US Immigration Questions

  1. Thursday,...
    Question: My dependents visa stamp on passport expires on Sept 1st 2017 and have valid I-94 till Sept 1st 2017 and this was with the previous employer A I worked for. I moved to a different employer B a year back and haven't filed H4 for dependents with employer B as it was not necessary. Now if my dependents travel to India prior to Sept 1st 2017, do I still need to file for H4 extension or is it good if they attend the interview at consulate in India and get visa stamped on passport without H4 extension using my approved I-797 (till 2019) with employer B.
    Answer:

    Watch Video on this FAQ: Does H-4 require a prior USCIS approval for visa stamping?

    Video Transcription

    You do not need to get an H-4 extension from USCIS when you have certain derivative visas like H-4 or L-2. Those visas are given based upon the approval of the H-1 holder and the L-1 holder. For the dropbox facility, you have to look at the local rules. 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.

  2. Thursday,...
    Question: I have an approved I-797A with company B valid till 2018 May (attached i94 with same dates). My Visa with Company A valid till 23 Aug 2017 (old passport). I got a new passport in 2015 Dec, which I have applied after moved to company B. I traveled to India in June 2016 and comeback, CBP officer gave me I-94 till 23 Aug 2017 with new passport entry, because of new passport I-94 number changed. My question is I-94 (May 2018) is on my I-797 is still valid or it will valid only till 23 Aug 2017? If valid only till 23 Aug 2017, How to solve this issue with out going out of the country.
    Answer:

    Watch Video on this FAQ: I-94 given for a shorter duration at the airport than the petition approval date

    Video Transcript

    No, the government wants you to look at only the most recently issued I-94. If it is a government error, then you can correct it through CBP otherwise apply for an H-1 extension like you normally would through USCIS or go outside the USA and come back using the approval that is good till 2018. They should be able to give you a new I-94. 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.

  3. Thursday,...
    Question: I am a naturalized US citizen through marriage since August 2015. I have sponsored for my brother and mother. Being an immediate family member my mother got her green card within 7 months and for my brother, it's probably a waiting for 12 years. However, I have not sponsored for my father yet because he is currently handling the business and property in India. My father has tried 3 times for tourist visa in last 2 years but he got rejected by the US embassy in Delhi. We don't want to try again for the tourist visa now. I want to sponsor green card for him now but need advice on a couple of concerns. It can take my father up to 7 years to wrap up everything. What is required for my father to maintain his green card in terms of physical presence/physical travel How long can it maintained without being actually living in the USA more than 6 months? We cannot do an investment here for a new house in his name due to financial concerns. In other words, I have concerns like if my father is unable to maintain the green card status and unable to obtain a tourist visa, then will he be stuck in India forever?
    Answer:

    Watch Video on this FAQ: Reentry permit to preserve green card and extensions

    Video Transcript

    I think it is ok. You can get him a green card and then do a re-entry permit if you feel that's appropriate and if he loses his green card then he loses it. That's ok, you can always reapply again. If you have something to file, please go ahead and file it and don't wait up for it. 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.

  4. Thursday,...
    Question: 1. I have I-140 approved and its more than 6 months over. My priority date is March 2011 under EB2. At this situation, if my current employer lay me off from work, what immediate step I need to do, in order to legally stay in the USA. ( Do I need to contact my lawyer to change my H1B visa status and my family status to Tourist visa or Can I change my status online or what is the option?). <br> 2) With the new I-140 EAD regulations effective Jan 17th 2017 in place, am I eligible to apply for EAD using "Compelling circumstances EAD", if my company laid me off? As of July dates for filing for EB2 visa application is 01FEB09 , which is more than 2 years wait time for my dates to be current.
    Answer:

    Watch Video on this FAQ: New regulations, effect on layoff after I-140 approval

    Video Transcript

    1. Having an I-140 approval that stayed in existence for 180 days does not protect your current status by itself so with the new rule you've got that 60 day grace period to file for an H-1 or any other kind of change of status after the layoff so you have got that 60 day grace period you could try applying for a tourist visa if nothing else works out.

    2. Yes. You can use Compelling Circumstances EAD. See my blog for more details.

    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.

  5. Thursday,...
    Question: I am currently on F1 in OPT status and working for Employer A, my Employer A filed for H1b this year. and I am currently waiting for my H1b approval Approval. Can my Employer start my green card process when I am in F1 status?
    Answer:

    Watch Video on this FAQ: Can a green card be started on F-1 status?

    Video Transcript

    For people who are born in backed up countries where the priority dates are extremely backed up like India, China, Philippines, Mexico its dangerous to start a green card because F-1 status does not allow you to have immigrant intent whereas statuses like H-1, H-4, L-1, L-2, O-1 etc... allow you to have a dual intent. TN doesn't allow one to have a dual intent, so when you are in these kind of statuses where the dual intent is not permitted and you file a green card you run the risk of having trouble in getting any kinds of extensions, visa stamping or reentry into the U.S. But if you are born in a country like Saudi Arabia, Pakistan or Nepal or anywhere in Europe where these dates are not backed up then sometimes it is possible to get the whole green card wrapped in EB-1, EB-2 or EB-3 category within a year. 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.

  6. Thursday,...
    Question: 1. I had my H-1B approved in Feb 2017. I moved to the US after H-1B petition is submitted. My employer filed for COS from H4 to H1 through premium processing in March 2017. Got RFE on COS petition for proffered position and employee and employer relationship. which they have replied to .. And now got a second RFE asking for a combination of following or similar types of evidence: Letter explaining how the Level 1 wage designation LCA that you have provided corresponds to the proffered position. Document to support that the level 1 wage designation on the LCA supports the proffered position. <br> 2. What are the other options if my COS petition is is denied? <br> 3. Am I eligible for transfer if I get an offer from the new company? <br> 4.Is my approved H-1B still valid and cap exempt, whatever is the outcome of COS petition decision?
    Answer:

    Watch Video on this FAQ: Evidence or documents created after the filing of a petition

    Video Transcript

    1. As a general rule, USCIS takes the position that any documents or events that occur after you have filed a case are normally not going to be accepted as part of the case. Level 1 jobs are entry level jobs that are still being developed. If you submit a new LCA and say this is a level 2 position and the LCA is dated after the filing of this case that would be thrown out. You will have to refile the case. 

    2. Well if you are not subject to the quota you can always refile the case. 

    3. Yes, if you have earlier received a change of status or an H-1 visa. USCIS has been inconsistently telling us that they want us either to get a change of status or an H-1B visa stamping. Near approval is not enough. 

    4. Yes, if you have earlier received a change of status or an H-1B visa stamping. 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.

  7. Wednesday,...
    Question: Will there be any issue with my I-485 approval? If it gets denied, will my unlawful presence/out of status be counted from the time my I-94 expired? What should be my next steps?
    Answer:

    Audio FAQ: Protection of section 245 (K) for employment-based I-485

    Audio Transcript

    1. 245(k) says if you are an employment based applicant or spouse or child of an employment based applicant we will forgive you up to 180 days of being out of status or on authorized employment since the date of your last entry. Any period accumulated before last entry we can disregard. We only count from the date of the last entry. Hence it is a very strong permission to help you file I-485.

    2. 245(k) is automatically given. The government actually applies for it themselves. You don't have to do anything special for it.

    3. When you are in between statuses: H-1B extension pending or old I-94 expired you are not in status enough to apply for this kind of status. But if your status expired less than 180 days ago because of section 245(k) you can file Adjustment of Status. 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. Tuesday, 25...
    Question: I wanted to understand how Child Status Protection Act (CSPA) works in the case of employment based green card (EB-2) of the parent. My priority date is of 2012 under EB2, I-140 approved. Can CSPA be used to calculate child age when my EB2 priority date becomes current? Wondering what options I have when priority date becomes current and child age is 21+
    Answer:

    Audio FAQ On: Child Status Protection Act in employment-based petitions

    Audio Transcript

    Child Status Protection Act (CSPA),  in employment-based petitions will allow you to take advantage of the time your I-140 is pending. So if your I-140 was pending for 8 months your child can file I-485 with you if the dates become current until 21 years, plus 8 months. Hence whatever time your I-140 was pending that time becomes an additional grace period for the child to file I-485 with you. The only advantage you will get is the dependency of the I-140. Other than that, there is no advantage. 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. Tuesday, 25...
    Question: If I change my employer, given the recent changes to I-140 rules for revocation/withdrawal, can my H1-B be extended again for 3 years, with me providing only the LIN number (which can be verified for an approved I-140 on the USCIS website) towards H1-B transfer to my new employer? Do I strictly need to provide the I-140 approval notice to extend/transfer my H1-B to a new employer?
    Answer:

    Audio FAQ On: Is a copy of I-140 approval required to extend H-1 B?

    Audio Transcript

    As long as the I-140 was not revoked before 180 days were over and it was good until January 17 you are fine. There is no need to provide the I-140 approval notice. 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. Monday, 24...
    Question: My Project with My Client will end soon and my employer doesn't have any further projects and asking me to go back to my home country (India) by end of this month. My Visa is valid till Aug 2017 with extension filed. So I am considering to resign on last day of the assignment. ( no new employer found yet).<br> 1) as per new Rule would I be getting the grace period till my I 94 expires i.e till Aug 2017? Is this correct? ( 60 days grace period rule) Also during this Grace period Can I apply for a Change of Status to another non immigrant Visa - F1? (change to a different nonimmigrant classification.) if yes and F1 filed after termination of employment, will this not be considered as timely filed which can result in problems in the future?<br> 2) if F1 is filed Should I start my classes before I94 expiry date or can I Start in September or should I wait till F1 is approved ( after 90 days from date of filing F1)?
    Answer:

    Audio FAQ: 60 days grace period for H-1B

    Audio Transcript

    1. Let's say your I-94 was not expiring for five or six months no doubt you could lay claim on the 60 day grace period and get another extension or change of status filed during that time. If you do anything during that 60 day period unless the grace period is denied for any other violation of status you are considered to be applying within the status.

    2. As long as the difference between the last day of the 60 days and the period your F-1 begins is not more than 30 days you should be ok. 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.

  11. Wednesday,...
    Question: Recently I got Consular visa, that my I-797 was approved without I-94 so I need to step out of the country to get H-1B visa stamped. Got laid off from EMP A and took around 55 days for EMP B to file h-1 and now I’m with EMP C. Both I-797's from EMP B and EMP C, I got consular visa to step out for visa stamping.<br> 1. Usually, how much time I have to step out of US for stamping, if I go little after 3-4 weeks what’s the valid reason that I can give to Visa officer at interview time.<br> 2. How can I justify myself about the 55days of gap I have from EMP A to EMP B ( during the time I do not have H-1B status), my attorney suggested that I need to tell VO that “I was looking for a Job and my employer took time to file for H-1B “. I’m not sure whether I can say this. Can you suggest a valid reason to give VO.<br> 3. MY GC Perm Labor has approved and EMP C has applied for I-140 recently and it's still in processing status, during this situation If I get a full-time opportunity can I move with a new employer? OR I have to stay with current one until I get I-140 approved and then transfer with a new employer.
    Answer:

    Watch Video on this FAQ: Applying for H-1B visa when there was a status violation


    Video Transcript

    1. Go as quickly as you can. It isn't an emergency, but it is something you should not take lightly.

    2. It is not an issue. Even if you had a 179-day gap it is not at a ground of denial for a visa. Just make sure you reveal it. If they ask you if you were out of status which is a part of the form you will say yes. Be truthful.

    3. When you want to move and a case is pending unless the pending case is decided you have to go outside for visa stamping. 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.

  12. Friday, 14...
    Question: I have a question regarding the 6-year stay on H1B if someone was in the US on L1B & later H1B. When does the clock gets reset, does it has to be 1-year stay out of USA at the time of H1B application filing OR 1 year stay out of USA between exit & re-entry in the USA?
    Answer:

    Watch Video on this FAQ: How to Reset H-1 Six Years

    Video Transcript

    You have to be physically outside the USA for at least one full year. If you visit the USA during that time that is if you are here for ten days you've got to stay outside for ten extra days. If you are here too long, for eg: if in that one year you are here for seven months you might have to start the one year all over again.  

    Therefore:

    1. you have to be physically outside the USA.

    2. if you visit you must keep your visit short but then add in that time to the back end of your H-1 stay outside the USA.

    3. don't be here too long. 

    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.

  13. Friday, 14...
    Question: I got H1B approval from company 'A' till Oct 2015, filed H1B extension in May 2015. As there were no updates, changed extension regular case to premium and got RFE in 2016.Before responding to RFE got to know that company 'A' has some issues and no one was responding from company 'A'. So before 240 days completion of I-94 got visa transfer with company 'B' in a premium process. Now my H1b is in security check with company B. My Both H1b cases/receipts are still in pending status. I applied for H4 visa now within the USA and if any of my H1B cases get declined. Can I stay on my H4 visa receipt?
    Answer:

    Watch Video on this FAQ: Applying for H-4 status while H-1 is pending

    Video Transcript

    Looks like you are basically in an authorized period of stay because your approval was only good till October 2015. They will not give it to you. You are better off going outside the USA for visa stamping. You should have your H-1 lawyers call the U.S. attorney's office and see if they can talk with the prosecuting attorney and get some kind of a letter or an email from them that that would make your approval possible because you have not committed anything wrong. You just happen to be caught in a case which is either being investigated or prosecuted. If it is being investigated there isn't much you can do, but if it is already being prosecuted and it's already in court you might be able to get around this problem because even if you go for H-4 visa stamping if there is a red flag on you, you might have trouble getting H-4 visa stamping. 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.

  14. Wednesday,...
    Question: On 10-Mar-2017 I completed my 5th year on H-1B visa. I changed my job and joined my current employer on 01-Feb-2017 (after receiving the H-1B receipt number) while my H1B petition was being processed at USCIS.In the meantime, my employer filed my GC PERM application on 01-Mar-2017 while my H1B was still in process at USCIS.I got a RFE on my H1B application and while responding to the RFE my employer requested for 2 years of H-1B visa instead of 1 year i.e. 1 year for the 6th year on H1B and another year extension as my PERM application was filed and pending.
    Answer:

    Watch Video on this FAQ: Effect of revocation of PERM on an already approved H-1 extension

    Video Transcript

    Once they give you an H-1 extension, if later on the PERM is revoked, which was the basis for the extension they will not take away your H-1 extension. So, supposing the date I filed my H-1 and the date my application was decided, my PERM was the basis for my H-1 extension, once the extension is given the PERM goes away and I should be able to keep my H-1. 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.

  15. Wednesday,...
    Question: I am a US GC holder and planning to get married to a bride in India. If I get married to a bride in India, can she get a tourist visa.? (Bride is a Software engineer working in India.)My idea is that after marriage, my wife enters the US under Tourist and stay for 6 months and then go to Canada and renter the US and stay in the US with me for next 6 months for a total of a 1 year.
    Answer:

    Watch Video on this FAQ: The best methods for spouse of a green card holder to enter the USA

    Video Transcript

    As there is a gap between when you apply and when they can actually get some kind of a legal status it can be several years, so it becomes problematic for spouses of green card holders to stay outside the USA for that long. One option would be, if you in the interim become eligible for citizenship you can then upgrade the pending case of the spouse of a US citizen from the spouse of a green card holder. The other option is to get into a situation like H-1 or L-1 where a pending green card application doesn't matter. Even O-1 or E-1, E-2, E-3 visas. A tourist visa, student visa or a J visa would be a difficult option while a green card is going on, but not impossible. It is quite difficult to get those visas because they require nonimmigrant intent. 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.

  16. Tuesday, 11...
    Question: In 2014, My wife was working with employer "A" on L2 EAD and the employer "A" filed H1B petition in April-2014. She got approval notice in May-2014 but due to some family reasons we have to go back to India and she continues working for the same employer from India since then. Her approved H1B petition with the same employer "A" is valid till Aug-2017 and H1B visa is stamped in Dec-2016 for the same employer "A". She never traveled to the USA on that H1B visa as her employer does not have any opportunity there. Since she never traveled to the USA on her H1B visa ever, does that mean she has never granted status as an H1B Non-immigrant?
    Answer:

    Watch the Video on this FAQ: Exemption from H-1 quota, Visa stamped, did not join employer

    Video Transcript

    I personally feel once your case is approved on October 1st, you should be exempt from the quota. If you are outside the USA and you do not get a visa stamp, the government takes the position that you are not yet exempted from the H-1 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.

  17. Friday, 7...
    Question: 1. If I have my I-140 Approved and its been more than 180 Days after approval then I believe that even if I change the employer the I-140 does not gets revoked and it still stays valid. I can continue to extend my H1B with my old I-140. Is my understanding correct? <br> 2. If suppose I have applied for my H4 dependents EAD while I am in my first company and both of us are working. Now it's been 180 days after my I-140 got approved and I switch my employer. In this case does my dependents EAD get's affected in any way? <br> 3. Now assuming that answer to first question is Yes, but I believe that in-order to apply for GC my new employer has to file my PERM and I-140 again. If that happens will my dependents EAD gets affected in any way until the new I-140 gets approved?
    Answer:

    1. The essence of your understanding is correct. You are safe against revocation.
    2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status.
    3. Again, no effect on H-4 EAD if your new green card is filed.1. The essence of your understanding is correct. You are safe against revocation. 2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status. 3. Again, no effect on H-4 EAD if your new green card is filed.

  18. Friday, 7...
    Question: I want to take my fiancé on a vacation to Hawaii but she stated she received a 214b due to a failed student visa in Oct 2014; at the same time her ESTA expired. Prior to that she had visited the states and left on time without overstay. My fiancé is Japanese and was in her late 20s when denied without explanation. Is there an expiration on 214b?I want to take my fiancé on a vacation to Hawaii but she stated she received a 214b due to a failed student visa in Oct 2014; at the same time her ESTA expired. Prior to that she had visited the states and left on time without overstay. My fiancé is Japanese and was in her late 20s when denied without explanation. Is there an expiration on 214b?
    Answer:

    Getting married to a US citizen and applying for a K visa/green card will remove the 214(b) issue. There is no expiration of this denial.Getting married to a US citizen and applying for a K visa/green card will remove the 214(b) issue. There is no expiration of this denial.

  19. Friday, 7...
    Question: I am on a H-1B Visa for past 9 years and have EB3 I-140 (2008 Priority Date) from Company A and EB3 I-140 from Company B (2014 Priority Date). I am now with Company C. I am Heart Patient and was operated for Heart By-Pass Surgery in 2013 and since then taking my regular Medicines (for my entire Life). I feel stressed on continually working for 40 hours a week and feel getting a EAD will be a god's gift and I can use this EAD to work at my convenience.
    Answer:

    Watch the Video on this FAQ: Compelling circumstances EAD

    Video Transcript

    I have given a few examples on my blog please look at that.

    Your surgery was a good four years ago I don't know if there is something particularly difficult about your medical situation, but normally people with bypass surgery resume their normal lives. In your case, like I said if there are any particular circumstances, you can certainly apply for compelling circumstances EAD and you can keep getting that renewed. 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.

  20. Wednesday,...
    Question: This is my second year on H1B and my H1b visa is valid till Aug 2017 with Valid 194. My Extension was filed on Oct 2016 normal processing and now I got an RFE on 22 May 2017. for the RFE I received last time ( Dec 2016 for amendment), I had submitted all documents like SOW, MSA, Client letter etc. and got an approval. However now due to some organizational changes, my Client is no longer providing us the Client letter. Due to recent changes and scrutinizing of H1b applications these days, is there any risk involved NOT providing the Client letter? are there any changes of getting a decline?
    Answer:

    Watch the Video on this FAQ: Current trends in H-1B end client letters

    Video Transcript

    Since 2005 it has become very difficult to get H-1B approvals without clarification from an entrant if you are in a consulting position. Unless the end client can verify what your job is and how much control your employer doing the H-1 has over you, USCIS is not going to give you an H-1B approval. It has become very difficult to get H-1B's without the end client participation and sometimes it can be difficult even with a letter from the end client. It's really very sad that we have to do business in this way that our approvals depend upon the mood and the education level or knowledge level of the USCIS officer whose adjudicating the case. 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.

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