The USCIS has extended the validity of most medical examinations previously submitted in connection with adjustment of status to permanent residence (I-485) cases which remain pending. Without an extension of validity, the medical examination would expire after one year. The current extension, issued December 30, 2009, authorizes the medical exams to continue to be valid through January 1, 2011.

IMMIGRATION Q&A

Question: I got my Green Card in 1980. About 14 years ago, I was arrested in N.Y. for disorderly conduct. The case got dismissed and I didn’t even have to pay a fine. I filed for my naturalization myself last year and the officer asked for papers about the case. I didn’t have anything, so I wrote a letter asking for more time so my brother in N.Y. could get something for me. But I just got a denial letter saying that I failed to give them the papers. My question is can I appeal the denial, since I requested more time? Also, they took my fingerprints, so the Immigration should have that information about arrest, so why should I have to give it to them? If I get the criminal case expunged, do I still have to say yes to the question asking whether I have ever been arrested?

Answer: Whenever a foreign national is applying for immigration benefits, including residency and naturalization, he or she is always required to provide certain documents to the USCIS regarding any criminal arrests, even those which do not result in convictions, including dismissals, probation, diversion, etc. Documents required are certified Police Reports from the police dept that made the arrest AND certified Court Disposition documents showing the final disposition of the case.

I always advise clients to obtain two original sets of certified documents before any case is filed to avoid denial. If the case is so old that a Police Report is no longer available, an official, stamped letter from the police dept to that effect will often be accepted by the USCIS.

Even though your fingerprints were taken by the USCIS and your record likely came with the arrest, that does not provide the USCIS with any documentation about the case. The burden is on you to provide it to them. Even when criminal records are sealed (expunged), it has no effect on immigration applications. An applicant must still answer “Yes” to a criminal issue and still provide the USCIS with the documents.

Finally, although USCIS denials allow you to request an appeal or hearing, the fact that you CAN does not necessarily mean that you SHOULD. In immigration cases, the burden is always on you to prove eligibility at the time of filing the application. If you fail to provide any documentation requested by the USCIS by the deadline, a denial is considered justified. Naturalization applicants can request a hearing of the denial by filing form N-336 and paying a $605 Fee. However, since you did not provide the USCIS with the documents by the deadline, you will likely lose the additional $605 fee and your case will remain denied. The best approach is for you to obtain the criminal documentation first, then have the case properly filed again.

Question: I met this American guy in Jamaica and he proposed and got me here on a K-1 visa. Once I got here last year we had lots of problems because we had to live with his mom and she doesn’t like me. In December he told me to move out and that he doesn’t want to get married anymore. I tried to get back with him but he won’t and says he is going to have me sent back home. I want to know if he can make me go back home or can I stay and go to school here?

Answer: Immigration laws are extremely strict about K-1 (fiancé) & K-3 (Spouses) of U.S. Citizens. Unfortunately, under the regulations, K-1 fiancés are required to marry the U.S. Citizen within 90 days and file to adjust immigration status, which is the only way to obtain a Green Card in the U.S. for K-1 & K-3 visa holders. If the marriage to that exact U.S. Citizen does not take place or Green Card status is never obtained through that marriage,  both K-1 & K-3 visa holders are barred from obtaining a Green Card through another or changing status to any other type of visa in the U.S. In such cases K-1 fiancés must return to their home country since there is no other option available to obtain any kind of immigration status. K-3 spouses must also return home except in cases where abuse exists (battered spouses).

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Question: I am currently working on an H-1 B visa and my girlfriend is on an F-1 student visa. We are both Jamaican and want to fly home to spend Christmas and New Years with our family. Will I need to apply for a visa once I exit the US? Can I just use the I-797 approval form to re-enter the US? If this is true, can my girlfriend also just use her immigration approval form and I-20 from the school? It is so confusing to understand if we need to get our visas at the Embassy in Kingston or not. Is there a way I can apply for a visa from the U.S. or go have my passport stamped before I leave the country?

Answer: The general rule for all non-immigrant visas (i.e. H-1B, F-1, E, L, etc.) holders is that unless you have a valid (unexpired) visa stamp already in your passport, you will need to obtain a visa stamp from the U.S. consulate in your home country or from one of the U.S. consulates in Canada or in Mexico before you will be allowed to re-enter the U.S.

Consular officers are notorious for re-adjudicating H-1B, E and L cases, so be sure you have a strong case before considering leaving the U.S. and applying for a visa at the U.S. Consulate. In your case, since you don’t already have an H-1B visa stamp, you will need to make an appointment at the U.S. Consulate in Kingston. In addition to documentation listed in the Consular website, you will need the original Approval Notice (Form I-797) and copy of the attached I-94, a full copy of the immigration petition package filed with the USCIS in the U.S., and completed DS form 156 and if you are male, 157, along with photo. You should also have a current letter from the U.S. company and copies of your past three month’s pay stubs to show you are working for the H-1B sponsor at the salary offered in your H-1B petition. Similarly, your girlfriend will need to obtain an F-1 Student visa stamp in order to be allowed to re-enter the U.S. The DS 156 must be completed and documentation required includes: the original, signed I-20 issued by the school, SEVIS receipt, financial docs and a letter stating that she intends to return to Jamaica after her studies in the U.S. are completed. Let me know if you have any questions.

Question: I just passed my Naturalization test and will be sworn in as a U.S. citizen in a month or so. My husband and stepdaughter are on an expired L-1 visa since the company closed last year. I heard that once I become a citizen, my husband can get some legal status. Is that true? What about my 12 year old step-daughter? Do I have to legally adopt her? It is very confusing.

Answer: Even though your husband and step-daughter are in the U.S. with an expired I-94, as long as they entered the U.S. legally (with inspection by an immigration officer) they can both still adjust status inside the U.S. to that of a Permanent Resident (Green Card holder). So, once you have your Naturalization Certificate, residency petitions can be filed for your husband and step-daughter. A step-child is considered as a “Child” for immigration purposes, as long as the U.S. Citizen and foreign national marry before a child turns age 18. You step-daughter is only twelve, so she is considered to be your child under immigration rules. Therefore, she can obtain her Green Card along with your husband. You would not need to legally adopt your step-daughter for immigration purposes.

Question: My sister in Jamaica met an American guy on the internet and he wants to marry her. She is not sure if she wants to marry him. If the American guy brings my sister to the U.S. on a fiancée visa, if she decides that she does not want to marry him, can she change over to a student visa or something else? Can she stay here if my mom who is a resident files an immigration petition to sponsor her?

Answer: Immigration rules are very strict about Fiancée visas (K-1). Once the foreign fiancée has entered the U.S. on a K-1, he or she is required to marry the U.S. Citizen within 90 days and begin the immigration process. If the marriage does not take place, the foreign national K-1 holder must leave the U.S. and is not allowed to change to any other non-immigrant or immigrant visa. An immigration petition filed by your mom will not allow your sister to stay in the U.S., only a valid marriage and immigration through the U.S. spouse. The only exception is where there is documented abuse by the U.S. Citizen spouse (usually demonstrated by police reports/restraining orders) which can result in a battered spouse case being filed to obtain residency.

*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understand that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call your state’s attorney Bar Association.

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Question: I heard that there was some kind of investment visa for the U.S. where I can make an investment and still get a Green Card. Is there really such a visa and if so, how much do I really need to invest and what are the requirements?

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