Ask Visalaw.com

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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Q - I came to the United States in 1999 on a student visa to do my Masters, got my practical training card in 2000 April, and worked ten months for a financial institution, in 2001 Feburary I got married to a permanent resident, and he filed Visa for a fiancee/ orphan for me. My question is that our application for a fiancee visa was postmarked and mailed on the same day as the practical training card was going to expire - did I go out of status?

A - Unfortunately, marrying a permanent resident and filing an I-130 does not keep you in legal status. There is a quota in the visa category for spouses of permanent residents and until your case has moved to the front of the line, you are not entitled to remain in the US. The only way to stay would be to remain on a visa in your own right such as a student or work visa. Obviously talk to an immigration lawyer here.


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Q - My friend's OPT will expire 07/04. Since the H1b quota will drop to 65,000 starting from 10/03, is it a good idea to start applying for H1b now?

A - I think it would be a good idea to apply for the H-1B visa as soon as possible given the uncertainty of visa availabiliity. Of course this assumes that the job your friend is seeking is subject to the annual H-1B quota. University jobs, for example, are not. Ideally, your friend could wait to make sure that the job where she is working is really the best one for her. But being so cautious could mean losing out on a visa all together.


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Q - My finacee recently filed for a H1b thru' her company. She was here on a J1 visa which expires on august 8th. After the filing we received a request for evidence which we duly replied to. We are still awaiting a decision on the filing. My question is...if the petition is denied what are her options? Can she file to reopen and then stay in the country till a decision is reached? Or does she have to return to her country and wait for a decision.

A - If the decision is denied, your fiance is not entitled to remain in the US merely because she filed a motion to reopen or an appeal of the decision. She could take the risk of staying, however, and if she wins, she would generally be approved back to the date of the original application. But if she loses, it is as if she was out of status back to the date of the original denial. So the risks are real here.


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Q - I'm on an F1 visa which will expire next February. I just graduated from college in May of 2003. However, the college that I was at has not done the necessary adjustments to incorporate the SEVIS. As a result, when I filed for OPT, a letter was sent back to me requesting a SEVIS I-20. What can I do if the school did not issue international students with new SEVIS I-20s? Its been over 4 months since my application and time on my visa is reducing. Im I able to continue with OPT even if my visa expires?

A - You have 12 weeks from the date of that letter to send a SEVIS I-20 to the government for your OPT application. If your school is approved by that time, you will be able to get an OPT. But, even if you do, you will probably lose several months of this due to the delay. If your school is not approved on time, then you face the risk of being out-of-status. In that case you may want to change your status to a different immigration classification or leave the country. Or, if you are interested, you may want to transfer and start a new program (preferably graduate or another undergraduate concentration) in a SEVIS approved school. That way you will be eligible for OPT at the time that you graduate.


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Q - I've been denied several times of a b1/b2 visa eventhough my objective is to attend a conference/training.why is that?

A - Basically, you have not convinced the consulate that you will leave when the conference is over. There could be a variety of problems - not enough assets in your home country, not a strong enough job in your home country, bad conditions in your country that are resulting in many people overstaying visas in the US, not enough family in your country or close relatives in the US, etc. Hard to say for sure, but once you are denied the B visa, it is very rare to get a consulate to change its mind. You probably need to look at other visa categories if you want to come to the US.