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 an Australian citizen.  I plan to visit my boyfriend in the US who is a foreign student there on an F1 visa.  I understand that I can stay in the US for 90 days without a visa under the visa waiver programme between the US/Australia.  Once the 90 days expires, what can I do to re-enter the US legally?  Is it simply a case of leaving for a short time and later re-entering the US for another 90 days?  Could I look for work whilst in the US to take advantage of the new E3 visa issued to Australians under the Aus-US Free Trade Agreement? 

A - You are correct that the Visa Waiver program allows Australian citizens to enter the US for up to 90 days as tourists or business visitors without having to get a visa stamp first. The 90 days cannot be extended and it would necessary to leave the US before you could get an additional stay in the US. Note that if you leave and seek to quickly reenter the US, this could be taken to mean that you are not really a tourist and are making the US your place of residence.  

You can seek work in the US while here on the Visa Waiver and if you find a sponsoring employer and can meet the rules of the particular visa program, you can leave the US to process a visa at a consulate. The new E-3 visa is not yet available and it will likely be no earlier than September or October before it becomes available.  

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Q - I recently filed a green card petition for my mother. My mother has two minor children.

How can I get my mother's children to come with her without filing for them separately? 

A - Unfortunately, this is a common question and a problem with no easy solution. Your mother's minor children are not entitled to come in as part of the same petition. You have a couple of options, none of which are likely to be what you want to hear:

1. File for the kids separately (and wait the 12+ years for the priority dates to become current)

2. Have your mother enter as a permanent resident and then re-file for the kids after that (and wait several years on those cases to become current)

3. Have your mother enter on a non-immigrant visa and bring the kids as dependents (assuming your mother could qualify for a non-immigrant visa which may be a big assumption)

4. Have the kids seek non-immigrant visas of their own (perhaps student visas) and then hopefully later be able to pursue a longer time visa strategy on their own or through you or your mother.

There could be other options to discuss with your immigration lawyer, of course. I've seen many cases where a parent delays entering the US until the non-sponsoring children are older and can live independently. But I know it is a difficult dilemma for many families.

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Q - Is there any regulatory impediment for an individual to remain in the US as a J-1 overstay, obtain a waiver of the 2 yr HRR and then apply  for adjustment under Section 245(a) as the spouse of a US citizen without leaving the U.S.?

A - A marriage to a US citizen and a waiver of the home residency requirement would be enough in most cases to get permanent residency. The status violation could complicate the case, but it should be an obstacle your immigration lawyer can address.  

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Q - A child is born in the US to parents who currently holding H-1B and H-4 status. Does this provide any immigration advantages for them? 

A - The child is a citizen, but he or she cannot sponsor a parent for anything until he or she turns 21. So the benefit to the parent is pretty remote. 

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Q - My EB I-485 has been pending for 3 months. I-140 has been approved. I work with an EAD. Because my health is not good, I may have to ask for a short term disability leave. If the CIS issues the RFE about my employment or adjudicate my I-485, I will immediately go back to work. My question is whether I have to keep working full time during the period of I-485 pending. Thank you for your answer.  

A - If your case is based on a labor certification, the key is whether you intend to work for the employer when the green card is approved, not WHILE the green card application is pending. So a short term disability should not have a seriously negative effect unless there is a question of whether it is really a permanent leave. And returning to work in a reasonable time will dispel that notion.