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.

Q - I am a student currently in my Junior year in India. I am going for summer training in computer science on a J-1 visa. Does two year residency clause on J-1 applicants apply to me too? And whether after taking a J-1 visa will I be eligible for F1 visa next year for my PhD?

A - The J-1 program is an exchange program and in many cases applicants are expected to go home for two years in order to make sure that the skills they learned in the US are transferred back home. This requirement applies to all physicians coming in for graduate medical training, anyone who received government funding for their program as well as people coming to learn in an areas on a Skills List maintained by the State Department if their country is on the list and showing a need for the skill. Computer science fields are on the skills list for India so work in that field on a J-1 would trigger a two year residency requirement. You can get an F-1 after that, but it would have to be filed at a consulate and not via a change of status in the US (except with a waiver).

Some may question why, of all countries, India is shown as needing computer science help when it leads the world in this field. I doubt the State Department has a good answer since it has been more than 10 years since the State Department last updated the Skills List. We have recently sent an inquiry to the State Department asking them to review given that much has changed in the world in the last decade.

*****

Q - I was petitioned by my fiancé last march.  We got married last April. My visa expired last September and my application for green card is still in process.  Is it okay to travel within the US anytime? Do I need to secure permits?

A - Travel within the US is permitted if you can show the adjustment is pending (your receipt for filing would be enough). Travel outside the US will require an advance parole document which can be obtained by filing an I-131 petition with USCIS.

*****

Q - I am a permanent resident and my fiancée lives in another country. We plan to get married soon in the US. Can I file papers so he can stay in the US when we get married? What papers should I file?

A - Permanent residents can file I-130s for spouses to get green cards, but the wait is several years and there is no right to remain in the US during that time. Instead, you will likely want to look at either getting citizenship or having him pursue residency on his own (such as through employment). There is no queue for spouses of US citizens and the waiting is just for the processing of your application as opposed to waiting based on a set quota of visas per year.

*****

Q - My OPT was approved on November 11, 2006. How long does a company have to sponsor me for H-1B? 

A - The company will typically need to file as close as possible after April 1st and request a change date of October 1st. This is because of the strict limit on H-1B visas and the typical rush to fill the quota in the spring. But you should speak to your immigration lawyer to see if there is any possibility the company is exempt from the H-1B cap.

*****

Q - What acts amount to moral turpitude?

A - You might find the article I've written at http://www.visalaw.com/05apr2/2apr205.html helpful. Here is a passage discussing your question:

"Moral turpitude is one of the most amorphous concepts in immigration law.  There is no definition of moral turpitude, although many courts have attempted to construe one, using phrases such as an act of baseness, depravity or vileness.  While there is no set definition, it is clear that the moral turpitude involved must be part of the essence of the offense.  A crime involving moral turpitude need not have resulted in a conviction for it to render a person inadmissible, and admitting to an act that has the elements of a crime involving moral turpitude is sufficient to bar entry.  Where an actual conviction occurred, the only issue is whether the offense was a crime involving moral turpitude.  Where there is only an admission, a number of other steps are required.  First, it must be clear that the act admitted to could have been criminally prosecuted in the place where it occurred.  Second, the immigrant must fully understand the elements of the crime to which they have admitted.  Third, while the immigrant needs to say that he/she is guilty of an offense, he/she does need to admit to all of the essential elements of the offense.  Fourth, the admission must be totally voluntary."

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.