Published on Lawyers.com and the Epoch Times on November 28, 2014
Q & A 1. 2. 3. 4.
Q&A 1.
OPT and Working Visa
I'm a Spanish student with F-1 visa that expired last December. I applied for a 4 months extension (October, 2 months before expire) and just last week I received an email telling me it had been rejected (waiting for the mail answer with the reason why). I have a company that wants to hire me, but we have been always talking about an OPT. I'm still eligible for an OPT? Or is an option I've lost? Which other options do I have? Which would be the best one? If I enroll to another school, will I be able to apply for an OPT? (on the same speciality than the company, audio).
Mr. Lee answers:
The problem that I see in your case is that you do not appear to be in legal status at this time. OPT is attached to maintaining a legal student status. If you enroll to another school, you would not be considered legal just by the enrollment. The school would have to check with DHS and you would likely have to go through the reinstatement process to go back to legal status. If you manage to do that, you might then request the school to issue you OPT during the time that you are studying.
Q&A 2.
What is the Process for Green Card Through Marriage for DACA Beneficiary?
I got married to my wife who is a US citizen and she is looking to apply for my residency through marriage. I am a DACA beneficiary and we wanted to know how the process would be and if I would have to go back to my country of origin to apply? and would I be put on the 3 to 10 year re entry bar for entering illegally back in 1998?
Mr. Lee answers:
A person who entered the country without inspection is not allowed to adjust status unless he or she has the benefit of §245 (i), under which the individual has a labor certification application or immigrant visa petition filed by April 30, 2001 and has been physically present in the country on December 21, 2000. Lacking that, you could attempt to obtain an advance parole with your DACA status to make another entry which will hopefully allow U.S.C.I.S. to consider you as no longer an illegal entrant. Such advance parole can be approved for schooling or business related reasons or emergent circumstances. Another option could possibly be your wife applying for you under the I-601A program under which you would interview overseas, but could file a waiver of the 10 year bar for being in the country illegally for over one year and have an adjudication of such made while you are still here. The waiver would be based upon establishing extreme hardship to your wife if you cannot obtain residence status.
Q&A 3.
Do I Have to Apply for OPT(F1 status) Even I File for I-765 Through My Husband who is a Citizen?
We got married in Dec. 2013 and submitted document for I765 and other for green card in March. However, I graduated in May and my F1 status ends there, however to maintain the status they said I have to apply for OPT as soon as possible. Since OPT and I765 both are work permit, do I have to file both? I call USCIS and the lady said I don’t have to file I765, but my International advisor from my college says I have to. I am confused. what should I do? I don’t want to have any trouble later.
Mr. Lee answers:
It is up to you as to whether you wish to maintain F-1 status or just go through your husband's petition with the attendant I-765 employment authorization. The favorable factor of keeping F-1 status is that you may be able to use it as a backup in the event that anything goes wrong with your marriage case. Without it, you would be wholly dependent on your adjustment of status application to keep you legally in the country.
Q&A 4.
J1 to F2 to H1B
I came to USA on J1 visa, after that I changed my status to F2 (my wife is F1), currently I found and employer who is willing to offer me a work visa, his attorney said that I should enroll in a college here and just after this they will be able to process my status change. How true is this information? To mention is, that in my country I finished University and Technical School, which I this will be enough to bachelor evaluation here in USA.
Mr. Lee answers:
The truthfulness of the information depends upon what type of visa status the employer is planning to have you work with. The usual specialized occupation visa, H-1B, has been used up in numbers for this year except for those cases in which the sponsoring organization is an institute of higher education, nonprofit organization associated with an institute of higher education, government research organization, or nonprofit research organization. Other types of possible visa statuses could be another J-1, H-3 trainee, H-2B temporary worker, etc. Another possibility is that the employer may be thinking of you assuming F1 status and eventually becoming eligible for optional or curricular practical training.
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