Question: I am currently working on an H-1 B visa and my girlfriend is on an F-1 student visa. We are both Jamaican and want to fly home to spend Christmas and New Years with our family. Will I need to apply for a visa once I exit the US? Can I just use the I-797 approval form to re-enter the US? If this is true, can my girlfriend also just use her immigration approval form and I-20 from the school? It is so confusing to understand if we need to get our visas at the Embassy in Kingston or not. Is there a way I can apply for a visa from the U.S. or go have my passport stamped before I leave the country?

Answer: The general rule for all non-immigrant visas (i.e. H-1B, F-1, E, L, etc.) holders is that unless you have a valid (unexpired) visa stamp already in your passport, you will need to obtain a visa stamp from the U.S. consulate in your home country or from one of the U.S. consulates in Canada or in Mexico before you will be allowed to re-enter the U.S.

Consular officers are notorious for re-adjudicating H-1B, E and L cases, so be sure you have a strong case before considering leaving the U.S. and applying for a visa at the U.S. Consulate. In your case, since you don’t already have an H-1B visa stamp, you will need to make an appointment at the U.S. Consulate in Kingston. In addition to documentation listed in the Consular website, you will need the original Approval Notice (Form I-797) and copy of the attached I-94, a full copy of the immigration petition package filed with the USCIS in the U.S., and completed DS form 156 and if you are male, 157, along with photo. You should also have a current letter from the U.S. company and copies of your past three month’s pay stubs to show you are working for the H-1B sponsor at the salary offered in your H-1B petition. Similarly, your girlfriend will need to obtain an F-1 Student visa stamp in order to be allowed to re-enter the U.S. The DS 156 must be completed and documentation required includes: the original, signed I-20 issued by the school, SEVIS receipt, financial docs and a letter stating that she intends to return to Jamaica after her studies in the U.S. are completed. Let me know if you have any questions.

Question: I just passed my Naturalization test and will be sworn in as a U.S. citizen in a month or so. My husband and stepdaughter are on an expired L-1 visa since the company closed last year. I heard that once I become a citizen, my husband can get some legal status. Is that true? What about my 12 year old step-daughter? Do I have to legally adopt her? It is very confusing.

Answer: Even though your husband and step-daughter are in the U.S. with an expired I-94, as long as they entered the U.S. legally (with inspection by an immigration officer) they can both still adjust status inside the U.S. to that of a Permanent Resident (Green Card holder). So, once you have your Naturalization Certificate, residency petitions can be filed for your husband and step-daughter. A step-child is considered as a “Child” for immigration purposes, as long as the U.S. Citizen and foreign national marry before a child turns age 18. You step-daughter is only twelve, so she is considered to be your child under immigration rules. Therefore, she can obtain her Green Card along with your husband. You would not need to legally adopt your step-daughter for immigration purposes.

Question: My sister in Jamaica met an American guy on the internet and he wants to marry her. She is not sure if she wants to marry him. If the American guy brings my sister to the U.S. on a fiancée visa, if she decides that she does not want to marry him, can she change over to a student visa or something else? Can she stay here if my mom who is a resident files an immigration petition to sponsor her?

Answer: Immigration rules are very strict about Fiancée visas (K-1). Once the foreign fiancée has entered the U.S. on a K-1, he or she is required to marry the U.S. Citizen within 90 days and begin the immigration process. If the marriage does not take place, the foreign national K-1 holder must leave the U.S. and is not allowed to change to any other non-immigrant or immigrant visa. An immigration petition filed by your mom will not allow your sister to stay in the U.S., only a valid marriage and immigration through the U.S. spouse. The only exception is where there is documented abuse by the U.S. Citizen spouse (usually demonstrated by police reports/restraining orders) which can result in a battered spouse case being filed to obtain residency.

*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understand that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call your state’s attorney Bar Association.

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