3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

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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1) Question:

I came to the U.S. on an F-1 student visa. I was terminated from SEVIS because of an issue with my course load. My request for reinstatement was denied and I am appealing the decision. But if I stay in the U.S. beyond six months from the date I was terminated from SEVIS will I then have to worry about the consulate applying the 3 year bar if I have to reapply for a new visa at the consulate?

Answer:

Students who are admitted to the U.S. for the Duration of their Status (their I-94 says D/S instead of an actual expiration date) do not become "unlawfully present" when they fall out of status unless USCIS makes a formal written determination that they are out of status.

There is a difference between being out of status and being "unlawfully present". A student is out of status then they violate the requirements of their status, which includes maintaining a full course load.

However, a student with an I-94 for "duration of status" will not be "unlawfully present" unless USCIS makes a formal determination that they are out of status. For example if USCIS sent the student notice of their SEVIS violation and notified the student that they are out of status then the student would be "unlawfully present" as of the sate of the letter.

To be subject to a 3 or 10 year bar, a foreign national must be "unlawfully present" for 180 days or one year respectively before leaving the U.S.

2) Question:

My husband studied in the US on a J-1 visa and is subject to the 2-year home residency requirement. After finishing his degree he went back to his home country 2 years ago to fulfill the requirement. He has an immigrant visa interview in the U.S. consulate this month. However, during the 2-years that he resided in his home country he made two short trips to two other countries to attend a conference and for vacation. Will this time spent during those short trips counted out of the 2-year home country residence?

Answer:

The J-1 home residency requirement generally requires demonstrating two full years spent in the home country and time spent in other countries during that time should not be credited. However, there are times when consular officers will determine that an applicant has substantially complied with the requirement and approve the cases. That’s a discretionary call on the part of the consular officer. Otherwise, the time spent outside the home country will be tacked on to the foreign residence requirement and issuance of the permanent residency can be delayed.

3) Question:

I filled out an affidavit of support for my son-in-law last year. Can I fill one out for another relative this year?

Answer:

Yes, you can submit affidavits of support for multiple people as long as you have a high enough income.

When you calculate your household size in the form, you will have to include your son-in-law as part of your calculation. So your household size for the affidavit of support would be you and your husband (if you are married), your dependants, your son-in-law, and the person for whom you are filing the affidavit of support.

This means that you have to be able to show a higher income to meet the guideline requirements.

4) Question:

I have a little over 5 years of work experience in my field and I have a Bachelors degree. Of the 5 years, 2 years of experience is from my current employer. Am I eligible to have my company file a PERM filing for me in the EB-2 category?

Answer:

You probably do not have 5 years counting toward an EB-2 PERM Labor Certification. As a general rule, the 5 years must be from a different company. Since you did not have 5 years experience when you started in the position, you cannot claim that the position requires at least 5 years experience.

However, experience with the company can sometimes be counted when it can be shown that the experience gained has been in other positions which are not substantially similar to the position that is being offered in the PERM application or where it can be shown that it is no longer feasible for the company to train an employee for the position.