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A Simple Immigration Question What Can An Experienced Immigration Attorney Do For A Client? (I) Our office receives many calls from non-clients asking simple questions. A common example is, “While my green card application is pending, can I travel to my home country?” One caller might say, “Some attorneys have told me ‘yes,’ and some attorneys have told me ‘no.’ Some attorneys have told me it is better not to travel outside the U.S. Since your firm is well known, I would like to hear your answer.” Many people are surprised to hear this. “What?” they say. “You guys charge $200 to answer a simple question?” They believe that the answers to their questions will be either yes or no: either they can travel outside the United States, or they can’t. In their eyes, it’s that simple. Theoretically, we could give them a “simple answer” for their “simple question”: Yes, you may travel anywhere, since the United States is a free country. What is the value of the simple answer? There is none. In fact, even worse than no answer at all, a simple answer can be misleading. What the callers really want to know is not simply whether they can travel outside the United States, but how this travel will affect their green-card application and whether they will be able to return after their trip. The answers to those questions will require detailed information about the applicant’s background and individual circumstances, and an attorney’s judgment and advice based on facts and laws. Specifically, “green card application” is vague language. An attorney would need to ask, Did you apply for an I-140? Based on what category? Did you apply for an I-485? What is your status now? Do you have an advance parole? Have you been out of valid non-immigrant status in the United States? If yes, for how long? Here are some examples that demonstrate how the answer to this simple question can vary depending on different situations. Case 1: Mr. Wang In this situation, Mr. Wang may go back to China for a visit. However, he might have a hard time getting a valid visa from the U.S. consulate or embassy in China, since an F-1 visa or entering the United States with an F-1 visa requires a non-immigrant intent. Nevertheless, his travel outside the United States will not affect his NIW application. Case 2: Dr. Gupta In this situation, Dr. Gupta may go back to India for a visit. He will have no problem getting an H-1B visa, since an H-1B visa allows dual intent (i.e., immigrant or non-immigrant intent). His pending NIW application will not affect his H-1B visa application. Moreover, his wife may apply for an H-4 visa with his H-1B application. Dr. Gupta’s travel outside the United States will not affect his NIW application. Case 3: Dr. Kim In this situation, Dr. Kim may go back to Korea for a visit and come back with her advance parole. However, she will no longer have H-1B status if she uses her advance parole to come back. It is risky for her, since her EB-1(a) has not been approved. If she comes back with an advance parole and her EB-1(a) is denied, she will no longer be able to stay in the United States legally. We would suggest that Dr. Kim apply for an H-1B visa from the U.S. embassy in South Korea. She will have no problem getting an H-1B visa, since an H-1B visa allows dual intent. Dr. Kim’s pending EB-1(a) and I-485 applications will not affect her H-1B visa application. Moreover, her travel outside the United States will not affect her EB‑1(a) and I-485 applications. Case 4: Dr. Lee In this situation, Dr. Lee may go back to Korea for a visit. He may apply for an H-1B visa from the U.S. embassy in South Korea. He will have no problem getting an H-1B visa, since an H-1B visa allows dual intent. His pending NIW and I‑485 applications will not affect his H-1B visa application. Moreover, Dr. Lee ’s travel outside the United States will not affect his NIW application. However, since he will travel outside the United States without an advanced parole, and he does not have H-1B status before leaving the United States, his I-485 application will be considered abandoned. After he comes back to the United States, he should file another I-485 application either right away or after his NIW is approved. Case 5: Ms. Li/Mrs. Smith Mr. and Mrs. Smith filed I-130, I-485, EAD, and advanced-parole applications on January 5, 2008. However, Mrs. Smith’s father recently became ill, and she decided to go back to China, her home country, for a visit. She left for China on February 20, 2008. Her husband plans to mail the advance parole to her after USCIS approves it. In this situation, Mrs. Smith may go back to China to visit her father; it will not affect her I-130 immigration petition. However, since she left the United States without an advance parole, her I-485 is considered abandoned. Moreover, her advance-parole application has little chance of being approved, since she did not have a valid non-immigrant status when she filed her I-485 application. Since she had been out of status for over a year, she is subject to a three-year bar (i.e., she cannot get a visa to the United States for the next three years). Mr. Smith still regrets not consulting an experienced immigration attorney before letting his wife go back to China. Nevertheless, he went to China on February 25, 2008 to be with his wife—after all, nothing can stand in the way of true love. He is currently looking for a private security job in China. Case 6: Mr Yang Mr. Yang and Ms. Yang filed I-130, I-485, EAD, and advanced-parole applications on January 5, 2008. However, Mr, Yang’s father recently became ill, and he decided to go back to China, his home country, for a visit. He left for China on February 20, 2008. His wife plans to mail the advance parole to him after USCIS approves it. In this situation, Mr. Yang may go back to China to visit his father; it will not affect his I-130 immigration petition. However, since he left the United States without an advance parole, his I-485 is considered abandoned. Moreover, his advance-parole application has little chance of being approved, since he did not have a valid non-immigrant status when he filed his I-485 application. Though he had been out of status for over a year, he is not subject to a three-year bar, since his F-1 status is a duration of status, and he did not accrue an unlawful stay in the United States. He may apply for a K-3 visa or consular processing from the U.S. consulate in Guanzhou, China. Mrs. Yang regrets not consulting an experienced immigration attorney before letting her husband go back to China. However, she is comforted to know that Mr. Yang is not subject to the three-year bar and may apply for a K-3 visa or consular processing to return to the United States. Nevertheless, she went to China on February 25, 2008 to be with her husband—after all, nothing can stand in the way of true love. She is currently applying to be a waitress at the Hard Rock Café in Beijing while continuing to pursue her dream career, acting. The only difference between Ms. Li’s case and Mr. Yang’s case is the status each of them held in the United States; otherwise, their situations are exactly the same. However, these two examples show that even such minor variations between cases can result in dramatically different options—and would result in dramatically different advice from an experienced immigration attorney. An Attorney’s Judgment and Experience There are really two parts to an immigration attorney’s expertise. One is knowledge about the laws, regulations, and rules of the immigration process. But the other part involves judgment of how those rules actually apply to individual circumstances and what they mean for an individual client. This is why an experienced immigration attorney is such a valuable resource during the immigration process. In addition to helping clients with rules, an experienced immigration attorney should provide explanations, advice, and planning based on his or her solid expertise in the immigration process. In conclusion, a short answer of “yes” or “no” without detailed information about an individual case and appropriate application of the laws may not serve an individual alien’s best interest. Since the stakes are high—the alien’s opportunity to stay and work in the United States—it may be in the alien’s best interest to consult an experienced immigration attorney for a second opinion or detailed analysis. --------------- At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation. Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074 In the moment of dynamics, our clients can always count on us. (02/27/2008) For more immigration news, please click here |
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