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 - I am studying in India in Master in Pharmacy (last semester). My parents have lived in USA since 2 years & are Green card holders. They have already kept my immigration file last year. I am trying for student visa but is there any problem in getting visa because of my immigration file has already been kept?

A - Actually, having a pending green card application is a problem if you are getting a student visa. An H-1B visa, on the other hand, would not be affected by a green card application. The reason is that student visas are subject to a section of the law called 214(b) which says that a person coming on a student or tourist visa (or several other visa categories) will be presumed to have immigrant intentions unless they can prove otherwise. If you are found to have immigrant intent, you cannot get the student visa. The H-1B visa does not have a 214(b) requirement.

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Q - How can a F2 applicant apply for a L1 visa?

A - F-2s can sometimes change to L-1s. You might find the article I've written on L-1 visas at http://www.visalaw.com/00jan4/12jan400.html helpful. Also, the flow chart on our site at http://www.visalaw.com/03jun3/2jun303.html should help. Good luck.

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Q - 1) Is there a faster way for foreign nationals to obtain social security numbers after getting the appropriate visa? I'm finding that the Social security office will not begin the process of giving you a number until they can see all visa documents. This can take anywhere from 3-9 weeks. Any alternatives?

2) I know that obtaining a Bachelor's, Master's, or PhD degree earns F-1 students an extra year of OPT. What about if the student is enrolling in a second graduate degree? Do they get an extra year of OPT?

3) What happens if a F-1 student returns to her home country upon obtaining a Bachelor's. Can she return to the US and start an OPT?

A - There is no short-cut for the Social Security number. The SSA will have to clear you through the SAVE system and that takes time. For you to get another OPT you must get a higher degree. Therefore, a second master's will not qualify if you already used an OPT after the first.

As you know, to be eligible for OPT you must apply for it before graduation. If you applied for an OPT, received the card, and then went home for vacation, you can always come back to complete your OPT as long as your return is within the authorized OPT period and as long as your visa is still valid. Perhaps if you can give me more details about what exactly you would like to do, I can be more precise in my advise.

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Q - Am I allowed to register a business (corporation) and do business with an H4 visa?

A - You can incorporate a business, but you may not work for the business once it begins to operate lest you be considered to be working without authorization. Note that "work" for immigration purposes is not defined by whether or not you are paid, but, rather, by whether an American worker would typically be paid to perform the kind of services being provided. So while traditional volunteer work would be okay, work for your own business for which you are not paid would not be okay.

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Q - My mother is a resident of the U.S. and on April 30, 2001 she submitted an I-130 petition for me with the BCIS. At that time I was single and under 21 years old. Six months later I got married with a CU-6 resident and he submitted and I-130 petition for me, which is still pending. My concern is that I will get divorce soon.

My questions are:

1- If I get divorce will the first petition submitted by mom be valid?
2- Does my mother needs to submit an I-130 petition for me again?

A - Your mother's petition for you can actually be revived under an obscure provision of the law. Normally, a person who is the beneficiary of a 2B family preference petition (that's where a permanent resident files for a green card for an adult single child) will see his or her petition voided because of a marriage. That is the case since there is no green card category for married children of permanent residents. But if that adult child divorces, then the parent can refile the I-130 and reclaim the original priority date. That means you would likely be able to reclaim your 2001 priority date and save several years on a new petition.

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Q - My husband is a green card holder and is living in Florida. In April this year he has applied for my immigration. On this basis i may get the immigration visa within 3 years. In May 2004 he is expected to get US nationality. As it is a long period of wait, so my husband after becoming US national intends to apply to the immigration authorities to shift my case from the green card holders file to the US nationals file. In this way he thinks that the visa will maybe issued within 6 months. Do you think the US immigration allows the shifting of the case from the green card holders file to the US nationals file?

A - Actually, your husband does not need to do anything for you to qualify in the US spouse category once he naturalizes. You will "automatically convert" to the new category. If you are outside the US, you or your attorney will want to notify the INS/BCIS of your new status if they have not yet approved your I-130 petition. If you are outside the US and your I-130 has been approved, you or your attorney will want to notify the US State Department of your changed status so that they can get the process started to get your green card at a consulate.

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Q - When filing the H-1B extension through the premium processing, should the company only pay $1000 premium processing fee or plus additional $1000 fee (total of $2000)? Thank you.

A - The answer depends on whether this is the company's first extension for you or not. If so, then they will typically have to pay the $1000 extra fee. If they had to pay the extra fee with your initial application, then the company is not exempt and should have to pay again if this is their first extension for you.

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Q - I am inquiring regarding a recurrent problem with my mother's citizenship application. She has applied three times for this. Every time after he has been fingerprinted, and even after getting and assurance that a good set of fingerprints have been obtained , FBI rejects those prints, and after months delay, she is asked to go for a new set of prints! She is 71 years of age and has very thin skin on her fingertips and barely visible fingerprint markings. Are there alternate way of identification acceptable in such situations? Is there a waiver form that can be requested if they repeatedly fail to obtain an acceptable set of fingerprints? Thanking you in advance for your helpful suggestion.

A - It is our understanding that if the BCIS tries to take prints 3 times and are unsuccessful, the BCIS can have the applicant sign an affidavit swearing he or she has no criminal record. I think the applicant also has to provide a print out from the local police saying their are no outstanding warrants for them. Ask your local INS how to go about this procedure.