-- Q&A 2/5/07--

Q- I originally entered the USA with B2 visa and then changed my status from B2 to H1, and now I'm planning to trip Vancouver and getting H1 visa stamp.

I've heard that my case might be risky because I'm not Canadian and my bachelor degree was earned at my home country, neither in the USA nor Canada.

However, I also have an experience to get H1b stamped at my home country after education background verification, even though it was already expired and it was before I entered the USA with B2 visa.

Under my circumstance, how do you see the chance for me to get H1 visa stamp successfully?

A- I agree that it is risky to apply in Canada when your degree was not earned in North America, as they have no way at the consulate to evaluate its equivalency to a US degree.

The risk you run is that if the application is denied in Canada, you cannot return to the US; you would have to go to your home country and get an H-1B visa there before you would be permitted to reenter the U.S.

Q - My mother filed for me under F2B category when she had a green card in 2001. Before my mother got citizen ship I got married in 2004. Now in May 2006 my mother got citizenship.

Can I change my file status from F2B category to F3 category with original priority date as 2001 ? Will I able to migrate with my family with old priority date ?

A- The Family Based 2B category is for unmarried sons and daughters of permanent residents. If you had remained unmarried you would have been able to upgrade your petition to family based first preference when your mother naturalized. However, because you were married in 2004, you became ineligible for the I-130 petition since there is no preference category for married sons and daughters of permanent residents. The old I-130 petition is therefore no longer valid.

In order to immigrate based on your mother’s status in the U.S. at this point, she would need to file a new I-130 petition for you as a married son or daughter of a US citizen (Family Based 3rd preference). You would not be able to retain the priority date from the first petition.

Q- I am from England and have been offered a job in the United States. Please advise the steps I need to take and how to get my visa and move out there.

A- The proper visa category depends on your education and experience as well as the nature of the job offer. If you would like to retain Mr. Eiss to advise you, you can set up a consultation by calling our office. Mr. Eiss charges $150 for a consultation.

Q- Would you know what constitutes a baccalaureate degree for a vocational counselor under TN visa req's for NAFTA? I am a Canadian citizen with a BA in Sociology, Anthropology, and a minor in Communications. I also took a career practitioner citation program- professional program via Kwantlen University college to be a professional in business.

A- I am sorry to give a vague answer, but it would depend on the officer who adjudicated your application. Some officers would accept a degree that did not appear closely related as long as it was in the same general field. Some officers would require that the degree be very closely related and would look for coursework that indicated a training in vocational counseling as part of the degree. As one officer put it to me, "If the applicant had to take additional coursework after obtaining a degree in order to do the job, the degree is not closely related."

Q- I want to apply for Petty Offense Exeception, could you tell me if I am qualified? Here is my charge: 2 year probation, 1 day jail time and 1 day less credit (no jail time); $150 fine; $300 state penalty fund.

A- To determine whether or not the petty offense exception applies in your case, I would have to see under what section of the law you are being charged and if it is in neither Canada nor the United States, I would need to see a copy of the law. While sentencing is an important factor in determining the petty offense exception, the wording of the law and possible sentences, not just imposed sentences, are also determining factors.

Q- I am an RN graudated from a US university and currently under F1 status, also have applied concurrently I-140/ I-485 in October 2006 under Schedule A, Group I, and the status now is still pending; however I just got my EAD card and have been asked to fingerprint. I am aware that if I use the EAD card, I will lose my F-1 status if the I-485 is denied. Is that true? What if I still want to maintain F-1 status and work part time? Can I do that without losing status if green card is denied? And can I renew EAD card before expiration date?

A- Even working part time on your EAD and continuing full time studies voids your F-1 status. If you can't do something as an F-1, doing it under the I-485 situation voids the F-1.

Q- I have two questions: 1. How many EB3 visas there are per year? 2. DOL aproved my labor certification last october and I filed it last March 2005, how many months I have to wait until my priority day arrived? Can I estimated one year or two for this?

A- 1.) There are 23,400 EB3 visas per year.
2.) How long it takes for a priority date to become current depends on what country you were born in and what preference category your labor certification/ I-140 were filed under. See our article on how to read the Visa Bulletin.

Q- How can I get student visa and what are the requirements for student visa?

A- Most students enter the U.S. on an F-1 visa. In order to obtain an F-1 visa you would first need to apply to, and be admitted to, a U.S. university. The university will guide you through the visa application process. Basic information on F-1 students status is available on our web site.

Q- You mentioned on your site that TN holder can apply for permanent residency. How risky is this? I have been in the US for 9 months now with a TN, working in NY city. My employer is about to give me a letter to renew my TN. Once this is done, I could start the process without going the H-1B route first? I also heard that the processing time in large cities could be a nightmare. Is that true?

A- Processing times are no longer controlled by local city times for employment based cases unless the case gets transferred for an interview. We have numerous cases of TNs getting permanent residence without ever going to H-1B, but if it is possible to switch, it can be more comforting not to have to worry about potential problems. If planning on switching, you do not need to wait until the H-1B is filed and approved to start the labor certification.

Q- I am Canadian and am married to an American. We got married this past summer in the US. We filed our I 130 form and sent it to the Texas Service Center.I made the mistake of coming to Canada while the form was pending and was denied entry back into the US. The I 130 was approved on October 27.

My husband sent in an I 824 so that my case will be transferred to a US Consulate in Canada. My husband has recieved a notice that they got the I 824 application. On the uscis website, it says that it is at the California Service Centre. Nothing has been touched or updated on our case. I did some reading on the I 824 and it states that, even though the form is pending, you can sent in the approved form and the receipt of the 1 824 directly to the Consulate.???

I feel so lost in all of this process. It seems so much more complicated than it should be. We have no idea where are case is going to go now and how long it will take to get there. If we still have to wait for it to go to NVC, or if it goes to a US Consulate here in Canada. No one can give us clear answers on this.We are also debating filing an I 129 and see if that gets processed quicker. Any advice is appreciated.

A- The US Consulate in Montreal, Canada does allow employment-based immigrant visa applicants to bypass the I-824 wait time. They require you to submit a certified copy of the I-824 receipt, certified copies of the I-140 petition and approval notice, and evidence of residence in Canada to the National Visa Center. The National Visa Center then reviews these documents along with the rest of the consular processing application and if the application is complete, schedules the appointment and then forwards the case along to the consulate. (See our article on I-824 processing procedures).

I am not sure whether they follow the same procedure for family-based cases such as yours. If they do, you would send the same documents except it would be a copy of the I-130 petition and approval notice that you would send, rather than a copy of the I-140 petition and approval notice. You can call the Consulate in Montreal at 514-398-9695, ext. 3833 between 2:00 and 4:30 p.m. to ask whether they follow this same procedure for family based petitions or not. You can also email them at Montreal-IV-DV@state.gov to inquire.