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 - You always state the processing times for many documents but what about for N-400 "application for citizenship"? What is the processing time for this application for Texas center?

A - Those cases are only filed for data entry at Texas and then shipped off to local BCIS offices. The reported times at the local offices include the Texas part of the case. You can find out these times on our site at www.visalaw.com/localtimes.html.

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Q - My college counselor recommended me to contact you regarding my case of obtaining an F-1 visa.  Currently, I hold a J-2 visa on a passport from People's Republic of China; my visa will be expired on this September when I reach twenty-one. My visa is subjected to 212 E rules. Do you think it is possible for me to obtain an F-1 visa?

A - I'm assuming that getting a waiver is not going to happen. But you are permitted to get an F-1 visa if you leave the country and apply for the F-1 at a US consulate abroad. You are only prohibited from changing to an F-1 from a J-1 in the US. Of course, qualifying for the F-1 visa is not a given. You might read the articles I've written on F-1 visas on our web site at www.visalaw.com/abcs.html.

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Q - If a woman gives birth to a child here in the US and the child is a citizen, is the woman entitled to any kind of immigration status (I believe she was here illegally when she had the child ten years ago).

A - Until the child turns 21, there is virtually nothing a US citizen can do to help a parent. At that point, the child can apply for the parent's green card. If a person is here ten years continuously and is put in deportation proceedings, having a US citizen child may be enough for a judge to grant cancellation of removal and permit someone to get a green card.

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Q - I am currently working on an H1B Visa and I am thinking of applying into graduate school for the fall of 2004.  By then I would have used 42 months of my H1B visa. It is it possible for me to change to F1 status, go to graduate school and then change back to H1B status when i graduate and use my remaining 30 months on my H1B visa?

A - Yes. You can still reclaim H-1B time if you switch to F-1 status and switch back.

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Q - As permanent resident, can I apply for permanent residency status for my mother?

A - Unfortunately, you can only apply for a parent's green card if you are a US citizen.

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Q: I have a legal issue that i was wondering as to whether it will affect my DV-2003 result which is currently being reprocessed after i was not available for the first interview.

I am in Australia and have recently got my police record check back from the state i live in. There were three cases on this. Two of which showed "no conviction" was recorded (one as a minor - intent to steal and the

other was offensive behavior and hindering the transit security). The case that i am worried that would affect my application is a minor assault charge (drunk fight at a hotel) that i was convicted and fined. I did not have to goto jail or anything that serious, just had to pay a fine.

My enquiry is:- Will any of these previous charges (especially the conviction) affect my chances of receiving the VISA? Also is an assault charge an act of moral torpitude?

A: A conviction is defined as a formal judgment of guilt entered by a court or if adjudication has been withheld, where all of the following elements are present: 1.  a judge or jury has found the alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and 2.  the judge has ordered some form of punishment, penalty or restraint on the person's liberty to be imposed.

If there is no conviction as defined above than there are no immigration consequences. If you received some sort probation or deferred conviction, however, it is a conviction for immigration purposes.

Generally, a conviction for simple assault without any aggravating circumstances is not a crime involving moral turpitude. If it was a petty offense, that is, where the maximum penalty "possible" (not the penalty imposed) was less than one year and the alien was not sentenced to a term of imprisonment of more than six months, regardless of the time actually served, it would not be a conviction for immigration purposes under the petty offense exception.

I could not tell from your e-mail if you were talking about a petty offense or an offense committed while you were a juvenile when you said it was a "minor" assault charge.  For what it is worth, juvenile offense are not convictions for immigration purposes.

[Thanks go to Jack Richbourg, our resident deportation expert in our Memphis office]