--Posted 7/15/05--
Q-My wife entered the U.S. on an H-4 visa back in 1999, she was stamped on the passport and also given I-94, which was valid until Dec. 2001. We left on vacation in Nov. 2001, her I-94 was taken by United airline at the airport. We came back and a new I-94 was given to her valid until May 2003. Now by looking at all my docs, I don't have a copy of that I-94, neither I know the number. Is there a way to track that I-94 from USCIS?
A- The I-94 information is stored in the NIIS database, which is maintained at the Department of Justice Data Center in Dallas, Texas. However, all requests for information from the the NIIS database must be made in writing using from G-639, to the Freedom of Information Act / Privacy Act Officer at the nearest USCIS office, or the USCIS office maintaining the desired records (if known) by using the USCIS web page that contains a list of the principal offices. Clearly mark the envelope and letter "FOIA Request." On the Form G-639, you will need to provide the A-file number and/or the full name, nationality, and date of birth, a notarized signature or, pursuant to 28 U.S.C. 1746, a statement under penalty of perjury as a substitute for notarzation by the individual who is the subject of the record, and a return address.
Q- I am a Physical Therapist. I applied with an employer for an H1B visa in New York in 2003 and it was approved last year, January 2004. Now, when I applied here in the American embassy in the Philippines, the Consul looked for a Visa Screen. I was not able to get a TOEFL and TSE due to financial constraint. And had also a problem with an employer in America due to their lack of supporting documents for me to get into the United States. I am looking for another option to get into the United States together with my family through PERM. How can I obtain a visa aside from the H-1B?
A-If you enter the US in any employment-based status for the purpose of working as a Physical Therapist, you need a Visa Screen. Even if you waited outside the US while a US employer filed a PERM application for you, you would need to have the Visa Screen before you could enter as a permanent resident.
Q- I'm a LPR, applying for I-130 for my unmarried son and daughter. I expect to become citizen in a couple years, then I can ask for changing the status of my children's case. But also, my daughter got married. So can the status be changed and can the case keep the priority date?
A- Unfortunately the I-130 petition you filed for your daughter is considered "automatically revoked" under section 205 of the Immigration and Nationality Act. There is no preference category for married sons and daughters of permanent residents. After you naturalize, you will be able to file a new I-130 petition on her behalf as "married son or daughter of a U.S. citizen." A new priority date will be established when you file the petition. She will not be able to recapture her priority date.
Q- I have a question regarding applying for a green card for my parents. I am a US citizen and they are currently in the U.S. with valid B-2 visas. Their visa stamps have a note, "No intent to change or extend status." Does this note mean that they cannot apply for a green card? If they can, how soon can I file the documents after they enter the US?
A- I-94 cards are not notated that way unless the consular officer has a doubt about whether your parents really had nonimmigrant intent. (For further discussion of nonimmigrant, see our article entitled "Issues of Intent.") Your filing of an I-130 petition on their behalf immediately after their admission in B-2 status would raise the question of whether they misrepresented their intentions at the visa interview.
Generally USCIS follows a 30-60-90 day rule wherein, if an immigrant petition is filed within 30 days of admission, they assume they committed fraud at the visa interview. Within 60 days they could go either way in their determination and will look to other factors to tip the balance either for or against the applicants. After 90 days, they assume your parents' intent simply changed after they entered the U.S. The intent issue could come up at future nonimmigrant or immigrant visa interviews, or if they naturalize at some point in the future.
In your case, given that the consular officer seems to have questioned your parents' motives, it would be best if no action were taken to start the process until 4 months after entry as B-2 visitors.
Q-My green card is done and my wife's I-824 is approved but she is in India, so what's the next step and how does she get the green card from India?
A- Upon approval of the I-824, USCIS will cable notification of your adjustment of status to the Consulate which you requested in the I-824 form. Once the consular post receives the cable, they will mail you a Packet 3 "instruction packet" laying out what your wife must submit for her immigrant visa application. After you submit all of the documentation outlined in the packet, the consulate will schedule your wife for an interview. If her application is approved, she will receive an immigrant visa allowing her to enter the US as a permanent resident.
Note that in order for her to follow-to-join as your spouse, your marriage must have existed at the time your adjustment of status was approved.
Q- All things being equal, how long will it take to get approval for I-360 petition for religious ministers already in the US (Florida and North Carolina) in F-1 status and R-1 status if they apply today?
A- For both North Carolina and Florida an I-360 petition would be filed at the Texas Service Center. Texas is currently working on religious worker I-360 petitions filed in November 2004. So it is taking 6-7 months, roughly. It is irrelevant to the I-360 processing time what nonimmigrant status the beneficiary currently holds. You can find processing times for the Texas Service Center on the USCIS web site.
Q- I am from India and working for 5 months in New York on an L-1B visa. Recently my visa expired but I-94 is valid until June 2007. My question is can I visit Canada for 3-4 days and come back to the US? Since I don't have a valid US Visa will this create a problem while returning back to the US?
A- Under 22 CFR 41.112, your expired visa is considered automatically extended to the date you apply for readmission if:
1. You remain in possession of form I-94 arrival departure record, endorsed by DHS to show an unexpired initial admission or extension of stay;
2. You are applying for readmission after an absence not exceeding 30 days solely in a contiguous territory;
3. You have maintained and intend to resume nonimmigrant status;
4. You are applying for readmission within the authorized period of initial admission or extension of stay;
5. You are in possession of a valid passport;
6. You do not require a waiver of inadmissibility to be admitted; and
7. You have not applied for a visa while abroad.
As long as you meet all of these requirements, you can enter the US using your passport, I-94 card, and expired visa after you take a trip of less than 30 days to Canada.
You may want to print out the Department of State regulations to take with you as well, because not all Customs officers are aware of the automatic visa extension provisions. Highlight subsection (d), entitled "Automatic extension of validity at ports of entry," to present to the inspecting officer. The only caveat is that if you are from a country considered a state sponsor of terrorism, your visa cannot be automatically revalidated; you would have to apply for a new visa in your home country.
