In our AskVisalaw.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.
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QUESTION: Is it true that individuals with TPS, who entered the US without a visa, are now eligible to adjust status in the United States based on a marriage to a U.S. Citizen? I heard that there was a 9th circuit case in Washington. I live in California. Thank you for your time.
ANSWER: It is true. If someone lives in the 9th circuit, or the 6th Circuit, and previously was ineligible to apply for Adjustment of Status in the US as the spouse of a US citizen solely because they had entered the US without inspection and therefore had not been legally admitted or paroled into the US, they may now be eligible to apply for Adjustment of Status within the 9th or 6th circuit jurisdictions. This is because the 9th circuit, in the case Ramirez v. Brown, No. 14-35633, __ F.3d __ (9th Cir. 2017), has determined that someone in TPS status is in legal status and therefore has been legally inspected and admitted in that status. The 6th Circuit had previously had a similar ruling in Flores v. USCIS No. 12-3549, slip op. at 7 (6th Cir. June 4, 2013).
This ruling does not affect any other grounds of ineligibility or inadmissibility for applying for Adjustment of Status, so if the spouse of a US citizen had been inspected and legally admitted or paroled into the US the most recent time they entered the US, and they are ineligible to apply for adjustment of status for another reason, this case would not apply to make that person eligible for Adjustment of Status.
Also, it is important to understand that USCIS has not adopted these rulings, so unless they do, this rule only applies to individuals applying under the jurisdictions of the 6th or 9th circuit.
QUESTION: I am in H-1B status. I just found out that I am pregnant. Will I lose my status when I stop working to have my baby? Am I able to take time off from work after I give birth? If I lose my H-1B status, will I be able to get a green card through my child?
ANSWER: Foreign nationals in H-1B status are entitled to receive the same benefits from their employers as similarly situated US employees of the company. This includes maternity leave. You are allowed to go on maternity leave in H-1B status without losing your H-1B status. Talk to your company’s HR manager about what their maternity leave policy is. How much paid leave and/or unpaid leave you are allowed to take without jeopardizing your H-1B status will depend upon your eligibility for maternity leave under the Family and Medical Leave Act (FMLA), your state labor laws, and your company’s establish policies.
You will not be able to apply to receive a green card through your child. At least not any time soon. A US citizen child must be at least 21 years old before their can file a petition for their parent to sponsor the parent for US permanent residence.
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.