In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
1) QUESTION: I signed an I-864 Affidavit of Support when my wife became a Permanent Resident. She has since signed up for Obamacare. I was told that if she gets government assistance, the government can sue me. Should I be worried about this?
ANSWER: You do not have to worry. The I-864 only allows the government to seek repayment for means-tested public benefits that the sponsored permanent resident receives. Means-tested public benefits are those public benefits that are available based upon the applicant’s financial means. Some examples are food stamps, supplemental security income (SSI), Medicaid, Temporary Assistance for Needy Families (TANF), and State Child Health Insurance Program (CHIP). Emergency medical assistance, such as emergency Medicaid, is not considered a means-tested public benefit. Most pay-in insurance programs, including Obamacare, or the Affordable Care Act (ACA), are not considered means-tested public benefits. Lawful Permanent Residents (LPRs, or green card holders) are eligible to enroll in the ACA program.
2) QUESTION: I have been working in the US in H-1B status for three years. Shortly after I came to the U.S. my company transferred me to a different location, but never filed an amendment to my H-1B. Last year my company filed an extension of my H-1B petition, but due to the fact that I had been working in a different location, my Extension of Status was denied. My company has filed an appeal of the denial to the Administrative Appeals Office, but I am not hopeful about the chances of the denial being overturned. My company has filed an I-140 petition for me, but I have not filed an I-485 application for adjustment of status as a visa is not yet available for my petition. What are my options?
ANSWER: Your biggest concern is that you have begun to accrue unlawful presence [INA Section 212(a) (9)(B)] as of the date that your extension of status was denied. The fact that the denial has been appealed does not stop unlawful presence from accruing. If you remain in the U.S. more than 180 days from the date of your denial you will be limiting your options.
However, if you leave the U.S. before then, you can have your company file a new H-1B petition for you and you can apply for a new H-1B visa. Your past violation should not bar you from being able to receive a new H-1B visa, since there was no fraud, but only an oversight on the part of your company. For an additional premium processing fee of $1,225 in addition to the standard filing fee, your company can premium process the petition, so that it will only take a few weeks to have the new petition approved.
Of course this is all based on the small amount of information provided. So you should consult with an experienced immigration lawyer as soon as possible.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.