Published on Lawyers.com and the Epoch Times on June 10, 2016

Q & A 1. 2. 3. 4.

Q&A 1.

H-1B Sponsors I-94 Validity Dependency on B-2 Visitor Visa for Parents

My I-94 is expiring in September 2016 but my I 797 is valid till October 2017. I have applied for B2 visa for my parents and their interview is scheduled in mid July 2016. What are chances of visa getting rejected due to my I94 expiring in September. They will be will travelling in August. My employer has started the process to extend the I94 but it will take some time(probably 2-3 months). Should I postpone the parents’ interview till I get the new dates? What other options do I have?

Mr. Lee answers:

If you have a valid H-1B visa until October 2017, you can exit and return to the U. S. As long as you have a passport which is valid 6 months after October 2017, you would be given an I-94 entry to that date. If Customs and Border Protection (CBP) made a mistake with your entry, you can return to CBP at any port of entry and ask to have the mistake corrected. Otherwise you could wait until your employer’s process is finished. If such is the case, you may wish to postpone your parents’ interview.

Q&A 2.

I Want to Change My Nonimmigrant Status J-1 to F-1 Without a Waiver. USCIS Instruction Seems to Say No, But That's Not Supported by INA 212(e)

A J-1 high school exchange student subject to the 2-year home country residency requirement, which is attached to many J-1 visas, wants to change status to F-1 student. According to INA 212(e), J-1 visitors subject to the 2-year residency requirement are barred from changing to (H) and (L) nonimmigrant categories without first obtaining a waiver. However, the statute doesn't say anything about bars to changing to other non immigrant categories, like F-1. It only specifically mentions H and L. My problem is, the I-539 instructions say that J-1 visitors subject to the 2-year rule CANNOT change to any status except for nonimmigrant A,G,T or U visa. I can't understand why that's the case. Even the state department's website only mentions bars to the H and L categories.

Mr. Lee answers:

I note your reading of the law and can only tell you that in our experience, U.S.C.I.S. may allow a change of status where an individual is not subject to the two-year foreign residence requirement, but will not allow such change of status where the applicant is subject.

Q&A 3.

Do I Need to Go Back to Poland to Get My Green Card?

I overstayed my tourist visa 10 years ago. I’m being sponsored by my father. He is a citizen of USA. Born in Poland and currently living in Poland. He got his citizenship because his parent (my grandparent) was born in USA and was citizen of USA. My question is: do I have to go back to Poland to get my green card? I've heard that if I'm single I don't have to. What about if I'm married?  I’m currently engaged and my partner is illegally in USA. He came on tourist visa about 10 years ago to USA. 

Mr. Lee answers:

If you are under 21 and unmarried, your U. S. citizen father may be able to sponsor you for permanent residence and you may be able to adjust your status to permanent residence in the U. S. If you are over the age of 21, you would not be allowed to adjust status here and would have to go back to Poland to get your green card. Marriage to an undocumented immigrant would not give you the right to adjust status and your father would then have to petition for you under the F-3 category for married sons and daughters of U. S. citizens which has a backlog of approximately 11 years.

Q&A 4.

Does the U.S. Government Care?

If someone is a national of a country that is one of US adversaries & that person despite his nationality has American values and therefore has faked a medical condition in order to avoid serving in that country's military (because the US considers parts of that military a terrorist organization); does the US government care if this person wants to immigrate to the US with completely legal and valid documentation and is completely healthy? (Again, this person has never been convicted of anything and has completely legal and valid documentation & is completely healthy)

Mr. Lee answers:

Misrepresentation under U. S. immigration law only applies where one is making such to a U. S. official. Your misrepresentation to the officials of your country to avoid serving in its military will have no effect upon your U. S. immigration application.

Copyright © 2003-2017 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.