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.

Q - Where can I file a complaint about an immigration lawyer?

A - You would file it with the board of professional responsibility in the state where the lawyer practices. Go to www.legalethics.com for contact information. I remind readers that you can avoid a lot of problems by spending some time choosing the right immigration lawyer. The article on our web site at www.visalaw.com/hal.html may help you become a more informed consumer.

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Q - I was approved for permanent residency and had my passport stamped for proof of permanent residency last year. Due to the fact that the stamp is expiring on March 2 and I have not received the green card on the mail, I decided to go to the local BCIS office to have my passport stamped for an extension and inquire why I have not received my card for almost a year. I was told that the local office has a new policy that it cannot confirm my legal status and I have to wait for my green card. The reason I have not received the card they said was the fact the fingerprints I submitted have not cleared. They also told me in order to travel outside the country, I have to file for advance parole travel document. I have no criminal record and the judge noted this when I was granted permanent residency.

My question to you is: why has it taken too wrong for them clear the criminal background? This problem it seems is not limited to me but also some few people I have contacted. How am I supposed to support my family when I cannot prove my legal status? Why do I have to file for advance parole in order to travel?

A - This is definitely not right.  If they had previously given you the I-551 stamp, they cannot refuse now without going through the proper procedures to revoke your residence. I would contact a local immigration lawyer and have them contact your CIS office and straighten out the problem.

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Q - My problem is few years ago I was injured at work and got out of job, but I did not get any benefit. I used my insurance and saving for the treatment. Now my saving is at the end point but I still need medical treatment and therapy. I am planning to apply for Medicaid. At the same time I have applied for Naturalization. I have two US citizen children. My question is if I receive Medicaid will this affect me in getting naturalized?

A - That would only be a problem in a green card application case, not in a naturalization case. Naturalization does not depend on your personal financial situation.

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Q - Currently, I have a student visa and I know that I need to have 12 credits each semester to keep my visa. However, I would like to know if I could withdraw from 1 class so I won't get F.

A - The answer, unfortunately, is no.  There are very limited instances where an F-1 student may drop his courses below a full-course of study and the risk of failing that class is not one of them.  You may fit under other academic exceptions like improper course placement, initial difficulties with American teaching methods, etc., and you must talk to your international student advisor to see if any of them will be applicable.  You must NOT drop your course before getting permission from your international student advisor.

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Q - I am a student advisor and this concerns one of my students. The student was initially in F2 status.  She changed to F1 here in the states.  Her latest I-20 was stamped F1 and it stated that the next time she left the country, she needed to renew her visa and get the F1 stamp.

Last May, she returned from China and used her F2 visa...and was given an I-94 card with the F2 stamp.  She did not follow the procedure in terms of getting a new visa.

She had questioned me about this back in May...and mind you at the time, OPT nor any other employment benefit was brought up by the student. She simply asked me if it was ok that her I-94 stated F2.  The way she described it was that it was incorrectly stamped F2...she did not tell me she didn't get the F1 visa...so based upon that information, I told her that everything was ok...since her I-20 was stamped as F1. And when she left the country and returned she would receive a new I-94 card...(and of course she would have to have her visa stamped F1)

Well now she wants to apply for OPT and does not have an I-94 card that indicates she is F1. 

Do you have any recommendations as to what she can do?  She technically has been in student status since 2002.  Does she have to apply for a change of status again?

A - Unfortunately, your student is in serious trouble:

1. What status a person has in the US is controlled by that person's I-94 form.  When she reentered the US with her F-2 visa, she was admitted as an F-2 and the fact that she obtained a change of status in the past and that she had an I-20 that said "F-1" has no relevance.   She abandoned her F-1 status when she left the country.

2. I am assuming that she has been carrying a full-course load.  As you know, studying full-time in a degree program is a violation of the F-2 status.  Therefore, she is also out-of-status. 

3. If she had an on-campus job, assistantship, etc., it is even worst, because she also worked illegally.  That is something that will get both her and you as the employer in trouble.

A "change of status" is what it literally means - a change of "status".  As you know, status and visa are not the same thing.  When a person changes their status, it only means that they obtained a new I-94 from the immigration and as you know, the I-94, or the status, is abandoned when a person leaves the country.  When they return (unless they fit under very narrow exceptions) they need to present a visa and then are readmitted and given a status that is usually the same as the type of visa that they presented.  That is why the change of status approval notice and the stamp on the I-20 says, "this is not a visa and cannot be used in place of a visa".  Your student should have known that and should have been advised of it.

When she returned with the F-2 visa, the CBP officer did the right thing and admitted her as an F-2.  At that time she had two options:

1. Stop going to school and apply for another change of status; or
2. Immediately leave the country, obtain an F-1 visa in Canada, Mexico, or China and then return to the US.

She did neither.

Even though she is out of status, she is not really subject to the reentry bars and 222g (I suggest you read this chapter in the NAFSA manual before advising her, so that she is clear on the consequences of her actions).   Therefore, she can still leave the country, apply for an F-1 visa, and if the visa is granted, return in the F-1 status.  But that creates interesting SEVIS questions and questions on OPT eligibility.  You may have to create an initial record in SEVIS for her and then register her when (if) she returns.  After her return, if she was a full-time student for an academic year, she may be able to apply for OPT. 

Again, your student is in serious trouble, and I suggest that you document everything that you advise her and all the history very carefully.  You may also want to refer her to a competent immigration attorney.