My wife is a British National born in Uganda. She recently received a visa lottery (DV-98). She was inspected by an immigration officer when she entered the U.S. in H-4 capacity. She has since maintained her non immigrant status. My question is prior to marrying me she has entered the U.S. under the visa waiver program and once has overstayed her visa. Can she adjust her status while in the U.S.?

For the purpose of this question, I am assuming that your wife first entered under the Visa Waiver Pilot Program ("VWPP"), overstayed, but departed the United States, and later re-entered as an H-4 (the status she has continuously maintained to the present).

INA 245(a) states that adjustment of status is not permitted for persons who entered under the VWPP or who did not continuously maintain status since entry. However, your wife subsequently left the United States and re-entered under H-4 status. Therefore, these bars to adjustment should not be applicable to her at this point. However, if your wife overstayed after April 1, 1997, this period of unlawful presence would have counted against the 3 and 10 year bars to inadmissibility. I am assuming that the 3 year and 10 year bars do not apply.

Even if adjustment was barred or if the 3 and 10 year bars applied, she could seek adjustment of status under INA 245(i). This provision allows otherwise ineligible persons to adjust status upon payment of a penalty fee. This provision expired on September 30, 1997 but was temporarily extended for three weeks until October 23, 1997. Whether this provision will be extended in the future is still uncertain.

I am a permanent resident of the U.S. living in Canada. My wife is a landed immigrant of Canada. If I move back to the U.S., how can my wife accompany me? Does she need a visa to live in U.S. since she does not need a visa to visit? If I do not obtain a visa for my wife to visit, how long can she live in the U.S. before her status becomes illegal?

If you are a permanent resident, you will have to petition her for permanent residence. However, she would be in the family based 2a preference. I do not know her country of birth, but she is certain to have several years of waiting ahead of her. In the meantime, you would have to find some applicable nonimmigrant category if you want her to accompany you.

She does not need a visa to enter as a nonimmigrant if she is visa-exempt, but must still show eligibility under one of the available categories. The problem is that, unless your wife can qualify on her own under a category that recognizes dual intent (i.e. "H", "L", or "E"), she will most likely have difficulties. If the inspecting INS officer discovers that she has an approved petition for permanent residence, she will be denied entry for having immigrant intent.

I suspect that she would be entering under the B-2 tourist visitor category. Assuming that your wife can enter the United States without making misrepresentations, she can get up to six months in B-2 status.

I am a citizen of India who was studying in the U.S. on a F-1 visa before I immigrated to Canada. I am now a permanent resident of Canada studying in the U.S. and my F-1 visa has expired. My question is, do I have to go back to India to get another visa or can I get it in Canada? I do have a valid I-20 from the University.

If you are an Indian citizen who has landing in Canada, you are now visa-exempt under 8 CFR §212.1(a). This is because Indian citizens have common nationality with Canadian citizens. However, be aware that you must still satisfy all of the eligibility requirements for F-1 status.

I am a Canadian citizen (naturalized) in the U.S. on TN status. I intend to enter the DV-99 Immigration Lottery this coming October, based on my country of birth (not Canada). This will be my first attempt of any kind to immigrate to the U.S. How would my entering the DV-99 affect my chances of having my TN visa renewed? What should I do (as far as the TN renewal is concerned) if I am successful in the DV-99 lottery and I am notified of this before my TN expires?

Technically, entering the DV-99 lottery may imply immigrant intent. However, I am unaware of any alien being accused of having dual intent simply because he or she entered the lottery. Simply entering the lottery should not affect your TN eligibility. I suspect that there will be no immigrant intent problem unless you win the lottery and subsequently file an adjustment application or begin consular processing.

As a permanent resident, do I need to wait exactly 5 years to file my application for citizenship or I can submit the application a little bit earlier?

INA §316 states that applicants for naturalization must have been lawfully admitted for permanent residence within the United States for at least five years immediately preceding the date of filing his or her application for naturalization. In other words, you cannot file your naturalization application until you have satisfied the five year residence requirement.

My husband is a green card holder and will be eligible to apply for citizenship in November 1998. I am a Swedish citizen, born in China. Right now I am on H-1B status. My husband petitioned me for permanent residence. According to the visa bulletin I still have to wait 1.5 years and adjustment of status is taking a long time in my area. Can I send in my I-485 form earlier (6 months in advance)?

According to INA §245(a), an immigrant visa must be immediately available to the alien at the time that his or her application for adjustment is filed. Therefore, you are not permitted to file Form I-485 until your priority date becomes current.