Legal Status & FAQ

1. Business, Working

Q: We are 19 years old and we both live in the UK.

A: We want to work in Colorado for the ski season (6 months). We have jobs waiting for us. They are cleaning jobs which will pay for our rooms/food/spending money. We have funds for the return flight.

Q: The employer wants us to have work visas. How do we do this?

A: It is difficult to get a work visa in the U.S. unless you can prove there are no U.S. workers available to do the job. With the situation you describe, you will not be able to get working visas. If the consul believes a person is coming to work, no visitor visa will be issued. Being from the UK, if you can save enough so that you do not have to work, then you can come here with a visa waiver and stay for 90 days.

Q: Are summer jobs available in the U.S. for students?

A: Some jobs are available for camp counselors, restaurant waiters, summer resort workers, and others. Contact the Council on International Educational Exchange (CIEE) http://www.ngws.org/service/ or the United States Information Agency (U.S.IA).

Q: If someone came to the U.S. with a visa waiver, can he change to another kind of visa while here or extend his 90 day visit?

A: A person cannot change in the U.S. to another visa if they entered with a visa waiver (Exception: If the person married a U.S. citizen, then they could apply for a green card here even with a visa waiver). If someone had the required university degree and a firm job offer from a U.S. company while here, they could arrange for an H1 work visa, then go back to the home country to apply for the H1 visa from the U.S. consul. If the person had entered with a B2 tourist visa, they could apply to change to another visa while still in the U.S..

Q: I have a Bachelor’s degree in business administration. Now I am working at a car rental company as an operations manager. I would like to apply for an H1-B visa. Am I qualified?

A: If the employer can show that in the car rental industry an operations manager usually requires at least a bachelor’s degree to qualify for the job, then you can qualify for an H-1B visa. If you are in legal status and if the H-1 is approved, you can change to H1 status here. If not in legal status, then you have to pick up the visa outside the U.S.. Here is a word of caution: A person who has been in the U.S. and has been out of legal status for more than 6 months can be barred from re-entry to the U.S. for several years.

Q: In regard to getting an H-1 visa that is needed to return to the U.S., is it possible to get this visa while in the U.S.? If not, is it possible to get it from the U.S. consulate in the Bahamas?

A: The visa must be applied for outside the U.S.. The U.S. consul in the Bahamas does not accept applications unless the person resides in the Bahamas.

Q: I have an H-1B and want to work for a different employer. Can I change jobs then submit the new H-1B papers for the new employer?

A: All H-1B papers are submitted by the employer. The new employer must prepare and submit the papers for the transfer BEFORE you change jobs.

Q: I was born in Spain and can buy a Children’s Day Care business for $80,000. We would like to buy it and work in it. Is there a way to do this?

A: There are two visas that allow working in the U.S. by investing. One requires an investment of at least $500,000. The other can be a smaller investment. This is a Treaty Investor visa (E-2). The U.S. and Spain have a treaty that allows a Spanish investor to buy a U.S. business and then come to the U.S. to manage that business. The E-2 visa is for an indefinite time. As long as the investment exists, the visa can be extended. About 100 countries have treaties with the U.S. that allow their citizens to apply for E-2 investor visas.

There is no minimum amount for an E-2 investment, but it must be satisfactory to the consul. A very small investment is not likely to be approved for a visa. The required amount is mostly determined by two questions: Is the investment amount large enough to more than support the investor and family? And, is the investment significant to the business? An investment of $75,000 in a small motel with a total value of $150,000 may be satisfactory while the same $75,000 may be not enough if invested in a business worth $500,000.

Financial data about the investment, the source of the funds, about the business, about the expected earnings, etc., must be submitted. If approved, E-2 visas are issued to the investor and family.

Q: I’m in the process of changing my visa from F-1 (student) to H-1B (professional work visa) but it is taking too long, and my permit to work expires in a month. My boss told me that if I don’t get my H-1B by the date, I’ll be off the payroll. Is there a way I can file for a work extension or do something before I lose my job?

A: If your practical training ends before the H1 is approved, you will not be authorized to work. Practical training cannot be extended past the one-year limit. In some years when H-1B visas have been used up, an extension of student status was allowed until visas again become available.

2. Family, Personal

Q: I’m a permanent resident and would like to know if I can file a petition for my parents. Do I have to wait until I become a U.S. citizen before I can apply for them?

A: You must be a citizen to sponsor a parent.

Q: I have a 12 year old U.S. Citizen child. Can she sponsor me for a green card?

A: A child (or anyone) must be at least 21 years old to file a sponsor petition except that there is no minimum age to file a petition for a spouse.

Q: My friend’s visitor visa expired a few months ago. She wants to extend her stay in the U.S.. She is pregnant and has a green card sponsor who wants to marry her. Can she claim medical condition and extend her stay, and eventually convert her status to permanent residence?

A: If her stay has expired (she is past the date on her Form I-94), then she cannot extend her stay even for medical reasons. But if she enters into a genuine marriage to a U.S. citizen, then she can apply for the green card here even if she has stayed past her I-94 date.

Q: I have J-1 exchange program status, and I want to marry a U.S. citizen. Can I stay and apply for a green card?

A: You can apply unless your J-1 is subject to Section 212e of the immigration law. This section requires some J-1 visa holders to reside outside the U.S. for 2 years before they can change to any other visa status. This requirement is noted on the visa in the passport and also on the pink Form IAP 66 where it says “is” “is not” subject to Section 212e. The U.S. Department of State and the United States Citizenship and Immigration Services can grant a waiver of this requirement, but a waiver may be difficult to get.

Q: My girlfriend is a citizen of Canada, and she would like to move to the U.S. She wants to work here. She has some college experience, but no degree. What does she need to move here and get a job? We don’t plan to be married now, so a spouse or fiancé(e) visa is no good. Are there any special rules for Canadian citizens?

A: As a Canadian citizen, she can enter the U.S. at any time for a visit without a visa. She cannot be coming to work or to definitely be married…only to visit. She will not be able to get work permission unless she marries a U.S. citizen.

Q: What happens when people from a certain country use up all the immigrant visas for that country for the year?

A: When a country reaches its annual limit, then a queue or waiting list is started. The date of the cases eligible to apply for a visa appears in the Visa Bulletin. The Visa Bulletin has separate columns for countries that reach their limit in some categories.

An immigrant visa can be issued only when the applicant’s priority date is earlier than the date shown in the current Visa Bulletin. It is the country of birth (not citizenship) that is used for quotas. Exception: In a petition case with derivative benefits, a husband and wife can use each other’s country quota (and a child can use the quota of a parent’s country) when they travel to enter the U.S. together. If a husband is India born and the wife is UK born, when they accompany each other to enter the U.S. as immigrants, they can use the quota for India or UK, whichever is better. This is called “cross-chargeability.”

Q: I need some information regarding a fiancé visa. What preference category does this fall into? What are the cutoff dates, etc.? Are there quantity limitations per year in this visa as well? I filed a fiancé visa petition for my fiancé in India about a week ago. What kind of waiting, hassles or procedures do I go through before the visa is issued?

A: A fiancé visa (K) is a nonimmigrant visa. It is not a green card visa. A nonimmigrant visa does not have a preference category or a cut-off date since there is no limit to the number of K visas that can be issued. The petitioner may be interviewed by the BCIS in the U.S., then the K visa beneficiary is interviewed by the consul to see if he/she intends to marry the petitioner. The beneficiary also has to take the immigrant medical exam since they are expected to marry within 90 days of entry and then apply for a green card. It typically takes six to eight months for a K visa to be issued.

A K3 visa allows the spouse of a U.S. citizen to come to the U.S. to wait for the processing to be completed.

Q: I am Italian citizen living in Brazil. I would like to know if it is difficult for an Italian to get a green card.

A: The U.S. immigration laws are supposed to be neutral with regard to particular countries unless specifically provided in the law. The annual quota is the same for all countries. Some special rules apply to Canada and Mexico because of their location. If a person qualifies, it should make no difference what country he/she is from. Actually, some countries have high fraud rates (false cases) or have a poor record of obeying U.S. immigration rules. The consuls in these countries may ask more questions and may refuse a higher percentage of visitor and other visas. Italy is not considered a high fraud rate country.

Q: My fiancé was coming to the U.S. to visit me. At the border (Juarez), her visa was canceled. Is there a way to get her visa back? She was born in Mexico, and the border inspector believed she was coming to marry me. Can the consul expedite a K-1 (fiancé) visa for her? If we get married in Mexico, will it be easier to bring her back with me? Do we really have to send all those forms to the BCIS?

If she comes with me without proper papers, can we get in trouble and possibly have her deported?

A: If the border agent believes a person is intending to stay here, they will not let them in until they have a green card. If a border or airport inspector believes that a marriage is planned, the person can be sent back immediately and barred from re-entry for 5 years.

A fiancé visa takes about 6 months to get approved. If she marries you in Mexico, she must stay in Mexico until her green card visa is ready, about 4 to 6 months. Illegal entry can lead to deportation. If a U.S. citizen helps a person enter illegally, the citizen can be charged with criminal violations. Consuls rarely expedite anything.

Q: I met someone from England. He is coming to the U.S. next month, and we plan to marry in a few months. Can he come to the U.S. as a visitor then stay and get a fiancé visa here?

A: A fiancé “K” visa can be issued only when the fiancé is outside the U.S..

Q: I am trying to find a lost friend in Taiwan. He is a U.S. citizen by naturalization. Three years ago, he went to Taiwan. Can I get a copy of his immigration record so I can find his address or phone numbers?

A: BCIS records are not public. You can try any of several telephone white pages or phone directories on the internet.

3. Diversity Lottery, DV

Q: Do you have information about when the people who applied for a diversity visa will be notified?

A: Usually by five or six months after the DV application period ends, all notices will have been sent. If a person has not received a notice by that time, they were not selected.

Q: When can I apply for the diversity visa lottery?

A: The DV lottery registration information is released in August. The registration period is usually in October.

Q: Do you think there will be a DV (diversity) lottery next year?

A: The diversity program is permanent. There will be lottery each year until changed or eliminated by Congress.