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Stuart Jonas Reich
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Stuart Reich’s Answers

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  • If green card by marriage is denied at U.S. consulate, do we need another I-130 application?

    My green card was denied because my U.S. citizen husband had not resided in the U.S. for years. After my husband lives 6 months in the U.S. where do we start again? Do we need another I -130? Or, instead can we just start at the affidavit of suppo...

    Stuart’s Answer

    While the safest course may be to file a new I-130 to keep something moving forward/not to lose time if the consulate won't reconsider, I think it's worth going back to the consular post that refused the immigrant visa with documentation of your US citizen husband;s move back to the US - travel documentation, evidence of a home there, job there, etc.

    Within a year of the initial decision, there's a good chance that the post may take action on the original case without your needing to begin again from the beginning. I've had a similar case where I was approached after the refusal and we were able to get the consular post to reconsider.

    Speak with an attorney for further guidance on how best to proceed.

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  • Can H4 travel to US when H1 is in India?

    Can H4 travel to US when H1 is in India? I do have H1 VISA and I am travelling with my dependent to India for vacation. Due to personal reason, H4 wanted to come to US few days before H1 travels back to US. Is it possible?

    Stuart’s Answer

    This shouldn't be an issue. the H-4 should bring the same documents you would use for the consular H-4 visa stamp application: copy of H-1B approval notice, copy of document verifying relationship to you as H-1B (marriage or birth certificate), and recent pay statements for H-1B employment.

    Speak with an attorney for further guidance.

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  • Change of Status From F1 to H1. Very late and lethargic filing by employer despite repeated requests not to delay !

    Hello, I have been on the F1 VISA attending school full time. I got an approved H1B but the attorney had "forgotten to file for a change of status". So I got an i 797B with consular processing. (Change of status was not denied, but never applie...

    Stuart’s Answer

    • Selected as best answer

    I agree with my colleagues that your change of status is not approvable.

    However, an F-1 admitted for duration of status ("D/S") on their I-94 does not begin to rue "unlawful presence until formally declared to be out of status by n immigration officer or judge -which would happen on denial of that petition, but not earlier and your are not currently accruing unlawful presence if admitted "D/S."

    In addition, you have a 60-day grace period to remain on the expiration of your F-1 status (here, upon expiration of your OPT EAD).

    Since after expiration of the OPT you can't work anyway, since the grace period will eventually run out, and since you'll need to apply for the H-1B stamp and return anyway, leaving to process abroad sooner rather than later does make sense. But you may not be in as much immediate trouble as you think you are in.

    Speak with an attorney for further guidance.

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  • Can I expedite my F1 to J1 change of status application?

    I've been teaching as adjunct professor in my school, while I was an MFA student. After graduation, I continued that position on my OPT which was valid until Jan 25, 2016. On October 16, 2015, I applied for COS so I could continue teaching. On...

    Stuart’s Answer

    Your concern is a legitimate one - USCIS processing times have slowed down almost completely across the board for virtually all case types. Transfers of applications and petitions among service centers for "load balancing" was a worthwhile idea by USCIS, but hasn't helped much in practice.

    Unfortunately, you can't premium process this type of change of status - the I-539 form just doesn't for it. Leaving to process for the visa abroad directly, rather than changing status here, may be an option.

    I suggest discussing it with a qualified attorney.

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  • At what point does the I134 form get submitted during the K1 Visa process?

    I am in the process of filling out the I129-F to petition for my fiance to come to the US on a K1 visa. I am in the process of starting up a business which currently is not profitable. I have no other assets, except for money I am receiving from...

    Stuart’s Answer

    As my colleagues not, the I-134 is submitted to the consulate abroad when processing for the K-1 visa stamp, after approval of the I-129F.

    It sounds amount of income is sufficient, though it's possible that they may look further into the source of income - a potential problem since it sounds like this income will cease to come in at a definite future date nd often spousal support ceases upon remarriage anyway -they may wish to see the final divorce decree or other documentation).

    Hopefully, you will be able to demonstrate business income from your new venture by the time you need to submit the I-131.

    Speak with an attorney for further guidance.

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  • Assume that my H1b is approved on June 30th, What status will I be from June 30, 2016 to October 1st 2016? Will it be F1 orH4?

    Hello, My change of status to F1 from H4 visa is approved on May 20th 2016. My application to H1b visa is also picked in lottery and I am waiting for approval. I know that when H1b is approved, the effective date will October 1st 2016. Thank...

    Stuart’s Answer

    If your change of status to H-4 has already ben approved, your status is now H-4 -no longer F-1. A future approval of a change of status to H-1B as of October 1 means that you will automatically change to H-1B ON OCTOBER 1. But, your status will continue to be H-4 up until October 1 when the H-1b change of status becomes effective.

    Speak with a lawyer for further guidance.

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  • Is the denial going to be a plus or a minus? Which proofs do we need to have as there is an age gap?

    We got a denial of K -1 visa. There is an age gap between us which is 20 years. We are planning to get married and apply for CR1.

    Stuart’s Answer

    I agree with my colleagues - denial of the K-1 could well be a "minus" but it depends upon the rationale for the denial (lack of belief that your relationship was "bona fide" (real) vs. simply lack of documentation of some other aspect of the case (for instance, financial support).

    The denial may not be insurmountable, but you need to speak with an attorney for an evaluation of the reasons given for the denial and the likely impact on a future case, as well as the best path forward for a marriage base case and how to overcome the consulates initial concerns.

    While a 20-year age difference may raise eyebrows, it doesn't absolutely prevent proof of a real relationship.

    You definitely need to speak with an attorney before moving forward.

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  • My H1B petition is pending with Company B, is there any issue if company A file the LCA petition or H1B extension?

    Presently I am working in Company A with H1B and Company B filed by H1B petition in normal process; recently I received the petition number. In company A, my project is going to end by this month and they are planning to file LCA to work in new p...

    Stuart’s Answer

    The filing of an LCA in itself wouldn't cause an issue with the pending company B change of employer petition. Hoever, the filing of an Amendment by company A, if approved after the Company B petition could cause an issue in beginning/continuing work with company B (though not one without a solution).

    Speak with an attorney for further guidance.

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  • K-1 visa questions!

    Hi! Me and my girlfriend want to get married. I live in Sweden and she lives in USA, she is a citizen of USA. Our first thought was to apply for a K-1 (fiance visa) then marry in one year in the states. After which I stay in the states and appl...

    Stuart’s Answer

    I agree with my colleagues on all counts: first, that the most important thing is to schedule a consultation with an attorney to discuss the unique features of your own particular situation. Only then can the best roadmap for a case be assembled, based both on what's possible and what's most desirable for you both.

    Certain general information can be provided here:

    -The K-1 fiance visa route generally takes a month or two less than going straight to permanent residence by getting married before the process begins; you may get to the US slightly quicker but it would be longer before you were work-authorized, and longer before you would get the green card.

    -Timing is difficult to predict and always has been, but we're in a period where USCIS seems to be getting dramatically slower on everything.

    -From time of K-1 entry, you have 90 days in which to marry.

    -You alone would be interviewed in Sweden for a K-1, same for straight-to-permanent residence.

    -It generally takes about three months after the Adjustment of Status is filed (post-coming here on K-1 AND post-marriage) to obtain employment authorization; it would be difficult to get through the job application process here without having this in-hand. If you go the direct-to-marriage route, you may get here a bit later but are work authorized form the time you get here.

    -After K-1 entry, marriage and Adjustment of Status filing, it takes the same three months as the Employment Authorization to get a travel document. You couldn't leave after K-1 entry until you receive this. so, figure on roughly four months from K-1 entry before you can work OR leave the US assuming you get married/file for adjustment soon after entry.

    Best of luck, and speak with an attorney!

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  • When can we file I-751 (got married in March 2014) and husband obtained green card in October 2014??

    Married in March 2014 and husband got green card in October 2014.

    Stuart’s Answer

    As my colleague notes, you would have a three-month (90 day) window leading up to the expiration date of the current conditional card to file the petition to remove conditions. The I-751 would need to be filed at some point within that 90-day window. The actual grant date/expiration date of the current status is what counts for figuring this out.

    If you've kept your address updated with USCIS, you should receive a reminder from them about the need to file this with the relevant dates.

    Consult an attorney for assistance with your case.

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