Nonimmigrant Visas and Why Maintaining Status in the U.S. Is Important

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people ask us what is a Nonimmigrant Visa? Isn’t everybody an immigrant to the United States? Well, no. Even though the media and everyday language tend to refer to everyone who comes to the U.S. as an “immigrant,” commonsense would dictate that that is not always the case. There are people who simply want to come here to visit for a while, or for another purpose such as going to school or work for a company for a period of time. For those people, the only way they can come to the U.S. legally is to be approved for a nonimmigrant visa at the U.S. consulate in their homeland.

These types of visas are always issued so that the person is allowed to stay for only a limited length of time in the U.S., never permanently. The period could be as short as a few months to as long as a few years, depending upon the purpose the person has in coming to the U.S. The problem is when people treat their nonimmigrant visa as a permanent visa. They begin to feel they can just stay here indefinitely. We actually get this quite often with clients who consult with us. Most of them of course know ahead of time they’re allowed to stay here for a limited length of time, yet many call us after their stay has expired because they assumed that an immigration lawyer would make everything alright. Well, usually we can help, but sometimes we cannot. After a person has overstayed, it is usually difficult to fix the problem or would be very costly to the client to fix, short of the client going back to their country.

Consequences of Overstaying Visa

What are the consequences of overstaying one’s nonimmigrant visa? First of all, you will not be allowed to extend status (get more time on your stay here), but must leave the U.S. and reapply for a new entry. Secondly, you’re not allowed to change status while in the U.S. to another nonimmigrant visa. Say you came here with a tourist visa to visit friends at an American college, but then decided you like the school so much you want to go there, too. You can apply to change status to a student visa if you do so before the end of your tourist stay (which on a tourist visa is usually 6 months). However, if you wait until after your stay has expired, you won’t be allowed to change status but must go back to your country and apply for a new student visa.

Or, say you’re here on a student visa pursuing a bachelor’s degree at an American university. Now, you’re graduating and have received a job offer at a U.S. high-tech company. You would need to obtain an H-1B visa in order to be allowed to work at your job. You can apply for change of status to H-1B if you do it prior to the end of the time allowed you as a student (usually 60 days after graduation or end of optional-practical-training work permit), but not after.

Another consequence of overstaying a nonimmigrant visa, which is very undesirable and can be disastrous, is the inability to adjust your status to permanent residence (not to be confused with “change of status” discussed above), as described below.

The worst consequence of overstaying is that an overstayer is subjected to removal (deportation) at any time. Whether they will actually be served papers to go to court for removal proceedings is another story (due to lack of resources on the part of Immigration & Customs Enforcement). But understand if a person is out-of-status, this could happen any time. Jan. 19, 2010 update: For example, see the comment of another reader whose brother overstayed a tourist visa for two years and thought he could continue to stay here, until one day the police or immigration agents came to his house to put him into deportation.

Extension & Change of Status

Extension of status or change of status (to another nonimmigrant visa type) while still in the U.S., when allowed, is obviously highly desirable since the person does not have to leave and reapply for a new entry or apply for the new type of visa at the U.S. consulate in that person’s country. He or she would apply with U.S. Citizenship & Immigration Services (USCIS) here and await a decision while remaining in the U.S. This obviously saves time, money, and hassle.

Sometimes a person overstayed their nonimmigrant visa through no fault of their own. In those unusual situations, the immigration law does have a provision to excuse the overstay and the person can still apply for change of status. However, it is not always easy to prove that it was no fault of one’s own. The assistance of an experienced immigration lawyer is usually necessary in those cases.

Of course, a person who overstayed their visa can leave the U.S. and reapply for the new visa at the U.S. consulate in their country. However, at the visa interview, their overstay will be discovered and the visa probably denied. Or, if they try to come back to the U.S. on the original visa, usually the overstay will be discovered by the immigration officer at the airport, and that visa will be canceled and the person denied entry. Ouch!

By the way, the length of validity, or when the nonimmigrant visa expires, as printed on the visa itself, has nothing to do with the actual length of stay permitted by the immigration officer when a person arrives in the U.S. For example, many B-1/B-2 tourist visas have a 10-year expiration printed on them. That is simply the length of time the same visa can be used to apply for entry at the airport. The tourist will not be allowed, as some people mistakenly believe, to visit and stay in the U.S. for ten years! The immigration officer will give him or her 6 months in most cases because that’s the maximum length of initial stay on a tourist visa (it can be extended by another 6 months maximum while still in the U.S.). The officer will give the tourist a little slip called the I-94 with the red-ink expiration date that’s stapled to a page inside the passport and stamped with the final day of stay. Some nonimmigrant visas, such as the F-1 student visa, will receive the I-94 with the “D/S” notation, meaning that they are allowed to stay for the “duration of status,” or until the end of their educational program or other activities.

A nonimmigrant visa is like a contract or agreement. If you break the promise of complying with the terms of the agreement (by overstaying), you are penalized under the agreement. Instead of contractual damages, however, you are penalized by not being allowed to extend or change status or to return quickly to the U.S.

Serious Consequence of Overstaying: No Adjustment of Status to Green Card

Many nonimmigrant visa holders eventually are petitioned for a green card by a close family member who is a U.S. citizen or legal permanent resident (LPR), or petitioned by a U.S. company for a green card while they’re in the U.S. The problem: unless they are being petitioned for as an immediate relative, overstaying by even one day will result in not being able to adjust to green-card status in the U.S., and they must go back to their own country for U.S. consulate processing. Most people, when they have a choice, would rather go through adjustment of status here rather than do consulate processing as it is obviously less costly and less time-consuming.

However, there is quite a large population of nonimmigrant visa holders who have overstayed by more than 180 days in the U.S. The problem is, even if they have an approved I-130 family petition and not classified as an immediate relative, as soon as they set foot outside the U.S. to go back to their homeland to apply (if they want a green card – there is no other way), the 3- or 10-year bar will kick in. As a result, they will not be approved by the consulate for the final visa to return to the U.S. for 3 or 10 years, unless they qualify for the extreme hardship waiver, which is not easy to get. This is a very risky situation. Only those non-immediate relatives who have I-130 petitions with priority dates (filed dates) on or before April 30, 2001 will be spared this return journey to their country and can adjust their status here.

Good News for Overstayers

The good news is that, as we described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, by marrying a U.S. citizen in a bona fide marriage, even an overstayer can remain here and adjust their status to green card. Indeed, being a spouse of a U.S. citizen is one type of immediate relatives mentioned above. Perhaps because that option is so readily available, many people don’t take being out-of-status on their nonimmigrant visas too seriously since they know in the back of their minds they could always marry a citizen in the future.

Of course, a true and bona fide boyfriend or girlfriend may not be available at a given time because one is not in love! If that’s the case, such a person may continue to live in the U.S. out-of-status, which is not easy at all since he or she won’t be able to obtain a work permit or social security number legally. A person here on an expired work visa, such as an H-1B, might have had a social security number issued previously when he or she was working in legal status, but once they become out-of-status, although the SSN might still exist the person cannot legally obtain work authorization. Thus, people who have been out-of-status for a long time eventually get tired of living “underground” like this and call us for help on a marriage case. At that time, we are of course happy to help and explain the options available, especially the potential risk of having a marriage that does not appear real. But for the most part, people are sincere and have a genuine citizen spouse willing to help them and the process to get the green card is smooth.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please go to our website guruimmigration.com and click on “Email/Phone Consult” at the top, or email us: consult@guruimmigration.com.

Note:  Comments or questions related to the blog post you’ve just read are welcome in the “Leave a Reply” box below.  Please keep the comments relevant to the post.  Due to the volume of inquiries and emails received from this blog, we simply cannot respond to detailed and specific questions related to your individual immigration situation or problem.  We can only respond here on the blog to more general questions in a general way.

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43 Responses to “Nonimmigrant Visas and Why Maintaining Status in the U.S. Is Important”

  1. Excellent post. Keep posting such kind of information on your page.

    Im really impressed by your blog.
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    Like

  2. i was here in 2/2008 my i-94 expired on august 2008 on a tourist visa.i won the diversity lottery in 2009 i applied 4 adjustment of status and was denied.staying that i overstayed.can u do anything for me?what can be done.its urgent.because the deadline for the closure of he program is 09/30

    Like

    • Yes, your example painfully verifies the truth of what we warned people about in this article: that they need to maintain status on their nonimmigrant visas, such as a tourist visa, if they have the desire to adjust status to green card later. As the article explained, the only way for you to get your green card is to do the processing at the consulate in your home country but you will have the 10-year bar against you. We CAN represent you on the extreme hardship waiver of the bar IF you have a spouse or parent who’s a US citizen or an LPR. See “OUR INFO & CONTACT” for how to get in touch with us so we can represent you and to learn about our fees for such a case. However, if you have no such relative then you cannot waive the bar and cannot do anything for 10 years.

      Like

  3. paul jones Says:

    Hi,my friends daughter is an LPR in America,she has givern birth to a baby,which is now a us citizen,can she have her babys husband come over on an imediate relative visa,or would he qualify on the family based visa?If so,what forms should she start to file.She cannot work as she has just had the baby,and needs the babys father to live over here for support,assistance and work etc.Is there any hardship visas that might apply to them,many thanks for your reply and also for a very imformative website.

    Like

    • You’ve also asked the question just before this one under the moniker “Rachel D.”, to which John, our assistant, responded to. However, since this is such a commonly-asked question and something the public has a misconception about, we will answer it here since it takes 30 seconds. A citizen child cannot do anything to benefit his or her parent until the child turns 21. That’s why there are 12 to 20 millions of illegals living in the US, many with US citizen children who cannot do anything at this point to become legal, at least not until a child turns 21 (but even then those parents who came illegally will still cannot be helped because of illegal entry.) But the husband here (if he is indeed a husband and not just a boyfriend or fiance) obviously could be petitioned by his wife (if she is indeed the wife) under the F2A category and has to wait the years until a visa number becomes available.

      Like

  4. Rachael D Says:

    Hi,I have a good friend who is married to an American citizen.Her and her two children(18,20 yrs )are in the final stages of immigrating back to the USA.Not a problem here,however,the daughter has a fiance back here in the uk.What forms will he need to fill in to join them?And what catagory would he be?Also,if you dont mind answering another question,could he stay in the USA whilst his forms were sorted?Sorry for all of the questions but its realy confusing her.It was quite straight forward for the family to get in,but surely the daughters fiance would be classed as family.Could the American husband of my friend sponsor him under a work visa,as he will be setting his own business up?Thankyou once again.

    Like

    • also,if you dont mind answering another question,could he stay in the USA whilst his forms were sorted?Sorry for all of the questions but its realy confusing her

      No, we do not answer questions showing you how to do a case — that’s what you’re trying to ask here. We stated very clearly on our homepage and in front of every blog article asking people to ONLY contact us for a paid consultation with our Guru. Of course these points of law are confusing for laypersons, that’s what consultations with attorneys are for. Would you try to do your own case if you were charged with a crime or get into a personal injury situation?

      Please see “OUR INFO & CONTACT.”

      John A., Legal Assistant
      GuruImmigration.com

      Like

  5. Hi,if my friend from the uk comes over on a B2 visa,and has to have a change of status,say he marries an LPR or something like that,is he allowed to work whilst he waits for the change of status on the I-485 form,and does this take a long time to file.Also,would he be able to remain in the USA whilst the change of status was sorted,thanks

    Like

    • The disadvantages of marrying an LPR, not to mention its total slowness in any type of immigration benefits to the alien, were fully discussed by the Guru in the article “Student visa holder married green card holder, what can she do?” Also, filing an I-485 is NOT “change of status,” it’s “adjustment of status.” These terms have specialized legal meanings and using the wrong terms could mean you end up light-years of where you want to be in immigration, and may regret it!

      John A., Legal Assistant
      GuruImmigration.com

      Like

  6. lara says Says:

    hello sir,

    a friend came on f-1 visa fell out of status till last sept 2008 due to finiancial reasons immediately things got back on track she went back to school reapplied and stated taking classes. when she tried to get a new 1-20 she was told she was out of status. in may the school said she would have to leave and come back in. she had been trying to leave but could not because of ethnic cleansing going on in her home town. is there anyway to re apply or reinstate in this case especially when the school thinks she has left. also if she finds some way to leave to another safer country will she be able to re apply there and if she leaves will she still get a ban. thank you

    Like

    • Reinstatement can be attempted but your friend is going to have to hire us to do it for her. We can’t show her how to do it here, and even if we did (which our policy does not allow us to), your friend will not have the expertise to do it properly as a layperson.

      Like

  7. EU-Serbia Says:

    Hi there, I’m here in US with B2 visa and 2 months before expiration date I filled application to change status to R1 visa. Since then 4 months pass and I still have no answer from USCIS (acctualy, my status on their website is “Initial Review”). How long I should wait for their decision? My driver licence is expired 2 months ago and I can’t renew it till I have new status.
    Thank you,
    San Diego,CA

    Like

  8. I am on F-1 Student visa an some of reason rite now I am on reinstatement process. and I just got letter that said because of some documents not submitted on time they denied and said you can reopen file in 33 days. is there any way that I can save my status? I saw some blog that if he or she get married here with US citizen it will help to save status and get green card here. will you please direct me proper way? I really in need for your help.

    Like

  9. jessica Says:

    hello larry
    my father is married to a US citizen but didnt get approved for his green card. my question is can my stepmother (whom i am very close with) apply a form i-130 and a form i-765 (so i can work and drive) for me. they married a long time ago, before i turned 18 and i am 19 now. if she can, how long will the whole process take?

    Like

    • Yes, the Guru should be able to help you but will also depend on whether you entered this country legally or not. And, I’ve got to let you know that the Guru and his team make sure our cases go smoothly and these take 5 to 6 months to finish for something like yours (assuming you came legally). But we have seen too many immigrants who tried to do their own papers and they were unable to respond to complications that arose and so wasted years on their cases.

      Our office phone is 310.289.2155 or email: consult@GuruImmigration.com. Feel free to contact our office for help, especially since it appears that you’re located near us.

      John A., Legal Assistant
      GuruImmigration.com

      Like

  10. Amelia Swanson Says:

    Guru- thanks for your informative website.
    I am confused about someone who has overstayed their visa and has been counseled that if they remain in the US for ten years paying taxes they will then be granted a permanent green card and be eligible to apply for legal residency. I ask because I want to understand if this person has been mislead or misunderstood the 10 year rule of having to wait in your home of origin before reapplying? Could you please explain if there is such an immigration law that would grant and overstayed visa person the legal right to remain in the us if they have been working and filing us taxes, has car insurance but cannot get a driver’s license in the state of CA. I just don’t understand. Your clarification is most greatly appreciated.
    Thank you.

    Like

    • This is a comment dealing with a topic that we have not blogged about yet on here, so it’s interesting for us to answer in some detail. It’s amazing that whoever “counseled” you or your friend did not give all the facts or either don’t practice immigration law full-time or maybe it was a non-lawyer who told you about this. That type of relief is called “cancellation of removal” and is only available as a defense when the person has been placed in removal (deportation) proceedings in Immigration Court by the government. Now, who would willingly agree to be put into removal proceedings so they can get access to this relief? We would submit 99.9% of people living illegally or unlawfully here don’t. And besides, having 10 years of continuous presence in the US is only one requirement (not the 10-year bar, don’t be confused). The vast majority of these cases fail in front of the judge because the alien cannot prove “exceptional and extremely unusual hardship” to their US citizen kids or spouse even if they are removed from the US. It’s an exceptionally high standard to meet.

      This is a situation where the saying “letting sleeping dogs lie” applies: if the government is not putting you into removal proceedings because they don’t know you exist, you wouldn’t want to wake them up and rattle their cage. And this is why there is desire for a new amnesty to legalize millions of people like this who have no relief right now.

      Like

  11. Can a violation of a non-immigrant status F1 visa(I-94 D/S, ) be considered a lawful reason to deny IR-1 visa application ?
    P.S The violation is not determined by the USCUS, resume it would be at the Consular level.
    I will have my Interview for IR-1 visa in two days at the Consular office .

    Like

  12. Hello,
    My boyfriend and I want to get married, he is an Jamaican citizen and I am a US citizen. He was trying to come to the US just to visit, he applied for a tourist B-1 Visa and was denied recently, he feels it was due to his income. He has no criminal record, a steady job, the invitation letter from me (which they never looked at) and they still denied him.
    My question is, if we get married in Jamaica, will he be able to return to the US with me, if not how long is the wait usually.
    I am aware of the Fiancee Visa, which requires me to have seen him in the last yr or so, however it’s been longer since we were together. I feel my only option would be to fly to Jamaica, take pics, and show my ticket to immigration in order to apply for the Visa, and still wait 6 months to a year.
    I guess my question is, is there a quicker way… And how long does he have to wait to apply for a visiting/touist Visa again?

    Like

    • You can marry him in Jamaica but must return home and file the I-130 petition for him and wait at least 5 or 6 months to get it approved here before USCIS will send the file to Kingston for a consulate interview of him for the immigrant visa. There is no quicker way for him to get here. Contrary to what some people erroneously believe, simply having a marriage certificate by itself does not give any right or benefit to a potential immigrant to come to the US. The person must still go through the normal immigration application process.

      That is only a summary of the process. Anything more, we do not answer follow-up questions on here but please only contact our office for a paid consultation by phone or by email. Our contact info is all over this blog.

      Like

  13. Chilly Medicine Says:

    Took me time to read all the comments, but I really enjoyed the article. It proved to be Very helpful to me and I am sure to all the commenters here! It’s always nice when you can not only be informed, but also entertained! I’m sure you had fun writing this article.

    Like

  14. Hi Larry,

    I’m here on a F-1 visa for a master’s but I’m intending to drop out because I found out this program is not the right one for me. However, the process of F-1 cancellation happens too quickly. Is it possible for me to take a few days and go to say, Canada and come back in with a tourist B-1 visa? I’m from a visa waiver country. This will allow me some time to come back and take care of my affairs such as my bank account, rent and other matters as well as give me a chance to tour since I never got the chance to do so while going to classes. I am not intending to stay for too long and I have also booked a flight back to my country already. What documentation or strategies can I employ for this? Thank you so much for your help.

    Like

    • It isn’t clear at all what you meant by “the process of F-1 cancellation happens too quickly.” There are some quirks with being out of status on the F-1 because it is duration of status, so that it may not be that quickly at all. About the only thing that can be said is, if you’re out of status, you can’t go to Canada as a third-country national and expect to get approved to a B-1/B-2. Maybe if you were still in-status on the F-1.

      This is something that requires a consultation. We are not equipped on this blog to tell people how to do things and what forms to file, when, where, and what supporting documents are needed. That’s what the staff at our law firm does for us for clients and they get paid to do it from our legal fees. You can contact us by telephone at 310.289.2155 or email: consult@GuruImmigration.com. Thank you.

      Like

  15. Nisha Soeur Says:

    Hi Larry,
    I came here on F-1 visa. I fell out of status because I did not take 12 units (full-time), I only completed 11.5 units at that time. I then filed I-593 to reinstate my status. However, I got denied because two reasons 1). I filed the application late by 2 days 2). I was working after I fell out of status ( My Student advisor never mentioned that I can’t work). However, now its too late even it was not totally my fault. I have only 1 more year left to get my Bachelor’s Degree. Also, on new year’s eve my bf proposed to me. He is a US citizen. Now my questions are:
    1) If I get married with my BF, will I be able to apply for a green card and stay in the US? Also recently my BF quit his job, will that affect my green card application since the immigration office might look for someone that have a job so he can support me? but he has some money save up in his account. We also have jointed bank accounts, utilities, gas, phone and we are living together.
    2) Will the immigration officer think that I’m getting married because I’m trying to stay in the US since I’m getting married after my reinstatement is denied?
    3) What if the immigration officer doesn’t approve that my marriage is bona fide, then I will have to go back home and face at least 3 years barred from the US since I’m staying here illegally.

    Please help me.
    Thanks,
    Nisha

    Like

    • This is a classic situation where you need and should hire experienced immigration lawyers to handle you case. In this situation, you need to get professional help. If you try to file this by yourself, you will probably be denied and then for sure after that placed into removal proceedings since you’re already out-of-status. And no, it won’t be a 3-year bar. It will be at least 10 years if you’re ordered removed.

      We have helped many out of status students obtained their green cards successfully. Please contact our office at 310.289.2155 or email: consult@GuruImmigration.com for our rates on a case like this, especially since you’re also here in the SoCal area.

      Like

  16. I am a student who is on F1 visa and was attending college for a while but due to finances,was forced to drop out due to lack of finances and struggling hard to raise some money so that i can go back and complete my degree and my 1-20 is still valid as i have 2 more years left but my visa just expired 3months ago.I got married to a US citizen whom i happen to love so much and we been together for two years before we got married that is,sadly due to lack of jobs and ample finances,I am living with her family till we get on our feet and find our own place that we can afford.I want to apply for a greencard through marriage and i was wondering whether this situation would deter USCIS from giving me a greencard.we have most of the requirements i.e, shared bank accounts,pictures of us together(before and after we got married) and footage of after wedding(we did it civil) but whats disturbing me the most is that we don’t have the proof that shows we own or rent a house/apartment.
    Can you please advice me on what to do.
    thank you

    Like

  17. Thank you for the reply, I’ll let my husband to contact you.

    Like

  18. Hi Larry,
    My family (husband and 2 sons)and I came to USA on April 2007 for my son’s medical treatment. We got permission to stay for 1 year and then extended for 6 months, expire date October 6 2008. We got approved letter for extension at the end of August 2008, at the beginning of Sept 2008 my husband applied F-1 visa, on January 2009 USCIS asked more evidence, but it was denial on April 2009. We applied motion to reopen to reconsider on May 2009, on Oct 27 2009 we got letter that USCIS has granted the motion but denied the change status to F-1 student status, because in I-20 form the college put date of starting course on Jan 5 2009, so we failed maintain a valid non immigrant status from Oct 6 2008 untill January 5 2009. The decision leaves us without lawful immigration status and have to depart the United States, but they did not mention when we have to depart.
    Can we go back to our country and apply F-1 visa from there?
    My son whom got medical treatment want to apply F-1 visa too, he is 21 years old and he is doing good. He finished his chemoteraphy on February 2009 and still undergoing doctor’s monitoring for several years, the doctor has put him on surveillance, he takes MRI every 3 months. We are very very concern about my beloved son, that’s why we want to come back to USA.
    Please give me your advice, thank you and God bless you.

    Like

    • so we failed maintain a valid non immigrant status from Oct 6 2008 untill January 5 2009. The decision leaves us without lawful immigration status and have to depart the United States, but they did not mention when we have to depart.

      They don’t have to mention when you have to depart! Just because they don’t say it, you’re presumed to know the law: you can’t just think, as you apparently did, that you could stay here! Once they denied your case, you had only a very short time to depart, something like 10 days. We cannot tell, without having a paid consultation, from the sketchy facts you’ve described, how many days out of status you’ve been, because as you know, more than 180 days out-of-status will result in the 3-year bar against you, and a year or more out-of-status will result in the 10-year bar. Contact our office at 310.289.2155 or email at Lawyer@GuruImmigration.com to schedule a consultation. It will be necessary to see those USCIS decisions and also understand what happened before with your family, or otherwise nothing definite can be said about your case.

      Like

  19. Hi Larry
    Very good site, and most informative blogs.

    My little sister is 20 years old and is unmarried, living in Jamaica. Her father is a permanent resident of Florida, and his (newish) wife is a born US Citizen, both married about 10 years. They would like to sponsor their daughter to come and study at Florida university for x4 years. She would like to start univ. in January 2010.

    My questions are
    1) What should they do first – the F-1 visa (via the school) or
    2) File for her under the family visa I-130. (immediate family member)

    Reading your blogs, an application for I-130 does not give one any status, and it will take years to get approval, albeit quicker as she would be an immediate family member.

    3) Can they do both for her at the same time?
    One of the big issues is that the F-1 route will see her classified as an international student, and the fees are x5 times higher than a local resident. The university defines a local resident of a student based on the residency of the parents, so hence why my thinking was to go via the I-130 route. My lack of understanding is based around, what happens when you fill in the I-130 – can she travel to the States based on that application alone (pending approval) or not.

    Once she enters the states, I do not think she will be going back home for holidays – so no exits and re-entries necessary.

    Thanks very much

    Sonia

    Like

    • Sonia, when did your father get married to his new wife? Because if the marriage was done after your sister turned 18, her stepmother cannot petition for her, that’s the rule for a stepchild. Your father can file the I-130 petition for her, of course, but because he is only a green-card holder, there is no visa number in that category for another 8 years or so. This is the F2A category of relatives that I discuss in my post here, which you might have read already. If she’s still in Jamaica, she can’t come here with that I-130 pending. My post explains (maybe not enough) that there is no right to work or travel with the I-130 pending or even approved.

      I think she needs to file for the F-1. But there should not be an I-130 filed for her yet or the U.S. consulate in Kingston will deny her the F-1 due to immigrant intent on her part.

      Best wishes!

      Like

      • Hi Larry
        Thanx for the speedy reply. Will take that into consideration. My step mom married my dad when my sister was 10 years old, so I think the step mother will do the I-130, not my dad.

        I guess if we don’t want to pay international student fees via the F-1 process, then it may be prudent to wait until the I-130 & I-485 goes thru. Just checked in on Jax, FL. processing waiting times, and they are quoting 4 months ~ might be worth the wait to get her to become a citizen quickly, then she can apply for college as a local resident and pay local rates. You think?

        Thanks

        Sonia

        Like

        • Sonia,

          OK, I promised my girlfriend we’re going to make our dinner reservation soon where we’re out of town here, but it’s my blog and I love following the latest comments :) So, I’m going to answer you quickly. First, glad that you clarified that your stepmom married your dad when your sister was 10, so your sister now at 20 is still properly considered her stepchild under immigration laws. However, sorry, but your sister cannot do adjustment of status (Form I-485). The Jacksonville data of 4 months is not applicable. That’s only for an alien already present in the U.S. For an alien overseas, like your sister is right now in Jamaica, the I-130 must be filed first. Your stepmother files it with USCIS and it’s currently taking about 5 months to be approved at Vermont Service Center if they’re living in FL. Only when the I-130 is approved will the National Visa Center send your sister an immigrant visa package and she has to fill out forms, get different documents forwarded to them, and then they forward it to Kingston. Then, Kingston will schedule an interview for your sister. Since it’s already September 6th, there is no way she will receive an immigrant visa to come here by January. I think the whole thing may take 9 months to a year. Anyways, even if she lands in the U.S., another issue is you would have to check how many months a person must be residing in the State of Florida in order to be considered a resident for in-state tuition purposes. So, it may be a while before your sister can even pay in-state tuition rates. Maybe you’ve checked that already.

          OK, got to go now. However, that’s all I can say about your case. Please retain me if you’d like further advice. Good luck!

          Guru Larry

          Like

  20. Michael Nguyen Says:

    Hi Larry,

    I came to New York city a few years ago on F-1 visa (D/S). Now, I’ve been out of status for more than 6 months due to dropping class (less than 12 credits).
    I only need 1 more year to finish my bachelor degree. I’d like to stay and finish it, then come back home for good.
    Is that also count as illegal overstay? Will the authority hunt me down and lock me up for deportation since the school already knows my address and everything?
    I don’t wanna come back to Vietnam now because doing so I would face 3 year bar. Reinstatement doesn’t work on my case.

    Do you know any good immigration attorney in NYC are?
    I’ve been living in fear ever since!
    Thanks!

    Like

    • Michael, please read my new post explaining my new policy on commenting back extensively on people’s specific problems. However, this post which you read, “Nonimmigrant Visas and Why Maintaining Status in the U.S. Is Important”, should give you the answer. If it doesn’t, you’re welcome to give me a call for a consultation. Actually, visas that have duration-of-status, such as the F-1, have a different wrinkle than visas with just a straight expiration date.

      Unfortunately, I don’t know any attorney in NYC personally and so your guess is as good as mine. However, if you’re not willing to leave the U.S., I don’t see any lawyer able to do much for you unless you marry a U.S. citizen, since as you can see that reinstatement has already been denied and change of status to another nonimmigrant visa will no doubt be also denied without a reasonable excuse for being six months out-of-status.

      Best,

      Guru

      Like

  21. I have a friend who came here as an infant. Her parents brought her here on a visa. They overstayed and now she is 20 years old and still illegal. She was in college last year, but might not re-enroll due to lack of finances. Anyway, what can my friend do to get legalize? Also, she wants to go back home (which she knows nothing about). She thinks it will be easier that way, but if she leaves, will she be able to come back.

    Like

    • Well, if your friend is truly in love with somebody special who’s a U.S. citizen, she could get married to him and obtain her green card here. I actually blogged about it here.

      I think you’ll find it worthwhile reading!

      Guru

      Like

      • Is that the only way?

        Like

        • No, under current law there are other ways but much slower and far more expensive. For example, she could theoretically be sponsored by an employer but that process takes years, and also she’s so young that that’s unlikely, and she would have to go back to her country and face the 10-year bar, too.

          The other way is, of course, wait for comprehensive immigration reform, or amnesty, from the Obama Administration, probably next year.

          Like

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