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1. If I have a child who is a U.S. citizen, can I obtain legal status in the U.S.?
If you have a U.S. citizen child, you may be able to obtain lawful status in the United States under certain immigration pathways. The options available depend on how you entered the country, how long you have lived in the U.S., and your child’s age.
First, if you entered the United States with a valid visa and your U.S. citizen child is 21 years of age or older and able to financially sponsor you, your child may file a family-based immigrant petition to help you apply for lawful permanent residence. If you entered the U.S. without a visa, you may still qualify to adjust status through a waiver of unlawful entry or under INA § 245(i), if you are eligible under that provision.
Second, if you have lived continuously in the United States for at least ten years and can prove that your U.S. citizen child would suffer an exceptional and extremely unusual hardship if you were deported, you may be eligible to apply for Cancellation of Removal, commonly referred to as the “10-Year Law.” This form of relief is available in removal proceedings and requires strong evidence, credible testimony, and careful legal preparation.
Because these immigration options involve complex legal standards and strict eligibility requirements, consulting with an experienced Boston immigration lawyer is critical to determining the best strategy for protecting your family and securing lawful status.
2. How can I obtain a U.S. social security number?
To obtain a social security number, you must file an application (Form SS-5) with the Social Security Administration office. The Social Security Administration office will ask you for identification and immigration authorization (evidence that your visa allows you to obtain a social security number, a work permit card, or a resident card or “green card”).
3. How can I obtain work authorization in U.S.?
4. Who is eligible for asylum and what are its benefits?
Foreigners who have remained in the United States for less than one year and are part of an eligible “class” for asylum (e.g., people who have been persecuted for belonging to a political party, race, religion, gender, sexual orientation, social group, etc.). Immediate family members may be eligible for asylum status with all its benefits, such as a work permit and the ability to remain legally in the United States, as long as they were mentioned in the asylum application, even if they are not present in the United States at the time the application is filed.
5. What is an Individual Tax ID Number (ITIN), what are its benefits, and how do I get one?
6. Can my employer use my Tax ID number to pay my wages?
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.
7. What is government aid and can receiving it affect my immigration status?
Government assistance is any public aid or service that you receive and for which you do not pay. (Examples: public housing, food stamp assistance, medical services paid by the state, etc.) Receiving this government assistance can be an obstacle for you to obtain an approval for any immigration petition. Be very careful before receiving any free government benefit.
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?
Common mistakes immigrants make when filing their taxes to be avoided:
- Misstating or using incorrect filing status:
- If you are married and living with your spouse, you cannot file as single.
- If you and your spouse are both working, then you likely cannot be head of household.
- If you live with the other parent of your children and you both work, you will not likely qualify as “head of household.”
- Improperly Claiming Dependents:
- Declaring dependents who are not dependents according to the definition in the tax code is improper—for example members who are not residing in your house or living outside the United States, generally cannot be claimed as dependents.
- There are specific conditions that must be met for a person living in your house to be a dependent. Make sure that you review these carefully with your accountant or tax preparer.
- Under reporting or not reporting income.
- All income, including cash earnings, must be reported by law
- Reporting unrealistically low income for your household size can trigger investigations. For example, if you have a household of four persons and you are claiming less than $10,000.00, or an extremely moderate income, this will be questionable and can lead to greater scrutiny.
9. Do I need to have my visa stamped on my passport for it to be valid?
You do not need to have your non‑immigrant visa stamped in your passport if you are already present in the United States. The approval notice of your visa from the Immigration Service (USCIS) is sufficient if it contains an I‑94 form at the bottom of the approval notice (otherwise, you must travel outside the United States to have the visa stamped in your passport). However, if you are outside the United States or if you travel outside the United States, you will need to have your visa or residency stamped in your passport in order to enter or return to the United States.
10. What happens if my case or documentation is misplaced or transferred to another city by the Immigration Service?
You must appear at the local USCIS office and request that your file be transferred to the appropriate local office or Immigration Service.
11. What happens if my green card expires and I have not received a new one in the mail? Am I out of status?
No. You do not fall out of status. However, you must appear before an immigration officer and obtain an I‑551 stamp in your passport. To prevent this step, you must apply to renew your residency/green card at least 6 months before it expires. Note: This does not apply to conditional residents (or those who have 2‑year residence cards). If you have conditional residence, you must apply to remove the conditions with the Immigration Service (USCIS).
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?
If you apply for a non‑immigrant visa (i.e., H‑1B, O, P, L, E, etc.), there is no travel permission available while your application is in process, and your application will be denied if you travel outside the United States. If you apply for residency through a family member or employment, you must request “advanced parole” or a travel permit from the Immigration Service (USCIS) before leaving the country. However, not everyone in these processes is considered eligible for it, and the Immigration Service may grant or deny this permission at its discretion.
Eligibility for “advanced parole” or travel permit:
- You must have been in legal immigration status at the time you filed your petition to adjust your status to resident.
- You filed your application for residency/status adjustment on or before September 17, 1998.
- If you were out of status at the time of filing your application for residency/status adjustment, you may be eligible for the travel permit 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 a work permit while your residency application is in process, you must submit the following:
- Form I‑131
- 2 immigration photos
- The application fee (these change frequently on the USCIS website)
- Supporting documentation to show the purpose of your trip (e.g., a letter from your employer explaining that you must travel for work reasons, an invitation to attend a wedding, medical reports of a sick family member, etc.)
13. Why is my case taking longer than anticipated to be processed by the Immigration Service? What does this mean?
You may file a lawsuit if USCIS is taking longer than normal to process or decide your case. For more information about eligibility, process, and required documentation, visit our page on Lawsuits Against the United States Citizenship and Immigration Services (USCIS).
14. Is there a way to pressure the Immigration Service to work faster on my case?
Yes. If there have been abnormal delays in the processing of your case, you may file a complaint or lawsuit against the Immigration Service in federal court, and the court can force the Immigration Service to make a decision in your case. Keep in mind that this decision may be positive or negative. You should carefully evaluate with your attorney whether the risk and additional cost of the work required for this lawsuit is worthwhile. On our website you will find information about eligibility, process, required documents, and the cost of carrying out Lawsuits Against Immigration.
15. What happens if I move, while the Immigration Service is still processing my case?
You must notify the Immigration Service of your change of address. If you move to another state, the Immigration Service will likely transfer your case to the Immigration office with jurisdiction over the geographic area to which you moved, which may cause further delay in the processing of your application.
16. What is adjustment of status?
17. Who is 245(i) eligible to adjust status?
Being eligible under provision 245(i) means that you qualify under this provision of the immigration act to adjust or change your legal immigration status by paying a fine, if you meet the following requirements:
You must have been present in the United States before December 18, 2000, and
You filed a family‑based or employment‑based residency petition on or before April 30, 2001, or you are the derivative beneficiary of such a petition.
Note: Even if your initial petition was not successful, but it was filed on or before April 30, 2001, you may still be eligible under provision 245(i) in certain special circumstances, and you may still be able to apply for residency through another family‑based or employment‑based petition (consult an attorney to make this determination).
18. What is a derivative beneficiary?
A derivative beneficiary is the spouse or child of a person named as the primary or principal beneficiary of a residency petition or visa application, if the type of petition allows family members to be included. For example:
- My aunt, who is an American citizen, filed a residency petition for my mother when I was under 21 years old; this means that my mother’s husband and I are derivative beneficiaries of this application.
- My father’s employer began a residency petition for my father when I was under 21 years old; this makes me and my father’s wife derivative beneficiaries of this application.
- My mother married an American citizen when I was under 21 years old; I was named in the application as her child, however this type of residency petition does not allow me to be a derivative beneficiary. In this case, my stepfather must file a separate residency petition for me if he wants to request my residency.
19. Do I have to notify immigration if I change my address?
Immigration regulations in the United States require that all persons who are not U.S. citizens (including residents) inform the Immigration Service (USCIS) of any change in their address.
20. How do I renew my work authorization card? How many months before it expires should I renew it?
To renew your work permit, you must file the I‑765 application with the Immigration Service, along with the application fees (these vary). You must apply 6 months before your work permit expires.
21. How can I declare taxes if I am getting paid in cash?
You can prepare your tax return by declaring the total amount you were paid during the fiscal year, without attaching the W‑2 form that employers generally provide, and using the individual taxpayer identification number (ITIN) instead of the social security number (if you do not have a valid social security number). See the answer to question 5 for how to obtain the ITIN number. You will be responsible for paying all taxes you owe according to the law, since you have not paid them through payroll, and your employer likely did not withhold them from your check.
22. How can I check the status of my application with the Immigration Service?
If you have the receipt number of your application (this is usually sent by the Immigration Service some time after your application is received), and your case is in process or “pending” with an Immigration Service Center, you can check the status of your application in Spanish online on the USCIS website or by calling: 1 (800) 375‑5283, and following the automated instructions (there is an option to listen in Spanish).
23. What is the priority date of my application and how can I find out if it is current?
The priority date is the date on which the residency application was initially filed. The United States Immigration Service (USCIS) processes these applications in the order they are received, so by reviewing the priority date the government is currently working on, or the one that is “current,” it is possible to estimate the remaining time needed to process a case. The “current” priority date, or the one the government is working on for residency petitions, is published in the visa bulletin. These dates are published by application category, and this bulletin is updated every month (the categories are differentiated by type of family relationship—sibling vs. parent, by marital status and age of the beneficiaries, etc.). See the visa bulletin for the classification of categories.
There is also a different number each year of permanent resident cards available depending on the category; for example, there are more permanent resident cards for children of residents than for siblings of U.S. citizens. For example, if the application for a permanent resident card for your brother was filed in September 2001, and the bulletin says that the current priority date for this category is September 1996, or that they are processing applications filed in September 1996, it can be estimated that your brother’s application will take another 5 years before it can be granted. This estimate may change depending on the number of people who applied before your brother’s priority date and are therefore ahead of him in line. This will be reflected in each update of the visa bulletin, and therefore it is very useful to review it frequently.
24. How does the government determine my priority date?
The priority date is determined and established by the day the Immigration Service (USCIS) or the Labor Department receives your application for the visa or for labor certification.
25. How can I schedule an appointment with the USCIS to ask a question about my case?
Appointments with USCIS can be scheduled through its website.
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?
If the immigration department is taking longer than normal to decide your case, you can take legal action or file a lawsuit against USCIS to demand a response to your request or to have it adjudicated. Learn more about the process for filing a lawsuit against U.S. immigration (“Writ of Mandamus”), including information about the requirements, necessary documents, an overview of the process, and the costs involved in taking this legal action.
27. Can a J1 Visa be transferred to an O Visa?
Yes, it is possible. However, this does not cancel or have any effect on the two‑year foreign residency requirement if it applies.
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?
Falsely presenting yourself as an American citizen can always have a negative impact on any immigration process, and in some cases it can result in criminal charges. Whether or not this is an impediment to changing your status depends on the circumstances of the false claim, and therefore these types of cases should always be carefully reviewed by an immigration attorney before any action is taken.
29. Can I apply for an extension on my tourist visa?
Yes. People who are in the United States and who entered with a B‑1 or B‑2 tourist visa may apply to extend their visitor status as long as they have a valid I‑94 card that has not expired, and the request for the extension is received by USCIS within the time for which the visa was initially authorized. It is important that the person be able to show that he/she has the financial resources to stay in the United States without working.
30. If I entered the United States under a visa waiver, can I apply for an extension?
No. The visa waiver does not allow a person to extend their visitor status.
31. If I have been in the U.S. for a long time can I obtain a green card or residency?
This is possible if you qualify for a cancellation of removal case. This option is available for non‑residents who are in removal proceedings before an immigration judge, if the non‑resident has been in the United States continuously for at least 10 years, has had good moral character, and it can be established that their removal would subject an immediate relative who is a lawful permanent resident or U.S. citizen to exceptional and extremely unusual hardship. After reviewing the evidence, the immigration judge may cancel the removal/deportation process and grant the foreign national permanent residency.
Lawful permanent residents who have been convicted of certain types of crimes, and therefore placed in removal proceedings from the United States, may also be eligible for cancellation of removal if they have been continuously present in the United States as lawful residents for 7 years and were not arrested and convicted of a crime during the first 5 years of residency. Learn more about eligibility, the process, and the documentation needed for a cancellation of removal/deportation case.
32. Can US residency be lost?
There are several reasons why a person may lose their permanent residency in the United States. The most common include remaining outside the United States for a long period of time (more than 180 days), being convicted of a crime, providing false statements or incorrect information on immigration applications; in the case of conditional residents, not applying on time to remove the conditions on residency, failing to meet the requirements of conditional status, and violating certain immigration rules and regulations.
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?
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 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.
34. What options do I have if my OPT (Optional Practical Training) status is expiring soon?
A person whose OPT is expiring may apply for any non-immigrant visa status that they qualify for, including an extension of their F-1 student visa if they are going to continue to study in the United States, as well as Legal Permanent Residency, in some situations. 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. 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.
Our immigration and visa lawyers have experience assisting you to obtain all types of non-immigrant U.S. visas for foreigners who are coming on a temporary basis for a specific period of time or purpose. These visas include H (H-1B) Visas for Professionals in Specialty Occupations; TN Visas for certain Canadia and Mexican Professionals; E (E-1, E-2) Visas for Treaty Traders and Treaty Investors; L (L1b) Visas for Employee Transfers within a Company; K (K-1) Visas for Fiancé / Fiancée; O (O-1) Visas for Foreigners with Outstanding Abilities; U visas for Victims of Crime; R Visas for Religious Workers; P for Internationally Recognized Athletes; Artists and Entertainers; and their corresponding derivative visas for immediate family members of the primary beneficiary of the visas listed above.
IMPORTANT NOTE ABOUT THIS DOCUMENT
The information contained in this document is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance it should be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.
