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 am from Sri Lanka. My fiancé is living in the U.S. as a green card holder. He has been in the U.S. for two years. We are planning on marrying next year. How long will it take for me to get a visa to come to the U.S. after we marry?

Answer:

According to the May 2011 Visa Bulletin, visas are now available under the F-2A category (spouses and minor children of U.S. Permanent Residents) for I-130 petitions filed in June of 2007. So there would be approximately four years of petitions ahead of you in line before you would be eligible to receive a visa to come to the U.S. This means that the wait for a visa, based on a petition filed by your U.S. Permanent Resident husband, will likely be from two to six years.

Your husband may be eligible to apply for naturalization and become a U.S. citizen in another three years. If so, you will then be an Immediate Relative, as the spouse of a U.S. citizen, and will be eligible to receive a visa at that point, without waiting for a visa under the Visa Bulletin.

But you may be eligible to come to the U.S. on a different basis, such as an H-1B, L, or F-1 nonimmigrant visa. So you should consult with an attorney to see what other options may be available to you.

2) Question:

I am currently on H-4 visa. I want to transfer my visa to F1.

1.  Can I transfer my visa while I am in the U.S. or do I have to go back to my home country and apply for a new visa?

2.  Since I am on an H-4 and my husband is on an H-1B, what are the chances of my F-1 being rejected?

3.  If my F-1 is rejected, will my H-4 be cancelled?

4. If I change my status in the U.S., will I be able to go back to my home country during the tenure of my studies?

Answer:

If your husband will be continuing as an H-1B nonimmigrant and you are planning on remaining married, then there is no need to change your status to become an F-1 (student) nonimmigrant. While the F-1 status does allow you to attend SEVIS authorized schools, so do many other statuses. As an H-4 nonimmigrant, you are eligible to attend school, even though you are not eligible for employment authorization. In fact, as an H-4 your options for educational programs are broader, since you are able to attend schools that are not on the SEVIS list and you are not required to take a full course load. Also, as an H-4 you can change schools without having to receive SEVIS authorization first.

If you do need to change to F-1 status, this can be done while you are in the U.S. However, there is no way to premium process a change of status to F-1, so it takes several months for the change of status to be approved. A new visa can be applied for at the Consular Post in your home country in a matter of weeks. Many foreign nationals choose to apply for a new visa abroad rather than wait for a change of status in the U.S.

It is possible to change status from H-4 to F-1, but you will still have to prove strong ties to your home country. The fact that your husband is working in the U.S. on an H-1B is not an automatic reason for your change of status to be denied, but USCIS could use it as a factor in determining that your ties to your home country are not strong enough. If your change of status is denied, you will remain in H-4 status.

If you change your status in the U.S. you will be able to travel abroad, but when you go abroad you will need to apply to have a new visa put in your passport before you can return to the U.S. in F-1 status.