Entries from Rajiv's Blog

Here is a series of questions that should be relevant for many people:

Quote: I’ve been having a whole lot of sleepless nights trying to ascertain facts from fiction relating to AOS, job change, job loss etc. I have poured through your blogs and posts and have the following questions.
Situation: On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed.

1. What is the real value of CIS issuing EADs to people like me?
a. Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Yes.
Quote: b. Does having an EAD permit me to work multiple jobs? Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).

Quote: 2. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go:
a. Am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? Correct. You are in authorized period of stay. That has been explained in my blog.

Quote: b. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).
Quote: c. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.

Quote: d. Do I lose EAD and AP? No.

Quote: e. My wife is working using her EAD…will she lose her EAD? No.

Quote: f. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.

Quote: g. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed? Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

Here is a question from our clients-only extranet that I think is on the minds of many people.

Quote: Hi Rajiv,
Recenlty we submitted my NOID response for my 485 through u'r lawfirm.
Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned i have 2 I-140s in my file
1.EB3 PD,2002
2.EB2 PD,2005.
They said which date first current then that 140 will use.

I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now.

Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Pl Advice. I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD your are entitled to.

I am responding here to a question from Immigration.com


How to Assist Family Members in Applying for B-2 (Visitors/Tourist) Visa
There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often a friend or a family member (who is in the U.S.) of the applicant may be required by the consulate to provide Form I-134, Affidavit of Support.

Once a visa is obtained, the visa holder can travel to USA. Assuming, they travel by air, INS (actually, CBP) will grant them stay at the airport. The usual period of this stay is 6 months. Extension is possible but is usually not advisable. Visa duration governs the time within which someone can land in USA. I-94 (issued by INS (CBP) at the airport) governs how long they can stay in USA. So for example if your visa is expiring tomorrow and you flew into USA today. INS (CBP) has given you an I-94 expiring in 6 months, you may stay in USA for 6 months.


FREQUENTLY ASKED QUESTIONS
-----------------------------------------------
Q. In filling out Form I-134 form (Affidavit of Support), If you look at the question No.1. It says are your Citizen...., or permanent resident of US. It has no column says are you H1B etc. What should I do here. Should I leave this column or do something else please guide me.
A. Hand write or type next to it "H-1B Holder"

U.S. Labor Department recovers more than $1.4 million in back wages for 237
contract employees of USCIS Vermont Service Center
BOSTON — The U.S. Department of Labor has recovered more than $1.4 million in back wages for 237 employees
of Computer Sciences Corp., a contractor for the U.S. Department of Homeland Security's U.S. Citizenship and
Immigration Services Vermont Service Center at various locations in St. Albans and Essex Junction, Vt.
Computer Sciences Corp. employed contract workers at the Vermont Service Center between Dec. 1, 2005 and Nov.
30, 2007 under federal service contracts subject to the McNamara-O'Hara Service Contract Act's prevailing wage
provisions. Following an investigation, the Labor Department's Wage and Hour Division cited the company for
misclassifying employees and failing to pay them the proper prevailing wage rates for the type of work they were
actually performing.
"The laws governing prevailing wages on federal contracts grant clear protections to workers, and the Labor
Department will continue to ensure companies are following the rules," said Secretary of Labor Hilda L. Solis.
The company agreed to pay a total of $1,448,505 in back wages to 237 workers. Payment is to be made by Oct. 31,
2009, and proof of payment is to be provided to the Wage and Hour Division by Dec. 13, 2009.
The McNamara-O'Hara Service Contract Act requires contractors and subcontractors performing on federal service
contracts in excess of $2,500 to pay service employees no less than the wage rates and fringe benefits found prevailing
in the locality for the classification of work that they perform.
----------------------------------
Quote: Note folks, it is important for employers to classify all employees under the correct designation and under the correct level (Level - 1- Entry level/Developmental; Level 2 - Competent; Level 3 - Senior/Expert; Level 4 - Lead).

PLEASE CONFIRM THE FOLLOWING INFORMATION WITH THE U.S. CONSULATE CLOSEST TO THE PLACE OF RESIDENCE IN YOUR HOME COUNTRY. LAWS ARE SUBJECT TO FREQUENT CHANGES
QUESTION
1) If the Child is born in India and we have the GC by that time, is there any way the child can travel to US?
ANSWER
Your child may accompany you or travel with you to the U.S if the following conditions are met:
a) the child has a separate passport;
b) has a birth certificate from the corporation, municipality or a registrar of births and deaths (please note hospital records are not adequate)
c) the child accompanies the immigrant mother or father upon her or his return to the U.S following the birth of the child
d) the child is under the age of two years
e) the immigrant mother or father has a valid Form I-551 or I-151, alien registration receipt card (in short called green card), or Form I-327 (permit to re-enter the U.S.) valid for two years from the date of issue.
If the above are satisfied then the child may accompany you into U.S without a visa.
Following admission to U.S contact the nearest CIS office to regularize the stay of the child in U.S.

A Reader's Experience (May 2005)
-------------------------------------
Dear Mr. Khanna!

Hope things are well.

As per our last conversation, I am providing this information relevant to bringing a child (born outside US) by a GC holder with RE-ENTRY PERMIT.

- AT Toronto the Immigration Officer said that he cannot let the child into the US without a “status” even though she is a Canadian Citizen and he referred me to the USCIS office on-site
- The officer in the office asked me how I was planning to bring the child into the US. I told her that I had spoken to my lawyer and he had advised me that a child under 2 years can accompany me back into the US and then I can file for her GC/adjustment of status in the US. The officer said that she cannot let the child into the country without a status, she needs to have a status, she said to wait and she would see what she can do.
- After a while she came with another question asking my wife when she had last been to US. My wife told her June 2004. She was confused whether my wife had been to US after my daughter was born. I explained to her that No, my wife had been to US before my daughter was born. The point was that – if both parents had been to US after the child was born (without the child) then the officer would not be able to file for her adjustment on the spot.
- The officer took some more time and took some pictures also of my daughter and basically filed for the GC of my daughter on the spot and stamped her passport with the temporary GC stamp valid for a year and told me that the card should come in 3 to 4 months
- She also advised that the child should not leave the country before getting the card.

I hope the above is useful to you and your clients.

Mr. Khanna, I would like to thank you and your staff for your genuine help and advice for my case and at no charge. I hope that you continue to do well and provide genuine help to people. I will definitely like to utilize your services for my future needs and would recommend you highly to my friends and family.

We are surprised and pleased at the speed of two recent EB-1 approvals from Texas Service Center. Both I-140's were filed premium and with concurrent I-485. Despite I-140 RFE's, green card approvals took less than 3 months.

Here is a question from one of my Facebook friends:

Quote: How can someone get a extension on drvers license if his H1B extension is pending and I-140 is approved in Georgia??? What go you suggest someone should do in such a situation? I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

As a result of a Freedom of Information Act request, ICE has released some details of its policy initiative known as “Worksite Enforcement Strategy.” There is nothing here that we do not already know from experience but the key ideas according to ICE are:
1. Criminal prosecutions of employers is a priority and an efficient method of enforcing the laws, so it will continue as will deportations of employees and civil and administrative penalties (such as fines and debarment);
2. ICE will target owners and management personnel for investigation and criminal prosecution;
3. Employers who are in government contracting should be should be visited with “significant consequences” through debarment from federal contracting.

I am in the process of answering several questions on http://www.immigration.com/recent-comments

I have updated:

Several comments on http://www.immigration.com. You can see them on the home page and also here:
http://www.immigration.com/recent-comments

Cases from our files. You can see that also on the home page or here:
http://www.immigration.com/tracker

Several comments from out clients on our extranet http://clients.immigration.com (This is for clients only).

I have updated:

Several comments on http://www.immigration.com. You can see them on the home page and also here:
http://www.immigration.com/recent-comments

Cases from our files. You can see that also on the home page or here:
http://www.immigration.com/tracker

Several comments from out clients on our extranet http://clients.immigration.com (This is for clients only).

I have updated several comments on Immigration.Com. For a chronological listing, visit:

http://www.immigration.com/recent-comments

As of 28 August 2009, USCIS has received 45,100 cap cases and 20,000 advanced degree cases for H-1B classification. Cases are still being accepted for filing.

Here is a question from a member of our community:
Quote: My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business.

1. How does it effect my H1B visa and GC application (filed I-485 - pending)? If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

Quote: 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? An amendment should be filed, though it is debatable if it is required.
Quote: 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application? In my view, AC21 port is easier.

One of our community members has left a comment on Immigration.Com. Here is the explanation.

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

Here are some questions from one of our clients, which I thought would be of interest to the community.

Quote: Q1 - I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do you think I should travel back to the country with valid AP or H1? Which one is more preferable? I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on this blog.
Quote: Q2: Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? No. See answer above.
Quote: Q3: How long is AP processing taking these days? It is impossible to predict times. Plan for a six-month turnaround.
Quote: Q4: All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.
Quote: Q5: Please list out all the documents that I should carry while traveling? Advance Parole and Passport.

I am quite surprised to see that ours was one of the ten most watched videos on C-Span. See this link:
http://www.c-spanarchives.org/librar...d&rank_time=at

The video is "Summer Worker Visas."

I had forgotten about this show I was on in 2004. In May 2009, I discovered this video and posted it in May 2009. Between then and now (in about 4 months), you all have watched this video over 66,000 times. Either your find it hard to sleep or the subject of immigration is of interest to very many people. :-) This is most encouraging. Thank you.

Track how President Obama is spending his time (what issues are being taken up):

http://projects.washingtonpost.com/potus-tracker/

Here are some questions from our clients-only extranet:

Quote: 1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? Ans. There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

Quote: 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? Ans. You can behave like you would in any other permanent job - take vacations, etc.

Quote: 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer? Ans. That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

The following FAQ should cover the issues.

Quote: Q. I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? A. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.

The tricky thing is, intent being a state of mind, can only be inferred from circumstances. If intent ever became an issue, INS may look at how soon after entering a green card was applied. Obviously, the more time has elapsed, the better the case is.

Once the I-130/I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site at: http://www.immigration.com/node/1412/
Quote: Q. My parents' I-130 application is currently pending. They are currently living in their home country, India. I have they following questions: Quote: Q. Can they visit me during the pendency of the green card application? A. Maybe. If they already have a visitors visa stamp on their passport, they should be able to visit. Chances of INS (CBP) sending them back from the airport are probably small. But if they will be applying for a tourist visa (also known as visitors visa) now, they may be refused the visa by the US consulate because they have exhibited immigrant intent. In that case they will have to wait until they receive their green card approval.

Quote: Q. Is it better to apply for adjustment of status or consular processing for the last step of their green card? A. In terms of legal effect - they are both the same.

Consular processing is faster (as of May 2002 taking about 3-5 months to completion).

For persons outside USA, consular processing is the only option. Once the I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site. See link in the question above.