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ONLINE CHAT TRANSCRIPTS

ILW.COM - 05/04/2000

An Important disclaimer - the information provided in these chats is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Viewers must not act upon any information without first seeking advice from a qualified attorney.

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(Mr. Greg Siskind, is tonight’s featured guest speaker.)

Q: Could you please give the latest information on the national interest waiver required for a J visa to switch to H-1B? Is it advisable to apply for an NIW, and would we be able to change locations to medically under-served areas (MUA’s) or health-care provider shortage areas (HPSA), after first three years.

A: For the benefit of others here, I should define a few terms. First, you are a doctor and you are serving a Medically under-served Area/Health Professional Shortage Area in H‑1B status for three years in order to get around a special requirement that forces doctors to go home for two years after completing a residency program.

After you have met the three-year test, you are free to move to any location you want. You can apply to change in advance of reaching three years in the HPSA, but you must not ask for a start date sooner than the three-year anniversary.

Q: Hi I am a US Citizen married to a Canadian Citizen What is the fastest way for her to get a green card? Is the I‑130 the only option or do I have other options? Also do you have any idea on how long the I‑130 processing takes from Boston?

A: It depends on a couple of factors. First, where is she located? If she is in the US, you are usually best advised to apply for adjustment of status at your local INS office. You could file the I‑130 together with the adjustment application. If she is outside the US, you will usually have to consular process and she would not be able to enter the US for at least six month and possibly more. You would first need to get an I‑130 approved. By the way, if she is here illegally and entered illegally, then she could have big problems adjusting status.

Q: I realize this chat if for those seeking assistance with their immigration status. I am an attorney and am interested in learning about immigration law and doing some pro bono work for special cases. Could you kindly refer me to any organizations that train attorneys and provide pro bono assistance for hardship cases? Thank you.

A: There are a number of places to look. First, you might look to the local chapter of the American Immigration Lawyers Association. Many lawyers get cases appropriate for pro bono assistance but they don't have the capacity to take on the case. Your AILA chapter is a good way to network as well as to get mentoring support (particularly from the experienced lawyer who may be referring the case).

I would also contact the local bar association to see if they have a pro bono organization that is responsible for recruiting attorneys to take pro bono cases. You may find that not only does such a program exist, but it may have a special section for immigration cases.

Another place to look is to the Immigration Court in your area. In my hometown of Memphis, for example, the Immigration Court has training programs and a pro bono referral projects. There are also various organizations around as well that refer matters. These include the National Lawyers Guild, the American Civil Liberties Union, Catholic Services, Jewish Family Services, Lutheran Services, and a host of ethnic social service organizations. Sometimes law schools also have immigration clinics and there may be an opportunity to "audit" in order to get up to speed on these cases.

Q: In 1983, my brother applied for a 4^th preference category family visa for me. The petition was approved in 1983. On the approval letter, it was outlined that the approval had been forwarded to the US consulate in London, England and that when my turn is reached on the visa waiting list, the embassy would inform me and consider issuance of the visa. A copy of the notice of approval was submitted by me to the US embassy in June 1983. In 1988, I moved to a different house and informed the US Embassy of my change of address. I recently wrote to the embassy asking for the progress of my application. Their reply was as follows: "After a thorough search of our files, we cannot find a record of an immigrant visa application in your name. We assume that you did not apply for your visa in a timely fashion and that therefore your application was canceled in accordance with section 203(g) of the Immigration and Nationality Act." What should I do?

A: The only thing really available here is to file a Freedom of Information Act request to actually track the file down. Try and supply the consulate with as much information as you can regarding the case including any correspondence on the case.

Q: If I don't have a passport. While waiting for the adjudication of an I‑751, would the INS issue and stamp I‑94/I‑551 due to the lack of passport? If not, how would this be handled?

A: I am not positive if there is a uniform policy on this, but in the cases where this has happened for my clients, the INS will stamp a paper form with the I‑551 stamp instead of a passport.

Q: I have applied for a NEW H-4 Visa with the Calif. Service Center based on my husband's new H-1B. I have yet to receive the approval notice. I’m planning to go abroad within two months. My current I-94 is valid until July 2000. I have to revalidate after getting the H-4. So what are the consequences of me going abroad before getting the new visa &and revalidation done?

A: If you leave before the H-4 is approved, you will need to reenter on the current visa and then leave and reenter again H‑4 gets approved. A change of status application is really asking for two things ‑ one is approval in the requested status; the other is asking to change from one status to the requested status. If you leave and reenter, then you will be considered to have abandoned your request to change categories, though not the underlying visa status. That means that you would not need to reapply for the H4 with the INS. But you would need to get the visa stamped at a consulate and then enter with that visa in order to be legally here on the H‑4.

Q: Can I apply and be granted a travel document, while my I‑751 is pending? Is it true that the processing times for I‑751 are typically different for each applicant based on the level of suspicion, irrespective of what the processing‑time report actually states?

A: I believe you would just need your green card and a receipt showing the I‑751 is pending. The only caveat is that this will only suffice for a year.

Q: My daughter and I are green card holders and my husband, who is my daughter's stepfather, is a US citizen. I am wondering whether my husband can apply for naturalization for my daughter by filing N-600 form?

A: No, the step-father could not file an N‑600. Your daughter will either petition for her own citizenship after she has been a green card holder five years or if she is under 18, then she could get her naturalization derivatively through you if you are naturalized.

Q: An alien currently married three years pending a green card-will that person receive a conditional one or permanent one? I have heard both. Regardless of the length of marriage it will be conditional and also the married over 2 years it will be permanent?

A: If you are married more than two years at the time you are granted permanent residency, the green card will be granted unconditionally.

Q: I need to request a recommendation for a waiver based on the no objection statement. I have no idea what to write in the statement regarding the reasons for not wishing to fulfill the two years. Is it possible to get a sample statement? Any suggestions?

A: There is no magic language. You might write that you wish to pursue training not available in your home country or that there are no job opportunities in your field in your home country or that you have an American spouse or child or a host of other reasons. The State Department generally recommends waivers in all no objection cases unless there is government funding or graduate medical training involved.

Q: Is it true that INS is not reviewing national interest waiver applications for physicians working in health provider shortage areas? If so, then when are they going to start reviewing them again? Are there any regulations regarding the same?

A: Unfortunately, the INS is skirting its responsibilities and is not approving these cases. Rather, it is accepting the cases and simply not working on them until it issues a regulation. Given the INS' track record in issuing regulations lately, it could be a long wait. Many immigration lawyers are encouraging clients to sue the INS to force them to rule on their cases?

Q: I am a J‑1 visa holder with the two‑year country residence requirement. If I apply for an O‑1 visa, do I still have to comply with the two‑year residence requirement?

A: If you are approved in O‑1 status, you would need to leave the US, get an O visa in your passport and then reenter. This will not get you out of the home residency requirement, but it could buy you time until you can build a good case for a waiver.

Q: My Ukrainian friend wants to study English at Chico State University in California. She applied for an F‑1 visa with full support: Her application for the visa included letters and faxes from the Admissions Director at Chico State and letters from her employers at the travel agency in Yalta where she works, explaining that she needs to know English to do her job. She owns property and has family in Yalta. Her application for an F‑1 visa was rejected twice for reasons that are not clear to me. She intends to apply for the F‑1 visa again. Do you have any suggestions?

A: One of the key requirements for a student visa, is that the student demonstrate that they intend to go home when their studies conclude. This is particularly difficult for people from countries in difficult economic times, since it is logical that many people leaving, would have no incentive to return and would stay illegally in the US. Furthermore, if one is rejected for a visa, the consular officer will apply an even tougher standard on a subsequent filing. It gets tougher and tougher each time a visa application is denied. So your friend may find it almost impossible at this point to get an approval.

Q: I have read your answer to a question posted on 4/22 transcript. I am in the same boat, I am also on F‑1 practical training period. I also have a two-year home residency requirement remaining due to previous J‑1 visa. I am also waiting for waiver approval. My employer has already filed an H‑1B petition for me, (not a status change). INS sent the case to Department of State for consular processing. It seems like I can just submit a request to change status here? Is that correct?

A: I take it you want to change status instead of consular processing. You would need to submit an I‑824 to the INS to have them convert to a change of status approval.

I was involved in a teleconference last week with about twenty other immigration lawyers on the issue of switching to an H‑1B in the US if one reenters on a status other than J‑1. There was general agreement that this is consistent with the plain meaning of the law, though it is still a controversial question. I am advising clients that this is a valid option, though I add the caveat that if the INS got wind of it, we might have to fight them on it.

Q: My sister has a shoplifting misdemeanor conviction. She truthfully filed I‑485. Now that she's got green card, we want to know if she has any problem for citizenship application. What document should she prepare for that? Any chance being denied?

A: Your sister should be really careful about applying for citizenship before speaking with an experienced attorney. The INS can apply changes in the law from 1996 to retroactively reopen the question of deportation. She'll need to make sure she is not opening up a "can of worms" by submitting the citizenship application. Generally, a shoplifting misdemeanor would not be enough to trigger a problem, but it will depend on the exact definition of the offense and the sentence imposed.

Q: I have an RN license and a hospital is ready to file an I-140 petition for me, but I am out of status. I am aware of the three and ten year bars for people who overstay their visas. Will I have trouble getting a work permit while my adjustment is pending? If so, can I keep renewing it despite the 245(i) expiration?

A: You could very well have a problem if the reentry bars apply to you. Whether you are subject to the reentry bar is a complicated issue, and you should consult with your immigration lawyer.

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