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 here with F-1 Visa and will have a H-1B visa possibly in few months.

And I am planning to get marry to a lady from Mexico who has overstayed her F-1 visa. Actually, she has also lost her F-1 visa due to a theft so that she does not have a passport currently and no I-94. She doesn't have status in here at this time. My question is that if I marry her, is it possible that she can get an H-4 visa?

A - Possible, but this won't be easy. First, I’ll give you the good news. Because she was on a student visa, it is very likely that the I-94 said "D/S" and did not have an expiration date. That means that she is likely not subject to the three or ten year reentry bar that many people violating their visa terms face. The bad news is that she will need to leave the country to get an H-4 because of the status violation and you will need to convince an immigration examiner that she is not going to violate her H-4 status later on. The natural question is why she did not seek to replace the lost documents? I also am assuming that your fiancée has not continued in school with a current I-20. That is a question that is also going to arise and a long status violation could very possibly sway a consular officer to deny the application. I would advise consulting an immigration lawyer before you make any moves as there are serious issues to address.

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Q - My brother was recently put on short term disability by his company because of health reasons. He has already received his EAD and has done his finger printing. His I-485 adjustment of status application was received by the government as of December 2003. Since his company chose to put him on disability, he wants to know if green card status is in jeopardy.

A - Short term disability should not be a problem. You might want to be prepared to document (via a physician) that the leave is just temporary and also get the company to write a letter saying that your brother will resume work shortly and they intend to employ him on a permanent basis upon his return.

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Q - I am a friend of an Ecuadorian family who lives in Ecuador. I am looking to find schools for two girls who have are just graduating high school and two boys wishing to enroll here in high school. Do you know how to find these schools? Also, do they need a lawyer?

A - They will need to come here with the F-1 visa.  Only a limited number of government approved schools are eligible for issuing the necessary federal admission documents (named SEVIS Form I-20s) for obtaining the F-1 visas.  The DHS keeps track of those schools and here is a link to see which schools are approved and which are in the pipeline.  If a school is not on this list, it will not work. 

http://www.ice.gov/graphics/enforce/imm/sevis/ApprovedSchools.pdf

http://www.ice.gov/graphics/enforce/imm/sevis/PendingSchools.pdf

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Q - I was browsing through looking for the answer to the following question - I am a US Citizen and I wish to sponsor my married sister and family. I understand that it may take more than 10 years (India). My question is that, if after I apply for her, will it effect her chances of coming on a work (H1) visa in case she gets a job here.

A - A citizenship application will have no bearing on the approval of an H-1B case. H-1Bs are dual intent visas and permanent residency intentions are not a problem.

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Q - My F-1 Optional Practical Training is expiring soon. What should I do if I want to get an H-1B when the new quota is available in October if my OPT is expiring in July.

A - Under the current rules, once your OPT expires you have 60 days to leave the country, begin new employment with the H-1B status, or change in to another immigration category.  If you find a job that will qualify you for H-1B status, because the cap for 2004 is reached, you will likely not be able to start your employment until October 1, 2004 (I’m assuming the position is not with a university or other exempt employer).  Therefore, even if H-1B is an option, you may still have to leave the country.  The day your OPT ends, your employer will have to take you off the payroll and you will not be permitted to work until your H-1B is approved and becomes effective. 

Last week we received good news - there is a proposed rule in the works that may enable people in your status to remain in the US until October 1, 2004 (even if their OPTs have expired and their grace periods have ended) if they have an H-1b approved for October 1, 2004.  This is not a final rule and we have not read it yet. Therefore, we suggest you continue to check our newsletter for an updates. Also, this rule will not let you work. It will only let you remain legally in the US. Again, this is something that we believe will happen, but it has still not been announced.