World Journal Weekly Q & A - March 8, 2009Overstayed F-1 Visa Holder Thinking About Marriage to a U.S. Citizen As a Way to Become Legal, But There Are Consequences and She May Have H-1B Option.A reader asks: I am desperate because I came to the U.S. on an F-1 visa and my status is already expired for one year after I received my bachelor's degree in accounting. I am thinking about getting married to a U.S. citizen, but can I sue him if he insists on having sex or refuses to come to the immigration interview with me? Dear reader: Although you are presently out of status, that is not the worst
fate as there are approximately 11 million persons without status
in the States. From your questions, it appears that you are contemplating
a marriage which is not bonafide. If so, you and your partner would
be liable for five years in jail and/or $250,000 in fines if you
and him were successfully prosecuted for fake marriage. To the U.S.C.I.S.,
a legal piece of paper (marriage registration) does not make a marriage
bonafide - that is determined by whether the parties are living
together as man and wife. An alternative for you may well be sponsorship
under H-1B petition by a U.S. employer that can use your services
in accounting. Because your F-1 status has already expired, you
would have to leave the U.S. once the petition is approved in order
to pick up the visa. You would not be barred from coming back to
the U.S. after being issued the H-1B visa, however, unless you have
a formal termination of your F-1 status by the U.S.C.I.S. by letter
or an order by an immigration judge and 180 days pass with your
still being in the U.S.. That is because individuals who are on
F-1 visa statuses are considered here for duration of status with
no definite ending date. So unless the events leading to formal
termination occur, the 3 and 10 year bars applicable to individuals
who have stayed in the U.S. illegally for 180 days and one year
after April 1, 1997, would not apply to you. With Multiple Trips Outside the United States, Am I Still Eligible for Naturalization?Terry Reader asks: I obtained my green card in February 2005. As my understanding, I can file for naturalization in the 4 years and nine months after my green card was issued which would be in November 2009. I am wondering if I am qualified since I have had the following travel records: From 10/2/06 to 11/14/06, I left U.S. for 44 days; from 6/3/07 to 7/21/07, left U.S. for 49 days; from 11/10/2007 to 1/16/08, left U.S. for 68 days; from 5/4/08 to 10/7/08, left U.S. for 157 days. The last trip took 157 days was because I was diagnosed with kidney stone on both kidneys and must stayed in China for Chinese medicine and treatment. I am planning to go back to China in 9/09 for one month to continue my medical treatment. Will it affect my naturalization application? Will the Custom took my green card away from me after that one month trip? Dear reader: Looking at the amount of time that you have been outside the United
States, I do not believe that you would have a problem qualifying
for naturalization based upon residency. Even your longest trip
was less than six months, and you appear to have a good reason for
having stayed outside for the period of time. The problematic cases
that I usually see are those in which individuals have left the
U.S. for six months for more during a single trip, or have a pattern
of only visiting the U.S. two times a year to "touch base"
even though any one trip is not six months or more in length. Reader Will Apply for H-1B Visa and Wishes to Know Options If He Is Not Selected Under the H-1B Numbers Cap.An OPT student asks: I am an F-1 student on optional practical training which will expire on June 1, 2009. I graduated with a bachelor's degree in math. I am concerned about what will happen if my employer applies for my H-1B visa in April and I am unable to qualify under the 65,000 annual cap. What are my options? Dear reader: First off, I believe that many people who apply will be happier than in past years as many companies will not be applying for H-1Bs at all or in the same quantities that they have petitioned before because of the recession and the fact that they are laying off instead of hiring. Therefore, the cap quota should not be filled as quickly as before. But assuming that your case is not selected, the law now provides you with an additional 17 months of optional practical training if you are able to find employment in your major field with an organization using the E-Verify system for checking the legal status of new hires. You are eligible for such benefit because your degree is a STEM field (Science, Technology, Engineering, and Math). If you are not able to find employment in a company with E-Verify, you would be allowed to remain after June 1, 2009, if your H-1B petition has not yet been rejected until such time that U.S.C.I.S. sends a formal notice that your H-IB filing has been rejected because of the cap. If your application is accepted under the cap and you receive a receipt of filing, you would be allowed to remain and continue in practical training status until September 30, 2009, (or until the case is denied) as U.S.C.I.S. believes that it would generally have approved or denied all H-1B petitions by then. In the event that your H-1B petition is rejected or denied, your employment authorization would terminate in 10 days, but you would be allowed a 60 day grace period within which to depart the country or find some other means to maintain your legal status.
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Copyright © 2003-2012 Alan Lee,
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