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 J1 visa holder currently on my second year of a three-year program subject to two year home country residence rule. Country A is my country of citizenship when I got my US J1 visa. Recently, I got my immigrant visa approved for country B (not USA) and it is a state sponsored visa requiring me to fulfill residence requirements before I become a citizen. Would I still need to fulfill the two year rule in country A or get a waiver so I can enter the US again in the future even if I am already a citizen of country B? Are there existing policies about cases like this? Thank you very much for any help and/ or answers you can give me. Please advise me on what steps to follow and how your firm can help me in this regard.

A - You would need to fulfill the requirement in Country A or any other country of which you had citizenship or resided permanently BEFORE coming on the J-1 visa. You can't do the two years in countries that come into the picture after you start on J-1 status.

***

Q - Hi, my Grandmother (US CITIZEN) filled in a petition for my mother (Divorced, over 21) in the end of 2000. At this time I was 16, so far we haven't heard anything from the INS whatsoever. The INS received our I-130 before April 2001. Do we qualify for the benefits of the law or amendment 245(i)? And how long (average) will this process take? Also will I be eligible for the green card if I am over 21 when we get their response?

A - If your mother was in the US on December 20, 2000, you can all benefit from 245(i). According to the Visa Bulletin (http://travel.state.gov/visa_bulletin.html), the 1st Preference, adult children of US citizens, is currently on February 2000. If your Mom's petition was filed in December 2000, it should be current in approximately 1 year. If at the time it is approved you are under the age of 21, you will be fine. If you are over 21, your situation will have to be analyzed using the formula in the Child Status Protection Act to determine if you will benefit.

***

Q - My husband and I are GC holder, and are fighting for the divorce. In my situation, will the divorce and family abuse affect my naturalization processing, my husband don't agree to separate, I have to stay alone (in past one year), we can not file together, will it be any trouble for the interview?

A - The main effect on naturalization will be in terms of timing. Spouses of US citizens typically can file for naturalization two years and nine months after becoming a permanent resident. Others usually must wait until four years and nine months have passed. So if you are separated or divorced, that may delay your filing. But it should not affect whether you qualified for naturalization.

***

Q - A friend has an approved F3 family based petition with priority date May 1990. NVC already sent her Packet 3 and she has paid the Visa Fee and Affidavit of Support review fee. Right now there has been a retrogression. They are processing Mar 1988 priority date. Presently she is vacationing in the US on a B1B2 visa valid until 2008. Can she adjust status while there or can she continue with the process there? Can she get a work permit? What happens to her spouse and minor children left in her home country?

A - The only way to file an adjustment application is with a current priority date. If it has retrogressed, your friend will have to continue waiting. In cases where someone has filed an adjustment application in the US and then the date retrogresses, the BCIS will normally allow one to continue remaining in the US with a pending application and will simply hold off on making a decision in the case until the priority date is again current. It sounds like your friend is going to have to continue waiting outside the US.

***

Q - I have a question regarding my sister. She is abroad and was admitted to University A for a MS program. She was issued I-20 form and obtained a F-1 visa. Meanwhile, she was accepted to University B on the Ph.D. program. She would rather go to University B. The question is: can she go to University B using her F-1 visa or does she have to study for one semester at University A and then transfer?

A - If your sister entered the US before with the University A I-20 and visa and attended University A for a semester and now wishes to return to the US to study at University B, then it is okay, she can do it. However, if she has not used her University A visa before, and has not attended University A, then there is trouble: At your first entry to the US in the F-1 status, the school listed on your visa must match your I-20. Sometimes immigration officers waive that requirement and agree to stamp the student's new I-20 rather than the one that she got the visa for, but after SEVIS, that is a big risk to take.

If a student's visa and I-20 at entry state "School A," but the student after entry reports immediately to "School B," then that student is out-of-status and must apply for a reinstatement because a student is not eligible to transfer if he or she was not pursuing a full-course of study at the school that she was authorized by the immigration to attend (that will be School A). So, if your sister really wishes to attend University B, she should contact them to see if they can assist her in obtaining a visa.