World Journal Weekly Q & A - September 20, 2009My I-20 As a Student Has Expired in May and I Was Not Accepted for Graduate School -- What Are My Options?Dear Mr. Lee, I came into the United States with an F-1 student visa in 2005. I graduated with my master's degree in May and my I-20 expired on May 30, 2009. I applied for a Ph.D. program and interviewed at the end of July, but did not get in. I am still thinking of Ph.D. studies, but I will probably not be in time for the fall semester. I did not apply for optional practical training because I thought that I would be accepted in the program. A company is interested in hiring me at this time. What are my options? Dear reader: If the company is viable and the offered position is specialized
in the field of your studies, the company could sponsor you for
H-1B visa status. Because there is only a 60 day grace period after
the expiration of F-1 status for you to remain legally in the U.S.,
you would most likely have to be visa processed for the H-1B at
an overseas American consulate or embassy after U.S.C.I.S. approves
the petition. Your reentry to the States under H-1B after visa issuance
would clear up the time of your illegality. Inasmuch as you entered
the U.S. previously under F-1 visa status, your chances of obtaining
an H-1B visa would be better than if you had come under a visitor's
visa and changed status to F-1 while in the States. Another option
is reinstatement of F-1 status within five months if you are able
to obtain I-20 acceptance from another program. A reinstatement
application would be made directly to U.S.C.I.S. If you did not
wish to have U.S.C.I.S. adjudicate a reinstatement request, you
have the option of taking the new I-20 form overseas to an American
consulate or embassy, explaining the circumstances of your overstay
to a consular officer, and applying for a new F-1 visa. I Am Currently an F-1 Student in a Bachelor's Program and Want to Work - What Can I Do?Dear Mr. Lee, I am presently an F-1 student at Brooklyn College studying for a bachelor's degree in engineering. Previously I received a management degree in the Department of Economics from a university in my home country. I want to be able to work in the U.S. What can I do? Dear reader: With F-1 student status, you may be eligible for curriculum practical training from your designated school official (DSO) if the work is essentially related to your studies. You should check with the DSO concerning eligibility. You are allowed to work on campus automatically so long as the work is related to some function of the school as part of the F-1 status. Off-campus permission to work for emergent reasons can be applied for with the U.S.C.I.S. if circumstances have arisen since your student status began which impacts on your ability to continue studies. If you are close to graduation, you can apply for optional practical training to work in the U.S. in your field for one year following graduation. If your management degree is the equivalent of a U.S. bachelor's
degree and a viable U.S. employer wishes to sponsor you for a professional
position related to the degree, you could be eligible for an H-1B
visa which would allow you to work for up to six years and even
longer if steps are taken towards green card sponsorship during
that period of time. Usually H-1B visas are unavailable because
of the huge demand which typically exhausts the supply within a
week after the quota opens in April. Because of the recession and
U.S. firms not hiring, we project H-1B availability through at least
October if not the end of the calendar year. Reader Can Adjust Status to Permanent Residence Although Illegal Under the CSPA Since I-130 Petition Took Years to be Approved.Dear Mr. Lee, I came to the country in 2001 with my mother as her dependent (she was an F-1 student). She married a U.S. citizen in 2002 when I was 19 and got her green card. I changed my status to F-1 student at that time. Mom applied for me in March 2003 and Immigration approved the petition in June 2008. My mother became a U.S. citizen in 2007 and so we upgraded my petition from F-2B to F-11. Now my priority date is current. In the meantime, I graduated and was sponsored for H-1B status which was approved, but I stopped working in July 2008, over a year ago. I did not change my status to any other category. I also never got a notice by Immigration telling me to leave the country or denying any application. My I-130 approval sheet says that it is being housed at the U.S.C.I.S. Service Center because I will be adjusting my status to permanent residence. What am I supposed to do now? Dear reader: You have a complicated fact pattern, but it appears to have a good
solution. Initially your stepfather could not have sponsored you
at the time that he sponsored your mother as the rule is that the
marriage creating a step-relationship must occur prior to a child's
turning the age of 18. Your illegality would normally prevent you
from adjusting status to permanent residence in the U.S., but you
would appear to be eligible to do so under the Child Status Protection
Act (CSPA). Subtracted from a child's age is the time that an I-130
petition pends. In your case, it would appear from the question
that you were either 19 or 20 at the time that the priority date
was established in March 2003. Taking into account that you have
a credit for age during the time that the I-130 petition is pending,
and the further rule that time freezes on age when an individual
become the immediate relative of a U.S. citizen, you became an immediate
relative of a U.S. citizen on the day that your mother became a
U.S. citizen. That status was preserved even after the petition
was approved and another 15 months have passed by. Your proper classification
would be immediate relative instead of F-11 unmarried son or daughter
of a U.S. citizen. As such, although complex and possibly argued
against by U.S.C.I.S., you would appear eligible to adjust status
in the U.S. despite your present illegal status. Immediate relatives
of U.S. citizens-parents, spouses, and children under the age of
21 and not married-are eligible to adjust status even if presently
illegal so long as they were inspected or paroled when coming to
the U.S. My H-1B Employer Does Not Want to Sponsor Me and It Is Already the Fifth Year - What Options Do I Have to Stay Legally and Get My Green Card?Dear Mr. Lee, I am in my fifth year of H-1B status, but my employer refuses to sponsor me for a green card. I have a master's degree in telecommunications, and there is the possibility that a small chain restaurant may wish to hire me in the near future. My H-1B is as an assistant producer, and I'm thinking about applying for an O-1 visa to stay in the States. I am from Taiwan, my parents have money, and they are encouraging me to open up my own business. What options do I have? Dear reader: At this time, it would appear that you have a number of options depending upon your personal circumstances and wishes. -- There is the possibility of your continuing on with your present employer if you are so inclined until the end of the 6th year after looking at your available options. For readers' information, H-1B status normally reaches a maximum length at six years if nothing further is done to begin employer sponsorship for the green card. -- There is the possibility of a new employer sponsoring you for H-1B transfer and subsequently or at the same time applying for a labor certification application on your behalf. -- Your possibility of an O-1 visa for extraordinary alien might be problematic as you would have to show a higher standard of achievement to obtain such visa and it might be difficult to convince U.S.C.I.S. that an assistant producer would have such enhanced qualifications. For aliens in the motion picture and TV industry, the standard for extraordinary is to show a very high level of accomplishment. For other occupations in the arts, aliens may show that they have attained "distinction" or "prominence" in the field of endeavor. -- You have a master's degree and if you want to stay in the U.S. for further studies, there is the possibility that U.S.C.I.S. would be amenable to the request so long as it makes sense, e.g. Ph.D. or another Masters Program study, not participation in an ESL program. -- There is the possibility of non-immigrant investment in a commercial enterprise under E-2 treaty provisions with the Republic of China. The amount of investment must be substantial and commensurate with the size of the operation. -- There is the possibility of immigrant investment for the green card under either a regional center program or individual investment (at least $500,000 investment in a commercial enterprise in targeted employment areas and $1 million in all other areas. Targeted areas are those which are rural (not within any metropolitan statistical zone or the outer boundaries of any city or town having a population of 20,000 or more), or an area which has an unemployment rate of 150% over the national average). There may be other possibilities for extension of stay and/or immigration, but the above are the ones that come to mind given the parameters of your question.
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Copyright © 2003-2012 Alan Lee,
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