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 - Is the H1-B Cap reached for the year of 2004? I am from Singapore.

A - It is, but there is an exception for nationals of Chile and Singapore. Recently signed treaties have resulted in a large number of H-1Bs being reserved for Chilean and Singapore nationals. So you are going to be in greater demand for the next several months.

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Q - I'm planning to get married in the US but we don't want to wait for the K-1 visa.  So it means I am using my B-1/B-2 visa to enter to the US and then get married. Is the process very difficult?  Do you think it will be suspicious? What advice can you give me?

A - You run the risk of being denied entry and possibly accused of attempting fraudulent entry. My advice is to do things by the books. The US immigration system is not as forgiving as it used to be and you could end up regretting for the rest of your life your decision to act in haste.

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Q - Can you file for I-765 (Employment Authorization) if: (1) An I-130 (Petition for Alien Relative) has been filed - pending processing - INS received on Sept. 26, 2003, AND (2) Visa has recently expired during Feb. 2004?

A - The EAD can only be filed with an adjustment application after the I-360 has been approved. The concurrent filing rules allow applicants in I-140 cases to file employment authorization documents at the beginning of the case. But that rule does not extend to I-130 cases.

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Q - My company is about to merge with another company. In November 2003, they filed a H-1B extension for me. It has not returned yet. I'd like to how this will affect my H1B.

A - You probably will be okay if this is a true merger. But there are specific procedures that need to be followed by the new company's immigration lawyers. The article on our web site at http://www.visalaw.com/01mar1/12mar101.html should also be helpful.

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Q - I am international student advisor in the University.   Many our international students change their F-1 visa status to H-1B when they complete the program and start the Optional Practical Training.  Now, when the H-1B cap has been reached, the CIS does not accept new H-1B petitions until April 1, 2004, and the new petitions will be for the H-1B starting date as of October 1, 2004. 

What will be your advice on the following situation:

The student’s OPT ends, suppose, in mid-May, his grace period ends in mid-July.  His petition for H-1B will be sent during his valid status - that is after April 1, 2004.  However, the starting date of H-1B status will be indicated as October 1, 2004.  

What should the student do when the OPT ends – between July and October?  May the student stay in the USA legally and wait for the CIS decision, or he has to leave the USA and re-enter by October 1 if his petition is approved?  Does the CIS have some policy on such cases?

A - This is a tricky question and will, unfortunately, become quite common. In the past, the USCIS was somewhat relaxed in allowing student to remain in the US legally while awaiting a visa number. And they do have the authority to issue an order making it possible for students to remain legally during the gap period. But these are different times and we do not know. However, there is still the possibility of applying for a visitor visa to remain in the US and that is probably going to be frequently used. It is also likely that a student will need to leave the US and get the visa for October at a US consulate. I intend to cover this issue in our newsletter as we learn more.