-- Q&A 4/5/06--

Q- I was convicted of a crime in 1994 in Ohio and sentenced to one hour in jail and three years probation. Crime was title 18 section 1014, making a false statement in a loan application. Maximum possible sentence was ten years in jail, at least in 1994. Am I eligible for the petty offense exception? I married my fiancee of two years last December and want to adjust my status.

A- As you seem to have concluded, most crimes for which an essential element is the making of false statements have been held to be crimes of moral turpitude. Whether the petty offense exception applies depends on the maximum penalty pursuant to the statute under which you were convicted. Since the maximum penalty exceeded one year, the petty offense exception does not apply.

Q- I came to United States four years ago with B2 visa. Presently I am out of status. On December 24, 2005, two days before my wedding I was charged with drunk driving. On March 2, 2006 I was sentenced and was given one year of probation.

My husband is American citizen, who was going to file a petition to allow me to adjust my status. Now we have no idea what effect the sentence may have on the process of adjustment of my status. Please let me know if the fact that I am still on probati on will preclude me from applying for adjustment of status until the period of my probation will end. Or what other effect can it have on adjustment of status. Can the charge for drunk driving cause a deportation even if my husband is American citizen?

A- A simple DUI conviction has not been held to be a crime involving moral turpitude, and therefore should not have an impact on your application for permanent residency UNLESS the physician who performs your medical exam for your permanent residency application determines that you have an alcohol problem which constitutes "a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others." This would make you inadmissible as an immigrant on health-related grounds.

USCIS takes the position that alcohol abuse and dependence are medically classifiable mental disorders; and that if you admit to alcohol dependence or abuse in your medical exam, or if you have a history of additional alcohol related convictions, you are inadmissible to the US as someone with a mental disorder. At the medical exam you should be prepared to be questioned by the doctor about the offense and whether you have an alcohol problem. Assuming your conviction was an isolated incident, you will need to be able to explain the events surrounding the conviction to demonstrate that the offense was not symptomatic of an underlying mental health problem.

If your sentence was for an aggravated offense or there were other complicating factors, it may also create issues for your application. You may want to have an immigration attorney review the court records prior to filing your adjustment of status application.

The worst thing you could do would be to try to conceal the conviction on your adjustment of status application.

The fact that you are on probation should not affect your application in any way.

Q- I need to get a visa re-stamped for my wife, with a changed name. We are both currently in the US. Her name in the passport has been changed to her married name. Could you let us know the procedure of getting the name changed on her visa stamp? Earlier it was stamped with her maiden name.

A- In order to get her name changed on the visa, your wife will need to apply for a new visa at a US Consulate abroad. In lieu of changing the visa, she could carry her marriage certificate with her when she travels, to prove that the name on her visa is her maiden name.

Q-I want to apply for a B2 visa. I have my bank statements, a permanent job, children, and an apartment. Are these strong ties or do I have to have more.

A- The items you have listed are good evidence. It would help to get a letter from your employer verifying that you are going on vacation and are expected to resume work upon a certain date. You can bring a copy of your lease agreement to show your continued residence in your home country; and your marriage certificate and your children's birth certificates to show that you have family in your home country whom you intend to return to. You should also be able to show that the duration of your trip matches the stated purpose of your trip. If you buy a round trip plane ticket, that is also strong evidence of your intent to return to your home country.

Q- I have just received my H-1B visa approval from USCIS. I have held an F-1 before. I wanted to know if I could go to Canada to get my H1-B stamped or if I have to go to India to do so. I know this is a common question but if I can help it I would prefer not to go to India. What are my chances of rejection in Canada?

A- Without being retained to analyze your case, our office could not provide an opinion of your likelihood of success in obtaining a visa in Canada. Canadian consulates do accept nonimmigrant visa applications from third country nationals. You can schedule an appointment online at www.nvars.com for a visa interview in Canada.

The one exception is that if you have previously overstayed your status at any time in the US, then you are restricted to applying for a visa in your home country.

Q- If I change employment in the middle of the 7th year H1B. The time remaining on the 7th year extension, can that be used by the new employer eve n if the first employer withdraws the Labor Certification petition? In other words, do the 7th or 8th year extensions obtained based on Labor Certifications pending over 365 days, become invalid or void if the labor certification petition is withdrawn by the first employer.

A- You are asking about how USCIS interprets the American Competitiveness in the Twenty First Century Act. It has been over five years since it was enacted, and there are yet no guiding regulations on how to interpret it. USCIS has issued a series of memoranda on interpreting AC21, but cautions that the memos are intended for internal use only, by USCIS personnel. They cannot be relied upon in a court of law.

That being said, AC21 permits one-year extensions of H-1B status beyond the 6th year, provided certain conditions are met. AC21 does not condition the continuing validity of such extensions upon the continued pendancy of the underlying labor certification or I-140 petition. Therefore, after your labor certification is withdrawn, your H-1B status remains valid for your current H-1B employment.

That does not mean that you can change employers. In order to change employers, the new employer must file a new H-1B petition on your behalf. If your labor certification application is no longer pending, there is no basis on which that new employer can file an H-1B petition on your behalf. Therefore, there is no legal way for you to change employers.

Q- My mom and I want to apply for a B-2 us visa to attend my close cousin wedding she wants me to be the brides maid and my mom the ma id of honour. Can you give me advice and the documents to carry for both of us. I am 19 and a student.

A- You need to prove that you have a residence abroad which you have no intention of abandoning. This can be accomplished through a copy of your rental agreement or title deed for your home, as well as proof that you are enrolled in school and that your mother has a job she will return to, if that is the case. IF you purchase round trip tickets for the trip prior to your visa interview, those are solid evidence of your intention to return to your home country upon conclusion of your stay in the US.

You also need to prove that you have money to support yourselves during the trip so that you will not have to resort to unauthorized employment during your stay.

Finally, you should be able to prove the purpose of your trip, e.g. by showing a copy of the wedding invitation and being able to explain why you are coming to the US. The duration of your trip should match the purpose of your trip.

You should visit the web site of the consulate at which you will apply for your visas to see what their requirements are in terms of scheduling the appointment for your visa interview, and filling out forms, etc. There is a list of consulate web sites available on line.

Q- My wife was born in Oman and is a citizen of India. Her parents have residence in Oman but are citizens of India. When she files her I-485, can she claim Oman as country of chargeability? Or has it to be India? Oman will be better due to retrogression.

A- Your wife is chargeable to Oman, not India, because it was her country of birth and her parents were not just visitors to Oman.

Q- I have an L1 visa and work for company A. Company B has been formed from company A by a spin off from company A. My question is, can I still transfer my L1 to this new company? Can my new company change my status from L1 to H-1B?

A- If company B is related to the company at which you worked abroad for one of the three years prior to your admission in L-1 status, then your L-1 could transfer to the new company. However, before you go to work for Company B an amended petition has to be filed and approved. You could be eligible for H-1B status if you meet the requirements.

Q- My son, a foreign PT grad from Manila, plans to visit the USA as a tourist. Is it ok for him to take the licensure exams while vacationing in MD? Or should he wait for some willing employers to sponsor him before he takes the exams? He has the visa screen and credentialing etc. ready. If there is a willing employer, what is the next step?

A- Your son can enter the US on a B-2 visitor visa for the purpose of taking the exams but must disclose this fact at the visa interview at the consulate. This is a permissible B-2 activity. If he is here in the U.S. and is offered a job after taking the exam, he may file for adjustment of status, if there are still visa numbers available under the special quota of 50,000 visas for nurses and PT's. If numbers are not available, he would have to return home and wait for either an H-1B visa (starting October 1, 2006) or for an immigrant visa.

Q-I am an Indian and married to an American last July 2005. My wife has applied for my immigration from the States. I wanted to visit her family in America on for Christmas. When I asked a travel agent here, he said I cannot apply until February. Is that true? They consider all the applications in the same way? Or is there other ways I can get a visa to go to the USA for Christmas?

A- The reason that you probably will not be issued the visitors visa is that you are an intending immigrant at this point based on the marriage and the fact that your spouse has filed for your immigrant visa. A visitor cannot have immigrant intent as the law prohibits it.