My H-1B expires in October 1999. I applied under the employment-based third preference category for my green card and I am currently waiting for labor certification. My priority date is 12/15/95 but, due to the heavy backlog, I am now worried that my H-1B may expire before I get my green card. (a) Am I okay if my H-1B expires but I have already sent in Form I-485? (b) What if my priority date is not current and the H-1B expires? If I cannot be in U.S., can I wait outside the country for my priority date to become current (on leave from company) and then come back after it is current? (c) Is there any way I can remain in the U.S. and continue to work for the company?

H-1B status is limited to a total period of six years. Once the cap is reached, you must reside outside the United States for at least one year before becoming eligible for H status. I assume that you will be reaching your six year cap in October 1999.

1. If your H-1B expires after you have filed Form I-485 (application to adjust status to permanent residence), you should still be in status.

2. If your priority date is not current when the H-1B expires, you cannot apply for adjustment of status. You will have to leave the United States until your petition is approved and your priority date is current. Adjustment of status requires that you already be in the United States. If you are not lawfully in the United States when both of these events occur, adjustment of status is not possible. You will have to complete your immigrant processing at a U.S. consulate located abroad.

3. The only way to remain in the U.S. and continue working for the company after your H-1B cap is reached is to qualify under some other employment category. However, you will not be eligible for either H or L status until you have resided outside the United States for at least one year. Further, obtaining a nonimmigrant status that does not recognize dual intent may be a problem.

I have a question about priority date. From your bulletin, the EB-2 category for China has a cutoff date of 3/15/96. I submitted Form I-485 on 10/29/97, and at that time EB-2 was still current. Am I effected by this cutoff?

When originally enacted, §245 required visa availability both at the time of filing and the time of approval. However, the current law requires visa availability only at the time of filing. Nevertheless, residence cannot actually be granted in the case of a preference category unless there is an available number to be used. In such a case, approval will be held in abeyance and the applicant will be permitted to remain in the United States so long as he or she otherwise remains eligible for adjustment.

In other words, your adjustment application is not lost and you will not fall out of status. However, you will not actually acquire permanent residence until a visa becomes available.

Does a K-1 fiance require the new Affidavit of Support (Form I-864)?

The new affidavit of support does not apply to K-1 fiances. However, as fiances must marry within 90 days of entry and then file for adjustment of status as a spouse, the new affidavit of support will be required eventually.

I am a Colombian citizen currently in the United States with an F-1 Student visa, which I used to enter the United States. I will not be enrolled in classes next semester. Instead, I have enrolled in a MBA program for the fall. I also have a B1/B2 visa in my passport. My question is what should I do in order to change my status from student to tourist? Do I have to go back to my country (which will be expensive)? Should I go to the Mexican border and reenter using my tourist visa? Should I go to a Colombian Consulate? To an INS office nearby? Or just stay until fall without changing my status?

Your question is somewhat confusing but I will try to respond to it. I assume that you are currently in lawful status as an F-1 and that you are eligible for B-2 status. I also assume that, because of the gap in studies until the fall semester, you will need some form of temporary status.

You can change your status to B-2 in several ways. You could file a change of status application with the INS from F-1 to B-2, but must stay in status in the interim. An application for such a change of status is made on Form I-539 to the appropriate INS Service Center. However, it may be quicker and easier to just leave the country and re-enter under your B-2 visa. As you already have a B-2 visa in your passport, you should be able to travel to Mexico (or any other place) and re-enter under B-2 status, provided that you are otherwise eligible for that category.

When it is time to change back to F-1 status, you can seek a change of status within the United States. While changes of status from B-2 to F-1 are looked upon with some suspicion, as you are only using B-2 to bridge the gap in your studies, it should be okay.