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Virginia Immigration Lawyer Answers Your FAQs

Below are some of the most frequently asked topics and questions concerning immigration. If you have a question that is not listed below, please view the rest of our site for further information or contact us, a DC immigration law firm.

Adjustment of Status for Permanent Residency:

What is the difference between adjustment of status and consular processing?

  • Both adjustment of status and consular processing are used for permanent resident applications. The primary difference is where the adjudication of the permanent resident application occurs. For aliens already in the United States at the time they are eligible to apply for permanent residency, adjustment of status is the appropriate means. For aliens outside the United States applying for permanent residency, consular processing is the appropriate method. Adjustment of status applications are submitted to the local USCIS office; whereas, consular processing applications are sent overseas to the appropriate U.S. Consulate.

Can I leave the U.S. while my adjustment of status application is pending?

  • If an alien departs the U.S. while his/her adjustment of status application is pending, the application may be deemed abandoned and subsequently denied. Prior to leaving the U.S., the alien must first request advance parole. However our Virginia immigration lawyers advise most aliens with pending applications to remain in the U.S. throughout the duration of their application. In certain instances, an alien may be barred from re-entering the U.S. even if he/she had previously sought, and received, advance parole.
    An alien who has both a valid H-1B visa and an adjustment of status application pending may leave without first requesting advance parole. In this case, the alien can rely on his valid H-1B visa to travel to and from the U.S.

What if my sponsor does not meet the financial requirements for the Affidavit of Support?

  • If the sponsor does not meet the financial requirements as stated in the Affidavit of Support, another U.S. citizen or Lawful Permanent Resident may act as a co-sponsor. The co-sponsor will be financially responsible for the alien beneficiary in the same circumstances as the principal sponsor. Most adjustment of status applications require the sponsor to make 125% above poverty for his/her specific household size. Assets which can readily turned into cash may be used in the valuation of one’s annual income.

Entered Without a Visa:

Can I receive a work permit if I entered the U.S. without a visa?

  • Generally, an individual who entered the U.S. without a visa is not eligible to receive either a work permit or other immigration benefits. As the immigration laws are constantly changing, an alien who was neither inspected nor admitted at a port of entry in the U.S. nevertheless may still be eligible for a temporary work permit or even permanent residency, Contact our DC immigration law firm to see if you quality. Temporary Protected Status (TPS) and permanent residency via 245(i) are ways in which an alien who entered the U.S. without a visa may be eligible for either a work permit or permanent residency.

How can I legalize my status if I entered the U.S. without a visa?

  • A simple answer does not exist to this question. If an alien has accrued between six months and one year of unlawful presence and subsequently leaves the U.S., the alien is barred from re-entering the U.S. for a period of three years. If an alien has accrued one year or more of unlawful presence and subsequently leaves the U.S., the alien is barred from re-entering the U.S. for a period of ten years. Certain waivers are available for the three and ten year bars.
    However, in cases where an alien has not accrued more than six months of unlawful presence and leaves the U.S., the alien has more alternatives to legalizing his status and receiving either a non-immigrant visa or permanent residency abroad.
    Programs such as TPS and 245(i) can also help an alien obtain a work permit or permanent residency in instances where the alien does not have legal status in the U.S.

Fiancé Visas:

Can I receive a work permit on a fiancé visa?

  • An alien on a K-1 visa may petition the USCIS for a work permit. However, upon marrying the U.S. citizen and applying for adjustment of status, the alien will need to submit another application for employment authorization in order to continue working while the adjustment of status application is pending.

If I am currently in the U.S. can I receive a K-1 visa as the fiancé of a U.S. Citizen?

  • No, the alien fiancé must be outside the U.S. in order to receive the K-1 visa. All processing of this visa is conducted by the U.S. Consulates abroad.

After I enter the U.S. and marry my fiancé, what’s the next step towards permanent residency?

  • Upon entering the U.S., the alien fiancé must marry the petitioning U.S. citizen within ninety days. An extension will not be granted. If the alien leaves the U.S. without marrying the petitioning U.S. citizen, the alien will not be permitted to re-enter the U.S. on the same K-1 visa. The process will need to be started over.
    Once the marriage has occurred within the first ninety days of the alien’s arrival into the U.S., the alien must either submit an adjustment of status application or leave the U.S.

H-1B Visas:

For how long are the H-1B visas valid?

  • H-1B visas are generally valid for a period of six years. They are usually provided in increments of three years, with an option to renew the visa for up to another three years.

Can my spouse get a work permit if I have an H-1B visa?

  • No, a spouse is eligible to enter and remain in the U.S. on an H-4 visa as long as the H-1B visa remains valid. However, an H-4 visa-holder does not have the right to receive a work permit.

Can I leave the U.S. with my H-1B visa if I have a pending adjustment of status?

  • An alien who has both a valid H-1B visa and an adjustment of status application pending may leave without first requesting advance parole. In this case, the alien can rely on his valid H-1B visa to travel to and from the U.S.

Marriage to a United States Citizen:

Can I receive a green card if I am married to a U.S. Citizen?

  • Generally, an alien married to a U.S. Citizen can receive permanent residency as an immediate relative. Immediate relatives are still subject to the inadmissibility and removability laws, e.g., an alien convicted of certain crimes may be ineligible for permanent residency despite his/her marriage to a U.S. Citizen. If the alien is present in the U.S., he/she may be able to apply for adjustment of status. If the alien is outside the U.S., he/she can apply for permanent residency through consular processing. Also, if the alien is outside the U.S. but wishes to come to the U.S. while the permanent residency application is pending, the alien can apply for a K-3 visa.

Overstayed My Visa:

Can I receive a work permit if I entered the U.S. with a valid visa but overstayed it?

  • Generally, an individual who is present in the U.S. beyond the expiration date of the I-94 card is not eligible to receive either a work permit or other immigration benefits. As the immigration laws are constantly changing, an alien who was neither inspected nor admitted at a port of entry in the U.S. may be eligible for a temporary work permit or even permanent residency. Be sure to consult with a skilled immigration law firm to see if you qualify. Temporary Protected Status (TPS) and permanent residency via 245(i) are ways in which an alien who entered the U.S. without a visa may still be eligible for either a work permit or permanent residency.

How can I legalize my status if I entered the U.S. with a valid visa but overstayed it?

  • When an alien is present in the U.S. beyond the expiration date of the I-94 card, the alien begins to accrue unlawful presence. This unlawful presence may be tolled in certain situations. If an alien has accrued between six months and one year of unlawful presence and subsequently leaves the U.S., the alien is barred from re-entering the U.S. for a period of three years. If an alien has accrued one year or more of unlawful presence and subsequently leaves the U.S., the alien is barred from re-entering the U.S. for a period of ten years. Certain waivers are available for the three and ten year bars.  There are exceptions for children.
    However, in cases where an alien has not accrued more than six months of unlawful presence and leaves the U.S., the alien has more alternatives to legalizing his status and receiving either a non-immigrant visa or permanent residency abroad. The key is to contact an experienced DC immigration law firm immediately to minimize any negative consequences.
    Programs such as TPS and 245(i) can also help an alien obtain a work permit or permanent residency in instances where the alien has overstayed the allotted time on his visa or I-94 card.

Work Permits:

Do I get a work permit upon the filing of the I-130 or I-140?

  • Filing either Form I-130 or I-140 does not entitle an alien to receive a work permit. These forms are merely petitions towards the permanent residency applications. When the alien files the actual adjustment of status application, Form I-485, an application for employment authorization, may be submitted simultaneously or anytime after the submission of the I-485 application.

What if my temporary work permit expires before I receive my green card?

  • Temporary work permits, issued while an adjustment of status application is pending, is valid for one year. If the permanent resident card is not received by the expiration date of the work permit, the alien may apply to renew the temporary work permit for another year.

Can my spouse get a work permit if I have an H-1B visa?

  • No, a spouse present in the U.S. on an H-4 visa is not permitted to work while in the U.S. The H-4 visa-holder is only considered to be a dependent of the H-1B principal alien.

 

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