Legal Eagle - Spot-checking of visas introduced

NANDINI NAIR informs that consular managers have been directed to carry out spot-checks of visas to prevent any irregularity

Dear readers, here is another update. There has always been a requirement that consular managers should perform spot-checks of issued visas (both nonimmigrant and immigrant), for the purpose of making sure that it was issued in compliance with regulations. Now, the Department of State has made the requirement an official policy. The NIV chief, the visa chief or the consular section chief must spot-check approved nonimmigrant visa applications. The purpose of such spot-checks is to maintain the highest professional standards of adjudication and to ensure uniform and correct application of the law and regulations. It is the consular section chief’s responsibility to determine the frequency and number of spot-checks.

Also, the Immigration and Naturalisation Service (INS) is beginning the implementation of the Student and Exchange Visitor Information System (SEVIS). SEVIS is an Internet-based system that collects current information on nonimmigrant students and exchange visitors. SEVIS will become fully implemented and mandatory sometime early in 2003. The SEVIS Internet-based application will be accessible by INS, DOS, certified schools and certified sponsors. The SEVIS database will collect and make accessible to authorised users the major events associated with international students’ and exchange visitors’ status, from the issuance of I-20 or DS-2019 forms, to visa application and issuance to graduation /departure from the US/change of status. Data sent from the SEVIS database to the field would allow consular officers to confirm the status and validity of the I-20 and DS-2019. Following visa issuance, existing DOS-INS data share links will be used to record that event to the SEVIS database and track and monitor the whereabouts of the international student and/or exchange visitor.

My son is doing his Master of Science in Chemical Engineering in the US. He will be completing the course in December 2002.

How long can he stay in the US after the Master’s programme and what are the formalities to be followed? Can he come to India for a short stay after the programme? Can he apply for a change of status from Fl to H1-B in the US, or does he have to come back to India for this?

—-Tilak Rathore

Once your son has completed his Master’s programme, he may be able to get one year of practical training experience if he is able to find an employer willing to hire him. He needs to get approval for this training period from the school. If during that time, he gets an employer to sponsor him for an H1-B, he can change his status in the US. If he wants to come to India after the Master’s programme, the H1-B can be filed from here. Keep in mind that if he does not get approval for the training course before the Master’s programme is completed or if an H1-B petition is not filed with the INS before the conclusion of his Master’s programme, he will have to depart the US. My husband is in the US on an H1-B visa. I was there for two years on an H-4 visa but have returned to India a short while ago because I am pregnant and want to have my child here. I have just come to know that if I have my child in the US, he or she will be a US citizen and can sponsor my husband and me for green cards as parents of US citizen. Is this true? Should I head back for the US?

—Rini Lal

It is a common misconception that people can obtain immigration benefits through their minor, US citizen children. If it were this easy, most couples of childbearing age would have a green card within nine months or so. The truth is that minor children cannot petition for their parents’ green cards. Only US citizens, 21 years of age or older, can petition for their parents. Parents of adult US citizens, over 21 years old, fall within the privileged class of “immediate relatives” and therefore are not subjected to limitations on the numbers of available visas. That is, they do not have to worry about the visa quota.

One potential problem however is that the petitioning son or daughter must show financial ability to support the parents by filing the Affidavit of Support with three years of tax returns to the INS or the consular officer. Usually, people in their 20’s often cannot meet their financial requirements because they have completed schooling and do not have work experience. If the son or daughter is unable to satisfy the financial requirements for sponsorship, a joint sponsor may be used and/or assets can be used instead of income in some situations. So, in your case, you will have to decide what is best for you. Do not come back and jeopardize your or the baby’s health based on misinformation. Your child will only be able to sponsor you and your husband in 21 years. The better alternative is to find an employer willing to sponsor your husband for green card based on employment. That should only take between three-four years.