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Immigration Issues/Sibling I-130 petition, adjustment and travel in and out of the US

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Question
My brother has become a US citizen through marriage and is considering filing a petition for permanent residency for me.  I am a Kenyan citizen and am currently here in the US on an F-1 visa.  However, I plan to complete my studies in December, leave the country, and reapply for another F-1 visa to attend law school in September 2010.  If my brother submits the petition while I'm here and then I subsequently leave while waiting for approval (which, I know, can take several years), will I be able to return on a visa?  I know that one of the questions asked on F-1 visa applications is "Has Anyone Ever Filed an Immigrant Visa Petition on Your Behalf?"  Will this work against me?  
Thanks in advance for taking the time to respond to my question!

Answer
Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Hi Bella,

Good question.  The answer to this is not very clear, but it involves the concept of "dual intent," which the Embassy in Kenya will look at before they issue you another  F-1 visa to attend law school.

You must answer the question, "has anyone ever filed an immigrant visa petition on your behalf" truthfully.  You can't lie to the Embassy, but in doing so, the Embassy may question whether your intent for the F-1 is true and genuine, ie whether the F-1 visa application is truly one in which they should grant, knowing that although you are waiting for your brother's visa petition to ripen, you are an F-1 visa holder are still only seeking admission to the US for the single, one, and temporary purpose of studying, then leaving the US.

F-1 visas are considered a "single intent" visa.  Meaning that you can have only one intent in asking for the F-1.  To study.  Then you'll leave the US after your studies are complete.

Other visas, like an H-1B, or an L-1 are considered "dual intent" visas where someone has a temporary intent to come to the US for temporary work, but if they evidence having applied for a greencard or other long-term permanent intent, that is acceptable.

As with all consular interviews, you need to be truthful and honest.  How you answer your questions in line with an F-1 interview as a "single intent" visa seeker is up to you.  It is not impossible, but you have to show that even with your brother's visa application, you are still only coming to the US to study.  Nothing more.

Good luck in law school.

Good luck,
Eileen Chun-Fruto
www.fongandchun.com
www.immigrationvisaattorneyblog.com
http://www.superlawyers.com/california-southern/lawyer/Eileen-Chun-Fruto/e5bf6f7

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Eileen Chun-Fruto

Expertise

I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).

Experience

I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Organizations
Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

Education/Credentials
J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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