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Even with a “marriage made in heaven”, a problem can arise when a foreign national beneficiary attempts to adjust status to become a lawful permanent resident.

Adjustment of status is the process used by a foreign national who is physically present in the United States to obtain a green card. The alternative is to apply for an immigrant visa through a US consulate abroad. Depending upon the particular case load of USCIS service centers in the US, adjustment of status may be preferred by foreign national over consular filing because 1) leaving the US may not be an option if the beneficiary has unlawful presence in the US, 2) it avoids the expense, time of separation and inconvenience of returning tot he home country, 3) adjustment applicants and family members ae entitled to employment authorization and permission to travel while the application is pending (assuming there is no unlawful presence which would trigger a bar), and there are more options for reconsideration of an unfavorable decision by USCIS.

In order to qualify for adjustment of status in the US, the applicant must:

A. have been admitted or paroled, or qualify for a special program which negates this requirement. Otherwise, it will be necessary for the applicant to return home to wait for permission to reenter the US.

B. have an immediately available visa number at the time of filing. Certain relatives are classified as an “immediate relative”, and a visa number is available automatically. For example, when a US citizen spouse files for a foreign national beneficiary spouse.  In other cases, depending on the familial relationship, the beneficiary will be categorized in a preference listing, with the practical result being a visa number will not be available for years.

C. be eligible to adjust. In other words, not barred for some reason from adjusting, and having submitted the proper application with supporting documentation, including an Affidavit of Support.

This is where the problem comes in. One of the bars to adjustment of status is having engaged in unauthorized employment on or after January 1, 1977. Unauthorized employment is a bar to adjustment of status to persons who engage in unauthorized employment even after their adjustment application is filed. There is an exception if the applicant has not worked more than 180 days without permission since his or her last entry into the US.

“But wait a minute”, you say. “I thought marriage to a US citizen or permanent resident meant I could get approved.” This is a common misconception. Marriage to a US citizen does not solve all of an applicant’s potential problems to adjustment, but does qualify a person for adjustment (assuming all other conditions are met), even though the foreign national has worked without authorization. That is not true, however, for foreign nationals who marry permanent residents. Working without authorization is a bar to adjustment of status.

Many international students give up their dreams of obtaining a U.S. student visa and studying at an American university simply because they don’t understand the application process. While it is true that the process of obtaining any nonimmigrant visa is shrouded in bureaucratic red tape and confusion, the F-1 student visa is actually one of the most straight-forward programs in the U.S. immigration system.

Let’s start with the basics, what is a nonimmigrant? A nonimmigrant is simply anyone who has been admitted to the U.S. temporarily for a specific purpose. So the first thing you must understand is that your intention in coming to the U.S. must be temporary and for the specific purpose of pursuing full time academic (or vocational) studies.

There are two U.S. student visa programs, the F-1 Visa and the M-1 Visa. The F1 visa is designed for international students wishing to attend universities, colleges, seminaries, conservatories, and high schools. The M-1 Visa is for vocational studies, for example, in a trade such as mechanics.

Applying Outside the United States
The first thing you need to do is to locate a USCIS-approved school. Many American universities, colleges and other academic institutions are well acquainted with the F-1 visa process, but it is important to ask them upfront if they are an approved school and if they are currently accepting international students. You don’t want to waste your time and money pursuing a school that is not approved.

Assuming you meet the admissions requirements of an approved program, the school will issue you a Certificate of Eligibility. In most cases you will then need to obtain a visa by bringing your Certificate of Eligibility to your nearest U.S. Embassy or Consulate to get your F-1 or M-1 student visa.  Remember, nonimmigrant visas are temporary and for a particular purpose so you must demonstrate that it is your intention to return home at the conclusion of your studies and, of course, that it is your intention to actually attend the school and pursue your studies. With is in mind, be prepared to demonstrate that you have the necessary financial resources required for your tuition fees and stay in the United States.

When you finally arrive in the United States, an immigration inspector will enter an admission number on your portion of the Eligibility Certificate which you’ll need to retain for your records. Also, the inspector will staple into your passport a card, Form I-94, as evidence of your lawful entry into the U.S. As with the eligibility certificate(s) you‘ll need to keep this in a safe place.

Applying Within the United States
If you are already lawfully in the United States you may also apply for an F-1 or M-1 student visa. The process is essentially the same as described above though you will not likely need to leave the United States. However, you will need to demonstrate that you can pay for your studies and stay and that it is your intention to return home at the conclusion of your studies.

You should also know that if you came to the U.S. with a nonimmigrant visa, for example, a tourist visa, you may need to demonstrate that you did not have a preconceived plan to apply for a student visa once you arrived in the United States since this might be construed as being contrary to the purpose of your visa. That being said, it’s OK if you decide to look into obtaining a student visa after you’ve entered the United States with another class of nonimmigrant visa, but be ready to show that this was not your initial intention.

Bringing Family Members to the United States
You may bring your spouse and children with you to the United States. They are eligible for a derivative class of visa known as an F-2. If you are applying at a U.S. Embassy or Consulate your eligible family members should appear with you. Be sure to bring documentation of their relationship to you such marriage and birth certificates.

You and your eligible family members may stay in the United States for as long as you maintain full-time student status in an approved school and make acceptable progress toward completing your studies or degree. You may also be able to stay an additional year after the completion of your studies if you wish to pursue some practical training—plus sixty days to prepare for your departure.

Transferring Schools
Let’s say you obtain a U.S. student visa but now wish to change schools, what can you do?  Well, the good news is you can change schools, but you must be a full-time student in good academic standing, that is to say you cannot change schools just because you’re failing your courses. You’ll need to get a new Certificate of Eligibility from the new school and notify your current school of your intention to transfer to the new school. You must complete your portion of the Certificate and give it to your new designated school official (DSO) within 15 days of transferring.

Now that you know the rules, it’s easy to apply for a U.S. Student Visa!

Getting Married While Facing Removal in  Immigration Court Proceedings

One form of relief available to respondents facing removal in immigration court may be adjustment of status based on marriage to a U.S. citizen.  Adjustment of status permits an admissible alien to obtain lawful permanent residence (i.e., a green card) without leaving the United States.

You should seek the advice of an immigration attorney in determining whether or not this will be a viable form of relief. Factors such as the nature of the allegation against you and/or other legal impediments may prevent you from pursuing this adjustment of status while in immigration court. For example, you would still need to meet the admissibility requirements for adjustment—or obtain a waiver.

When a respondent gets married during immigration court proceedings, his or her attorney will typically first file an I-130 with USCIS along with detailed evidence of the bona fides (good faith) of the relationship. This is particularly important since applicants who marry after the initiation of proceedings must prove the validity of the marriage by clear and convincing evidence because of the obvious suspicion that the marriage was entered into solely for the purpose of avoiding the immigration problems. *Never enter into a fraudulent or sham marriage.

According to INA 204(g); 8 C.F.R. 204.2(a)(1)(iii), USCIS cannot approve an I-130 immediate relative petition without an exemption if the marriage occurs during the respondent’s exclusion, deportation or removal proceedings. For this reason, it is important for the applicant to specifically request a bona fide marriage exemption under INA § 245 (e) (3); 8 C.F.R. § 204.2 (a) (1) (iii) and § 245 (c) (8) (iii) – (v). While it is true that the agency may presume you are requesting the exemption, it is best to clearly indicate so in a cover letter in order to avoid delays in processing the case.

Once the I-797C filing receipts are received back from the agency the immigration attorney should file a motion to continue the case along with proof of filing, copy of the I-130 and copies of the evidence supporting the bone fides of the relationship.  Incidentally the I-130 petition package should be filed by certified mail or other trackable courier service so that you can use the shipping receipt as evidence of filing in case the I-797C does not arrive in time for the hearing of filing of the motion.

Once the I-130 petition is approved and the I-485 and related applications have been properly filed, the immigration judge can adjudicate the respondent’s adjustment of status or, in the alternative, terminate the case for processing by USCIS.

Today were going to be talking about exactly what is an H-1 B Visa?  Well simply stated the H-1 B is a popular visa for foreign workers who wish to be employed by a U.S employer. The key here is that you are bringing together the US Company or employer with the foreign worker who has the necessary skills and experience needed by the employer.

So, then, this raises the first question: Who is eligible to obtain an H1B Visa…or more importantly, are YOU eligible for the H-1B visa?
First thing to know is the H1B Specialty Occupation rules. The rules state that you must have a 4-year college degree or its equivalent.  Ideally you’ll want to have a 4-year college degree.  But what if you don’t already have a four-year degree? What is its equivalent?  Can your experience be credited being equivalent?

The answer is yes…well sort of.

You see, generally, H1B rules require three years experience as being equivalent to one year of college—but the experience must have some relationship to the degree or field of study required for the job you are seeking.  So then, just merely having general life experience will not be sufficient.

For example, lets say  that according to the H1B rules, you need a bachelor’s degree but, the job your trying to get requires a degree OR some specialized experience. You Can qualify with experience alone! Assuming, of course that you meet all other requirements.

H1B Visa
Let me take a moment to recap here. We’re talking about H1B visas and what you need to qualify.  We discussed the 4-year college degree rule and how you can substitute experience for that degree with 3 three years related experience being considered the equivalent of one year of college.  And that it is possible to obtain an H-1 B visa with experience alone.

Now let’s consider what is meant by a Specialty Occupation under the H1B visa rules. OK, listen closely because this part can get a little boring….but is important for you to understand.

What is an H1B Specialty Occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent…and now you know what that means. Lets give you a few examples of some qualifying occupations: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are all specialty occupations. (And, there are others too.)

OK, now lets say then that you have an job opportunity to work in a H1B specialty occupation field, and that you meet the 4- year degree requirement we discussed earlier.  (or its equivalent)

For how long is the H1B visa valid?

You apply for (or actually your employer) and…congratulations you qualify and get the H1B visa. For how long is the H1-B Visa valid?  How long can you stay, live and work in the United States? Well, the H1B visa is good for 3 years…but it can be renewed for up to 6 years.  And, in some cases even longer.

H1B Visa Quota

I’m sure you’ve all heard in the news that there is a limited number of H1 B visas available each year.  This unfortunately is true.  There are H1B Visa Quotas. Currently the law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H1B status. And you should be aware that in each of the past several years this quota has been met within days. Because of the rapidity in reaching this quota the Department of Homeland Security has established a form of lottery system to select a pool of applications for processing.

Exceptions to the H1B Quota: Renewals and U.S. Masters Degree

But, the quota does not apply to renewals. So if you already have the H1B you won’t have to worry about quotas when it comes to for renewal. Also certain other applicants need not worry about the quota, for example, applicants who have a master degree from a U.S. university.

Finally, lets go over a few common misconceptions with the H1B Visa.  Many people believe that once hired by an H1 B employer you have to stay with them for the entire term of the visa…sort of like an indentured servant. This is not true at all.

Changing H1B Employers

You may change H-1B employers without affecting status, but, and this is important, the new H-1B employer must file an new application for you before you begin working for the new employer. Once filed you can commence working for the new employer.

What if your employer sells the business, will that terminate your H1b Visa?

As long as you continue to work for the new owner in the same specialty occupation capacity you are in compliance and your visa remains valid.
Must you be working at all times?  As long as your H1B employer/employee relationship exists, you are still in status. You may work in full or part-time employment and remain in status. You may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting your status.

Can you get a green card once you get an H1B Visa?

Yes, you can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting your H1B status. This is known as “dual intent” and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, you may travel on your H1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

In a previous post we discussedconditional permanent residence and the need for timely filing  an I-751 petition to remove the conditions within  90 days prior to the two year anniversary of being granted conditional status.

We also mentioned that jointly filed petitions  may be filed late where you can demonstrate good cause and extenuating circumstances.

This post sparked a lot of followup questions about exactly what qualifies for “good cause” and “extenuating circumstances” and how late is too late, etc.

Well, unfortunately there is no clear answer here. What we can say is that it is possible to file form I-751  years past the deadline and still have USCIS accept and approve the petition so long as you have not already received an Notice to Appear (NTA) in immigration court proceedings. (and, it may still be possible to file with USCIS during proceedings).

Because the decision to accept your late filing is discretionary you really need to take the time to clearly explain the circumstances that have led to the delayed filing.  And, while it is impossible to predict, we have heard of cases where Form I-751 late filing  (i.e., jointly  filed) petitions have been accepted and approved over a decade after the filing deadline.

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