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James A. Bach
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James Bach’s Answers

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  • Can I apply for AOS [I485] from previous employer?

    I have an approved PERM and an approved I-140 from my old employer and my priority date has become current. [My home country is India and category is EB2] I am presently holding H1B with another employer. My old employer's lawyer has asked ...

    James’s Answer

    Both you and the old employer must have a good faith intent to resume the employment indefinitely (and not just to get your green card). That intent may be determined by circumstantial evidence. For example, if you returned to the employment now, and then quit as soon as you received your green card, the USCIS might conclude that the employment was not in good faith.

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  • Immigration Form 1-601 Waiver

    We applied form 1-601 for my son in the Philippines. He admitted to having tried marijuana during his medical exams, so his visa was denied. Now with this 1-601 application, he was asked to prove that he took less than 30 grams of marijuana and s...

    James’s Answer

    There are many issues raised by this situation, and representation by an immigration attorney is advised. As noted by my colleague, the Embassy is violating the State Department's own policy by asserting inadmissibility (and requiring an I-601) for drug use that occurred under the age of 18. Second, a person is inadmissible only if he or she has been convicted of a crime, or admits committing the crime. Admission is more than giving a medical history to the examining doctor.

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  • If a permanent resident petitions for citizenship, can she leave the country while the petition is pending?

    My grandma is a permanent resident. She wants to petition for citizenship. She also would like to visit another country soon. Can she do so while her petition is pending?

    James’s Answer

    • Selected as best answer

    She is required to "reside continuously" in the U.S. from the date the naturalization application is filed until she becomes a U.S. citizen. However, continuous residence does not mean that she must be physically present in the U.S., and often our client travel abroad while their applications are pending. If she is absent from the U.S. for more than six months, she probably will not be able to naturalize, but a short trip should not be a problem. After she files her application, she will be scheduled for fingerprinting, so she should delay her trip until these "biometrics" are completed.

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  • 2nd I140 doesn't list PD from 1st one (only 1st 1 is current now). Can I file for adjustment now?

    I am EB2 India and currently current as of February VB. Earlier my old company got acquired by another company. New company filed I-140 amendment for Successor- In-Interest which is approved but USCIS missed to capture my old PD and mere I-140 fil...

    James’s Answer

    You can file the I-485 now with the two I-140 approval notices.

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  • In the green card process, will I-797 (work permits) reviewed/ inquired OR H1B is not linked to the whole green card process

    I realized that in PERM and I-I40, H1B status is not questioned. Is there any step after I-I40 where the an immigration office can request to view all my work permits? Is it a set protocol, or does it depend on the immigration officer to request i...

    James’s Answer

    After the I-140 is approved, and your "priority date" is current, the USCIS will consider your application for adjustment of status (I-485) (or, the Department of State will consider your application for an immigrant visa at a U.S. Embassy or Consulate abroad). During this final process in obtaining your green card, the government will determine whether you are "inadmissible". You may be inadmissible if you have committed a crime, or made a misrepresentation to obtain a visa, entry into the U.S., or another immigration benefit.

    If there were irregularities in a previous H-1B petition, that could form a basis for inadmissibility. For example, if the H-1B job was fake, and you participated in the fraud, you could be inadmissibile (see, my article, "A Lie Can Exclude You From The United States Forever", at http://www.immilaw.com/Newsletters/2007%20January%20Lies%20and%20Waivers.htm). Normally, though, the H-1B petition is solely the employer's petition, so any irregularities -- such as violation of the employer's obligation to pay the required wage, or failing to obtain a Labor Condition Application for a particular work site -- may be the employer's responsibility only. The answer to this question depends very much on the exact facts involved, so it is best to retain an experienced attorney to determine whether a defect in a previous H-1B petition, or previous employment that is not authorized, makes you inadmissible.

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  • As a green card holder, what form should I fill out (I-130 or I-485) if my children are already in U.S legally?

    Both of my children are unmarried and one is under 21.

    James’s Answer

    Your question cannot be answered properly without more information. How did you get your green card? How are your children in the U.S. legally? For example, if you obtained your green card through marriage to a U.S. citizen, the child under 21 may be immediately eligible for a green card, as long as the marriage took place before he or she was 18 years old. Please call my office if you would like to discuss further.

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  • Filed an I-130 for my spouse, then filed an I-129F (K3),will the I-130 take longer now, because I filed the I-129F?

    I checked the status of the I-130 I filed,it stated that it'll take approximately 5mos. and then I checked how long the I-129F will take, it seems to have a longer processing time? Will that have conflict with the I-130 I filed? Or I can wait for ...

    James’s Answer

    Both the I-130 (which leads to an immigrant visa) and I-129F (which leads to a K-3 visa) take about the same amount of time to be processed by the USCIS, National Visa Center, and U.S. Embassy or Consulate. For that reason, there is usually no benefit for the spouse of a U.S. citizen to file the I-129F.

    Also, the immigrant visa is much better than a K-3 visa. When the immigrant visa is issued by the U.S. Embassy or Consulate, the case ends. The spouse must come to the U.S. (i.e., immigrate) within 6 months of visa issuance, and the green card is then mailed to the home address in the U.S.

    However, the K-3 visa merely enables the person to come to the U.S. as a nonimmigrant. He or she must then apply for the green card ("adjustment of status") after arriving in the U.S., adding more expense, another interview, and delay before the green card is issued.

    When the K-3 visa was invented more than a decade ago, the I-130 procedure often took more than a year. The K-3 was designed to ameliorate the long periods of separation that many married people would have to endure while waiting for the immigrant visa to issue. However, the processing time for the I-130 has since decreased, and the K-3 processing time has increased, so normally there is no advantage to the K-3. We rarely file them in our office anymore.

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  • I-140 was valid or "approvable" at the time it was filed

    What is a "valid" I-140? I-140 was "approvable" at the time it was filed. What does USCIS look for in an approved I-140 if their intent is to revoke it?

    James’s Answer

    "Approvable when filed" normally refers to an I-140, I-130 or labor certification that is filed on or before April 30, 2001. That was the effective date of INA 245(i), a law that provides that valid petitions filed on or before that date will enable the applicant to apply for adjustment of status (i.e., apply for a green card in the U.S.) even though the applicant entered the U.S. illegally, worked without authorization, or overstayed the time permitted under the visa.

    Once an I-140 is approved, it can still be revoked if the USCIS concludes that it was approved in error. Before revocation, the USCIS will first send a "Notice of Intent to Deny" (NOID) that summarizes the problems with the case and gives the petitioner a chance to respond. There is a deadline for responding, and it is advisable to hire an immigration lawyer with extensive experience in I-140 issues to assist in preparing the response.

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