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 - My H1-B petition was denied May 2002. I filed an appeal before the 30 day deadline. Up to now there has been no result yet. Am I already out of status? If I go back to my native country will I be able to come back here in the U.S.?

A - You don't remain in status merely because you have filed an appeal. If you win, then you can have your status retroactively approved back to the originally requested date. But you have to depend on winning the appeal, which is always risky.

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Q - What are the consequences of traveling with advance parole if one hopes to adjust their status under Section 245 (k)?

A - Section 245(k) allows people to process employment-based green card applications if they have less than 180 days of status violations. That would also mean that a person is not subject to a three-year reentry bar. So traveling on an advance parole in such circumstances would seem to be fine. As always, double check with your immigration lawyer before traveling.

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Q - I had a question about traveling from Canada to USA. If someone has their permanent residency (SIN card) from Canada, (but not citizenship) can they travel to the US without a visa?

A - Not any more. The rules on this recently changed and Canadian Landed Immigrants do need to apply for a visa at a US consulate.

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Q - I'm on pending status waiting for reinstatement to F-1 visa and I've been waiting for 9 months. I'm almost done with my program of study. What happened if I graduate before I received my reinstatement to F-1? Can I apply for practical training when I'm still on pending status? If yes, what are the deadlines to apply?

A - If you graduate before receiving your reinstatement, you cannot apply for OPT.  I suggest that you discuss with your international students advisor to see if he/ she can request the case to be expedited because of your graduation time.  You may also consider extending your education for another semester by taking a new concentration, etc.  This is legal as long as it is an extension for a valid academic objective.  Keep in mind that you will have to complete your new concentration, etc. before you will become eligible to apply for OPT.

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Q - I was a graduate student between 1999 and 2001, working towards my second PhD (a challenge and big achievement if done). I got married in late 2001 to a permanent resident lady. Later she got her citizenship and sponsored me for a green card. I got the conditional residency in May 2003, but things are not working so well and I am may consider to ask for divorce. I may be able to petition for removal of the conditional residency (after divorce), but this may or may not work, most likely it may not. All I want is to be able to recover my student status and finish my PhD. Please note that before I got married I had a student visa valid until 2005 and an I-20 with similar date but I had to renew my passport which expired just before the interview, I got new one that has the INS stamp but no more visa on it. Could you please advise me?

A - Your best chance it to work with an immigration attorney in getting the condition removed from your permanent residency. Despite the divorce, this may still be possible.

If you still have your old passport with your valid F-1 visa (if it has not been cancelled), you may try to get a new I-20 from your school, leave the country, and return using your NEW passport and your OLD passport only for the visa purposes.  Because your country does not have the authority to cancel an American visa, when they cancelled your old passport, they should have left the visa valid.  A valid visa in an expired passport may be used in conjunction with a new valid passport.

You can also apply for a change of status to F-1 in the Unites States, but it will be hard to do given the fact that you manifested an intention to immigrate and obtained a conditional permanent residency. You can argue that due to the divorce your intention has changed and now you just want to finish your degree and go back home. This will take lots of convincing and will require a very compelling legal argument.

Problem is, by applying for permanent residency, you manifested an intention to immigrate. Therefore, if you try to re-enter with the F-1 visa, the immigration officer may deny admission to you due to immigrant intent (you probably have an I-551 stamp in your passport that proves your conditional permanent residency). The same is also a risk with a change of status application. But at least with the change of status application you will be in the US if you are denied, and will be able to fight it while you're here.

If you do have a qualifying job opportunity, you may want to apply for a change of status to H-1b. Because you do not have to show non-immigrant intent for that status, you will have a much higher chance of success in this category.

As you can see, all your options have their pros and cons and you should consider all angles before making an educated decision in this. If we can offer you further professional assistance in this matter please let me know.

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Q - I came to the USA on an B2 visa which expires in a few days, however I would like to stay longer and go to school here. I got an I-20 (over 3months ago) but the school informed me that I could not convert to a student visa unless I went back to my home country. So that went nowhere. I am wondering how long I can stay here (USA) after my B2 expires (is there a grace period before I depart or change my status), can I renew a B2 visa in the USA? How hard is it to file for a refugee status or get a religious based visa?

A - The school is right, even though it is theoretically possible for you to convert to an F-1 visa, in practice it is very hard. You can apply and see what happens, but your chances will be very low.  If you are going to apply, your application must be received by the immigration office before the expiration of your B-2 status (as indicated in your I-94 Form). Also, if you wish, you can apply for a 6-month extension of your B-2 status using the immigration form I-539 (and a $140 application fee). Again, your application must be received by the immigration office before the expiration of your B-2 status (as indicated in your I-94 Form).