Q My visa status has changed from F1 to H- 1B. My parents have green cards and had filed an I-130 petition for me. If I go outside the U.S. and try to get my passport stamped with an H-1B visa, can my visa be denied on the basis of filing for an immigrant status?

A The H-1B visa is a “dual intent” visa. In other words, if you are on an H-1B non-immigrant visa, you are allowed to file for an immigrant status at the same time. Your H-1B visa should not be denied solely based on the facts that you have described.

Q
My mother has had a green card for many years. Part of the year she lives here in the U.S. and part of it abroad. This time she stayed abroad for more than six months and when she came to the U.S., the INS officer stamped on her passport “absent more than 6 months.” What implication does such a notation have?

A The notation made by the INS officer acts as a “red flag” for the INS officers who will inspect your mother’s passport at the U.S. ports of entry in the future.

Any time a green card holder stays outside the U.S. for more then six months at a time, there is a presumption that he needs to overcome the obstacle of “abandoning their U.S. permanent residency.” If such extended trips are necessary, then I would recommend filing for a re-entry permit.

Q I am planning to apply for my parents’ green cards when they arrive to the U.S. In the mean time, if their B status expires will they still be legal in the country or do they have to return to India and come back?

A You will not be able to protect your parents’ legal status by merely filing the immediate family immigrant petitions on their behalf. Your parents will need to either return home or find a way to remain here in lawful non-immigrant status.

Q My husband’s H-1B visa expires in March 2003. We wish to seek an extension of three months to enable our son to complete his school year here. Is there a provision for such extension, and if so, what is the procedure?

A Your family members do not need to renew their visas if all the members of your family have H-1B/H-4 status lasting beyond March 2003. A new visa is only necessary if you plan on traveling outside of the U.S. while you are on a non-immigrant U.S. status.

On the other hand, your husband can petition for the extension of his H-1B status for any duration of time up to three years, and generally for a maximum of six years. Vacation time and personal time of can be recouped even beyond three years.

Send your questions for our panel of law experts toaskalawyer@indiacurrents.com. Advice given is of a general nature, and is not intended as a substitute for a personal consultation. We cannot respond individually to each letter received.

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