can figure out who you are and then backtrack. Could be an issue down the line if CIS ever asks for evidence of maintenance of status, but I would suggest that the likelihood of that is slim to none.

    On the dependents it makes absolutely no sense that you would go and request a COS on the L-1 to the H-1B without taking the dependents along for the ride and submitting a Form I-539 at the same time. Seems that the only explanation for not doing this was to make sure that your dependents violated the terms of their status or you were expecting a denial on the H-1B and did not want the dependents to lose status by going along on the COS. Again I would suggest that the likely outcome here is that no one knows the difference, but there is a definite violation of their status as of 10-09. If you did not hold L-!A status, they could not be L-2's.

    Confused by this one, At the beginning of the inquiry you say that the COS was approved and know you say that you do not have the approval in hand. So how do you know that it was approved? If there is an approved H-1B, you are good to go. It is not the LCA that government because even if there is an approved LCA, you cannot work incident to the LCA without an approved I-94 as to the H-1B.

    Not really sure why you would have gone through all of these applications and made all of these decisions without the advice of an attorney. You have potentially committed numerous violations of your status and that of your spouse and kid. While at the end of the day there is little likelihood that anyone is going to bother you about this, the records which would substantiate what you have covered in your inquiry make for a tale of how to do it wrong.

    Listen I understand that different attorneys come up with different stories about the same set of facts, but this was a mess that should have been avoided. Forget putting yourself in possibility of violating your status, why would you not have your spouse and children move along with you on the COS from L-1A to H-1B? While I am very hopeful that there is a good explanation for that which is not included in our inquiry, I am just as lost as lost can be.

    A good attorney could have prevented most of the problems that you have experienced. Now a good attorney's advice is only as good as the client who follows it, but this situation is one which explains what not to do when attempting to change one's non immigrant status in the US.

    Even through the damage appears to have been done and you may now be in possession of approval notices for everyone (or pending applications for some), I would consult with the employer's attorney to make sure that all is well. Not so much because I would fear an issue with the immigration authorities, more to make sure that all of the problems are on the table and that everyone knows what happened and why it happened. Avoid these issues in the future and you will be doing all of us in the business a great favor. Good luck.

    See question