-- Q&A 3/30/06--

Q- I am an Iraqi doctor and work for an American company in Iraq. I would like to live, and complete my study in the USA. Do I have a chance in these circumstances?

A- The F-1 The F-1 student visa is available to those who are coming to the U.S. for the primary purpose of pursuing a full course of study. In order to obtain an F-1, you would first need to apply to, and be accepted for enrollment in, an accredited U.S. university. You would then work through the school's DSO (Designated School Official) who would guide you in the SEVIS student registration process.

After completing this registration you could then apply for an F-1 visa at the U.S. Consulate. The US Consulate in Baghdad is not authorized to accept student visa applications. You can go to another consulate outside Iraq to apply for the visa however. Most applicants go to Amman, Jordan to apply.

Applicants must complete the application forms DS-156, DS-157, DS-158, and Supplemental Guide to Completing the DS-157; and submit a valid passport, civil identification card, and an appropriate color photo. The application fee is $100.00.

In addition, the following documentation is required for all student visa applications:

1.) An original, signed Form I-20; these forms are issued by accredited institutions in the United States;
2.) Evidence of prior academic achievement (school transcripts, TOEFL, SAT, GRE, GMAT results, etc.); and
3.) Evidence of sufficient funds to cover tuition and living expenses in the United States.

Q- I am confused by the instructions on form I-824. According to the instructions, if I intend to use I-824 to inform the consulate that my status became permanent resident and my family (living abroad) can apply for visas to join me, I have to check box D. But the form itself shows that box C is the correct box for consular notification. Also, I want to use the form for my wife and son but there is no place for two persons on the form. Should I send two I-824s or attach a sheet of paper with information regarding the second person?

A- You are right; the instructions to form I-824 mixed up what boxes C and D are for. You want to check box "C". As you are requesting action on an approved I-485 application, you would fill in your personal information on page 2 where it asks for information about the petitioner or applicant. Where it asks for information about the beneficiary you would leave it blank, as there is no beneficiary in an I-485 application. In acting on your I-824, USCIS will notify the consulate in your home country that you are a permanent resident. Once the consulate has been notified, both your wife and son will be eligible to "follow to join" you as permanent residents in the US, provided they can also prove that they are admissible to the U.S.

Q- I entered the U.S. on a tourist visa June 2004, applied for H1B status Sept. 2004. Received RFE Nov. 2004 and the final decision came ou t January 2005, denied. My 1-94 expired Dec.25,2004. I was given an option by my attorney to file a motion to reconsider but since I did not like the idea of waiting for many more months while the appeal is pending, I decided to depart the U.S. January 30, 2005. By the way the cause of the denial was on the burden of the petitioner who failed to submit supporting documents for the pro offered job as a specialty occupation. Now, I have an application at the USCIS for the 2006 quota, if in case it will be approved I would have a consular interview. What precautions should I have a successful interview... I did not work during my waiting period instead I made it an opportunity to visit different states in the u.s. upon the invitation of my friends and rel atives.

A- Was your H-1B Petition submitted prior to August 10, 2005? I ask because that was the cut-off date for USCIS to receive a cap-subject H-1B petition for fiscal year 2006. Assuming it was submitted on time, and is approved, then at the interview you may be asked about the fact that you previously entered the US as a visitor and attempted to change status to H-1B. You will need to be able to explain that you entered as a visitor; prove that you did not work; and that you changed your mind about wanting to change to H1B status after you got here. The fact that you waited 90 days to file your change of status application is in your favor. See our article on intent.

You could also be asked about each element of the H-1B petition (e.g. is your degree related to the job the petitioner is offering to you? Does the position require a degree? Etc.) You should have explanations for these elements.

Q- I entered the US last July 2003 on a J-1 visa as a teacher. My visa will expire on June 30, 2006 as stated on my DS-2019. I have an annotation on my visa that I am exempted in the two-year residen cy requirement . I have been in and out of the US with a B-1 visa before an agency took me as an international faculty (that changes my B1 to J1) I am presently teaching in a public school here in the US. My wife and I were married on two occassions one last December 2004 and the other last May 2005 here in the US. She got her name changed and we filed a joint income tax last february '05. She filed I-130 last June 2005. We both came from and was born in the Philippines. My wife got her LPR and resides in the states for more than a year only. Do you think I could stay here and get a work permit while waiting for the approval of my I-130?

A- In order to remain in the US while your I-130 is pending, you would have to maintain a valid nonimmigrant status. You can stay here at least until June 30, 2006 as long as you maintain your J-1 status. In order to remain here past that date, you would need to have obtained an extension of J-1 status, or else you would need to have filed a petition to change your status to some other nonimmigrant status. I assume that if you are a teacher, you have a Bachelor's Degree. Have you looked into the option of changing to H-1B status? There is information about H-1Bs at http://www.usvisahelp.com/empbased.html. You will need to maintain some kind of nonimmigrant status until you are able to file an I-485 Application for Adjustment of Status.

Once your I-130 petition is approved, and a visa number becomes available for you, you will be able to file an adjustment of status application. USCIS generally does not approve I-130 petitions until a visa number is available for the beneficiary. Currently visa numbers for spouses of permanent residents who were born in the Philippines are available for I-130 petitions that were submitted on April 22, 2001. Your I-130 was filed about four years past that date. You can roughly estimate that it will take four years for a visa number to become available for you.

Once a visa number becomes available, and you file your I-485, you can file applications for Employment Authorization (which allows you to work while the I-485 is pending), and Advance Parole (which allows you to travel in and out of the U.S. while the application is pending).

If you are unable to maintain your nonimmigrant status while you wait for a visa number to become available, then you will have to leave the U.S. and wait. Then you can file an immigrant visa application at a U.S. Consulate abroad when a visa number is available, rather than filing an adjustment of status application. If you fail to leave the U.S. upon expiration of your nonimmigrant status, you could become ineligible for an immigrant visa.

Q- My company has a labor certification filed in January 1996 and approved in 1998 with job requirements of BS+2 years. Can this be used as a labor substitution for a person who finished his BS in July 1996?

A- Unfortunately, in order to be substituted into an approved labor certification, you need to have all of the requirements for the job as of the date the labor certification was filed. Someone who received the required degree six months after the labor certification was submitted could not be substituted in.

Q- Just learned about the cross chargeability rule. My wife was born and raised up in Qatar. She is an Indian citizen. I was born and raised in India. To file my I-485 under EB-2 category, can I use cross chargeability to Qatar?

I am on H-1B currently and she will be joining me on H4 visa in Feb 2006. We will be entering US together. I will file for the PERM labor on Sep.30 2005 and will file the I-140 immediately after getting the labor approved.

I asked my present lawyer and he is not familiar with the cross chargeability rule for the I-485. The INA: ACT 202 Sec. 202. [8 U.S.C. 1152] clearly states that this is a possibility.

A- The portion of the INA that you cite permits a derivative applicant to be charged to the country of his or her spouse but not vice versa. However, other attorneys have reported to us that USCIS has allowed a principal applicant to be charged to the country to which his spouse is chargeable.

We would certainly be willing to submit the adjustment applications for you and ask that this be done, citing INA 202. However, there is no guarantee that USCIS will interpret the Act to allow you to be charged to your wife's country. It is possible that we could submit your adjustment applications with this request and they could be rejected as not eligible for filing. You should be aware of this possibility before changing attorneys.

In October 1999, the American Immigration Lawyers Association posed this type of scenario to the Texas Service Center and they responded that they would recognize cross-chargeability based on a derivative spouse's country of birth. The Liaison minutes state:

TSC Liaison 10/18/99

4. Question: RE: Cross-changeability: Situation: EB-3 visa numbers for India get backlogged again. The priority date is 2199 and the EB-3 numbers for India are at 6198. However, this Indian citizen is married to someone who is born in France, and EB-3 is current for France. Can cross-chargeability apply allowing the Indian I-140 beneficiary and his French wife to submit I-485 applications by charging the visa number to France, instead of India?
Answer: Yes. TSC will advise AILA on how to properly mark cross chargeability cases. For the present, highlight the issue on the filed application and send a fax to the Product Line Manager.

You should keep in mind that this is only one of the four service centers and other service centers may take different positions on the issue. Also, this response was given in 1999 and their opinion may have changed.