Q I have been a permanent resident since Dec. 20, 2004. I got married on Dec. 29, 2008 and have not applied for I-130 for my spouse. I live in the United States and my wife is based outside the country. Can she apply for F1 visa especially as the I-130 is not filed yet? Or is there any other way she can join me?
A To obtain the F-1, your spouse must show that she:
• Has a residence abroad;
• Has no immediate intention of abandoning that residence and;
• Intends to depart from the United States upon completion of her course of study.
She would need to show strong ties to overcome the immigrant intent issue. Because she has a green card husband, this may be difficult for her to do. It would be even more difficult if you filed an I-130 for her.
Is H-1B an option? Does she already have a degree? Any job offer(s) in the U.S.?
Q My dad filed my I-130 application on March 2003 as an unmarried child 21 or older of permanent resident (F2B category). At that time his status was permanent resident. On June 2005, I got a notice that my I-130 has been approved. However, no visa numbers are available.
My dad has become a citizen in 2008. Can my I-130 be changed from 2B to 1st preference category? Also, I got married in 2007. Will it impact my petition case? What do you suggest for my case?
A The I-130 preference can generally be changed, but the Family Based 2B category is for unmarried children of permanent residents. If you had remained unmarried, you would have been able to upgrade the petition when your father naturalized. However, because you got married before your father naturalized, you became ineligible.
Your father will need to file a new I-130 for you as a married son of a U.S. citizen. Unfortunately, you will not be able to retain the priority date of the original petition.
Q I have an Optional Practical Training(OPT) pursuant to my F-1, but I have not been able to find a job in my field of study. Can I volunteer?
A During post-completion OPT, F-1 status is dependent upon employment. Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT. Students granted a 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total OPT period. In March 2009, Immigration and Customs Enforcement(ICE) came out with a checklist suggesting that volunteering in an area directly related to the student’s field of study will count toward meeting the requirement that the student is considered “employed.” However, although volunteering might not be a violation of immigration law, volunteering while on OPT is usually an employer violation of the Fair Labor Standards Act. See http://www.dol.gov/elaws/esa/flsa/docs/volunteers.asp.
Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.