Other General Immigration: FAQs

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.

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.

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.

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:

1. Misstating filing status. If you are married and living with your spouse, you cannot file as single, head of household, etc.
2. 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.
3. 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.

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.

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:

1. You must have been in lawful status at the time you filed your residency adjustment of status petition.
2. You filed your application for residency/adjustment of status on or before September 17, 1998.
3. 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:

1. Application I-131.
2. 2 passport style photos (showing your right ear).
3. The filing fee for the I-131 application (these fees change periodically, so check it at the USCIS website)
4. 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.).

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:

1. You must have been present in the U.S. before December 18, 2000, and
2. 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).

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:

1. 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.
2. 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.
3. 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.

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.

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.