--Q&A 2/16/06--

Q- I am an international student currently studying in the USA with an F-1 visa. I need to file bankruptcy before graduation this year. Will filing bankruptcy affect my H-1 visa or future green card application?

A- Your filing for bankruptcy does not have any bearing on your eligibility for an H-1B visa. When you apply for permanent residency, you have to show that you will not become a public charge. However, if you have a job offer with an I-140 petitioner, and the wage is a living wage, you should be able to overcome the presumption that you will be a public charge. I don't see any phase of the green card application process where you would be required to disclose that you had previously filed for bankruptcy.

Q- I am in the US on a TN NAFTA visa, and am trying to adjust my status. (married USC). INA 212 seems to have a 0 tolerance for drug crimes. I have a record in canada involving possession and a small cultivation charge. I got a conditional discharge (was not convicted). It has since been purged from my record in Canada. However, I am sure it will turn up in the FBI check, as coditional disch arges are asicaly convicions for immigration purposes. I intend to answer 'yes' to the arrest question. Which basicaly makes me inadmissable. Is there any way to get a waiver? I know the posession has a max senctence of 6 mohts, so I'll be OK on that, but there seems to be no hope for the other charge (which occured at the same time). I am married to a USC and teach at a local college. No criminal record in te USA, and, really none in Canada (discharge was purged).

A- A general nonimmigrant waiver is available to cover most convictions. Whether it is granted depends on the risk of harm to society if you are admitted; the seriousness of your criminal law violations; and your reasons for wishing to enter the United States. For Canadian citizens, the waiver application is filed on form I-192, which you can download from www.uscis.gov. If you obtain this waiver you can continue to enter the US as a nonimmigrant (TN holder).

However, your inadmissibility as an immigrant (applicant for permanent residence) can only be waived under certain extremely narrow circumstances. The only immigrant waiver available for a controlled substance violation is under INA 212(h), and only applies if your offense relates to a single offense of simple possession of 30 grams or less of marijuana AND the conviction occurred over 15 years ago AND you are the spouse of a US citizen. You also have to show you have been rehabilitated and that your admission to the US would not be contrary to the national welfare, safety, or security of the United States. It sounds like your possession charge may fall under this exception, but that you would have to wait 15 years from the date of the conviction to file the waiver application.

The other conviction, for cultivation, does not appear to fall under the 212(h) exception. In order to properly evaluate the case though, I would need to see a copy of the charging document from the court that convicted you, to see under what sections of the Canadian Criminal Code you were convicted. If the conviction is explicitly for a crime related to illegal substances, I don't see anything that would waive your inadmissibility as a Permanent Resident.

I would recommend at least having a consultation with an immigration attorney. Any attorney you consult with is going to want to see the conviction records.

Q-Hi, I am in US on H4 status.How much time does it takes to get my H4 status transfer to H1 status if I apply for H1 now.How soon can I start working after getting H1 visa stamping? I heard that I cannot work before Oct2006 . Is this true ?

A- The H-1B cap has already been reached for fiscal year 2006. You cannot apply for an H-1B until April 1, 2006, and the start date cannot be before October 1, 2006. (You can file as early as April 1st, because the regulations allow you to file as much as 6 months in advance of the start date of your employment. So for an October 1 start date, the earliest you can file is April 1st).

Once the cap opens up again and you are able to file, processing time depends on where you will be working. There are four service centers, each with different processing times, and each with jurisdiction over different states. Processing times are available at www.uscis.gov., and you can figure out what jurisdiction you fall under by visiting http://uscis.gov/graphics/fieldoffices/service_centers/index.htm. You would submit the petition to the service center with jurisdiction over your place of employment.

If you file for a change of status in the US you don't need to get a visa stamped unless you plan on traveling in and out of the US. You can begin work as soon as the change of status is approved by USCIS by mail, in the US.

Q- I have an offer from a company in US to travel on a H1 visa and they will also apply for my green card under PERM. My current company is also ready to send me on an L1A visa and apply for my green. I currently work as a mgr. here. Please advice which option is preferred keeping in mind the objective of getting the GC sooner and approx. timelines.

A- If you worked in an executive or managerial position for the related foreign company for one of the three years prior to your admission to the US in L-1A status, then you could qualify for a first preference multinational manager I-140 petition. First preference visa numbers are current at the moment, unless you were born in India or China, in which case they are backed up but not very far.

If you were to change status to H-1B and change employers and will no longer qualify for a multinational manager I-140 petition, then you will most likely either qualify as a second or third preference immigrant, in which case visa numbers are very backlogged.

Without knowing more details about your case, I could not say for certain, but for most people in your situation it would be *much* quicker to get a green card by staying with the L-1 employer, and having them sponsor you for an I-140 petition as a Multinational Manager.