Important disclaimer - the information provided in these chats is not legal advice

MODERATOR: Welcome to chat at ILW.COM. Tonight our guest attorney is Mr. Greg Siskind, one of the best-known immigration attorneys in the world. His website URL is http://www.ilw.com/visalaw.

MR. SISKIND: Hi folks - My name is Greg Siskind. I am an immigration lawyer with a national practice. I am based in Memphis, Tennessee and have a practice with clients in all 50 states. Tonight I will answer your questions on immigration matters and update you on the latest developments.

Q: My F-1 Visa expired September 13, 2000 but my I-20 is still valid until September 13, 2001. I'm a full time student and will be graduated in January. I'm out of status since my F-1 has expired. Is there a good chance that I'll get an extension from the INS if I file for it? After graduation I would like to take the Optional Practical Training for one year. Am I going to get a new visa while doing my training? What kind of visa would it be? Do I have to leave the country?

Also, my fiancee is a permanent resident of the US. He is applying for naturalization. I will go back to my country after I have finished my training to get a job there. Before I leave, should I marry him or wait for him in my country until he has become naturalized? Thank you. By-the-way, we live in Virginia.

A: Just because your visa stamp has expired does not mean you are out of status. You are in status as long as your I-20 is current and you are complying with the rules of the student visa program. The visa stamp simply controls your entering the country, not how long you can stay once you enter.

As for getting the student optional practical training, you need to get your foreign student officer to help with this since they need to sign off. You do not need a new visa for this. By the way, if you leave the US, you will need a new visa stamp.

As for your fiancee, your decision making will depend on when he gets citizenship and when you need to return. You will probably want to sit down with your lawyer to discuss the benefits of each strategy.

Q: If a person is in the US on an L-1 visa, and transfers to an H-1B, does the time on the L-1 count towards the six years?

A: Yes. And vice versa.

Q: If the INS considers an adjustment of status case abandoned or closed, do they notify the applicant? Thank you.

A: Yes, the INS would typically notify the applicant. Of course, if the person has moved and is not getting mail, then this might explain why the INS considers the case abandoned.

Q: The recent INS regulation for Physicians who apply for National Interest Waivers says that they should serve in a waiver area for three or five years. If there is a change in the waiver location, a new immigration petition should be filed. Should an immigration petition be filed if there is a location change after completion of the three or five years respectively, and the I-485 process is still ongoing? Does this regulation apply to also those who have completed the requirement of NIW?

A: I think you may be interpreting the rule incorrectly. Why don't you call me tomorrow at 800-748-3819 and we can discuss this? The regulations are so new that I'll probably want to look at it closely before advising on your question.

Q: I am a Canadian citizen. My boyfriend of two years is an American. I have no criminal record and have never stayed in the US for longer then one week. I am planning on visiting him for two or three months. I will bring my six-year-old daughter with me. I am confused about whether or not I need a visitor visa. If not, how do I prove I entered the US legally and how do I provide proof of inspection? I don't want to jeopardize my chances of coming there permanently in the future. Thanks!

A: You would not need a visa to come to the US for a two or three month visit. As long as an immigration officer does not think you intend to stay and work here, you will probably be okay. As a Canadian, you would not need to prove a legal entry. You would normally need to just state that you entered with inspection. Canadians have it pretty easy.

Q: My husband is from Russia. He has Conditional Permanent Residency. Soon, it will be time to file for conditions lifting. Do I send it to the local INS office or to Nebraska?

A: File the I-751 at the service center. If there is an interview, it will be at the local INS office.

Q: My second H-1B is expiring in January 1, 2002. Today my company has decided to file for labor certification toward my permanent residency. If I do not get my labor cleared by my expiration date, can the company file an H-1B extension under the S. 2045 law, which says that if your labor certification or I -140 is pending more than a year, you can extend? I am not sure whether my labor certification has to be cleared before the expiration date of my H-1B? Does the I-140 have to be filed before the expiration of my H-1B? Please help. Thanks.

A: As long as you file the labor certification application at least one year before the H-1B expires, then you can file to extend under the new law.

Q: My company may go into bankruptcy. Can I change job now since I've had my I-485 pending for seven months?

A: If your adjustment application has been pending for more than six months, you should be able to switch under the new immigration law that was just signed. That section of the law became effective immediately.

Q: Hi. I self-petitioned as a battered spouse over four years ago. My status is still pending. I'm still married. Can he still file for me? I'm pregnant w/my fiance’s baby who is American. Or should I wait on my status, it's been over four years. I still have no answer from INS. What should I do?

A: I would go ahead and get divorced and get remarried and have your fiance file for a new green card for you. I would not wait on the other petition. But you should definitely have a consultation with an immigration lawyer first since there are several issues you'll need to discuss.

Q: I have a friend. He was on a J-1 with the two-year home residency requirement. He left the country and re-entered as F-1. Now he is an H-1B holder without the two-year HRR waiver. Do you think INS made a mistake in granting his H-1B?

Do you think my friend can get a green card without a waiver of the HRR?

A: Actually, your friend is pretty clever and has taken advantage of a classic loophole in the law. This strategy, in my opinion, is legal. But let's not get carried away. He will still have the small problem of a question on the I-485 form that asks if he is subject to a J-1 home residency requirement. So he cannot obtain permanent residency without first satisfying the HRR, or obtaining a waiver for it.

Q: My I-824 is at Texas Service Center. The receipt date is August 15, 2000. I call often to check the status of my case. Today, the recording said, “We are unable to find your file at this time.” Is that a good sign? Can it mean it has been completed there? My lawyer plans for me to consular process in Montreal.

A: No, this does not mean your case is completed and it is not a good sign. Have your lawyer investigate.

Q: I’m working under an H-1B at a university. I also have an I-485 as well as an I-131 pending. Due to unpredictable INS processing times, I’m not sure that my I-131 will be approved by the time I need to travel outside the US. How difficult will it be to get an H-1B visa in the US consulate? I have no H-1B entry visa, since my status was changed from J-1 to H-1B in the USA.

A: Getting the H-1B after a green card application is pending should be no more difficult than if a green card application was not filed.

Q: Thank you, Mr. Siskind, for your very informative and up-to-date electronic newsletter. Now, if we feel my wife's adjustment of status application has fallen into a black hole at the Los Angeles INS office, is there any mechanism other than calling NCSC 800 number to get an update?

A: Aside from peppering the agency with queries (which you should keep records of), you might want to work with a lawyer and consider filing what is called a Writ of Mandamus. This is a lawsuit to compel the INS to complete processing on cases. We are using this technique for slow processing cases with great success.

Q: I applied for my immigrant visa through the EB-1 category. I had requested consular processing. It was approved and Packet Three has been sent to Delhi. If I now apply for adjustment of status, would that be a problem?

A: Officially, the INS and State Department will consider dual adjustment of status and consular processing as a no-no. Immigration lawyers vigorously disagree with this and there is absolutely no legal authority supporting the government. Of course, there is basically no way for the INS to know you have been consular processing so there is not really much of a risk as far as I see.

Q: Can I-140 processing using EB-1, Labor Certification, and National Interest Waiver all move in parallel? I am doing my three-year requirement for the J-1 waiver. In the interim, an independent EB-1 petition has been approved for me. I plan to consular process. The EB-1 is job offer independent of my other visa application. At the time I consular process, I will be working as a physician in an under-served area. My EB-1 was based on my research experience. Will my having a “physician in an under-served area” at the time I consular process, be a problem? Finally, does the INS have to issue regulations before the signed S. 2045 becomes effective for practical purposes?

A: Yes, you can pursue a green card through multiple avenues. Immigration lawyers love this of course. If you obtained a J waiver on the basis of working in an under-served area, you must complete those three years, or you'll get your home residency requirement back.

Q: I am currently working for an employer on H-1B petition. If I want to get another part-time job from another employer. Can I start working for that employer once they file the new petition?

A: I read the statute closely today to answer just this question. My reading is that concurrent jobs are covered under the new portability rule and that you could start once the petition is filed.

Q: My current status is F-1. It expired in December 1999. I hired an attorney to file for my H-1B visa. But my attorney filed it late. It was filed in February 2000. INS sent an RFE asking why there was a delay of two months in filing the application. My lawyer says we were waiting for a prevailing wage before he could file the LCA. What can I do now?

A: Your lawyer probably should have filed without the LCA. I don't think the INS will be particularly sympathetic.

Q: I have a DV-2001 application approved with a current number. My forms didn't get to the NVC until September. As my number is current, does that mean I am guaranteed a visa or do we have to see what is available when the forms are processed? Thanks.

A: You would have to see what is available when you process at the end, but experience tells me you should be okay. The vast majority of people who are approved, get their DV visas. This assumes they are qualified.

Q: Given the anticipated improvement in adjustment of status processing times, is there any advantage to consular processing?

A: What is this improvement? This is certainly news that I would like to report in my newsletter :-). I don't think you'll see much of an improvement. Consular processing will certainly remain much faster for a while. Adjusting status still has the advantage of being able to process in this country, getting a work card while it is pending and the new advantage of being able to switch jobs after six months.