My sister , who is a U.S citizen, applied for me last year May 09. I am presently in touch with immigration to change from J1 to f1. I however am interested in knowing if my sister can file an affidavit of support for me so that I do not have to leave the states until I am able to get my green card?
Unfortunately your sister's petition does not confer immediate benefits. That means you will have to wait for a long time before the greencard number becomes available to you. Then you have the issue of shifting from J1 to F1 (need to check if you need a waiver). Also because your sister filed a petition for you, the F1 might be denied because of the immigrant intent. I will highly recommend that you speak to a good immigration lawyer before you do anything.
Founder and Managing Attorney of Shah Peerally Law Group PC
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4th Preference Visa Has Long Wait: Your sister sponsored you as a fourth preference Family-Based immigrant visa. This category currently has about a 10-Year wait before you will be eligible to receive a green card based on her petition. (The Dept. of State lists the waiting period for each category of visa in the Visa Bulletin each month at http://travel.state.gov/visa/bulletin/bulletin_1360.html .)
Non-Immigrant Visas and Immigrant Visas Don’t Mix (most of the time): Most non-immigrant visas, including J, F, B, and others, require “non-immigrant intent,” a showing that your visit to the US is temporary and you have the intent to return to an un-relinquished home outside the US. On the other hand, immigrant visas (green card visas) require “Immigrant Intent,” a showing that you intend to come and stay in the US on a permanent basis. There are a few non-immigrant visas that permit dual intent – they permit such as H and L visas. Generally, the US Government does not look favorably on cases where applicants indicate both immigrant and non-immigrant intent (ignoring the practical reality and legally correct position that one could come for a temporary purpose and be open staying permanently if they can legally do so). For this reason, caution and thoughtful strategy must be used when considering non-immigrant applications, extensions or changes of status and the filing of immigrant visas petitions. You must also avoid any implication of misrepresenting the facts of your case and may have to disclose the fact that your sister has already sponsored you for a greencard.
Change of Non-Immigrant (F) Status: Among other requirements, requesting a change of non-immigrant status requires the following:
• Compliance with your prior nonimmigrant visa
• No unauthorized employment
• Apply for the extension prior to expiration of your prior visa period
• Proof of eligibility for the new visa (F student must show acceptance into the school and an I-20)
• Proof of on-going non-immigrant intent
• Proof of ability to support yourself and pay the costs of the intended activities without a violation of status (F students must show they can pay for housing, food, living expenses and tuition without working without authorization). Your US Citizen sister and her husband may be able to provide an affidavit of support and proof of assets and income for this purpose.
Some other important issues to consider in your case include:
• Is your J visa subject to a 2 year foreign residency requirement
• Is there any chance the USCIS could find misrepresentation in your prior applications or entries into the US (J visa application)?
• Did you comply with your J visa?
For the above reasons, I recommend that you consult with an experienced immigration attorney.
Matthew R. Glinsmann
GLINSMANN & GLINSMANN, CHARTERED
12 Russell Avenue │ Gaithersburg, Maryland 20877