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James A. Bach
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James Bach’s Answers

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  • Is an L-1 company owner prohibited from adjusting status?

    I read that if a company owner comes to the US in L-1, then he has to show that he intends to leave the US after the L-1 assignment is over. If this is true, then how does such a company owner stay in the US to get a multinational executive green ...

    James’s Answer

    Actually, it is true. There is a 1982 INS decision, still followed by the USCIS, that holds that L-1A employment must be temporary. You can find this decision by Googling "Matter of Isovic, Interim Decision 2933". The USCIS increasingly requires a demonstration that the L-1A will leave the U.S. after the purpose of his or her managerial assignment has been completed. This is the case even though there is a clear 7-year term for L-1A status, and even though legislation passed in 1990 (i.e., after Matter of Isovic) makes the intent to immigrate compaticle with L-1A status.

    However, you can still apply for an EB-1 green card if you can demonstrate a permanent (or at least indefinite) managerial or executive role.

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  • Am I still eligible for Child Status Protection Act?

    The Petition was filed last March 3, 1993 by my grandfather to my father and the Approval Notice was recieved on November 8, 2011 including my mother and me but now I am 22 years old, my birthday (Oct. 23, 1989) could it be possible to pursue my a...

    James’s Answer

    Beware of free advice on a public website such as this one. It is no substitute for hiring an attorney who can review your papers, properly analyze your situation, and then provide an opinion that he or she is responsible for.

    For example, I do not know how the two attorneys who have responded know that your priority date is not yet current, since your country of birth was not revealed in your question. A March 1993 priority date in the F-3 category is current for every country except Mexico and the Philippines. And it will probably be current for Mexico within the next couple of months.

    Also, if your priority is current, or will become current soon, you will need to take action quickly in order to get the benefits of CSPA.

    But to answer your question: yes, you can definitey pursue your application based on CSPA, if your grandfather's petition was pending from 1993 to 2011. However, as noted above, you may need to act quickly.

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  • Married with an US citizen had a felony 6 years ago clean record ever since what are my chances of adjust my status?

    I'm 24 years old about to be 25 I just married my wife a month ago she is a US born citizen we have 3 beautiful children a 5yo a 3yo and a 2month newborn she wants to file my adjusment of status but I'm kind of scared since i had a misdemeanor a...

    James’s Answer

    • Selected as best answer

    To be eligible to adjust your status, you must have entered the U.S. legally (that is, you must have been "inspected and admitted", usually with a lawful visa).

    You are right to be concerned, because adjustment of status applications could result in deportation because of past crimes. I agree with my colleagues that you need to have an immigration attorney review all of your criminal records, order an FBI rap sheet, and analyze your situation, and you definitely should not proceed without doing that. It does not appear that the misdemeanor you describe will create too much of a problem (although in the title of your post, you indicate it is a "felony"). However, the gang affiliation could be a problem. For example, the gang might be considered to be a "terrorist organization" and your membership alone could be an independent basis for inadmissibility, apart from any crime you may have committed. You definitely need an attorney to analyze completely before doing anything.

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  • How do I convert from B1/B2 Visa to O3 visa?

    I am currently in the US on B1/B2 Visa with my husband who is converting from F1 to O1 visa. He is planning to put in his application soon. How do I go about converting my status to O3 visa? We got married in India last December. Do I apply here i...

    James’s Answer

    I will disagree with my colleagues on this one, and contend that you do not need an attorney to help you chage from B-2 to O-2. Just follow the instructions on the I-539, which you can find at www.uscis.gov. You will need assistance from an attorney with the change to H-1B status, but cannot pursue that until 2013 (because the quota for this year will be filled by the time to can find an employer and submit the H-1B petition.

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  • N-470 and preserving continuous residence

    I am a green card holder (permanent resident) of the United States. I am working abroad for a US employer on a N-470 which preserves my continuous residence for citizenship purposes. That employer is doing badly and will likely lay me off. Can...

    James’s Answer

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    It is true that you must have had a continuous year of physical presence in the U.S., but you must have already fulfilled that requirement to get the first N-470.

    It is not true that you have to file the N-470 before you leave the U.S. You can file the N-470 after leaving the U.S. and even after you have started the employment abroad, but it has to be filed within one year of departure from the U.S.

    You can therefore file the second N-470 without returning to the U.S. if you have been out of the U.S. for less than a year.

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  • There was break in empoyment for 5 mths, same employer rehiring me -new I797B. H1B stamp valid till 2013. Do I need re-stamping?

    I had to terminate my employement in Dec 2011 and moved back to India immediately. Now I want to return to US with new I797B filed by the same employer. I have a H1B stamp for the same employer valid till next year. Do I need a H1B restamping in e...

    James’s Answer

    So far you have three answers: yes, no, and more questions.

    More questions wins. This situation is very fact-specific, and you should consult the employer's attorney who handles its H-1B cases.

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  • Length of stay on L1A and H1B

    I am working on L1A from January 2008 to tilldate. If I apply for H1B this year, can I stay 6 yrs on H1B or does the period I stayed on L1 also counts towards 6 yrs stay? How many years I can stay on H1B visa?

    James’s Answer

    However, if your employer files a labor certification application on your behalf before the end of your 5th year (i.e., in 2012), you can continue extending your H-1B status indefinitely. If you continue to work for your L-1A employer, you may be able to apply now for a green card based on your managerial duties.

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  • I am an international student out of status for 2 years

    Hi, ive managed to finish my bachelor degree even after losing my f-1 status. Is there anyway i can get my status back? or make my out of status years not out of status? i am leaving the US soon but i may get a job that requires me go back to the ...

    James’s Answer

    You are probably not precluded from returning to the U.S. (with an H-1B, another type of nonimmigrant visa, or an immigrant visa). That is because you do not accrue "unlawful presence" after entering the U.S. in F-1 status (even though you have not maintained your student status), unless there has been a formal revocation of your status (for example, if you applied to change to another status and that application was denied). You stil may face trouble getting a nonimmigrant visa (since you did not comply with the terms of the first visa), but you are not legally barred. Probably you will be able to get an H-1B visa.

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  • Applying for a B2 to visit my L1 Fiance. Worried about eligability.

    Hi, My fiance has been granted an L1 and I would like to be able to visit him while he is out in America(from UK). We have been together 9 years and lived together 6 years so naturally I'd like to be able to visit for more than 90 days (visa wa...

    James’s Answer

    That seems pretty compelling to me. Also, you can explain to the consular officer that if your goal was to immediately live in the U.S. you could get married (in your home country) and travel to the U.S. with an L-2 visa. The L-2 visa would give you the right to work. You can explain, however, that you have no plans to get married just yet.

    Finally, you can remind the consular officer that it is U.S. State Department policy to issue B-2 visas to partners of people in L-1 status (even same-sex partners). That policy can be found at 9 FAM 41.31 N. 3.3 and 14.4; see http://www.state.gov/documents/organization/87206.pdf .

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  • At what point would US immigration allow F-1 student's marriage allowable?

    I am an F-1 student with my visa ending this May 2012. My I-20 (as it stands right now) ends December 2012. I then have another year to do Optional Practical Training. I do have a boyfriend that I hope will ask me to marry hom, as we are nearly...

    James’s Answer

    • Selected as best answer

    I don't see that as a desparate act, but a wonderful move to move your life forward. I assume your boyfriend is a U.S. citizen. The USCIS will look at whether it is a real relationship, and whether you are commited to a permanent life together, and the timing in this case should not be an issue. I would suggest that you marry and file your application within the period of your F-1 status (that is, before 60 days have passed after your OPT expires) so you maintain continuously a legal status. (You can still file after your F-1 status has expired, but you should not go out of status if you can avoid it).

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