F-1 Visa FAQs

Day 1 CPT F1 - Renewal

Authored on: Wed, 10/13/2021 - 10:39

Question

My wife is on Day-1 CPT and went for F1 renewal , without asking much question she got 214B denial. So there is an option to re-apply, do you think we should apply again and produce document which shows she got tie ups in home country ?

Answer

You can try. 214(b) denials are difficult to overcome and highly unpredictable.

F-1 OPT travel

Authored on: Wed, 10/13/2021 - 09:27

Question

I am currently working on a F-1 visa and started my OPT in June. My employer would be applying for my H1B in 2022. Is it ok for me to travel to India right now? Will I face any problems while returning back? Also, for traveling to India what legal docs or formalities are needed?

Documents required for F-1 OPT holders to travel to the United States of America during pandemic

Authored on: Tue, 09/21/2021 - 06:10

Question

I am on my OPT period (June 1st, 2021 - May 31st, 2022) and am working for a company in the USA. I plan to travel to India for my sister's wedding from December 18th, 2021, to December 28th, 2021. The following are my questions for travel in these COVID situations:

1. I wanted to know the details for entering the USA. What documents should I have while entering the USA?

2. Does the USA allow OPT holders to enter?

Answer

A1: You will need to contact your DSO for endorsement on your I-20 to travel, evidence that you have been working (like pay stubs), and a letter from your employer confirming that you will be returning to your ongoing employment.

A2: Yes.

F-1 OPT and travel during pandemic

Authored on: Tue, 09/21/2021 - 06:07

Question

I am on F1 OPT and in the U.S. My OPT started in Jan 2021. My wife is in India and just got her F-2 visa. We both are Indian and haven't been able to meet. Would you please tell us if she can travel to the U.S.? Most places say that the program needs to start on or after August 1st, but I am very confused, given that my OPT began in January.

 

Answer

OPT is considered an ongoing program. She can travel now, subject only to the Covid-19 related health directives. 

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…
 

 

Situation for F-1 and J-1 students to travel or travel back to the United States

Authored on: Mon, 06/14/2021 - 06:25

Question

What is the situation for F-1 and J-1 students to travel or travel back to the United States?

Answer

F-1 students who already have their visa stamped on the passport can travel back in July. Those who do not have a visa stamping will have to wait for either the consulates in India to open (currently processing only emergency visas, which could include imminent academic session), or try obtaining a student visa in a country other than India. J-1 students will need to apply for National Interest Exemption, which should be given, but only when the consulates open for business.

US Consulates in India have issued the following instructions current as of the date of this write up.  Note that this situation may change quite rapidly/

Visa holders with definite plans to travel who can demonstrate qualification for a National Interest Exception may contact the Embassy or Consulate that issued their visa to request a national interest exception prior to travel:

U.S. Embassy New Delhi:  

U.S. Consulate General Chennai: 

U.S. Consulate General Hyderabad: 

U.S. Consulate General Kolkata: KolkataNIE@state.gov

U.S. Consulate General Mumbai: 

The email must include the following information for all travelers seeking an exception, as it appears on the visa:

Last name:

First name:

Date of birth, in DDMMMYYY format (ie – 01JAN2021):

Gender (M/F):

Country of birth:

Country of citizenship:

Passport number:

Visa Number* and Category:

Issuing Post Name (upper left corner of visa):

Travel dates:

Travel purpose and national interest category, including a clear justification for receipt of a NIE:

*The visa number, also known as the visa foil number, is located on the lower right of the visa.

Each request will be carefully considered as our limited resources allow.  Emails in languages other than English may slow response time.  We aim to respond to each request within two weeks but cannot guarantee a decision date or the outcome of the decision. Errors in the submitted data may prevent approval in NIE requests.

Please note that national interest exceptions, when granted, are valid for a single entry within 30 days of approval.

 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-all-you-need-to-know-about-the-current-situation-for-f-1-and-j-1-visas/articleshow/83171279.cms

National Interest Exemption for Visas – For Students

Authored on: Fri, 06/04/2021 - 06:05

Question

Today I got NIE waiver approval from the US consulate. They sent the approval mail with a passport number. I have a valid USA visa. I am planning to travel back to the USA in a week. What doc's required to travel ? or NIE waiver is sufficient?

Answer

You have not told us what type of visa you possess. In addition to the NIE, you must meet all the usual requirements for your visa type.

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-all-you-need-to-know-about-the-current-situation-for-f-1-and-j-1-visas/articleshow/83171279.cms

F-1 to H-1B lottery - How to transfer and change jobs from employer A to employer B?

Authored on: Wed, 03/24/2021 - 08:21

Question

1. I am a F-1 student graduating in May 2021. An employer "X" wants to e-register me for the H1B lottery and I am hoping for a better offer from employer "Y". Suppose I got selected in the H1B lottery filed by "X". Can I start working for employer "Y"? What are my options to work for employer "Y"?

2. Can employer "Y" file my H1B petition even though I was registered in the lottery by "X"?

3. Can I ask "X" to not file an H1B petition after winning the lottery and use F1-opt as work authorization?

4. I am also applying for F1-OPT. Can I use my F1-opt to work till September for "Y" and then use H1B in October to work for "Y" while it was filed by employer "X"? I believe "X" would send an H1B petition with change of status.

 

Answer

Video URL

Will Duration of CPT Violate Status and Impact H-1B?

Authored on: Fri, 03/12/2021 - 10:05

Question

I am pursuing my PhD from a well established accredited university in the USA for over 5 years. My PhD is likely to get over by Feb/March 2021. My PhD has a provision of doing day 1 CPT and I have been on CPT since my first semester ( Fall 2015) to date. My CPT is related to my area of PhD. My DSO has been regularly, updating every semester and endorsing my I-20 with my CPT details.
My questions are as follows:
1. Am I violating my status by doing this CPT?
2. Will this CPT for such a prolonged period impact my chances for an H-1B visa?

Answer

Answer 1. In my opinion, you are not violating your status. The USCIS interpretation of CPT is flawed. In my opinion, CPT should be available as long as the course requires. That is true even if the CPT goes on for several years.

Answer 2. In the worst-case scenario, if the government continues in their illegal interpretation of the CPT rules, they can make you go outside the United States for H-1B visa stamping. I do not see how the consulate can deny a visa on the grounds of using CPT. You have done everything by the book.

Age Out/CSPA for children immigrating to the US

Authored on: Wed, 02/10/2021 - 07:57

Question

I am working for an S/W company, I have an 8 years Old Daughter who was born in India, I am having EB3 /priority data in July 2016, My question is, How can I ensure my child remain in the US after 21?

Answer

Watch the Video on this FAQ:

Age Out/CSPA for children immigrating to the US

 

Video Transcript

Most of these kids are turning to F-1 and the government is giving them F-1/Student visas to go to college, even if the parents are here and even if their names appear on the green card parent screen card. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Students aging out of H-4

Authored on: Wed, 07/08/2020 - 07:09

Question

1. My son is currently a student studying engineering at a 4 year public college in Illinois. I am working in the US on H1B, and my son is on H4. The issue is that he turns 21 next year before he would finish his final year in college, and since would age out of the H4 So what are the options he has left to continue his study Can he change to F1?<br>

2. What are the caveats to this? Can he do the adjustment of status in the US, or does he need to travel out of the country? I've heard that F1 visa processing takes a long time to process, and there is no determinate time - he has about 14 months for him to become 21 years as of now. When inquired the college said they are not processing the I-20s for Fall 2021 now, only for Spring 2021, and have asked him to wait, what are the consequences of this ?

Answer

Watch the Video on this FAQ: Students aging out of H-4

Video Transcript

1. He can change to F-1

2. You are likely to get the H-4 to F-1 conversion and he should be able to do it within the United States. You can check with them about I-20s. File as early as you can and that's the best you can do. He might be able to travel to Canada or Mexico to get his F-1 visa stamp in done. FAQ in detail...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Applying for Green Card while on Student (F-1) Visa

Authored on: Wed, 07/10/2019 - 08:16

Question

I am in F1 OPT and did not got selected in any of the H1B lottery(in all 3 chances). Current OPT ends on 25 Jan 2020. My company is asking if they can apply for Green card for me. I am working as a lead engineer and responsible for P&L of my department. Will you suggest me to go ahead with GC process without H1B?.

Answer

Watch the Video on this FAQ:

Applying for green card while on student (F-1) visa

Video Transcript

If you are India born then applying for a green card while as a student does not help you much because it's not going to get you a work authorisation nor is it going to get you a green card for another decade. So in theory this is available, but if you are India born maybe not such a good idea. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

The New Restriction on 12 Months of CPT OPT Combined – – Consequences of H-1B Denial on OPT

Authored on: Tue, 12/04/2018 - 03:18

Question

I am currently on F1 visa and working on CPT. My H1 petition was picked in the lottery this year and status changed to RFE 2 weeks ago. I wanted to know if August 9 unlawful presence rule applies in my case i.e; if I get a response for RFE after Feb 4 2019, that completes 180 days.

Answer

Watch the Video on this FAQ:

The new restriction on 12 months of CPT OPT combined – –

consequences of H-1B denial on OPT

Video Transcript

In my view you are still on OPT and to activate your H-1 you have to either refile for change of status or go outside the USA for visa stamping. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Starting Business While on Student Visa

Authored on: Mon, 11/26/2018 - 06:27

Question

I am from India, and I am currently doing my masters in the U.S. My goal is to build my startup as I m doing my masters. Therefore, before coming to the U.S, I have incorporated a C Corp in Delaware with me and my brother as the owners. I don't want to violate my F1 status, therefore, even though I have incorporated the C Corp, We are not actively doing any work since I am not sure working on my startup in University will violate my status. I have tried getting in touch with International student services but I have not gotten a clear response on how I can run my startup as an international student while being on F1.

Answer

Watch the Video on this FAQ: Starting business while on student visa

Video Transcript

Doing a business while you are still on a F-1 status is illegal unless you get OPT. If you get OPT, the government has set a time or two as long as you are working in your own field. So if you are a software developer or you have a degree in computer science and you start a company where your primary role is software development or something akin to it you are allowed to do that as long as you have your OPT. You cannot do that in STEM OPT extension, but you can do it for the one - year OPT.  More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Jobs that Qualify for an H-1B Visa

Authored on: Thu, 03/22/2018 - 09:52

Question

I am an international student and recently working for an organization. Please let me know what job title, position, salary, and other requirements I need to get for applying for working visa. Since my organization is really willing to help me and is ready to adjust with my position title and other things. Education: M.A Global Development and Peace, specialization - International Political Economy and Development

Answer

Watch the Video on this FAQ: Which jobs can qualify for an H-1B visa?

Video Transcript

In this scenario I can't say that your job requires the degree that you have. For instance, if you were a research assistant who basically worked on international political economy and development issues that would be an H-1B job. So it should be clear from the job and that you can't do this job without this kind of a degree.  More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Change of Status to Student F-1 While Green Card is in Process

Authored on: Thu, 03/15/2018 - 10:05

Question

My question is about switching from an H-1 to F-1 visa. My six years of H-1 expires in March 2018. I have received an offer for a Phd. at Stanford (starting Aug. 2018) that happens to be one of my dream universities. My employer applied for a PERM back in August 2017, it has not been approved yet. Does the filing of PERM interfere with getting an F-1 visa. I know you’ve answered this question in the past regarding an I-140 and I understand that my chances with just a PERM are slightly better ?

Answer

Watch the Video on this FAQ: Change of status to student F-1 while green card is in process

Video Transcript

Yes, obviously you can try. I think what happens is when you are going to a good school, chances are government will accommodate and they will allow you to go back on F-1 because it is definitely a promotion path a career progression for you. I can't predict if the government will be reasonable or not, but reasonableness would require that they allow you to convert to F-1. Under the Trump administration I do not know how things are going to work out, but as far as predicting your chances are concerned I think you certainly have a shot. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Can a Green Card be Started on F-1 Status?

Authored on: Thu, 07/27/2017 - 05:27

Question

I am currently on F1 in OPT status and working for Employer A, my Employer A filed for H1b this year. and I am currently waiting for my H1b approval Approval. Can my Employer start my green card process when I am in F1 status?

Answer

Watch Video on this FAQ: Can a green card be started on F-1 status?

Video Transcript

For people who are born in backed up countries where the priority dates are extremely backed up like India, China, Philippines, Mexico its dangerous to start a green card because F-1 status does not allow you to have immigrant intent whereas statuses like H-1, H-4, L-1, L-2, O-1 etc... allow you to have a dual intent. TN doesn't allow one to have a dual intent, so when you are in these kind of statuses where the dual intent is not permitted and you file a green card you run the risk of having trouble in getting any kinds of extensions, visa stamping or reentry into the U.S. But if you are born in a country like Saudi Arabia, Pakistan or Nepal or anywhere in Europe where these dates are not backed up then sometimes it is possible to get the whole green card wrapped in EB-1, EB-2 or EB-3 category within a year. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Changing from H-1 to F-1 and back to H-1

Authored on: Mon, 04/17/2017 - 07:45

Question

1. My H-1B is going to end in 2019. Is it legal to change my H-1B to F-1 after that?<br>
2. In case I get admission to a college, and finish my studies within 12-16 months, can I again start with a new H-1B and how many years will I get on that?

Answer

Watch the Video on this FAQ: Changing from H-1 to F-1 and back to H-1

Video Transcript

1. Yes.

2. In order for you to reset the H-1clock converting to F-1 and staying within the United States is not good enough. You have to be physically outside the United States for one year otherwise the clock does not get reset. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

F-1 Student Directly Filing for a Green Card

Authored on: Tue, 03/14/2017 - 05:21

Question

I am currently working as a research fellow on F-1 OPT and my employer is considering filing for EB-1. My question is, can the transition be done from F-1 OPT to EB-1 and in case my application does not go through can I come back to renew my F-1 status to continue a Ph.D. in the future?

Answer

There is nothing in law that stops an F-1 student from directly filing for a green card. But, exhibiting immigrant intent while on an F-1 visa can raise some issues that should be discussed and planned for with your lawyers.

STEM OPT Extension for Consulting or Staffing companies

Authored on: Tue, 05/31/2016 - 09:00

Question

Can I apply for STEM OPT, if I work for a E-Verified staffing agency (similar to Aerotek, Kelly services) on contract basis that is related to my STEM field of education at a client location ?. (I along with staffing agency will fill out I983 form) <br>

I read online that USCIS has regulated "Certain Types of Employment" for STEM OPT in this new rule. So am worried that working for a staffing company at a client company location is therefore invalid :/ ((If so, I think then all the staffing companies would suffer as well))<br>

I have attached hereby the snippet from Federal Register:<br>

""""""There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03)."""""
<br>
It would be really helpful if you could explain what the above paragraph means.

Answer

Watch Video: STEM OPT extension for consulting or staffing companies

Video Transcript: Basically what the government is saying is that if you have staffing arrangement or a consulting arrangement and you are not directly supervising the employee who is on OPT STEM extension on the site where they are working then you should not be filing for their STEM OPT extension. So far this is what we know of the USCIS comments. I have not heard anything different from USCIS so far. 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Changing Back to F-1 Student Status After Filing for Green Card

Authored on: Fri, 05/27/2016 - 04:24

Question

I was a student on F-1 (MS), and I got my H-1B two years ago. My company has started GC process and already got my I-140 approved. But I want to go back to school this fall (law school), which means I'll have to change my status back to F-1 again.

Answer

Watch Video: Changing back to F-1 student status after filing for green card


Video Transcript:
If you have exhibited immigrant intent, getting F-1 status should be very difficult. So it is correct that when you have exhibited an immigrant intent the government or the counsellor officers can take the position that you have basically taken yourself out of consideration for a non immigrant visa like a student visa. 

Theoretically at least your chances are made worse because of the green card. I don't think withdrawal of the I-140 necessary helps.

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form. 

 

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

Authored on: Wed, 12/09/2015 - 06:12

Question

1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br>

My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br>

2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B.
<br>
What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

Withdrawing one pending petition (H-4) when another is (F-1) approved

Authored on: Wed, 11/04/2015 - 04:31

Question

My H-4 to F-1 is approved on October 08 2015. My Spouse Employer filed H-4 extension for me which is currently in Process. We sent this H-4 withdraw letter and it has been reached USCIS (Vermont Service Center) on Oct 13th 2015. Could you please let us know approx when do USCIS withdraw this H-4 extension?. If by mistake USCIS approves this H-4 Extension, can we fight with USCIS to withdraw this H-4 extension?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/F0YZD8zWm88?t=72

FAQ Transcript:

Let's take an example of this, F-1 is approved, but H-4 extension is pending. Since you want to stay on F-1, you should write immediately to USCIS, put it in writing and make sure that you send it through something like Fed-ex or UPS or certified overnight mail, so that you can prove the delivery of the letter. That way once you have sent the letter of withdrawal out there is a very good argument that any subsequent approval of H-4 does not hurt your F-1, since you have already indicated an unambiguous intention and made a request to USCIS to revoke or withdraw an application which is currently pending but you don’t want to be acted upon.

The risk here is you got the F-1 already approved and don't want to be H-4 acted upon, because there is  something called  last action rule, which is really not a rule but merely a matter of common sense applied by the USCIS offer to the situation, that whatever status approved last would be your status. So you have F-1, H-4 going on same time, you got your F-1 approved. If your H-4 gets approved that means you are back on H-4. So at least  that is the conventional wisdom and there is some question about whether or not that is correct but nevertheless smart thing to do is if you already received  the approval that you want go ahead and revoke in writing what you don't want .  

J-2 or J-1 with 212(e) HRR converting to F-1 student

Authored on: Mon, 10/26/2015 - 04:37

Question

I want to pursue MS Degree from US and presently I am living in the US on J-2 visa. My wife is working as a Post doctoral Fellow here on J-1 visa. We both are subject to two years Home Residency Requirement.
My concern is that how can I change my visa status from J-2 to F-1. Do I need to get a waiver before applying -F1 visa?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/ZvUVIGTM-Kk?t=520

FAQ Transcript: 

Answer is yes. They can't convert within the United States, but they can go outside of USA and try to get F-1 stamped and come back. That does not  get rid of  two year residency visa. However, remember two year residency visa requirement only says this:  if you have J-1 or a J-2  which is subject to the 212 (e) HRR, you cannot convert  to H, L or Green Card, but you can  if you want to change to F-1 visa but not within the United States as far as I remember. It does not allow the change of status also. So you can always get a visa stamping done and you can do it without the waiver, F-1 does not require waiver. However if down the line you decide to convert to H-1, your J-1 holding spouse either must have received the waiver or a home residency a fulfillment of 2 year residence abroad to the home country.

H-4 EAD Expediting Possible?

Authored on: Mon, 05/11/2015 - 04:22

Question

My wife is eligible for H-4 EAD, I know there is no formal way for expediting the process but I've seen a clause in F-1 (OPT) EAD process called "financial loss" and if you've got a job and submit the offer letter while you're waiting for an EAD to get approved, they process your case faster and you get the EAD much sooner than expected. Does this rule apply for H4-EAD as well?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/y6RtaKhuoIY?t=864 

FAQ Transcript:

I do not know. But let me tell you this when you look at the expedite criteria for any government document they are basically the same. If you can show government error or economic necessity or emergency or some kind of humanitarian considerations - there is five or six criteria then apply. As general observation I think it should be possible to expedite H-4 EAD if you meet the requirements. Theoretically it is possible to expedite the H-4 EAD.

Sister's Green Card

Authored on: Fri, 05/01/2015 - 23:00

Question

I just got my citizenship and now wants to apply for my younger sister, who is alone in India. I lost my parents few years back so she is all alone but she is above 18. Is there any way I as a brother and only relationship here in United States apply for her Green card in such a manner that she can be here in United States as soon as possible.

Answer

Siblings Green Card is like  planting mango trees, in India we used to have saying that mango trees takes so  long to bring fruit that one generation plants the tree and the second generation eats the mangoes. It's kind of that for sibling cases, it takes 13 years for the Green Card to come through and there is no way we can expedite that Green Card. However  leaving the option of Green Card filing  you could look at the things like  sponsoring her for her student visa if she wants to study or if she is an professional  or intent to be professional soon she can come on H-1 or L-1 visa, like other people  do. f you have money you can gift her half a million or million dollar depending upon what kind of money you have  that you can invest in her. So Investment visa could be an option but  there is no way you can expedite sibling green Card.

Immigration Impact of Crimes, Misdemeanor Conviction and Petty Offense Exception

Authored on: Fri, 11/14/2014 - 11:40

Question

In 2008 while I was working in gas station I was caught selling alcohol to minor. I was in student visa at that time and was getting paid in cash. This was unauthorized work. I was not arrested but went to the court and the final verdict of case came to attempt to sell alcohol to minor which falls into misdemeanor C. Right now I am in H-1B and I have filed my green card through my employment. My Labor and I-140 is approved and waiting for my PD date to be current to apply I-485. So what are my chances to get I-485 approved having that case in my past? I have got mixed answers from the attorneys I have contacted so far. Some said I should be fine and some said if USCIS ask about my work authorization at that time then my petition will be denied due to violating my F-1 status. Please let me know what you think. Will USCIS go further to ask that since you are selling alcohol on F-1, then you must have violated immigration law by being employed without work authorization?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2538

 

FAQ Transcript

If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody  or some kind of public nuisance conviction, in  this  case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?

First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.

So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.

Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction. 

What is conviction under Immigration law?

A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK. 

Can I Travel Back On F-1 Visa If My Reinstatement Is Denied?

Authored on: Fri, 09/12/2014 - 01:44

Question

Do I have to get a new visa stamp for my F-1 or can I travel back using the same F-1 visa stamp if my reinstatement is denied? I fell out of status because I registered for less than a full course load.

Answer

In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry.

In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry. - See more at: http://www.immigration.com/comment/14631#comment-14631

How to Enter The USA to Start A Business And Then Continue

Authored on: Tue, 08/26/2014 - 03:23

Question

I am planning to start an IT company in USA which is registered in India. Currently I am planning to travel on B1/B2 visa for my company set up. Can I transfer my visa status from B1/B2 to L1 if required within USA? What are the possible chances of success? Kindly you please suggest me the best way.

Answer

There are several issues that should be examined before you can make an informed decision.

1.  B visa or ESTA does not allow you to “work:”

To enter the USA, a B-1 visa or ESTA (Visa Waiver Program) is a good option, but you need to remember, these visas do not allow you to actually engage in income generating business yourself.  There are several impediments to what you can do.  You are, of course, allowed to enter the USA, seek a business, negotiate and/or purchase the business.  You are also allowed to incorporate and/or start a new business, including, a US branch of your business in your home country.

Read about B (the same limitations exist for ESTA entries) visas: http://www.immigration.com/visa/b-visa/b-visa-overview

 

2.  Are you already a part of or own an established business in your home country?

(a)  Yes: Look at the following options:

                                                               i.      L-1 (Intra-company transferee – visas where you have or are starting a company related to your foreign company) http://www.immigration.com/visa/l-visa/l-visa-overview

                                                             ii.      E-1 and E-2 (Treaty trader and treaty investor visas – require a treaty between your home country and the USA.  India does not have any such treaties with the USA.  http://www.immigration.com/visa/e-visa/e-visa-overview

                                                            iii.      EB-5 (These are investment-based green cards requiring investment of $500,000 or $1 Million and creation/preservation of ten American jobs over two years) http://www.immigration.com/greencard/eb5-green-card/eb-5-investment-green-card

(b)  No: Look at E-1/E-2 and EB-5 visas (links are in the previous para).

3.  Should you convert from B visa to any other visa?

Generally speaking, that is a bad idea.  Watch this video:  http://youtu.be/es4SlhcXr9E

For more information related to B visas, you can watch videos from this play list: https://www.youtube.com/playlist?list=PL13184E6EA97A1593

4.  How do you start a business in the USA:

This matter should be addressed based upon the advice you receive from legal counsel in the State where you wish to start your business.  The incorporation of foreign business entities is regulated at the state level (as opposed to the federal or national level) in the United States. The application process will vary from state-to-state.  Here is a good resource page from SBA, Small Business Administration (SBA is a US Government agency) on the types of business entities you can form in the USA.  Generally speaking, you, as a B or ESTA visitor, should be able to form any of these entities:  http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/choose-your-business-stru

Reentry for F-1 Nonimmigrants Traveling Outside the United States

Authored on: Thu, 02/27/2014 - 05:20

Question

What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?

Answer

This section of the FAQ applies to continuing F-1 students who travel outside the United States for five months or less.

Students should consult their Designated School Official (DSO) prior to traveling. Your DSO generally works in the International Student Office. You must have a current SEVIS Form I-20 endorsed for travel and your DSO needs to be able to verify that your SEVIS record is accurate and up-to-date.

1. What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?

  • A Form I-20, endorsed for travel and signed by your DSO
  • You have been out of the United States for less than five months
  • A current passport valid for at least six months after the date of your reentry or, if you are from one of the countries listed below, a passport that is current through the date of entry
  • A valid, current visa or you traveled to contiguous country or adjacent island for less than thirty days
  • Financial information showing proof of necessary funds to cover tuition and living expenses

If you are from a visa exempt country, you do not need a visa to reenter the United States from the western hemisphere, but make sure that you present your I-20 to be admitted as an F-1 student and not a visitor.

2. What if my F-1 student visa has expired?

You can stay in the United States on an expired F-1 visa as long as you maintain your student status. However, if you are returning home or traveling to a country where automatic revalidation does not apply, you must have a valid visa to return to the United States.

Ensure that you have all the documentation you need for your visa application and allow sufficient time for processing a new visa. The documentation you may need for a new visa includes, but is not limited to the following:

  • A Form I-20, endorsed for travel and signed by your DSO (see your DSO before you travel)
  • Original evidence showing proof of necessary funds to cover tuition and living expenses
  • Evidence showing your intention to return to your home country upon program completion, including evidence of compelling social and economic ties to your home country
  • If you have applied for or had optional practical training (OPT) approved, bring a copy of your Form I-20 endorsed for OPT and your Employment Authorization Document (EAD), if you have one

The Department of State recommends that you apply for a visa in your home country. For more information about visa applications visit the Department of State (DoS) website at http://travel.state.gov/.

You can apply in a third country for a visa, but you will not be able to return to the United States until DoS issues your visa. In some cases, this could take several weeks if DoS requires a background check. If DoS denies your visa, you will not be able to return to the United States. Be sure to check the DoS website for specific information pertaining to each embassy or consulate.

 

If you have an expired visa and a terminated record, we strongly advise that you do not travel outside the United States until your SEVIS record shows that you are in active status. If you do travel, you may not be able to renew your visa or return to the United States.

3. As a continuing student, will I need to pay the I-901 SEVIS fee if I travel outside the United States?

No. See the I-901 FAQ for detailed information on the I-901 SEVIS fee.

4. I wish to travel to Canada, Mexico, or one of the islands (other than Cuba) adjacent to the United States. Can I return if my visa is expired?

Yes, in most cases. You can usually revalidate an expired visa automatically when returning from a visit of less than thirty days to Canada, Mexico, or one of the islands adjacent to the United States (other than Cuba) provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process is known as automatic visa revalidation.

However, if you meet any one of following criteria, you will not be able to automatically revalidate your visa.

  • You applied for a new visa and DoS has not yet issued it to you
  • You applied for a new visa and DoS denied the application
  • You have a terminated SEVIS record indicating that you are out of status
  • You have been out the United States for more than thirty days

5. Which islands are defined as “adjacent islands”?

The adjacent islands are:

  • Saint Pierre
  • Miquelon
  • Cuba
  • The Dominican Republic
  • Haiti
  • Bermuda
  • The Bahamas
  • Barbados
  • Jamaica
  • The Windward and Leeward Islands
  • Trinidad
  • Martinique
  • Other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea

( INA, Section 101(b)(5))

6. How do I know if I have a terminated record in SEVIS?

Your DSO can tell you your SEVIS record status and give you appropriate travel related advice.

7. I want to travel outside the United States, but my SEVIS record is in terminated status. Can I return if I travel?

If you need to travel on a terminated record, you must first visit your DSO. If your school has requested a data fix, the DSO will put your help desk ticket number on your Form I-20 and report your pending travel to SEVP.

There is no guarantee that Customs and Border Protection (CBP) will readmit you to the United States if you travel on a terminated record. In most cases, CBP inspectors will allow you to reenter the United States if you are otherwise admissible and your DSO has properly annotated your Form I-20. It is likely, however, that the CBP officer at the port of entry will send you to secondary inspection while they determine whether you are eligible to return to the United States.

8. Can I travel outside the United States if I have a Form I-485 adjustment of status application pending?

No, not without advance permission. If you depart the United States with a pending Form I-485, you have abandoned your application unless you receive permission in advance from USCIS to return to the United States. We call this Advance Parole. Additionally, CBP may also consider you ineligible to return to the United States as an F-1 student because your application to change status to that of a permanent resident is evidence of intent to immigrate, which is inconsistent with nonimmigrant student status.

9. Can I reestablish F-1 student status by obtaining a new initial Form I-20 and reentering the United States?

Yes. However, you will be considered an initial student for SEVIS purposes. You will have to pay the I-901 SEVIS fee again and you will lose any time that you have accrued toward qualification for training (OPT) or employment.

You must have the new Form I-20 showing that you are entering on a new SEVIS ID number.

You should be aware that the CBP inspecting officer will determine whether or not to admit you to the United States with the new Form I-20. If you did not comply with the terms of your status during a prior stay in the United States, the CBP officer may decide that you are not eligible to reenter.

10. Can I reenter during the 60-day period after finishing my program or OPT?

No. The 60-day “grace” period is only to prepare to leave the country.

11. Can I reenter if my request for OPT is pending?

Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address.

12. Can I reenter if I left while on OPT?

If USCIS has approved your OPT you will be expected to have your EAD in hand to re-enter the United States, in addition to your Form I-20, valid passport and visa, and a letter of employment if you have one. If you exceed the limits on unemployment while outside the United States, you will not be eligible to re-enter the United States in F-1 status.

13. Are there any other requirements for travel outside the United States?

The questions above outline the general requirements for reentry for F-1 students. However, because individual circumstances vary, consult your DSO, embassy, or legal advisor before traveling. Planning for your trip early ensures that you have enough time to get all of your travel documents in order.

If you are not returning to your home country, you should check the requirements of the country you are visiting. Some countries require a visa. You may also need a transit visa for countries where you are making a connecting flight. Be sure to check before you travel. Most countries have immigration websites that provide visa information. If you have additional questions, please contact SEVP atSEVP@ice.dhs.gov or call us at 703-603-3400.

For more information please visit this link: http://www.ice.gov/sevis/travel/faq_f2.htm



 


 


F-1 OPT Requirements

Authored on: Wed, 10/23/2013 - 05:33

Question

1. How do I apply for F-1 OPT?

2. How do I get a 17-month STEM extension of my post-completion OPT?

Answer

1. Once you receive a recommendation for post-completion OPT from your Designated School Official (DSO) to pursue OPT, you must apply for an employment authorization document (EAD) with USCIS within 30 days. Additionally, you may file up to 90 days prior to your program end-date and not later than 60 days after your program end date. 

2. If you have completed a qualifying Science, Technology, Engineering or Mathematics (STEM) degree, and you are currently in an approved post-completion OPT period based on a designated STEM degree, you may be eligible to apply for a 17-month STEM extension of your  post-completion OPT. For a STEM degree to qualify, it must appear on the STEM Designated Degree Program List. If you want to apply for a STEM extension, you must file for an extension of your EAD with USCIS before your current OPT work authorization expires. USCIS recommends that you file 90 days before the expiration of your OPT.   

For further information visit the USCIS page on F-1 OPT requirements

SEVIS Terminated

Authored on: Wed, 06/19/2013 - 04:12

Question

I am an Indian citizen, in USA on my F-1 via. I have completed my masters degree and my application for Employment Authorization was denied due to the fact that my SEVIS was terminated due to the complete negligence of the International Students office in my university. The denial notice says that I need to submit a form I-290B petition along with supporting documents and an affidavit. What documents should I attach and should I consider suing my International students office. I am not in a position(financially) to sue them right now because I was a student all this time.

Answer

Generally speaking, you will need to demonstrate that the termination was erroneous. Ask your DSO for a letter explaining that. In addition, you can add your own statement/affidavit explaining the circumstances. Your DSO should help with all this.

Form I-20 and Work Authorization

Authored on: Thu, 02/07/2013 - 01:21

Question

How will an unstamped Form I-20 affect work authorization?

Answer

A student should have no negative impact on off-campus employment if s/he has the USCIS-issued Employment Authorization Document and a Form I-20.

F-1 or F-2 Extension—Leaving Country Prior to Visa Expiration

Authored on: Fri, 01/04/2013 - 06:59

Question

I have two more years to complete a Ph.D. with a valid I-20, but my Visa expires in August 2013. I want to visit India in June-July 2013. If I come back in July, do I need to apply for F-1 visa (and F-2 visa for my family) extension? Would I have problem in reentry if I have one more month of valid F-1/F-2 visa?

Answer

You will need a new visa only if you return after August 2013. Check with your DSO to make sure you have all the appropriate requirements completed.

Two-year home residency requirement

Authored on: Mon, 01/23/2012 - 22:02

Question

Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Answer

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

F-1 Curricular Practical Training (CPT)

Authored on: Tue, 11/15/2011 - 02:45

Question

As part of our Curricular Practical Training (CPT), I completed my summer internship with a company on 2nd of the September. So the formal procedure for extending the work is to apply again for the new CPT but somehow my second CPT delayed and got approved on 28th of September. Between 3rd and 28th for around three weeks, company asked me to work and I did. At the time I was not aware of the consequences but now I am in a great trouble. What do I do?

Answer

You have two choices that I can see: apply for reinstatement or go outside USA and reapply for a visa.

Out of F-1 visa status

Authored on: Mon, 09/19/2011 - 05:01

Question

I just found out a couple of days back by my international advisor that I was out of status for two years now for taking classes in a community and transferring credits and it made me a part time student..He suggested I left the country after the semester and come back with the new I-20 and letter of recommendation he gives me. And I also I have been married to a US citizen for 2 months. Is it safe to go out of the country?

Answer

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

RN F-1 visa

Authored on: Tue, 09/06/2011 - 04:16

Question

I have just received my BSN and I'm currently awaiting certification from California. Will actively look for job once certification is approved. Have F-1 visa and just received OPT for a year. Can I qualify for "green card for nurses" after OPT period is over if already in country and having matriculated in the US? Any other recourse for permanency?

Answer

You will have several years of wait in the green card process.

I130/485 for wife

Authored on: Wed, 01/27/2010 - 03:25

Question

I will become a US citizen in Jan. 2010. My wife is an F-1 student but will graduate on 12/12/09. Is there any problems if I file I-130/485 for her be the end of her grace period(2/10/10)?

Answer

I do not see any problem if the 130/485 is filed during the 60 days following the F-1. In any case, she can and should apply for OPT.

MAVNI to F-1

Authored on: Fri, 01/22/2010 - 02:44

Question

I came US in f1 visa and i was maintaining my status till I was enlisted in US army through the mavni program and due to enlistment I way authorize by college to terminate my i-20 so that I can go for basic training. But I was discharge from the army(uncharacterized). Is it now possible to regain my f1 status.

Answer

You need to get back with your International Students Office and see what they recommend.

Travel overseas on F-1

Authored on: Thu, 11/05/2009 - 00:38

Question

I am an international student on F-1 from France, I just finish my semester and I am now transferring to a new school starting classes early October. Since I have almost a month off, I had thought once I get my new I-20, about going back home in France for a couple of weeks, but when I said that to my new school advisor, he suggested that I shouldn't travel overseas until the thanksgiving break comes and after classes start, however; I am not sure that this information is correct. I thought that once I have my new I-20, I could go home and come back without any problem. Should I go or not?

Answer

I do not know the details of your case or your SEVIS status. If your International Students Advisor is experienced in immigration law (most of them are), you should take their advice but ask them to tell you the reason.