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.

*****

Q -I am currently living outside USA since 1 year working on a French work Permit. My old H1B expires in November 2004. Since I plan to come back to USA soon, can I get come back to US and claim another 6 years on my old H1B or should I re-enter the country on a new H1B to claim another 6 years. And also since I do not have latest pay stubs, would that be a problem? while transferring the visa?

A - You can come back in on the old H-1B visa if it is unexpired and if you are resuming the position approved in the H-1B petition. Also, I'm assuming the conditions of your employment remain the same. You also are entitled to extend your H-1B visa for up to six more years since you have been absent from the US for a year. You don't need to apply for a new H-1B visa to claim that additional six years until your current visa expires. You'll want to show your paystubs abroad, tax returns, rent receipts, passport stamps and, perhaps, a letter from your employer in France to prove your one year abroad.

*****

Q - When it is time for a student to renew their student visa, can they renew their visas in the United States without returning to their home countries?  If so, would they renew at the countries embassies or at some other location?  Please information me of this situation. 

A - Unfortunately F-1 visas may not be renewed in the US.  Students will have to travel abroad and apply for an F-1 visa at a US Consulate.  Before September 11, some US consulates abroad permitted students to send their passports in for the renewal of their visas, but with increased security this is not an option any longer.  Typically students can apply for visas in their home countries and Canada and Mexico.  In some cases, other consulates may also have jurisdiction.

Keep in mind that an expired visa has no adverse effects when the student is already in the US.  What controls how long the student may remain in the US is the student's I-94 card, not the visa.  The visa must only be valid when the student is seeking entry to the US.

*****

Q - I am an international student, and I have been out of status for one year. Then I got a transfer to a community college in City A, but now I living in City B with some relatives because there was no way I could afford living by myself. I want to transfer to the community college here San Jose but I do not have a visa nor an I-94 card because I lost them in Mexico last year. I did not attend the community college in City A as I had just applied in June and got accepted then I came here to City B. They want me to go back home and get a visa then come back and attend the college, or try to get reinstated which is just as hard. I do not want to ruin my chance of studying in a good college and get my higher education. what should I do? Please Help.

A - Your school is correct, you should either apply for reinstatement (which will be hard because you've been out of status for more than 6 months) or you should apply for a new visa at a US consulate abroad.  Because you were an F-1 admitted for the duration of his status, and because immigration did not issue a formal decision declaring you out-of-status, section 222(g) of the immigration act that requires out-of-status aliens to obtain their visas from their home countries will not apply to you, and therefore you will be able to apply for a visa in Canada or Mexico as well (unless, depending on your home-country, it is not possible for you to obtain an appointment in Canada or Mexico).  You should apply for a visa with a new SEVIS Form I-20 marked "initial attendance.”

*****

Q - I am a F-1 holder since August 2001. My I-20 is valid until May 2007.One of my children is a high school junior. I am aware that she will apply for change of status (F-2 to F-1) when she becomes a college student. The other one is already in college, but she considers transferring to a public university next academic year. Will my children be treated as international students and pay out-of-state tuition in public colleges after being in USA for more than 3 years as non- resident aliens?

A - The rules for residency for tuition purposes is defined at the state, school system, and the individual university level.  Therefore, you should check this with the schools that they will be attending.  As a general rule, F-1 students, because they are on a temporary visa and therefore cannot establish domicile, are treated as out-of-state students, however, in certain cases (for instance for undergraduate students, if the parents are working full-time in the state) they may be classified as out-of-state, but may still be charged in-state tuition.  Therefore it is best to check with the school.

*****

Q - Hi! I'm a second preference (2A) family sponsored petitioner. My priority date is Nov 99. When I got my application approved I was 18. Now I'm 22. I'm I still eligible for the automatic conversion to 1A preference? My father (sponsor) is getting citizenship in a few months. Thanks!

A - You automatically converted to the 2B family preference category when you turned 21. Once your father becomes a citizen, you'll automatically convert to the 1st preference category. The good news is you don't need to file for a conversion. And you'll retain your November 1999 priority date.