Q & A August 8, 2004

Q & A 1.


Q&A 1.

F-1 does not restrict by 10 year bar from reenter

Dear Mr. Lee:

I came to the United States in August 1996 by a B-2 visa. Later by the same B-2 visa, I studied at a public high school (10th grade) for one year, between August 1996 and August 1997, during a period when my B-2 is still valid. In September 1997, I transferred to a private school and received F-1 visa. I studied until I graduated from high school. In June1999, I left the U.S. and returned to Hong Kong. I wasn’t even 18 years old when I left the U.S. While in Hong Kong attempting to apply for another visiting visa to the United States, to my surprise I come to know that I was barred from reentering the U.S. for a period of 10 years.

My boyfriend is an U.S. citizen, and we are thinking of getting married. Can we apply for K1 or K3? What is the best thing to do for us? Thanks.

Regards,
Ariel Yeung

Dear reader:

If you maintained an F-1 visa status during your stay in the U.S., you are not barred by the 10 year rule. Sometimes there is confusion as to whether individuals have actually been given F-1 status. F-1 status is accorded to those individuals entering the United States under F-1 visas, or if in the United States under other types of visa statuses, upon the approval of F-1 change of status by the U.S.C.I.S.. Merely obtaining an I-20 Certificate of Eligibility for Non immigrant (F-1) Student Status from a private school does not turn an individual into an F-1 student without a confirming approval from the U.S.C.I.S.. However, if you did receive a change of status to F-1 by the U.S.C.I.S., you could show the approval to a U.S. consular officer on your next application for a visa to come to the United States. If on the other hand, you did not receive the change of status approval, you would be barred for 10 years if you left the U.S. at any time after you reached the age of 17, not 18.

You should further note that you were not supposed to study in the United States under your B-2 visa status. That is not one of the purposes of a B-2 visitors visa. That could be a significant negative factor in a U.S. consular officer's decision whether to issue you a another non-immigrant visa if he/she knows of this.

Whether you apply for K-1 or K-3 is a decision between you and your boyfriend. The K-1 visa is for fiancees of U.S. citizens who will marry within 90 days of coming to the United States. A K-3 visa is a temporary visa for the spouse of a U.S. citizen. In both cases, the bonafide character of the relationship must be proven prior to the entry of the individual to the United States.

 

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.