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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1) QUESTION – If an alien that has a student VISA is in the U.S. taking classes online for an Online University, what can they submit; if anything, for work authorization. Normally aliens are allowed to work on campus at a minimum of 20 hours. What if they want to do an internship? My client already spoke with the Dean of the Online University and the Dean; along with the other board of directors said they do not know what to file either. Has the INS approved anything for online Universities so foreign students may do internships?
ANSWER – To my knowledge, online universities are not accredited by the INS to issue I-20s so F-1s are not possible.
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2) QUESTION – My wife sent i130 for me prior to 245i expiration last year. I have been working/helping at local church for a few years. The minister offered me a sponsorship as a religious worker so I can obtain residency sooner. Can that be done?
ANSWER – You probably will be able to take advantage of your I-130 filing to qualify for 245i processing with a new petition based on an I-360 petition for a minister. The key is likely to be whether the I-130 petition was an approvable application when it was filed. And also, of course, whether the I-360 petition is approvable.
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3) QUESTION – I am an egyptian citizen residing in the US . I was on an F1 student visa and after graduation I took up a job with a university here in the US . My employer applied for an H1b visa and we just got the I797 notice of approval. I plan to go to Egypt for a vacation and plan to apply for the H1B visa in Cairo . I heard there are much more difficulties in getting the visa nowadays, Do you have an advice on this issue?
ANSWER – The main difficulty is that you will need to wait up to 20 days outside the US while you go through a security clearance. Aside from the security wait, the process and difficulty is largely the same as in the past.
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4) QUESTION – I am applying GC (AOS) for my spouse. She does not have birth certificate. What should I do? Thanks
ANSWER – You will need to get a duplicate birth certificate or an official document from the country of birth proving that birth certificates are not available PLUS an affidavit of birth from a person who was an adult at the time of birth and who was aware of the birth when it took place.
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5) QUESTION – My mother-in-law was petitioned by my sister-in-law who became a citizen a last year. The process is well underway with the fingerprinting already done and my mother-in-law is just waiting for the interview. But now her circumstances changed and due to her conflict my sis-in-law’s husband, she was threatened that her petition is being withdrawn. Is this possible? Can he ask for the petition to be withdrawn?
ANSWER – Only the petitioner – your sister-in-law – has the authority to withdraw a petition. The husband could not. But if your sister-in-law did want to halt the process by withdrawing the petition, she could.
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6) QUESTION – I was offered to participate in a US government funded program leading to Ph.D. degree in business administration (accounting). While it is a great honor to get this prestigious fellowship I was informed that I would be subject to the 2 year home residency rule (as a recipient of public funds entering the US on a J-1 visa). Meanwhile, I was told that there are opportunities to waive this requirement. Could you let me know if you could help me to obtain the waiver?
ANSWER – If a program is US government funded, it is usually EXTREMELY difficult to get a waiver. A no objection letter from your home country is not enough when US government funds are involved. IF this is the only visa the program is willing to use (sometimes other visas are available) and IF you plan on living in the US for the long term, then this program could be a big problem for you.
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7) QUESTION – I have applied for Adj of status( I 485 and would like to change employer to a new one. Can i do it now while it is being processed? I filed it myself under NIW category please advice.
ANSWER – As the beneficiary of a national interest waiver, you have more flexibility than someone filing for a green card on the basis of a labor certification. The “waiver” in a national interest waiver is a waiver of the job offer requirement. Hence, the INS has taken the position that even if an employer signs your I-140, changing employers will not automatically invalidate the petition. The key is whether you can demonstrate that in your new job you will continue to provide the same benefits to the national interest described in your petition. Be prepared to thoroughly document this.
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8) QUESTION – My wife is about to give birth on November in California . My question is can I apply for a visa so that I could be there to assist her? She is a green card holder.
ANSWER- Sadly, I think you might find it tough to get a visitor visa to come here. You can try, but many consular officers routinely deny applications when one has a spouse who is a green card holder.
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9) QUESTION – It seems that I will have visa problems soon. I have H-1 visa now and my employment will end 30 June. How long I can legally live in the USA ? Is grace period for H-1 Visa?
ANSWER – There is no grace period after an H-1B layoff. Your lawyer will probably recommend applying to change status to a B-1 visa. B-1s can be used for attending job interviews. There are two key advantages to using the B visa:
1. You will remain in status for at least 120 days while the application is pending (and the INS usually takes at least two or three months for this type of application; and
2. You will remain eligible for H-1B portability so as soon as you get a new job offer and submit a change of status application, you can begin work for your new employer.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.