If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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Q - I would like to apply for a family based immigrant visa, here is my situation. My brother is a citizen, but I am here as F1 student and planning to graduate on December 2003 with my BS in computer science. My question is if i apply for family based immigrant visa, can I get the adjustment of my status during the application process. Or do I have to go back to my country after I finish my degree and wait for the  result of my status? thanks

A - Your brother can only apply for you in the Family 4th preference category. That category is backlogged at least 12 years and you are not entitled to apply for adjustment until you get to the front of the queue. So it will be many years before you likely will see much of a benefit from that petition. If you can manage to stay on your own visa in the US while you wait, that's fine. But you cannot stay in the US merely because an I-130 filed by your brother is working its way toward being current.

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Q - In one of your replies in the last "ask visalaw.com", you mentioned that university jobs are not subject to the upcoming H1b quota starting 10/03. Does this mean that when I apply for an H1b visa as a "postdoctoral fellow" at a university, I will not be put in the "first 65,000" entry list? I have not heard this exception for "university positions" before. Is this something new?

A - You are correct. If your employer is a university, you are not affected by the H-1B quota. This has been the law since 2000. Since the H-1B quota has not been reached in the last few years, most people are not aware of this.

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Q - I'll be applying for u.s. citizenship in a year. Upon applying, can i petition my mom at the same time or should I wait until i become a sworn citizen? My mom is out of status (5 years). Can I petition her still when I become a citizen?

A - You must be a sworn in citizen to apply for a parent's green card. If your mother entered the US legally and became illegal later, once you become a citizen, you should be able to sponsor your mother under INA Section 245(a) of the Immigration and Nationality Act.

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Q - Me and wife are both born in the Philippines but our children are born in Kuwait. are we eligible to apply with the upcoming DV 2005 by charging the country of birth to our children?

A - Unfortunately, you cannot qualify for the lottery merely because your children are born in a country that is eligible. You can charge to the nationality of a spouse and, in certain cases, to the nationality of your parent. But not your children.

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Q - My parents are  citizen of USA and they filed petition for my immigration in 1998  and still waiting, at that time I was unmarried and my age was 29 years. Now my age is 33 years and I got marriage. Please advise and let me know  that:- 1) How  I , or my parents ( petitioner )  can change the preference or status of  application / petition submitted in 1998? 2).Also let me know about V1 and V2 visa ? I along with my Husband (Spouse ) are qualified for the V1 and or V2 visa ? It must be note that my age is 33 years and I am married.

A - You don't need to refile your I-130 petition just because you married unless your parents were green card holders when they applied and you married BEFORE they got their citizenship. I presume that is not the case here. You automatically convert from the First Preference Category to the Third Preference category. You need to now track yourself in that category. The good news is that you still get to claim the 1998 priority date you had when your parents filed initially. So when that date is current, you could request the State Department proceed with processing your green card.  As for the V visas, that is for spouses of permanent residents. It should not apply to your case.

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Q - My F2A petition has been filed by my LPR Wife in year 2002.  Please let me know that, will i be eligible to apply for V Visa after 3 years of petition.  As per current criteria of V visa i am not eligible. Is V visa deadline going to extend another 3 years, so that people like me can get chance.

A - Unfortunately, V visas are only eligible to people with I-130 petitions filed before December 20, 2000. We have not heard any news indicating that the V visa rules will change anytime soon.

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Q - I have graduated with a MS degree in Computer Science from a state university in December 2002. I am currently on my optional practical training and it expires in January 2004. I have set up my own "S" corporation and am working for my own business now. I would like to know if I would be able to sponsor myself through my own company for a H-1 visa? Please advice.

A - In theory, there is no reason why someone self-employed cannot have their company file for an H-1B visa. The challenge is typically in proving to the BCIS that the company has the financial capability of paying you the prevailing wage. You'll need to show adequate capitalization and cash flow to meet this requirement. Also, qualifying for a green card is usually more difficult since the most common strategy - the labor certification petition - is typically not available to people who have an ownership interest in the petitioner.

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Q - Dear Mr. Siskind, I read your newsletter regularly. I understand that once the 485 is filed for more than 180 days, the applicant can switch to a similar job.  But what if the applicant is laid off and cannot find a job?

A - The question is an interesting one. Congress never clearly explained their intentions when they created the 180 day rule and the INS/BCIS has also not issued a regulation which clears matters up. The law states that as long as an adjustment application is pending for more than 180 days, it can remain alive if the applicant finds another job in the same or a very similar occupation. There are two different ways you can interpret the law. First, it might mean that as long as an applicant remains with an employer for 180 days, then the applicant can switch jobs. It might also mean that as long as the BCIS takes more than 180 days the applicant can move employers, the applicant will not be in trouble if a job change occurs. This latter interpretation means that a layoff or job change before 180 days would not be a problem as long as the BCIS takes six months on the adjustment (which is a given based on their normal processing times). You would definitely be better off following the more conservative interpretation and stay with an employer for six months before switching. But if that is not possible, you can at least make a good argument for the other interpretation.

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Q - I came into the United States in 1998 on a B-2 Visa. I got married to a US citizen same year and applied for a change of status to permanent resident, however my application was rejected sometime this year.  But I've also been a student for over one year in a university in Texas and based on this I applied for another change of status to F-1.  My question is will I be denied the application for possibly been out of status since my initial change of status application was denied?

A - It sounds pretty likely that your F-1 will be denied. First, you would have had to have continued to remain in valid B-2 status in order to qualify for a change of status. Second, the fact that you applied for a green card will be a major negative in terms of showing you had intentions to return to your home country. Third, changing from a B-2 to an F-1 visa in the US is normally extremely difficult even in the best of circumstances.