IMMIGRATION LAW MONTHLY

June/July/August 2006

Written by Henry J. Chang

I'm a United States Citizen and my husband is a U.S. permanent resident; we are both residing in Canada. He previously obtained a reentry permit in order to retain his permanent residence status, in case we decided to move back. Unfortunately, this will expire in March. My husband has now been offered a position in the Buffalo, NY area. Can he change his status to Alien Commuter? If so, can we do this at the border? We plan to eventually relocate to Buffalo but need extra time beyond March to make the move.

If he has a reentry permit, his permanent residence status is preserved even though he may be residing in Canada at the moment, as long as he reestablishes his residence in the U.S. before the reentry permit expires. However, he can seek commuter alien status now in order to maintain his permanent residence status after his reentry permit expires.

Unfortunately, United States Citizenship & Immigration Services ("USCBP") no longer accepts commuter alien applications at the port of entry. You must file a Form I-90 (Application to Replace Permanent Residence Card) application with United States Citizenship and Immigration Services ("USCIS").

I previously applied for a green card. The process was done properly but after a month I received a letter from INS saying that my application was rejected because I had not provided a court disposition letter for my shoplifting case. How can I provide them with a court disposition letter as I was never involved in a shoplifting case nor was I ever arrested. It was clearly a mistake of the immigration officer so I hired an attorney to reopen the case. It has now been 3 months since I filed to reopen my case and I haven't heard anything from them. What do I do?

I cannot comment on whether the petition was filed properly with USCIS (it is no longer called INS), since you did not provide any information on this. My comments will be limited to the alleged criminal offense.

When USCIS does a background check, they will get a "hit" on the system if you have ever been arrested, even if this did not result in a conviction. This requires them to follow up and obtain clarification even if the arrest or conviction does not result in inadmissibility. However, assuming that USCIS actually did confuse you with someone else and that you have never even been arrested or convicted of anything, you need to prove this.

The rejection notice should have provided some details regarding the State or city in which this alleged conviction occurred. Using this information, you should ask the relevant court office to confirm that there are no records relating to you. This should support your position that USCIS' information is wrong. You should also try obtaining an FBI Police Certificate, which should give you information regarding the alleged offense (if there is one) or provide additional evidence to support your position that you have no criminal offenses.

Once you receive a rejection, you can either file a motion to reopen or file a new petition and include documentation confirming that there is no shoplifting offense. I would have chosen to file a new petition since motion to reopen generally takes longer and precludes you from filing a new petition while it is pending. However, there may have been strategic reasons for filing a motion to reopen instead, which have not been disclosed to me.

I still do not know why they sent a rejection letter instead of a request for evidence requesting this document. However, it is entirely possible that you did not respond to them within the time permitted at they had no choice but to reject your case.

Can an applicant travel to the United States on an H-1B while his Form I-130 application (filed by his brother) is pending?

Yes, of course. The H-1B is one of the few nonimmigrant classifications that recognize dual intent. So you can have a permanent residence petition pending and continue to be eligible for H-1B status.

My conditional permanent residence is expiring in October. My wife and I filed for divorce and the decision will be final five days after the expiration of my conditional permanent resident status. I will be getting married to a lawful permanent resident after my divorce and I don't want to go back to Pakistan. I would like to know what I should do in this situation.

Since your divorce is almost finalized, you clearly are in no position to file a joint petition to remove your conditions, even if your wife were agreeable to doing so. However, you can apply for a waiver of the joint petition requirement. According to 8 CFR 216.5(a)(1), an applicant seeking such a waiver must demonstrate that he was not at fault in meeting the joint petition requirements and that:

Deportation or removal from the United States would result in extreme hardship;

The marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or

The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent.

If you manage to obtain a waiver of the joint petition requirement, you will be permitted to keep your lawful permanent residence and will not have to worry about going back to Pakistan. If you are unable to obtain such a waiver, you will have a problem because you will not be immediately eligible for permanent residence your second permanent resident wife.

I am a Canadian citizen working in H-1B status. My labor certification and Form I-140 have already been approved. My priority date is June 03; can I change employers with out losing my priority date?

Unfortunately, you are not yet entitled to portability.

According to INA §204(j), which arose from the American Competitiveness in the Twenty-first Century Act of 2000 ("AC21"), if the beneficiary's Form I-485 (Adjustment of Status) application has been pending 180 days or longer, the Form I-140 petition and labor certification remain valid for any job to which he or she may change, provided that it is in the "same or similar occupational classification" as the job described in the certification. But your situation appears to be different.

Although your labor certification and Form I-140 have been approved, there is no mention of you ever filing a Form I-485 application. I suspect this is because you are an employment-based third preference beneficiary and no visa numbers are available right now; you are not entitled to file Form I-485 unless a visa number is currently available to you. If your Form I-485 has not been filed and pending for at least 180 days, there is no portability.

The only good news is that, as a result of AC21, an H-1B worker can now obtain extensions beyond the six-year cap if if a labor certification application, employment-based visa petition, or application for adjustment of status to permanent residence has been pending for at least 365 days. He is then entitled to H-1B extensions in one-year increments until a final decision is made on the pending application or petition.

You did not mention the year of your priority date but assuming that your labor certification has been pending for at least 365 days by the time you need to file your H-1B extension, you will be permitted to continue extending your status even if you have reached the normal six-year cap for H-1B workers.

I am a foreign-trained physical therapist interested to work in the United States but I have hepatitis B. Is there any possibility that the United States Embassy will deny my H1-B visa application because of my hepatitis B?

INA §212(a)(1)(A)(i) refers to an excludable disease as "communicable disease of public health significance." The regulations of the Department of Health and Human Services define this term at 42 CFR §34.2(b). According to 42 CFR §34.2(b), the term includes the following:

Chancroid;

Gonorrhea;

Granuloma inguinale;

Human immunodeficiency virus ("HIV") infection;

Leprosy, infectious;

Lymphogranuloma venereum;

Syphilis, infectious stage; and

Tuberculosis, active.

As hepatitis B is not included within the definition of "communicable disease of public health significance," it should not be considered a ground of inadmissibility.