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Answering Your Frequently Asked Questions

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You have questions, we have your answers. Here are answers to 6 of your Frequently Asked Questions.

In this blog, we are answering 6 of your frequently asked questions in detail. Please remember that every case and every story is different and unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance on your immigration journey. For any further questions please visit our website or call our office for a free first time legal consultation. We thank you for your continued trust in our law office.

Q: Should I hire an attorney to file my green card application and go with me to the green card interview?

This will largely depend on the complexity of your individual case. For example, there are individuals that are eligible to adjust their status to permanent residence based on their marriage to a U.S. Citizen or based on a qualifying family relationship, but may be applying for permanent residence under special circumstances such as 245i or another special immigrant classification such as VAWA.

Still other individuals may be applying for their green card for a second time after being denied.

Individuals who are applying for their green card under one of these special immigrant classifications should absolutely seek the assistance of an immigration attorney to apply for permanent residence to avoid any mistakes in filing and to be well prepared for the green card interview. In these situations, any minor mistakes on the paperwork can result in major delays, or worse—require refiling the green card application altogether. In addition, for complex cases it is always important for an attorney to prepare the foreign national for the most vital part of the green card application which is the green card interview. An attorney’s presence at the green card interview is also important to ensure that the foreign national’s rights are not violated by the immigration officer.

Q: I came here on the Visa Waiver Program with a valid ESTA. Does the ESTA allow me to change my status in the United States? I want to change my status to a work visa and work as a chef in the United States.

No, you cannot change your status to any non-immigrant visa category if you entered the United States on the visa waiver program (vwp) even if you have an approved ESTA. You must return to your home country and apply for a non-immigrant visa at a U.S. Embassy or Consulate in your country of residence. You may only change your status to another non-immigrant visa category if you first enter the U.S. with a valid U.S. Visa, and later decide to change your status to another non-immigrant visa classification before your duration of stay has expired. For example, if the U.S. Embassy or Consulate issues you a B-2 tourist visitor visa and you enter the United States on that visa, you may change your status to another non-immigrant visa classification before your duration of stay expires according to your I-94.

Per the DHS website: “An approved ESTA is not a visa. It does not meet the legal or regulatory requirements to serve in lieu of a U.S. visa when a visa is required under U.S. law. Individuals who possess a valid visa will still be able to travel to the United States on that visa for the purpose for which it was issued. Individuals traveling on valid visas are not required to apply for ESTA.”

Q: I am a Filipino national in the United States with a B-1/B-2 visa. I would like to change my status and apply for an E-2 visa. I would like to know if there is a specific amount which I have to invest to open a business in the United States?

Although, there is no minimum investment amount required for the E-2 Treaty Trader Visa, the investment amount must be reasonable, to demonstrate that the business is not marginal and that it is the funds will be “at risk.” As a general rule the investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, for new businesses, an amount normally considered necessary to establish the business. Typically, anything less than $50,000 would not be sufficient to convince the consulate or immigration service that your funds are committed and “at risk.” Please contact our office for a consultation to determine what would be an appropriate investment amount for the business you would like to open.

Q: I came to the United States as an asylee. I am ready to apply for the I-485 application for permanent residence and the I-131 petition. Can I request a fee waiver for the I-485 and I-131 petition?

Yes, you may apply for a fee waiver request in connection with the I-485 based on your asylum status, because asylees are exempt from the public charge grounds of inadmissibility of the Immigration and Nationality Act (INA) section 212(a)(4). However, a fee waiver is not available for the I-131 petition unless you are applying for humanitarian parole. Please review the I-912 instructions carefully before proceeding.

Q: I am a Filipino national visiting Mexico on a tourist visa. I would like to apply for a B-2 visitor visa to visit my boyfriend in the United States. I completed the DS-160 and realized that I cannot apply for a tourist visa at the U.S. Embassy near me because I do not have Mexican residency. How can I apply for a B-2 visa while I am in Mexico?

You must return to your country of origin to apply for a B-2 visa at a U.S. Embassy or Consulate in your place of residence. Otherwise, you must contact a different U.S. Embassy or Consulate in Mexico to determine whether you may be able to apply for a visa there. Please be advised that in order to obtain a B-2 visa you must be prepared to demonstrate proof of strong ties to your home country, proof that you will be financially responsible for your expenses during your duration of stay in the United States, and strong proof that you will return to your country of origin, and that your intent is not to immigrate to the United States. This may be difficult if your intention is in fact to immigrate to the United States and not to visit. If that is the case you should speak with an immigration attorney to discuss your options to immigrate to the U.S. You should never apply for a non-immigrant visa type if your intention is to immigrate. Doing so could result in serious immigration violations.

Q: I am currently a green card holder living in the United States. I am married in India and my wife doesn’t live with me but my wife has not given me divorce. I have a girlfriend in US and I want to get married here. Can I file for permanent residency if we get married here? What documents are needed?

No, you may not proceed marry your girlfriend until your marriage to your first spouse in India has been legally terminated. At the time of your girlfriend’s green card interview, the immigration officer will request final divorce decrees for all previous marriages. If your girlfriend fails to provide the officer with proof that your prior marriage has been legally terminated according to the laws of the country in which you were married, your girlfriend’s green card application will be denied, and she will not receive her green card. It is also advised that you first become a U.S. Citizen and then petition for her green card, because the process of immigrating her will be much faster when you are a U.S. Citizen.

Thank you for joining this Q & A. Please send any questions you may have to nathalie@h1b.biz and we will answer them in our next Q & A.