2009 FAQs
NJIT Seminar Q & A
1) Can an individual in H-1B status invite his wife and children to the US?
Yes. The wife and children of an H-1B nonimmigrant can come to the US in H-4 status (for the dependents of an H-1Bs). However, individuals in H-4 status are not permitted to work. If the spouse of an H-1B nonimmigrant wishes to work, he or she would have to petition for another status, such as H-1B, O, or J, in order to work in the US. Be sure to watch whether the status of the spouse and children are "dual intent" if the H-1B visa holder is considering pursuing a green card.
2) What issues might arise if an individual (with his or her dependents) attempts to obtain LPR status while in F status?
The problem with adjusting from F status to a green card is one of inconsistent intent. An F visa is a "nonimmigrant" visa, meaning that the holder intends to stay in the US only temporarily. An individual who seeks a green card, or an immigrant visa, declares to the Federal Government that he/she intends to remain in the US indefinitely. If an individual in F status has an application for a green card pending, and he or she travels and attempts to re-enter the US, there is a good chance that the entry will be denied on the basis that the person has immigrant intent (demonstrated by the green card filing), which is inconsistent with F status. The same issue would arise with that person's dependents (see the last sentence in the response to question 1 above).
3) If someone has an MBA in Management & Technology from NJIT, would they have a chance at the OPT STEM extension?
USCIS maintains a very specific list that designates STEM degree programs that qualify for the special STEM extension. The list includes programs in the areas of: Actuarial Science, Computer Science, Engineering, Engineering Technologies, Biological and Medical Sciences, Mathematics and Statistics, Military Technologies, Physical Sciences, and Health Professions and Related Clinical Sciences. Accordingly, it seems unlikely that an MBA in Management & Technology would be covered, but it is always advisable to ask the Office of International Students and Faculty about this.
4) What is the period of validity for a B-1 visa?
It is possible to obtain a period of admission of one year on initial entry to the US; extensions of stay can be granted for no more than six months at a time. However, in practice a business visitor (B-1) will be granted only for a period of entry necessary to conduct his or her business. Most such visits are approved for less than three months, and only in unusual circumstances would a stay of more than six months be granted. A CIS memo was recently released (found on our website at www.visaserve.com) that deals with the period of time an individual may have B1 or B2 status and the extent to which those classifications may be used for gap-filling purposes.
5) If I get married to a US citizen, how long will it take to get citizenship?
When a foreign national marries a US citizen, the US citizen can file an immediate relative petition and simultaneously file an application for an Adjustment of Status to Lawful Permanent Resident ("LPR") on the foreign national's behalf. If approve, this will lead to LPR status being granted to the foreign national. Three years after becoming a Lawful Permanent Resident (green card holder), the foreign national may apply for naturalization. In New Jersey it takes about six to seven months to get the green card by filing in this manner. Also, the foreign national may be able to get an employment authorization document (EAD) within ninety (90) days. This EAD can be used by the foreign national to apply for a Social Security Number and a Driver's License (if they do not already have those important documents).
6) If a person is not eligible for the STEM extension, how can they fill the gap between the end of F status and the 10/1/09 start of H-1B status?
First, pursuant to 2008 regulations, if an individual in valid F status applies for H-1B status and it is granted, the F status is automatically extended by operation of law until the H-1B starts. There are a number of other gap fillers available as well; our powerpoint presentation, which will be posted along with this Q & A, includes a slide on gap fillers. Please note that the issue of gap filling is not a cookie-cutter analysis. In other words, the issue of filling the gap is a not a "one size fits all" analysis. The gap filling methodology chosen should be carefully discussed with your qualified immigration law counsel.
7) I am getting a Master's in Pharmaceutical Engineering, which is not on the STEM list. Can I file an OPT extension under Engineering Science?
Please see the answer to question 3 above.
8) Suppose I am not laid off but my employer is not generating paychecks due to financial difficulties. Am I still in valid H-1B status or am I out of status?
The employer may have some issues here as they may have liabilities with the US Department of Labor (DOL) and the US Citizenship and Immigration Service (CIS) (and possibly with other administrative agencies). You are in valid H-1B status until you are fired, laid-off or if the employer revokes the H-1B with CIS in writing and/or revokes the LCA with the DOL.
9) I am a student in F status, but I also have a family based permanent residence petition pending. Can I travel?
We do not recommend this to any of our clients as the underlying intent of the I-130 filing is inconsistent with the underlying intent for the F-1. Some immigration law practitioners are a bit more liberal and they advise that this would depend on whether you have filed an I-485 in connection with the family based petition. Chances are that you have not because of the lengthy backlogs. If you have, you are also eligible for advance parole (travel documents). Again, if you have not obtained advanced parole, it would not be advisable to travel with the F visa while the green card application is pending (see the answer to question 2 above).
