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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) was proposed federal legislation and was not passed into law by Congress.

However, we have something almost as good. On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

You may request consideration of deferred action for childhood arrivals if you:

  • Were under the age of 31 as of June 15, 2012
  • Came to the United States before reaching your 16th birthday
  • Have continuously resided in the United States since June 15, 2007, up to the present time
  • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS
  • Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

4.) I was approved for DACA (deferred action for childhood arrivals), can I now travel outside of the United States?

You may travel only after applying for and being approved for a travel document. Your DACA approval gives you the right to apply for a travel document but you must wait until the advance parole is approved before leaving the United States.

5.) 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.

6.) 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.

7.) 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.