Frequently Asked Questions
These are the questions most often asked of me when I meet potential clients. Please be advised that every immigration situation is different and you should seek individual and personalized legal advice.
1.) I came to the United States 2 years ago on a B-2 visitor's visa, and I've been here ever since. My boyfriend, who is a United States citizen, recently asked me to marry him. Will I be able to get my green card even though I overstayed my visa?
When a person has overstayed the time permitted on the visa (be it visitor, student, H, etc.), that person has acquired unlawful presence. Fortunately, a petition by an "immediate relative" will cure that unlawful presence. Your spouse may petition for you and overstaying your visa will not bar your adjustment of status. Leaving the U.S. after your overstay and before receiving your legal permanent residence, however, will toll your unlawful presence and create a host of problems. Contact Immigration Attorney Elaine Cheung to avoid potential pitfalls and to smoothly adjust your status to that of a U.S. legal permanent resident.
2.) Which is better - (a) bringing my fiancée to the U.S. on a K-1 fiancée visa or (b) marrying her in the home country and then bringing her to the United States?
The answer depends on the priorities of you and your fiancee. What is most important - to have your fiancée with you in the U.S. as soon as possible, to have her receive her green card as soon as possible, or to minimize USCIS filing and attorney fees? I've found that the number one priority of most long-distance couples is to be physically together as soon as possible in the United States, in which case I usually recommend the K-1 Visa. Each person's ability to work and travel, whom you would like to attend the wedding, and the country of emigration will alter the analysis. Contact Immigration Lawyer Elaine Cheung for your personalized answer to this question.
3.) My parents brought me to the United States illegally from my home country when I was 3 years old. I'm in high school now and wonder if I can go to college. Will the Dream Act be able to help me?
Unfortunately the well-known and often-cited Dream Act (Development, Relief and Education of Alien Minors Act) is proposed federal legislation. Although the 2009 version of the Dream Act was introduced into the U.S. Senate and House of Representatives, it has not yet been passed into law.
The purpose of the Dream Act is to help the millions of immigrant children, innocently brought to the United States by their families and in no way responsible for their current illegal immigration status, to possibly "earn" permanent residency. If passed into law, individuals who meet certain requirements will have an opportunity to enlist in the military, go to college and/or have a path to citizenship that they otherwise would not have without this legislation.
4.) When can I apply for U.S. citizenship?
Individuals who satisfy the residence, physical presence, good moral character, English literacy and knowledge of U.S. history requirements are eligible to apply for U.S. citizenship after they have been permanent residents (green card holders) for 5 years. If you are married to a U.S. citizen, you are eligible to apply for citizenship after 3 years of marriage.
The applicant for naturalization must have been physically present in the U.S. for at least half of the qualifying period and must have maintained his or her primary place of residence in the U.S. for the entire qualifying period. Certain events may interrupt the qualifying period, for example convictions for crimes of moral turpitude or extended absences from the U.S.
5.) I am the victim of repeated domestic violence. I'm scared to report the abuse because I have no immigration status. Is there anything you can do?
Victims of domestic violence, as well as other enumerated crimes, may be eligible for visas to remain and work in the United States. This is true even if the abuser or attacker is not a U.S. citizen. If you are a victim of domestic violence or other crime, contact Immigration Lawyer Elaine Cheung, who will speak with you confidentially and guide you help you through this difficult process.
6.) Will leaving my current employer affect my H visa status in process?
The H nonimmigrant visas are employer-specific. Thus, if you leave your current employer and wish to remain in the U.S., you should immediately find another U.S. employer who will sponsor you. Although the permanent residence process requires that you intend to work with the petitioning employer on a permanent at-will basis, a permanent resident application is, nonetheless, "portable" to another employer six months after filing the adjustment of status application if any new employment is substantially similar to the labor certification/visa petition employment.
