In our AskVisalaw.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 [email protected]. 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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QUESTION: I am helping my 99-year-old Grandmother file an I-90 to renew her green card. She is vision and hearing impaired and cannot speak, read or write in English. Also, she is physically limited and bedridden. With these conditions, would USCIS accept her application where her signature was just a mark on the signature box. If I signed as her preparer, would that be sufficient? Once her interview is scheduled, since she is physically bed ridden, are there other ways to help her get through her interview process or is there a way she does not have to go for an interview?
ANSWER: Except as explained below, applicants must sign their application forms. Any person who helps complete the form for an applicant should sign the form’s Declaration of Person Preparing Application. But the applicant still needs to sign the form as well. A signature does not have to be legible, in English, or contain the applicant’s full name. Where the applicant is incapable of signing their name, the applicant should be able to put down the mark that they normally use in lieu of a full signature.
However, a parent or legal guardian can sign for a child who is under the age of 14.
Also, a legal guardian can sign on behalf of an incapacitated adult. To be considered a legal guardian of an incapacitated adult, the person must have authority to sign as legal guardian on behalf of the incapacitated adult, either through a court appointment or through the execution of durable Power of Attorney or similar legally binding document. In such situations, a copy of the court order or Power of Attorney and evidence of the incapacitating disability, such as a letter from the person’s doctor, must accompany the form.
Form I-90 applications do not require an interview. However, they do require USCIS be able to acquire the person’s biometrics (fingerprints and photograph). This is usually done by scheduling an appointment for the applicant to appear at a USCIS Application Support Center. Where an incapacitated applicant is unable to appear for an interview or a biometrics appointment, evidence should be provided of the applicant’s inability to appear due to a physical, medical, or mental disability. In such situations, USCIS will either make necessary accommodations to allow the applicant to appear for an interview or biometrics appointment, waive the interview, arrange to send someone to the applicant’s residence to interview or collect biometrics, and/or arrange for the legal guardian or attorney to have the applicant’s biometrics collected and submitted to USCIS.
Also, currently the I-90 can be filed on-line on the USCIS website. But the application must still be submitted by the applicant, an authorized attorney, or a legal guardian (as described above).
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QUESTION: I have been in the US on a J-1 through the Teacher Exchange Program for almost three years, and my J-1 will be expiring on in June. I applied for an extension of my J-1 but my request for extension was denied. My employer applied for me for the H-1B cap quota and I was chosen in the H-1B lottery, and am waiting for approval of my H1B. With my J1 visa expiring this June, can I legally stay in the US while waiting for my H1-B approval and start working in October?
ANSWER: Your situation is a common one. At the end of your J-1 program, you will have a 30-day grace period, but that is not enough to cover the period until October 1st, the start date for your H-1B. So, if you do nothing, you will have a gap in your nonimmigrant status between the end of the grace period and the start of the H-1B.
You should verify whether your petitioning employer filed the H-1B petition requesting that USCIS notify the US consular post abroad so that you can apply for a visa, or whether your petitioning employer filed the H-1B petition requesting a change in status to H-1B. Which box they checked on the petition forms will matter. If they did not request a change of status to H-1B, and they instead applied for you to apply for the visa at consular post, then you will need to leave the US and apply for the visa to be able to return to the US in September (or later) to begin employment in the H-1B. This would be true whether you end up having a gap in your status or not.
If the petition requests a change of status to H-1B, then whether you are able to be granted a change in status to H-1B, without having to leave the US, would depend on whether or not you continue to maintain valid nonimmigrant status. If, as is your situation, your grace period ends before October 1st and you are not able to get an extension of your status or a change of status to cover you during this gap period, then USCIS would approve the H-1B petition (assuming you are otherwise eligible), but they would deny your request for a change of status to H-1B. So you would have to leave the US and use the H-1B petition approval to apply for an H-1B visa through the US consular post in your home country and then return in September in H-1B status.
Alternatively, before your grace period ends, you could apply for a change of status from J-1 to B-2 (visitor) nonimmigrant status to allow you to remain in the US in valid nonimmigrant status until October 1st, when your change of status would become effective. However, if you file this application, it is important that you are clear in the application that your reason for filing the change of status to B-2 is to allow you to remain in the US while awaiting the start of your H-1B employment. If you are not up-front about your reason for filing the change of status to B-2, it is possible that USCIS could decide that you are misrepresenting your intent, which would create a bar of inadmissibility that would make you ineligible for most future immigration benefits. There is no guarantee that USCIS will approve the change of status to B-2. You must still meet all requirements for the B-2. When USCIS is ready to adjudicate your H-1B petition, they will first adjudicate the application for change of status to B-2. If they deny the application for change of status to B-2 then you are back in the situation where you have a gap in your valid nonimmigrant status and they will deny the change of status to H-1B and approve the H-1B petition for consular processing. If they approve the change of status to H-1B, then they will then be able to approve the change of status to H-1B (assuming your petitioning employer requested the change of status.)
All of this, of course, is assuming that you are not subject to the requirement for certain J-1 nonimmigrants to return to their home country and reside there for two years, under INA Section 212(e). If you are, then you would need a waiver of that requirement before you could apply to change to another status or obtain a visa in another category.
Please note that for those foreign nationals in valid F-1 (student) status who have H-1B petitions chosen in the H-1B lottery, you may be eligible for an H-1B cap-gap. In that case, you would have an automatic extension of you F-1 status that would cover the gap between the end of your F-1, or F-1 grace period, or OPT, and October 1st. But that will have to be the subject of a different blog post.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.