I-601A Provisional Unlawful Presence Waiver

On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a final rule on provisional unlawful presence waivers. I-601A applications may be submitted to USCIS beginning March 4, 2013. This rule allows certain immediate relatives of U.S. citizens who are physically present in the United States to file provisional unlawful presence waivers prior to traveling abroad for consular processing of their immigrant visa applications.

  1. You may be eligible for a provisional unlawful presence waiver if:
  2. You are physically present in the United States;
  3. You are at least 17 years of age at the time of filing;
  4. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
  5. You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
  6. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
  1. You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
  2. You do not meet one or more of the requirements listed above;
  3. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
  4. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
  5. You have been ordered removed, excluded, or deported from the United States;
  6. You are subject to reinstatement of a prior removal order;
  7. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
  8. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
  9. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.

If you are in the United States and not in removal proceedings, an I-601A provisional waiver application can be made using Form I-601A.  After filing, you will be required to submit to biometrics collection which includes fingerprints and photographing.  After the i-601A is approved, you must depart the United States for an immigrant visa interview abroad.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

Posted on February 3, 2013 at 3:30 pm by Immigration Lawyer Peter Messersmith · Permalink · One Comment
In: I-601, I-601 Waiver, I-601A · Tagged with: , ,

DREAM Deferred Action Approvals Arriving

DREAM Act approvals are starting to trickle in.  Here is a copy of a recent application which was approved in approximately 5 weeks.  It is representative of a typical case.  A Mexican national entered the US without a visa fifteen years ago when he was a child.  He graduated from high school and was working in the US without authorization.  During his 15 years in the US, he had some minor court issues but nothing rising to the level of a serious misdemeanor.  Now, with his approved deferred action, he is safe from removal for at least two years and may be able to work legally in the United States.  If you are in a similar situation, we can help you.  Contact us at 312-751-9960, by email at info@messersmithlaw.com or visit our DREAM Act website for more information.

Posted on October 22, 2012 at 9:07 pm by Immigration Lawyer Peter Messersmith · Permalink · One Comment
In: DREAM Act · Tagged with: 

ApplyUSDreamAct.com Goes Live

The Messersmith Law Firm is now taking US Dream Act cases via our online website ApplyUSDreamAct.com.  If you meet the following eligibility requirements, we may be able to help you obtain deferred action and a two year work permit.

  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the US before reaching his/her 16th birthday;
  3. Has continuously resided in the US since June 15, 2007, up to the present time;
  4. Was physically present in the US. on June 15, 2012, and at the time of application to USCIS;
  5. Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
  6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the US Coast Guard or the US Armed Forces; and
  7. Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety.
Posted on August 26, 2012 at 2:04 pm by Immigration Lawyer Peter Messersmith · Permalink · One Comment
In: DREAM Act · Tagged with: 

Which Visa is Faster: K1 Visa or K3 Visa

I am planning on marrying a girl from the philippines. I was wondering if its quicker her to get her here in America if I marry her here or if I marry here there in the philippines? Also what form do I need to fill out?

In our experience the K1 visa is quicker by a couple of months. Some of our K1 visas have been approved and issued in as little as 3 months whereas K3 visas typically take 6-9 months. Getting married does not make your case any stronger or more likely to be approved so there’s no real benefit to sponsoring her as your wife.

Posted on August 25, 2012 at 1:54 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: K-1 Visa, K-3 Visa · Tagged with: ,

Change of Status from H2B Visa to H1B Visa

I am curently in USA on h2b viza. My I-94 expires on May 31, 2010.

I would like to change my statul for H1B visa. I have Batchelor degree in economics and master degree in accounting. beside my job for my h2b employeer i am doing an internship as an accountant in one company. the owner of this company would like to help me to change my staus if this is possible. i would like to know if it is posible to change my status in my case. Thak you. Looking forward to hear from you. Best regards.

Your current employer would be able to sponsor your change of status from H2B to H1B provided that he offers you a position that requires the use of your degree(s) such as an accountant, budget/credit analyst, financial analyst, economist or other financial specialist.

Posted on August 25, 2012 at 1:53 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: H-1B Visa, H-2B Visa · Tagged with: ,

I-485 Portability; EAD Employment

My current company has sponsored my H1B and applied for Green Card. I have received my EAD card, and I485 is submitted an year back. I485 is pending approval.

I am currently interviewing with other companies and anticipating an offer letter from another company. My new company is not willing to sponsor my H1B.

So, my question here is:

a. Can I sponsor my EAD myself ? What is the process to do it ?

b. What are the risks ?

c. Is it going to impact my Green Card processing ?

Please advise. Thanks in advance.

So long as meet the I485 portability requireemnts, you can move to a new employer and work with an EAD and USCIS will still process your green card. The portability rule applies where you have an approved I-140 and an I-485 pending for at least 180 days you may move to a new employer where the new job is “in the same or similar occupational classification as the job for which the certification or approval was initially made.” You new employer will have to make an AC21 filing notifying USCIS of your new employment..

Visa for a Part Time Housekeeper

I have a friend in the Philippines I would like to employ as a part time house keeper and part time work in my business is there a work visa that would allow her to work for me ? Thank You

An H2B visa may be possible for this type of work if you can establish that you have a seasonal, one time need or that the work is otherwise temporary in nature. If you are looking to bring your friend here for a longer duration, you may wish to offer him a different type of employment.

Posted on August 25, 2012 at 1:48 pm by Immigration Lawyer Peter Messersmith · Permalink · One Comment
In: H-2B Visa · Tagged with: 

Self Employment in OPT and H1B Status

I have a question, and i hope you can help me with it.

I am on F1 student visa. i am doing my masters in accounting also planing to sit for the CPA.

I know that after graduation you are allowed to take OPT and work for up to 12 months. while your are on the OPT you are allowed to be self emloyee, during that period i want to open my own CPA firm or atleast bookkeeping office and be self employed.

My question is if i open my own accounting office can i soponser my self with an H1 VISA?

A student on OPT may start a business and be self-employed. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program. The rules are quite different for an H1B visa. In order to obtain an H1B visa with your own firm, you must establish that you firm is separate from you and has a certain level of control over your actions. The best way to do this is to have a minority interest in your firm, i.e., get a partner or two.

Posted on August 25, 2012 at 1:48 pm by Immigration Lawyer Peter Messersmith · Permalink · One Comment
In: H-1B Visa, OPT · Tagged with: ,

J1 Visa Travel Issues When the Two Year Rule Applies

Hi sir,

I am from Saudi Arabia, i have J-1 Visa for me & J-2 for my family, (scanned copy attached) 

We are now in USA, my DS-2019 will expire on 08-31-2010 & our J Visa on 09-30-2010.

In our Visa written, INA SEC 212E – TOW YEAR RULE – APPLIES.

I understand that I cannot re-enter USA with another J Visa less than 2 years.

By next September 2010 I have admission to postgraduate program (3 years) in another dental school and I will get I-20.

I plane to go to my country (Saudi Arabia) on July 2010 for one month and I will be back before expiration date of J-1 visa

to finish my scholar program, then to start my new postgraduate program on Sep,

My question, should I apply to F-1 visa during my one month vacation on SA, and is one month enough for the Visa processing, because they are strict on program start date

Or is it ok to re-enter USA with my valid J-1 Visa which expire in 09-30-2010

Would you please guide me in this issue?

Thank you,

The two year rule only restricts you from obtaining an H visa, L visa, a green card or changing/extending your status in the US. It does not prevent you from obtaining a new J1 or F1 at the Embassy nor does It prevent you from entering the country in J1 status.

Posted on August 25, 2012 at 1:47 pm by Immigration Lawyer Peter Messersmith · Permalink · Leave a comment
In: J-1 Visa · Tagged with: 

From L1B Visa to H1B Visa

I am currently on L1B visa and it expires in September 2012. I want to apply for H1B visa.

My qualifications:

Bachlors Degree: Computer Science

IT experience: 4 years. (in consulting)

Current Location: Los Angeles(CA)


1. What are the chances of getting H1B visa?

2. How can your firm help me out in getting this visa?

3. Along with visa do you also provide job?

You are certainly qualified for an H1B visa. You will just need an employer to offer you a proper position and agree to sponsor you. We do assist in finding H1B sponsors as well as process the visa paperwork. There is a six year limit for people in H1B and L1 visa status so depending on how long you have been in L visa status, you may not be eligible for a full three year H1B. Please contact our office for more information.

Posted on August 25, 2012 at 1:47 pm by Immigration Lawyer Peter Messersmith · Permalink · 2 Comments
In: H-1B Visa, L-1A Visa, L-1B Visa · Tagged with: , ,