• Q: What is the significance of a “Prospective Student” annotation on the visa stamp?

  An individual who comes to the U.S. to visit schools or attend admissions interviews, for example, may find it easier to overcome issues of “preconceived intent” if he or she explains the planned activity to the consular officer and requests or receives a B-1/B-2 visa with a “Prospective Student” notation. Without such a notation, an applicant may have difficulty overcoming the presumption that she/he dishonestly obtained a B visa with the preconceived (and not disclosed) intent to be a student or exchange visitor (AILA InfoNet Doc. No. 09091065 [Posted 09/10/09]).

• Q: How many times can my client get OPT?

  F-1 students are eligible for 12 months of OPT for each higher educational program. In other words, one year is available at the Associate’s degree level, one year at the Bachelor’s degree level, one year at the Master’s degree level, and one year at the PhD level. Please note that an additional period of OPT is available only for each higher educational level. For example, a student who receives OPT after completing a Master’s degree will not be eligible for an additional period of OPT after completion of a second Master’s degree or after completion of another Bachelor’s degree (AILA InfoNet Doc. No. 09091065 [Posted 09/10/09]).

• Q: Who is an undocumented student?

  An undocumented student is a person living in the United States without benefit of U.S. citizenship or the authorization of the federal government. Many such individuals were brought to the United States as children by parents who either overstayed a legal visa or entered the country without inspection. Undocumented students thus experience the unique challenge of not having had a voice in their migration process. Most have attended K-12 public schools, and many do not learn of their status until adolescence when they prepare to apply for a driver's license and/or apply to college (Fairfield University, Loyola University-Chicago, Sta. Clara University, Immigrant Student National Position Paper FAQ, February 2013).

• Q. Can undocumented students legally work?

  A. Under the new Deferred Action for Childhood Arrivals (DACA) program, individuals who receive deferred action from removal may apply for and obtain employment authorization for the period of deferred action if they can establish an economic necessity for employment. Even before the DACA program, some undocumented individuals with recognized unique circumstances, e.g., those who receive temporary protective status (TPS), are allowed to stay in the U.S. and could be authorized to work. (Fairfield University, Loyola University-Chicago, Sta. Clara University, Immigrant Student National Position Paper FAQ, February 2013).

• Q. What is DACA? What does it do and not do?

  A. Deferred Action for Childhood Arrivals (DACA) is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. The Obama administration describes it as a smart enforcement policy that will help unclog deportation courts and allow better targeting of high priority criminal immigrants.

  What does it do?

  What does it not do?

  • Defer deportation for 2 years (renewable, but subject to termination at any time) • Stop “unlawful presence” clock • Enable grantee to obtain:      > Work authorization      > Social security number, and      > Driver’s license (depending on state law requirements) • *May permit travel out of the country on Advance Parole (NO TRAVEL WHILE APPLICATION UNDER REVIEW)

  • Confer valid immigration status • Offer path to citizenship nor permanent legal status • Qualify students for federal financial aid • Give access to health insurance • Allow all students to be considered for deferred action (only certain young people qualify • Include student’s family • Create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter

  (Fairfield University, Loyola University-Chicago, Sta. Clara University, Immigrant Student National Position Paper FAQ, February 2013)
• Q: If I am granted deferred action, how long will deferred action last?

  A: Deferred action will be granted for two years. When the two-year period expires, the grant of deferred action can be renewed, pending a review of the individual case.

• Q: If my period of deferred action is extended, will I need to reapply for my work permit?

  A: Yes. If you apply for and receive an extension of the period for which you are granted deferred action, you must also request an extension of your employment authorization.

• Q: I was granted deferred action and received my work permit, but then I lost it. Can I get a replacement card?

  A: Yes, but you will have apply for a replacement card using Form I-765. You will have to pay the work permit application fee.

• Q: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

  A: Yes, you can file the petition. Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law (generally, law of the state where the marriage took place) and will not be automatically denied as a result of the same-sex nature of your marriage. (Department of Homeland Security, July 1, 2013).

• Q: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

  A: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. (Department of Homeland Security, July 1, 2013).

• Q: I want to invest $500,000.00 in the U.S. and get a green card via the EB-5 Visa program. What do I need to know about this program?

  A: Congress established the EB-5 Program in 1990 to bring new investment capital into the country and to create new jobs for U.S. workers. In this program, immigrants who invest their capital in job-creating businesses and projects in the U.S. receive conditional permanent resident status in the U.S. for a two-year period. After two years, if the immigrants have satisfied the conditions of EB-5 Program and other criteria of eligibility, the conditions are removed and the immigrants become unconditional lawful permanent residents in the United States. The program is based on three main elements: (1) the immigrant’s investment of capital, (2) in a newly commercial enterprise, (3) that creates jobs. Generally, immigrant investment must be at least $1,000,000 in a new commercial enterprise that creates not fewer than ten jobs. An exception exists for a “Targeted Employment Area,” a rural area or an area that has experienced unemployment of at least 150 percent of the national average rate. The EB-5 Program provides for flexibility in the types and amounts of capital that can be invested, the types of commercial enterprises into which the capital can be invested, and how the resulting jobs can be created (May 30, 2013 USCIS Policy Memorandum 602-0083).

• Q: How can I become a legal permanent resident or green card holder?

  A: If you are a foreigner, you must first be admitted to the United States as an immigrant to become a legal permanent resident. You can obtain an immigrant visa either through employment or through a family relationship with a U.S. citizen or legal permanent resident.

• Q: What is naturalization?

  A: Naturalization allows an alien to become a U.S. citizen. To be allowed to nationalize, a person must almost always have already been a lawful permanent resident (LPR) for a particular length of time.

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