World Journal Weekly Q & A - December 19, 2010
Q & A 1. 2. 3. 4. 5.
I Changed My Status to F-1 Student and Want to Return to China for a Visit but Am Afraid Because I Left Out a Big Fact When I Applied for My Visiting Visa.
A F-1 student asks:
I am maintaining an F-1 student status and being sponsored by my sister with a priority date in July 2002. I am planning to go back to China for a visit because I've not been back since 2006 and I miss my husband and son. I came to the U.S. in 2006 with a visitor's visa because my mother was very sick. When I filled up the visa form, I did not put down that my sister had applied for me because I don't think that I would have gotten the visa if I had. Do you think that it is safe for me to go to China and come back with an F-1 visa? If not, can I stay in China and immigrate from there with my whole family?
Anyone who commits a misrepresentation when applying for a visiting visa to the United States may find himself/herself surprised at the time of interview before a consular officer when the subject is brought up and the visa, whether non-immigrant or immigrant, is refused. Consul posts are mandated to maintain non-immigrant visa applications for at least seven years and so, in answer to your question, I do not think it is safe for you to go to China.
F-1 Overstayed Reader has Married Husband who Received Political Asylum Green Card in the Same Year as Marriage and Asks if She can Adjust Status Through Her Husband and Under What Conditions.
Yang reader asks:
I came to U.S. under F1 visa in 2009. Later, I became pregnant and did not go to school. This April I gave birth to a daughter. My husband received his political asylum green card this year and we registered our marriage in September. Can I adjust status thru my husband? And how long will it take for my priority date to become current? How soon can my husband become a U.S. citizen? Should he file papers for me now or wait until he becomes U.S. citizen? Which one is faster? I am already overstayed. What will be the result if I am arrested?
You can only be counted as a derivative asylee if you marry prior to the principal asylee obtaining asylum status. Your husband received his political asylum green card this year and you registered your marriage in September, and so you are clearly ineligible to adjust status as his dependent. In your letter, you further state that you became pregnant and did not go to school and gave birth to a daughter this April. Also that you are overstayed. As you are presently illegal, you would not be allowed to adjust status through the sponsorship of your husband with only the green card. Your letter does not speak of any problems with U.S.C.I.S., and so I assume that you never received a notice from U.S.C.I.S. terminating or revoking your student status. If that never occurred, you could interview overseas at the American consulate for an immigrant visa as you would not have incurred a 3 or 10 year bar through your illegal stay. That is because the 3 and 10 year bars do not apply to indefinite date visa statuses such as F-1 unless the status has been terminated or revoked. If you have no wish to leave the United States, you can wait until your husband becomes a U.S. citizen, at which point he and you can file I-130 relative petition and I-485 adjustment of status applications for you at the same time. In terms of speed, filing under his green card status in the F-2A category would be much quicker to obtain permanent residence so long as you are willing to interview outside the United States or if you somehow reinstate your F-1 status with U.S.C.I.S. The F-2A category is currently available for final green card processing in November 2010 for those who filed I-130 petitions before June 1, 2010. If you are arrested, you would be given an opportunity to present any case that you have to the immigration court. In light of your husband's situation and if there are no other unfavorable factors, you would most likely not be detained long if at all during the arrest process.
Parent with F-1 Student Status Must Return Overseas and F-2 Child Cannot Obtain an F-1 Status for Another Year -- What to Do for Child to Remain in States?
Wang reader asks:
I am currently pursuing my doctorate degree in the United States. Because the AIT (American Institute in Taiwan) then only issued me a three-and-half year visa (a five year visa is the norm), my visa will expire this year in October. Although the university has agreed to provide me and my family an I-20 (valid until 1/5/2012) to apply for a one-year visa extension, my prior employer insisted that I need to go back to Taiwan this September to resume my previous position. Right now we are facing a issue relating to my son’s higher education and visa in the United States.
My question is: My son will enter 12th grade this fall. I plan to let him finish high school in the United States and apply for college thereafter. In which case his university will issue him an I-20 for him to apply his own F-1 status, and he will be able to stay in the country legally. However, his current F-2 visa will expire in October of this year. Even though he obtains his I-20 next year, he might be denied at the interview for his overstaying between his F2 and F1. To avoid his problems in adjusting to Taiwan’s educational system, we want to know if there are ways to resolve this difficult issue.
In the situation you describe, your son's F-2 status will expire in October 2010 and a university will not be able to issue him an I-20 for F-1 status until sometime next year when he completes his 12th year of schooling. The choices appear to be that you can continue your Ph.D. studies with an I-20 valid until January 2012; you and your son can inquire of the school or school district whether it can issue him an I-20 for his 12th year of high school; your son can remain in this country without legal authorization; or he can return with you to Taiwan. I note that some high schools issue I-20 certifications, and that public school systems may issue I-20s so long as the alien student does not study for more than one year and reimburses the school district for the full expense of the schooling. If your son remains without authority in the United States, any later change of status request that he may attempt from F-2 to F-1 with U.S.C.I.S. would probably be denied.
What Are the Rules of Porting My I-140 - and Is My Lawyer or Immigration Right?
A Labor Certification Applicant asks:
The question I have is whether Immigration is right or my counselor is right. My former company filed for my labor certification in 2005, which was approved in 2006 as was my I-140 petition. I then filed my I-485 adjustment of status application in July 2007. Two years later in August 2009, I received notice that my I-485 application was denied. I had stopped working at the company in December 2008, but when I asked my old boss whether he had received any papers from Immigration, he said that they received a request for information pertaining to company finances and a current job letter from Immigration around March 2009, but had not responded because I was no longer working there. I got a new job in the same field in December 2009, and went to a lawyer who said that I could port my I-140 approval to my new job since it was in the same field and since my I-485 application was active for at least 180 days and my I-140 petition was approved. He filed papers for me, but we just received another denial from Immigration.
The American Competitiveness in the 21st Century Act (AC-21) provides that an approved I-140 petition can be ported to another employment in the same or similar occupation so long as the I-140 petition is approved and the I-485 application has been pending 180 days. Although it would appear that you qualify under the above, U.S.C.I.S. is most likely correct in denying you the right to port the I-140 approval. Although your I-140 petition was approved and the I-485 pended for 180 days, the fact remains that the agency sent a request for further information to your former employer, there was no response, and you did not have a job in the same field until after U.S.C.I.S. had issued its denials. In discussions on the subject, U.S.C.I.S. has affirmed that the I-140 petition belongs to the company and not the beneficiary, and so it has no duty to notify the beneficiary of any action pertaining to the I-140 petition. Your former employer appears to have received proper notice of the correspondence from U.S.C.I.S., but chose not to respond. You might possibly have an argument if you had a new job in the same field during the period of time that U.S.C.I.S. was sending out the request for further information, but you have not so indicated.
What is the Extra Certification that I Need for my H-1B Application and Why is U.S.C.I.S. only Giving 30 Days for Me to Get it?
A medical technologist asks:
I work in a clinic as a medical technologist and was recently sponsored for my H-1B visa. To my surprise and that of the clinic, Immigration sent back notice last week saying that I only had 30 days to submit a certification from an independent credentialing organization approved by the Attorney General. It listed the Commission on Graduates of Foreign nursing schools as an organization from whom such a certification could be obtained. Immigration also said that no extension of time would be given to us past the 30 days. Is this correct since I am fully authorized to practice my profession in the state?
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) listed seven categories of health care workers for whom additional certification would be required before entering the States for the purposes of performing labor as a health-care worker. Those categories are nurse, physical therapist, occupational therapist, speech language pathologist, medical technologist, medical technician, and physician assistant. Non-immigrant health care workers were not required to obtain the additional credentialing, the Visa Screen certificate, until July 27, 2004. Since then, H-1B applicants in these categories must have the Visa Screen certificate to be approved. U.S.C.I.S. previously gave extensions of time to obtain the additional credentialing, but now feels that the process has been in place so long that no additional time consideration should be given other than the period afforded on a request for further evidence.