-- Posted on 8/16/05--
Q- I'm a post-doctoral research from China currently on a J-1 visa, which expires on 10/30/05. I need to continue my research work in the USA and would therefore like to change to an H-1B visa. How do I go about doing this? What kind of procedure would I follow to exempt me from the J-1 visa 2 year foreign residency requirement? I was a resident of China before coming to the US on a J-1 and was funded by one university in the USA to do research work.
A- You need to obtain a waiver of the 2 year foreign residency requirement before you can change your status to H-1B. The waiver can be based on a no-objection letter from the government of China, a claim of asylum by you, or exceptional hardship on your US Citizen or lawful permanent resident spouse or child. You could also ask a US government agenc to sponsor your waiver. Waivers can take quite some time to complete except for the no objection letter, which takes several months rather than years.
Q- I am an Indian and recently landed in Iowa on an L-1 visa. In the port of entry I was given an I-94 card. I wrote my name. When I was supposed to file for my SSN, the office told me that the First Name and Last Name were interchanged on my I-94 card. In my passport we are given a Surname and a Given name, but the SSA officer told me the Surname is the Last name and the other names as that. How can I change that info in the I-94 as well as INS records? Don I need to go there physically? I don't have a driving license so how can I get this sorted out?
A- You will need to get the I-94 corrected by going to the Customs and Border Protection office, or port of entry, nearest to you. It need not be the same port of entry at which you originally received the I-94 card. Attached is a memo from Customs & Border Protection laying out the procedure for correcting an erroneous I-94 card.
Q- I reside here in the Philippines. I was petitioned by an employer for a job in the US, and I recently received my form I-797 (Approval Notice) together with other documents. My friends told me that I can schedule an appointment for H-1B visa issuance in the US embassy here any time. However, I noticed that the petition validity dates on my I-797 are from October 1, 2005 until September 30, 2008. Does this mean I have to wait until October to go to the Embassy for H1B visa issuance? Or can I go there as early as now to apply for a visa? Will they issue me a visa with those validity dates mentioned?
A- You can enter the US on an H-1B visa up to 10 days (but not sooner) prior to the start date (October 1) on your H-1B Approval Notice. You can apply for an H-1B visa prior to that date, under 22 CFR 41.112(c)(4), but the visa will be notated as not being valid until 10 days prior to October 1st. October 1 is the start of the government's fiscal year, and the time at which new H-1B numbers become available. The vast majority of H-1B visa holders now have an October 1 start date. Therefore consulates are overloaded with H-1B visa applications just prior to October 1st. Overloaded consulates will often not allow you to apply for an H-1B visa until within 10 days of the start date. Therefore, you should check with the consulate to ask when you can apply for the visa. They may be happy that you can apply so early, before the rush begins for H visas. However, no matter when they issue the visa, it won't allow you to enter the US more than 10 days before your H-1B start date.
Q- I just became a US Citizen in December 2004. My questions are (1) is it true that petitioning parents from the Philippines takes 3-5 years before they could come to the US? (2) also, during the approval of their visas, can a minor ADOPTED child come with them?
A- As a US Citizen, assuming you are over age 21, when you petition for your parents, they are considered Immediate Relatives. Therefore, visa numbers are immediately available to them. You will have to wait as long as it takes for the I-130 petitions to be approved. Unfortunately, however, their child (whether adopted or not) cannot accompany your parents as their derivative. A separate petition would need to be filed on behalf of the child. If the child was adopted under age 16 and has resided in your parents' household for at least 2 years, then you could petition for the child as your brother or sister. Hoewver, the priority date for brothers and sisters of US citizens who were born in the Philippines is December 1982. This means it would take over 20 years for the priority date to become current for your parents' adopted child (and that's assuming that the child will qualify as your brother or sister).
However, note that the country to which you are chargeable as an immigrant is the country in which you were born. If the child your parents adopted was born in a country other than the Philippines, and they can prove it, then the child would not be chargeable to the Philippines and a visa number MAY be available sooner. However, there is still a significant wait. Worldwide, except for India, mainland China and the Philippines, priority dates for brother/ sister of a US citizen is August 1, 1993, which is still over a ten year wait.
Q- What are the qualifications in applying for an employment-based nonimmigrant status? What is my chance to apply for the said status? I am a Registered Medical Technologist from the Philippines and presently working in a CAP (College of American Pathologist)-accredited hospital in Jeddah, Saudi Arabia in a Hematology Department since March 2002.
A- Whether you qualify for an employment based nonimmigrant status depends in part on your qualifications and in part on the job that is offered to you in the U.S. You have to have a job offer lined up in the US before you can obtain employment-based nonimmigrant status. It sounds like you could qualify for a job, but until you have one lined up I would not be able to judge whether you are eligible for an employment-based status or not.
Also, note that you must obtain a Visa Screen certificate before you can enter the U.S. for the purpose of performing duties as a Medical Technologist.
