Visa rule primer for int'l student in F-1 category

Visa rule primer for int'l student in F-1 category

Q. I changed from B-2 visitor to F-1 international student. Can you please explain the rules for my traveling outside the United States?

I am a Brazilian citizen. I came here on a visitor's visa and then changed to F-1 international student status. I haven't left the United States since. I understand that if I travel home, I need an F-1 visa to return. However, I heard that special rules apply to travel to Canada, Mexico and adjacent islands.

Name Withheld, New York

A. So long as you are maintaining your student status, you can travel to Canada, Mexico and islands adjacent to the U.S. for as long as 30 days without getting an F-1 visa. That's true if, as is typical, the U.S. Citizenship and Immigration Services granted you the right to remain here for Duration of Status. You are correct that if you travel to any other country, including Brazil, you need an F-1 visa to return.

When a visitor or other nonimmigrant changes nonimmigrant status while in the U.S., they may remain here for the period granted by the USCIS, provided the nonimmigrant obeys the rules for the new status. USCIS notes the change of status and the duration of stay on USCIS form I-94, Arrival/Departure document. For international students, USCIS usually the duration of stay is "duration of status." That means the student may remain here so long as they follow the rules for F-1 status. The stay expires only when the student finishes school or fails to meet the conditions of F-1 stay.

An international student may travel to Canada or Mexico or an adjacent island without a valid visa for as long as 30 days provided their I-94 does not expire before they return. If you have a I-94, it never expires if you maintain student status. To travel to an adjacent country, you would need to bring a "travel" I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status. You get that form from your international student advisor. In any event, speak to your adviser before making travel plans. He or she is the best person to advise you in this matter.

If you want to travel to Brazil or any other country not adjacent to the U.S., different rules apply. You would need an F-1 student visa to reenter the U.S. You would apply for that visa at a U.S. consul abroad.

Note that if you apply for an F-1 visa at a U.S. consul in an adjacent country and the consul denies you the visa, you may not reenter with your unexpired I-94. You would need to return to Brazil to get an F-1 visa. Note also that special travel rules apply to nationals of Cuba, Liberia, North Korea, Iran, Sudan, and Syria.

You can learn more about rules for returning after travel abroad at the U.S. Immigration and Customs Enforcement Web site, www.ice.org.

Q. My brother-in-law's wife abandoned him. Can he nevertheless continue with his green card application?

My brother-in-law married a U.S. citizen. He and his wife filled out all the paperwork for him to get permanent residence, but before he could send it in, she abandoned him.

Narry, Brooklyn

A. To get his permanent residence without his wife's help, your brother-in-law would need to prove that he is the victim of spousal abuse. The law provides for self-petitioning for an abused spouse or for the parent of an abused child. If the abuse was mental but not physical, he would need a statement from a mental health professional or counselor.

If your brother-in-law can't prove abuse, his best bet is to get divorced or get his marriage annulled, and find someone who appreciates him.

Q. My wife came here on a fiancé(e) visa, intending to marry another man. Can she get permanent residence based on her marriage to me?

I am a U.S. citizen who married a lovely lady from Asia. Her visa admitted her for 90 days, but she never married the man who brought her here. We have been married for three years.

Joe, New York City

A. Your wife is going to have a hard time getting permanent residence. Foreigners who come here on a fiancé(e) visa can interview for permanent residence in the U.S. only if they marry the U.S. citizen who brought them here.

So, your wife would have to travel home for her immigrant visa interview. That's risky because she'll need a a waiver for overstaying her visa.


Prof. Allan Wernick
Wednesday, January 21st 2009, 4:25 PM
allanwernick.com.