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(#74-02/16/98)

Unlikely to get a green card before my status expires...


My husband, a green card holder, filed a relative petition for me more than 4 years ago. My current status is H-1B, which is going to expire at the end of this year. Is there any way to remain in the US, if I cannot get a green card by then? Or, can I keep entering the US on the visa waiver program back to back?


Answer:

An H-1B alien who has spent six years in the United States under an H and/or L visas may not seek extension, change status, or be readmitted to the United States under an H or L visa unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

BEFORE YOUR H-1B STATUS EXPIRES

Option 1: You should look into getting employed by a Japanese-owned company and apply for a change of status to E-1 (treaty trader) or E-2 (treaty investor). Similar to H and L visas, an applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. An applicant can be a beneficiary of an immigrant visa petition filed on his or her behalf and still be issued the visa. Other nonimmigrant visas, such as student visas and visitor visas do not recognize this legal concept of "dual intent," thus as a general rule, are difficult to obtain in your situation.

Option 2: Currently the Immigration and Naturalization Service is giving green cards to spouse of green card holders who filed petitions in September 1993. If your "priority date" becomes current before your H-1B status
expires you might be able to apply for your green card in the US under a process called "adjustment of status."

AFTER YOUR H-1B STATUS EXPIRES

Option 1: On November 26, 1997, the President signed a new law that provides that beneficiaries of a relative petition filed with the INS by January 14, 1998 may still pay $1000 and apply for adjustment of status if they are in the US illegally. Keep in mind that if you remain in the US you will still be subject to deportation if you are caught. Also keep in mind that if you remain in the US in "unlawful status" for 180 days or more and depart the US prior to obtaining your green card you might have trouble getting your green card for 3 more years.

Option 2: If you decide to enter the US on visa waiver make sure you do not abuse the intent that it is for temporary visits. Multiple back-to-back trips for 90 days will result in problems. Also, if you enter the US on visa waiver and are trying to get your green card as a spouse of another green card holder you should not apply for your green card interview in the United States. Rather, set up your interview back in Japan. This will prevent the INS with accusing you of "misrepresentation" when you entered the US. (You told us it would be "temporary" and now you want a "permanent" green card. You misrepresented your intent at the airport.)

 

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