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 am a landed immigrant of Canada from India. I came to the U.S on Student Visa in August 2001 from Canada. At that time, i did not need to get F1 Visa. I just entered on F1 status valid until D/S and INS stamped on I 94 and I-20 of the school. I am currently on OPT and it will be expired in February 2004. Now, I want to do another Master Program at school. Can I continue my F1 status?  After getting an admission, can I re-enter to the U.S on the basis of new I 20 and my F1 status and I 94 card valid until D/S since August 2001.

I'm in the U.S and if my H1B approve, can I reenter to the U.S from Canada directly or do I have to apply at U.S consulate in Canada for H1B VISA? Is there any visa stamp H1Bin the passport?

A - Even though you are a landed immigrant, you will still need to apply for a machine-readable visa (and a machine readable passport if you have an older passport) before returning from Canada.  You will need to apply whether you want the F-1 status or the H-1b status again.  If you stay in the US and want to transfer to a different US school after your OPT, this may be possible without applying for a new visa, but the next time you leave the US to visit Canada, you will need to apply for a visa to return.  A visa application in your situation (assuming that you have been maintaining your status) should not be a problem.

You can find more detailed information about the Canadian visa requirements at:

http://www.usconsulatetoronto.ca/content/content.asp?section=visas&document=landed_newrequirements_021803

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Q - I'm a student in California under a J1 visa, and I applied for a 100% time job, I have great chances to get that job but the university said that I'm only allowed to work 50%, otherwise they discontinue my visa, send me back to my country and I have to live there for 2 years before applying for a new J or H visa. My question is if is there any exception to that law or possibility to change my visa immediately, w/o the 2-year rule?

A - Your responsible officer ultimately decides whether or not you can work full-time or part-time and who you can work for.  If they are not permitting you to work full-time, that may be because you are still taking classes and you have not graduated yet.  If you are subject to the 2-year home country residency requirement, then you may have to get a waiver before you can stay in the US longer or before getting a work visa.  It is a fairly complicated process.  Please send me more information about what you do, how long you have been in the US, etc. and I will try to assist you more.

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Q - My mother has just immigrated to U.S and is a green card holder. She is from India. If she sponsors her children (all unmarried - 2 in India and me, a Canadian Citizen in Montreal, Canada) how would the case be handled for me. Will I be treated as a Canadian citizen and under Canadian quota or since my mother is from India I will be treated in Indian quota? Can you tell me what is the current processing time if under Canadian quota?

A - You are not likely to see much of a difference in the processing of the case. There is no backlog for Indian family petitions so the waiting time for Canadians and Indians is the same. You should expect the wait to be several years - probably at least six.

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Q - I wanted to ask how the 36 month limit on J1 status was counted from when you enter the US initially or from the start date on the DS2019 (IAP66). Also, does this 36 month limit apply on a 'per program' basis or is the limit on the sum of all J1 programs? And how hard is it to get an extension to the 3 year limit? I have been told you need an excuse like "The lab burned down and all the monkeys died".

A - 1.  The three years for a research scholar/ professor in the J-1 category starts counting from the day that they entered the country in the J-1 status or from the beginning date of their DS-2019, whichever comes later.  Example:

DS-2019 covers from 01/01/03 to 12/31/06.  J-1 does not enter the US until 02/01/03.  The three years begin on that date.

DS-2019 covers from 01/01/03 to 12/31/06.  J-1 enters the country early on 12/01/02.  The three years start ticking on 01/01/03.

2. The three year limit applies to the entire stay in the US. So, if the J-1 spent one year with Sponsor A, and then transferred her program to Sponsor B, he has only two years left. The J-1 may leave the country at the end of his program, and then return to begin a new program subject to the 12 month rule. This is different than the two-year home country residency requirements and is often confused with it. It is a very confusing area of the regulations. Basically, what it says is for a person to be eligible for a new research scholar or professor program:

22 CFR 62.20(d)(ii) The participant has not been physically present in the United States as a nonimmigrant pursuant to the provisions of 8 U.S.C. 1101(a)(15)(J) for all or part of the twelve month period immediately preceding the date of program commencement set forth on his or her Form DS-2019, unless:

(A) The participant is transferring to the sponsor's program as provided in Sec. 62.42; or

(B) The participant's presence in the United States was of less than six months duration; or

(C) The participant's presence in the United States was pursuant to a Short-term scholar exchange activity as authorized by Sec. 62.21.

So, if you wish to bring a participant back with a DS-2019 for a new program beginning on 01/01/03 and if the person is outside of the US, you look to see if the person was in the J status in the last 12 months (from 01/01/02 to 12/31/03), and then you see whether or not he was in the J-1 status for more than 6 months. If not, then he is eligible. So, let's say that this person left the US after completing a 3 year J program om 5/30/02. He will be eligible to begin a new program with a DS-2019 beginning date of 01/01/03.

3.  It is possible to authorize an up to 6 month discretionary extension if the person's program objective is not complete. The extension should be given by the responsible officer after close scrutiny. Because this is based on RO discretion, it is a much less stricter standard than extensions beyond the 6 months. If you can document that the J-1 needs up to 6 months to finish up the research, then that is fine. You can do this through SEVIS and there is a work-around specifically for this.

If you wish to extend it beyond 6 months (Department of State has the authority to extend it up to 6 years), you need to make an official request (with a fee) to the EVP. The participant must be funded by her government or the US government and you must have a compelling reason.  If this is a NASA sponsored scholar, it should be possible. You can find the regs about extensions at:

22 CFR 62.20(h)(i) Duration of participation. The permitted duration of program participation for a professor or research scholar shall be as follows:

 (1) General limitation. The professor and research scholar shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete his or her program, which time shall not exceed three years.

 (2) Exceptional circumstance. The Department of State may authorize a designated Exchange Visitor Program sponsor to conduct an exchange activity requiring a period of program duration in excess of three years. A sponsor seeking to conduct a discrete activity requiring more than the permitted three years of program duration, but less than six years of program duration, shall make written request to the Department of State and secure written Department of State approval. Such request

shall include:

  (i) A detailed explanation of the discrete exchange activity; and

  (ii) A certification that the participation of selected research scholars will be financed directly by United States or foreign government funds.

 (3) Change of category. A change between the categories of professor and research scholar shall not extend an exchange visitor's permitted period of participation beyond three years.

   (j) Extension of program. Professors and research scholars may be authorized program extensions as follows:

 (1) Responsible officer authorization. A responsible officer may extend, in his or her discretion and for a period not to exceed six months, the three year period of program participation permitted under paragraph (i) of this section. The responsible officer exercising his or her discretion shall do so only upon his or her affirmative determination that such extension is necessary in order to permit the research scholar or professor to complete a specific project or research activity.

 (2) Department of State authorization. The Department of State may extend, upon request and in its sole discretion, the three year period of program participation permitted under paragraph (i) of this section. A request for Department of State authorization to extend the period of program participation for a professor or research scholar shall:

      (i) Be submitted to the Department of State, unless prevented by extraordinary circumstance, no less than 60 days prior to the expiration of the participant's permitted three year period of program participation; and

      (ii) Present evidence, satisfactory to the Department of State, that such request is justified due to exceptional or unusual circumstances and is necessary in order to permit the researcher or professor to complete a specific project or research activity.

 (3) Timeliness. The Department of State will not review a request for Department of State authorization to extend the three year period of program participation permitted under paragraph (i) of this section unless timely filed; provided, however, that the Department of State reserves the right to review a request that is not timely filed due to extraordinary circumstance.

 (4) Final decision. The Department of State anticipates it will respond to requests for Department of State authorization to extend the three year period of program participation permitted under paragraph (i) of this section within 30 days of Department of State receipt of such request and supporting documentation. Such response shall constitute the Department of State's final decision.

4.  If the person is subject to the 12 month bar, you can always bring the person back as a short-term scholar (which is limited to 6 months)

5.  The final J regs for SEVIS are not out yet.  The proposed regs were going to extend the 3 years to 5 years.  If that passes, the existing Js may be grandfathered in, but I am not sure when this will happen.

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Q - If I got a copy of the favorable recommendation for a waiver of the 2 yr HRR (J1) from the DOS, that was also forwarded to the BCIS, what are the next steps I should do in filing for AOS/I-485?  Should I apply for a waiver from the BCIS this time, or will the copy of the DOS recommendation serve the purpose of the waiver, as supporting evidence to my I-485 application?  My waiver application was favorably recommended based on a NO-Objection Statement.

A - You can proceed with filing your I-485 (I assume you qualify for adjusting) now that you have your DOS recommendation. You don't need to apply for a waiver from the INS/BCIS/USCIS at this point. It should be automatic based on the earlier waiver application submission and you should get a filing receipt soon. But you should only need to include evidence of the DOS waiver recommendation when you or your lawyer submits the adjustment application. Good luck!

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Q - A friend would like to know what the procedure is to get a student visa for a 10-year-old boy from Columbia to go to school in the United States.  A family is willing to sponsor him.  What forms are required and what is the process?

A - It all starts with finding a school that will admit and sponsor him.  The school must be approved for admitting F-1 (student visa) students.  Once the school admits the student, they will issue him a federal admission document called Form I-20 and then using that form he applies for a student visa at a US Consulate abroad (assuming that he is not in the US yet).  At this stage his sponsorship will be important.  After that he can enter the US up to 30 days before his school starts.  Keep in mind that his stay in the US will be limited to 1 year if he is attending a public school.  However, if he enters the US for a private school, then he can study as long as he wants to.  You should be careful in making that none of his documents (Form I-20, Form I-94 (form given by the immigration when a person enters the US), and passport) does not expire.  You should get new forms BEFORE the expiration of those documents.

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Q - My five-year of Permanent Residence (PR) comes up in Oct. 2004.  When is the earliest I can file for citizenship?

A - You can apply 90 days ahead of that anniversary date. Good luck.