IMMIGRATION LAW MONTHLY

Immigration Law Monthly

June 1997

I am an Indian national who has an application for Canadian permanent residence pending at the Canadian consulate in Buffalo. At the same time I am trying to secure an H-1. Would my Canadian permanent residence application have any negative impact on the H-1 application?

As you know, the H-1 category is a nonimmigrant category. Accordingly, you must establish that you do not have an intention to become an immigrant in the United States. Your desire to become a permanent resident in another country is not inconsistent with this requirement. There will be no negative impact on your H-1 petition. Once you have become a landed immigrant, you will no longer need a visa from a consulate to enter the United States under H-1 status. As an Indian national having landed immigrant status, you will be visa exempt. You can read about the visa exemption here.

I am a U.S. citizen engaged to a Canadian about to file a petition to sponsor her immigration here to live with me. I've studied the laws as best I can, and my own income (which is low) seems to be a sticking point. I'm a writer, and while I have several new books coming out which will improve my income past the point it is required to be to sponsor my fiance's entry, I can't prove that income yet. My fiance is perfectly eligible and a hard, qualified worker (in the business management field). I've heard that there are new laws restricting (for instance) my father signing an affidavit of support to bolster my petition. Is such co-sponsoring feasible? Would it improve our chances if we were to marry first and then apply?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA") imposed a requirement that virtually all family-based immigrants provide a legally binding affidavit of support executed by a sponsor. The sponsor (usually the petitioner) must agree to support the beneficiary at 125% of the poverty line essentially for ten years, or until the alien becomes a U.S. citizen.

If your income is too low you can still find another to be jointly and severally liable on the affidavit. To qualify as a sponsor, individuals must be at least 18 years old, domiciled in the United States, and able to provide the necessary support. I assume that your father would qualify to act as a sponsor.

This affidavit of support requirement applies to virtually all family based immigration cases. However, it does not apply to K-1 fiance(e) cases. Therefore, if you petition your fiancee using a K-1 visa, you will not be required to provide an affidavit of support until you have filed for permanent residence on her behalf as a spouse. However, K-1 nonimmigrants must marry within 90 days of admission. Further information on the K-1 fiance(e) category is available here.

You should proceed with the fiancee processing now and have your father co-sign the affidavit of support when your fiancee/spouse applies to adjust her status to permanent residence.

I am a permanent resident of the U.S. who has been living in Canada for the past 9 months. Before I left the U.S., I applied for a reentry permit which is valid until December 1998. Will I lose my permanent resident status if I do not return to the U.S. within a year? If I lose my status, can I apply for it again? Is there a waiting period before I can do it?

If you are asking about whether or not you have to return to the United States in three months, the answer is no. The returning resident permit is prima facie evidence of your intention not to abandon your residence until it expires. I have answered this question before; I suggest that you look through the Subject Index to Immigration Law Monthly to see my previous answers.

If you do lose your status, you can reapply again without delay. However, you must requalify for permanent residence under the current law. Your previous permanent residence status gives you no special privileges.

I am an Indian citizen with permanent residency of Canada. I am currently a student in the US. I am still holding my I-94 which I received based on my earlier F-1 visa (which is expired now). The reason was that I mostly travelled between Canada and the U.S., so it was never taken off my Passport. If I travel outside North America and come back in the U.S. via Canada to continue my studies, do I have to seek a new I-94 at the port-of-entry (assuming that I will require another I-94)? I am also not sure whether I am supposed to surrender my current I-94 while leaving the US.

If you are currently in the U.S. as a student (presumably F-1 status), you will have a current I-94 as well, which is proof of your current status. If you extended your status within the U.S., you would not have surrendered your old I-94. If you left the U.S. and reapplied for F-1 status abroad, you would have surrendered your expired I-94 when you left and received a new I-94 when you re-entered the U.S.

As you are a Canadian landed immigrant having common nationality with Canadian citizens (i.e. India), you are visa exempt. Therefore, your I-94 is your only proof of status. You can surrender your expired I-94 when you leave the United States but you should NOT surrender your current I-94. Otherwise, you will have no proof of your current F-1 status.