US Immigration Questions

  1. Thursday,...
    Question: I am still in the process of getting a green card. During this process I want to change my job from a present one to another one that is more challenging than the present one. Would this in any way affect getting the green card or is it advisable not to shift jobs now?
    Answer:

     

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

    https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719


    FAQ Transcript

    In this scenario we have employment based people who are good workers, very skilled people and they have a lot of trouble changing jobs or advancing in their careers because technically while the green card is going on even if you take up a promotion you could end up losing your current green card and have to start all over again - at least part of the process. So this is not a good thing. 

    Keeping in view with the current law what Obama had said on November 21st about his plan and finally what this bill (Immigration Innovation Act) says. 

    First of all under the current law if you change your employers before your I-140 approval is obtained you will lose everything. You have to start all over again. That means if you are a EB-1 based candidate your I-140 must be approved. If you are an EB-2 or EB-3 based upon the labor certification your perm application must be approved and then you’re I-140 must be approved. Remember I-140 can be filed by premium processing. So you got to get your I-140 approved very quickly. Generally speaking if you move before I-140 is approved you get nothing. If you move after I-140 is approved but before I- 485 is filed you keep your priority date and you keep the right to extend H-1 beyond six years as long as the I-140 is not revoked. This is an important concept to remember. You keep your priority date - that means when you go to the next employer you will have to start the green card all over again but your priority date will be the date the first case was filed which again is a very big advantage. The priority date is capped but here is an additional provision. if your priority dates are current and you have filed I-485 with the old employer, after 180 days of the I-485 pendency and the I-140 approval you can take any job anywhere with any employer and be able to carry the same green card forward without having to redo any work. so before I-140 you get nothing, after I-140 and before I-485 you get your priority date and the right to extend your H-1 beyond 6 years and after I-140 approval plus I-485 filing 180 days thereafter you get the right to keep your green card even if you take a slight promotion with another employer or move to an entirely different employer as long as the jobs are same or similar. 

    President Obama said normally applicant can only file the last step - the I-485 if the priority date is current. He said he would change that by allowing the applicant to file I-485 along with the I-140 no matter where the priority dates are. This is a big advantage. That means technically just roughly speaking once you start your green card process through PERM in a year and half you could be free to join any employer – proximately or two years at the most as long as you  maintain the job category you are in. President Obama also said he is going to make it clear that advancement in career is considered to be same or similar job so that your green card will not be disturbed. And that idea has been very welcomed. Combine that with the Immigration Innovation Act you could be getting your green card much earlier than 3, 4, 5....10 years that you are waiting for right now. So all these things combined are very good signs for people in a situation such as the query above. If you have not yet got your I-140 approved and you are far from that stage it’s ok as long as you don’t have H-1 problems. If you are about to get the I-140 approved then get it approved. If you have H-1 issues beyond six years make sure the second H-1 is approved before you change employers. Once the H-1 is approved for 3 more years even if the old employer revokes the I-140 they cannot take your right to the H-1 you already got. You can start another green card and protect yourself.

  2. Wednesday,...
    Question: I am a US Permanent Resident from Nepal. My girlfriend (soon to be wife) is a student doing her MBA and is in F-1 visa (student). She is graduating in May 2015 and will start her OPT soon after that. We are planning to get court married real soon (within a month) and file for her green card soon after that. Once she gets her green card, we'll go home and get married with all the religious ceremonies. <p> I had few questions about the green card process for my wife. I looked through various threads of various forums and I am more confused than before on how exactly this process works. I got conflicting answers for these questions. So, I am posting these questions so that I could get the correct answers from the expect himself. <p> I understand that for my wife's GC, first I need to petition I-130 and she needs to wait until her priority date becomes current (which the people say can take several years to be current), then she needs to apply for Adjustment of Status. <p> 1. Could you go briefly on the whole process from start to finish? <br> 2. Some of the threads on the other forums said that the Congress changed the law so that there is no wait time for Spouse of Permanent Resident to apply for her green card. How much truth is in this statement? <br> 3. Some people who applied about a year or two ago said that they got their GC on hand within 6 months. How is that even possible when the wait time to just apply for GC under this category is several years? <br> 4. What happens if she applies before her priority date becomes current? Will her application be denied or will it just sit in a queue (first come first serve) until the priority date becomes current and then it will get processed? <br> 5. If she starts her OPT in May 2015 and the OPT lasts for 1 year (till May 2016), would that be enough time for her to apply for GC through my petition?
    Answer:

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

    https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=99

     

    FAQ Transcript

    One of the problem with a student applying for a green card is that traveling could become an issue because if CBP stops you at the border they could say that her student status is questionable because she has immigrant intent. She could have the same problem if she is married and has applied for a green card when she tries to go for her OPT. So keep these two things in mind.  You may want to time the filing of marriage and the filing of I-130 after the OPT starts and not travel until the green card is actually in hand.

    Looking at the Visa Bulletin which is a monthly estimation from the State Department of the dates that will be available in the following month, the latest one which is January 2015 (http://www.immigration.com/visa-bulletin/visa-bulletin-january-2015), and if we look at this in F2A category for Nepal which is “All Chargeability Areas  Except Those Listed” right now they are backed up to 15 April 2013. At least they are backed out for less than two years. It is reasonable to expect that the green card within a couple of years maybe two/two and half years.  But these dates can go up and down quite rapidly. Keep that in mind.

    Typically Form I-130 is filed. Once that is filed you have to wait till the priority date becomes current.  When the priority date becomes current you file I- 485 and with the I-485 typically you file an application for employment authorization for advance parole to travel. Once you get the advance parole you can travel. At that point student status is no longer an issue.

    So in a nutshell that is the process. When the time comes, the I-485 gets approved and she gets her green card.

    Answer to question 2: That is incorrect there is a wait time.

    Answer to question 3: That can happen only if the priority dates are current.

    Answer to question 4: I-130 has to be applied before I-485 or will simply be returned and you will lose your fees and will have to file again. 

    Answer to question 5: It does not look like it, but you can apply for H-1 because H-1 is immune from the problem of having a green card pending. F-1 has a problem and shhe can’t travel. But H-1 will not have that problem. I would suggest in this April apply for her H-1. That way you are good for three years and you can apply for her I-130 right away. She can travel freely once she gets her visa stamping. So it is a really good way to go.

  3. Monday, 12...
    Question: Need your esteemed advice for my mother (75 years old, sick and disabled). We are only two sons and our father passed away last year. We have nobody back in Pakistan who can keep her and look after her. My brother lives in UK. I am living and working in USA (on EB-2 green card). My mother had been refused UK visa twice as she has no sufficient family ties to home country (Pakistan). I received my green card in April 2011 therefore I have some time still remaining to apply for my US Citizenship (January 2016) and then sponsor her. <p> My mother B-1/B-2 visa is expiring in August 2015 and keeping in view her long frequent trips to US (she always departed before I-94 expiry, no overstays) and insufficient family ties to home country (Pakistan) her B-1/B-2 re-stamping seems very hard. <p> Can you please advice what can be done here? What are the options to keep her with us in US?
    Answer:

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


    FAQ  Transcript

    This is another very commonly encountered problem. Where somebody’s here on an H visa, L visa or Green Card and their parents are in India, Pakistan , UK or somewhere else and the child is the only support for the parents and  the parents are not eligible for any visa to come to the US . We had actually on immigration.com in our sample cases (http://www.immigration.com/sample-cases) there is some mention on cases like this we have done. It doesn’t mean that they will always be successful but really the law permits for a tourist visa and then continued extension of a tourist visa. Sometimes the USCIS and the State Department might  consider it to be an acceptable reason for a parent to live in USA on an extended basis. So if your brother has tried to go to the UK and they have not been able to procure a visa to the UK and you are in USA and you being a  Green Card holder of course cannot apply for them until you become a US Citizen.  I think it would be a good idea to apply for a tourist visa.  Make it clear that they want to come and stay here long term as far as the law allows them to.

    Once again it will be a good idea to try that. I am not sure if it will work but it is worth trying.  Does the law permit a B-1 and B-2 in these circumstances the answer is “yes”. You can actually disclose to the consulate that your parents are going to USA and intend to stay there as long as the law permits because the son resides in USA.

     





  4. Friday, 9...
    Question: I am in L-2 Visa with an approved I-140 from my employer with a priority date of August 2012. My H-1B applications never got picked up in the lottery. My husband's 7 years of L-1A comes to an end in March 2015. So we have to go back to India. My question is, if with Obama's immigration action develops and a possibility occurs for allowing approved I-140 petitioners to apply for I-485 and EAD, what is the process for me to get an EAD while I am in India and how can I come back to US using the approved I-140?
    Answer:

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

    https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

    FAQ Transcript

    Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

    Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.

  5. Wednesday,...
    Question: <b>From our community member </b><p> <b>Here is my Situation.</b><p> I used to work for Employer "A" who filed for my EB3 Labor and I-140. I-140 was approved in Feb 2007. In July 2007, when the dates became current, I filed for my I-485. In December ending of 2007, which was around 180 days after filing the I-485, Company "A" was acquired by Company "B", at that time I got an email from my employer HR indicating that Company "B" will now take over all immigration responsibilities of "A" and no H1 transfers or re-filing of I-140 is required. I was also assured that since my I-485 was pending for 180 days and i had EAD and 6 pay slips / one per each month from company "A" , there should not be any issues, since AC21 can be applied too, in this case. So I continued to work for Company "B" for about 1 year from Jan 2008 to Jan 2009. I received pay checks from "B" during this period. <p> In Feb 2009 I joined a direct client, Company "C" on H1B. Got the H1B approval beyond 6 years, using company "A" I-140 approval copy. Company "C" Attorney sent AC-21 documents to USCIS. Company "C" does not file labor or I-140 they do only H1B or hire on EADs but does not do green cards. Now, after more than 7 years of I-140 Approval from Company "A", I came to know that USCIS, has revoked the I-140 of a different employee who was in the similar situation as me, but he didn't had H1B and he was forced to leave USA since his I-485, EAD and Advance Parole were all based on this I-140. It seems USCIS said the underlying Labor and I-140 were fraud. Hence everything is denied. He did leave the country. <p> <b>My Question : </b> What are my Options if something like this occurs for my case too? I understand its hard to tell if this will occur or not. Company "A" which filed my I-140 no longer exists and I have no contact what so ever with Company "B". If I-140 gets revoked for fraud by the company "A", will the employee be held responsible? Can this kind of adverse decision be appealed and during appeal process what happens to the status. Are we allowed to stay and work in the country when this case is in progress? I was reading online about the "The case, Kurapati vs USCIS”, this lawsuit is similar in nature. Is there a ray of hope with this? <p>You’re Suggestions/Comments please.
    Answer:

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

    https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

    ANSWER TRANSCRIPT

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

    https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

    - See more at: http://www.immigration.com/faq#sthash.DTqPrkHp.dpuf

    First of all a company does not file labor or I-140. They are not going to do green cards.  

    Now Kurapati actually does not stand for this.  Let me explain to you what happens. First of all I-140 can be revoked by the USCIS for fraud at any time. In addition they can also revoke an I-140 where it was not approvable when filed.  So if it was incorrectly approved it can also be revoked. If it does get revoked unfortunately USCIS reading of the law is it gives you no portability right and it gives you no right to priority date. I think that’s a question because if they revoke an I-140 after they have approved it I can still argue for the priority date if the revocation was not for a fraud. Although I think I would probably loose that argument. So in any case right now the rule is that if they revoke a case either for fraud or for not having been approvable when filed you get nothing out of it. You cannot get the priority date, you cannot get anything. The problem is what do you do?  Can you file an appeal and while the appeal is pending keep getting H-1B extensions and the answer is doubtful unless the old employer wants to file the appeal.

    About five years ago we had a series of cases like this where a company went under - couple of hundred employees was put under the street. We were able to file appeals on behalf of the employees using the Kurapati logic. What is the Kurapati logic?  That’s the case in which the 11th circuit this year decided that even employees have the right to fight an I-140 revocation.  So in our view we always took the position that especially where AC21 rights are involved employees have a clear actionable plan to the I-140. So it’s not only the employer but even the employee who should be allowed to file the appeal.

    What can you do?

    In my view the best thing to do is leave this employer and find another employer who is willing to start your green card process because if this green card can go away really you need to have a backup plan. That is the only thing I can recommend.  

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

    https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

  6. Tuesday, 6...
    Question: 1. How does the National Visa Center fit into the U.S. immigration process? <br> 2. USCIS sent my immigrant visa petition to the NVC. Now what happens?<br> 3. How do I know if my priority date meets the most recent cut-off date? What does that mean? <br> 4. How do I know what my priority date is? <br> 5. How Do I Contact the NVC?
    Answer:

    1. After U.S. Citizenship and Immigration Services (USCIS) approves your immigrant visa petition, USCIS forwards your petition to the National Visa Center (NVC) in Portsmouth, NH for immigrant visa pre-processing at the correct time. Immediate relative categories do not have yearly numerical limits. However, family preference and employment based immigrant categories have numerical limits each year; therefore, lengthy wait times are involved for processing to begin.

    2. If your Priority Date meets the most recent Cut-off Date, or is likely to become current soon, the NVC will:

    1. Invoice you for your visa application fees
    2. Collect your visa application and supporting documentation
    3. Hold your visa petition until an interview can be scheduled with a consular officer at a U.S. Embassy or Consulate.

    If your Priority Date DOES NOT meet the most recent Cut-off Date, the NVC will notify you and hold your petition until your Priority Date meets the most recent Cut-off Date or is likely to become current soon. As your Priority Date gets closer to the Cut-off Date, NVC will contact you to start processing. The Department of State updates the Cut-off Dates on a monthly basis in the Visa Bulletin

    3. If your Priority Date meets the most recent Cut-off Date (called becomes current) and your petition is ready to begin processing at the NVC. As your Priority Date gets closer to the Cut-off Date and is likely to be current soon, NVC will contact you to start processing. Learn more by reviewing the Visa Bulletin.

    4. USCIS assigned your immigrant visa petition a Priority Date when you filed it with USCIS. If you are unsure of your Priority Date, you should refer to the Approval Notice that you received from USCIS.

    5. NVC Contact Information

  7. Monday, 5...
    Question: How does a traveler revalidate a visa without their I-94?
    Answer:

    The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation. In order to demonstrate eligibility for automatic revalidation, a traveler may be required to present a copy of the website printout to the air or sea carrier prior to boarding. If entry occurred prior to automation, a paper form must be presented in order to comply with validation requirements. For more information about automatic revalidation go to http://www.cbp.gov/document/bulletins/automatic-revalidation-visas.

  8. Friday, 5...
    Question: I have a question on H-1B. I have an approved I-140 from company B and I'm currently working for company A on H-1B( valid till February 2015). Company B applied for H-1B transfer and also 3 year extension based on approved I-140. I'm expecting H-1B transfer process to be over by 10th Dec 2014( as it was a filed under premium processing ) but I would like to join them only after Jan 1st 2015. In the meantime I would like to continue to work for company B till Dec 31st 2014. My question is how long can I continue to work for company A after successful transfer of visa (H-1B) to company B ?
    Answer:

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

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=2372


    FAQ Transcript

    The Answer to the question that is often asked: I am working for an employer on H-1B, my transfer to another employer, let's call other employer 'Y' gets approved. I am working for 'X', 'Y' gets approved and can I continue working for 'X'. The answer is 'Yes'.

    Under immigration law, approval of the second case does not over rule your previous H-1 approved. If you choose not to join them or join them 6 months later, I think it is OK. However, if you have signed any contract with employer 'B' or employer 'Y' in this case. Just make sure you are not violating any contract issue.

    Under immigration law, I don't see any problem for you to continue working for employer 'A'. How long that's very difficult question to answer.  I would say commercially reasonable period of time. Technically, under the law there is no limit to how long you can continue. If you have joined after 6 months, 7 months, 4 months or 5 months, USCIS can raise an objection, as to if the second employer really had the job through. Don't continue too long, there is no legal limit here established.

  9. Friday, 5...
    Question: Error in last H-1B extension- now I-140 approved and I have been working on H-1B since 2005. In between, I changed to -F1 and also spent time outside USA. Cumulatively, I would have completed six years of working on H-1B by March 30 2015, after excluding stays in USA on non-H-1B status and stays out of USA.I changed my job in Feb 2014 and have been working with this employer since then. At the time of change, the current employer filed for a H-1B petition and requested an extension for three years – from Jan-2014 until Jan 2017, even though, if I added up all the time of work on H-1B visa in USA, I would have completed six years by March 30 2015. My I-140 has been approved this month. Now I do not know whether my employer should file for an extension of H-1B (assuming that without the I-140 approval, I was allowed to work until I completed six years of H-1B in USA) or not file for H-1B extension, because, the last extension is valid until Jan 2017.
    Answer:

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

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1831

     

    FAQ Transcript

    What happens is sometimes, USCIS by mistake gives you more time than you are entitled soon for your H-1. Let's say your 6 years is getting over in one year and they give you 2 or 3 years by mistake.

    Can you use that time?

    And the answer is, that is very risky, don't do that because USCIS could say that you are deliberately misusing an error made by them. They can consider it to be a deport-able offense. It can be a mess. You should assume you have to go through whatever the correct date. You can even call USCIS, make notes of date and time of call etc. Ask them what they want you to do. This is something that your lawyer should be able to resolve. Have them talk with USCIS, protect yourself. Don't assume that because USCIS made an error and gave you more time, you can use it.

  10. Friday, 5...
    Question: I am a physician completing my J-1 waiver ( on H-1B now in US, waiver will finish by June 2015). My wife became a U.S. citizen few months ago and she has filed I-130 for me. If I-130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ? If I have to wait till June to apply for I-485, will I be able to get EAD right away or will I need to be on H-1 for a while I-485 is accepted ?
    Answer:

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

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1320

     

    FAQ Transcript

    The way it works is physicians when they have J-1 they get a waiver job like Conrad 30 program or through veteran's administration any one of these things. They are working on completing their waiver job typically 3 years. So the question is when can I file I-485?  This comes up very frequently in the context of physician, both when they are trying to do EB-1 or National Interest Waiver. In this case applying for his wife.  The answer is you cannot file I-485 until your 3 years of waiver is complete. Even if you file 1 day early your I-485 will be rejected. So until your waiver is complete you cannot file I-485.

  11. Friday, 5...
    Question: I have I-140 approved with title business systems analyst. Promoted to director in the same job profile , H-1B amended to reflect the title but no new PERM filed as was explained by my lawyer that it is OK to have some career progression and more than 50% of job duties are same as old job. Now we are going to go through another re-org and probably I may not have the same title but senior business systems analyst . What are the steps<br> 1. Do we need to file new perm or wait for the new law and apply H-1B reflecting the new title<br> 2. Apply for EAD on the basis of existing I-140 approved as business systems analyst.<br> Please advice..
    Answer:
    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=8F

    FAQ Transcript 

    What do I do, if there is change in job title or duties during the Green Card? What happened in this scenario is that he got I-140 approved with title business system analyst, he got promoted to director and his lawyer said that, it's OK to have some career progression and more than 50%of the job duties. 

    I think we have stated on our website also and I told you that's little optimistic, be careful because there is absolutely no guarantee under today's law, that if your duties changed, you don't have to start new green card process all over again, President Obama has said in his executive order that, they will make it clear through memorandum or regulation. I think it's memorandum that the definition of same or similar job for green card purposes would include those jobs where they are related or the job is in natural progression in a person's career.  

    But my problem is OK in the context of AC-21, but you are not on AC-21 stage, you are really before that stage. Of course, Obama's is proposal and his executive order goes all the way, things might be different. But as of today a person in your situation, better of starting second Green card process for the higher job and then transferring the priority date. Why take a chance its a few thousand dollars, it's well worth it I would take a chance. If I am your lawyer, I would say look you should start a second green card process, just to be in safe side.

  12. Monday, 24...
    Question: Is this true ? - "If the ‘Schedule A’ application falls into the “EB-2” or Employment Based Second Preference category (the employer requires a Master’s degree in Physical Therapy or a Bachelor’s degree in Physical Therapy + 5 years of experience), then the Adjustment of Status application can be submitted simultaneously with the Form I-140".
    Answer:

    Concurrent filing is possible ONLY if your priority date for EB-2 is current, and not backlogged.

  13. Monday, 24...
    Question: I am on H-1B Visa, got my I-140 approved in EB-2 Category and waiting for the dates to get current. Based on Executive Action, shall I be given any EAD ? Or at least any other forms so that I can travel and need not go for Visa Stamping and all the additional paper work.
    Answer:

    I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

  14. Monday, 24...
    Question: Does this impact EB-3 India wait times and also does this lift counting on family members/dependents for visa numbers /quota ?
    Answer:

    Obama's Immigration Action plan could impact all waiting time for EB categories. We are not clear how far or how quickly. There is no indication that the method counting green cards will be changed to One per family, instead of one for each family member in an employment-based case. President has asked for recommendations for improvement within 120 days. We shall see.

  15. Monday, 24...
    Question: I came to US in Jan 2012 on L-2 and started working in US from April 2012 on EAD. I got my H-1B in Feb 2014 and since then working with my current employer.<br> I want to go to India but have inhibitions if I’ll get my visa stamping on return. I also want to explore all the possibilities and looking for answers for different scenarios:<br> 1. Is it possible to get visa stamping on the basis of Vendor letter or Client letter is must ?<br> 2. In what all scenarios visa stamping is rejected from India?<br> 3. What if my visa is rejected from India. What are the possibilities of coming back on H-4 as my husband is still here on H-1B petition.<br> 4. How can I work again with my vendor. Do I need to apply for H-1B again. Is it Cap exempted or I’ve to go through the regular H1B process.<br> 5. I’ve also applied for I-140 (GC). What will happen to my application if my Visa is rejected from India and I come back on H-4.
  16. Monday, 24...
    Question: I have a question on the unpaid leaves when outside USA while on H-1. I am on H-1 and recently went to India for stamping which was completed without any problem. I had paid vacation of 2 weeks, which I had already used and stayed in India for a month which is not going to be paid. My employer is saying these will be unpaid leaves and won't be running paychecks for these leaves and is mentioning that this won't be a problem in future as this is legal. I want to take legal opinion from you regarding what the law says in the above situation. <p> 1. If I am out of US on unpaid leaves and won't get paid, will there be any issues on my H-1 status in future for transfer or GC? <br> 2. If due to unpaid leave, W2 is less than the LCA, will it be a problem? If yes, what documentation we can show to USCIS to clarify to them why it’s less?
    Answer:

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

    https://www.youtube.com/watch?v=ujMQ79pgzX8#t=1516

     

    FAQ Transcript

    If you are on H-1, sometimes people ask me, I want to maintain status even though I am getting laid off. Can I be on unpaid leave and does maintain status? 

    Answer is NO. Unpaid leave is not a device to maintain status. However in this scenario  you have gone to gone to India and  got the stamping done and you got the paid vacation of 2 weeks , but you want few more weeks of unpaid leave and is this legal? 

    And the answer is YES. It’s when the employer gives you leave unscheduled, normally unpaid based upon your request not because you don't have a project, then for them not to pay you there is no problem. And for them not to pay you especially when you are outside the USA is absolutely no issue. 

    The only problem is, make sure for the green card purposes the employer is generating enough money to meet the ability to pay wages issue. This is something you have to talk to your lawyers about it. Just tell them make sure if I am unpaid for few weeks it does not affect my green card, ability to pay wages issue. H-1 is no problem but if W-2 is less than the LCA because you are outside USA  there is good explanation. 

    What documentation can you show? The facts that you are outside the U.S.A; so your boarding passes, any other evidences you have been outside the USA any email from you, something inviting or requesting that unpaid leave of absence for personal reason.

  17. Monday, 24...
    Question: I am working on H-1B. This week, I got my I-140 petition approved that was filed in EB2. I am Indian citizen born in India. My marriage is scheduled to happen in Jan, 2015. The girl is citizen of India and was born in Nepal. I have heard that after marriage, I would be eligible to file I-485 for both myself and my (then) wife, based on cross-chargeability rules. <br> 1: Is my eligibility to file I-485 (based on the birth country of wife) and its approval thereafter dependent on discretion of USCIS? If yes, does USCIS generally approve or deny such I-485 petitions filed on the basis of cross chargeability rules? <br> 2: Is there any reason due to which my wife and I would be denied from filing I-485 and there-after getting an approval of I-485 (leaving aside fraud matters)? <br> 3: My fiancée is yet to get her passport made in India. I found that my fiancée does not have her birth certificate from Nepal. Is a birth certificate the only way to prove location of birth? If she gets her birth certificate made now, Does the USCIS create issues about a birth certificate made so many years after birth? <br> 4: In my scenario (EB2 petition, primary applicant India born, wife Nepal born Indian citizen), How long (approximately) after filing I-485 would it take to get the green card?
    Answer:
    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
    https://www.youtube.com/watch?v=ujMQ79pgzX8#t=1305
    
    FAQ Transcript
    
    Here is the situation. What is Cross-Chargeability? Let me explain. Normally when we do analysis which country quota do you belong to for your employment based Green Cards we go by your country of birth. If you are born in India and you are citizen of Japan, you are still going to be charge to India not Japan. If however, your wife is born in third country in Japan you are born in India but your wife is born in Japan, you can be charge to Japan that is called Cross Charge-ability. That is very useful thing to have, because all of sudden from a heavily backed up country you go to country where dates are current. 
    So the problem is she is born in Nepal but does not have the birth certificate. Before I go to the birth certificate question, let me go one by one. First is, does USCIS have discretion to deny such cases? Or do they have to give me the Cross charge-ability? The answer is they have to give the cross chargeability. This is not the question of discretion; they are not doing any favors. Once you meet the requirements and you can prove it you are entitled to your cross charge-ability. You cannot be denied your I-485 for this reason.
    Now, she does not have the birth certificate from Nepal. Birth certificate is the only way to prove the location of birth, it gets tricky. In normal circumstances if you don't have a birth certificate what you will do is you will get a certificate of non availability from the village Panchayat or Municipal corporation where she is born saying that her birth is never recorded. Then you will get two affidavits from people like her parents, who say that we know that she is born on this date, this place. In areas of cross charge-ability USCIS may require further evidence. It can be any evidence about where she lived in Nepal, things like that but if you try to register her birth now that's not going to happen.
    So if you do go through the cross charge-ability and your dates are “current” typically your Green Card should be done within a year.
  18. Tuesday, 18...
    Question: Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?
    Answer:

    Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

  19. Tuesday, 18...
    Question: I am an Indian studying in New Zealand. I have finished my first semester. During my 3 month semester break, from New Zealand I would like to apply for a B-2 visa(visit for pleasure) to the US to attend my best friends wedding as I am her bridesmaid. My query about the funds that I need to show <br> 1. How much do I have to show <br> 2. How old should the funds be
    Answer:

    For visitors visa, there is no requirement of possessing funds. The consulates can require, if they so choose, that you demonstrate your ability to support yourself during the visit, but there is no hard and fast rule on this. Your most likely hurdle will be the need to prove that you will come back and not stay in the US illegally. 

  20. Friday, 14...
    Question: In 2008 while I was working in gas station I was caught selling alcohol to minor. I was in student visa at that time and was getting paid in cash. This was unauthorized work. I was not arrested but went to the court and the final verdict of case came to attempt to sell alcohol to minor which falls into misdemeanor C. Right now I am in H-1B and I have filed my green card through my employment. My Labor and I-140 is approved and waiting for my PD date to be current to apply I-485. So what are my chances to get I-485 approved having that case in my past? I have got mixed answers from the attorneys I have contacted so far. Some said I should be fine and some said if USCIS ask about my work authorization at that time then my petition will be denied due to violating my F-1 status. Please let me know what you think. Will USCIS go further to ask that since you are selling alcohol on F-1, then you must have violated immigration law by being employed without work authorization?
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2538

     

    FAQ Transcript

    If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody  or some kind of public nuisance conviction, in  this  case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?

    First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.

    So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.

    Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction. 

    What is conviction under Immigration law?

    A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK. 

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