Chang & Boos, Attorneys-at-Law Creating - Transparent Borders  



Immigration Law Monthly

January 1999

I am a speech language pathologist currently undergoing adjustment of status (from an H-1B to permanent resident). My husband and I have just received our EAD's and advance of parole.  From my understanding, the adjustment of status will be "held in abeyance" until certification requirements for certain health care workers (including speech therapists) have been determined.  I have 2 questions: (a) Must I wait for the certification requirements to be determined, and hence wait ad infinitum for my adjustment of status, or can I make an argument that my case is clearly an exception and that I easily meet certification requirements; and (b) Do I have to wait until I have the actual greencard in hand to work part-time?  I recently gave birth to a little U.S. citizen and I don't like the thought of having her raised in a daycare just because of immigration requiring me to work full-time.

There are no exceptions to the exclusion ground applicable to foreign health care workers. Since, there is no designated credentialing organization for speech language pathologists (at least for the purposes of his exclusion ground), your case will remain in abeyance until the situation changes. If you wanted to work part-time for now, there is nothing wrong with filing an amended petition for a part-time H-1B. However, since you already have an EAD as an adjustment applicant, you probably do not have to do anything. I believe that such an EAD is not limited to full-time employment.

However, if you are currently seeking permanent residence through employment-based immigration, you must intend to work full-time for your employer once you receive your green card. Working part-time now may suggest to the INS that you do not have a bona fide intention of working full-time once your green card is approved; they could refuse your adjustment application on this basis. However, as long as you can explain that your intention is only to work part-time temporarily (perhaps until you are given your green card), your conduct should not be inconsistent with your permanent residence case.

I am a Canadian Citizen working in the U.S. on a H-1B visa. My sister, who is a landed immigrant of Canada and holds a visa-exempt passport, wishes to come to the U.S. and stay with me for an extended period of time i.e. over a year. I am prepared to support her through this period of time. Is there any visa category that will permit her to do so? What are other possible options?

I must assume here that you mean your sister is visa-exempt because she has British Commonwealth citizenship and landed immigrant status and that she is not simply someone who qualifies under the Visa Waiver Pilot Program.

Generally, such aliens are given admission as B-2 visitors for six months. Before six months have elapsed, you can probably obtain an extension of her visitor status for an additional six months without too much trouble. However, this is not a long term solution, since she may not get a second extension.

I can't go into a discussion of every category that might apply here; your sister would need to schedule a formal consultation for that. However, she might try a student authorization such as an F-1. This would permit her to remain in the U.S. for the duration of her course of study.

However, both of these categories require her to maintain strong ties to her country of residence. For example, an unabandoned foreign residence abroad is a requirement of both the visitor and student categories.

I'm a Canadian citizen, and I have been living and working legally in the U.S. since April 1990.  I was issued my permanent resident status (green card) March 1996. Although I plan to apply for naturalization in 2001 after having maintained permanent residency for the required 5 years, I've been led to believe that in fact, I must apply for naturalization or risk losing my permanent residency status.  Is this true?

This is a popular myth. In reality, you can continue in lawful permanent resident status indefinitely. You can lose your permanent residence for several reasons, but failure to seek U.S. citizenship once you become eligible is not one of them.

Your Alien Registration Receipt Card (green card) does expire after ten years of issuance, but this simply means you have to obtain a new one at that time. It is like renewing your passport. It has nothing to do with you losing your permanent residence status.

How will the new HR41 bill, if adopted in its current form, affect adjustment of status applications in process on Oct 1, 1999?

This bill, proposed on January 6, 1999 and referred to as the Mass Immigration Reduction Act, seeks to impose a five year moratorium on legal immigration, except for refugees, priority workers, and the spouses and children of U.S. citizens. Assuming that the bill actually passes, it would probably not affect pending adjustment applicants, since the bill only prevents the Attorney General from approving petitions for permanent residence in categories subject to the moratorium during the applicable period. However, my personal guess is that such an onerous anti-immigrant bill will not pass.




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