World Journal Weekly Q & A - April 7, 2013F-1 Student, Dropped out of School, Arrested by ICE, in Removal Proceedings, Went Back to School – Can He be Reinstated to F-1 Status?A Chinese student asks: I was F-1 student, and stopped going to school last June because I did not register for the fall semester. I was with some friends near Buffalo in November when the car was stopped by ICE and I was detained several days. I was released, my case was transferred to New York City, and I have a hearing in front of the immigration judge in April. I have started attending school again. Can the immigration judge reinstate my F-1 student status? Dear reader: Reinstatement of F-1 visas is not within the jurisdiction of immigration judges. The only power of the immigration court in that situation is to adjourn or continue the case to give DHS an opportunity to look into the merits of a reinstatement application. If DHS agrees to the reinstatement, it can move the court to terminate immigration proceedings. In your case, however, it is highly doubtful that a reinstatement could be accomplished since the regulations only allow reinstatement applications to be made within five months of the violation. Previous Sponsor of K-1 Fiancée Petition Wants to File Another. Restrictions?A friend asks: My friend sponsored a person for a K-1 fiancée visa recently, but that did not work out, they did not get married, as she went back home. He wants to try it again since he is very lonely and this person has a clean record with Immigration and the police. Dear reader: I assume that by the word "person", you are speaking of the petitioner, and asking whether he can apply for another person under the K-1 fiancée visa when the fiancée has gone back home. Depending upon your particular circumstances, this is a situation in which U.S.C.I.S. may request a waiver as its memorandum on the subject states that if a petitioner previously had a K-1 visa petition approved within two years prior to the filing a new petition, the petitioner must request a waiver. Thus, if your previous petition was approved within two years of filing a new K-1 petition, a waiver would likely be requested. There is some question concerning the legality of U.S.C.I.S.'s interpretation, but the prudent course would appear to be waiting two years after the K-1 approval before filing another. Please note that a waiver is always required if the petitioner has filed two or more K-1 petitions at any time in the past, regardless of the result. H-1B Holder At Computer Consulting Company Asks If He Can Go To Canada To Obtain Visa Stamp.A H-1B holder asks: I received my H-1B change of status last year from F-1 optional practical training. My employer is a small computer consulting company that sends me out to different employers for projects, in one case 3 months and in the last 6 months. I get no supervision from the company and take all my instruction from the project employers’ supervisors. I want to go outside the United States and put the H-1B visa in my passport, but I have heard different stories about how hard that would be. Would it be a good idea to go to Canada and try? Dear reader: You can encounter difficulties in attempting to obtain an H-1B visa at an American consul or Embassy because of the nature of your employer. The issue is one of control and whether an employer like yours is able to show that it has the requisite amount of control over your services. Items that some American consulates have asked to have answered before giving H1B visas is whether your consulting company’s supervisor is located at the site where you work, whether contact with your supervisor is limited to weekly visits or other arrangements, whether the principal day-to-day management is conducted by the project clients’ supervisor, whether your consulting company provides the tools and equipment including software and operating environments needed for the job, etc. Many individuals believe that a trip to Canada is a good idea since there is automatic revalidation of visa for those who are going there for 30 days or less, enabling them to return to the U. S. without a current valid visa. However, that rule is superseded by a further rule that those who apply for visas at the American consulates in Canada and are refused are barred from returning to the States until they have been properly visaed at another consulate. The Canadian consular posts have a tendency to reject those who have obtained changes of status to H-1B in the States in the belief that their cases are better adjudicated at their home consulates. The current alternative of course is to remain in the in the States without traveling to another country to apply for a visa. Reader Asks General Question of Whether Can Obtain Green Card If in the U. S. IllegallyA reader asks: I am in this country illegally. Can I get my green card? What are the procedures? Dear reader: Illegal immigrants who enter the country legally but overstay are not precluded from adjusting status to permanent residence if they are immediate relatives of U.S. citizens (spouse, parent, or child under the age of 21 and unmarried). If not immediate relatives, most illegal immigrants can also adjust status to permanent residence without leaving the States if they have some other basis to immigrate and are the beneficiaries of section 245(i). That provision allows individuals who had immigrant visa petitions or labor certification applications filed on their behalf by April 30, 2001, to adjust status if there is a basis to do so as long as they were physically present in the U.S. on December 21, 2000, and pay a $1000 fine. An earlier version of section 245(i) which is still effective does away with the physical presence requirement if the immigrant visa petition or labor certification application was filed by January 14, 1998.
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Copyright © 2003-2013 Alan Lee,
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