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 US on an F-1 visa. I graduated in May 2009 and have never left. I assumed I was legal as long as my F1 visa has not expired. My visa is valid for another few months. I never applied for OPT because I did not know about it. Will I have a problem if I leave now?

Answer:

Unfortunately you are out of status since you graduated and did not apply for OPT or change to another status. The expiration date on your visa is not relevant to your status in the U.S. The visa is just a travel document that allows you to apply for entry into the U.S. Once you have been admitted to the US, the I-94 controls what status you are in and for how long. Your I-94 should have an expiration date of “D/S” which stands for Duration of Status. This means that you remained in status as long as you were doing the things required to maintain your status, such as having a valid I-20 or OPT and maintaining a full course load in the sponsoring school or OPT employment. 

However, since your I-94 was issued for Duration of Status, you are not accruing unlawful presence (for an explanation of unlawful presence go to http://www.visalaw.com/01nov3/12nov301.html).  This means that you will not have an automatic 3 or 10 year bar for receiving a new visa should you leave and apply for readmission on another basis, such as an H-1B. However, since you have failed to maintain your status, you may have a hard time getting a visa that required a showing of nonimmigrant intent, such as a visitor’s visa (B). As always, since you have been out of status, you should have a consultation with an immigration law attorney before leaving the U.S.

2) Question:

I’m 18 years old. Can I file a petition on her behalf of my mother to bring her to the U.S.?

Answer:

An 18 year old cannot petition for their parents. 

U.S. citizens can petition for an immigrant visa for their parents if the parent is outside the U.S. or entered the U.S. with a valid visa, but the U.S. citizen must be 21 to do so.