Q: I have heard that now there is retrogression of visas for nurses from India. My wife is a nurse and her hospital filed an I-140 for her on July 20, 2006. How long is this process likely to take?

A: According to the January 2007 Department of State Visa Bulletin immigrant visas for nurses are available for applications (I-140) filed on or before June 15, 2004.

Q: I am currently on an F-1 student visa and will graduate with a bachelor of science in nursing (RN) in May 2007. In order to obtain the H-1B working visa, I hear that I have to get a job that requires at least a BSN degree. Is this true? After graduation how do I proceed so that I can remain in the United States legally while applying for a green card?

A: Yes, you will need to find a job that requires at least a B.S. degree or its equivalent in order to qualify for H-1B. Most nursing jobs do not have this requirement.
If you intend to remain in the United States while applying for a green card you will likely need to either extend or change your non-immigrant status to something other than H-1B.

Q: I came to the United States on a three-year J-1 visa in August 2004 and my status expires in July 2007. My J-1 is subject to a two-year home residency requirement. Kindly clarify if I can apply for a J-1 waiver in the United States or do I have to leave the United States before applying for this waiver?

A: You have the right to apply for the J-1 waiver while you are residing in the United States in valid J-1 status.

Q: I am eligible for an EB2 category (masters in engineering from a U.S. university), and have been on H-1B since June 2003. I am currently working for the same company and on my second H-1B valid till June 2009. What is the latest that my employer can apply for my green card so that I can continue to stay in the United States and work for this employer? In the event they do not apply, can I apply on my own? Hire my own lawyer, do the paper work? What are the current processing times for India-born applicants? Can I switch jobs while the green card processing is under way?

A: If your Labor Certification is filed prior to the expiration of your fifth year on the H-1B status your employer can keep extending your stay beyond the H-1B six-year limit. You cannot apply for a green card on your own, unless you are a person with extraordinary abilities or conducting work in the national interest of the United States. According to the March 2007 DOS Visa Bulletin the EB2 priority date for India is Jan. 8, 2003. You have the right to change employers while your are in the middle of your green card processing so long as your green card sponsoring employer agrees to continue sponsoring you.

Q: My wife is a doctor in New Jersey. She has a 38-year-old sister in India who is also a doctor. If my wife sends the necessary documents and invites her to come here on a visitor visa for a month or so, will she get the visa?

A: Tourist visas are discretionary and often depend on the applicant’s ability to demonstrate their intent to return to their home country.

James E. Root, Esq., manages an exclusive immigration law practice with two offices in L.A. and Orange counties. (888) ROOT-LAW. www.RootLaw.com

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