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 - My OPT expired on Feb 12, 2004 and my H1 petition got denied on Feb 17, 2004.  I know I can stay during the grace period for 60 days—but what if I find employer who can sponsor me during that time and file premium processing on April 1, 2004, am I able to legally stay in the United States between April 12, 2004 until my H1 get approved?  Or do I need to go home and come back?  I am also planning to appeal my denial- am I able to stay here legally?

A - The answer to your question is not clear yet.  In the F-1 regulations, there is a provision that gives USCIS the right to authorize your stay while your H-1b application is pending due to the cap.  But that provision needs to be activated by the Department of Homeland Security, and they have not done it yet.  So, stay tuned and follow our newsletter.  As soon as there is a change, we will announce it.

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Q - I'm currently working under an H1B visa and my employer has applied for Labor Certification for my position.  I know it's possible to work for a second employer under the H1B visa, but is it possible to have concurrent Labor Certification Applications?  My potential second employer has indicated a willingness to apply for Labor Certification.

A - It is possible to have multiple labor certification applications pending, but the petitioning employer must be offering a full time position.

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Q - I was on a J-1 visa 5 years ago but then I changed my status to F-1 and I have remained in that status ever since (5 years).

1. Am I still a subject to a 2-year home residency requirement?

2. If my employer sponsors my H-1B visa, will USCIS grant me the permission to change my status to H-1B?

A - Switching to F-1 status does not get rid of the home residency requirement. You either need to get it waived, meet the requirements or show that it does not apply in your case. But note that the 212(e) home residency requirement never expires.

Getting the H-1B change of status is possible, but that is because you are barred from getting an H-1B visa stamp and not H-1B status per se. But this also means that if you leave the country, you will need an H-1B stamp to reenter and would not be able to do this. So you are basically trapped in the US unless you get a waiver. Also, note that the H-1B cap has been hit, so if you are looking for a job with an employer not exempt from the H-1B cap, you would have that problem as well.

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Q - Are primary and secondary teachers exempt from cap when applying to H-1B? Our visas expire in July and we don't want to get caught in the middle.

A - No, unfortunately only university teachers would be exempt. However, visa extensions are not normally subject to the cap so if you are already in H-1B status you are probably okay.

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Q - I am an F-1 Student. My wife is here in F-2 status. I applied for OPT and got a new I-20 with the OPT information. Does my wife need a new I-20 or can she stay in the US and also travel abroad with the old one?

A - You should ask your DSO to issue a new F-2 dependent I-20 for your wife that matches the dates and the information on your OPT I-20. 

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Q – I have a question regarding friends of mine.  Two parents are H-1B visa holders, working in Michigan. Their child was born in Michigan while they were working under H-1B visas. When their work visas expire, can they be deported?  If yes, isn't that in effect deporting a US citizen? Can the parents convert from a work visa to a permanent visa?

A - The child's US citizenship status really will have no bearing on the parents legal status until the child is 21. The child is entitled to stay if the parents want to arrange for someone to care for him or her. Harsh, but that's the rule. The parents are going to have to pursue the green card on their own and not through the child.