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 am in the US on a tourist visa for six months but my little boy, who was born in UK, was admitted on the visa waiver for three months. He is about to expire and I was wondering if I can ask to extend his stay here so that he can be here for a dentist appointment. If not, if he stays, could he be denied entry into the US in the future on the visa waiver?
ANSWER: Unfortunately, someone who enters the US on the Visa Waiver Program (VWP), which is also referred to as the ESTA program, is not able to extend their status in the US or to change to another status (there are very limited exceptions to this rule). For this reason, where the person will potentially need to stay in the US more than three months, they should obtain a visitor visa (B-1 or B-2) from the US consulate and come to the US on that, rather than coming on the Visa Waiver Program. Someone who comes to the US on the Visa Waiver Program, but needs additional time in the US, can try leaving the US (but not to Canada, Mexico or an adjacent island) and reapplying for reentry to the US for another three months. Someone who overstays the three months on the Visa Waiver Program will no longer be eligible to enter the US on the Visa Waiver Program in the future. They would need to apply for a visitor visa in order to be able to come to the US as a visitor in the future.
2) QUESTION: After receiving my green card through my employer, how long do I have to stay with my employer before I can look for a new job? Will my leaving affect my chances of getting citizenship?
ANSWER: There is no set amount of time that someone must stay with their employer after receiving their green card. You must have had the intention to work for your employer in the sponsored position. Your employer must have had the intention to employ you in the sponsored position. If you do not work for your employer at all, or only work for a short period of time, this could cause USCIS to question whether you actually intended to work for the employer. Therefore it is recommended that you work for the employer for at least a while. Some attorneys recommend that you work for the employer for at least 3 months, while some attorneys recommend that you work for the employer for at least 6 months. However, there is no set amount.
Normally this question will not come up until the employee applies for citizenship. USCIS can look to see if you worked for the employer in order to determine whether you committed fraud in your green card application; however, as long as you worked for the employer for some period and can give a reasonable explanation for leaving the position, the fact that you did not stay with the employer long should not be a bar to receiving citizenship.
You should also keep in mind that, in certain circumstances, the green card application is portable to a new employer. Therefore, when the application is portable, you can start working for the new employer as your new petitioner even before the green card application is approved. However, before you move to a new employer under the portability regulations, I would recommend that you consult with an immigration lawyer to ensure that your application is truly portable.
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.