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Alphabet Soup: Understanding Temporary Visas

Chat Transcript

Jennifer Wipf:    Hi everyone! This is Jennifer Wipf, your Guide to Immigration Issues at Born Abroad.

Welcome to "Alphabet Soup: Understanding Temporary Visas" with our host, leading immigration attorney Carl Shusterman.

This is like a call-in radio show: you can type questions, but only I will see them, and I will select which ones to ask Mr. Shusterman. I have a whole list so far, so please wait until I ask for more before you enter a new question. I will get to as many as I possibly can, so long as they are related to the subject at hand, and the question is phrased with clarity and proper details.

Good evening Carl!

Carl Shusterman:   Good evening. I am looking forward to some interesting questions.

Jennifer Wipf: Great!

Please keep in mind that as always, the questions and answers here are of a general nature and Mr. Shusterman's responses are purely for educational purposes; they should not be construed as legal advice.

Question #1 -   I am from South Africa and I was a student in the US on a J Visa. I then moved to Canada and became a permanent resident there. Now my boss wants to transfer me to the US office for one year but I have obviously not completed the two year residency requirement in my country. Is there anything I can do?

Carl Shusterman:   That is a terrific question!

Some people on J-1 exchange visitor visas are subject to a requirement that they return to "the country of their nationality or last residence" before they can obtain H visas, L visas or Permanent Residence in the US. The agency which administers the exchange visitor program is the United States Information Agency (USIA) which, as of October 1st,1999, became part of the State Department. The USIA interprets "country of nationality or last residence" to mean the country where you WERE a citizen or resident prior to becoming an exchange visitor in the United States.

In your case you must return to South Africa for two years in order to satisfy that requirement. The fact that you immigrated to Canada after becoming an exchange visitor is irrelevant.

Sorry :-(

Question #2   - My H-1B petition, which was a J-1 to H-1B was filed at the Texas Service Center in late April and I am still waiting. The waiver was approved. Others who filed in August already have been approved. What is the deal?

Carl Shusterman:   Because the H-1B cap was reached for petitions submitted to INS after April 9th, 1999, no change of status applications to H-1B were possible until the beginning of the new fiscal year on October 1st, 1999. Our experience with the Texas Service Center as well as the other three service centers, was that all approvable H1B petitions submitted before the new fiscal year were approved prior to Oct. 1st, 1999. 

That leaves two possibilities regarding your petition; one possibility: You are going to receive a Request For Evidence (RFE) OR a Denial, or two: Somehow your petition got lost in the shuffle. Either way, you should make an inquiry with the Texas Service Center.

Jennifer Wipf: We have another question.

Question #3: If my I-485 was denied while I was working on EAD, can I still apply for an H-4 since my wife still has a valid H-1?

Carl Shusterman:  That depends on the reasons for the denial. If your 485 was denied for reasons that do not render you inadmissible to the United States, e.g. your company went out of business, withdrew your petition, you changed jobs, etc. then you may apply for an H-4 visa.   If on the other hand your application was denied because you are subject to one or more grounds of inadmissibility (e.g. you committed fraud, robbed a bank, etc.) you are not eligible for admission to the United States under any status.

Jennifer Wipf:   Thank you Carl. Here's another question with a popular theme here tonight.

Question #4:   My H-1B is in processing and my J-1 expires in July. Do you think it will be out of cap for next year? If I don't get the H-1B by the expiration of the J visa, and I go out of status will it effect my future green card application?

Carl Shusterman:   You raise a very good point.

Many people wrongly assume that they cannot submit an H-1B petition until their J waiver is granted. In reality nothing could be further from the truth. It may take anywhere from 6 to 9 months to obtain a J waiver, however, I expect the H-1B cap to be reached early in the year 2000.

In order to remedy this situation we are filing H-1B petitions for all our clients with pending J waivers in October and November 1999. This ensures that their H-1B petitions will be approved before the cap is reached. Since you have adopted the same strategy, you should be able to sleep comfortably during the next few months. ;-)

Question #5:   I heard that if I overstay a temp visa by 10 days there is a one year ban. Is this true?

Carl Shusterman:   Incorrect. For those interested in the effects of "unlawful presence" in the United States, take a look at The hypotheticals which I will present to several hundred immigration attorneys this Friday at:

http://shusterman.com/uphypos.html

Unlawful presence doesn't bar you from returning to the United States unless you have a lot of it, at least 180 days.

By the way, if the hypotheticals  leave you stumped, see:

http://shusterman.com/upanswers.html

Jennifer Wipf:   The pages are already up for the seminar Mr. Shusterman will give on Friday.

Question #6:   With a temp visa like an H-1B how long can one stay out of the country?

Carl Shusterman:   You can stay out of the country until the very last day that your visa is valid. Of course, if you do so, and your stay is fairly lengthy, this may raise questions in the mind of the inspecting INS officer as to whether you are still working for your H-1B petitioner, for
instance.

Jennifer Wipf:   I would think so. Here's a good question:

Question #7: Can an L-1 visa ever lead to a green card?

Carl Shusterman: Absolutely!

In fact, there is no temporary visa which leads so neatly into permanent residence, than the L-1A.  If you enter the United States as a
multi-national manager or executive, you may apply for a green card on exactly the same basis.

See http://shusterman.com/execs.html

However, if you enter the US on the L-1B, which is a "person of specialized knowledge" becoming a permanent resident will be a bit more complex since you will still be subject to the labor certification requirement.

Question #8:  My husband is an adjustee in the USA and I am in Canada. My application was added to his after we were married. Am I allowed to apply for a F-1?

Carl Shusterman:  Coming to the US as F-1  after your husband has filed for adjustment of status could be a trap for the unwary. By accepting F-1 student status you are telling INS that you have no intention of abandoning your residence in Canada. Actually, nothing could be further from the truth. Your choices are as follows:

If you can qualify for a temporary status which incorporates the concept of "dual intent" (i.e. E, H, L, O, P), do so.

If not, perhaps your husband should re-qualify for his temporary status, withdraw his application for adjustment of status, bring you to the United States as a dependent, and immigrate through the Consulate General in Montreal.

However, since I do not know what status your husband qualifies for, make sure to consult with a knowledgeable immigration attorney before having your husband withdraw his application for Adjustment of Status.

Jennifer Wipf:  Interesting strategies for her to consider. Here is another question from a Canadian :-)

Question # 9: I am working in the US on NAFTA status - am I allowed to marry a US citizen and still keep my job? Or should I try to get an H1 or L1 first?

Carl Shusterman: Since I assume that you will be adjusting your status to permanent resident through your husband, there is no need for you to give up your job or your TN status prior to applying for adjustment.  However, don't travel outside the country or change jobs until you receive your Advance Parole and your Employment Authorization Document (EAD).

You can apply for an EAD and your Advance Parole simultaneously with your application for Adjustment of Status.
To see how long it will take you to obtain an EAD and Advance Parole, see:

http://shusterman.com/aos.html

Question #10:  Can I work on a student visa?

Carl Shusterman: In general, persons in student status are not allowed to be employed in the United States. However, having said this, there are a number of employment options for F-1 students, including on-campus employment, work study programs, and practical training.

For an excellent article regarding employment options for F-1 students (written by the University of Oregon) see:

http://shusterman.com/toc-student.html

and scroll down to University Students and click on "Employment Options for F-1 Students"

Jennifer Wipf:   That's a great article. Here are some fianc� visa questions that several people are asking tonight:

Question #11:  Will I be eligible to work in the US as soon as I enter on a K-1 visa?

Carl Shusterman: Yes :-) The K-1 is a working visa. After you enter the United States, take
your passport and I-94 down to the local office of the Social Security Administration, obtain a Social Security Number and then start looking for a job.

Question #12: How long is a K-1 wait usually and what do they ask on the interview?

Carl Shusterman:  The K-1 process is initiated by the US citizen when he or she submits form I-129 F to the INS. Once the petition is approved, it is forward to an American Consulate abroad. Since the fianc� is an intending immigrant, he or she must meet most of the same documentary requirements of an immigrant visa applicant.

However, in addition to the application forms, the following documents are normally required:

One: Valid passport

Two: birth certificate

Three: divorce or death certificate of any previous spouse

Four: police certificate from all places lived since age 16

Five - Medical examination

Six - Affidavit of Support (form I-134)

Seven - Evidence of valid relationship with petitioner, and

Eight - Photographs

Regarding processing times the fianc� petitions
are adjudicated at the four INS Service Centers.

See: http://shusterman.com/toc-sc.html, click on the appropriate service center and scroll down to I-129F.  In general, a person can obtain a fianc� visa in less than 6 months.

As far as the interview, the counselor officer must be satisfied that you intend to marry the petitioner within 90 days of arriving in the United States and that you are admissible as an immigrant.

See: http://shusterman.com/k-vsa.html

Jennifer Wipf:   O.K. We had several detailed questions and answers this evening! Now, it's time to bid Mr. Shusterman farewell.

Thank you very much for being here tonight Carl, everyone really appreciates it!

Carl Shusterman:  It was very nice to be here and answer your questions. I look forward to seeing you all at the next chat.

Jennifer Wipf:   Good night Carl.

Carl Shusterman:  Good night all!

 

Jennifer Wipf: We will post a chat transcript here, which you can access through our Born Abroad site's articles section,   or through http://shusterman.com/toc-chat.html

I hope I got to most of your questions. I'm sorry if I missed some of you. There were a couple of off-topic questions as well as some that were not clear enough or were far too detailed for a one-hour open forum such as this.

Some of the questions that I opted not to highlight, due to time constraints, were those I knew could be answered through text within articles on Shusterman's site.  Peter and I, your editors to Immigration Issues at Born Abroad  will be happy to help you and direct you to the specific information you need.

You can also send us any comments about this chat and how to improve the next one. We will work hard to make these chats valuable for you,  and will share comments with Mr. Shusterman as well.  Write to  immigration.guide@about.com.

And last but not least....

I know you enjoy chatting amongst yourselves and with us. The size and professional nature of   Shusterman's chats require a moderator.

However, feel free to drop into our Chat Room to chat with each other anytime you'd like.

We have an immigration chat buddy feature to make this easy to do. Just see:

http://immigration.knowitallmall.com/library/blchatters.htm

You can also exchange messages at our Forum Boards. Both these community tools are available to you every day and we encourage you to use them.

All Shusterman chats are listed along with his transcripts at the link above. From anywhere on our Born Abroad site, you can also check the schedule for Shusterman Chats, as well as our immigration club chats and online support groups, simply by hitting the "Events" link up by our photos on every page of this site.

Carl Shusterman, Peter and I all wish you much success as you swim through the Alphabet Soup of temporary visas. Thank you all for coming and we will see you again soon!

 

Remember to follow-up with these informative pages:

Reference:

Shusterman's Temporary Visas Page

Born Abroad's Green Cards/Visas Page

Special Interest:

See the Photo Gallery at the Law Offices of Carl Shusterman.

 

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� Peter and Jennifer Wipf 1999-2002.  All rights reserved. No duplication without explicit written permission.

From Jennifer Leavitt-Wipf,
Your Guide to Immigration Issues.
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