US Immigration Questions

  1. Tuesday, 26...
    Question: The physician group I'm talking with are looking to hire me on to work alongside them, and they would not actually pay me a direct salary. I would bill insurance for each patient seen, and the practice would take a certain percentage and give me the rest. Would this be allowed? Or do I have to actually receive a salary from the future employer? My understanding is that as long as the potential employer can show the ability to pay the prevailing wage via a business income tax return, that is all that is needed. Whether or not I actually get paid and how much I get paid once the green card is approved, is irrelevant, correct?
    Answer:

    First of all generally speaking, for H-1 and for green card your salary cannot include terms that are variable. So for instance if you get a yearly bonus, but the bonus changes from year to year you cannot include that as a part of your salary. Salary cannot include per diem. A lot of companies and a lot of employees get stuck with a lot of problems because per diem is set up as part of the salary. Per diem is not salary. Benefits are not salary. So all three of these items are big problems when you talk about H-1 and green card salaries. You cannot include benefits, You cannot include per diem and you cannot include variable amounts such as bonuses. if the bonus is guaranteed, in terms of the amount then you can include it otherwise but this is not salary.   

    But how about a percentage?... In PERM for sure you cannot have this arrangement because this is not a fixed amount. Green card is a job in the future and what if you have a different set up now and another set up when you actually get the green card, I think that's ok but the  problem is if you are in H-1 this actually offends H-1 as well.  


    Watch Video from Rajiv S. Khanna's conference call that addresses this issue


     


     Note: The answer 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.

  2. Monday, 11...
    Question:
    Answer:

    Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

    Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

    Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

    Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

    Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

    Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

    Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

    Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

    Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

    b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

    Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

    Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

    Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

    Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

    Answer: There are two fundamental principles that you need to apply to your case:

    1. Priority date transfer does NOT require that your jobs must be same or similar.

    2. Experience letters are NOT required for priority date transfer or retention. 

    Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

    Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

    Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

    Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

    Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

    Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

    Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

    Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

    I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

  3. Friday, 8...
    Question: What documents, identification, and paperwork does a U.S. citizen need to travel internationally?
    Answer:

    If you are traveling in the Western Hemisphere (Canada, Mexico, Caribbean, Central and South America):

    Air Travel:  All U.S. citizens departing from or entering the United States from within the Western Hemisphere by air are required to present a valid passport or NEXUS card (if utilizing a NEXUS kiosk when departing from a designated Canadian airport). Merchant Mariner Document (for U.S. citizens on official maritime business.) U.S. Military identification card when traveling on official orders;   Note that children are also required to present their own passport when traveling by air.

    Land or Sea Travel:  U.S. citizens entering the United States by land or sea are required to present a valid WHTI-compliant document, which include:

    • U.S. Passports
    • U.S. Passport Cards
    • Enhanced Driver's Licenses
    • Trusted Traveler Cards (Global Entry*, NEXUS, SENTRI, or FAST)
    • Military Identification Cards (for members of the U.S. armed forces on official orders)
    • U.S. Merchant Mariner Document (for U.S. citizens on official maritime business)

    *The Global Entry (GE) card is only an ENTRY document and may not be used to enter Canada, Mexico or Adjacent Island.

    Military personnel traveling under orders may present photo ID and orders.  Family members must present a passport (with the exception of children 15 and younger arriving by land or sea.)

    Children:  U.S. citizen children ages 15 and under arriving by land or sea from a contiguous territory may present an original orcopy of his or her birth certificate (issued by the Vital Records Department in the state where he or she was born), a Consular Report of Birth Abroad, or a Naturalization Certificate.  If the child is a newborn and the actual birth certificate has not arrived from the Vital Records Department, the center will accept a Hospital issued birth certificate.

    Groups of Children:  U.S. citizen children between the ages of 16-18 arriving by land or sea from contiguous territory and traveling with an adult supervised school group, religious group, social or cultural organization, or sports team, may also present an original or copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Naturalization Certificate.

    For documentation requirements regarding cruises see  Frequently Asked Question "What Documents do I need for Cruises"

  4. Tuesday, 22...
    Question: I saw some online forums stating that if I-140 withdrawn you can retain your PD date. Is it true under current circumstances? What is difference between I-140 Withdraw vs I-140 Revoke? If both are not the same, in which cases employers to for withdraw.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://youtu.be/Gl2WiBEALtk?t=273

    FAQ Transcript:

    A revocation means, an I-140 was approved and then cancelled. So revocation means there was an approval first. If a case has never been approved, it cannot be revoked. It can only be withdrawn or it can be denied.

    Let’s say for e.g.: I file your I-140, and USCIS says we deny this case as there are problems that’s a denial. Everybody understands that. So I file your case (I am your employer) before the case gets approved I send a cancellation request that’s a withdrawal. My case gets approved then I write to the USCIS and say I want to cancel this case that is a revocation.

    Another circumstance of revocation is when USCIS says we approved this case and they can go back and issue a notice of intent to revoke the case. Or if they find any fraud which is a very serious matter that should never be ignored that has criminal complications, that on an employee can operate as a permanent bar from entering the US. 

    Therefore, when a case is approved and then cancelled out it is a revocation, whether it is done by the employer or the government, if the case is still pending it can only be withdrawn or denied.

  5. Tuesday, 22...
    Question: I am Canadian citizen and got job offer in USA and going to work on TN visa. They are going to employ me as an independent contractor and are going pay using 1099. Can TN workers work as an independent contractor? Is this something valid and can I accept this one?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/Gl2WiBEALtk?t=68

    FAQ Transcript:

    A TN can be set up in one of the two ways. Either a US employer directly offers employment to a professional from Canada or Mexico, and they come in as a Treaty National. So direct employment, simplest case W2. They are a full employee of the company, US employer, so that part is easy to understand.

    The second way to set up a TN if for e.g.  there is a company in Canada, there is a company in USA, the company in USA contracts with the company in Canada, and it says you send employee xyz to us to work, and we will pay you and you pay the employees the salary. In that case the US company is sending out a 1099 to the Canadian company. Another easy one to understand.

    Problematic cases are those were the Canadian worker is being sponsored by the US company and the US company wants to put them on a 1099. I think that is not a good idea. Lot of employers have said as long as employer employee relationship exists you can file a 1099 and that to me is a little short-sighted. Reason being because the difference between an independent contractor and an employee is the degree of control. If you are maintaining control as an employer, then IRS could get you in trouble. IRS could say you should be putting this person on W2, deducting their social security taxes, other benefits, you have to put them on W2, you can’t have them on 1099. So remember you have to balance control under immigration law, with control under taxation laws otherwise you could get into a lot of trouble. 

    Short answer I don’t know how you can comply with US laws when a TN worker works on a 1099 on a US sponsored job.

  6. Tuesday, 22...
    Question: My wife is on H-1B visa working for a consulting firm. We are expecting baby in Feb 2016. What could be the maximum allowed time period on FMLA. Can my wife continue on H-1 status without pay checks on FMLA period?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://youtu.be/1QbgUmUUJvc?t=1746

    FAQ Transcript:

    If she considers to be in H-1 status FMLA (Family and Medical Leave Act) allows up to 12 weeks of guaranteed employment leave in 12-month period. It can be more or less also depending on the state law and remember if there is a medical need, for e.g. if the doctor says you have some medical issues you need to stay extra 6 weeks you will still be in status.

  7. Monday, 21...
    Question: I have a delayed birth registration certificate issued by municipal authority with place of birth: hospital name, city. My passport just got the city name as place of birth. Do I need to submit secondary evidence when I file I-485 because of delayed registration?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

    https://youtu.be/1QbgUmUUJvc?t=1405

    FAQ Transcript:

    In many countries especially India, Pakistan, Bangladesh, it can happen that the birth occurred much earlier but the registration of the birth was done much later. Remember it was not the law that you have to register every birth, it was a voluntary action. So if a child was born in 1980 or 1970 you registered the birth in 2015 because that’s when you needed to get the green card. Now those are not acceptable registration. What you should do in those cases is get a letter from the municipal corporation, or local government, that says before this was registered there was no other registration. Like a non-availability before the registration. Along with that get two affidavits, from your parents or other people, who were alive when you were born, that will take care of it.

    Secondary evidence becomes acceptable only when you can’t get non-availability from the municipal corporation and that’s a much more complicated area. I think you should get the non-availability.

  8. Monday, 21...
    Question: I am living in Lexington, Ky. My wife and I filed N-400 for citizenship on 2nd Feb 2015. Our 5 years’ green card date was 14th April 2015. My wife already got her interview, oath, passport done 3.5 months back but I am still waiting for my interview. Its already 9.5 months. Our field office is in Louisville, KY and their website shows that their processing time is 5 months. My application is way beyond 5 months. I did submit case inquiries and first time (9/11/15) they told me that “Due to workload unrelated to your case there is a delay” and second time 10/15/15 they told me that “security clearance is being done”. I took the infopass and went to Louisville field office. They told me that my case is with “national service center” I think and they are waiting for security clearance. Just wondering, is there a time limit to the security clearance?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

    https://youtu.be/1QbgUmUUJvc?t=1115

    FAQ Transcript:

    Typically, there is a law on the box that allows you to file a lawsuit against the government. If there has been an unreasonable delay and there has been a certain time period provided. But some courts (depends on which place you reside) have said that the time for which we start counting the delay does not begin until the security clearance are received.  

    Question: I am living in Lexington, Ky. My wife and I filed N-400 for citizenship on 2nd Feb 2015. Our 5 years’ green card date was 14th April 2015. My wife already got her interview, oath, passport done 3.5 months back but I am still waiting for my interview. Its already 9.5 months. Our field office is in Louisville, KY and their website shows that their processing time is 5 months. My application is way beyond 5 months. I did submit case inquiries and first time (9/11/15) they told me that “Due to workload unrelated to your case there is a delay” and second time 10/15/15 they told me that “security clearance is being done”. I took the infopass and went to Louisville field office. They told me that my case is with “national service center” I think and they are waiting for security clearance. Just wondering, is there a time limit to the security clearance? I was reading over the web that some people in my situation did something called “writ of mandamus” with the help of a Lawyer. Do you think, this is something an option for me? 

    I think what you should do is get with your congressmen’s office. Call your congressmen, tell them to follow up the case. Let’s see what they say. That would be the quickest and zero cost method for you.

  9. Wednesday,...
    Question: I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July. When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behavior. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US.<br> 1. So my question is:<br> does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties? Or they just don't reject me explicitly with the real reason? I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?<br> 2. Another question is:<br> I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

    https://youtu.be/1QbgUmUUJvc?t=598

    FAQ Transcript:

    First of all, not every crime leads to serious consequences in USA. There are two kinds of crimes. Misdemeanours which are small crimes, punishment is typically less than a year and the other felonies where the punishment is a year or more, those are more serious crimes. In immigration law we look if the crime is of moral turpitude or not. If a crime is not of moral turpitude, I believe it has absolutely no consequences, unless it is a drug offence. Moral turpitude simply means that you are doing something, which reflects on your poor moral character.

    The next step: is it misdemeanour or felony. If it is a felony, we almost certainly have a problem. It could lead to deportation, non-admission, and then you will need a waiver of some kind. Waivers are usually available for green card only for family based reasons. You cannot get a waiver just because you want to come to USA. So in an employment based case, and you have a felony conviction for moral turpitude crime you will not be able to come to USA.

    Remember the rules are different for deportation, what is called removal and admission. So when you try to enter you could be subject to different laws, sometimes you think you are in USA and I am safe, because your lawyer told you are not going to be deported, but when you come back they won’t let you in and now you have to go back, the reason is the rules for admission are different. This is a very complex area of the law. 

    Question: What if I am convicted of misdemeanour involving moral turpitude?

    First, how many misdemeanour convictions do you have. If you have multiple convictions, then that itself is ground for deportation removal as well as no admission. But if you have only one offence, a misdemeanour, and the actual punishment imposed was less than six months you are covered by something called petty offence exception. Which says we forgive you entirely as long as it was just a single misdemeanour.

    The rules under immigration law and the rules under criminal law for conviction are very different. Sometimes you have a criminal defence counsel. He will tell you this is not a conviction. It may not be a conviction under criminal law but is a conviction under immigration law. Any kind of plea bargain you set up with the government where you are admitting directly that you committed the crime would be considered in all probability to be a conviction. So be careful when you discuss this with your immigration lawyer as well as criminal counsel.

    Question: What is 212(d)(3) waiver?

    Say if you got the kind of conviction where you cannot come back we can let you in on a temporary basis for a non-immigrant visa. 212(d)(3) applies only to non-immigrant visa and the situation has been a little uncertain, especially for Canadians. I think there is a certain timeframe where you can get it or for one visit you can get it.

    Question: I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July.

    Normally diversion means some kind of a plea bargaining has been made.

    Question: When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behaviour. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US. So does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties? 

    That is correct because they denied it based upon their inability to verify that you will come back.

    Question: I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?

    Definitely that will make it a much stronger tie and you can try again. You might be covered by a petty offence exception.

    Question: I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application? 

    If you are covered by petty offence exception, then even J-1 is not affected but the 214(b) denial, affects your J-1. If you had a 214(b) denial, it will bar your entry for J-1, F-1, B-1, B-2.  It will not bar your entry for H-1 or L-1. I suspect the officer realised you were covered by petty offence exception.

  10. Tuesday, 15...
    Question: What is I-485 Pre-adjudicate/Pre-adjudication? <br> How soon must I join my future green card employer?<br> Situation - <br> I have my EB2 India PD as March, 2008. I applied for I-485 in Oct 2014 (Future based GC application). My PD is not current as of yet but I have got an RFE for expired medical form I-693 ONLY in Oct, 2015.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/1QbgUmUUJvc?t=402

    FAQ Transcript:

    Question: What is I-485 Pre-adjudicate/Pre-adjudication?

    You are at the last step of the green card process. Your priority dates became current, you filed the I-485, then the priority dates slipped back two years, at this time USCIS has two choices. They can either put your file in their filing cabinet and forget about the case, until the priority dates become current again. Or they can sit down and can say look we have time, let’s go over the case, adjudicate all the details, decide that the case is completely qualified to receive a green card, so we pre-adjudicate, decide that the person is entitled to get the green card. Make a note on the file. If you need some documents, we send an RFE get the documents so when the priority dates become current again all we have to do is issue the green card. That’s pre-adjudicate.

    Question: How soon must I join my future green card employer? 

    There is really no rule of thumb. But within a commercially reasonable period of time. Three to four months maybe, after approval of the green card, you should join the future green card employer. In your particular case that appears to be a requirement sometimes it may not be a requirement because of AC21 and remember AC21 portability is available even in future employer green card cases.

  11. Monday, 14...
    Question: How can I calculate my sister's possible visa interview? I am confused with these changes on final action date etc.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/1QbgUmUUJvc?t=80 

    FAQ Transcript:

    Priority Date (PD) is the date when your green card visa numbers are available. It means that you are entitled to get your green card. It doesn’t mean you can get it right away. But it means you are in a stage were you are about to get your green card. So Priority Date is usually the date on which your application was started. In case of family based petitions Priority Date is when I-130 was filed. In the case of Employment based cases it is based upon when PERM was filed. Employment based cases were PERM is not involved, direct I-140 is involved such as National Interest Waivers, EB-1s - Priority Date is the date you file the I-140. Your Priority Date depends upon the date your case was started. That’s one thing you got to worry about.

     When you go to Visas Bulletin which is a monthly publication of the US Department of State it tells you what visa dates are expected to be curbed or in other words where the queue is for the next month. So in December they will issue predictions for January, in January they will issue predictions for February, then on top of that you have to worry about processing times. Sometimes for e.g.: in US Citizen’s cases there is no Priority Date back up, dates are immediately current for e.g.: spouse of a US Citizen, parent of a US Citizen, minor unmarried child of a US Citizen, there are no Priority Date   issues here. In these cases, you have to worry only about the processing times. So when you file the form the form takes set amount of time to process. Now a new concept has been started a couple of months ago, if you go to the USCIS website it tells you if you are in the United States this is the date when you can file your last step of the green card process. If you are outside USA this is the date, you can expect to receive further paper work from the consulate. It doesn’t mean you are going to get your green card right away but you are eligible or close to getting it.

    Here is another variable. How much time is it taking at that consulate to schedule interviews. Some consulates are heavily overworked. Some consulates are relatively less worked. So that’s the fourth variable. First variable was Priority Date, second variable is processing times, third variable is final action dates which is also the part of Visa Bulletin a slightly different table, and the fourth is the local processing times.

    Question: How can I calculate my sister's possible visa interview? I am confused with these changes on final action date etc. Her PD is 1 Feb, 2011 visa category F2B. She has already submitted dox to NVC. When she was waiting for the visa date she turned 21 and moved to f2b cat.1. When do you think it will be? Which table to consider? At the Visa bulletin one, I mean. 

    First of all, if her Priority Date is current normally within a few months, probably less than six months. At the Visa Bulletin the final action table tells you approximately when she can expect her final documents.

    Question: Once the other parent becomes citizen in USA would it be helpful to submit another petition for her? Would you advise it to be in the safe side? 

    You can. You can file multiple cases for the same individual. That is not a problem. As long as you see some gain in it depending upon the country she was born in, in filing through two separate categories you can certainly do that.

  12. Thursday,...
    Question: My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/H_VV9kV_lOg?t=1345

    FAQ Transcript:

    Question: My wife is on H-1B and became aware of her project end dates. We are currently evaluating the options of H-4 EAD. Can we file H-1-H-4 transfer and EAD concurrently?

    Let's take the situation where you are filing H-1, for you yes I do not see any problem with it. If you are doing H-1 transfer, you can do her H-4 and EAD concurrently. However, if you are trying to do H-1 transfer for her along with H-4 EAD simultaneously, that can become little complicated. But I don't know what exactly you are trying to accomplish. If you are trying to cover both basis I would recommend to do an H-1 premium processing and then file an H-4. Let one status accomplish before you apply for the next status. If you want to do both simultaneously make H-1 premium.

    Question: Do companies hire full time on H-4 EAD?

    That depends upon the company. EAD holders has all rights almost equivalent to the Green card holder. So if the employer knows what this EAD is or they have good legal advice they should be able to hire full time on H-4 EAD.

    Question: What are the benefits of H-4 EAD over H-1?

    Some really big benefits. One benefit is there is no requirement of a particular salary. Number two is there is no requirement of specific job location. An H-4 EAD holder can work 3 hours in one job, 5 hours in another job location or 10 hours and then keep switching from job to job if they want. There is no limit on how they work. They can even start their own business. So those are some of the big advantages of H-4 EAD.

    The biggest disadvantage is because the status depends upon the H-1 holder, something goes wrong with the H-1 status; they get laid off or they fall out of the status then the H-4 status is also in doubt.

    Question: Do I recommend to convert to H-4 EAD?

    That depends upon the case.

    Question: What are the risks associated with the conversion?

    From H-1 to H-4 not much risk that I can see.

    Question: What is the typical timeline?

    That is very tricky. We had a tweet exchange couple of weeks ago with the community member who said that; his wife's EAD got approved in couple of weeks. My office was reporting that H-4 EAD combine can take months. A few months ago they were only taking a couple of months. So few months is not an extraordinary for H-4 EAD combo. If you are doing EAD alone, already your wife is on H-4, it might be quick. Technically there is 90 days’ deadline on the government to decide these cases of EADs. How far they follow it I don't know.

  13. Thursday,...
    Question: I have my perm labor and I-140 approved through EMPLOYER A (Consulting Firm). Priority Date June 2013. If I am going to change Employer, EMPLOYER A is going to REVOKE MY I-140. I heard from your last conference call that i will be loosing my priority if I-140 is revoked by employer.I am close to 5th year of H-1. so cant take chances. If I move to FT position in the next 6 months and say my current employer revokes I-140. I will not be able to get extension for H-1 beyond 6 years.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.   

    https://youtu.be/H_VV9kV_lOg?t=688

    FAQ Transcript:

    This is a very tricky issue that has come up time and time again and one month we have one answer and after six months we have another answer. There are two sets of questions here, one is priority date, if the employer revokes I-140 does it get lost and the other one is some issues about Green Card through a future employer.

    So let's discuss two sets of issues, as of November 12th, 2015 the answer is, USCIS will not take away your priority date if the old employer revokes the I-140. However, you will not have any right to extend your H-1 based upon I-140 that is already gone. In addition, if the I-140 is revoked for fraud, misrepresentation or mistakenly having been approved by USCIS, you will not have the priority date then.

    USCIS has reversed itself like three or four times. They started of a few years ago saying you will lose your priority date, if the employer revokes the I-140, then the sudden No, you will not. Few months ago they said Yes you will lose the priority date and couple of weeks ago again they said No you will not. So they have gone up and down on this issue all the time.

    Another question often asked by a community member who says there are cases were very accurately people reported that their priority date was lost between May 2015 and September 2015 and the answer is yes. I know that because I did lot of consultations in between and there were lot of cases that were denied. Now these cases should try to file a motion to reopen or reconsider and try to get their priority dates.

    The other question he put forth was, can we get to see a copy of this teleconference document?

    Unfortunately, there is no copy. It is comments from one of the committee members, we have all the volunteer committees as American Immigration Lawyers Association (AILA), where members go on behalf of AILA and meet the USCIS, in one of those there is a comment from American Immigration Lawyers Association committee member that says; the government has categorically stated in that meeting that they will not take away priority date.

    The other question is:  Does withdrawal of I-140 by an employer same as revocation by employer or withdrawal and revocation are two different things?

    Withdrawal implies of something little different. Withdrawal implies that I-140 was not approved at least to my mind, even when it was pending it was withdrawn. Because once it is approved only can be revoked, I don't think it can be withdrawn.  Something is not approved and its withdrawn then we are out of luck there is no priority date. Priority date only can be conferred by approved petition. Once it is approved then it is revoked by employer under the current thinking of the government that we all know, they will not revoke or take away your priority date.

    I am little hesitant to say that you can depend upon the word of the government, because I have looked at the regulations and I have looked at the way these folks have been flip flopping on the situation makes me very nervous to be in the situation, prepare for the worst, hope for the best that's all I can tell you.

    Question: Has USCIS listed their final official position on this issue as like a document anywhere on their website?

    Not yet, I have not seen anything in writing from the government.  So I won't be able to give you much there but as soon as I get something official from the government, I would be certain to post it. 

    Question: Now Green card through future employer, what if another employer starts my Green card processing, can I continue working for Employer A , while Employer B initiates new GC process for me?

    And the answer is yes. You can have 20 new employers to start Green card process. As long as you have good faith, intention to join whichever comes first or whichever is more suitable for you. I don't see any reason that you cannot have multiple Green cards filed.

    Question:  Is it possible for me to clear the PERM and I-140 Stage of GC process of Employer B while still working for EMPLOYER A?

    It is actually possible to process entire Green card with employer B, even though I-485 gets approved while you still working for employer A.

    Question: I may or may not join EMPLOYER B. As I am in the process of looking for FTE (full time) position ) Say I moved to EMPLOYER C (FTE) and I have never worked with Employer B and have I-140 approved with EMPLOYER B .

    There is actually Yates memorandum of May 2005 that talks about this. As long as you had good faith intention all the way to join, let’s say your I-140 was approved, PERM of course approved, I-140 was approved through employer B. You are working for employer A, I-140 approved through employer B, priority dates become current you still working for employer A, priority date becomes current after 180 days actually you do not ever have to join the sponsoring employer. You can join any employer who gives you same or similar job whether it is employer A, C, D or E.

    There are some issues about coming back to employers after leaving them during the Green card process. I would want you to have one on one consultation with your lawyers, not an easy issue to discuss in a few minutes but it can be a problem if you leave an employer in the middle of the process and come back. Lot of people did not have any problems, one or two cases occasionally do get the problems. The government asks questions like why did you leave if this was the permanent job, if you left who was doing that permanent job, things like that could come up and there are whole set of issues that need to be discussed with your lawyers basically.

    Question: I also heard about rejections in PERM. Can EMPLOYER B start two different GC process for me and file two PERMS at the same time?

    No. Technically they can file two Green card process against two jobs, I would highly recommend against it. It can be for two different positions only, you can't file a PERM for the same employer, same employee, same job twice No.

    Question: Does it cost anything for the Employer to hold an approved I-140? 

    It does not, except sometimes the government can question their ability to pay wages and they look at all outstanding Green cards and indirectly it can become an issue for the employers. It does not cost them anything out of ordinary. Let me rephrase it, nothing out of pocket but if the RFE comes and if any of the cases about ability to pay wages I guess at that point they can revoke the I-140 if they want.

  14. Wednesday,...
    Question: We have started a company recently and wanted to sponsor H-1B for experienced employees and place them with our clients. What is the criteria and can a new company sponsor H-1B?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/H_VV9kV_lOg?t=530 

    FAQ Transcript:

    Answer is of course. I am yet to see a major negative effect just because the company is small. What is more important is that you have specific projects that are clearly defined and you can define how long the project is, what the project description is, what the relationship of the employee being placed is with their employer, which is the new company and usually that is done through a letter from the end client or very comprehensive work order or job order kind of thing. 

    So if you can prove those things, duration of the projects etc. then filing an H-1 is not an issue but if you do not yet have a clear project in mind I would strongly advice you not to file H-1’s, because there is a trend in criminal indictment these days when companies get criminally indicted, two things government is bringing up time and again. The government is bringing up the fact that company applied for H-1’s without the specific projects and two if they kept employees on the bench. 

  15. Wednesday,...
    Question: 1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br> My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br> 2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B. <br> What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/H_VV9kV_lOg?t=65 

    FAQ Transcript: 

    This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

    Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

    For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

    If PERM is filed, can she convert H-1to H-4?

    She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

    So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

    Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

    First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

    Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

    I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

  16. Wednesday,...
    Question: Question is, invested money is at risk although the process is approved in compliance to immigration. <br>By the above compliance does it mean, that when the money is spent completely on the application (approx 560000 USD):<br> 1) Is the conditional Green card guaranteed in 18 months for all cases, and<br> 2) Will conditions be lifted on applying I-829 within another 30 months - guaranteed?<br> 3) The intent of the query is, after spending so much, is there any chance of not getting the permanent Green Card, and if in case not approved, is the entire investment lost or it will be returned?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/H_VV9kV_lOg?t=2539  

    FAQ Transcript:

    EB-5 is the investor visa where you invest five hundred thousand either with the pre-approved scheme or what is called regional centres or in a rural area or in a targeted employment area. Typically, where the unemployment is more than 50 percent.

    These questions are related to regional centre investments. Regional centres have always made me nervous because remember these pre-approved schemes are approved only for immigration compliance. They are not approved for vigilance by the government. Government doesn’t over see your investments. They are not guaranteed in any way as people can run away with your money. There are investment centre’s that have been fraudulent. Warrants are out on some of these people. But of course lot of them are quite genuine. Unfortunately, we as lawyers are not investment advisers, we cannot tell you which regional centre is safe and which are not, we can tell you what our other clients have used successfully. But that in no way means is going to be a repeat performance of success. So when you put your five hundred thousand in a regional centre there is absolutely no guarantee of the money.

    Answer to question 1. It is not guaranteed. It is not 18 months actually. The way it works is you first file the first set of forms I think it is I-526 and if that is approved then you get your green card process rolling. You can’t file for e.g.: AOS and I-526 jointly. It has to be done consecutively. There is no concurrent filing. So once the first form gets approved then the green card gets approved you get a conditional green card. Ninety days before the second anniversary of the approval you have to apply for the removal of the conditional status using form I-829 and you show the government the money is invested in the jobs are almost created.

    Answer to question 2. None of this is guaranteed.

    Answer to question 3. One involves immigration processing and the other involves the investment itself. The safety of the investment depends on the money where it is invested and how good the centre is. As for the immigration getting approved that depends on the immigration documentation requirements having been completed. This is definitely not a guaranteed process. In fact, the hallmark of EB-5 investment is that your money is at risk.

  17. Wednesday,...
    Question: I am contemplating marriage to a GC holder and I have a question regarding I-130 and AOS. My prospective spouse got GC in Jan 2015. I currently hold a valid visitors visa to USA and I have visited USA many times on this visa.Is it possible to get married, enter USA on the existing visitors visa and then immediately apply for I-130 and Adjustment of Status. What are the risks/implications with this approach. What is the best procedure in these circumstances?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/H_VV9kV_lOg?t=2303

    FAQ Transcript:

    It will be wrong if you entered USA for a visit visa and had a preconceived intention of getting married. I think that would be considered as a fraud by the government. On the other hand, you entered USA wanting to visit and fell head over heels in love with somebody, I think in a case like this we can definitely go and do a green card if you can demonstrate that you had no preconceived intention then I think you are ok. 

    My advice to people is don’t get married till you apply for a K-1 (fiancé visa) which would be a smart thing to do in a situation like this. It takes a few months or maybe more than a year.

  18. Thursday,...
    Question: 1. I am a Canadian physician on an H-1B (never been on J-1) which expires June 30th, 2017. I am currently doing a 2 year fellowship. I'm contemplating pursuing the physician NIW process vs EB-2 through potential employer. For EB-2, my understanding is that I need to be eligible for a full-time physician position on the day the employer submits the ad. Since I won't complete my general residency until June 30th, 2016, my potential employer cannot begin recruitment until July 1, 2016, correct?<br> 2. In your experience, is 1 year enough time to complete the EB-2 process?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://youtu.be/H_VV9kV_lOg?t=1852

    FAQ Transcript:

    Answer 1. In this context we are talking about a PERM and not the NIW. Also remember NIW is under EB-2. Most physicians fall under the EB-2 category.  Here is how a PERM can be drafted. It depends on your employers, your lawyers and you and there is no requirement that you be fully licensed. Only that you are eligible for a license, or you are at a certain level of profession shall we say maturity or advancement so it could be possible to file for a PERM depending upon what the employers requirements are and  what the state rules for licensing are to file upon even before what you believe is your eligibility. Also remember rules for giving full license to residents differ from state to state. They are not the same in every state. So you have to look at the states in which you are going to start the PERM application.

    Note: Your eligibility for licensing does not have to be from when the date of recruitment begins. It has to be established the date the PERM is filed and typically recruitment can last a few months. Before that your eligibility must be perfect upon the date PERM is filed and not when the recruitment begins. 

    Answer 2.  It may or may not be, very difficult to say.


  19. Tuesday, 17...
    Question: 1. My employer filed my I-140 and it was approved. They refused to provide me the approval notice but through InfoPass I was able to get my receipt number and Alien #. To port my priority date, I would like to request USCIS for the duplicate copy of I-140 approval notice.<br> 2. Is it possible to request USCIS a duplicate copy of my I-140 approval notice using either G-639 (FOIA) or I-824 (Action on an approved application or petition) or any other method as I have my receipt#?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://youtu.be/H_VV9kV_lOg?t=1610

    FAQ Transcript

    Answer 1. People typically file a FOIA request. File the Form G-639 (Form G-639 - USCIS).  Often you get copies of all kinds of documents. Government gives you copies of documents they have on you. It is not consistent but people have got copies of their 140 approval notices, copies of their H-1 approval notices, the entire perm package. So it is worth filing a FOIA and it doesn’t cost you anything. It can take a little bit of time a couple of months maybe three months but do file it if you don’t have documentation. You can port the Priority Date with your alien number itself and receipt number as well. It should not need a I-140 approval notice. Remember the government has that information already. They don’t specifically need it from you. 

    Answer 2. By all means file the form. File G-639 and not I-824. File G-639 and let’s see what they give you.

  20. Monday, 16...
    Question: I am currently pending I-485 (EB3, skilled worker employment based, priority date Oct 2008) since April 2014. I submitted inquiries through congressman, they received a letter that my case is on hold indefinitely. Do you recommend filing Writ of Mandamus or would that cause a denial? What other actions can I take, I've submitted a case through the Ombudsman and met with a USCIS officer through Infopass appointment (who told me nothing). No RFEs have been issued for this case, I-140 was approved and fingerprinting done (twice, since first set expired).
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

    https://youtu.be/F0YZD8zWm88?t=333

    FAQ Transcript:

    Writ is simply order of the court or a formal order.

    Mandamus is to ask the government to do something, which it is legally obliged to do. It is important to understand what the court can and cannot do. First of all the court has to decide whether your case has taken too long unreasonably long to the extent where the delay itself becomes unreasonable. So very difficult thing to prove, depends upon the court. There is a ruling I remember litigating this issue very vigorously in Washington D.C. and one of the cases that was against us was a case from  Board of Indian Appeal that's what they called BIA not to be confused with Board of Immigration Appeal but Board of Indian Appeal . 

    Usually if a group of people want to be declared Indian Tribe because if you are an Indian Tribe one of the things you can do is have unique rights within your own area such as opening a Casino. They had a determination pending for over ten years and court said that is not unreasonable.

    So first hurdle is to actually be able to prove, of course before that there is hurdle of legal fees, it can be quite expensive to litigate an issue. Second hurdle is proving that delays are unreasonable, unreasonable according to what. The government processing times are merely guesses; they don't give us a right. The third thing which is also important, court cannot ask the government to decide  I-485 in your favor, they can only make government  act, whether the action is Yes, No or RFE. 

    And my final point is something I find very odd, I never  believed to be possible until I saw it happened to  myself. The government behaves like a spoilt child because they have lost the case they can send you 30 page RFE requesting information that you would not believe could even be asked.

    So because the court cannot tell the government to decide the case in your favor, they can only order the case to be decided Yes or No. You could end up creating more issues. The Freedom of Information Act usually does not help in these cases much. 

    So keeping in view all these things personally my approach is very simple I tell people, are you at the point where you are so sick and tired that you either want a yes so you can get your Green card and stay in this country or get Naturalization whatever the benefit is or get a No and just leave, one way or the other. Once you come to that point that's when I want to litigate. Again it also depends upon the circuit, you know that in USA there are different Judicial circuits on the Federal level. So some circuits are more open to certain issues, some circuits are not open. We have to look at the law of the circuit also.              

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