Q 1. Visa availability is based on country. Is that country of citizenship or country of birth?

Your country of birth is what determines your country of chargeability.

Q 2. My spouse was born in a different country than I was. Since the I-485 is based on my employment, does my spouse's country of birth help me?

Your spouse's country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse's country of birth.

Q 3. Both my wife and I were born in India and my priority date is not current. Our child was born in the UK and the priority date for that country is current? Can we use our child's country of birth eligibility?

No. You can use your spouse's country of birth for eligibility. However, your child's country of birth cannot be used.

Q 4. My employer has a labor certification pending on my behalf. Do quota backlogs affect the processing of the application?

No. The labor certification process is not affected by quota backlogs.

Q 5. My I-485 was already approved. However, my dependent's application is still pending and my priority date is no longer current. Is my dependent's application affected by the quota backlog since my application is approved?

Yes. Even through your case was approved, your dependent's application is still based on your priority date. The USCIS cannot approve the dependent's application until the priority date is current.

Q 6. If my I-485 application is still pending, and my priority date is no longer current, will USCIS still issue a fingerprint notice and/or RFE?

They may. USCIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive requests for evidence (RFE) or fingerprint appointments. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for fingerprinting.

Q 7. My fingerprints have already been taken. However, due to the quota backlog, they may expire. Will USCIS require me to redo my fingerprints?

Yes. Fingerprint results expire after 15 months. USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485. If the results have expired, they will send out a new fingerprint appointment notice.

Q 8. I am running out of H-1B time. What will happen to my H-1B status if the quota backlog holds up my Green Card application?

The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent's H-4 status may also be extended.

If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.

Q 9. Due to the quota backlogs, I want to review my options for immigrating through a US citizen. I have minor US citizen children. I have a US citizen spouse. Can they sponsor me for permanent residency?

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a US citizen child who is over 21 or a US citizen spouse, it is possible to immigrate through them. Consult a professional to determine your best option.

Q 10. Can a stepbrother of a citizen be considered for immigration under F-4 category?

Yes, under certain factual situations. For example, the relationship of one common parent has to be legally proved by the citizen.

Q 11. A father who petitioned for a son in the US expires soon after the petition was filed? What would be the status of the son?

When the petitioner dies, the petition becomes invalid. The son loses the chance of going to the USA under this petition, with certain limited exceptions. Effective March 12, 2002, INA was amended to provide for the acceptance of an affidavit of sponsor from another eligible sponsor if the original sponsor has died and the Attorney General has determined for humanitarian reasons that the original sponsor's classification petition should not be revoked.

Q 12. A mother goes to the US as an immigrant and files a petition for her son. Can she return to India before the approval of the petition filed or before her son gets the IV?

An IV means the immigrant makes America his/her permanent home. However, she can visit India on a temporary basis. It is advisable that she is present in the US, when she executed Form I-864 and the son is called for visa interview.

Q 13. Can a Green Card holder sponsor a divorced daughter with a child?

First, legal papers showing the divorce have to be shown. Thereafter, since the status of a divorced daughter can be equated to an unmarried status, immigration is possible under F-2A, if the daughter is below 21 years in age and under F-2B, if she is over 21. The child can get a derivative status. In other words, the child will be included with the mother and may qualify at the same time as her. There is more waiting time in F-2B category compared to F-2A.

Q 14. Can a petition which is expired, be revived?


Q 15. Does a refusal of an NIV affect prospects of obtaining an IV?

No. If the applicant is eligible under the relevant IV category and satisfies the US Consul, he can get an IV, if the applicant is otherwise eligible and not subject to exclusions.

Q 16. A person has a Green Card but does not stay in the US for 3 years and the Card expires. Should he hand over this card to the Consulate? Can he renew this?

A Green Card cannot be renewed. If a person stays away from the USA for a year or two at the most; he must have a Re-entry Permit for this period, obtained prior to his departure from the US. There is a procedure for handing over an expired Green Card to the Consulate. If the applicant wishes to have a Green Card again, he will have to apply a fresh, all over again. It is advisable to surrender the expired Green Card at the US Consulate by filing the relevant form. This would help the person concerned for his future needs of NIV or IV. See sample form I-407 on "Abandonment of Lawful Permanent Residence Status" appearing at the end of this questionnaire, page 137.

Q 17. A woman born in the US, lives in India with an Indian passport. Is she entitled to become a US citizen with a US passport? Will her children benefit?

Whoever is born in the US, is entitled to a birth certificate from the US and, hence, to a US passport while leaving the US. There could be a rare situation when a pregnant visitor delivers in the US, and the child's name is allowed to be entered in the mother's Indian passport. Nonetheless, if there is a US birth certificate , then the child is entitled to a US passport. If the child later wishes to claim full continued US citizenship, he/she should take up residence in the US between the ages of 18 and 21.

Q 18. What happens if one goes to the US on a visitor's visa and gets an offer of a job from an American employer for one's professional skills. Can the visitor be sponsored for an NIV such as H-1B or an IV?

In a situation like this, adjustment of status can be done in the US as long as the person has not violated the terms of his visitor visa, i.e. he has not worked illegally. In some cases, the applicant is sent back to his home country to get a fresh H-1 visa stamp or applicable IV, after the petition is filed by the prospective employer in America.

Each case is different and therefore it would be indeed helpful to take assistance from a professional immigration attorney in the USA.

Q 19. What is a normal waiting time for an applicant intending to get IV through his/her (a) citizen fiancee/fiancée (b) Green Card holding fiancee/fiancée?

If the petitioner in the US is a citizen, then the fiancee/fiancée in India may qualify for a K-1 visa, popularly known as the fiancee visa. With this, the applicant goes as a non-immigrant and within 90 days of reaching America, he or she has to get married to the petitioner and become an immigrant. The US Consul will, however, determine whether the concerned couple have in fact met before in India or the US and that their engagement was genuine.

In case the petitioner in the US is a Green Card holder, new NIV 'V' visa should be applied. See Chapter IV of GATEWAY TO AMERICA for details.

Q 20. Mrs. X is sponsored for an IV with her children below 21 at the time of the petition. At the time of interview, what would happen if the children become 21 years in age?

On August 6, 2002; the US President signed into law the "Child Status Protection Act", which allows aliens who have filed applications or petitions as children under INA to remain eligible as children after turning 21 years of age under a number of circumstances. Such 'age-off' cases were difficult earlier because applicants crossing 21 years would require them to change to F-2B category and go for longer wait. Now, the law has become friendly to child applicant less than 21 at the time of filing I-130 petition as the applicant is considered below 21 throughout the case.