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 - I applied for an I-130 petition for my wife and the petition is approved. I am still waiting for a visa because her priority date is September 2003. Can she apply for student visa while she is waiting for her priority date?

A - While she can technically apply for a student visa, the odds of approval are not good. Student visas require a showing of non-immigrant intent and the I-130 and a marriage to a US permanent resident show just the opposite.

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Q - My fiancé is currently living under illegal paperwork in Malaysia since she was a baby. She was born in the Philippines and has a legal passport there but has never lived there. Will this prevent me from getting a immigrant visa for her?

A - No, that issue won't ultimately interfere with her getting an immigrant visa. The main question is where she will process the visa - at the US consulate in Malaysia or in the Philippines . Consulates are supposed to accept jurisdiction of a case if a person resides in the district. If a person can't document legal residence, the consulate may demand the person process in their home country. Given the length of time your fiancée has been residing in Malaysia , I would expect the consular officer to be reasonable and process the case in that country.

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Q - I am pending on an I-360 religious worker green card application. However, my religious visa will be expired on Jan. 23, 2007. I wonder if my case can be applied to INA 245(k) which forgives certain status violations.

A - Fortunately, I-360 Special Immigrant religious petitions are covered by 245(k). The statute reads as follows:

"(k)--[Inapplicability of Certain Provisions for Certain Employment Based Immigrants] An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

(1)--the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2)--the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A)--failed to maintain, continuously, a lawful status;

(B)--engaged in unauthorized employment; or

(C)--otherwise violated the terms and conditions of the alien's admission."

Section 101(a)(27)(C) covers religious workers.

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Q - I will have had my Green Card for 5 years in September of 2007. When is the earliest I can apply for my Citizenship? I heard 3 months prior to the 5 year date - is that correct?

A - That's normally correct. You can apply to naturalize up to 90 days prior to your meeting your five year residency requirement (or three year requirement if you qualify based on having a US citizen spouse). I’m assuming, or course that the rest of the naturalization residency requirements have been met.

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Q - I came to US in H-1B status and my wife came as an H-4 6 years ago. My wife changed to F-1 after 4 years on H-4. While she was in F-1 status, I continued to be an H-1B. Now I have completed 6 years of my H-1B time. My wife is working on her H-1B now. Can I change to H-4 based on my spouse's H-1B?

A - Unfortunately, H-4 and H-1B time count together so if you are out of time on your H-1B, you can't solve the problem by switching to H-4.