Question 1

1. If I have a child who is a U.S. citizen, can I obtain legal status in the U.S.?

Accepted Answer

You can do so under two circumstances: 1). If your child is over the age of 21 with the ability to support you, your child can file a residency petition for you, if you came into the U.S. with a visa. If you did not enter the U.S. with a visa, you may be eligible for a waiver (or pardon) that may allow you to adjust to legal status, or you may also adjust status if you are 245(i) eligible (see explanation below of who is 245(i) eligible); and 2). If you have been in the U.S. for 10 years and you can demonstrate that your child of any age will suffer an exceptional and extremely unusual hardship if you are removed to your native country, you may file for cancellation of removal or deportation.

Question 2

2. How can I obtain a U.S. social security number?

Accepted Answer

In order to obtain a social security number, you must file an application, form SS-5 with the Social Security Administration. The Social Security office will ask for identification and immigration authorization (evidence of a visa which allows you to obtain a social security number, a work authorization card, or a green card).

Question 3

3. How can I obtain work authorization?

Accepted Answer

To obtain work authorization, you must first be eligible for it. In order to be eligible for work authorization, you must have entered the U.S. with a visa that allows work authorization. For example, K-1, V-1, Optional Practical Training (OPT), derivative beneficiaries of E, H, & L visas, etc., or you if you have a residency application pending and you are eligible to adjust status and there is a visa immediately available, you may be eligible to obtain work authorization. (The specific point in time at which you are eligible depends on the specific circumstances of your entry into the U.S.). You should consult your attorney to identify if you are eligible. You are not eligible to obtain work authorization with a visitor or tourist visa.To obtain work authorization you must file an I-765 application with the Immigration Service at either a local office or at a service center. Upon approval of the application you will receive the authorization in the mail.

This process generally takes from 3 to 4 months after the application is filed and eligibility is established. You must have a legal basis to obtain the authorization.

Question 4

4. Who is eligible for asylum and what are its benefits?

Accepted Answer

Aliens who have remained in the U.S. for less than one year and are part of an eligible “asylum class” (i.e. persecuted due to political party, race, religion, gender, sexual orientation group, social group, etc.).Immediate family members may be eligible for asylum status with all its benefits such as work authorization and being able to legally remain in the U.S., as long as they have been named in the alien’s asylum application, even if any of the named family members are not present in the U.S. at the time the application is filed.

Question 5

5. What is an Individual Tax ID Number (ITIN), what are its benefits, and how do I get one?

Accepted Answer

An Individual Tax ID Number is a number issued by the Internal Revenue Service (IRS) to record any taxes which a person who does not have a social security number owes. The benefit of using an ITIN number is that it provides an individual with a way to declare and pay taxes, even if the income earned was reported to an invalid social security number. This may serve as evidence that a person has been in the U.S. for a period of time to demonstrate eligibility for an immigration benefit such as cancellation of removal. It also can be used to demonstrate work experience to establish eligibility for a green card based on employment, as well as to provide evidence of an employer’s ability to pay when sponsoring an employee for a green card.To obtain a tax ID number you must file the form W-7 with the IRS with evidence of identity, like a copy of your passport. You will receive the number in the mail with approximately within 1 to 2 months.

Question 6

6. Can my employer use my Tax ID number to pay my wages?

Accepted Answer

No, because he/she is unable to make the mandatory social security payments with this number. The only way your employer can pay you using the ITIN number is if you are hired as an independent contractor, not as an employee. Even if your employer does not pay you using the ITIN number, you can still file taxes using the ITIN number.

Question 7

7. What is government aid and can receiving it affect my immigration status?

Accepted Answer

Government aid is any public assistance or service you receive that you do not pay for (example: public housing, food stamps, free medical benefits, etc.). Receiving government aid may prevent you from obtaining an approval of an immigration petition. Be very careful before you accept any free government benefit.

Question 8

8. What are some of the most common problems with taxes that can affect my immigration status? Why is declaring taxes correctly important for my immigration status?

Accepted Answer

Most immigration applications will require the production of tax records at some point in the process. False or inaccurate information on your tax returns can have a negative impact on your immigration status which may result in delays or even a denial. If taxes have been filed erroneously in the past, you can file amendments or corrections, which will mean you will be responsible for paying back any taxes which should have been paid if the taxes were filed correctly in the first place. Some common bad practices to avoid include:

Misstating filing status. If you are married and living with your spouse, you cannot file as single, head of household, etc.
    Declaring dependents who are not dependents according to the definition in the tax code. You may not claim as dependents individuals or family members not residing in your house (specially if they do not live in the U.S.). There are specific conditions that must be met in order for a person living in your house to be a dependent. Make sure you review these carefully with your accountant or tax preparer.
    Under reporting or not reporting income. All income received must be reported by law. If you have a household of four persons and you are claiming less than $10,000, or an extremely moderate income, it is questionable and could lead to an investigation.

Question 9

9. Do I need to have my visa stamped on my passport for it to be valid?

Accepted Answer

You do not need to have your non-immigrant visa stamped in your passport if you are already present in the U.S. A visa approval notice from the immigration service is sufficient if it contains an I-94 section at the bottom of the approval (otherwise, you must travel outside of U.S. to get the visa stamped). However, if you are currently outside of the U.S. or if you travel outside of the U.S., you will need the visa stamped in your passport or a green card in order to enter or return to the U.S.

Question 10

10. What happens if my case or documentation is misplaced or transferred to another city by the Immigration Service?

Accepted Answer

You should appear at your local USCIS office and request that your file be transferred to the appropriate Immigration office or Service Center.

Question 11

11. What happens if my green card expires and I have not received a new one in the mail? Am I out of status?

Accepted Answer

No. You are not out of status. However, you must appear before an immigration officer to obtain an I-551 stamp in your valid passport. To try to prevent this, you should apply to renew your residency/green card at least 6 months before it expires.Note: This does not apply to those having conditional residency (or 2 year resident cards). If you have a conditional residency you must apply for a removal of conditions with the Immigration Service.

Question 12

12. Can I get permission to travel (or advanced parole) while my case is being processed by the Immigration Service? What do I need to get permission to travel?

Accepted Answer

If you apply for a non-immigrant visa (i.e. H-1B, O, P, L, E, etc.), there is no permission to travel available while your application is pending, and your application will be denied if you travel outside of the U.S.If you apply for residency through family or employment, you must request “advanced parole” or permission to travel from the Immigration Service, before traveling outside of the U.S. However, not everyone is eligible for this, and the Immigration Service may grant or deny your request at their discretion.

Eligibility for advanced parole or permission to travel:

You must have been in lawful status at the time you filed your residency adjustment of status petition.
    You filed your application for residency/adjustment of status on or before September 17, 1998.
    If you are out of status at the time that you filed for residency/adjustment of status, you may be able to travel if the Immigration Service grants you a waiver of inadmissibility. (Note: This is extremely difficult to obtain.)

If you are eligible to obtain advanced parole or permission to travel while your residency application is pending, you must submit the following:

Application I-131.
    2 passport style photos (showing your right ear).
    The filing fee for the I-131 application (these fees change periodically, so check it at the USCIS website)
    Supporting documentation to demonstrate the purpose of your travel (ie: letter from your employer stating you must travel for business, an invitation to attend a wedding, medical records of an ill immediate family member, etc.).

Question 13

13. Why is my case taking longer than anticipated to be processed by the Immigration Service? What does this mean?

Accepted Answer

You may sue the USCIS if it is taking longer than usual to process or decide your case. For more information on eligibility, process and necessary documentation for these types of cases, visit our page on Lawsuits against the U.S. Immigration Service (USCIS).

Question 14

14. Is there a way to pressure the Immigration Service to work faster on my case?

Accepted Answer

Yes. If there have been unreasonable delays in your case, you may file a complaint against the Immigration Service in the federal court, and the court can force the Immigration Service to make a decision in your case. Bear in mind that this decision can be positive or negative. You must carefully evaluate with your attorney if this is worth the added risk and cost of the additional work required for this complaint. The following page of our site contains information on eligibility, process, required documents needed and cost to file such a legal action: Lawsuits against the U.S. Immigration Service (USCIS)

Question 15

15. What happens if I move, while the Immigration Service is still processing my case?

Accepted Answer

You must notify the Immigration Service (USCIS) of your change in address. If you move out of state, the Immigration Service will likely transfer your case to the Immigration office with jurisdiction over the geographical area you move to, which may trigger delays in the processing of your application.

Question 16

16. What is adjustment of status?

Accepted Answer

It is to change from non-immigrant status or any other immigration status, to a lawful permanent resident status (or obtaining a green card).

Question 17

17. Who is 245(i) eligible to adjust status?

Accepted Answer

245(i) eligible means that you qualify under the 245(i) provision of the immigration act, for eligibility to adjust your legal status by paying a penalty fee, if you meet the following conditions:

You must have been present in the U.S. before December 18, 2000, and
    You must have filed a family or employment based residency petition on or before April 30, 2001, or you must have been the derivative beneficiary of such a petition.

Note: Even if your initial petition was not successful, but was filed on or before April 30, 2001, you may still be 245(i) eligible under certain circumstances, and may apply again for residency through another family or employment petition (consult an attorney to make this determination).

Question 18

18. What is a derivative beneficiary?

Accepted Answer

A derivative beneficiary is a spouse or child of an individual who was named as the primary or main beneficiary of a visa application or residency petition, if the type of petition allows family members to be included. For example:

My aunt who is a U.S. citizen filed a residency petition for my mother when I was under the age of 21; this means my mother’s spouse and I are derivative beneficiaries of that application.
    My father’s employer started a petition for my father when I was under the age of 21; this means my father’s wife and I are derivative beneficiaries of that petition.
    My mother married a U.S. citizen when I was under the age of 21 and I was named as her child in the petition, however, this type of residency petition does not allow me to be a derivative beneficiary. In this case, my stepfather is required to file a separate residency petition for me, if he wants to petition for my residency.

Question 19

19. Do I have to notify immigration if I change my address?

Accepted Answer

The immigration regulations require that all persons who are not citizens of the U.S. (including residents) inform the U.S. Immigration Service of any change in their address.

Question 20

20. How do I renew my work authorization card? How many months before it expires should I renew it?

Accepted Answer

To renew your work authorization card, you must file an I-765 application with the Immigration Service, together with the appropriate filing fees (these vary). You should apply for renewal 6 months before your work authorization card expires.

Question 21

21. How can I declare taxes if I am getting paid in cash?

Accepted Answer

You can still prepare a tax return declaring the total amount that you have earned during the tax year, without submitting a W-2 from your employer and using a Tax ID number (ITIN) instead of a social security number (if you do not have a valid social security number, see answer to question 3 on how to obtain an ITIN number). You will be responsible for paying all taxes owed, as you have not paid them through a payroll system, and probably no taxes have been withheld or deducted.

Question 22

22. How can I check the status of my application with the Immigration Service?

Accepted Answer

If you have an application receipt number (usually this is sent in the mail by the Immigration Service, some time after they have received your application) and your case is pending at an Immigration Service Center, you can check the status of your application online in the USCIS website or by telephone at: 1 (800) 375-5283 and following the automated instructions.If your case is pending at the Immigration Court or the Board of Immigration Appeals, you may check the status of your case over the telephone by calling: 1-800-898-7180, with your alien number (starts with an A and you will find it in your immigration documentation), and following the automated instructions. There are options to hear your status in Spanish or English.

Question 23

23. What is the priority date of my application and how can I find out if it is current?

Accepted Answer

The priority date is the date your initial application for residency was filed. The USCIS processes these applications in the order they were received, so by looking at what priority date the government is working on right now, we can estimate where your case is in the waiting line. The priority date in which the government is working for residency petitions, or the current priority date is published in the Visa Bulletin. The current priority dates are published by application category and the bulletin is updated every month (categories are different by type of relationship—brother vs. parent, by marital and age status of beneficiaries, etc.–See the Visa Bulletin for category classifications. There are also a different amount of green cards available each year for each category—for example there are more green cards available for children of U.S. residents than for siblings of U.S. citizens). For example, if your residency or green card application for your brother was filed in September of 2001, and the Visa Bulletin says that the current priority date for that category is September 1996, meaning that they are granting visas to those who initially applied in September 1996, we can estimate that your brother’s application will take another 5 years before it can be granted. This estimate can change according to the number of people who applied in all the years previous to your application filing date or priority date, and are in line within that category. This will be reflected in the Visa Bulletin update. It is therefore, a good idea to check the Visa Bulletin often.

Question 24

24. How does the government determine my priority date?

Accepted Answer

Your priority date is established by the day the USCIS or the Department of Labor receives your initial visa petition or your initial labor certification application.

Question 25

25. How can I schedule an appointment with the USCIS to ask a question about my case?

Accepted Answer

Appointments with the USCIS can be scheduled through the USCIS Info Pass appointment page on their site at:https://infopass.uscis.gov/info_en

Question 26

26. If I had an interview with the USCIS and/or filed my application a very long time ago, but have not received a decision on my case, can I do anything to expedite the process?

Accepted Answer

You may file a legal action against the USCIS to demand that they provide you with an answer to your petition or adjudicate the application if the immigration service is taking longer than normal to make a decision on your case.The following page of our site contains information on eligibility, process, costs, and documents needed to file such a legal action: Immigration Against U.S. Lawsuit

Question 27

27. Can a J1 Visa be transferred to an O Visa?

Accepted Answer

Yes. However, that transfer does not cancel or have any other effect on the two year foreign residency requirement if it is applicable.

Question 28

28. If I represented that I am a U.S. citizen on an application for purposes other than immigration, is that representation an impediment to applying for status as a U.S. resident or citizen?

Accepted Answer

A false claim of U.S. citizenship can always have a negative impact on any immigration process and in some instances it can result in criminal prosecution. Whether or not it will constitute an impediment to changing status would depend on the specific circumstances of the misrepresentation, and therefore, the case should be thoroughly reviewed by an immigration lawyer before taking any action.

Question 29

29. Can I apply for an extension on my tourist visa?

Accepted Answer

Yes. Individuals who are in the United States having been admitted on a visitor’s visa, B-1 or B-2, may apply to extend their visitor status so long as they were issued a valid I-94 card, which has not yet expired and their application is received by the USCIS within the period of time for which they were originally admitted to the U.S.It is important that the individual be able to demonstrate that he/she has the financial resources to remain in the United States without working.

Question 30

30. If I entered the United States under a visa waiver, can I apply for an extension?

Accepted Answer

No. The visa waiver program does not allow an individual permission to extend their visitor status.

Question 31

31. If I have been in the U.S. for a long time can I obtain a green card or residency?

Accepted Answer

Yes, if you are eligible for a cancellation of removal case. Please read more information on eligibility, process and necessary documentation for these types of cases in our web page for Cancellation of Removal

Question 32

32. How can US residency be lost?

Accepted Answer

There are many reasons why a person can lose his/her legal permanent residency in the U.S. Common reasons include: remaining outside the US for extended periods of time (more than 180 days), being convicted of a crime; providing false, improper or erroneous information on prior immigration applications, failure to apply for removal of conditions on a residency in a timely manner (for conditional residents), failure to comply with the requirements of conditional status (for conditional residents), and violations of certain immigration laws or regulations.

Question 33

33. I am under OPT (Optional Practical Training) status. Can my employer apply for my Green Card without applying (or before they apply) for my H-1b visa?

Accepted Answer

There are alternatives to obtain permission to remain in lawful status and eligible to work in the U.S. apart from an H-1B visa, which is important due to the limitations on the number of individuals who can access an H-1B visa each year.

One of the major alternatives may be an Employment-Based Residency Petition. OPT periods generally range between 1 to 3 years, which often times allows the critical 1st step of an Employment-Based Residency Petition to be completed.

Employment-Based Residency Petitions generally involve 3 separate stages: an LCA (Labor Condition Application), an I-140 (Immigrant Visa Petition), and an I-485/DS-260 (Residency Petition). The LCA will usually take between 9-14 months to be completed and once it is approved, if the beneficiary (the individual being sponsored) is in the U.S. with OPT and the Visa Bulletin Filing Date is current for the petition’s category, then an I-140 (Immigrant Petition for Alien Worker) may be filed by the employer and an I-485 (Application to Register Permanent Residence or Adjust Status) may be filed by the beneficiary.

Filing of an I-485 allows the beneficiary to obtain a permit to work and travel, independent of their prior visa, and it allows those permits to be renewed annually until the Residency Petition process is complete which generally takes approximately 2 years.

The Employment-Based Residency option is often overlooked because of the belief that an individual must first obtain an H-1B visa before being considered for residency. This it is not the case and if an employer is willing to sponsor the employee there are many benefits to this alternative.

Question 34

34. What options do I have if my OPT (Optional Practical Training) status is expiring soon?

Accepted Answer

A person whose OPT is expiring may apply for any non-immigrant visa status that they qualify for, including an extension their F-1 student visa, if they are going to continue to study in the United States. Generally any non-immigrant visa application must be filed prior to the expiration of the person’s OPT status in order to remain lawfully present in the U.S. and that lawful presence will continue until the application is decided. (See 8 C.F.R. § 214.2(f)(7)) It is important to utilize the assistance of an experienced immigration lawyer as if the new application you file is denied you may be left out of legal status.

General Immigration Frequently Asked Questions