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 - I'm a Canadian citizen working on an H visa that is expiring at the end of 2004.  It says on your website that I can get a TN visa when the H expires.  If I do that, can I re-apply for H status after a year or must I leave the country for a year before re-applying for an H visa?  The reason why I ask is that my current employer promised me a Green Card which they have since reneged and I understand the H visa is the visa you want when you are applying for permanent status.

A - You can apply for the TN, but you must be physically outside the US for a year to get six more years of H-1B status.

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Q - I have a question about GC lottery. I am not married right now, but plan to get married in August 2004. In case I win the Lottery, will my spouse be able to go to USA with me? Or may be I should mention him as a spouse in Green Card application right now, even though he is not a spouse at the moment?

A - Your spouse would be able to enter with you. You would not mention him in the application you are submitting now unless the marriage had already taken place. As long as you can document that the marriage took place after the lottery application was submitted, you will be fine in not mentioning your fiancé.

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Q - What is the normal procedure for O1 visa holder to apply for green card? Do I still need to go through RIR in DOL? Or apply directly for I140 and I 485?

A - The O-1 is a very similar to the EB-1 green card category. The required evidence is nearly identical. However, the USCIS does not consider itself bound by its decision in an O-1 case and it is not unusual for a person to be in O-1 status and yet be denied EB-1 extraordinary ability status. Examiners frequently apply a tougher standard in the green card case. However, if you are an O-1, I would typically recommend trying the EB-1 and if that does not work, look at getting a labor certification. Of course, there are always factors in an individual case that may cause one strategy to be favored over another so I would consult with your immigration lawyer on this. Your lawyer can interview you properly to determine what are the best options. If you lack a lawyer and would like a consultation with me, please call my office at 800-748-3819 or go to www.visalaw.com/intake.html.

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Q - If I take the training program of EMS (Paramedic) that will begin in January in my Community College, and I will begin as a volunteer trainee, can I get a student visa with that, or is it not be possible?

A - Most of the time training programs like that do not offer F-1 student visas.  I would definitely check with the community college to see if it is an option, but my guess is that it will not be.  You may also want to do a search for institutions that are offering EMS training with an M-1 (vocational training) visa.  That is usually the appropriate visa for certificate trainings like that, but I am not aware of any schools that offer EMS training and an M-1 visa at the same time. 

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Q - I am running export business of hand tools. I am having 5 years multiple business visa of the USA. I arrived in the USA in 2001 & was given stay for 2 months, then I extended my visa from immigration department for 6 months more, but by mistake I stayed in the USA for 2 days more than my stay. Kindly reply to me that whether I can travel on this visa again or I will get problem on entering the USA.

A - Under the US immigration laws, if you stay in the US longer than your authorized period, the visa that you used to enter the US is automatically terminated under Section 222(g) of the Immigration Act.  222(g) is triggered even if you stay one extra day.  Under 222(g), not only is your visa cancelled, but you will also have to apply for all your future visas at an American Consulate at your home country.  You cannot benefit from third country national processing in Canada or Mexico unless you are a citizen of those countries.  Therefore, if you wish to return to the US, you are required to apply for a new visa at an American Consulate in your home country.

Here is the text of the law for your information:

INA Section 222:

(g)(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.

(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-

(A) On the basis of a visa (other than the visa described in paragraph (1) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or

(B) Where extraordinary circumstances are found by the Secretary of State to exist.

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Q - I am currently holding a H-1B Visa.  I am interested in a part-time MBA program.  Can I keep my H-1B status while I am studying part-time?

A - Yes, you can.  But you will not be able to work on-campus or accept a graduate/ teaching/ research assistantship, etc.

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Q - I am currently working in the US on H1B visa. This summer my company has filed Labor Certification petition as a first step towards my GC. Earlier, even before beginning to work in the US, I started my Canadian PR process. Last week my Canadian PR application was approved, and I was asked to send my passport for immigration visa stamp. Question: Will having Canadian immigration visa stamp in my passport jeopardize my US 'green card' application in any way? (I understand that I cannot be PR in both USA and Canada).

A - It should not be a problem as long as you maintain permanent residency in the US once your green card here is approved. The article on our web site at http://www.visalaw.com/01jan4/12jan401.html should be helpful in understanding how to maintain permanent residency in the US.