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newacct

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Everything posted by newacct

  1. newacct

    H-4 Public Aid (job assistance)

    No, this type of assistance is not considered under proposed rules regarding public charge inadmissibility.
  2. newacct

    Suggestion needed AP or H1?

    1. If you have both an H1b visa and AP, then it's better to enter on H1b visa, which puts you in H1b status, rather than with AP, which puts you in no status. In case your I-485 is denied, you can stay if you have status, but will have to go if you don't. There is no downside to having status compared to not having status; if you are on H1b status you still have the choice to give up H1b status and work on EAD later if you want. 2. If you are paroled, you will not be in H1b status, but according to the Cronin memo you can continue your H1b employment authorization that you have before you left without needing an EAD. You can also use an EAD if you like.
  3. newacct

    Am I eligible to apply for I-130 ?

    Your spouse can file I-130 to petition you at any time, but you will not be able to actually get the immigrant visa until your 2-year home residency rule is satisfied or waived. (Also note that if you married before your spouse got their green card you may be able to immigrate as a derivative beneficiary without being petitioned.) You shouldn't have been able to get H1b status if you haven't satisfied or waived your 2-year home residency requirement. Also note that any time you spend in the US (or any other country besides your home country) will obviously not count towards the cumulative 2 years you need to be present in your home country.
  4. newacct

    FICA tax liability while transitioning from F1 to H1B

    This has nothing to do with brackets. You were a nonresident alien for all of 2018, because you didn't pass the Substantial Presence Test for 2018 (you were an "exempt individual" (days of presence exempt from the SPT) during your days in F1 status in 2018, because you have not been an exempt individual for some part of 5 previous calendar years; your days in H1b status are counted in the SPT, but they are not enough to pass the SPT for 2018). According to this, nonresident aliens in F1 status are exempt from FICA taxes when working on campus or on practical training. Nonresident aliens in H1b status are not exempt from FICA taxes.
  5. newacct

    FICA tax liability while transitioning from F1 to H1B

    Based on what you described, you shouldn't have been subject to FICA taxes during your time on F1 status in 2018. You were subject to FICA taxes during your time on H1b status, so there is nothing wrong with FICA being withheld during that period of time. The first thing you need to do is to ask your company for a refund of the FICA withheld during your time on F1, showing them the document that says nonresident aliens on F1 status are not subject to FICA. If your company refuses, you can ask IRS for a refund, by filing Forms 843 and 8316 (note: this is separate from your annual income tax filing). See https://www.irs.gov/individuals/international-taxpayers/social-security-tax-medicare-tax-and-self-employment However, anecdotal reports say that many people have waited for years and the IRS is still processing it and have still not issued the refund.
  6. newacct

    240 day rule for H4

    Both you and your son can stay in the US for as long as an Extension of Status application is pending, no matter how long it takes (even if years). The 240 days is just the extension of work authorization beyond the end of your I-94; beyond that you can still stay for as long as it is pending; you just cannot work. Your son on H4 cannot work anyway, so there is no issue of extension of work authorization. However, if you, the H1b principal, leaves the US, then your H4 dependents cannot stay in the US.
  7. newacct

    Medicaid and citizenship

    But the length of time his naturalization application has been pending is not abnormal. It is common for it to take more than a year now. And you haven't provided any good reasons why he needs to be naturalized faster.
  8. newacct

    Medicaid and citizenship

    I am not aware of any state that currently sues sponsors for reimbursement.
  9. newacct

    Medicaid and citizenship

    1. no, the use of Medicaid or any other benefits do not factor into eligibility for naturalization
  10. newacct

    Travel during AOS I-485 pending?

    Have you been granted Advance Parole? What status do you currently have?
  11. newacct

    Green Card and Extended Travel Abroad

    There is a proposed rule (not final) on the public charge ground of inadmissibility that would consider use of Medicaid if received after the effective date of the final rule. Green card holders are mostly not affected by this, as green card holders are not usually considered to be seeking admission even if they return from abroad. However, there are several cases in which a returning green card holder would be considered to be seeking admission, including if they spent at least 180 days abroad, or committed certain crimes (the proposed rule mentions this), in which case they could be denied entry for public charge if they've used Medicaid, or if they are very old or young, or have low income, or if any of the other factors considered by this rule applies. So a green card holder should be careful about spending more than 180 days abroad after this rule takes effect if any negative factors in this rule could apply to them.
  12. The bar to AOS for having been out of status only considers status violations before that I-485 is filed; being out of status after I-485 is filed does not make you ineligible for AOS. See USCIS Policy Manual Volume 7, Part B, Chapter 4, section G:
  13. On USCIS's AOS filing chart for Nov 2018, it uses Dates for Filing and for the F2A category the date is 1 Dec 2017. The OP's priority date is much before that and so can file I-485. However, the AOS can't actually be approved until the Final Action Date in the Department of State's visa bulletin passes the OP's priority date, which has not happened yet.
  14. newacct

    AP and i94

    No. He can stay in the US for as long as I-485 is pending regardless of whether he has status or not.
  15. newacct

    I-485 denied

    Do you have the denial notice which states the reason for the denial? What basis was he immigrating on? (i.e. what category? family-based or employment based? who was the petitioner? etc.) How did he enter the US? Was he ever out of status? The approval of the EAD has nothing to do with the approval of his I-485.
  16. 1. Yes 2. No. You don't even need to maintain your status now. Once you have properly filed I-485, you can stay in the US for as long as I-485 is pending even if you lose status in the meantime. Whether you have an EAD has nothing to do with it. 3. Hard to say
  17. Is your husband stationed abroad for at least 1 year? If so, yes, you qualify for naturalization under INA 319(b) without needing to have been a permanent resident for a certain length of time (i.e. you can apply now even after you just received your green card), and yes, you don't need to apply for Removal of Conditions if you are naturalized before your Removal of Conditions window begins.
  18. newacct

    Lawfully present definition under ACA

    1. If you look at the document you linked above from Covered California, as well as this page from Healthcare.gov, they both say that someone with a pending AOS is eligible. From looking at the regulations it seems more complicated. 45 CFR 155.305(a)(1) says that an exchange must determine someone who is "lawfully present" in the US for the whole period to be eligible. 45 CFR 155.20 defines "lawfully present" the same as in 45 CFR 152.2. 45 CFR 152.2 lists a bunch of categories of people that count as "lawfully present", including 45 CFR 152.2(4)(vii) which says "Aliens whose visa petitions have been approved and who have a pending application for adjustment of status". The problem with this is that it requires that the petition be approved, and your mother's I-130 petition, which was concurrently filed with I-485, is probably still pending, so it is not clear that she would be included in this provision. 2. No. You must leave the US and re-enter on Advance Parole to be "paroled". You will received a "paroled" stamp on your passport and an I-94 with class DA. Just having the Advance Parole doesn't make you paroled. 3. It should. According to the regulations cited above, in 45 CFR 152.2(4)(ii), it lists having an EAD in certain categories (including category (c)(9) for AOS-based EADs) in the definition of "lawfully present".
  19. newacct

    Kids I-94 expired 210 days ago

    Not true. One does not accrue "unlawful presence" for the purposes of the 3/10-year unlawful presence ban while one is under the age of 18. So if the OP's kids are under the age of 18.5, they would trigger no ban upon leaving the US, no matter how long many years they may have overstayed.
  20. newacct

    Child Passport

    Technically, he will be a citizen and has to enter on a US passport. But in practice, if he has a valid green card, he shouldn't have problems entering on it since the government doesn't know that he's a citizen. And even if the immigration officer suspect that he's a citizen, they are in no position to adjudicate his citizenship right there since it's a complicated issue involving things like whether the child is in your legal and physical custody. And finally, US citizens cannot be denied entry to the US no matter what, so even if they know he's a citizen, the end result would still be that they let him in.
  21. newacct

    Lost advance parole

    He can try to contact the USCIS office that issued his Advance Parole to see if they can re-issue it. If not, he would have to file I-131 to apply for Advance Parole from abroad, selecting the option "1.e. I am outside the United States, and I am applying for an Advance Parole Document."
  22. newacct

    Just Passing Through

    You might be referring to the exception where if neither of your parents were born in your country of birth, and neither of them had a residence in your country of birth, you could claim the country of either of your parents' nationality instead of your country of birth. That doesn't directly have to do with what nationality you have at birth. It has to do with whether your parents were born in or had a residence in your country of birth.
  23. I also want to mention that, technically, an L2 spouse can apply for an SSN even without an EAD. All you need is your marriage certificate and both your and the L1 spouse's I-94s.
  24. The date they put below the entry stamp is for your convenience only, and sometimes they forget to put a date there or put the wrong date there. It's the I-94 that is authoritative. It might take some time for it to show up on the I-94 website. If it doesn't show up after a while, they might have spelled your name or passport number wrong or something; you can contact the CBP for help getting your I-94.
  25. Your SSN stays with you for life, and you should enter it on the form when asked. It doesn't hurt to say yes to wanting them to issue you a card. If they don't issue you one you can just go to SSA to apply for a replacement card when you get your EAD.
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