Common immigration misconceptions - Immigration Corner

Many people have misconceptions or misunderstandings about immigration law, based on information from friends, relatives, consultants, or other "advisers." These advisers often rely, too, on rumors and hearsay, and might not even be aware of the ever-changing immigration laws.

As a result, some people do not apply for immigration benefits to which they may be entitled, and delay their legalization process. Other people apply for benefits to which they are not entitled, and wait for immigration benefits that will never come. They waste time, money, and effort for nothing.

I hope this column will clarify some of the more common misconceptions, so that people will no longer commit mistakes that may jeopardize or delay their entitlement to certain immigration benefits.

Here are some of the more common misconceptions:

1. Only US Citizens can petition family members.-- FALSE! Green card holders can also petition certain family members, such as their spouse, and unmarried children, both minor (below 21) or adult (over 21).

2. It is faster for US Citizen parents from the Philippines to petition adult single children than it is for green card holder parents - FALSE! It takes longer for single adult (over 21) children of American citizens to obtain green cards than the single adult children of green card holders, for people born in the Philippines. Therefore, if you are a green card parent and have a single adult child under petition, it would be best to call your attorney to check the current priority dates in these categories before you become a citizen.

3. The only way to get a green card is through a family petition.-- FALSE! Employers can also petition people for green cards through the process called Labor Certification. This green card takes approximately 3 1/2 years to process (compared to 5 to 20 years for most family petitions). Also, the spouse and minor children of the sponsored employee can get green cards at the same time. So, it's a green card for the entire family!

4. The US Embassy and INS evaluate a person's age and marital status only at the time the petition is filed, but not at the time the person is interviewed for their visa.-- FALSE! A person's status at the time of their visa (or adjustment) interview is critical in connection with his eligibility for a visa, and is definitely taken into consideration by the INS and Embassy:

(a) If a person was single at the time the petition was filed, but got married before the interview, that person is considered married and will be processed as married. -- If they were petitioned by an immigrant parent, the petition becomes void, because only US citizens can petition married children.

-- If a person was petitioned by their US citizen parent, the personís petition is automatically reclassified from unmarried (F-1) to the category of married children (F-3), where they keep the same priority date, but there is a little longer wait for a green card. However, the newly-acquired spouse could then be included for a visa under that same petition.

(b) If a person was a minor child (under 21) at the time the petition was filed, but turned 21 years old before the INS or Consular interview, he is considered an adult, and will be processed, and be subject to the priority dates for adults, which would mean a much longer waiting time.

(c) If the petitioner was alive at the time the petition was filed, but died before the interview, the petition may no longer be valid, because the petition dies with the petitioner. (Some exceptions to this rule may apply, however.)

5. It is legal to work in the US on a visitor's visa.-- FALSE! Visitor's visas are issued to allow people to visit the US for a limited time, for brief business purposes or vacation. Visitor's visas do not authorize employment in the US In order to work, a person needs a working visa, called an H-1B visa or some other type of work authorization. H-1B working visas are for college graduates who will work in a job related to their college degree. This visa takes approximately 3 to 4 months to process, and is valid for 3 years, with a 3-year extension, for a total of 6 years. The employee's spouse and minor children can also get visas to accompany the worker to the US, called H-4 visas.

Michael J. Gurfinkel has been an attorney for 20 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also a member of the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239.

(This is for informational purposes only, and reflects the firm's opinions and views on general issues. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)