--Q&A 11/9/06--

Q- I have a question concerning the girlfriend of a friend of mine. She came to the States last December
when she was 6-months pregnant. She delivered the baby here and applied for an extension of her visa.
However, she left the country after the six months were over and before an extension was approved. Would it be a problem if she wants to come back again?

A- It depends on the circumstances and how the situation is explained when she applies for a new visa. She will need to prove that she did not, on her last trip, intend to work or live permanently in the U.S.; and that she does not on her future trip as a visitor intend to work or live permanently in the U.S.

If the extension of stay request was filed before her status expired, then she was authorized to remain in the U.S. in a "period of stay authorized by the Attorney General" while it was pending, even though she was not in status. However, if the circumstances of her stay indicate that she intends to live here permanently, a future visitors visa might be denied.

Q- My girfriend is a dual US and Canadian national who has lived in Canada all her life. I am a Canadian citizen currently in Seattle on an H-1B visa. The two of us plan to get married in the next few months, and plan to live together in the United States subsequently (she will have a job offer in the U.S. as well. Are we eligible to file for Direct Consular Processing of the I-130 petition for my immigration process at the U.S. consulate in Vancouver, to be processed through Montreal/ As I said, she has always lived in Canada, and I am a Canadian citizen, though I have been living in the United States for the last 6 months. If so can I continue to remain on my H-1B and live in Seattle, or do I have to switch to a K-1 or K-3 visa in order to come back down here after filing the I-130 in Vancouver?

A- Although you should be eligible for processing through Vancouver and Montreal, and if you do so you can return to the U.S. on your H-1, but as processing for the I-130 and I-485 in Seattle is only 6 months, it might be better to file for the adjustment of status in Seattle when your wife moves down to Seattle and begins working. Applying for adjustment of status does not require you to get record checks for every country you have resided in for six months or more after turning 16. As you are on the H-1B, you would not need to apply for advance parole or for authorization unless of course you decided to go to work for another employer.

Q- It's time for me to renew my H-1B. I have a question about what title I should use for the extension. My H-1B was applied for with the title Electrical Engineer, however my LC and I-140 were applied for with Medical Physicist and already approved. Is it ok to use the old job title for the H-1B extension?

A- Which title you choose to use for the H-1B depends on what job you will be doing in your H-1B status. A labor certification may be done for a future job that is not the same job as the one you are performing under your H-1B status. Without knowing the particulars of your situation, I cannot advise on which title would be more appropriate.

Q- I was on an F-1 visa but have been out of status almost 4 yeras. I just married a U.S. citizen. I got my 485 interview last week. Everything went well. At the end, the officer said I needed to go for Special Registration because I don't have a FIN number in my passport. Am I in trouble?

A- Whether you are subject to Special Registration depends on where you were born, what country you are a citizen of, where you currently reside, and why you did not register. As this is a serious matter and could result in your being deported from the United States, you may want to schedule a consulatation.

Q- I am on an H-4 Visa in the U.S. right now. My stamped visa expired in May 2006 but my I-94 does not expire until October. My husband's company applied for I-94 extension and it got extended until May 2009. Meanwhile my prospective employer applied for H-1 visa in April 2006 and got an approval dated June 30, 2006. It is valid from October 1, 2006 to September 30, 2008. It does not contain an I-94 on the bottom part. When I went to teh Social Security office, they asked me for an I-94 with H-1B status on it. My questions are:

1.) How can I get the I-94 changed from H-4 to H-1B within the USA?
2.) What is my current status, H-4 or H-1B?
3.) My H1 approval notice date is October 1, 2006 and my H-4 extension date is October 22, 2006. What do I have to do to change to H-1B status? Do I have to revoke the H-4?
4.) If I need to stamp my visa, which expired in May, can I go to Mexico or Canada? If so, what is the procedure?
5.) When do I have to get the SSN and start working?

A- 1.) To change status in the U.S. your H-1B petition should have been filed as a change of status request. If you received an H1B approval with no I-94 attached, then it was not filed as change of status.

2.) Your current status is H-4. Because the petition was not filed requesting a change of status, your status did not automatically change on October 1.

3.) To enter in to H-1B status, either your employer needs to file an amended H-1B petition for you, requesting change of status; or else you need to leave the U.S., get an H-1B visa, and return to the U.S. on the H1B. You will then be issued an I-94 card showing your H-1B status (which will allow you to get an SSN as well).

4.) You can apply for your visa as a third country national in either Canada or Mexico. You can check appointment availability and schedule an appointment online at www.nvars.com. The only catch is that if your H-4 visa is expired and for any reason your H1B visa is denied, you will not be readmitted to the U.S. You would need to return to your home country to apply for an H-1B visa before you could be readmitted to the U.S. Also, if your education was completed outside North America, then you will need to have an educational evaluation at the consulate.

5.) You do not need an SSN to legally start work (although your employer may require you to have it). After you enter the U.S. on your H-1B you will need to wait 10 days before you apply for your SSN. This is because it takes 10 days after your admission in a new status for the information to be electronically transmitted to the Social Security database. If you do not wait 10 days before applying, the information will not be in their system and they will launch a manual investigation of your immigration status which could take months.

Q- I know someone who is getting his 2 year conditional greencard. He is married, however, he really wants to get divorced because his wife calls ex-boyfriends at odd hours of the nights and talks for hours. He believes she is cheating and is not in good faith. His wife and he do have a son together and he is afraid that if he divorces his wife then he will be deported. Also, what if he divorces and meets someone else and gets married? What are the risks?

A- This is a very complicated area of law, but it would be possible for your friend to petition to remove the two-year condition on his residence status. He would need to prove that he entered into a good faith bona fide marriage. If he applied for the removal of the two-year condition prior to a divorce, he would need to prove extreme hardship as well. If he gets a divorce and files for the removal of the two-year condition, he would only need to prove the good faith marriage. As missteps in filing these petitions could lead to his deportation from the U.S., it would be wise for him to retain an attorney for assistance.

Q- My company filed an H-1B petition on my behalf in 2000. I came to the U.S. for the first time on the H-1B in June 2003 and returned to India in February 2005. My original petition expired in October 2003 and was renewed. The renewed petition expired in July 2005. My company now filed an L-1 for me and I came to the U.S. again in January 2006. Now can my H-1B petition be revived by either my current employer or any other? Would it count under the H-1B cap? I'm curious because I heard somewhere that as long as I was out of the U.S. for less than a year something could be done. I was in India for 51 weeks. I'd like to know what options are available in such a circumstance. Also, in case it is revived, how much time would it be valid for? (I was in the US for 19 months on H-1 and am now in the US for 9 months on L1).

A- As long as you did not spend any time period of one year or more outside the United States, you would still be entitled to have an H-1B petition filed on your behalf and not counted against the cap. The best way to look at how much time you have available on the H1 is to take the total you were allowed of six years and subtract any time spent in H-1B or L-1 status. Thus you would have 44 months available in H1 status. You of course could only ask for an initial three-year period of time with your first H-1B petition.