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 - Hello, I was wondering how long it takes to clear FBI background check after citizenship interview. I had my interview in October and was told that my application is still waiting clearance from the FBI.

A - The backlogs are an enormous problem and we have a large number of cases in our office waiting about as long as yours. The BCIS is silent about this, the American Immigration Lawyers Association is working busily to try and get the system ungummed and Congress is holding hearings to get to the bottom of this. So I really can't give you a clear answer. Sorry about that.

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Q - I am from Somalia and I just needed to travel to the USA in order to study there. How can I reach there if I live my country?

A - I'll be honest in telling you that getting a student visa will not be easy. Somalia's ongoing state of chaos will certainly factor negatively when you attempt to convince a consular officer that you will go back to your country when your studies are over. However, if you do wish to try, you would first want to get admitted to an educational program in the US, get an I-20 form and then apply at a US consulate for an F-1 or M-1 student visa. For more information on student visas, read the articles on the subject on our web site at www.visalaw.com/abcs.html.

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Q - I am a foreign student who just finished mathematics as a special student. I am accepted by XYZ University, a Jesuit (a Roman Catholic religious order) college for a PhD in Economics. I am also a Jesuit.

My problem is that my transfer from ABC College to XYZ University cannot be made.

1) I was issued I-20 by a American Jesuit School of Theology, to pursue Theology of Ministry which I completed on 17th May 2002. At the moment, I did not keep my own copy of I-20 issued by that school because I threw it away once I got a new I-20 from ABC in June 2002 to study mathematics at ABC.

2) I began mathematics at ABC College in June with a new I-20  issued by ABC on 19th June 2002. After the summer session, I planned to travel to Canada, the Niagara Falls in the beginning of August, therefore I asked the assistant dean at ABC whether I  needed her signature on the I-20 in order to travel outside the US. She answered that I did not need her because I had a new I-20. It would be not problematic if I went outside the US and came back with a new I-20. So I had been Canada with the new I-20 by ABC, but on the way back to the US, immigration officials did not do anything else on my I-20 (which ends 8/31/2003) and I started my studies of mathematics as a special student which I finished this May, 2003. I did not pay attention to official's negligence at that time since I did not know what it meant.

3) I had another chance to go to Canada last March, 2003, so again I  went to visit the ABC assistant dean to get her signature. I mentioned that the immigration official did not take any measure on my I-20 and she found my I-20 ran into a problem. Once my I-20 was not processed, she consulted with her office's lawyers and decided to reissue a new I-20 dated 25th February 2003. She asked me to ask immigration officials on the border to get my I-20 processed. Accordingly I did, but again immigration official did not get my I-20 processed.

4) Last April I got accepted by XYZ for PhD program in Economics starting this August 2003. After finishing my studies at ABC, I asked the assistant dean at ABC to take necessary steps for me to move to XYZ.

5) I completed my studies at ABC and am trying to spend this summer in the US rather than going back to my home country. I have an interview appointment with the American Embassy in Ottawa on 9th June.

6) XYZ will issue me with I-20 next week before my journey to Canada.

My questions are:

1) In this case, am I out of status?

2) Do you think my case is arguable in the Embassy, if necessary? I  did not do any wrong, I believe.

3) Which do you suggest to me between application in Canada and in

my home country?

4) Do you think it better for me to get a letter of account as to what happened to my I-20 by the ABC international students official for the interview in Canada?

5) Any other suggestions?

A - I don't think you are out of status. I suspect that because you came back on the same I-94 from Canada within 30 days of leaving the US, nothing needed to be done for you to reenter. Not positive about this and I am copying a colleague who deals with these type of student issues daily.

[My buddy Arda Beskardes at the University of Memphis was kind enough to assist with this question]

Mr. Siskind is correct: if your first I-20 matches the school mentioned on your visa, and if you attended that school for at least one semester, then you should be okay, and not out-of-status. The problem is you do not have your initial I-20. You should find at least a copy of that before applying for a visa. Contact your first school in the US as they should have kept a copy.

In situations like yours, it is too hard to determine whether or not you're out of status without seeing your entire file. Therefore, my opinion above is based on the information that you outlined. However, if you're not out-of-status, it really does not matter whether you apply in Canada or your home country. Finally, the advisors at XYZ are very experienced, and because they are more familiar with your immigration history, you really should rely on their advice.

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Q - What is the difference between H-1B labor condition applications (LCA) and the permanent labor certifications for green card petition?

A - They are completely different applications that have similar sounding names. The LCA is only to verify the wage and general working conditions with the employer. The labor certification application is the form that is used when documenting that American workers are not available to fill a particular position.

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Q - 1. Visa status of husband:f1; visa status of spouse:f2. I would like to know that if the baby is born as an American citizen [and is few months old] and then stays in parents home country what are the legal requirements to be fulfilled to maintain its American citizenship status?

2. If the baby is an American citizen can the mother apply for a green card and what are the chances of its acceptance?

A - If the baby is born in the US, the baby is always going to be a US citizen and need only apply for a passport. But the mother will get no immigration benefits until the child turns 21.

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Q - Regarding a question in your May 30th issue...

"Q - Hi! I am currently a H1 B holder whose green card application is in process. My question is once I get my EAD am I restricted to working with my current employer or do I have the option to change jobs before I get my Green Card?

"A - The law allows someone who has had an adjustment application pending for more than 180 days to switch employers if the new job is in the same or a very similar occupation. That sounds straightforward, but there are no BCIS guidelines here so you will want to be VERY cautious lest you get a BCIS examiner who takes a very narrow view of the law."

Does this answer only pertain to employer-sponsored adjustment of status cases? My wife is an H1B adjusting status to legal permanent resident. I am sponsoring her. She has not left her company, but I thought that when she got her EAD should could work any job for any company. Is that incorrect?

A - For family-based adjustment cases, this does not apply. She can work for any employer she likes on her EAD and need not stay with one for any particular length of time.

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Q - I was on J1 visa then moved to F1 visa. I am waiting now to get my J1 waiver. My question is do I have to go out of the USA to change my status to H1B after I get my waiver. I am now F1 visa type but I was on J1.

A - Once you have the waiver, you can change to H-1B status from within the US.

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Q - I hope you can give me an answer to this scenario. A U.S. citizen father petitions for his married daughter. The daughter has three children that can also benefit from the petition, as derivative beneficiaries, just like the spouse.

One of the three daughters marries, and three years later becomes an American Citizen by virtue of being married to an American Citizen. She wants to immigrate her parents as immediate relatives but is concerned that the her brother and sister will loose their chance to immigrate.

What do you suggest she should do? The priority date for her mother, based on her fathers petition will probably take another three years to become available. Her mother is from the Philippines.

A - The married daughter's concerns are valid. A child who petitions for her parents cannot bring her siblings in under the same petition. So you will have to either stick to the current petition (assuming the kids will remain under 21 until the priority date becomes current) or find another visa strategy.