In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
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QUESTION: I have been in the US on a J-1 through the Teacher Exchange Program for almost three years, and my J-1 will be expiring on in June. I applied for an extension of my J-1 but my request for extension was denied. My employer applied for me for the H-1B cap quota and I was chosen in the H-1B lottery, and am waiting for approval of my H1B. With my J1 visa expiring this June, can I legally stay in the US while waiting for my H1-B approval and start working in October?
ANSWER: Your situation is a common one. At the end of your J-1 program, you will have a 30-day grace period, but that is not enough to cover the period until October 1st, the start date for your H-1B. So, if you do nothing, you will have a gap in your nonimmigrant status between the end of the grace period and the start of the H-1B.
You should verify whether your petitioning employer filed the H-1B petition requesting that USCIS notify the US consular post abroad so that you can apply for a visa, or whether your petitioning employer filed the H-1B petition requesting a change in status to H-1B. Which box they checked on the petition forms will matter. If they did not request a change of status to H-1B, and they instead applied for you to apply for the visa at consular post, then you will need to leave the US and apply for the visa to be able to return to the US in September (or later) to begin employment in the H-1B. This would be true whether you end up having a gap in your status or not.
If the petition requests a change of status to H-1B, then whether you are able to be granted a change in status to H-1B, without having to leave the US, would depend on whether or not you continue to maintain valid nonimmigrant status. If, as is your situation, your grace period ends before October 1st and you are not able to get an extension of your status or a change of status to cover you during this gap period, then USCIS would approve the H-1B petition (assuming you are otherwise eligible), but they would deny your request for a change of status to H-1B. So you would have to leave the US and use the H-1B petition approval to apply for an H-1B visa through the US consular post in your home country and then return in September in H-1B status.
Alternatively, before your grace period ends, you could apply for a change of status from J-1 to B-2 (visitor) nonimmigrant status to allow you to remain in the US in valid nonimmigrant status until October 1st, when your change of status would become effective. However, if you file this application, it is important that you are clear in the application that your reason for filing the change of status to B-2 is to allow you to remain in the US while awaiting the start of your H-1B employment. If you are not up-front about your reason for filing the change of status to B-2, it is possible that USCIS could decide that you are misrepresenting your intent, which would create a bar of inadmissibility that would make you ineligible for most future immigration benefits. There is no guarantee that USCIS will approve the change of status to B-2. You must still meet all requirements for the B-2. When USCIS is ready to adjudicate your H-1B petition, they will first adjudicate the application for change of status to B-2. If they deny the application for change of status to B-2 then you are back in the situation where you have a gap in your valid nonimmigrant status and they will deny the change of status to H-1B and approve the H-1B petition for consular processing. If they approve the change of status to H-1B, then they will then be able to approve the change of status to H-1B (assuming your petitioning employer requested the change of status.)
All of this, of course, is assuming that you are not subject to the requirement for certain J-1 nonimmigrants to return to their home country and reside there for two years, under INA Section 212(e). If you are, then you would need a waiver of that requirement before you could apply to change to another status or obtain a visa in another category.
Please note that for those foreign nationals in valid F-1 (student) status who have H-1B petitions chosen in the H-1B lottery, you may be eligible for an H-1B cap-gap. In that case, you would have an automatic extension of you F-1 status that would cover the gap between the end of your F-1, or F-1 grace period, or OPT, and October 1st. But that will have to be the subject of a different blog post.
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QUESTION: I have a US citizen daughter and she will be 21 years old soon. We know that when she is 21 she will be able to sponsor me and my wife, but we have another child who will be 10 years old by that time. Will we be able to apply for us and our youngest child through one application, or are we going to have to make separated applications?
ANSWER: You are correct that US citizens can apply to sponsor their foreign national parents for US Permanent Residence (green card) once the US citizen son or daughter is 21 years old or older. Parents of US citizens who are sponsored by their US citizen sons or daughters fall within a category called Immediate Relatives. Other individuals that fall within the Immediate Relative category are spouses of US citizens and unmarried children of US citizens where the child is under the age of 21.
The benefit of being an Immediate Relative is that there is currently no limit on the number of visas that can be issued to those who are being sponsored by their US citizen relative in the Immediate Relative category. This means that Immediate Relatives do not have the wait that is required, for a visa to become available, that most other visa preference categories have. You can see my other posts about visa wait times and the DOS Visa Bulletin.
But the one downside of the Immediate Relative category is that Immediate Relatives are not allowed to have derivative beneficiaries, meaning that spouses and minor children of Immediate Relatives are not eligible to obtain Permanent Residence through Adjustment of Status (I-485) or an Immigrant Visa along with their US citizen spouse or parent.
So a US citizen can file an Immediate Relative petition for her parents. A separate petition would be required for each parent. But where the parents have another child, that child is not able to benefit from the petition filed for the parents and cannot come to the US as a permanent resident with his/her parents.
A US Citizen can file a petition for their sibling, under the Family Fourth (F-4) preference category. But the wait time for a visa to become available for the petition (currently more than a decade) makes it so that this is not a viable solution to this problem.
However, once the parent comes to the US as a Permanent Resident, they can file an immigrant petition for their unmarried child who is under 21, under the Family Based Second Preference (F2A). It takes some time, currently a couple years, for a visa to become available under the F2A preference category, so some families will leave the younger child with a family member while both parents go to the US as Permanent Residents and file a petition(s) for the younger child, and some families will have one parent go to the US and file a petition for both their spouse and the younger sibling. You should be warned that one is required to maintain the US as their permanent residence in order to maintain the legal immigration status of US permanent residence. So those parents who come to the US to obtain US Permanent Residence and then move back to their home country, so that they are primarily living in their home country, to await a visa for their child or spouse risk the possibility that the US government could determine that they have failed to maintain the US as their permanent residence, and therefore have abandoned their US Permanent Residence.
In a similar situation, in order for a US citizen to be able to petition for a step-parent, the marriage between the parent and step-parent must have taken place before the US citizen’s 18th birthday. So where the parent has remarried and has a spouse that is the US citizen’s step-parent, but where the marriage took place after the US citizen’s 18th birthday, in that situation the US citizen can petition for their biological parent, but they cannot petition for their step-parent, and the step-parent cannot come to the US as a permanent resident with his/her spouse.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.