-- Q&A 1/5/07--

Q- I was issued an R-1 (religious worker) visa for one year from the U.S. embassy in my country. But the officer in the airport has given me a B-2 on the form I-94 and a residency time of 6 months. I do not know whether this is an error or not. I have got a contract here to work with the same religious institution that had invited me. Now what to do to bring my family, then to be a permanent resident? I was told that I will be under EB4 and I will have to have 2 years of experience in the States. Is it right or it worked if I have these years of experience outside the States and what are the steps of this process to get the greencard for me and my family?

A- The officer was incorrect. You need to get a corrected I-94 by going to a deferred inspection site closest to where you are living. The CBP website has a pdf with all offices listed. I would need further information before I could tell whether you need two years of experience in the U.S. In some cases you do, in others it is not necessary.

Q- My step-father who is a permanent resident filed an I-130 for me in 1996 while I was under 18 years old. I am now married to a U.S. citizen, and I came here illegally. Can my wife file a new petition for me using my old priority date?

A- You cannot preserve an old priority date and do not need to as you are married to a U.S. citizen. You may be eligible for 245(i) and thus be able to adjust your status in the U.S.

Q- Currently, I'm in F-1 student status. I'll be finishing my degree in January 2007, but the completion date on my I-20 is May 2007. I will also apply for post-completion OPT which I understand I have a 60-day grace period to start my OPT. I want to go back home to spend Christmas and come back before the start of my OPT period (March). I haven't been home since I started my studies in the U.S. Is there going to be a problem if I leave the country while my OPT/ EAD is in process? What are the consequences of leaving the country in my case?

A- If you do not currently have a valid F-1 visa in your passport and you are not a Canadian citizen, you will need to apply for an F-1 visa while you are abroad, in order to reenter the U.S. to engage in OPT. In order to obtain the visa, you will need to present your I-20 with the correct end date of January 2007. The I-20 must be annotated by the designated school official to reflect approval of an optional practical training program that extends beyond the end of the regular period of study. In addition, you must have proof of DHS receipt of your application or approval for a practical training program, either in the form of an approved Employment Authorization Card or an I-797 indicating that you have applied for DHS approval for an OPT program.

Q--i along with my wife and 2 daughters were given green card in 1985 as my brother is us citizen.
-only i arrived at usa did job there (had ssn and tax returns) for 4 months.
- i had to come to india as i had to take care of my parents and family and was time of blue star then.
- a son was born to me in '87.
- now my parents have expired and my brother and i want re-union.
- is it possible to get returning resident status immigration now.
- at present my elder daughter is dependent of h1b visa husband.
- younger daughter is above 21 and studyin in india.
- my son under 21 is studyin in india.
kindly guide me.

A- As it has been over 20 years since your green cards were issued, you would definitely be considered to have abandoned your permanent residents and would not be admitted as a returning resident. Since your wife and daughter never entered the U.S. as permanent residents, they would not be able to enter as returning residents either.

In order to enter the U.S. as a permanent resident now, you would need to have your brother file a new petition for you. Visa numbers are currently available for brothers and sisters of US Citizens whose petitions were filed in 1995, over 11 years ago. It would likely take 20 years for your priority dates to become current and you would not be issued green cards until they were current.

Since your children are over 21, they would not qualify to follow to join you in the U.S.

You could apply for a B-2 visitor's visa to come and visit your brother in the United States, and your children and wife could apply as well.

Q- I am on tourist visa here in the US. My visa would expire on Jan.2007. I just passed the Nursing licensure (NCLEX-RN) exam and I already found an employer willing to petition me. I heared that Schedule A visa has reached its cap and I am confused on what to do next. Some say I should have my visa extended and some say I should go back to my country. There is no job available for me since I do not have working permit yet. Is it possible to file I-140 now then wait for the results in my country?

A- It is true that the Schedule A quota has been reached. Your employer can file your I-140 petition now, but you will not be able to apply for permanent residence until the petition is approved and a visa number becomes available.

In order to remain in the U.S. while the I-140 is pending and while you are waiting for your priority date to become current, you would need to be eligible for some kind of employment-based nonimmigrant status. (As you know, your tourist visa does not allow you to work). If you are a citizen of Mexico or Canada, you may be able to enter in TN status to work for your employer while you wait for the green card.)

Otherwise, if you cannot apply for nonimmigrant status, you will have to wait in your home country for the I-140 to be approved and a visa number to become available.

Q- Is it possible to attend the H-1B visa interview from any country? Currently I'm working for X company from another company & through work permit in Italy. I got the employment from U.S. firm. Is it possible to attend the H-1B interview in Italy? Or do I have to come back to India and get it done?

A- You can, but the consulate does have the right to say they want you to return to India if they can't make a judgment of your credentials.

Q- I have been in the US on an R1 visa for about 4 years now. My R-1 visa will expire on January 2007 and I have a pending I-360 application which I sent March 2006. I do not think the I-360 will be approved prior to my R-1's expiration date. Do I need to apply for an extension of my R-1 before my status expires? Or can I just simply wait for my I-360 approval and not worry about my R-1 expiring? Do you know of any instances where an I-360 was denied because of an expired R-1?

A- You are required to maintain nonimmigrant status until you either (1) obtain your green card through consular processing or (2) file your I-485 application for adjustment of status.

5 years is the maximum period of time you can spend in R-1 status. If I understand correctly, you will have reached that 5 year maximum in January 2007. If you have not either received your green card or filed and adjustment of status application by the time that happens, you will impermissibly go out of status. This will not result in I-360 denial but if you are out of status for over 180 days it will make you ineligible for adjustment of status and require that you use consular processing to obtain your green card.

In order to maintain status you will either need to:

1.) Apply for extension of R-1 status just before your current R-1 expires, and request “recapture” of any time spent outside the U.S. in the last 5 years while in R-1 status. You would need to prove the time spent abroad by such things as plane ticket stubs; credit card statements or bank statements (with account numbers blacked out) showing purchases made abroad; employment travel log showing travel abroad; receipts for purchases abroad; etc. You can extend your stay for the number of days spent outside the U.S. while in R-1 status. –OR--

2.) Apply for change of status to another nonimmigrant status for which you qualify (see our article for more information about other employment-based nonimmigrant statuses). The category for which you most likely qualify is H-1B, which is unfortunately subject to an annual cap which has been reached for this fiscal year and will not open again until Oct. 1, 2007, so this will not be an option for you unless you work for a cap-exempt employer, which is unlikely.