F Visa FAQs

Tuesday, February 20, 2024 - 03:16

Blacklisted employer, F-1, H-1B, L-1 turned back at the airport

Question

My friend's F1 visa was recently revoked, and he was forced to return to India because his first employer had been placed on a blacklist. Also, he has applied for an OPT extension, which will provide him with an updated EAD, but we don't know how this would affect the process of getting the New EAD. He is working with a firm on a contract job now, but the end client which is a state gov company is considering him for Full time and can sponsor him for H1B. His old EAD expired on the 9th of January. He was traveling from India to the States on the 4th of January and was sent back. Questions: Is there any way that he could reinstate his Visa? Can the company sponsor H1B directly, if so what documents would the company need? If the H1B is picked, when can he travel back?

Answer

Video URL

Monday, February 5, 2024 - 02:16

The path for an entrepreneur from STEM OPT or H-1B

Question

I'm on F-1 OPT with a STEM MS Degree. If I put a startup, I will be performing my roles directly related to the degree.

1) To establish employer-employee relations would having a board of directors be sufficient during STEM OPT?

2) If I apply for EB2-NIW and get I-140 approval then can I immediately shift to other non-tech roles within my startup (CTO -> CEO) Or do I have to wait for 6 months before doing that, all the while when I-485 is pending?

3) If I shift immediately and use I-485 EAD instead of F-1 EAD, then can that lead to I-485 being rejected?

Should I wait at least 6 months before using I-485 EAD? Also, if the startup fails, does that discontinue my I-485 process having approved I-140?

 

Answer

Video URL

Thursday, January 25, 2024 - 07:20

H-1B lay off 60 days grace, options including B-1/B-2, approved I-140, Severance pay

Question

Many have asked this question before, but since rules and situations are always different, so here I go - I'm on H1B with an approved I-140.

A layoff recently impacted me - my last day on payroll is 10th Feb 2024. I will also receive a severance (lumpsum) within 75 days of Feb 10th. My questions are -

1) Given the market, it may take more than April 10th to finalize an offer and start the H1B transfer. What are the options ( if any ) to extend my stay beyond April 10th?

2) Many suggest applying for B1/B2 (I'm single, have no spouse to move to H4, etc), but I also hear if it's rejected then the time of my stay after April 10th will be an illegal presence, is that true?

3) Say I receive the severance lump sum on March 15th -- are the days from Feb 10th until March 15th counted on company payroll?

 

Answer

Video URL

Monday, November 20, 2023 - 06:11

Handling a temporary break on the H-1B visa: Transitioning from work to school and back

Question

I am working on an H-1B visa, and I want to leave my job and join full-time school for a couple of years. I want to start working again using my same H-1B visa when my studies are completed. So, how can I do that by staying within the U.S.?

 

Answer

Video URL

Tuesday, September 12, 2023 - 05:31

Do Canadian citizens need US visas? Canadian citizenship and F-1 visa

Question

I will be eligible for my Canadian citizenship in March 2024 and will be pursuing a master's in the US for the fall 2024 intake. Do I have to get the F1 student visa stamped on the Indian passport (as the Canadian passport will take some time to process)? If yes, do I need to go to India to get the F1 visa stamped, or can I get it from a US consulate in Canada?

Answer

Video URL

Monday, August 28, 2023 - 05:19

Green card processing, F-1 visa, and H-1B transition: Travel and work considerations

Question

I am on an F1 visa, and My spouse is on a Green Card. My Green Card through my spouse is under processing(I-130 under Review). I am graduating in March 2024. My questions are as follows:

At what stage in my Green Card Processing can I start traveling outside the USA?

Let us consider my GC is still under processing by the time I graduate and enter the job market:

A)Can my employer file an H1 while my Green Card is under processing?

B)Given my H1 got picked, will there be any issue for me to travel to India to get my H1 stamped?

 

Answer

Video URL

Thursday, July 20, 2023 - 00:02

Transfer an approved H-1B selected in the lottery to a new employer before October 1st

Question

I am in the F1 OPT period and I worked with Amazon from August 2022 to May 2023. My H1B got picked in the lottery this year, and got it approved in June 2023. Currently, I’m in my 90-day period of unemployment, and would possibly get a new job with another employer before it ends.

I don’t want to lose my H1B this year. Is there any way that I can transfer my approved H1B to the new employer?

 

Answer

Video URL

Wednesday, July 19, 2023 - 23:59

Legal options and factors for a future stay in the USA; not selected in H-1B lottery, Master's Degree, and passport renewal

Question

Currently, I am holding a STEM OPT from May 2022 until May 2024 (2 years).

My employer had applied for H1B this year and last year but had no luck.

Question and suggestion, please:

1) What are my legal options?

1.1 Apply for H1b next year in March and wait for the result, In case H1b is picked, how do I process it as my STEM opt expires in May 2024?

2) Enroll in university for the Master's degree?

2.1 I have a few classes remaining for my master's as I have finished my bachelor's degree in the USA and I take Day One CPT? Once a master's degree is complete, reapply for OPT and STEM OPT.

2.2 Should I continue to apply for H1B in the meantime?

3) If I apply for Master and Day One CPT, do I need to enroll for May–August 2024 (the summer class) or can I enroll for Fall 2024?

Note: STEM OPT Expires: May 15, 2024, or please suggest any other better option to stay in the USA.

Lastly, my passport expires in May 2024 as well. Is there any problem there?

- I'm thinking of starting the process for the renewal online. Should I do it now or wait for some time?

 

Answer

Video URL

Monday, May 8, 2023 - 00:21

Options for extending stay in the U.S. after layoff as an international student pursuing a Master's in IT

Question

I moved to the USA to pursue my Master's in IT. Unfortunately, I have recently been affected by mass layoffs in the tech industry, leaving me with only 30 days to extend my stay in the country to address household responsibilities and potentially secure a full-time job.

I have researched a few options for extending my stay and would greatly appreciate your guidance on these alternatives:

1) Apply for a B2 visa promptly: This option would allow me to remain in the country for an additional six months (until July or August) and continue my job search.

2) Enroll in a community college and obtain an I-20: Many community colleges do not require GRE or TOEFL scores, and their Fall semester usually begins in mid-August. This cost-effective choice would give me time until December, and I could transfer any earned credits to a university if needed.

3) If more time is required, I could join a university in the Spring semester and transfer my community college credits. However, I understand that applying for an MS or PhD program would necessitate a direct application to the university.

 

Answer

Video URL

Wednesday, March 15, 2023 - 00:50

Filing H-4 and H-1 simultaneously || Status of F-1 once H-4 is approved || Most efficient way to get EAD F-1 or H-4?

Question

My case in brief:

I am currently of F1 OPT (STEM), valid until 15th June 2023.

My company will be filing for H1B this March.

However, I am wondering if I should be filing for an H4 visa simultaneously.

Could you tell me how long it takes for an H4 visa and an h4 EAD to process?

If I file for an H4 visa in February, would I lose my f1 visa as soon as the h4 visa is approved?

Is there any new policy where I can get h4EAD sooner? And moved my F1 EAD to h4 EAD without any employment gap?

Should I wait for the h1b result before applying for an h4 visa?

What is the best scenario to switch from F1 OPT EAD to h4 EAD, without/minimum employment gap?

 

Answer

Video URL

Thursday, March 9, 2023 - 03:30

H-4 visa dependent children change of status to F-1 before 21

Question

My daughter was born in Canada and is on my H-1 visa as an H-4 dependent. She is currently studying 2nd year of her Bachelor's degree and will turn 21 in July/2024. I have a couple of questions, and they are
1. By what date/age she needs to change her status from H-4 to F-1?
2. Once on F-1 status, are there a minimum number of months/semesters/years she has to complete before being eligible for a CPT or OPT?
 

Answer

Video URL

Thursday, March 9, 2023 - 03:12

FAQ: Multiple companies applying for H-1B Cap registration - H-1B lottery

Question

I am an international student currently of F-1 visa status and will be graduating in May-23. I have the below questions:

1. Can multiple companies / employers apply for H1-B on my behalf in this upcoming H1-B cap pool?

2. If yes, is there a possibility that the employers might get to know about this?

3. Should my name in the passport and birth certificate match exactly? My birth certificate has an abbreviation my last name but my passport has my complete last name.

 

Answer

Video URL

Tuesday, February 28, 2023 - 20:16

H-1B layoff options - Going to home country and applying for jobs, going through the lottery again and documents required to apply for a new visa to explain missing pay stubs

Question

I am on an H-1B visa and recently got laid off.

If I don't find a job within the 60 days grace period:

1. Can I go back to my home country and keep applying for jobs and then come back once I get one? If yes, would I have to go through the lottery again?

2. If not, what are my options?

3. What additional documents do I need to provide while applying for my new visa to explain the missing pay stubs?

4. What does the company that let me go send to the USCIS as documentation for termination of contract?

 

Answer

Video URL

Wednesday, February 1, 2023 - 05:13

Visiting Canada on F-1 visa status

Question

Can I visit Canada with a valid F-1 Visa or do I need to take another visa ?

Answer

Video URL

Monday, April 11, 2022 - 06:39

Implications on working without authorization on student visa status

Question

What happens when a student works without authorization because they have no choice as they need the money to support their school or because they did it unintentionally?

Answer

Video URL

Tuesday, March 22, 2022 - 06:47

Is doing an unpaid U.S. externship/observership with F-2 visa unauthorized employment?

Question

I have completed USMLE Step 1 and Step 2 examinations and I am looking forward to applying for residency in the USA. Now I have got an externship opportunity. This rotation, according to the institute, is a voluntary experience that does not account for any medical education, graduate medical education, continuing medical education, or any training leading to licensure or board certification. During this given opportunity, I may receive a letter of recognition or a certificate of completion to fulfill an observational or shadowing requirement as needed. This rotation will allow externs to partake in taking patient history, physical, and procedures under direct supervision. There will be no direct patient care responsibilities as well as actual clinical practice.

I need to get US clinical experience and recommendations to apply for the residency.

My husband emailed the Office of International Services of his university and in the reply email, they mentioned the following points-

In the past, the federal government has defined employment as “any type of work performed for services provided in exchange for money, tuition, fees, books, supplies, room, food or any other benefit.” Many immigration lawyers and other international services offices have pointed to the “any other benefit” phrase as a prohibitive phrase. If a student were to receive the benefit of gaining experience in their field of study, the government could interpret this as “unauthorized employment”. This would be a serious violation of their immigration status.

Also according to the DSO of the University of Pittsburgh, a researcher/ lab technician even if does an unpaid job would not be considered a volunteer job.

Now my query is can I apply to the externships/ observership being on an F-2 visa and as this externship will benefit me getting recommendation and experience, would this be considered a violation of the law?

 

Answer

Video URL

Wednesday, October 13, 2021 - 07:50

Obtaining student or visitors visa while a green card is pending

Question

I am 19 years old and live with my parents in India.  I have an approved F3 family based immigrant petition which the National Visa Center has shown as “documentarily qualified” since April 2020 My priority date became current in January, 2021. I am waiting for my interview and  have received three  emails, each requesting I wait another 60 days for my next reply. This fall I enrolled in an associate degree program at  a community college in Maryland. I am studying online from India. Should I apply for an expedited F3 family based visa interview based on my educational needs if I want to go and study in the U.S.?

 

Answer

Video URL

 

Sunday, April 19, 2020 - 01:39

Student on OPT during Covid 19

Question

I graduated from UCLA in December 2019 and my OPT started on February 10th. I was supposed to start working on March 30 in Los Angeles and I was scheduled to travel back to US from India on 28th March. But due to the travel restrictions, my flight got cancelled and I am unable to travel back. When my employer found out about this, they pushed my start date ahead to end of April because I am not physically present in the US (they mentioned immigration laws don’t allow them to let someone start work overseas). I am now scheduled to travel at the end of April to be able to start work else I will run out of my 90 non working days leading to expiry of my visa.

Answer

Watch the Video on this FAQ: Student on OPT during Covid 19

Video Transcript:


Please check the websites ICE (SEVP) , USCIS and NAFSA for frequently asked questions related to your issue. Also if they have a foreign office or an office in your country you can work for them. 

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.

Thursday, March 28, 2019 - 06:09

CPT, OPT, Unlawful Presence

Question

As I have used my CPT for more than 1 year at the same master level and already completed OPT for the 1st master and currently working on CPT for almost 2 years. As per Aug 8th, 2018 Memorandum Am I violating the rules and will start counting Unlawful presence from FEB 5th 2019? Or Unlawful Presence should be count from 6 months from FEB 5th 2019 which is AUG 5th 2019? If this is true then what are my options here?

Answer

 

Video URL

 

 

Video Transcript

What I tell my clients is if you have already done it and you are okay with a three year bar potentiality with it again another potentiality for 212 (d) (3) waiver, which should be given in cases like this where they let you take a nonimmigrant visa even though you have a three year bar. 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.

 

 

Wednesday, February 27, 2019 - 04:07

University of Farmington, Michigan issues

Question

Recently, there was an ICE raid on students enrolled in University of Farmington, Michigan. I was temporarily enrolled for a year and half there (Feb 2017 - Nov 2018). I left USA on my own volition in May of 2018. The univ eventually terminated my SEVIS for non-payment in Nov 2018. I'm looking to apply for a tourist visa to USA. What potential issues might arise?

Answer

Listen to the Audio on this FAQ: University of Farmington, Michigan issues

Audio Transcript

Tourist visas itself is a visa that can be denied on so many grounds. It is difficult to predict. You can try. Just make sure you don't make any misrepresentations or active concealments of facts because that can lead to a permanent bar from entering the USA. 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

Tuesday, December 4, 2018 - 03:18

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

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.

Monday, November 26, 2018 - 06:27

Starting Business While on Student Visa

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.

Wednesday, July 4, 2018 - 02:21

Can A Green Card Be Filed For Me If I am On H-4 or L-2?

Question

I am currently on L-2 EAD (since Jun 2017) and work for Employer A. Can my current employer (Employer A) file for my Green Card ?

Answer

Watch the Video on this FAQ: Can a green card be filed for me if I am on H4 or L2 or F1 – – any status other than H-1B or L-1A?

Video Transcript

Yes. A green card can be filed while you are on any status. But while filing a green card for visas like F-1, F-2, J-1, J-2 can be complicated in some ways. Consult your lawyers.  Make sure you got every part covered. If you are born in countries like India or China or any other countries that are very backed up you will have to be very careful and make proper plans before you file for a green card directly from any of the other statuses but there is no law that says you cannot do that. 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.

Friday, May 27, 2016 - 04:24

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

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. 

 

Friday, November 14, 2014 - 11:40

Immigration Impact of Crimes, Misdemeanor Conviction and Petty Offense Exception

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

Video URL

 

Friday, October 31, 2014 - 02:33

Effect of Tourist Visa Denial on Student Visa

Question

Last year my tourist visa was denied because the officer thought I may not come back. Now I am going for student visa. What effect will the tourist denial have on my student visa application?

Answer

When the tourist visa denial is based upon a possible intent to immigrate (also known as INA Section 214(b) denial), it CAN be a problem for student visa.

Friday, September 12, 2014 - 01:44

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

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

Thursday, August 28, 2014 - 06:27

Is CPT an Acceptable Way of Working?

Question

My H-1 6 years are about to be over. No way to extend per lawyers. Can I move to CPT?

Answer

This is tricky. Usually CPT in the first semester is looked upon with suspicion by USCIS, unless: 1. yours is a graduate program; 2. the practical training is integral to the academic program; and 3. the employer has signed a co-operative agreement with the school.

This is tricky. Usually CPT in the first semester is looked upon with suspicion by USCIS, unless: 1. yours is a graduate program; 2. the practical training is integral to the academic program; and 3. the employer has signed a co-operative agreement with the school. - See more at: http://www.immigration.com/comment/14458#comment-14458

Friday, March 28, 2014 - 03:42

Can H-4/F-2, etc. non-work visa holders volunteer?

Question

Answer

This question is raised often and debated much amongst lawyers focusing their practice on employment-based immigration.  I have a call scheduled with a corporate client who is considering the legality of accepting a volunteer in their for-profit IT business.

I intend to inform them that under US immigration laws, if the work is performed for NO remuneration or other benefits, it would not violate the law. This issue has been explored in my blog entry here.

The problem, however, is that the Fair Labor Standards Act (Federal Law) does not permit for-profit employers to hire unpaid "interns" or "volunteers." See this link for FLSA standards according to US Department of Labor. There has been considerable litigation on this issue with employers on the losing side. So, please consult your employment law counsel before deciding on retaining the services of unpaid employees.

Wednesday, April 24, 2013 - 02:03

Grounds for Rejection for B and F Visa

Question

I have done my masters in USA and stayed there for 4 years and came back to India. My visa got over on Jan 2013, and I plan to pursue my MBA in USA and went for the visa interview twice it got rejected, and now my friends and family are suggesting me to apply for B-2 visa. What should I do?

Answer

The grounds for rejection for B and F visa are usually the "immigrant intent." If indeed that is the reason for your visa rejection, I do not see any difference between B and F applications.

Thursday, February 7, 2013 - 01:27

Handling of the Forms I-20 and DS-2019 by USCIS ELIS

Question

How does USCIS ELIS handle the Forms I-20 and DS-2019?

Answer

USCIS will accept a photocopy or scanned electronic version of a valid Form I-20 or DS-2019. If USCIS needs to review the original document, USCIS will ask you to provide the original document. USCIS will adjudicate the request electronically. Although the student will receive the approval notice (Form I-797) through the mail, the scanned copy of the Form I-20 will not be stamped and returned. As of Aug. 10, 2012, U.S. Customs and Border Protection (CBP) no longer provides admission stamps on Forms I-20 and DS-2019 for prospective and returning international students and scholars (traveling with F, M, and J visas) seeking admission to the United States. This change makes CBP processes consistent with USCIS’s recent change to stop stamping the Form I-20.

Thursday, February 7, 2013 - 01:25

Endorsed Form I-20

Question

What is an endorsed Form I-20?

Answer

The Form I-20 is endorsed when it is signed by a DSO, which allows the student to travel internationally or apply for employment authorization.

Thursday, February 7, 2013 - 01:24

Form I-20 and Applying for State or Federal Benefits

Question

How will an unstamped Form I-20 affect applying for state or federal benefits?

Answer

An unstamped Form I-20 should have no negative impact on applications for state or federal benefits, including driver’s licenses and state-issued identification cards. USCIS is actively communicating with Departments of Motor Vehicles (DMVs) to ensure their understanding that a Form I-20 does not require a stamp to be valid. International students and scholars who encounter issues with their state or federal benefit applications should contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 orSEVP@dhs.gov.

Thursday, February 7, 2013 - 01:21

Form I-20 and Work Authorization

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.

Thursday, February 7, 2013 - 01:17

Form I-20 valid without a stamp

Question

Is a Form I-20 valid without a stamp?

Answer

Yes. A stamp is not required on the Form I-20. Some state and federal agencies require foreign students to present a Form I-20 to identify the end date for the student’s program. However, a stamp is not required for this purpose.

Thursday, February 7, 2013 - 01:16

SEVIS Form I-20

Question

What is the SEVIS Form I-20?

Answer

Foreign exchange students will receive a Form I-20 from the DSO of the educational institution that accepted the student to study in the United States. That student must have a Form I-20 to apply for a visa, to enter the United States, and to apply for benefits.

Friday, February 1, 2013 - 11:48

I-20 Terminated

Question

1.I am in India and my I-20 has been terminated. What should I do to reenter in the United States?

2.Can I reenter the United States with an I-20 issued by a private university for a full time course and not by public university?

Answer

1. You will have to look for another school/visa.
2. As long as the school is authorized to issue I-20, you can apply for an F-1 visa. But make sure the school is not running into problems like Tri-Valley University did.

Friday, January 4, 2013 - 06:59

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

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.

Tuesday, November 13, 2012 - 01:28

H-1B petition and Quota

Question

I am in the US in F-1 status. I just received a job offer and the company is ready to sponsor my H-1B. When can we apply for my H-1B visa?

Answer

If the employer is exempt from the quota, they may apply at any time. If they are subject to the quota, they can file the H-1B petition to reach USCIS no earlier than April 1, 2013, with a requested start date of employment no earlier than October 1, 2013.

Thursday, May 10, 2012 - 05:28

F-2 to H-4 Visa

Question

I am on F-2 visa and it is valid up to 1 July 2012. My wife already filed H-1B in Apr 1st week.I am also planning to file my H-1B. So can I directly apply H-1B or fist apply H-4 and then after apply H-1B. How will it work?

Answer

If you are subject to H-1 quota, to get status within USA, you must maintain status till September 30. So, it appears you may have to apply for H-4 as well as H-1. Your lawyers can help you figure out the timing. Applying for H-4 now should not be an issue. But move quickly. You can file for H-4 online. Fairly easy.

Wednesday, March 16, 2011 - 04:17

COS from H-4 to F-1 visa

Question

I want to change my status from H4 to F1 and assuming that it would take approx 3-4 months. If I apply for COS today, I make a trip to France (I am French citizen) next week, can I re-enter US on my valid H4 visa? Or do I have to wait until F1 is approved, get it stamped in Paris and then re-enter US?

Answer

You do NOT need USCIS approval to apply for F-1 visa. Just apply for F-1 visa during your visit to France. Ask the school to explain the formalities to you. By the way, if you leave USA during a COS request, the COS is deemed abandoned.


 

Tuesday, December 7, 2010 - 02:32

H1-B to F-1

Question

I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?

Answer

If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

Tuesday, November 30, 2010 - 23:51

I got my BSN in the US

Question

I got my BSN in the US, passed NCLEX and got my employment authorization. I am currently on F1 visa, and working at a nursing home. I live in MN and it was extremely hard to get a job. How do I apply for a green card and what role will my employer play in this process? Is it going to cost my employer any money? And how long is it going to take to get a green card?

Answer

Your employer's role in this process is limited. You can pay for all expenses yourself. The length of the process is determined by the country of birth.

Thursday, July 8, 2010 - 09:13

My spouse working illegally

Question

I am a F-1 student. My spouse is on F-2 visa and he is not supposed to work. If he works and it is found out, I know he will be expelled. How about my responsibility? Will I be also accused and be expelled?

Answer

You are not responsible for your spouse's illegal employment. I don't see how the govt. can hold otherwise.

Friday, May 7, 2010 - 07:16

F-1 reinstatement

Question

I am a F-1 student from India. I was declared out of status by the college as I dropped below 12 credit hours this semester. I had a sprain in my ankle, but i did not visited any doctor for such small thing, and as a result i don't have any medical proof to back my story in reinstatement. I am confused weather this reason (ankle sprain) will be sufficient for my reinstatement application to be accepted, or weather i should try re-entry with a new I-20; and if re-entry is a better option, from which country? (my home country(India) or any other country such as Canada, or Mexico).

Answer

As far as I know, reinstatement requires exceptional circumstances. A sprain may not be it.

Tuesday, May 4, 2010 - 05:56

Lost old EAD card for another OPT application

Question

I am currently a PhD student and preparing for application for OPT. Previously in 2004 upon earning BS degree, I got OPT and worked for a summer. In preparation for a new OPT, I realized that I need to provide copy of front and back of the previous EAD card. However, I cannot find the card. I just found copy of I-765, I-94, and I-20 for the previous OPT.If I submit without copy of the previous EAD card, will I be likely to be denied for the new OPT?
Also, what is the safest way to deal with this situation.

Answer

First, discuss the possible solutions with your international students office. Second, call USCIS customer service and ask for solutions. Third, provide whatever you have with a full explanation to USCIS when filing the new OPT.

Tuesday, May 4, 2010 - 05:53

Student visa

Question

I have student visa and want to come to the US earlier than that 30 days allowed period of time.Probably one month earlier.Can I enter on visa waiver and before school starts re-enter the US by going to mexico or canada to activate the student visa? (which i was told i need to do).if i do so,do i need to buy one way or round trip ticket since i do not need to go nack to europe to re enter the US and how do i explain it to the immigration officer that i only have one way ticket? a while ago i learned i need to obtain change of classification and fill form I539 which takes months.is that so?

Answer

There are several issues here and the outcome is uncertain, so I would advise against it. Your idea of entering on visa waiver and then later "activating" the F-1 through reentry should work, but I am concerned about how CBP will view your entry without a return ticket. Of course, you must always tell the truth and the truth appears to favor you, but I have no clue how a CBP officer would view this entry on Visa Waiver.

Friday, March 19, 2010 - 04:44

F1 visa to business visa or H1/L1

Question

Which visa is easy to apply. Is it business visa or H-1 visa?

Answer

If you qualify, H and L visas are certainly more secure than an F visa.

Thursday, March 4, 2010 - 05:52

F1 and OPT Expired but 60 days not up

Question

I have a Bachelors degree and a Masters degree from the US. My EAD from my masters degree recently expired and the 60 days is almost up. I dont want to go back to school or go back to my home country. If i do find an employer willing to file for a green card based on EB2, will have to go back to school to maintain my status while the green card is in process or will my status change once the paper work is turned in?

Answer

This is a common misunderstanding. Starting a PERM-based green card does not give you the right to stay in USA.

Wednesday, February 24, 2010 - 07:15

Need information

Question

I entered USA on F1 visa with my married name. As i got divorced a week before flying to USA wasn't able to change the last name. Now i am graduating soon and wish to obtain certificate in my maiden name. So i got my last name changed in passport from Indian Consulate San Francisco. But in my new passport there is no visa. So what should i do? The consulate and my school says that whenever i go back home i need to get a new visa. So is that true? Will there be any problem in going back India for summer vacation and getting a visa again? Is it possible to get visa here?

Answer

Generally speaking, getting a new visa endorsement should not be a problem. You cannot get a visa within USA.

Friday, January 29, 2010 - 07:32

Status change from F1 to H1b

Question

I got F1 in Jan 2009. Got H1b approval in May 2009. H1b approval means just got I797B form. I preferred to join Fall 2009 semester in University and came in USA in Jul 2009, got I94 with F1 and continued to fulfill F1 obligations.Now I want to change my status from f1 to H1b, and its seems my employer needs to file a petition with form I-129, will that means it should be applied April 2010 and all the balloting process and I will be able to start work after 1st Oct 2010. Will my existing unused H1b approval be able to be used and to exempt cap and and all things required? And can I get I797

Answer

You are cap exempt and should be able to change status OR get H-1 visa stamping right away. No waiting till 1 Oct.

Wednesday, January 20, 2010 - 07:04

Visiting Canada on a student visa

Question

My boyfriend is here in the US on a student visa. He graduates at the end of the week. He has put in his application for OPT and it is pending. We had plans to travel to Canada to visit his family for the holidays but now are worried that he will not be able to get back into the US since the student visa expires and the OPT has not been issued yet. Do we have any other options?

Answer

Get together with the school and tell them the visit is only to Canada. Also contact CBP. Once OPT is approved, travel to Canada and back to USA for less than 30 days MAY be an option without a visa. This is referred to as "automatic visa revalidation." You can do a search for that term on http://travel.state.gov

Tuesday, January 19, 2010 - 04:28

F1 visa to H1-b

Question

I just completed my undergraduate degree and my F1 status does not expire till May 2010. My OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim OPT application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.

Answer

Since the H-1 quota is over, OPT is your best option as far as I can tell.

Friday, January 15, 2010 - 08:00

B-1/B-2 visa to F-2 visa

Question

I came to US by b1/b2 visa, now I want to change it to f2. My wife (we got married 4 months ago, when i came to the states) is studying here. We have a baby whom was born here 3 months ago. Now I can't go back to my mother land to get a visa, because my wife doesn't have a visa but just valid I-20 form. Do you think I should apply for a status change here or should we go to Canada to get visas? What is more safe for us?

Answer

There are several issues here that should require you consult with a lawyer. For instance, USCIS does not like it when people enter USA on a short-term visa and get married or try converting to a long term status (like F-2).

Friday, January 15, 2010 - 07:54

F1 student (wife of a GC holder) - pregnant

Question

I'm on F1 and got pregnant. Can I take a break for sometime and get back to studies? My husband is a GC holder..well we got married after he got GC. Now can he apply for a family based GC for me, I kind of know that it takes atleast 4 yrs for me to get GC...but just wanted to make sure that he can apply while I am on F1

Answer

For various reasons, I usually see no point in applying for a green card through a permanent resident spouse while you are on an F-1. About taking a break, the F status requires you to attend school full time unless there is a medical necessity. You need to discuss that with your international students advisor.

Friday, January 15, 2010 - 07:29

Time Frame for Green Card

Question

I am a college freshman student on an F-1 visa and am thinking about applying for green card, as I have also completed 2 years of HS in the US. Any idea how long the green card process may take and should I apply already for green card now in order to possibly get it by the time I graduate college?

Answer

The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.

Wednesday, November 4, 2009 - 06:36

Confused - B-1 to F-1 change

Question

I came to the US on a B1 visa got it changed to F1-->finsihed 4 years of undergrad moved on to 2 years of Masters(both in engineering). I am yet to apply for OPT. Is this going to affect my chances due to the entry method; also what will happen if I get a company that want to sponspor me. Would you advise me to go back home to rectify my visa situation. Because the B1 visa I entered the country with is expired, I haven't travelled out of the country. What would you suggest I proceed about this.I really would love to go back home to visit but scared the consulate will deny me.
Confused as ever.

Answer

You should be able to get your OPT and even an H-1 and a green card. But if ever you want to travel outside USA, make sure you discuss the facts of the case with a competent lawyer. You have to make sure you have a good chance of getting a visa to get back in to USA.

Tuesday, November 3, 2009 - 03:32

Student Visa

Question

I'm a H.S Senior student, I have studied all my school year in the U.S but Iam a citizen of Mexico, can I receive a student visa while in the U.S?

Answer

Not if you are in USA without status.

Tuesday, November 3, 2009 - 03:28

Travel during 90 days of OPT without Job

Question

My OPT started on September 16th, 2009 and I don't have job or job offer yet. But I need to travel outside the USA for 1 week. I talked to the International Adviser of my University and she told me its fine to travel no problem. I don't still feel safe. Can anybody answer whether I will be allowed to enter or not? I have other documents.

Answer

This is what ICE says:
2.O. Can I reenter if I left while on OPT?
If your OPT has been approved and you depart before you get a job, your OPT ends and you cannot reenter unless you have a written job offer.
If you have a job, you may travel and reenter to resume work at the same job or you have a written offer for another job.

Monday, November 2, 2009 - 04:23

Sponsoring daughter over 21 on F1 status

Question

I'm a permanent resident and I would like to know if I could sponsor my daughter who is over 21 and is currently on F1 status. If so, would she be allowed to stay in the U.S. if her visa expires during processing?
How long will this process take.

Answer

I am assuming you are asking me whether a green card holder can apply for a green card for an over-21 child. The answer is yes, as long she is unmarried, you can. But she cannot stay in USA based only upon the fact that you have applied for her.


Check out the Visa Bulletin: http://www.immigration.com/visa-bulletin


 

Thursday, October 29, 2009 - 05:28

F-2 visa

Question

Can I work in the campus of the school with F-2 visa?

Answer

I do not believe F-2 visa holders have any option for work while they are in F-2 status.

Thursday, October 29, 2009 - 05:26

Working after studying

Question

After studying a 1 year graduate course in the US. Would I qualify for a work permit? Or would I still have to find an employer to sponsor me first before I could apply for the work permit?

Answer

There are several different kinds of work authorizations like OPT, CPT, etc. Contact your International Students Office.

Wednesday, October 28, 2009 - 03:25

F1 Visa Expired on OPT

Question

I got a 2 year visa for my Masters and my Visa was expired on May 31st 2009, I converted to OPT from June 1st, 2009. I am on OPT and I do have a job now. I got an emergency now to go to India. Is it possible for me to reenter United States.

Answer

You will need to get the visa stamping done again.

Wednesday, October 28, 2009 - 03:15

Social Security Card -- F-1 visa

Question

I currently have both an B1/B2 and F1 visa. I got into a graduate program at a university in Teaneck, New Jersey. What are the possibilities of getting a job off campus and would i be able to get a social security card..? What are the issues i have to deal with in such cases?

Answer

You need to discuss your options with your International Students Office. Ask them also about curricular practical training, where you are allowed to work for credits.

Wednesday, October 28, 2009 - 03:13

F-1 working off-campus

Question

I have a small query that F-1 student are allowed to work on-campus(20 hr) and for off-campus they need work permit but if they solve quetsions over internet and get paid by someone outside US then is it legal? or does it require any permit? In other words if some student (F1) provide support to some company outside USA (over internet) and get paid is it legal?

Answer

I do not believe there is any law that specifically addresses this issue, but I believe all work done on US soil is likely to be considered illegal.

Thursday, October 15, 2009 - 02:48

F1 and starting a business

Question

I was just wondering what the laws say about an F-1 student working for the company that he co-founded when he's on OPT. Suppose that I start up a new business while I'm still a full time student, I can't draw a salary from it but I maintain ownership, in part or whole. When I'm done with school, and approved for my OPT, can I work at my company and draw a salary from it then?

Answer

As far as I know, theoretically, you could be working for yourself on OPT as long as your work is related to your area of study. I think I read that in one of the FAQ issued by USCIS. But you will not be able to continue doing that on H-1.

Thursday, October 15, 2009 - 02:33

F1 visa denial

Question

I was denied a visa this morning under 214(b) in Kuwait. I have been working in Kuwait for a year (I am an expatriate), and have an offer of employment upon return from my studies. I just received a letter to that effect (after the denial). This is my second denial. Would the letter be sufficient as additional evidence for reapplication? I also have a bank account containing about $3000 which I plan to keep for when I return (apart from my sponsor's account).

Answer

214(b) denial is based upon a suspicion that you have no intention of returning to your home country. This ground is almost impossible to overcome when you are an expatriate, but you can try. I hate to be the bearer of bad tidings, but I doubt this will work.

Thursday, October 15, 2009 - 02:31

Traveling on OPT-F1

Question

I am on OPT F-1 Status after my second degree. I need to know what other parts of US outland I can visit besides Hawaii without having any immigration problems?

Answer

Normally, travel to "contiguous territories" (like Canada and Mexico) does not require a visa when the trip is less than 30 days AND you do not happen to be a national of one of the eight countries that US govt. looks upon with some suspicion. But there can be immigration problems. Trip to any one of the 50 states presents no special issue.

Tuesday, August 25, 2009 - 04:20

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

Question

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

Answer

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

(CT:VISA-803; 04-27-2006)

L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

TN is also not allowed dual intent, but are often not questioned on their green card pendency.

Thursday, June 25, 2009 - 08:20

Visa after B-1 to F-1 conversion

Question

I entered the US on a B1/B2 visa in febuary 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in Fall 2008, I transfered and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. Its been close to 3 years now and I really wish i can get to see my family back home. I will really appreciate any advices and help. I dont know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp. Please tell me what is the best way to approach this and the best thing that I can do.

Answer

Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.

Tuesday, June 16, 2009 - 09:21

F-1 visa stamp, H-4 pending

Question

I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April.
In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India.

Now we are very much concerned that what will happen to my H1 and her H4?

1) Since she has F1, will it affect H1/H4 processing?
2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same?
3) Is it possible to have F1 and H4 both together at the same time?
4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?

Answer

1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

3. Generally speaking, no.

4. Let your employer know. They should be able to withdraw for you. If not, do it yourself as I have suggested.

Monday, May 18, 2009 - 11:48

From H-4 to F-1

Question

1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification:
If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ?

2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same?

3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS, CA ? Will I get an approved F-1 by then ?

Answer

1. No. An I-539 is used if you want to change status within USA.

2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

3. No one can predict that. Sorry.

Monday, May 11, 2009 - 02:56

Status, authorized period of stay and unlawful presence

Question

Answer

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status
Status is the immigration designation what has been given to you by USCIS. For instance, when USCIS approves your H-1 with an I-94 attached to the approval notice, you are in H-1 status.

Status and Visa
The difference between status and visa is important. A visa is a stamp on your passport. This stamp is placed by US consulates outside USA. The system of entry and stay in USA is governed by dual permission (DHS and DOS). When you are outside USA and you wish to enter, you first go to a US consulate (an arm of DOS - Department of State or State Department) for the appropriate visa stamping.

For instance, for a tourist visa, you go the US consulate in your home country, follow their procedures and apply for a "B-2" visa. When you get the B visa stamp you have been permitted by one agency (US State Department) to enter USA. If the visa stamp is valid for 5 years, you may travel to USA any time during those 5 years. This is your first permission in the dual permissioning system.

Now with the B-2 visa, you travel to USA. When you land at the US port, CBP (an arm of DHS - the Department of Homeland Security) decides whether you will be allowed to enter USA and how long you can stay in USA. The permission to stay in USA is given to you in the form of a small card that is put inside your passport. This card is called "Arrival Departure Record" or Form I-94. The I-94 has an expiration date.

Once you are inside USA, you are "in status" only till your I-94 is unexpired. If you wish to seek an extension of of your stay, you must request USCIS (another arm of DHS) for an extension.

Authorized Period of Stay
Authorized period of stay means you are not illegal but you are not in full status. Taking the example of B-2 extension I was discussing above, let us say you want to stay longer than the stay initially given on your I-94. You will need to apply for an extension BEFORE your current status (the termination date on your I-94) expires. Once you have made a timely application for extension or a change of status (for instance you wish to change to H-1B), you can continue to stay in USA till your application is decided (but not past the point you had asked for as an extension). The moment your I-94 expires, you go from being "in status" to being in "authorized period of stay." This is less than full status (for instance you cannot change status within USA when you are in authorized period of stay, but you can do so when you are "in status."

Authorized period of stay also applies to people who have applied for the last step of their green card, "Adjustment of Status" (AOS or I-485). When someone files an appropriate AOS, they are in authorized period of stay until their AOS is adjudicated, no matter how long it takes.

Unlawful Presence
This is the real bad one you have to watch for. If you accrue 180 days of unlawful presence in USA, you are barred from entering USA for 3 years. If you are unlawfully present for one year, you are barred for 10 years. This is referred to as the 3/10 bar. A rule of thumb is, unlawful presence begins to accrue when your I-94 expires and you have done nothing to extend/change your status or when the government says your unlawful presence has begun (typically happens when an extension or change of status is denied.
 

In AOS (I-485) Context

Quote: Hope you remember me. I am one of your clients and you had represented me for my H1-B. Today I was laid off from my employer who was the H1-B sponsor. I have my AOS EAD as a beneficiery to my husband's PR process. I am concerned about my status in the US. My husband is also on EAD as he recently changed his employer using AC-21. Could you please help me? What status am I on now? Can I stay in the US? I currently have a valid I-94 in my passport. I need to decide the future course of action

Ans. You are now in authorized period of stay and can legally stay in USA. To work, you will need an EAD and to travel an AP.

In Change of Status Context
Updated 11 May 2009

Q. I am currently on H4 visa and the expiration date of my I-94 is May 23, 2009. My spouse had applied for an extension during the last week of April 09. In between, I received an offer for MS course at Penn state University, PA - US. I am planning to join school again on F1 visa since I have received assistantship/ financial aid from my University. I am planning to join for Fall 09 semester which begins in August 09.

Since I have to apply for a change of status from H4- F1 , is it possible to do this having applied for H4 extension now? Is there any way by which I can submit an application for F1 visa directly to USCIS without going for H4 extension?

Ans.
The rule of thumb is you can always apply for COS when you are in status, but not when you are in authorized period of stay. Upto 23 May, you are still in full H-4 status. After that day you will move to authorized period of stay because your H-4 status would have expired. So, if you file for a COS now, it should be fine. After 5/23 you have two choices. Wait for H-4 to be extended, then apply for COS to F-1 OR go outside USA any time and get F-1 visa stamping.

Friday, February 27, 2009 - 01:00

Can B visa holder convert to F or other status?

Question

My question is that i have just entered USA on B1 /B2 visa on February 21 and sir now I am planning to stay here in USA...I am planning to carry on my further studies in Bridgeport university my arrival is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands

Answer

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

In April 2002, INS changed its regulations regarding B to F-1 or M-1 (students) status conversions for people who enter USA from then on. INS maintains that B to F-1/M -1conversions from within USA will be permitted only if at the time of entering the USA (for instance at the airport) the applicant expressly declares to INS his/her intent to change to F-1/M-1 status. AS A PRACTICAL MATTER, HOWEVER, CIS seems to have often given changes from B to F status ignoring its own regulations. But in these cases also, the visa problem from consulates will remain.

The better thing to do is to go back to your home country and try for a visa there. Chances of getting a second visa are better if you have done nothing to violate the terms of an earlier visa.

 

Monday, February 23, 2009 - 01:00

Can F/J holders apply for green card?

Question

I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?

Answer

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

Sunday, February 22, 2009 - 01:00

Turning 21 - do I have to convert to F-1 from H-4?

Question

My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

Answer

 I do not see any way around filing an F-1.

Tuesday, January 20, 2009 - 01:00

Do advanced degrees help in marriage-based green card?

Question

I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose:

1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application.

2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference?

3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his?

4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

Answer

 1. Advanced degrees do not help in a family-based green card.

2. H-1 approval also does not help in the GC process.

3. Check with your international students office about the OPT part. This one is difficult for me to comment upon.

4. Whether or not you declare, if you are married then that is so. You must state that you are married if any immigration forms ask you. This is VERY important. Regarding taxes, check with a CPA. You do not want tax advice from a guy who barely passed his Federal Tax exam in law school.

If I were you, I would depend on my H-1, not OPT. The H-1 permits dual intent (Nonimmigrant and Immigrant) and is likely to be a strong visa for a person married to a green card holder

Saturday, January 17, 2009 - 01:00

Can H-4/F-2 holders perform volunteer work?

Question

Answer

The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?
A. Probably yes. The provisions of law noted below are vague and unclear. But it appears as long as you do not receive any money or other remuneration, you should not be considered to be violating any laws. If you do receive any “in kind” benefits, things get very tricky. Such benefits may be permitted if the H-4/F-2 holder did not ask for the benefits as a condition for volunteering, nor were they offered in exchange for the volunteer work, and if the volunteer would have performed the services regardless of whether he or she were to receive the in-kind benefits. Subsection (f) below defines “employee” as someone who works for an “employer” for “wages or other remuneration.

Subsection (g) defines an “employer” as an individual or entity who engages the services or labor of an “employee” for “wages or other remuneration.”

The problem clause is (h), which states that the term “employment means any service or labor performed by an employee for an employer within the United States.” This subsection makes no reference to wages or remuneration. So, is it legal to perform volunteer work without receiving any money in any form? My best GUESS is yes. Even though subsection (h) makes no reference to money and contains in its definition “any service or labor,” such work must be performed by an “employee,” who by definition (subsection (f)) is someone who works for an “employer” for “wages or other remuneration.”

The Regulations

TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)/8 CFR PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS/Sec. 274a.1 Definitions.
Sec. 274a.1 Definitions.

For the purpose of this part--

(a) The term unauthorized alien means, with respect to employment of an alien at a particular time, that the alien is not at that time either:
(1) Lawfully admitted for permanent residence, or
(2) authorized to be so employed by this Act or by the Attorney General;

(b) The term entity means any legal entity, including but not limited to, a corporation, partnership, joint venture, governmental body, agency, proprietorship, or association;

(c) The term hire means the actual commencement of employment of an employee for wages or other remuneration. For purposes of section 274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when a person or entity uses a contract, subcontract or exchange entered into, renegotiated or extended after November 6, 1986, to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized alien;
….

(f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

(g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;

(h) The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

INS Comments
Back in 1989, INS had commented on the definition of "volunteer" in the context of the employer sanctions provisions of the Immigration Reform and Control Act of 1986 (IRCA).

In an October 10, 1989 letter, Mr. Schroeder speaking on behalf of INS stated that while the INS regulations implementing IRCA define such terms as "employer," "employee" and """employment," they fail to define "volunteer." It is clear, however, that employer sanctions apply only to acts of employment, and referral or recruitment for a fee. The regulations, Mr. Schroeder continued, define an employee as a person employed by another for "wages or other remuneration." Any determination as to whether an individual is an employee or a volunteer is made on a case-by-case basis.

Quoting from a hypothetical presented, Mr. Schroeder stated that an individual on an H-4 visa who does volunteer work for a theatrical group does not appear to fall within the definition of employee simply because he or she receives free tickets for the group's performances or is permitted to attend at no cost. Mr. Schroeder continued:
Factors that the Service would examine in making such a determination would be that the volunteer work was entered into without any expectation of compensation, that the volunteer did not require the free tickets, nor were they offered, in exchange for the volunteer work, and that the volunteer would have performed the services regardless of whether he or she were to receive free tickets or attend performances at no cost.

 

Thursday, October 9, 2008 - 01:00

F-1 OPT - No Job

Question

I was approved for my OPT on February 2008 for a duration of one year. At that time, I was allowed to stay in US for 1 year while looking for job. On April, 2008, a new regulation came according to which a student on OPT can not stay in US without job for more than 90 days. I was not aware of this rule until end of September 2008. Now I have applied for dependent visa. My worry is that unknowingly I stayed for around 6 month without job when I was actually allowed for only three month.

I am worried that is this mistake going to affect my new visa approval? Is there anyway I can explain USCIS that it happened because I was not informed about this rule and I did not come across it.

Answer

Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.

Saturday, September 27, 2008 - 01:00

B visa while GC pending or similar situation

Question

After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time.

I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

Answer

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Sunday, September 14, 2008 - 01:00

Using B visa with F-1

Question

I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

Answer

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.