US Immigration Questions

  1. Thursday, 5...
    Question: I heard your community conference call for 1st December, you mentioned that even though the approved I-140 is withdrawn by a previous employer after 180 days of approval we should still eligible for H1 extensions with a new employer. My question here: is it required that new employer need to file labor and I-140 in order to apply for extensions or can I just keep on applying for H1B extensions based on my first I-140 approval?
    Answer:

    You can keep applying for H-1B extensions based upon a valid I-140 approval from an old employer. The new employer does not have to file. But if you want to get a green card, some employer will have to restart the process.

  2. Tuesday, 3...
    Question: If I may verify the processing times involved in NIW. Since it falls under EB2 category, I am assuming it may be a long time before I can get my EAD card and be able to change employers. Also, I want to confirm if there could be issues if I change employers during the process - If so, I'd prefer to change my current employer before starting with it.
    Answer:

    You can change employers any time if you are a self-applicant and will continue to work in your stated area of national interest.  But NIW priority date will take the same time as a normal EB-2 application does.  See: http://www.immigration.com/visa-bulletin under employment-based category 2.

  3. Tuesday, 20...
    Question: 1. Planning to transfer from H1B to H4, I-140 approved with Jan2015 priority date. Can I keep the priority date after I change to H4? Intend to come back to H1 after few months. 2. Currently I'm 7 months pregnant and I work for a consulting company (employer) on H1B visa, Can I take maternity leave on H1B? If yes, for how long? will it be a paid or unpaid leave? If not do I need to convert status from H1B to H4? If yes, can I change it back to H1B and work again or need to apply for a fresh visa?
    Answer:

    Here is an interesting question, if I am on H-1 and I convert to H-4, does that kill or affect my priority date ? Answer is no. If you were on H-1  and you had filed a Green Card, you got a priority date and I-140 was approved now you changed to H-4 that does not kill your priority date. That's not the problem.

    And the second part of the question was can I take maternity leave on H-1?

    Yes, absolutely. How much you can take that depends upon the State law, so the Federal law and the state law combined that's the best way to decide. So the maternity leave definitely allowed and sometimes if in addition to maternity leave if some have medical necessity and you need to take more time off , you should be able to do as well and you would be considered to be on H-1 and you don't need to convert to H-4   for maternity leave reasons but you can do that also and you can convert back to H-1 later on.  

  4. Tuesday, 20...
    Question: My I 140 is approved in 2013 and H1-B 5 year and 3 months are completed. I have important question , after 17 Jan 2016 , my any chance I loose my job and my employer revoke my H1-B and I 140. 1. Will I get some time to find new job and new employee to transfer my H1-B ? 2. after my employer revoke my H1-B what is time line I can still transfer my H1-B visa with new employer?
    Answer:

    Government will sympathetically consider unexpected layoffs and should give you consideration up to 60 days each H-1 period. So one 60 day period let say you have taken and then changed your employer another 60 day period kind of like that and there is little more to it but each time there is new validity to H-1 . You will be able to get 60 more days.

  5. Tuesday, 15...
    Question: My spouse is currently working on F-1 OPT or H-1 status. How can he/she change to H-4 status and obtain H-4 EAD without a gap in the ability to work?
    Answer:

    We have received several requests about how to ensure there are no gaps in a spouse’s ability to work when converting from another work status (such as H-1) to H-4 EAD.

     

    The short answer, as of now (November 2016) is that here is no way to guarantee that there will not be any gap in a spouse’s ability to work.  The problems arise from the fact that there can be a gap between change of status to H-4 and receipt of EAD.  The law requires that EAD must be approved and the EAD card must be in hand for the H4 holder to work. 

     

    To illustrate some of the scenarios we have been asked to comment upon:


    Question: My spouse is currently working on F1 OPT or H1 status.  How can he/she change to H4 status and obtain H4 EAD without a gap in the ability to work?

     

    Answer: There is no way to ensure there will be no gap between the current employment authorization and the H4 EAD approval.  The H4 and H4 EAD petitions can be filed concurrently, but USCIS has not been adjudicating them at the same time.  First, USCIS adjudicates the H4 petition, after which they start working on the H4 EAD petition.  As the H4 EAD generally takes about 90 days to be adjudicated, it is best to anticipate H4 EAD approval about 90 days after the H4 approval.

     

    It is possible to request a future start date for the H4 status.  The hope would be that by the time the H4 status becomes effective, the H4 EAD is also approved.  But again, there is no way to guarantee the time frame. 

     

    Question: My spouse entered the US on H4 status.  How soon can the H4 EAD be filed and how long will it take before he/she can work?

     

    Answer: The H4 EAD can be filed as soon as the spouse has arrived in the US on H4 status.  Because, the USCIS is taking about 90 days to adjudicate the H4 EAD petition, your spouse is likely to be able to start working in about 3 months after the EAD petition is filed. 

     

    Question: We need to renew my H1 and my spouse’s H4 and H4 EAD.  Would it help the EAD to be issued faster if we file the H1 petition through Premium Processing?

     

    Answer: Possibly.  There is no Premium Processing option for H4 or H4 EAD, but as a courtesy, the USCIS often tries to adjudicate H4 and H4 EAD petitions at the same time as the Premium Processing H1 petition.  There is no guarantee that the USCIS will adjudicate the H1, H4 and H4 EAD at the same time.  It is possible that only the H1 will be adjudicated under Premium Processing, and the H4 and H4 EAD will be adjudicated in the normal queue.

     

    Question:  My H1 does not need to be extended, but my spouse’s H4 and/or H4 EAD do need to be renewed.  How can the petitions be filed so there is no gap in the H4 EAD authorization to work? 

    Answer: It is critical to file these petitions early.  The H4 renewal can be filed 6 months before the current H4 expires, and the H4 EAD can be filed 120 days before the current H4 EAD expires.  While it is not a guarantee that there will be no interruption in the work, early filing is the best option to provide the USCIS with enough time to process the petitions.

     Click here for Rajiv's blog entry on H-4 EAD Rule

  6. Wednesday,...
    Question: What happens to existing/pending green cards?
    Answer:

    Nothing. The process continues.  Changes in laws are not retroactive.

  7. Wednesday,...
    Question: I recently moved from Company A to B on July-2016 as a contractor while on i was on my 6th year H-1B visa. Company B did my H-1B transfer and I-140 got approved through them as well. Now working at End client location placed through Company B. Now End client wants to hire me as Full Time employee.<br> 1. Given I recently joined Company B will my jumping to Company C cause any issue to my H-1B visa? <br> 2. Can company B cancel my H1B petition?If Yes, Do i have to have a approved H-1B petition from Company C before informing Company B about the offer?<br> 3. Will my I 140 which got approved thru company B still be valid? Can i use it for future extensions of H-1B?<br> 4. Company B did not provide I-140 copy, how to obtain the same from USCIS?<br> 5. Is there any mandatory period to serve in one company who has sponsored my GC as I recently got my I-140 approved in August-2016?
    Answer:

    FAQ: Issues regarding changing jobs while on H-1:-- Is there a minimum time gap necessary to transfer H-1 from one job to another, change jobs, timing of resigning and joining


    Video Transcript:

    1. The answer is of course not. There is no requirement that there must be a certain gap between when you went from one H-1 to another. So if you move from A to B and 10 days later decide to move from B to C that is not illegal. The law permits you to do it. 

    2. If they don't cancel your H-1B they are considered to be still the employer and they can be required to pay your salary. As for the second part of the question, no, but you have to have a filed petition. This is important. You have to have your second case filed before the first case if revoked.

    3. Yes, your I-140 which got approved through company B will still be valid and yes you can use it for future extensions of H-1B. If company B wants to keep your I-140 they can. You will have to start your green card all over again but you should be able to use your priority date with the old I-140 approval.

    4. One of the ways you can get a copy of I-140 is through FOIA request which is I think the form G-639. When you file a 639 it is a free form without fees. Government then gives you a copy of your immigration paperwork.

    5. There is no mandatory period that you have to work with a company after getting your I-140 approved. More...

     

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  8. Friday, 30...
    Question: I have been in US for the last 8 years and got GC employment based 3 years ago. I have 15 and 21 year old sons. My wife and I have differences on who manages my finances. I am thinking about applying for divorce. Just wondering whether divorce would have any impact on obtaining citizenship (either for me or my wife and children).
    Answer:

    Watch Video: Effect of divorce on employment-based immigration

    Video Transcript:

    Divorce is a civil proceeding that has no consequences on immigration once you have obtained your immigration.  But in another situation if a I-485 was pending and before the I-485 could be approved the parties were going to get divorced you would have consequences because then the derivative spouse cannot really receive the immigration of the primary applicant that becomes much more complicated. More...

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  9. Monday, 12...
    Question: My query is that whether my name which was sponsored by an IT company and come under quota (in 2008) could still be considered to remain as 'VALID' and 'UNUTILISED' under the year 2008 quota (and initial period 2008-2011). As no stamping of H1B took place in 2008, then can this be UTILIZED by any new employer/sponsor (under the 2008 quota) but with the validity starting from the date of stamping (e.g. 2016) and till subsequent years (as applicable). Can we say that this would be a case of stamping based upon PREVIOUS quota/approval and any new sponsor would NOT require to file a fresh H1B petition. So, only some MODIFICATION of the 2008 petition documents would required to be made by any new employer/sponsor.
    Answer:

    Watch Video : Am I exempt from H-1 quota if visa was not stamped

    Video Transcript:

    Rightly or wrongly USCIS has been saying that if you are outside the USA and you do not get your visa stamped we do not consider you to be exempt from the quota. Chances are they are going to make you file for fresh quota. More

     

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  10. Thursday, 1...
    Question: I have a second degree in Nursing from the University of Alberta, Canada with a 6 yr continuous employment in Psychiatry through AHS. What are the procedure to apply either through the EB2 or EB3?
    Answer:

    There can be no RN green card without an employment in the USA and clearing of the required exams/licenses in the USA. As to EB-2, that would depend upon whether or not the job requires 5 years of experience after Bachelor;'s degree (or a Master's degree).

  11. Wednesday,...
    Question: I am a Green Card holder and intend to marry a Canadian citizen. I would like inputs on:<br> 1. After marriage, can the Canadian citizen stay in the USA based on Canadian citizenship credentials? Are there timelines associated with this (only stay for 6 months permitted, etc).<br> 2. Do I need to apply for a Family-based Green card for the prospective spouse?<br> 3. Can the Canadian citizen apply for USA jobs based on Canadian citizenship credentials (OR) would a NAFTA visa or something like that be needed? Also, I would like to know of any other specifics that I need to be aware of with reference to my case above.
    Answer:

    Watch Video: Canadian citizen (or any person) getting married to a US green card holder

    Video Transcript:

    1. The answer is No. Canadian citizens are not allowed to stay in the US indefinitely. They are allowed to come in without visas for most things except E-2. 

    2. Yes of course.

    3. The answer is No but NAFTA visa also known as a TN visa is very difficult if you already have a green card pending or your spouse is a US green card holder. I think what makes sense is probably a H-1 or L-1 type of visa which is not subject to the problems that are normally associated with the filing of a green card or they can wait outside for the green card to be processed. They may be allowed in as long as they are completely upfront about it. When you come to the border as a Canadian citizen and you are going to visit your spouse who is a green card holder you should tell them that's what you are going for. You should not say you are going just for a casual visit. 

  12. Monday, 15...
    Question: I am with one of the Indian MNC and I am working as Program Manager for last 4 years (L1-A). I would like to apply EB-1 GC through a future employer. What is the timeline and chances to approve ?
    Answer:

    EB-1C green card can be applied only through an employer that is a member of your the group of companies that you are currently working for on L-1A. To apply through an unrelated company, you will need to go through EB-2 or EB-3 categories.

  13. Tuesday, 26...
    Question: I am from India and holding an Indian passport. I work for a IT company. I manage around 250 members. One of the agencies are tied up with another EB-1 and EB-2 processing agency in USA and informed me that they can help in processing EB1-A visa (Self Petition).<br> My questions are:<br> 1. Is there a category of Visa as EB1-A?<br> 2. If so, is there a possibility for self - petition? i.e. without an employer?<br> 3. If I file EB1-A, what is the waiting period? Approximate is adequate.<br> 4. Once I get the EB1-A visa, can I self apply for Green card or should there be an employer assisting to file for Green card?<br> 5. If I apply for Green card on an EB1 A, how long generally with it take?<br>
    Answer:

    1.  Yes.  See: http://www.immigration.com/greencard/eb1-green-card/eb-1-extraordinary-a...

    2.  Yes, self petition is possible under EB-1A.

    3.  Usually, it takes appx a year for the whole process.

    4.  EB-1A IS a green card category.  Nothing else is needed.

    5.  See 3 and 4.

  14. Tuesday, 12...
    Question: If my visa is in an expired passport, what should I do?
    Answer:

    If your Visa is in a passport that has expired or will expire within 6 months of the end of your U.S. visit, you will need to get a new passport. However, you do not need to apply for a new visa. Just bring both your NEW and  passport with the valid visa to present to the CBP Officer when you arrive in the U.S. 

    *Note:  Your ESTA is not a U.S. Visa.  If you obtain a new passport, you are required to apply for a brand new ESTA.  To re-apply visit esta.cbp.dhs.gov.

    The U.S. has an agreement with certain countries exempting their citizens from the requirement that their passports be valid for up to six months past the end of their U.S. visit. (See page 19 of the Carrier Information Guide on cbp.gov).Citizens of the countries which are exempt the six-month rule need to have a passport valid for their intended period of stay.

    Please contact the U.S. Embassy in your country of citizenship to determine if you are exempt from this requirement. 

    Six-Month Club Update (Countries that Extend Passport Validity For an Additional Six Months After Expiration)

  15. Monday, 11...
    Question: A child is born to a lawful permanent resident mother during her temporary absence from the U.S. What must the parent do to be able to bring their child back to the United States and obtain LPR status for him/her?
    Answer:

    Children born during the temporary visit abroad of a lawful permanent resident (LPR) mother are classified as NA3.

         · A child who meets the requirements of the NA3 classification is exempt both the passport and immigrant visa requirement when arriving in the U.S. for the first time.

         · The child must apply for admission to the United States within two years of birth.

         · The child must be accompanied by the parent who is applying for readmission as a lawful permanent resident upon the first return of the parent to the United States after the birth of the child.

         · The accompanying parent will be admitted as an LPR per normal procedures and must be admissible to the United States.

         · The relationship between the parent and child must be established, usually by a government issued birth certificate (full version listing names of parents) with a certified (notarized) English translation, if applicable. The translator must certify that the translation is accurate and complete and that he or she is competent to translate from the foreign language into English.

         · The child's admission as an immigrant will be recorded at the port of entry on form I-181, which will then be forwarded to USCIS by CBP. The child will also be issued an A-file number by DHS that may then be used to establish eligibility for other federal, state, and local government programs within the United States. http://www.uscis.gov/tools/glossary/number

         · After the birth of the child during a temporary visit abroad, if the LPR mother seeks readmission to the U.S. and is not accompanied by the child, the child would then be required to have an immigrant visa and passport before seeking admission to the United States, even if the child subsequently arrives within two years of birth. If the child does not apply for admission prior to the age of two (2) with an accompanying LPR parent, the child will be required to present an immigrant visa and passport in order to be admitted to the United States as a lawful permanent resident. Requirements to determine eligibility and the process for obtaining an immigrant visa are outlined at www.uscis.gov and www.travel.state.gov

  16. Friday, 24...
    Question: I have an approved I-140 with PD 2013. My wife works on H-4 EAD based on my I-140. If I join another company with my I-140(say I get H-1, my wife's H-4 and EAD for 3 years), Would it be fine if she continues to work on that EAD even if my I-140 gets revoked/withdrawn after H-1 approval.
    Answer:

    USCIS has said if an I-140 is revoked, they reserve the right to revoke the H-4 EAD. So far, they have not been revoking.

  17. Tuesday, 7...
    Question: Today I have got denial on my I-485. Reason stated was "According to Visa Bulletin in effect on the date this application was filed , a visa was not available based on your established priority date and specific preference category" My category is EB2. Date of filing for this category is 1st July 2009. My priority date is 10th December 2008. I filed 485 application on 1/19/2016 and got receipt notice on 1/29/2016 I did my finger printing on 03/16/2016 based on USCIS schedule I and my family members also got EAD on 03/23/2016 I was surprised to see today’s denial reason. I filed 485 application based on Dates for Filing .e. 1st July 2009 for EB2 category. Not sure why they denied my case since Final action date is not current but I am sure I am eligible to file my application based on date of filing. Is there any way to appeal on this decision ? If appeal gets denied again is there any impact on my current H1B status ?
    Answer:

    FAQ: Remedy for denial of I-485 AOS

    Video Transcript: When you filed and the government says the priority date is not current then that's a question of fact. If they have mistakenly identified this petition as untimely filed you can definitely file an MTR (there is no appeal against an I-485 denial) and get it reopened, but if they are correct then have a lawyer review your case.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  18. Wednesday,...
    Question: I got married in May last year and my wife was born in Malaysia . I was on H-1B with I-140 approved then and learnt about cross chargeability and filed for green card in June, we both got our green card in October. Things are not going well with marriage and my wife moved to NY and she is thinking of getting divorce. If divorce does happen does this affect mine or her green card?
    Answer:

    Watch Video: Effect of divorce on an employment-based case and cross-chargeability

    Video Transcript: As long as the marriage was in good faith and you just did'nt do it to get cross chargeability benefit then there is no problem in a divorce and that will not have an effect on her green card or yours. Both principal and beneficiary can opt out of processing the green card for their spouse if there is a split-up.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  19. Tuesday, 31...
    Question: Can I apply for STEM OPT, if I work for a E-Verified staffing agency (similar to Aerotek, Kelly services) on contract basis that is related to my STEM field of education at a client location ?. (I along with staffing agency will fill out I983 form) <br> I read online that USCIS has regulated "Certain Types of Employment" for STEM OPT in this new rule. So am worried that working for a staffing company at a client company location is therefore invalid :/ ((If so, I think then all the staffing companies would suffer as well))<br> I have attached hereby the snippet from Federal Register:<br> """"""There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03).""""" <br> It would be really helpful if you could explain what the above paragraph means.
    Answer:

    Watch Video: STEM OPT extension for consulting or staffing companies

    Video Transcript: Basically what the government is saying is that if you have staffing arrangement or a consulting arrangement and you are not directly supervising the employee who is on OPT STEM extension on the site where they are working then you should not be filing for their STEM OPT extension. So far this is what we know of the USCIS comments. I have not heard anything different from USCIS so far. 

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  20. Monday, 30...
    Question: I have PERM approved and I-140 filed in regular processing by my current employer "A". I have got an opportunity from employer "B" and then told they will process my GC as fresh application. I have 17 months left on my H-1B visa. <br> 1. In pending approval of I-140. will I get the extension of 3 years from USCIS when employer "B" initiate the transfer ? OR Will I get the H-1B transfer extension till max out ?<br> 2. Is it recommendable to switch now in between of pending approval process of I-140?<br> 3. Will leaving in between of pending process impact me in future when employer "B" files my GC once again ?
    Answer:

    Watch Video: Changing jobs after I-140 approval

    Video Transcript:  Under the current laws, if you change jobs after I-140 approval you keep your priority date, but you lose your right to H-1 extensions beyond what is given if your old employer revokes/withdraws the I-140.

    Now answering your questions

    Answer 1.No, you will get an H-1B extension for the time remaining and you can actually claim one year extra if your PERM was filed more than a year ago. But you will get only three years if the I-140 is approved. Not if it is pending. 

    Answer 2. I don't recommend it. I think you should get your I-140 premiums, get it approved and then leave if you want to.

    Answer 3. I don't think that is a major issue, but do talk to your lawyers. Hence it makes sense in my view not to change until the I-140 is approved. 


    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

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