Help if you can

[MarcRosie]

My wife has her green card. Daughter had a K2 but due to our attorney screwing up big time that path is closed for her to come here. We were forced to go ahead and file the I-130. Both are Chinese nationals. She was 20 at the time. Now she's older. But here's the question. I've been trying about everything to see if there's a way so that her daughter can come over here to study. She's now in London studying but has always wanted to come here to study. Can we recind the I-130 and file for the F1? Or will she always be tagged now that she 'wants to immigrate' and would not be allowed the F1. Basically what happened was our attorney told us that she could visit with the K2, go back to London, when the biometrics and interview were needed, she could come back. Of course that wasn't true. Any help would be appreciated. Thanks, Rosie and Marc

[dnoblett]

I would leave the I-130 alone, it should have no affect on getting a student visa.

 

Work with a university or college, if daughter is accepted to study as an international student, she should be able to get the F-1 student visa, I even suspect should be able to get a B-2 to visit.

[MarcRosie]

Thanks for the response Dan. So you feel that they would not look negatively at the fact that she is showing intent to immigrate (per the K2 and now the 130) and grant her the F1. I believe the F1 does not allow immigration. She's been to America I think 4 times now and done everything she was supposed to do as far as leaving when she was supposed to. Gone by the book. She just wants to come here to study. She might possibly want to live here after her studies but that will be up to her when that happens. By that time the visa would be close to going through from the 130...I would think...hope. But explain on the B2. Will they give 2 different visas at a time? F1 and B2? Maybe I'm not understanding. Thanks for your help! It is greatly appreciated!! Marc

[dnoblett]

Nope, it should not affect getting a F-1.

B-2 is a visit visa, and she has had that before of she has visited the USA, and playing by rules should help.

As for the pending I-130, it's going be a while, she will become over age 21 well before they could assign a number for an under age 21 child. Child of green-card holder over age 21 are just getting numbers for cases filed back in 2005 about an 8 year wait. What would speed this up will be your spouse becoming a US Citizen this would knock a year off the timeline. (Correction, I-130 was filed prior to 21st birthday, thus USCIS processing time was deducted from age per CSPA and in this case ultimately kept child in F2A class)

Another option, would be for her to come to the USA on a F-1 student visa, and if during her studying she falls for a US Citizen, and marries, se could then adjust status based on the marriage, I know of a few that did this.

[credzba]

I work with many people who came here on F1, then stayed in school while they found a job that would sponsor them.

Then, with job sponsor, it took 5-10 years to get permanent residency.

 

I think that path is pretty normal.

[Randy W]

Yes - the F1 by itself doesn't allow immigration, but it doesn't require that you leave when your studies are finished. A job which will sponsor for a green card will allow you to stay. Seems like it was a LOT less than 5 to 10 years, though. I would have thought a few months to a year from the people I worked with.

[credzba]

Yes - the F1 by itself doesn't allow immigration, but it doesn't require that you leave when your studies are finished. A job which will sponsor for a green card will allow you to stay. Seems like it was a LOT less than 5 to 10 years, though. I would have thought a few months to a year from the people I worked with.

 

Seems there are 3 preference categories based on how "critical" you are to USA.

A PHd that has been published world wide (almost all to get a PHd I think) are category 1, and its less than a year.

A "critical resource" perhaps only a masters degree, but in an area that a company can make a case you are critical is 2-5 years.

Then, all the other work visas, and I said 5 - 10 because that was what my experience with friends at Cisco was.

 

As with all the visas, their are numeric limits, and depending on how many are in the priorities ahead of you will determine your wait.

I have a colleague that is from India, has been here on a work visa for 5 years, and expects another 5 years before he can get a green card.

But, there are LOTS of people from India in line.

[Randy W]

 

Yes - the F1 by itself doesn't allow immigration, but it doesn't require that you leave when your studies are finished. A job which will sponsor for a green card will allow you to stay. Seems like it was a LOT less than 5 to 10 years, though. I would have thought a few months to a year from the people I worked with.

 

Seems there are 3 preference categories based on how "critical" you are to USA.

A PHd that has been published world wide (almost all to get a PHd I think) are category 1, and its less than a year.

A "critical resource" perhaps only a masters degree, but in an area that a company can make a case you are critical is 2-5 years.

Then, all the other work visas, and I said 5 - 10 because that was what my experience with friends at Cisco was.

 

As with all the visas, their are numeric limits, and depending on how many are in the priorities ahead of you will determine your wait.

I have a colleague that is from India, has been here on a work visa for 5 years, and expects another 5 years before he can get a green card.

But, there are LOTS of people from India in line.

 

Okay - I see! I guess I just worked with the category 1 people. I remember being surprised that one guy's green card hadn't yet come through when he was laid off after only a couple of months.

[Randy W]

The last company I worked for sent a new Chinese hire to work out of a hotel room in Beijing, when his student visa expired before his work visa came through. Next thing I knew, he was back in the U.S. with a green card. This was a PhD in Nuclear Physics.

[MarcRosie]

Thanks all for your responses!! So to sum this all up, we should be able to keep the I-130 in play AND file for the F1. And then after she would graduate, a company here in America could help sponsor her to get her green card. Question then. If the I-130 is in play and she's waiting for her green card per the I-130, how is a company able to help get that green card? Sorry for all the questions. I just want to make sure we are heading in the right direction. No more glitches. No more heart breaks. No more stress. Just the path we should follow. I will say that it is a pleasure to be able to come here and hear from all of you on this issue. We just want to do what's best for Ashley and help to give her the life she wants. God Bless! and THANKS!! Rosie and Marc

[Randy W]

Thanks all for your responses!! So to sum this all up, we should be able to keep the I-130 in play AND file for the F1. And then after she would graduate, a company here in America could help sponsor her to get her green card. Question then. If the I-130 is in play and she's waiting for her green card per the I-130, how is a company able to help get that green card? Sorry for all the questions. I just want to make sure we are heading in the right direction. No more glitches. No more heart breaks. No more stress. Just the path we should follow. I will say that it is a pleasure to be able to come here and hear from all of you on this issue. We just want to do what's best for Ashley and help to give her the life she wants. God Bless! and THANKS!! Rosie and Marc

 

The company will have a legal dept. or outside lawyers that process the green card application - no worries. This has nothing to do with the I-130 - it's simply a second path to a green card

 

With the F-1 visa, an I-20 from an accredited school all but guarantees acceptance for the F-1

 

Student Visas - DOS - http://travel.state....types_1268.html

GUZ - Student Visas (F-1, M-1 Visas)

Quote

All applicants for "F-1" and "M-1" visas must present a valid I-20 form from the school which has accepted them.

 

To obtain a visa to study in the United States, applicants must demonstrate that the sole (not just "primary") purpose of their travel is to pursue a program of study; they have the ability and intention to be a full-time student in the United States; they possess adequate funds to cover all tuition, living and anticipated incidental expenses without taking unauthorized employment; they have sufficiently strong social, economic, and other reasons to compel their departure from the United States upon completion of the projected program of studies.

That being said, some students are able, upon graduation, to gain employment with a company that can sponsor their green card, thereby allowing them to remain in the United States.

 

Student visas are mainly used at the university level, but the primary requirement is to be accepted to a SEVP-certified school (secondary or university) which will issue an I-20 certificate of Eligibility for Nonimmigrant Student Status.

 

The first step to take is to locate a school, and be accepted for enrollment.

 

Looks like these links are broken - I'll see if I can't find new ones

ICE - Becoming a Nonimmigrant Student in the United States (Note: some links here are broken - hopefully, new links will be available soon - 6/1/2012)

A full listing of the schools certified by SEVP to accept nonimmigrant students, is at http://www.ice.gov/d...vedSchools.pdf. You can also find a school by geographic location using http://www.ice.gov/s...schoolsmap.htm.

http://www.ice.gov/sevis/ - check here for updates

[Randy W]

Here's the new DHS site

 

Study in the States

 

SEVP-Certified School Search on Study in the States

[Randy W]

But there's this from UC Berkeley - you may wish to do some more research, or consult an immigration attorney before filing the F-1

from UC Berkeley - http://internationaloffice.berkeley.edu/nonimmigrant_vs_immigrant

Dual Intent

Individuals who intend to apply for a 'green card" may not be eligible for nonimmigrant status. Their nonimmigrant visa application may be denied if they appear to have the "dual intention" of coming to the U.S. temporarily while pursuing permanent resident status. Presently, only E, H-1 and L nonimmigrant categories are allowed to enter and remain nonimmigrants while simultaneously pursuing permanent resident status.

If a visa officer at a U.S. consulate abroad believes that an application for a nonimmigrant visa is only a pretext for an intent to stay permanently once allowed into the U.S., the officer may deny the visa application. The consular officer may conclude that the nonimmigrant does not have the intent to stay temporarily because s/he cannot show significant family or employment related ties to their country of origin.

In Conclusion

If it is your intention to temporarily visit the U.S. as a nonimmigrant student, scholar or other, be aware that the success of your visa application lies in your ability to demonstrate sufficient ties to your home country. During your visa interview, you may be asked about how your visit to the U.S. fits into your long range plans.

If you are interested in seeking immigrant status, do your research and talk to an immigration attorney about the options before taking any steps in the immigrant or nonimmigrant application process.

 

- and -

 

Module 2: Becoming a Nonimmigrant Student - http://www.ice.gov/exec/sevp/Module2.htm. This web page is for school officials, but may provide some useful information

[MarcRosie]

So correct me if I'm misunderstanding, but basically what the Berkley deal is saying is that if you had (for instance) a K2 that you used but did not go through with the GC process, and now an I-130 in process and then filed for the F1, you would probably be denied because it suggests you have dual intent? If this is true, in fact it does make a difference that the I-130 is in process. She will most likely not be given the F1 unless she could prove without doubt that she had a job offer in China and was going back after schooling.

[Randy W]

So correct me if I'm misunderstanding, but basically what the Berkley deal is saying is that if you had (for instance) a K2 that you used but did not go through with the GC process, and now an I-130 in process and then filed for the F1, you would probably be denied because it suggests you have dual intent? If this is true, in fact it does make a difference that the I-130 is in process. She will most likely not be given the F1 unless she could prove without doubt that she had a job offer in China and was going back after schooling.

 

No - what it SAYS is that immigrant intent is a concern that the visa officer will have. That is, if someone were to use an F-1 visa to enter the U.S., and then simply abandon the F-1 in favor of some other path to a green card, this would violate the intent of the F-1 and possibly be considered immigration fraud.

 

Simply rescinding the I-130 would NOT show a non-immigrant intent.

 

It seems to me, however, that you could satisfy the VO by showing ties to her home country (no job offer is required), and that her course of study is a real, and serious motivation for what she is doing.

 

What this comes to is that you need advice from an immigrations attorney who can review the entire case and advise you on the best course to take. We cannot do that from here.

 

The best advice is from the Berkeley article that I've already quoted

During your visa interview, you may be asked about how your visit to the U.S. fits into your long range plans.

 

If you are interested in seeking immigrant status, do your research and talk to an immigration attorney about the options before taking any steps in the immigrant or nonimmigrant application process.