Category: Q&A

1. My Mother Overstayed Outside USA for 5 Years. Her Green Card Still not Expired. Can She Enter USA With Her Unexpired Green Card?

My mother is a US permanent resident w/ an UNEXPIRED green card but has overstayed outside the US for 5 yrs now. She is afraid that she might get held at the immigration office at the airport if she does fly over here to the US without a reentry permit. She was denied a reentry permit last time. The difficult Consul who interviewed her for the reentry permit in the Philippines told her that I have to file for a new petition on her, which I believe is ridiculous. I have a friend who’s mother had the same situation, and the mom was able to get thru the immigration border at the airport and was just given instructions on what to do (i am unsure if the mom had to pay penalty fees or what). I can get my mother to do the same and risk it, even if we have to just pay penalty fees. I just want her back here with me in the US.

Mr. Lee Answers:
You have hit the nail on the head as to the dilemma that permanent residents face who have remained outside the country for longer than the period of time allowed under the green card. It is the bother, cost, and time of waiting and filing a new petition as opposed to having the person come in and take his/her chances with CBP at the airport with the understanding that a refusal would either have the individual leave the US and surrender the green card or challenge the CBP decision in an immigration court. A loss there could subject her to an order of removal. You should discuss these options with your mother and see what is her tolerance level of risk before you both decide what to do.

2. My OPT Expires Oct 20th. Do I Have to Get TN At Border Exactly 1 Month Before OPT Expires or Can I Do TN When OPT Expires?

I graduated with my Doctorate of Pharmacy from an American college. I got OPT. I accrued 75 days of unemployment before finally landing a job (so I only have 2 weeks of unemployment left on my OPT before hitting that 90day mark for OPT). Currently I work on my OPT as a pharmacy graduate intern. I become a licensed pharmacist in April. I was told that I must go to the border 1 month before my OPT expires to get my TN visa. My OPT expires Oct 20th . I have 2 questions/concerns. 1- Am I allowed to continue working on my OPT until it expires then go to the boarder to get my TN( I want to work for my current employer on my OPT as a pharmacist before asking for TN support i.e work till Sept 20th before asking for TN support and going to the boarder) and 2- what happens if accrue more then 90days of unemployment? Do they have a way of checking that when I go to the border to get my TN visa?

Mr. Lee Answers:

There is nothing in the law that says that you must go to the border with one month left on your OPT in order to apply for a TN visa. It may be that some people believe that they might be able to reenter the US under OPT if the TN visa is refused if they have one more month left under OPT. Your second question of what happens if you accrue more than 90 days of unemployment during your time under OPT, it would probably be very difficult for an immigration inspector to have knowledge of that fact although he or she may ask you questions about the subject if he or she is so inclined.

3. How Can I Apply for L-2 – EAD Extension With L-1 and L-2 Extension Receipt Alone?

My L-2 and my spouse L-1 visa expired on July 12th 2019, extensions are in process now.  My spouse company applied my L-2 extension but they did not do my employment authorization document EAD (even requested). I heard that I can applied L-2 EAD extension with L-1 and L-2 extension receipt, is it so? How can I do that? I don’t have valid I-94 or valid visa on hand now, I have only the extension receipt.

Mr. Lee Answers:
To apply for an L-2 employment authorization in your circumstance in which the L-1 and L-2 extensions are pending, you would fill out the employment authorization form, I-765, and attach copies of the two receipts, proof of your marriage, and a photo ID.

1. Derivative Citizenship After 12/24/52 Requires A Green Card Holder to Be Unmarried Until His 18th Birthday?

Can you be married prior to 18 years of age for derivative citizenship after 1975?

Mr. Lee answers: 
To my knowledge, derivative citizenship cannot be approved for anyone who has married prior to 18 years of age. Otherwise, the individual is no longer unmarried and under the age limit, the two requirements for being a derivative.

2. DMV of Georgia is Not Ready to Renew a Driver License For a Legal Immigrant Working on H-1B But The Extension Is Still Pending

I am currently working on a work H-1B visa. My visa expired on July 10th 2019. As per your website, on providing an original I-797C along with the petition and I94/Current passport with visa stamp, my driver license should be renewed. As per DMV[Georgia] they require a stamped passport in order to renew a license, which never happens since the extension of the VISA comes as a new petition and not as a stamped VISA in the passport. So now even though I can legally remain within the country for 240 days[as per USCIS because of I797c]. I cannot drive legally. Please let me know why the rules made by DMV and USCIS are contradictory.

Mr. Lee answers: 
The reason for the disparate treatment of your situation by U.S.C.I.S. and DMV is that U.S.C.I.S. does not control local DMV’s. Some local DMV’s will respect the language on the I-797C of automatic extension of work authorization so long as the extension request is in the same class previously granted. However, it is left up to the local DMV’s as to whether they wish to respect the language.

3. Is There a Danger for Using B1/B2 Frequently?

 My friend was visiting the US on a B1/B2 Visa June 5th and left July 5th. She is coming back to help me get situated in my new home and to visit.

Mr. Lee answers: 
I will assume that your question has to do with the safety of your friend coming back into the country so soon after having left. Since your friend only stayed a month, a decent interval of a few months between leaving and coming back would probably be okay as long as there has not been a pattern of your friend frequently coming into the US.

1. I Am Married to a U.S. Permanent Resident. Do I Need to Wait 3 or 5 Years to Apply for Citizenship?

I got my green card Jan 2019 and I am currently living in the states. I am married to a permanent resident 7 years ago with 3 kids who were born in the States. My wife got her green card back in 2008.

Mr. Lee answers: 
Regardless of the time that you have been married to a permanent resident and the number of children that you have with her, the amount of time to apply for citizenship is five years unless your wife becomes a US citizen. Then you can count three years from that date and can file 90 days before the three years as long as you have both been living together without significant break during the three-year period.

2. Can I Apply for Asylum in the USA If I Have Poland’s Temporary Residence Card and Citizenship of Ukraine?

I would like to ask is it possible for me to apply for asylum in USA if I have Poland’s temporary residence card and citizenship of Ukraine?

Mr. Lee answers: 
Persons who have some type of legal status in a country other than the homeland of persecution would find it difficult to obtain asylum in the US. That is because no country wants to give an individual the choice of applying in that country when he or she could have applied in the first country. In your situation, you have a temporary residence card in Poland and unless circumstances exist such as your also having a fear of persecution in Poland, it is doubtful that you would have a successful case for asylum in this country. Other factors that could affect a decision could be whether Poland allows individuals to apply for political asylum and whether your status in Poland ended and you have no right to return to that country.

3. Can I Bring A Boy I Met on Facebook to the U.S.?

I’m a 58 years old man and I have this boy 19 years in Ghana that I met on Facebook we’ve been talking for 2 years now. We haven’t met physical but we always video chat. I see him as a son to me and I want to help him get here to live in the states with me probably continue his education here. How do I go about this to bring him here?

Mr. Lee answers: 
If the boy is a student at this time and you wish to have him continue his education in the US, you could possibly find a school for him that would issue an I-20, and send the I-20 to him with your affidavit of support including the form I-134 affidavit of support, job letter, banking statement, last year’s tax return, and a statement to the consulate or embassy concerning your relationship with the boy and why you would be willing to sponsor him for schooling in the US.

1. Tourist Visa While Awaiting for Green Card

I am an Indian my wife is USA citizen. We married in India 4 years ago. She has Indian overseas Citizenship. She is staying in India on and off. My immigrant visa is already in progress. Is it possible for me to get tourist visa to go and visit my wife?

Mr. Lee answers:
Whether you are allowed to obtain a tourist visa to visit your wife is a decision of the US consular officer when you make an application. The question is whether you would be trustworthy enough upon your assurance that you would return to India once the period of visit is over. If you decide to apply for a visitor’s visa, you should certainly put down on the visa application that your wife is in the US and has applied for you on a visa petition.

2. Can I Apply for a Green Card Without Being Sponsored?

I recently got my PhD from a university in the US and is starting my OPT soon. Will I be able to apply for a green card without having an employer to sponsor me?

Mr. Lee answers:
Other than the family based cases, asylum, visa lottery, and EB-5 immigrant investor, I assume that your question is more attuned to whether you can self-sponsor yourself through employment. Presently individuals are able to do so only if they are extraordinary in the field of endeavor or their immigration would advance the national interest. It is good to have a PhD, but under present law, it would not entitle you to an automatic green card. I do note that the Trump administration keeps attempting to change the immigration system to allow educated individuals like you to self-sponsor upon the attainment of a certain number of factors related to education and experience. Whether any such legislation will be enacted is questionable as the proposals have unfavorable aspects to Democrats and other immigration proponents. But we will be keeping our eyes on them the same as you, I imagine.

3. My Immigrant Visa Case Was Filed in 2005, Was Given a 221g At The Time of Interview.

 The case been updated in 2018 and now has returned to NVC.  What to do now?

Mr. Lee answers:
When a case is returned to the NVC, it is usually thereafter transmitted to U.S.C.I.S. which looks over the basis for rejection at the US Embassy or Consulate. If it believes that the reason was wrong, it could reaffirm the approval and send the case back to the US Embassy or consulate for further processing. If it believes that the post may be or is correct, it will send the petitioner a notice of intent to revoke the petition. Since you are complaining of an NVC return in 2018, you may wish to check with the petitioner to see if anything was received. If nothing was received, the petitioner or you should check on the case with the NVC to see what happened.

1. Marriage Fraud

How can I help my husband get back in the US? His I-130 was denied for marriage fraud, which he denies.

Mr. Lee answers:
If your husband has convincing evidence that he did not engage in marriage fraud, you can appeal the I-130 determination within 30 days with all proof of the bona fides of his marriage. If the evidence is not available in time for an appeal, you can file a new I-130 petition when he obtains the evidence, and include that in the I-130 submission.

2. Denied to Work

I am a Ph.D. F-1 visa student from India with a valid green card petition filed in 2009. I was given an assistantship at Wayne State University and the Office of International Student Services denied me to work because I did not have an EAD card. The last time I check the USCIS can only change my status or get work if my priority date in September 2009 comes up and they provide me an alien number, which they have not. Also, after I received my green card petition receipt notice in September 2009, I became out of status because the process took a long time. What can I do?

Mr. Lee answers:
If your F-1 visa status was never formally terminated by U.S.C.I.S. in a written decision or if you did not have the F-1 status terminated in the immigration court, you could possibly interview at the American consulate or embassy in your home country for an immigrant visa. You would not be barred from coming back unless either of the circumstances as described above occurred since the status of an F-1 student is duration of status without a fixed time limit.  At present, you are not considered under an unlawful presence bar if you leave and re-enter. The Trump Administration’s attempt to change the law of unlawful presence unfavorably in a memo in August 2018 was enjoined by the U.S. District Court for the Middle District of North Carolina on 5/3/2019.

3. How to Apply for My Husband who is an Illegal Immigrant?

If I marry an illegal immigrant can I get his green card without getting deported. I am disabled and he helps me a lot and he is going to be my husband.

Mr. Lee answers:
U.S.C.I.S. looks to see whether a marriage is bona fide in the sense that two people are committing themselves to a marital relationship. A marriage to Immigration’s eyes is not one in which one party is a nursemaid to another only in exchange for a green card. Assuming that the marital relationship will be bona fide, the chances of the undocumented spouse being deported depends upon whether the individual has prior criminal acts or has been in immigration removal proceedings. If not, the chances of the spouse obtaining permanent residence without being deported are good.  If the undocumented immigrant entered the U.S. legally with a non-immigrant visa or parole, he may be eligible to adjust status to permanent resident without leaving the country.  Otherwise he may need a waiver (I-601A) before traveling back to his home country for a consular interview.

1. How Long Does One Have to Wait for an Immigration Judge Decision on A Defensive Asylum Case?

I am an asylum applicant with a pending defensive asylum case. I have received a notice to appear in front of an immigration court. How long does the Immigration Judge take to give a decision? Is it the same day?

Mr. Lee answers:                   
Assuming that your appearance is for a master calendar hearing and not for a final merits hearing and depending upon whether your case is one of the “surge” cases that the government is interested in finishing immediately, your case could take anywhere from six months to four years for the immigration judge to hear the case and make a decision. I assume that you will be continuing your asylum claim in front of the court.

2. My brother Married a Venezuelan Woman Who Originally Was Here On a Visa That Expired 2 Years Ago

My brother is disabled and is currently on Medicaid, so he is not able to sponsor her and children. He has asked me to sign form I-864. I know this makes me legally obligated but can I also be held financially responsible if she or her children are admitted into a hospital without insurance and incur a bill? I want to know how far this financial responsibility goes.

Mr. Lee answers:
Your income and assets are deemed available to the person that you are supporting if that person is seeking means tested benefits on the federal, state, or local level. So any one of the three entities can request reimbursement from you to the extent of your income and assets that the immigrant has taken means tested benefits from them. However, that does not include individuals who obtain emergency Medicaid. While you would not be liable for emergencies, long-term care would be seen as a benefit recoverable by the federal, state, or local government branch which gave the benefit. I note that in the past, it has been unpopular for governmental entities to go after supporters of people who have taken means tested benefits, but this appears to be changing in the present political atmosphere as the Trump Administration is reportedly preparing regulations for governmental entities to enforce the I-864 support obligation.

3. How to Add One More Beneficiary in My National Visa Center Application?

I want to include my 10 year old son’s name in the NVC application.

Mr. Lee answers:
To include your 10-year-old son’s name in the NVC application, you can communicate by letter or email to the NVC expressing your desire to have your child included in the case. You can also include a copy of the child’s birth certificate and passport if one is available.

1. When Should I Leave U.S. if My Extension of Stay Is Still Pending?

Should I leave USA if my extension of stay is still pending? I am on a B1/B2 visa. At the end of September will be 1 year that I am in USA but I didn’t get yet an answer for my extension. Can I still stay in USA?

Mr. Lee answers:
If you wish to remain in the US legally, you have to file for another extension of your status even though the current application is still pending. Not only would you be considered technically illegal if you did not, but you might be in the unenviable position of having an approval which does not extend up to the date that you are still staying in the US, if the current extension request is ultimately approved.

2. DACA Violation

My fiancé violated her DACA program due to a very small amount of drugs.  Is it possible to marry someone who has violated the program? She is currently being held Louisiana pending hearing/deportation.

Mr. Lee answers:
It is always possible to marry persons who are single and of the right age to marry regardless of whether the person has criminal problems. The question is what you will be able to do for her immigration-wise when you are married, and that may depend upon your status, what kind of drugs were involved, and the amount in question. Also whether there was a “conviction” in the criminal court. Immigration law is very tough on drug offenders but does have a waiver provision for a conviction involving marijuana possession of 30 g and less.

3. Immigration Related Question

My sister and mother entered America on ESTA with British passport. They both overstayed their stay, my sister was minor at the time. For several years they entered America on ESTA until their ESTA was cancelled because US immigration found out the fact of their overstayed years ago. My sister now wants to marry an American citizen who is traveling to U.K. to marry her and they want to apply for green card for her. My mother wants to enter America as well through her other 3 children who are US citizens. What’s the likely hood of both to succeed?

Mr. Lee answers:
The likelihood that both will succeed is good so long as the marriage is bona fide. Having the ESTA canceled for an overstay may affect the individual’s ability to return to the US under ESTA or a nonimmigrant visa, but it should have no effect upon an immigrant visa petition based upon marriage or through a US citizen child so long as no misrepresentation was made at the time of ESTA entry.

1. Sneaked into U. S. and US-Born Child Now 21 – Can He Sponsor Me?

 I came into the United States illegally in 1995 through the Mexican border and was not caught. I have no criminal record and no problems with Immigration. I got married in 1998, but my wife was ordered deported. Our son is now 21. Can he sponsor me for the green card? I also have 2 brothers who are U. S. citizens, a sister who lives in Thailand, and my mother in China.

Mr. Lee answers,
Unless you qualify under §245(i) under which you had to have a visa petition or labor certification filed on your behalf by January 14, 1998, or between January 15, 1998 – April 30, 2001 with the additional requirement of being physically present in the U. S. on December 21, 2000, you are not adjustable to permanent residence in the U. S. even though your son is a U. S. citizen. However, you may still be able to qualify under the I-601A program for a provisional unlawful presence waiver if your son sponsors you for permanent residence and your mother immigrates. That is because you can only obtain a waiver of the 10 year bar for staying illegally in the United States at least one year through a U. S. citizen or permanent resident spouse or parent. So in this case, one of your brothers would have to sponsor your mother, and she would have to immigrate. You would also have to demonstrate that it would cause her extreme hardship if you could not return to the United States. The steps are that your son would sponsor you through an I-130 petition for alien relative, and once approved, you would file for the I-601A waiver in the U. S. based on extreme hardship to your mother. Once that is approved, you would go through regular consular processing and be interviewed at the American consulate or Embassy in your home country where you would be treated like any other immigrant visa applicant. The usual time outside the U. S. is 1-2 months.

2. Late to File I-751 Application to Remove Conditions on The Green Card Through Marriage, What Can I Do As I Am Now in France?

I received my conditional green card through my husband and we have a good marriage. However, he has to work in San Francisco, and my job is in France. We communicate a lot together, and he sometimes visits me in Paris and I go to San Francisco. I just noticed that my conditional green card has expired for 2 months and I forgot to file the I-751 application. What should I do now? I still need to work in France, but would like to travel back and forth during the next year. How can I do that?

Mr. Lee answers,
It may be possible for you to file a late I-751 petition with good explanation to U.S.C.I.S. as to why the petition is late. It will be up to the agency whether to accept the excuse or not. You and your husband should attach all evidence of the bona fide marriage and why you are living apart at this time. You will be scheduled for biometrics and will have to return to the States to fulfill the appointment. Generally you would need a travel document since the green card is expired, but in looking at the special instructions for the I-131A Application for Travel Document (Carrier Documentation), U. S. Customs and Border Protection (CBP) will generally allow expired two-year green card holders to return to the U. S. if they have the form I-797 notice of action showing that they filed the I-751 application and have been outside of the U. S. for less than a year.

If you have no good excuse, and since you and your husband still have a good marriage, you and he may decide in the alternative to have him file a new case for you beginning with the I-130 Petition for Alien Relative, and you would have to likely remain outside the U. S. until you pass your immigrant visa appointment at the U. S. consulate or embassy.

3. Received H-1B Change of Status Beginning 10/1/19, OPT Expires in July, and I Want to Travel in August – Are There Any Risks?

My employer-sponsored my H-1B petition in early April, and we were happy to have it approved this month. The approval says that it is good from October 1 for about 3 years. My optional practical training (OPT) runs until July 15, 2019. I am planning to return home to India in August for my cousin’s wedding for a week. Can I do that and come back immediately? If not, can I at least visit Canada in that month or early September just for a holiday before I begin to work?

Mr. Lee answers,
You are on cap-gap status which allows you to work in the U. S. until 9/30/19 since your H-1B petition was selected. However, that does not give you the right to travel by itself. You could possibly travel home prior to the time that your OPT expires with valid EAD and proof of employment, but not afterwards. If you travel home in August, you would have to stay overseas until you obtained the H-1B visa and return within the 10 day period prior to October 1. On your desire to take the trip to Canada in August or early September, I see your thinking that you should be able to do that as you are technically still in F-1 status and through automatic revalidation allowed to travel to Canada or Mexico or some Caribbean islands for up to 30 days and return without having a valid visa in the passport. However, you are in the grace period, and that period of time is regarded as one for departure, not reentry to the States. ICE instructions (ICE now manages the SEVIS program) are that reentry under those circumstances is not allowed. There is a chance that CBP may admit you with a waiver if you did not know that you could not travel during the grace period, but I do not recommend that you try that.

4. Father Sponsored Me in July 2014 As Unmarried Son of a Permanent Resident And The Dates of Filing Chart Has Been Reached, But The Petition Is Not Approved. What Can I Do?

I am a PhD student with F-1 status.

Mr. Lee answers,
The visa chart for dates of filing (Chart B) in July 2019 is available for those who filed petitions under the F-2 B category prior to 8/15/14. U.S.C.I.S. has stated that it will accept the dates of filing for the month. On or after July 1, 2019, you can file an I-485 application for adjustment of status to permanent residence with U.S.C.I.S. even though your petition is not yet approved. You should attach a copy of the I-797C notice of receipt along with all the other documentation and forms.

1. I Am Being Sued in My Home Country

I am being sued for bouncing checks in my home country. My family owns a business and I used to be a partner before I move here. Now the business is not going good and I’m being sued for bouncing checks.  Bouncing checks is felony crime in my home country but it’s from business matter..not a fraud or anything illegal. Will that be an issue when I renew my green card?

Mr. Lee Answers:
To be considered a crime for U. S. immigration purposes, there has to be an equivalent to the crime under U. S. criminal laws. However, that being said, you could very well spend a lot of time and energy in showing that there is no equivalent if it becomes an issue with U.S.C.I.S. when you renew your green card or with CBP when you return to the U. S. after a trip abroad.

2. Do I Have to Register for Selective Service If I Have a Valid I-20 (F-1 Student) But My Visa Is Expired?

I am an international student on F-1 visa in the U.S. and I have a valid I-20 until 2020.  But my visa has expired since I did not leave the country to get it renewed. Do I have to register for selective services?

Mr. Lee answers:
Individuals who are holding valid nonimmigrant status in the US are not required to register for selective service in the US. In your case, you would be maintaining legal nonimmigrant status if you had a valid I-20 and were still attending school on a full-time basis. Expiration of a visa is of no account as the visa is only good for traveling back and forth.

3. When Did I Start Accruing Unlawful Presence?

I was an F-1 student but I withdrew from school in November 2018 due to illness. I have stayed in the US ever since. In February 2019, I submitted a case with USCIS for reinstatement of my F-1 status but was denied in May 2019. I filed a motion within the time frame given. It’s been almost 3 months and I still have not heard back from them. I’m still staying in the US. I want to know whether or not I have accrued unlawful presence? If so, since when?

Mr. Lee answers:
Unlawful presence for you begin accruing in May 2019 when U.S.C.I.S. denied your F-1 reinstatement request. For an individual like you with a visa marked duration of status, unlawful presence only begins when you receive formal notice from U.S.C.I.S. of a denial or a negative decision by an immigration court.  If you win the motion, there is no unlawful presence. The Trump Administration’s attempt to change the law of unlawful presence unfavorably in a memo in August 2018 was enjoined by the U.S. District Court for the Middle District of North Carolina on 5/3/2019.

1. Can I Change of Status From Tourist Visa to Student Visa?

I came from Hong Kong 3 months ago to visit friends in the U. S. and was just about to go back when I looked at this school and was interested in their arts program. My stay does not expire for another 3 months. If I obtain an I-20 school acceptance form from the school, can I change my status in the United States to F-1 student rather than going back to Hong Kong just to interview for the F-1 visa and come right back? It would seem like quite a waste of time and expense for me to go out and come back in.

Mr. Lee answers,
If you are fairly certain that you can obtain the F-1 visa at the American consulate overseas, that may be the better choice regardless of the extra time and expense. That is because U.S.C.I.S. processing times on change of status to F-1 student are uncertain, e.g. Vermont service center processing times are 6.5-8.5 months/California service center 2.5-4 months, and the agency many times does not adhere to these timelines. During the time of processing, U.S.C.I.S. insists that persons in the U. S. on B-1 or  B-2 statuses keep maintaining those statuses through extension until the agency makes a decision on the change of status request. In addition, you are not allowed to go to school until the time that the change of status is approved. Finally a change of status is not a visa, and if you leave the U. S. at any time in the future, you would have to interview and receive a F-1 visa in your passport even if you had a change of status with U.S.C.I.S. An exception to the requirement of obtaining a new visa for F-1 students who received a change of status would be those taking trips to Canada or Mexico or the Caribbean islands (not Cuba) for 30 days and less.

2. I Am Worried About My Political Asylum Application That I Filed in December 2017 – Is It Lost?

I filed my political asylum application with the Vermont service center of the U.S.C.I.S. in December 2017 and received a receipt. Soon after, I was asked to do fingerprints and photographs. Since that time, I have heard nothing, and am worried that my case is lost. What can I do?

Mr. Lee answers,
You can now check your case online with U.S.C.I.S. As of January 2019, the agency is allowing affirmative asylum applicants (those who apply for the first time at U.S.C.I.S. and not the immigration court) to check their cases online through the U.S.C.I.S. online status system – https://egov.uscis.gov/casestatus/landing.do.  You can input your asylum receipt number (it begins with 3 letters and the first letter is “Z” followed by 10 numbers). Although it may not give detailed information, it will generally give an idea of where your case is at in terms of action.

3. A Company is Offering to Change My Visitor’s Visa to H-1B Specialty Worker – Can It Be Done Now?

I came to the U. S. in February under a visiting visa and was given 6 months to stay. A friend of a friend recommended me to a company which said that they could get me an immediate H-1B visa status. I was surprised because I thought that companies could only do this in the first part of April every year under some type of selection process, and it is now June. The company said that they were exempt because I would be placed on the campus of a college to take care of some of the software development necessary for the school’s IT system. Is that possible?

Mr. Lee answers,
There is indeed an exception under the circumstances that you describe above. Under the rules, a college is an institution of higher education exempt from the requirement of having to file H-1B’s under the April selection process. A private employer can qualify for the institution’s exemption when it places workers on campus. The factors that U.S.C.I.S. looks at are that the majority of the worker’s duties must be performed at the qualifying institution, and the job duties must directly and predominantly further the essential purpose, mission objectives or functions of the qualifying institution. In your case, performing software development to improve the school’s information systems would appear to help the functions of the college. (I note that there are other issues that U.S.C.I.S. examines with reference to third-party placements, especially in the computer area, such as whether this is a specialty occupation and whether there is sufficient petitioner control over the worker who goes onto a third-party site – but I imagine that those are issues for another day).