--Q&A, August 24, 2005--
Q- A friend of mine, a consecrated (vowed) member of a Catholic religious community, received a denial of the I-360 filed by his organization. They had done a few others for some other members in the past and all were approved. He's currently in valid R-1 status, valid for another 20 months or so...
My questions are:
1) Can they file an appeal to the AAU and contemporaneously file another I-360 petition with the Service Center?
2) If they don't appeal, can they still file a new I-360, addressing the reasons for denial?
3) Is there any way to find out processing times for the AAU?
A- Thanks for your inquiry. To answer your questions:
1) Yes, both an appeal and a new I-360 petition can be filed simultaneously. However, the service center will hold the I-360 and wait to adjudicate it until after the AAO decides the appeal. There is therefore little benefit to doing this.
2) Yes, if they do not appeal they can choose instead to file a new I-360 and address the reasons for denial in the new petition.
3) AAO processing times are not available online to my knowledge. However, the American Immigration Lawyers Association makes the processing times available to its members. The most recent processing time report was published on June 14, 2005. At that time it was taking 7 months for an I-360 Religious Worker appeal.
Given the length of time it takes for an appeal, it is generally best to file an appeal only if the I-360 was denied due to a debatable legal issue, such as whether the beneficiary's 2 years of qualifying experience was with the "same denomination." If on the other hand, the I-360 was denied because the submitted evidence was insufficient to establish eligibility, then it would make more sense to file a new I-360 petition, with better evidence, rather than filing an appeal.
Q- I am a nurse from the Philippines and have an immigrant visa (employment based). My agency employer is located in NY but I plan to enter initially through California. Will need to be in California 1-2 weeks so I can leave my family there and proceed to NY to work. Will I encounter any problems at the port of entry?
A- You should not have any problem entering with your immigrant visa in California, so long as the immigrant visa was issued in the last 6 months. It is possible that you could be asked why you are entering in California rather than in NY but a simple explanation should suffice.
Q- If I travel to the U.S. on my H-1B, am I normally permitted to enroll myself for a part-time MBA probram there? What will be required of me by USCIS if I wish to pursue a part-time education in the U.S.?
A- With H-1B status you can pursue part-time education in the US, so long as you maintain the terms of your H-1B status. No additional authorization from USCIS is required to attend school part-time.
Q- I have received my H-1B petition with an October 1, 2005 start date, and my visa interview is scheduled for the end of September. My current passport is scheduled to get exired in June 2006. Shall i I use this period to re-issue my passport? Or should I wait for my interview formalities to get this completed? Will there be any complications at the time of interivew if I get a new passport, with a passport number other than what I specified on DS-156/157? Alternatively, will there be any problems if I get my passport stamped with the H visa and then get a new passport?
A- If your passport is not extended prior to the interview, they will issue your H-1B visa with a June 2006 expiration date. They will not issue it with validity dates longer than your passport. And in general you should make sure your passport is valid 6 months beyond the expiration date of your status. You should get it extended prior to the interview if at all possible.
Q- What may I supposed to do in that case: the US Citizenship and Immigration Services was mailed a notice of scheduled interview and we didn't receive it by mail, and now they send me a notice that said my case has been denied because me and my wife didn't go to the interivew?
A- You should file a motion to reopen the case. It must be filed within 30 days of the date on the denial notice, and you must send a $110 filing fee payable to "Department of Homeland Security." There is no particular form which must be filed. Simply make it clear that it is a motion to reopen, and include a copy of the I-485 receipt and denial notice. Include a statement explaining the reason for your failure to appear. Also include any supporting documentation excusing your failure to appear, if there is any. If the motion is granted, you will recieve a notice for an interview. If the motion is denied, then you will receive a written decision.
Q- I am scheduled for visa interview at the US embassy this month. I did not expect my visa interview to come this early due to retrogression. But I believed the fact that my daughter will be turning 21 years old soon, I was given priority. But since my vi sa screen is not ready, I will have to advise the us embassy to re-schedule my visa interview until I complete the visa screen which I think will take 3 months. Will I revert to my original priority number if I dont show up for the scheduled interview a nd wait longer again for the next visa interview? What will happen to my daughter's status after she turns 21 years, will she be covered by the patriotic act/child status protection act? Thank you.
A- Are you a nurse or physical therapist? The REAL ID Act of 2005 (P.L. 109-13) provided an additional 50,000 third preference visa numbers for nurses and physical therapists. You were probably scheduled for your visa interview because you were allocated one of these numbers. If that is the case, then if you ask the consulate to reschedule your appointment, a number will most likely be available for you when you are ready to go to the interview.
If you are not a nurse or physical therapist and if you cancel the interview, the consulate will reschedule it for you, but they will only be able to reschedule after a visa number becomes available to you. Third preference visa numbers are currently "unavailable," and will not become available again until October 1, 2005. Even then, it is possible that your priority date will not be current. There is no telling what priority dates will be current once the third preference is open again. The older your priority date, the more likely it is to be current. You can keep an eye on the visa bulletin on the Department of State web site, at http://travel.state.gov/visa/
(Note: you will retain the same priority date; you will not lose it by canceling your interview appointment and asking the consulate to reschedule you).
Your daughter has two issues. First, she must maintain some type of nonimmigrant status in order to remain in the country while her immigrant visa application is pending. Once she turns 21 she cannot stay in a nonimmigrant status as your dependent; she will need to have some status of her own. (Even if she has a valid I-94 card, she is still "out of status" as your dependent once she turns 21). F-1 student status is a good possibility if she plans to attend college full time.
Unlawful presence, while different from 'status' can also be an issue, as she will not be eligible to extend her nonimmigrant status as your dependent once her current I-94 expires. If 180 but less than 365 days pass from the date her I-94 expires, and she is still in the US, then once she leaves the US for any purpose, including for the consulate interview, she will not be able to return to the US for three years. This would result in her not being able to use the immigrant visa she obtains as your child, unless she gets a waiver. If over 365 days pass from the date her I-94 expires and she is still in the US, then once she leaves the US she would not be able to return for 10 years.
As to whether the Child Status Protection Act will help your daughter, it is possible that it would. However, the retrogression issue makes it a very complicated analysis and outside the scope of this quick-answer format. I would recommend consulting with an immigration attorney on this issue.
