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Frequently Asked Questions

Adoption (1)
  1. Adoption from India
Adjustment of Status (39)

The process though which a person within USA obtains a change in their status to green card holder. This is usually the last step for (most not all) green card process.

  1. My mom's green card interview
  2. Can we still file for AOS
  3. Quickest way to get a GC
  4. Pending I-485 and marraige
  5. K-1 Visa AOS
  6. AOS and EAD
  7. Question - unlawful presence in AOS
  8. Working abroad while AOS pending
  9. Working for two companies on EAD
  10. Leave of absence - I-485 pending
  11. Marriage to US Citizen with EB AOS is pending
  12. Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
  13. What does AOS approval mean?
  14. Following to join
  15. Employment-based out of status protection for AOS - Section 245(K)
  16. I-485: pre-adjudication and employment verification letter
  17. Status, authorized period of stay and unlawful presence
  18. I-485 interview-- does arrest create a problem
  19. H-1 Extension based upon spouse's 140; Child born in USA
  20. EB-3 "Unavailable"
  21. AC21 Portability - Changing Jobs After 180 Days
  22. GC future job; H-1 ext. revocation upon 140 denial, etc
  23. Converting from EAD back to H-1--Updated 6 April 2009
  24. Employers and Employees -- H-1 or EAD?
  25. H-1 and EAD
  26. I-485 Priority Dates and Processing Dates
  27. GC Compliance for Employers
  28. Starting business while in AOS/I-485/H-1/H-4
  29. Am I obliged to join my sponsoring employer after GC approval?
  30. Does chargeability change with citizenship change?
  31. Start-up applying for H-1 and AC21 for employees
  32. AC21 Portability and Related Issues
  33. Further questions on AC21
  34. Supervisory review
  35. AOS Pending, Should H-1 be Renewed
  36. Priority Date and AOS (Form I-485) Processing
  37. EAD and H-1 Conversions for Derivatives
  38. Gap in Employment during AOS
  39. AOS Denial – Consequences for H-1
Advance Parole (4)

Advance Parole or AP (Form I-131): The authorization to travel outside the US while your adjustment of status is pending. Note, Form I-131 is also used for Reentry Permit, an application by a US green card holder to be away from USA for over one year.

  1. AOS interview next week, mother in India on AP
  2. Advance Parole
  3. With I-485 pending can I be an investor ?
  4. When can I apply for EAD
AC21 AOS Portability (50)

AC21 is the name given to a law that provides for several matters including the ability to change jobs while an employment-based green card is pending (I-485 AC21 portability) and to start working for an H-1B employer as soon as transfer petition is filed with the USCIS.

  1. Spouse of an O-1 - next step to Green Card
  2. Questions regarding I-485
  3. AOS interview next week, mother in India on AP
  4. AOS applicants applying for H-1 visa
  5. EAD-AC21-Self Porting
  6. AC21 and losing job
  7. J1 overstayed by years, married to a greencard holder
  8. Questions on AC21, EAD, losing job, etc.
  9. I-485 pending and after 6 months laid off
  10. AC21
  11. Current USCIS procedures for PD transfer and AOS
  12. AC-21 Ability to pay
  13. Changing jobs multiple times after I-485 pending
  14. Can AC21 be done for a future job?
  15. I-485 AOS Pending, Employer's Bankruptcy
  16. Important questions on H-1, AP and Travel
  17. Working abroad while AOS pending
  18. Working for two companies on EAD
  19. AC21 - accepting a green card
  20. Leave of absence - I-485 pending
  21. Marriage to US Citizen with EB AOS is pending
  22. Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
  23. What does AOS approval mean?
  24. Following to join
  25. Employment-based out of status protection for AOS - Section 245(K)
  26. I-485: pre-adjudication and employment verification letter
  27. Status, authorized period of stay and unlawful presence
  28. I-485 interview-- does arrest create a problem
  29. H-1 Extension based upon spouse's 140; Child born in USA
  30. EB-3 "Unavailable"
  31. AC21 Portability - Changing Jobs After 180 Days
  32. GC future job; H-1 ext. revocation upon 140 denial, etc
  33. Converting from EAD back to H-1--Updated 6 April 2009
  34. Employers and Employees -- H-1 or EAD?
  35. H-1 and EAD
  36. I-485 Priority Dates and Processing Dates
  37. GC Compliance for Employers
  38. Starting business while in AOS/I-485/H-1/H-4
  39. Am I obliged to join my sponsoring employer after GC approval?
  40. Does chargeability change with citizenship change?
  41. Start-up applying for H-1 and AC21 for employees
  42. AC21 Portability and Related Issues
  43. Filing EB1 while EB2 AOS is pending
  44. Further questions on AC21
  45. Supervisory review
  46. AOS Pending, Should H-1 be Renewed
  47. Priority Date and AOS (Form I-485) Processing
  48. EAD and H-1 Conversions for Derivatives
  49. Gap in Employment during AOS
  50. AOS Denial – Consequences for H-1
CSPA (4)

Child Status Protection Act

  1. Child of a permanent resident and I-130 approved
  2. Green card under the Child Status Protection Act
  3. Read the section under CSPA
  4. F-4 Visa for childrens who are over 21
Employment Based Green Cards (10)
  1. VisaScreen
  2. Green Card for RN
  3. EB-3 category
  4. I got my BSN in the US
  5. Job Change after I-140
  6. Visa Retrogression - Nurses
  7. LPN applying for green card
  8. I am an International student, with F-1 visa
  9. EB3 to EB2 and I-140 Refile
  10. EB1 Extraordinary ability
EB1 Green Card (24)
  1. L-1A holders trying for EB-1
  2. Green card for L1-B or L1-A holders
  3. EB-1: 1 year in 3 years preceding the petition
  4. EB-1 for a visual artist
  5. EB1 - stay requirements
  6. EB 1 approvals
  7. L1A to EB1 from outside USA
  8. Chances of L1A to EB1
  9. EB-1 Visa Processing for medical doctors
  10. Outstanding researcher
  11. EB1 Extraordinary ability
  12. Considering EB-1 application (research)
  13. If my company applies EB1
  14. I was married 9 years ago, getting divorced - EB1
  15. EB-1 derivative green card delayed
  16. L-1B applying for green card
  17. Is employment required for EB1 extraordinary ability applicants?
  18. Investment based green cards
  19. Obtaining H-1 Extension beyond 6 years
  20. L-1B applying for green card
  21. Criteria for Outstanding Researcher/Professor Category
  22. Pointers for EB1/NIW filings
  23. Filing EB1 while EB2 AOS is pending
  24. Basic Criteria for Extraordinary Ability
Extraordinary Ability (1)
  1. EB1 Extraordinary ability
Outstanding Researcher, Professor (2)
  1. Outstanding researcher
  2. US embassy denial
EB2 Green Card (69)
  1. Restart the green card under EB-2 category
  2. Avoiding PERM through EB-2 category
  3. EB2 Master's equivalency and employer
  4. EB-3 to EB-2 with the same employer
  5. Am I eligible for EB-2 or is it too early for green card
  6. EB-2 eligibility
  7. Do I qualify for EB-2 ?
  8. Chances to get EB2 with B.Sc.
  9. EB-2 experience
  10. Switching Jobs after I-140 approval
  11. Green Card Expenses
  12. EB-2 Question
  13. Job description for the EB-2
  14. Perm process during OPT
  15. EB-3 category
  16. Can I apply GC in EB-2 category?
  17. Am I eligible for EB2?
  18. EB-2 category eligibility
  19. EB-2
  20. EB-2 eligibility
  21. Accredited degrees
  22. Can I change jobs and file PERM and I-140 under EB-2
  23. EB-2
  24. Job Change after I-140
  25. Filing EB-2
  26. Eligibility for EB2
  27. EB2 Eligibility
  28. EB3 to EB2 Portability
  29. EB2 qualification with MS
  30. Masters in Computer Science and EB2 eligibility
  31. Regarding GC application after PhD
  32. Can EB3 PD be carried to new EB2?
  33. EB2 - Eligibility
  34. EB2 Schedule A question
  35. EB2 Qualification
  36. EB-2 with ChE MS + 2 yrs exp
  37. EB2 eligibility
  38. EB-2 with three years bachelor's degree
  39. EB2 or EB3
  40. GC Processing and EB2
  41. EB2 and Clinical Specialist
  42. EB2 Eligibility
  43. EB2, volunteer work counted as an experience?
  44. EB2 eligibility
  45. If one has an approved I-140
  46. GC and EB2
  47. EB2 eligibility for advanced degree occupational therapist
  48. EB2 Priority Date Cross Changeability...
  49. EB2 for a State job
  50. EB2 with online masters degree
  51. EB-2
  52. PERM is approved under EB2
  53. EB2
  54. EB-2 Eligibility
  55. When can I apply for EAD
  56. Cross chargeability
  57. US embassy denial
  58. PERM classification EB2
  59. EB3 to EB2 and I-140 Refile
  60. 10+3.5 years diploma + 3 years BS
  61. EB1 Extraordinary ability
  62. EB2 from EB3 qualification
  63. Master transcript as degree
  64. When does education become ground for denial - EB-2
  65. EB2 Qualification
  66. EB2 Qualification
  67. Occupational Therapist and EB2
  68. 3 years of experience in IT field and completing a Masters degree - EB2
  69. Can an unrelated Masters degree get me an EB2?
EB3 Green Card (13)
  1. Professional Experience for EB-3
  2. Restart the green card under EB-2 category
  3. EB-3 to EB-2 with the same employer
  4. EB-3 category
  5. Job Change after I-140
  6. EB3 to EB2 Portability
  7. Can EB3 PD be carried to new EB2?
  8. Changing to Skilled worker
  9. My wife filed for Skilled Worker
  10. EB2 or EB3
  11. EB3 to EB2 and I-140 Refile
  12. EB2 from EB3 qualification
  13. Watch out - the prioirty date cut off in March was effective immediately
EB5 Green Card (3)
  1. Applying for investment visa - regional investment center EB5
  2. EB5 investment visa
  3. Investment based green cards
National Interest Waiver (5)
  1. Obtaining H-1 Extension beyond 6 years
  2. Criteria for Outstanding Researcher/Professor Category
  3. Pointers for EB1/NIW filings
  4. Filing EB1 while EB2 AOS is pending
  5. Basic Criteria for Extraordinary Ability
Form I-130 (13)
  1. Father filing an I-130
  2. I-130 for husband approved - what next?
  3. My mom's green card interview
  4. I-130 & I-485
  5. Petition for brother
  6. I-130 petition
  7. B visa while GC pending
  8. Legality of I-485/I-130 filing
  9. J1 overstayed by years, married to a greencard holder
  10. I130 and application for adjustment
  11. I-130 for parents and sisters
  12. TN Holder laid off
  13. I-130 has 3 years not yet approved
Form I-131 (1)
  1. Reentry application and biometrics
Form I-140 (40)
  1. Spouse of an O-1 - next step to Green Card
  2. Can I process I-140 with previous company
  3. Can I apply for H4 visa for spouse while on EAD
  4. Can approved I-140 be revoked
  5. Switching Jobs after I-140 approval
  6. H-1 extension beyond 6 years
  7. Can I change jobs and file PERM and I-140 under EB-2
  8. Job Change after I-140
  9. Can my employer file a I-140 after I quit or he terminates me?
  10. Approval of I-140
  11. When can I apply for EAD
  12. Out of Status
  13. Must we withdraw a PERM application if the employee is laid off?
  14. Importance of having continuity of employment/pay stubs
  15. EB3 to EB2 and I-140 Refile
  16. Birth Certificate Question
  17. Questions on AC21, EAD, losing job, etc.
  18. Use of priority date
  19. H1 6th Yr - Labor Approved - NO I-140
  20. I-140 Denied
  21. Current USCIS procedures for PD transfer and AOS
  22. AC-21 Ability to pay
  23. I-140 application, experience certificate
  24. I-290B AAO Process case online status question
  25. I-140 may get revoked. What happens to priority date?
  26. Obtaining H-1 Extension beyond 6 years
  27. RFE after the I-140 was approved
  28. H-1 Extension based upon spouse's 140; Child born in USA
  29. USCIS Finally correct 140 Premium Policy
  30. Multiple I-140 filings
  31. GC future job; H-1 ext. revocation upon 140 denial, etc
  32. Employers and Employees -- H-1 or EAD?
  33. CIS Reinstates Limited I-140 Premium Processing
  34. If I-140 gets revoked/denied does my H-1 extension get canceled?
  35. Expected I-140 denial
  36. Does filing for any green card permit me to stay in USA?
  37. Can an unrelated Masters degree get me an EB2?
  38. What to do if an I-140 gets rejected?
  39. Laid off - Now what ???
  40. Supervisory review
Form I-485 (63)
  1. Spouse of an O-1 - next step to Green Card
  2. Questions regarding I-485
  3. Can I apply for H4 visa for spouse while on EAD
  4. AOS interview next week, mother in India on AP
  5. AOS applicants applying for H-1 visa
  6. I-130 & I-485
  7. With I-485 pending can I be an investor ?
  8. How to check if I-485 received
  9. What would be derivative's status
  10. Green card under the Child Status Protection Act
  11. When can I apply for EAD
  12. Quickest way to get a GC
  13. Pending I-485 and marraige
  14. File I-485 while J-1 waiver is pending
  15. Legality of I-485/I-130 filing
  16. AOS and EAD
  17. EAD restriction for 245i
  18. How to renew green card
  19. I130/485 for wife
  20. Birth Certificate Question
  21. EAD - Job title change on the same job
  22. Turning 21 and I-485 pending
  23. I-485 pending and after 6 months laid off
  24. Current USCIS procedures for PD transfer and AOS
  25. Priority Date For Indians
  26. I-485 and Divorce
  27. I-485 AOS Pending, Employer's Bankruptcy
  28. Important questions on H-1, AP and Travel
  29. Working abroad while AOS pending
  30. Working for two companies on EAD
  31. AC21 - accepting a green card
  32. Leave of absence - I-485 pending
  33. Marriage to US Citizen with EB AOS is pending
  34. Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
  35. What does AOS approval mean?
  36. Following to join
  37. Employment-based out of status protection for AOS - Section 245(K)
  38. I-485: pre-adjudication and employment verification letter
  39. Filing I-485 after I-130 approved
  40. Status, authorized period of stay and unlawful presence
  41. I-485 interview-- does arrest create a problem
  42. H-1 Extension based upon spouse's 140; Child born in USA
  43. EB-3 "Unavailable"
  44. AC21 Portability - Changing Jobs After 180 Days
  45. GC future job; H-1 ext. revocation upon 140 denial, etc
  46. Converting from EAD back to H-1--Updated 6 April 2009
  47. Employers and Employees -- H-1 or EAD?
  48. H-1 and EAD
  49. I-485 Priority Dates and Processing Dates
  50. GC Compliance for Employers
  51. Starting business while in AOS/I-485/H-1/H-4
  52. Am I obliged to join my sponsoring employer after GC approval?
  53. Does chargeability change with citizenship change?
  54. Start-up applying for H-1 and AC21 for employees
  55. AC21 Portability and Related Issues
  56. Further questions on AC21
  57. Laid off - Now what ???
  58. Supervisory review
  59. AOS Pending, Should H-1 be Renewed
  60. Priority Date and AOS (Form I-485) Processing
  61. EAD and H-1 Conversions for Derivatives
  62. Gap in Employment during AOS
  63. AOS Denial – Consequences for H-1
Form I-751 (2)

Petition for a conditional resident who obtained status through marriage to apply to remove the conditions on his or her residence.

  1. I-751 genuine marriage
  2. Green card
Family-Based Green Cards (109)
  1. Visit visa and marriage
  2. LPR petition for son
  3. Sponsoring green card for brother
  4. Family Unification and Green Card
  5. Father filing an I-130
  6. Green Card and last name
  7. New GC for my wife and child
  8. GC petition for a 21 year old
  9. Two year temporary green card
  10. AOS interview next week, mother in India on AP
  11. Last name in Passport and GC processing
  12. I-130 for husband approved - what next?
  13. Visitors visa and green card
  14. Green card and overstay
  15. Mandated poverty line
  16. Processing time for spouse - greencard
  17. Family based petition - sibling
  18. Filing in India after wedding in US
  19. Interview for green card
  20. Marriage in India or in US
  21. Can I petition my Fiancé
  22. My mom's green card interview
  23. Can my daughter sponser me?
  24. Family based green card and country of origin
  25. Am I eligible for a green card?
  26. Cancel sponsorship of my brother
  27. Son sponsoring mother
  28. B2 visa to green card
  29. Petition for brother
  30. GC for parents
  31. Can we still file for AOS
  32. 6 month rule
  33. GC for Wife
  34. Married to a US citizen
  35. Greencard holder filing for a non-US citizen
  36. Petition for Father and Husband
  37. Green card under the Child Status Protection Act
  38. Green Card and marraige to a non citizen
  39. Family based green card.
  40. American born mother and daughter born in Mexico
  41. GC for Parents
  42. GC for brother and family
  43. Petition for siblings
  44. GC through mother ....
  45. U.S citizen sponsoring mother
  46. Unemployed husband
  47. I-130 petition
  48. I have a green card, I was out of the U.S for more than a year
  49. Which state to file papers for green card
  50. Marriage Immigration - Impact of divorce
  51. How much more do I have to wait for my green card
  52. Marriage Based Petition
  53. Getting married to a green card holder
  54. I130 and application for adjustment
  55. Father wants to sponsor me
  56. Can my parents stay in the US?
  57. Spouse's status -- Are you a US Citizen?
  58. Green card for spouse entered illegally
  59. Sponsoring both my parents
  60. I-130 for sibling
  61. Sponsoring brother from Vietnam, and he just has a new baby.
  62. Traveling to US while green card petition pending
  63. Green Card through marriage
  64. I-130 for visiting parents
  65. GC for wife - marriage annulled
  66. F-4 Family Category
  67. Petition for mother
  68. F1 student (wife of a GC holder) - pregnant
  69. Brother with medical issues
  70. Green Card Through Marriage
  71. I-751 genuine marriage
  72. I-130 for parents and sisters
  73. F1 student married with GC holder
  74. Applied Green card (family) while on H-1B
  75. Waiting for PR
  76. Daughter of U.S. Green Card holder
  77. If my fiancee came to the US illegally
  78. Sponsor Green card
  79. I-130 has 3 years not yet approved
  80. Green Card abandonment
  81. Applying for NIV with a pending GC application
  82. Sponsoring daughter over 21 on F1 status
  83. Green Card
  84. Eligible husband?
  85. Immigration after I-130
  86. Petitioning for Parents
  87. Brother and Family Immigration
  88. Renewing a green card
  89. Green Card for Husband
  90. How to apply for work authorization after I130 approval?
  91. Parent of US citizen - Child born in USA
  92. Change of status for Beneficiary
  93. Green card Family category 4
  94. How to renew a green card
  95. How long is the waiting?
  96. Marriage during F1 status
  97. Sponsoring my Mom for reinstating Green card
  98. Green Card holder parents bringing to US a child born outside USA
  99. Why does it take so much time to get green cards
  100. Applying for green card while on a B-1 or B-2 visa
  101. Marriage to US Citizen with EB AOS is pending
  102. Can H-1 be extended based upon family-based green card?
  103. Waiver of Joint filing requirement
  104. Filing I-485 after I-130 approved
  105. Adoption from India
  106. Does filing for any green card permit me to stay in USA?
  107. Do advanced degrees help in marriage-based green card?
  108. B visa while GC pending or similar situation
  109. Green Card through Citizen brother
Green Card through Parent or Child (5)
  1. American born mother and daughter born in Mexico
  2. GC for Parents
  3. Sponser Birth Certificate
  4. Green card based upon one-year old child
  5. I-130 for visiting parents
Green Card through Parents (4)
  1. LPR petition for son
  2. GC petition for a 21 year old
  3. GC through mother ....
  4. Father wants to sponsor me
Green Card through Children (3)
  1. Green Card and last name
  2. Last name in Passport and GC processing
  3. Can my daughter sponser me?
Immigration through Marriage (1)
  1. Getting married to a green card holder
Green Card through Brother or Sister (10)
  1. LPR petition for son
  2. Sponsoring green card for brother
  3. Family based petition - sibling
  4. Cancel sponsorship of my brother
  5. Family based green card.
  6. GC for brother and family
  7. B1 rejected because I had applied for Green Card
  8. Petition for siblings
  9. Brother with medical issues
  10. Green card Family category 4
Green Card for Abused Spouse (1)
  1. Spousal abuse
Green Card Lottery (2)
  1. Labor certification and DV
  2. Impact of unauthorized employment on DV
General Green Card (129)
  1. Questions regarding I-485
  2. Green Card for musicians
  3. Family Unification and Green Card
  4. Green Card Stolen
  5. Out of F-1 visa status
  6. Two year temporary green card
  7. Green card for L1-B or L1-A holders
  8. Green Card for musicians
  9. Green Card Expenses
  10. Holding Company Stocks on TN Visa
  11. Green card and overstay
  12. Working outside USA
  13. Mandated poverty line
  14. AOS applicants applying for H-1 visa
  15. B1/B2
  16. Australian Musician to perform in US
  17. Green card and priority dates
  18. Co sign
  19. P1 visa to green card
  20. How to check if I-485 received
  21. Re-entry permit
  22. Outstanding researcher
  23. EB-2 Eligibility
  24. When can I apply for EAD
  25. Quickest way to get a GC
  26. I have a green card, I was out of the U.S for more than a year
  27. B visa while GC pending
  28. AC21 and losing job
  29. EAD restriction for 245i
  30. How to renew green card
  31. J1 overstayed by years, married to a greencard holder
  32. Conditional green card
  33. Out of Status
  34. Must we withdraw a PERM application if the employee is laid off?
  35. Importance of having continuity of employment/pay stubs
  36. Questions on AC21, EAD, losing job, etc.
  37. From a B-2 visa to a green card
  38. Time Frame for Green Card
  39. E-3 visa dual intent - applying for green card
  40. I-140 Denied
  41. Current USCIS procedures for PD transfer and AOS
  42. My mother got her green card
  43. Green card
  44. Prevailing Wage - H-1 and GC
  45. DWI and Naturalization
  46. Sponsoring Niece and Nephew
  47. Green Card holder parents bringing to US a child born outside USA
  48. I-485 AOS Pending, Employer's Bankruptcy
  49. Obtaining H-1 Extension beyond 6 years
  50. Important questions on H-1, AP and Travel
  51. Working abroad while AOS pending
  52. Working for two companies on EAD
  53. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  54. Applying for green card while on a B-1 or B-2 visa
  55. AC21 - accepting a green card
  56. Leave of absence - I-485 pending
  57. RFE after the I-140 was approved
  58. Marriage to US Citizen with EB AOS is pending
  59. Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
  60. Should you be applying for employment-based green card in this economy?
  61. What does AOS approval mean?
  62. Following to join
  63. Employment-based out of status protection for AOS - Section 245(K)
  64. Can H-1 be extended based upon family-based green card?
  65. I-485: pre-adjudication and employment verification letter
  66. Status, authorized period of stay and unlawful presence
  67. I-485 interview-- does arrest create a problem
  68. H-1 Extension based upon spouse's 140; Child born in USA
  69. H-1 without specific job/GC continuation without H-1
  70. USCIS Finally correct 140 Premium Policy
  71. Watch out - the prioirty date cut off in March was effective immediately
  72. Criteria for Outstanding Researcher/Professor Category
  73. EB-3 "Unavailable"
  74. AC21 Portability - Changing Jobs After 180 Days
  75. Watch out for this immigration fraud!!
  76. Multiple I-140 filings
  77. GC future job; H-1 ext. revocation upon 140 denial, etc
  78. Converting from EAD back to H-1--Updated 6 April 2009
  79. Employers and Employees -- H-1 or EAD?
  80. H-1 and EAD
  81. I-485 Priority Dates and Processing Dates
  82. DOL gives PERM processing dates
  83. GC approved. When should I start working on the green card job?
  84. GC Compliance for Employers
  85. Renewing Expired GC and Citizenship for autistic/disabled persons
  86. Starting business while in AOS/I-485/H-1/H-4
  87. Pointers for EB1/NIW filings
  88. Am I obliged to join my sponsoring employer after GC approval?
  89. Does chargeability change with citizenship change?
  90. How does the Stimulus Bill affect H-1b, L-1 and Green Cards
  91. Adoption from India
  92. CIS Reinstates Limited I-140 Premium Processing
  93. Can F/J holders apply for green card?
  94. What happens when an employer is under criminal investigation/indictment?
  95. Turning 21 - do I have to convert to F-1 from H-4?
  96. Checked the wrong box on Form I-90
  97. Green Cards for Physical Therapists
  98. May physicians process GC during residency?
  99. Is salary reduction possible/legal?
  100. If I-140 gets revoked/denied does my H-1 extension get canceled?
  101. DOL Comments on PERM Processing Times
  102. Expected I-140 denial
  103. Can an unrelated Masters degree get me an EB2?
  104. Does filing for any green card permit me to stay in USA?
  105. What to do if an I-140 gets rejected?
  106. Do advanced degrees help in marriage-based green card?
  107. Consequences of DUI's on naturalization and green card
  108. Does lay-off affect natutralization?
  109. Start-up applying for H-1 and AC21 for employees
  110. AC21 Portability and Related Issues
  111. Filing EB1 while EB2 AOS is pending
  112. Further questions on AC21
  113. Promotion during the green card process through PERM
  114. Laid off - Now what ???
  115. B visa while GC pending or similar situation
  116. Supervisory review
  117. Green Card through Citizen brother
  118. Changing Careers after the GC
  119. Multiple Labor Certifications
  120. Can Employer Withdraw My Green card Application?
  121. How soon can I leave the employer after I get my GC
  122. PERM News July 15 2008 DOL Meeting
  123. AOS Pending, Should H-1 be Renewed
  124. Priority Date and AOS (Form I-485) Processing
  125. EAD and H-1 Conversions for Derivatives
  126. Gap in Employment during AOS
  127. AOS Denial – Consequences for H-1
  128. PERM Through Relative Owned or Controlled Company
  129. Basic Criteria for Extraordinary Ability
Loss of green card (3)

Includes topics of loss of physical green card papers or the card itself as well as loss of green card through abandonment and criminal activity.

  1. Green Card Stolen
  2. How to renew green card
  3. Renewing a green card
PERM - Labor Certification (46)
  1. PERM Audit & H1 extension beyond 6 yrs
  2. Restart the green card under EB-2 category
  3. Can I process I-140 with previous company
  4. Avoiding PERM through EB-2 category
  5. PERM petition and employer
  6. PERM Audit and H-1 Expired
  7. Holding Company Stocks on TN Visa
  8. Perm process during OPT
  9. EB-3 category
  10. Can I change jobs and file PERM and I-140 under EB-2
  11. Job Change after I-140
  12. Can EB3 PD be carried to new EB2?
  13. PERM Audit
  14. Guidelines for 7th year extension
  15. EB2 Schedule A question
  16. PERM application
  17. Green Card for employees
  18. Can I file I-140 under EB2 if PERM is filed under EB3
  19. Labor filing and F-1
  20. Priorty date
  21. PERM processing times
  22. Labor certification and DV
  23. PERM - reduction in work hours, wages
  24. PERM when company has freeze in hiring
  25. EB-2 Eligibility
  26. PERM times
  27. Must we withdraw a PERM application if the employee is laid off?
  28. PERM classification EB2
  29. H-1 extension while PERM pending
  30. When to file for 7th year extension (Timing)?
  31. PERM and H-1 extension
  32. Labor Cert - successor in interest
  33. PERM Process timeline
  34. Mandamus against PERM delays
  35. Obtaining H-1 Extension beyond 6 years
  36. Should you be applying for employment-based green card in this economy?
  37. L-1B applying for green card
  38. Mandamus against PERM delays
  39. DOL gives PERM processing dates
  40. DOL Comments on PERM Processing Times
  41. Can an unrelated Masters degree get me an EB2?
  42. Promotion during the green card process through PERM
  43. Laid off - Now what ???
  44. Multiple Labor Certifications
  45. PERM News July 15 2008 DOL Meeting
  46. PERM Through Relative Owned or Controlled Company
Audits (3)

PERM audits typically involve questions from the USDOL regarding the PERM filing.

  1. PERM Audit & H1 extension beyond 6 yrs
  2. PERM Audit and H-1 Expired
  3. Mandamus against PERM delays
Priority Date (7)
  1. Can approved I-140 be revoked
  2. Switching Jobs after I-140 approval
  3. Can I file I-140 under EB2 if PERM is filed under EB3
  4. Priorty date
  5. Green card and priority dates
  6. If one has an approved I-140
  7. Priority Date For Indians
Reentry Permit (22)
  1. Reentry permit process
  2. Reentry application and biometrics
  3. Reentry permit is it recommended?
  4. Reentry permit is not a guarantee
  5. GC and Company Involvement
  6. Possession of re-entry permit does not guarantee readmission?
  7. Working outside USA
  8. Reentry Permit and N-470
  9. Reentering the US
  10. Eligibility for N-470
  11. Can my wife use the N-470?
  12. Reentry permit time frame
  13. Re-entry permit
  14. Entering US with Valid Reentry Permit with Over two yeas absence
  15. Reentry permits and citizenship application
  16. Reentry Permit
  17. Reentry permit
  18. My mother got her green card
  19. Is it possible to apply for reentry permit with the SSN
  20. Reentry permit and DV 2010 visa
  21. N-470 filing after an absence of one year
  22. Two Year Re Entry Permit For Green Card Holders
VAWA (1)

Violence Against Women Act

  1. Spousal abuse
DS-160 (29)

The DS-160, Online Nonimmigrant Visa Application, is a fully integrated online application form that is used to collect the necessary application information from a person seeking a nonimmigrant visa for temporary travel to the United States.

  1. Visa Categories Not Using the DS-160
  2. Treaty Trader or Treaty Investor, E Visa Applicants
  3. Alter Family or Group Applications
  4. Family or Group Applications
  5. Reprint the confirmation page
  6. DS-160 Confirmation Page
  7. Scheduling a new appointment after completing DS-160
  8. Correcting Answers on a Submitted DS-160
  9. DS-160 confirmation page and uploading photo
  10. Uploading a Photo to your DS-160
  11. Reusing the DS-160 on your computer
  12. Data changes on DS-160
  13. Application “times out,” or error received while saving DS-160
  14. Saving DS-160 application on a computer
  15. Accessing partially completed DS-160 application
  16. Saving your DS-160 application
  17. DS-160 and third party signature
  18. DS-160 form Signature
  19. Principal applicant while completing DS-160
  20. Providing the name of a contact or organization while completing DS-160
  21. Passport Book Number while completing DS-160
  22. Home phone number while completing DS-160
  23. Social Security number or a taxpayer identification number while completing DS-160
  24. National Identification Number and DS-160
  25. Selecting U.S. Embassy or Consulate while completing DS-160
  26. DS-160 and additional forms
  27. Mandatory questions on the DS-160
  28. Completing the DS-160
  29. Accessing the DS-160
OPT (1)

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under the prior rules, an F-1 student could be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies.

  1. OPT - H4 - H1
General Nonimmigrant Visa (167)
  1. Two-year home residency requirement
  2. Nonimmigrant waiver
  3. L-2 visa and EAD processing
  4. L-2 visa application for spouse
  5. Multiple entries for UK Citizens
  6. I-94 Extension Time
  7. L-1 Blanket petition
  8. Canadian with J-2 visa
  9. Visa Stamp
  10. J-2 holders and work authorization
  11. Out of F-1 visa status
  12. J-2 to TN
  13. Stopping at USA
  14. Visa for family to visit brother
  15. Working Visa
  16. H-4 Visa and Status Validity
  17. Pharmacist visa for FPGEE
  18. B-2 visa
  19. H1B interview travel cost reimbursement
  20. J-1 Waiver Pending
  21. J-2 visa and I-275
  22. H1-B to F-1
  23. H1 Renewal Denial/I 94 expired
  24. L-1 visa from an affiliate
  25. Can I petition my Fiancé
  26. Wife work permit
  27. B-2 to B-1
  28. Parents B-2 Visa
  29. AOS applicants applying for H-1 visa
  30. My wife filed for Skilled Worker
  31. F-1 reinstatement
  32. L1B - resignation in US
  33. Lost old EAD card for another OPT application
  34. Student visa
  35. Advise needed for replying visa
  36. Where to file complain?
  37. H1B Restamping
  38. Travel during H4 processing
  39. L1B to H1
  40. E3 visa
  41. B-2 Visa Multiple destination
  42. B2 Visa
  43. B1/B2 Category
  44. G-4 to H1B
  45. H1B- denial
  46. Having a board test on B1/B2
  47. L1A visa and H-1
  48. L1A Extension processing time
  49. B1 rejected because I had applied for Green Card
  50. Quickest way to get a GC
  51. Visa for Mother in law
  52. Business Visa
  53. Return to America on a B-2 visa
  54. H1B Pending
  55. F1 visa to business visa or H1/L1
  56. H-2B Visa
  57. H1 working in University (non profit organization)
  58. Transfer to a startup company H-1
  59. H1 approval and stamping
  60. H1 B question
  61. Renewing O-1 visa
  62. J1 overstayed by years, married to a greencard holder
  63. Need information
  64. E3 to H4
  65. Out of Status
  66. H1B Status
  67. Importance of having continuity of employment/pay stubs
  68. Visa for parents and niece
  69. F1 visa to H1-b
  70. Questions on AC21, EAD, losing job, etc.
  71. Time Frame for Green Card
  72. How to apply for visitors visa?
  73. H1B extension for pending labor
  74. H1 6th Yr - Labor Approved - NO I-140
  75. Information regarding pharmacist immigration
  76. Travel during 90 days of OPT without Job
  77. Filling out a DS 160 Non-immigrant visa Form by mistake ...
  78. How does one assist family in applying for B-2 (Visitors/Tourist) visa
  79. Divers Licenses, while H-1 extension pending
  80. I-485 AOS Pending, Employer's Bankruptcy
  81. Obtaining H-1 Extension beyond 6 years
  82. Important questions on H-1, AP and Travel
  83. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  84. H-1 visa denial and investigation
  85. Applying for green card while on a B-1 or B-2 visa
  86. Compensation for H-1 lay off
  87. Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
  88. Visa after B-1 to F-1 conversion
  89. F-1 visa stamp, H-4 pending
  90. H-1 denial, appeal, MTR
  91. K-3 visa when I-130 approved
  92. Can H-1 be extended based upon family-based green card?
  93. Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
  94. From H-4 to F-1
  95. What kind of company is good for H-1B processing
  96. Entering on/applying for nonimmigrant visa while green card is pending
  97. Status, authorized period of stay and unlawful presence
  98. LCA's for H-1 will probably take longer now
  99. When to apply for L-2 extension
  100. H-1 Quota Count still at 45,000 as of 4 May 2009
  101. H-1 extension denied - status
  102. H-1 Extension based upon spouse's 140; Child born in USA
  103. H-1 Quota still open
  104. PROPOSED Legislation to Reform H-1B Visa Program
  105. H-1 without specific job/GC continuation without H-1
  106. US employee working from India
  107. H-1 Count 44,000 -- You can Still File
  108. H-1 holder aplying for H-4 visa
  109. New H-1 employee returning -- rights and issues
  110. Effect of Bankruptcy on immigration
  111. When is an H visa stamping required?
  112. H-1 visa stamping -- is it difficult?
  113. Unreasonable H-1 requests from CIS
  114. Inviting parents to provide care during pregnancy or postnatal period
  115. H-1 Quota Status
  116. USCIS is continuing to accept H-1 filings
  117. GC future job; H-1 ext. revocation upon 140 denial, etc
  118. Converting from EAD back to H-1--Updated 6 April 2009
  119. Are H-1 holders being turned back at the airport?
  120. Employers and Employees -- H-1 or EAD?
  121. H-1 and EAD
  122. H-1 Lottery for 2009
  123. When does CIS investigate fraud?
  124. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  125. GC Compliance for Employers
  126. L-2 EAD and H-1
  127. Starting business while in AOS/I-485/H-1/H-4
  128. Employers questions on H-1 compliance
  129. How does the Stimulus Bill affect H-1b, L-1 and Green Cards
  130. H-1 Quota - what is acceptable evidence for degree
  131. Can B visa holder convert to F or other status?
  132. Can F/J holders apply for green card?
  133. Turning 21 - do I have to convert to F-1 from H-4?
  134. Do physicians have the right to an extension beyond 6 years for waiver jobs?
  135. What happens when an employer is under criminal investigation/indictment?
  136. Employers responsibility in H-1 process
  137. Is salary reduction possible/legal?
  138. If I-140 gets revoked/denied does my H-1 extension get canceled?
  139. L-2 to L-1 COS or Visa?
  140. Note! Employer subject to H-1 quota, but the job may not be
  141. Consequences of not using an H-1 visa
  142. L-1/H-1 COS Issues
  143. Employer not paying, may I tranfer H-1?
  144. H-1 converting to H-4 and then (maybe) back again
  145. What to do if an I-140 gets rejected?
  146. Do advanced degrees help in marriage-based green card?
  147. Can H-4/F-2 holders perform volunteer work?
  148. Fulfilling J-1 HRR in installments - not possible
  149. L-1 - H-1 COS issues
  150. H-1 related I-94 issue
  151. Start-up applying for H-1 and AC21 for employees
  152. H-1 Quota issues for students
  153. H-1 where there is no license in hand
  154. H-1 - how to revert to old employer
  155. Laid off - Now what ???
  156. F-1 OPT - No Job
  157. H-1 quota - the law
  158. H-1 transfer - what action is needed for H-4
  159. E-3 Issue
  160. B visa while GC pending or similar situation
  161. H-1 Quota
  162. Using B visa with F-1
  163. Multiple H-1 approvals
  164. How to get back to H-1 status?
  165. AOS Pending, Should H-1 be Renewed
  166. Filling DS 156
  167. Does J-1 HRR Prohibit Issuance of F-1?
B Visa (89)
  1. Nonimmigrant waiver
  2. Visitor visa rejected
  3. Visit visa and marriage
  4. Multiple entries for UK Citizens
  5. Re-entry with B-1 Visa
  6. Stopping at USA
  7. Visa for family to visit brother
  8. Visitors visa and green card
  9. I am a US citizen and spouse on B-2 visa
  10. Pharmacist visa for FPGEE
  11. Visit visa for my parents
  12. B-2 visa
  13. B-2 to B-1
  14. Parents B-2 Visa
  15. Mother's visa expires - reentry
  16. B1/B2
  17. B-1/ B-2 for business
  18. Visit visa and work
  19. My wife filed for Skilled Worker
  20. Mom's visa denial
  21. B-1/B-2 visa for medical reasons
  22. Australian Musician to perform in US
  23. 5 year multi entry visa
  24. Visitor visa - passport in maiden name
  25. Tourist Visa Validity
  26. Co sign
  27. B2 visa to green card
  28. Visitors visa sponsored by H-1B holder
  29. Proper protocol for B-2 visa
  30. Married to a US citizen
  31. B-2 Visa Multiple destination
  32. B2 Visa
  33. B1/B2 Category
  34. Having a board test on B1/B2
  35. B1 rejected because I had applied for Green Card
  36. Visa for Mother in law
  37. Business Visa
  38. Return to America on a B-2 visa
  39. H1B Pending
  40. F1 visa to business visa or H1/L1
  41. B visa while GC pending
  42. Legality of I-485/I-130 filing
  43. I want to bring my mom to the states
  44. Visa for Mother in law
  45. Can my parents stay in the US?
  46. Visit Visa to the U.S.
  47. Co-sign for my fiance's mom
  48. Entering U.S.
  49. B1B2 VISA multiple entry 10 years
  50. Traveling to US while green card petition pending
  51. I have been revoked to seattle with visa B1/B2
  52. Applying for B1/B2
  53. Visa for parents and niece
  54. Are there any impediments to exit the US with a expired B1/B2
  55. Vistor Visa for Niece
  56. B-1/B-2 visa to F-2 visa
  57. From a B-2 visa to a green card
  58. Marrying B1/B2 girlfriend
  59. Re-enter US on tourist visa
  60. B1 visa
  61. B visa for fiance
  62. How to apply for visitors visa?
  63. B Visa renewal
  64. B1/B2 Multiple Entry Visa
  65. Confused - B-1 to F-1 change
  66. I Need A B2 Visa
  67. B1 Visa
  68. B Visa renewal
  69. Visa B2 - affidavit of support
  70. Can Europeans apply for B2 tourist visa?
  71. Applying for B2 visa after voluntary departure from USA
  72. How does one assist family in applying for B-2 (Visitors/Tourist) visa
  73. Visitors I-94 extension on expired visa?
  74. Extension for Visitor Visa Denied Please Help
  75. B-2 Visa
  76. Visitor Visa denials
  77. B2 Visa
  78. B2 -- unlawful presence
  79. Effective date on I-94 for a visitors visa
  80. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  81. Applying for green card while on a B-1 or B-2 visa
  82. Visa after B-1 to F-1 conversion
  83. Entering on/applying for nonimmigrant visa while green card is pending
  84. New H-1 employee returning -- rights and issues
  85. Inviting parents to provide care during pregnancy or postnatal period
  86. Can B visa holder convert to F or other status?
  87. Laid off - Now what ???
  88. B visa while GC pending or similar situation
  89. Using B visa with F-1
B-1 Visa (10)
  1. Re-entry with B-1 Visa
  2. Visa for family to visit brother
  3. B-2 to B-1
  4. B1/B2 Category
  5. Visa for Mother in law
  6. I have been revoked to seattle with visa B1/B2
  7. Applying for B1/B2
  8. How to apply for visitors visa?
  9. B Visa renewal
  10. B-1 visa for amateur singer
B-2 Visa (11)
  1. B-2 to B-1
  2. B2 visa and change of status
  3. B2 visa to green card
  4. B-2 Visa Multiple destination
  5. B2 Visa
  6. B1/B2 Category
  7. Return to America on a B-2 visa
  8. I have been revoked to seattle with visa B1/B2
  9. Applying for B1/B2
  10. How to apply for visitors visa?
  11. B Visa renewal
E Visa (15)
  1. E-3 dual intent
  2. E-2 visa
  3. E-3 & Diversity Visa Application
  4. H-1B and E-3
  5. E-3 for performer
  6. E3 visa
  7. E-3 Visa - Accountant
  8. E3 to H4
  9. E-3 Visa
  10. E visa
  11. Business on E2 has closed. Need help
  12. E-3 and TARP
  13. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  14. Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
  15. E-3 Issue
E-2 Visa (1)
  1. E-2 visa
E-3 Visa (8)
  1. E-3 dual intent
  2. E3 visa for LPN
  3. E-3 for performer
  4. E3 visa
  5. E-3 Visa - Accountant
  6. E3 to H4
  7. E-3 Visa
  8. E-3 visa dual intent - applying for green card
F Visa (41)
  1. COS from H-4 to F-1 visa
  2. H1-B to F-1
  3. I got my BSN in the US
  4. My spouse working illegally
  5. F-1 reinstatement
  6. Lost old EAD card for another OPT application
  7. Student visa
  8. F1 visa to business visa or H1/L1
  9. F1 and OPT Expired but 60 days not up
  10. Need information
  11. Status change from F1 to H1b
  12. Visiting Canada on a student visa
  13. F1 visa to H1-b
  14. B-1/B-2 visa to F-2 visa
  15. F1 student (wife of a GC holder) - pregnant
  16. Time Frame for Green Card
  17. Confused - B-1 to F-1 change
  18. Student Visa
  19. Travel during 90 days of OPT without Job
  20. Sponsoring daughter over 21 on F1 status
  21. F-2 visa
  22. Working after studying
  23. F1 Visa Expired on OPT
  24. Social Security Card -- F-1 visa
  25. F-1 working off-campus
  26. F1 and starting a business
  27. F1 visa denial
  28. Traveling on OPT-F1
  29. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  30. Visa after B-1 to F-1 conversion
  31. F-1 visa stamp, H-4 pending
  32. From H-4 to F-1
  33. Status, authorized period of stay and unlawful presence
  34. Can B visa holder convert to F or other status?
  35. Can F/J holders apply for green card?
  36. Turning 21 - do I have to convert to F-1 from H-4?
  37. Do advanced degrees help in marriage-based green card?
  38. Can H-4/F-2 holders perform volunteer work?
  39. F-1 OPT - No Job
  40. B visa while GC pending or similar situation
  41. Using B visa with F-1
F-1 Visa (7)
  1. Two-year home residency requirement
  2. F-1 Curricular Practical Training (CPT)
  3. Out of F-1 visa status
  4. RN F-1 visa
  5. I130/485 for wife
  6. MAVNI to F-1
  7. Travel overseas on F-1
G Visa (1)
  1. G-4 to H1B
H Visa (159)
  1. H-1 transfer during pending extension
  2. Transfer of jobs under same employer
  3. H-1B to B-2
  4. H-4 Visa and Status Validity
  5. OPT - H4 - H1
  6. Business in the US, on H1B visa
  7. Switching Jobs after I-140 approval
  8. H-4 Visa Stay in US
  9. H-1B Stamping
  10. H-4 rejected under 214(b)
  11. H-1 Extension
  12. H1-B Visa Transfer
  13. H-1 extension beyond 6 years
  14. H1B interview travel cost reimbursement
  15. Advance Parole
  16. H1-B to F-1
  17. H1 Renewal Denial/I 94 expired
  18. Parents B-2 Visa
  19. Employer/Employee Relationship while H1B transfer
  20. AOS applicants applying for H-1 visa
  21. Can I apply for Social Security Number ?
  22. H1B extension or EAD
  23. H-1 for Canadian PR with J-1 issue
  24. Self Employed while on EAD
  25. H-4 visa and age
  26. H4
  27. H1 Visa
  28. E3 visa for LPN
  29. US RN Graduate foreign national
  30. H-1B and E-3
  31. H1B Extension beyond 6 years
  32. H4 inquiry - Dubai resident holding Indian passport
  33. Visitors visa sponsored by H-1B holder
  34. Query about H1B Visa transfer
  35. H1B Validity Period
  36. Where to file complain?
  37. H1B Restamping
  38. Travel during H4 processing
  39. L1B to H1
  40. G-4 to H1B
  41. H1B- denial
  42. EB-1 Visa Processing for medical doctors
  43. L1A visa and H-1
  44. Outstanding researcher
  45. Quickest way to get a GC
  46. H1B Pending
  47. F1 visa to business visa or H1/L1
  48. H-2B Visa
  49. H1 working in University (non profit organization)
  50. Transfer to a startup company H-1
  51. H1 approval and stamping
  52. H1 B question
  53. H1B renewal using an old I-140 from a previous employeer
  54. Employer change in 6th year before I-140
  55. Out of Status
  56. H1B Status
  57. Must we withdraw a PERM application if the employee is laid off?
  58. Importance of having continuity of employment/pay stubs
  59. Status change from F1 to H1b
  60. H1B layoff, H1B transfer-RFE raised, New H1B approved
  61. H4 to H1-B
  62. H1B Visa Stamping
  63. EAD - Job title change on the same job
  64. F1 visa to H1-b
  65. Questions on AC21, EAD, losing job, etc.
  66. Convert L1B Blanket VISA to H1B
  67. H4 to H-1
  68. When is the starting date to work on H-1B?
  69. H1B extension for pending labor
  70. H1B Visa
  71. H1 6th Yr - Labor Approved - NO I-140
  72. Educational Qualification
  73. H-1 denial - options
  74. Prevailing Wage - H-1 and GC
  75. H1B exemption with I-131
  76. Stamping of H1B except for IT - Chartered Accountant
  77. Requirements (Degree/Education for H-1)
  78. Applying for B-1 when laid off
  79. H1B Processing
  80. H1 6th Yr - Labor Approved - NO I-140
  81. Extending same H1B after staying outside US for 365 day
  82. RFE H-1 without a client letter
  83. H1B laid off while labor is pending
  84. H1B Revival process (Extension while still abroad)
  85. H-1 Visa re-stamping
  86. Unpaid leave on H-1
  87. Divers Licenses, while H-1 extension pending
  88. Choices to work in USA
  89. I-485 AOS Pending, Employer's Bankruptcy
  90. Important questions on H-1, AP and Travel
  91. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  92. H-1 visa denial and investigation
  93. Compensation for H-1 lay off
  94. F-1 visa stamp, H-4 pending
  95. H-1 denial, appeal, MTR
  96. Can H-1 be extended based upon family-based green card?
  97. Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
  98. From H-4 to F-1
  99. What kind of company is good for H-1B processing
  100. LCA's for H-1 will probably take longer now
  101. H-1 Quota Count still at 45,000 as of 4 May 2009
  102. H-1 extension denied - status
  103. H-1 Extension based upon spouse's 140; Child born in USA
  104. H-1 Quota still open
  105. PROPOSED Legislation to Reform H-1B Visa Program
  106. H-1 without specific job/GC continuation without H-1
  107. H-1 Count 44,000 -- You can Still File
  108. US employee working from India
  109. New H-1 employee returning -- rights and issues
  110. H-1 holder aplying for H-4 visa
  111. Effect of Bankruptcy on immigration
  112. When is an H visa stamping required?
  113. H-1 visa stamping -- is it difficult?
  114. Unreasonable H-1 requests from CIS
  115. H-1 Quota Status
  116. USCIS is continuing to accept H-1 filings
  117. GC future job; H-1 ext. revocation upon 140 denial, etc
  118. Converting from EAD back to H-1--Updated 6 April 2009
  119. Are H-1 holders being turned back at the airport?
  120. Employers and Employees -- H-1 or EAD?
  121. H-1 and EAD
  122. H-1 Lottery for 2009
  123. When does CIS investigate fraud?
  124. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  125. GC Compliance for Employers
  126. L-2 EAD and H-1
  127. Starting business while in AOS/I-485/H-1/H-4
  128. Employers questions on H-1 compliance
  129. How does the Stimulus Bill affect H-1b, L-1 and Green Cards
  130. H-1 Quota - what is acceptable evidence for degree
  131. Turning 21 - do I have to convert to F-1 from H-4?
  132. What happens when an employer is under criminal investigation/indictment?
  133. Employers responsibility in H-1 process
  134. Do physicians have the right to an extension beyond 6 years for waiver jobs?
  135. Is salary reduction possible/legal?
  136. If I-140 gets revoked/denied does my H-1 extension get canceled?
  137. Note! Employer subject to H-1 quota, but the job may not be
  138. Consequences of not using an H-1 visa
  139. Leave US for job outside USA
  140. Employer not paying, may I tranfer H-1?
  141. L-1/H-1 COS Issues
  142. What to do if an I-140 gets rejected?
  143. Do advanced degrees help in marriage-based green card?
  144. H-1 converting to H-4 and then (maybe) back again
  145. Can H-4/F-2 holders perform volunteer work?
  146. L-1 - H-1 COS issues
  147. H-1 related I-94 issue
  148. Start-up applying for H-1 and AC21 for employees
  149. H-1 Quota issues for students
  150. H-1 where there is no license in hand
  151. H-1 - how to revert to old employer
  152. Laid off - Now what ???
  153. H-1 quota - the law
  154. H-1 transfer - what action is needed for H-4
  155. H-1 Quota
  156. Multiple H-1 approvals
  157. How to get back to H-1 status?
  158. AOS Pending, Should H-1 be Renewed
  159. Filling DS 156
H-1 Visa (48)
  1. Change of status from L-2 to H-4
  2. Visa Stamp
  3. Options for H-1 extension
  4. H-1 transfer during pending extension
  5. J-2 to TN
  6. H-1B to B-2
  7. Working Visa
  8. H-1B transfer when 221g pending
  9. OPT - H4 - H1
  10. Business in the US, on H1B visa
  11. Concurrent H-1B
  12. H-1B after CPT
  13. PERM Audit and H-1 Expired
  14. H-1B Stamping
  15. H-1 Extension
  16. H1-B Visa Transfer
  17. H1B interview travel cost reimbursement
  18. Marriage in India or in US
  19. Employer/Employee Relationship while H1B transfer
  20. H1B renewal
  21. H-4 visa to H-1B
  22. There is a limiation of 100 H-1B2 visas
  23. Employer change in 6th year before I-140
  24. H-1 extension while PERM pending
  25. When to file for 7th year extension (Timing)?
  26. H1B-H4-H1B
  27. H1B layoff, H1B transfer-RFE raised, New H1B approved
  28. H-1b visa stamping in Toronto
  29. PERM and H-1 extension
  30. H4 to H-1
  31. When is the starting date to work on H-1B?
  32. H1B extension for pending labor
  33. H1B Visa
  34. H1 6th Yr - Labor Approved - NO I-140
  35. Filing H1B
  36. RFE H-1 without a client letter
  37. US employee working from India
  38. New H-1 employee returning -- rights and issues
  39. Effect of Bankruptcy on immigration
  40. When is an H visa stamping required?
  41. H-1 visa stamping -- is it difficult?
  42. H-1 Quota Status
  43. USCIS is continuing to accept H-1 filings
  44. Are H-1 holders being turned back at the airport?
  45. H-1 Lottery for 2009
  46. When does CIS investigate fraud?
  47. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  48. H-1 Quota - what is acceptable evidence for degree
H-1B2 (1)

DOD (Department of Defense) project visas.

  1. Are H-1 holders being turned back at the airport?
H-2 Visa (4)
  1. J-2 to TN
  2. H-2B Visa
  3. Marriage to US Citizen
  4. Are H-1 holders being turned back at the airport?
H-3 Visa (1)
  1. Are H-1 holders being turned back at the airport?
H-4 Visa (19)
  1. H-4 extension for spouse and child
  2. H-1B to B-2
  3. Can I apply for H4 visa for spouse while on EAD
  4. H-4 Visa and Status Validity
  5. OPT - H4 - H1
  6. COS from H-4 to F-1 visa
  7. H-4 Visa Stay in US
  8. H-4 rejected under 214(b)
  9. Advance Parole
  10. H-4 visa and age
  11. H4
  12. H4 Visa Stamping
  13. H4 inquiry - Dubai resident holding Indian passport
  14. H-4 visa to H-1B
  15. Travel during H4 processing
  16. H1B-H4-H1B
  17. H4 to H1-B
  18. H4 to H-1
  19. Are H-1 holders being turned back at the airport?
I-94 (5)

I-94 aka Arrival Departure Record is what governs your status in the USA. An expired I-94 can lead to bar from entering USA for 3 to 10 years. See "Unlawful Presence."

  1. H-4 extension for spouse and child
  2. I-94 Extension Time
  3. Have valid L-1 Visa, but I-94 expires
  4. L2 EAD Renewal based on I -94
  5. Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
J Visa (17)
  1. Canadian with J-2 visa
  2. J-1 extension beyond 5 years
  3. J-2 holders and work authorization
  4. J-1 Waiver Pending
  5. J-2 visa and I-275
  6. H-1 for Canadian PR with J-1 issue
  7. I was on J-1 visa
  8. Travel during H4 processing
  9. H-2B Visa
  10. File I-485 while J-1 waiver is pending
  11. I have a R J-1
  12. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  13. Can F/J holders apply for green card?
  14. Do physicians have the right to an extension beyond 6 years for waiver jobs?
  15. Fulfilling J-1 HRR in installments - not possible
  16. B visa while GC pending or similar situation
  17. Does J-1 HRR Prohibit Issuance of F-1?
J-1 Visa (7)
  1. Two-year home residency requirement
  2. J-1 visa waiver concerns
  3. Canadian with J-2 visa
  4. J-1 extension beyond 5 years
  5. I was on J-1 visa
  6. File I-485 while J-1 waiver is pending
  7. J1 overstayed by years, married to a greencard holder
Form DS 2019 (1)

A form issued by school or sponsor for applicants to obtain a J Visa.

  1. J-1 extension beyond 5 years
J-2 Visa (4)
  1. Canadian with J-2 visa
  2. J-2 holders and work authorization
  3. J-2 to TN
  4. J-2 visa and I-275
K Visa (16)
  1. K-3 Visa
  2. Can I petition my Fiancé
  3. K-1 visa for an illegal immigrant
  4. K-1
  5. K Visa
  6. Can I petition my girlfriend
  7. K1 or K3
  8. K-3 Visa
  9. K-1 Visa
  10. K1 visa approved
  11. K-1 visa
  12. K-1 Visa AOS
  13. Green Card through marriage
  14. K visa
  15. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  16. K-3 visa when I-130 approved
K-1 Visa (6)
  1. Visitor visa rejected
  2. K-1
  3. Can I petition my girlfriend
  4. K1 or K3
  5. K-1 Visa AOS
  6. Green Card through marriage
K-3 Visa (3)
  1. New GC for my wife and child
  2. K-3 Visa
  3. I-130 approved,can k3 be filed?
L Visa (38)
  1. L-1 Blanket petition
  2. L-2 Visa without EAD
  3. Starting business on L-2 visa
  4. L-1 visa from an affiliate
  5. Wife work permit
  6. Parents B-2 Visa
  7. L2 Visa holder
  8. Moving to USA on L-1
  9. Denial of an L-1A
  10. H1 Visa
  11. L1A to EB1 from outside USA
  12. Chances of L1A to EB1
  13. L2 Status
  14. L1B to H1
  15. L2 EAD Renewal based on I -94
  16. L2 visa and EAD
  17. L1A visa and H-1
  18. L1A Extension processing time
  19. F1 visa to business visa or H1/L1
  20. L1B
  21. L-1B
  22. Request Info for L1 visa to do business
  23. L1 Visa
  24. L-2 for Fiance
  25. Convert L1B Blanket VISA to H1B
  26. L-2 as dependent turning 21
  27. L-2 to L-1 Visa
  28. L-1A visa eligibility and time spent in US
  29. L1 visa
  30. L-1B applying for green card
  31. Choices to work in USA
  32. May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
  33. When to apply for L-2 extension
  34. L-2 EAD and H-1
  35. L-2 to L-1 COS or Visa?
  36. L-1/H-1 COS Issues
  37. L-1 - H-1 COS issues
  38. Laid off - Now what ???
L-1 Visa (5)
  1. Have valid L-1 Visa, but I-94 expires
  2. British citizen on L-1 visa
  3. L-1 visa from an affiliate
  4. L1A-Blanket petition
  5. Request Info for L1 visa to do business
L-1A Visa (7)
  1. I-94 Extension Time
  2. L-1A holders trying for EB-1
  3. Green card for L1-B or L1-A holders
  4. L1A-Blanket petition
  5. L1A to EB1 from outside USA
  6. Chances of L1A to EB1
  7. L1A Extension processing time
L-1B Visa (6)
  1. L-1 Blanket petition
  2. Green card for L1-B or L1-A holders
  3. L1B - resignation in US
  4. L1B to H1
  5. L1B
  6. L-1B
L-2 Visa (9)
  1. Change of status from L-2 to H-4
  2. L-2 visa and EAD processing
  3. L-2 visa application for spouse
  4. L-2 Visa without EAD
  5. Starting business on L-2 visa
  6. Wife work permit
  7. L2 Visa holder
  8. L2 Status
  9. L-2 as dependent turning 21
O-1 Visa (4)
  1. Spouse of an O-1 - next step to Green Card
  2. O-1 renewal
  3. Australian Musician to perform in US
  4. Renewing O-1 visa
P Visa (3)
  1. Australian Musician to perform in US
  2. P1 visa to green card
  3. Advise needed for replying visa
TN Visa (5)
  1. Canadian with J-2 visa
  2. J-2 to TN
  3. TN Visa denied
  4. Holding Company Stocks on TN Visa
  5. TN Holder laid off
Extension (5)

When used in relation to immigration, this is another name for extending your status.

  1. PERM Audit & H1 extension beyond 6 yrs
  2. H-1 transfer during pending extension
  3. H-1 Extension
  4. H1B Extension beyond 6 years
  5. H1B extension for pending labor
Waiver (4)
  1. Two-year home residency requirement
  2. Nonimmigrant waiver
  3. J-1 visa waiver concerns
  4. J-1 Waiver Pending
Citizenship (23)

Citizenship in USA can be obtained through naturalization or through birth in USA.

  1. Green Card and last name
  2. Citizenship through US citizen spouse
  3. Citizenship for spouse
  4. Citizenship eligibility question
  5. US Citizen sponsoring wife
  6. Citizenship eligibility
  7. N400 Interview and selective services
  8. Citizenship and criminal record
  9. Reentry permits and citizenship application
  10. Shoplifting and naturalization
  11. Travel while citizenship/naturalization pending
  12. Citizenship Form
  13. Travel and citation dates on N-400
  14. US Citizenship, misdemeanor case
  15. My naturalization interview experience
  16. How does Immigration office verify the dates of entries/exits
  17. Green Card
  18. B1 Visa
  19. Eligible husband?
  20. Marriage to US Citizen
  21. H-1 without specific job/GC continuation without H-1
  22. Changing Careers after the GC
  23. How soon can I leave the employer after I get my GC
Form N-470 (5)

N-470 helps you preserve your stay abroad for naturalization under certain circumstances. So, even though you are living outside USA, you can accumulate that time for naturalization.

  1. Reentry permit is it recommended?
  2. Reentry permit is not a guarantee
  3. GC and Company Involvement
  4. Eligibility for N-470
  5. Can my wife use the N-470?
Naturalization (15)

The process through which a person becomes a US Citizen.

  1. Application for Naturalization
  2. I am a US citizen and spouse on B-2 visa
  3. N400 Interview and selective services
  4. Citizenship and criminal record
  5. Reentry permits and citizenship application
  6. Shoplifting and naturalization
  7. Travel while citizenship/naturalization pending
  8. Citizenship Form
  9. US Citizenship, misdemeanor case
  10. My naturalization interview experience
  11. How does Immigration office verify the dates of entries/exits
  12. Renewing Expired GC and Citizenship for autistic/disabled persons
  13. Consequences of DUI's on naturalization and green card
  14. Does lay-off affect natutralization?
  15. Naturalization - travel before oath
Forms (1)
  1. Filling out a DS 160 Non-immigrant visa Form by mistake ...
General FAQ (3)
  1. L1B - resignation in US
  2. Job as petrochem field operater
  3. Passport Help
EWI (1)

Entered Without Inspection - refers to people who cross the border into USA without going through the government post. These people are generally barred from adjustment of status.

  1. MAVNI to F-1
Compliance (17)
  1. Out of Status
  2. H1B Status
  3. Importance of having continuity of employment/pay stubs
  4. H-1 visa denial and investigation
  5. Compensation for H-1 lay off
  6. Status, authorized period of stay and unlawful presence
  7. H-1 without specific job/GC continuation without H-1
  8. US employee working from India
  9. New H-1 employee returning -- rights and issues
  10. Effect of Bankruptcy on immigration
  11. Unreasonable H-1 requests from CIS
  12. Are H-1 holders being turned back at the airport?
  13. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  14. When does CIS investigate fraud?
  15. Employers questions on H-1 compliance
  16. Employer not paying, may I tranfer H-1?
  17. Laid off - Now what ???
H-1 (17)
  1. Out of Status
  2. H1B Status
  3. Importance of having continuity of employment/pay stubs
  4. H-1 visa denial and investigation
  5. Compensation for H-1 lay off
  6. Status, authorized period of stay and unlawful presence
  7. H-1 without specific job/GC continuation without H-1
  8. US employee working from India
  9. New H-1 employee returning -- rights and issues
  10. Effect of Bankruptcy on immigration
  11. Unreasonable H-1 requests from CIS
  12. Are H-1 holders being turned back at the airport?
  13. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  14. When does CIS investigate fraud?
  15. Employers questions on H-1 compliance
  16. Employer not paying, may I tranfer H-1?
  17. Laid off - Now what ???
Green Card (4)
  1. Out of Status
  2. Importance of having continuity of employment/pay stubs
  3. Status, authorized period of stay and unlawful presence
  4. H-1 without specific job/GC continuation without H-1
EAD (19)

Employment Authorization Document is a general term describing the documentation which evidences a person's right to work. EAD's are given during many statuses and processes such as A , E, F-1 visa, G, J-2, K, L-2 etc. and adjustment of status.

  1. Change of status from L-2 to H-4
  2. L-2 visa and EAD processing
  3. L-2 Visa without EAD
  4. Can I apply for H4 visa for spouse while on EAD
  5. AOS interview next week, mother in India on AP
  6. NPTE license
  7. H1B extension or EAD
  8. Self Employed while on EAD
  9. With I-485 pending can I be an investor ?
  10. Lost old EAD card for another OPT application
  11. EAD-AC21-Self Porting
  12. L2 EAD Renewal based on I -94
  13. L2 visa and EAD
  14. When can I apply for EAD
  15. Pending I-485 and marraige
  16. F1 and OPT Expired but 60 days not up
  17. AOS and EAD
  18. EAD restriction for 245i
  19. EAD - Job title change on the same job
Finger printing (1)

FP or fingerprinting is a part of immigration and non immigrant processing.

  1. AOS interview next week, mother in India on AP
RFE (1)

Request For Evidence is a a request from a government agency to provide further information on an issue before the government. Typical RFE's from USCIS question submissions for a specific petition or form such as I-140 RFE, I-485 RFE, I-130 RFE, H-1B RFE.

  1. RFE H-1 without a client letter
travel (1)
  1. Travel overseas on F-1
US Consulate (5)

US consulates all over the world are an arm of the US State Department. They are given the responsibility of issuing permanent (green cards) and temporary visas for people outside USA.

  1. H-1 visa denial and investigation
  2. Status, authorized period of stay and unlawful presence
  3. H-1 holder aplying for H-4 visa
  4. When is an H visa stamping required?
  5. Using B visa with F-1
Visa (9)

A citizen of a foreign country, who wishes to enter the United States, generally must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa (green card) for permanent residence. The type of visa required is defined by immigration law, and relates to the purpose of travel.

  1. AOS applicants applying for H-1 visa
  2. H-1 visa denial and investigation
  3. Status, authorized period of stay and unlawful presence
  4. H-1 holder aplying for H-4 visa
  5. When is an H visa stamping required?
  6. Consequences of not using an H-1 visa
  7. L-2 to L-1 COS or Visa?
  8. Using B visa with F-1
  9. Filling DS 156
Waiver (1)
  1. Waiver of Joint filing requirement
Canada (1)
  1. H-1 for Canadian PR with J-1 issue
DHS (0)

Department of Homeland Security

AAO (1)

Administrative Appeals Office

  1. I-290B AAO Process case online status question
DOS (0)

Department of State (State Department) is responsible for issuing visas, which are a permission to travel to USA.

US Consulates (4)

Consulates all over the world issue visas - a permission to enter USA for a specific purpose. Consulates are a part of the State Department (DOS - Department of State).

  1. Filling out a DS 160 Non-immigrant visa Form by mistake ...
  2. Consequences of not using an H-1 visa
  3. L-2 to L-1 COS or Visa?
  4. Filling DS 156
SSA (1)

Social Security Administration

  1. Can I apply for Social Security Number ?
Artists, Musicians, Performers (7)
  1. Green Card for musicians
  2. Green Card for musicians
  3. EB-1 for a visual artist
  4. Australian Musician to perform in US
  5. Advise needed for replying visa
  6. Work visa for an artist
  7. B-1 visa for amateur singer
Computer and IT Professionals (1)
  1. AOS applicants applying for H-1 visa
Employee (27)

Employees working in USA

  1. AC21 and losing job
  2. Out of Status
  3. H1B Status
  4. Must we withdraw a PERM application if the employee is laid off?
  5. Importance of having continuity of employment/pay stubs
  6. Questions on AC21, EAD, losing job, etc.
  7. Divers Licenses, while H-1 extension pending
  8. AC21 - accepting a green card
  9. Compensation for H-1 lay off
  10. H-1 denial, appeal, MTR
  11. Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
  12. H-1 without specific job/GC continuation without H-1
  13. US employee working from India
  14. New H-1 employee returning -- rights and issues
  15. Effect of Bankruptcy on immigration
  16. Are H-1 holders being turned back at the airport?
  17. Employers and Employees -- H-1 or EAD?
  18. GC approved. When should I start working on the green card job?
  19. GC Compliance for Employers
  20. Starting business while in AOS/I-485/H-1/H-4
  21. Employers questions on H-1 compliance
  22. What happens when an employer is under criminal investigation/indictment?
  23. Employer not paying, may I tranfer H-1?
  24. Consequences of DUI's on naturalization and green card
  25. Does lay-off affect natutralization?
  26. Laid off - Now what ???
  27. Can Employer Withdraw My Green card Application?
Employers and HR (21)

This content is tagged for employers and Human Resources professionals responsible for hiring foreign professionals/workers in USA

  1. Out of Status
  2. H1B Status
  3. Must we withdraw a PERM application if the employee is laid off?
  4. Importance of having continuity of employment/pay stubs
  5. H-1 visa denial and investigation
  6. Compensation for H-1 lay off
  7. Status, authorized period of stay and unlawful presence
  8. H-1 without specific job/GC continuation without H-1
  9. New H-1 employee returning -- rights and issues
  10. Unreasonable H-1 requests from CIS
  11. Employers and Employees -- H-1 or EAD?
  12. When does CIS investigate fraud?
  13. H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
  14. GC approved. When should I start working on the green card job?
  15. GC Compliance for Employers
  16. Employers questions on H-1 compliance
  17. Employers responsibility in H-1 process
  18. What happens when an employer is under criminal investigation/indictment?
  19. Is salary reduction possible/legal?
  20. Start-up applying for H-1 and AC21 for employees
  21. How to get back to H-1 status?
Nurses (10)
  1. VisaScreen
  2. RN F-1 visa
  3. Green Card for RN
  4. I got my BSN in the US
  5. My wife filed for Skilled Worker
  6. E3 visa for LPN
  7. US RN Graduate foreign national
  8. Visa Retrogression - Nurses
  9. LPN applying for green card
  10. I am an International student, with F-1 visa
Pharmacists (3)
  1. Pharmacist visa for FPGEE
  2. Information regarding pharmacist immigration
  3. Which category of green card for Pharmacists?
Physical Therapists (3)
  1. NPTE license
  2. How to transfer the approved I-140 - Physical Therapist
  3. Green Cards for Physical Therapists
Physicians (4)
  1. Marriage to US Citizen with EB AOS is pending
  2. GC future job; H-1 ext. revocation upon 140 denial, etc
  3. Do physicians have the right to an extension beyond 6 years for waiver jobs?
  4. May physicians process GC during residency?
Students (2)
  1. F-1 Curricular Practical Training (CPT)
  2. H-1 Quota issues for students
Adoption from India

I am sharing with you a response to a frequently asked question about adopting a child from India. Our inquirer also wanted to know if she could adopt her niece. Here is the info:

My mom's green card interview
My mom came in for a visit in Dec 2009, I applied for I-130 in Feb-10 for her and got approved, then she left to Canada to visit a friend and came back in May, I applied for an adjustment of status in June, and she has her interview this week. Does the fact that she reentered in June with the intent to apply for permanent residency because of the I-130 approval we got lead to denying her application.

If USCIS so wishes, they can certainly make an issue of it. But they tend to be much more tolerant of cases of immediate family like parents and spouse.

Can we still file for AOS
If my finace has overstayed his visa does that make him ineligible for AOS?

If he entered legally and is not subject to any other bars, and if you are a US citizen, he can apply for AOS when applying for his green card through marriage to you.

Quickest way to get a GC
I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

Pending I-485 and marraige
Currently My I-485 is pending and I-140 is approved last Year (2009) january My PD 05/29/2007. I am working using my EAD and change my job last year I don't have my H1B. I filed my I-485 as single, but I will get married to my Girlfriend (Germany). She come here Last November with waiver visa (stay up 90days), Now she is thinking to come back using F1 visa a students instead re-entry using waiver visa which she can't change her status anyway). If I get married, can I put her name under my petition (file I-485 for her) ? and apply EAD also with her Travel documents ?

If your priority date is current, you can file her AOS as long as she is legally in the US. I just have an issue with using F-1 visa to accomplish this purpose. Please consult with a lawyer about the details.

K-1 Visa AOS
My fiance came as k-1 and we got married within the 90 days but didn't file for AOS untile a few days before his I-94 expired? What will happen? will they still accept the application or what will we have to do next?

I think you will be fine. As I recall, the law only requires you to get married within 90 days. But confirm this information and do check with a lawyer as to whether you may travel or not while AOS is pending. This could be the only issue I can think of.

AOS and EAD
I have been in AOS since Sep 2007. I have a EAD and now a new opportunity hit the door to move to another company, same functions but much better pay, arounf a 40% increase. I also got married to a US citizen. My dilema now is should I take the job? my actual employeer may get angry, so could he do something to screw my case? should I re-apply through a spouse? is something the new employer can do so I can be safe? I don't want to bother new employer, but could he eventually at least help so I can keep my actual status until AOS is approved.

It looks like you have several options. Once 180 days of AOS pendency are over after I-140 approval, usually employers cannot hurt you. Speak with a lawyer.

Question - unlawful presence in AOS
Q1. Suppose, if the husband is on H-1B and spouse is on H4. Husband has filed I-485, spouse name was not included. Now if husband switches to AOS Pending...what will be H4 status? Unlawful presence? Q2. When she is out of status because he is no more on h1.. can she file for COS to F1?

A1. As I see it, the wife will be out of status right away and unlawfully present if USCIS revokes her H-4 or her I-94 expires.

Working abroad while AOS pending
My self and my wife are on EAD and advance parole. My wife and I are from India. I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months. This is however not the company with which I started my green card. I changed jobs when I got my EAD. But I have several questions: 1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD? 2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay. 3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

Working for two companies on EAD
1. Wanted to check if on an EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time. 2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company. We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

Leave of absence - I-485 pending
a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending. b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey? c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

Marriage to US Citizen with EB AOS is pending
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

What does AOS approval mean?
I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

Following to join
This is regarding my sister who is going through lot of stress due to visa issues. She has been on H4 for past 9 years. Her H1 was approved in 2007 with an employer who wanted to hire when she was doing her MBA from a reputed University here in US. They were even willing to hire her once she is done. 3 months back her husband lost his job and had to go on EAD since (My sister could not do it because she was traveling out of US in 2007 when the window opened). She has decided to go on H1 status. She has to get it stamped outside US as she had lost her H4 status. It has been now more than a month and she is stuck out of US (in UAE). Her employer is a small firm and due to THE bad economy she is very nervous about the future even if she gets H1 B. Here are our questions/ concerns. Please do answer these: 1. If she gets H1 B could her husband still file for Follow to Join. There is no guarantee in this environment it would give her peace of mind if he could. 2. God forbid - If she doesnot get H1B and her husband files for Follow to Join - would she have to stay out side US to do consulate processing?? How much time it takes? 3. Any advise/ suggestions are welcome.

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

Employment-based out of status protection for AOS - Section 245(K)
My previous employer didn't pay me for 7 continuous months in 2006, Current employer is going to file I-140 and I-485 based on my EB2 PERM. I have all W2 and Pay stubs except that period. will that going to affect my GC application ? Please let me know what are the possible consequences of that. I didn't know about that 180 days rule.

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

I-485: pre-adjudication and employment verification letter
1. I see few cases where CIS has sent an RFE to ask for Employment Verification Letter (EVL). When does this typically happen? 2. For cases where in the EVL was already sent along with the I-485 application, what are the reasons usually for CIS asking EVL again? 3. I had taken an Infopass few months ago, and they had said my I-485 application is pre-adjudicated. What does this mean?

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

 

 

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

I-485 interview-- does arrest create a problem

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

EB-3 "Unavailable"
Here is a question this morning from forclients.com, our clients' extranet. Quote: The nightmare has once again come true, eb3 would be unavailable until September 09, if I am not wrong? With this in the background, I am thinking of giving up the hope of getting my green card soon (my pd may 04). If I go back to India, can my GC application still continue to be processed?

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?

AC21 Portability - Changing Jobs After 180 Days

What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
 

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

I-485 Priority Dates and Processing Dates
One of our community members had asked a questing regarding the processing dates of 485.

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Am I obliged to join my sponsoring employer after GC approval?
For past 7 years I work for company ‘A’ on their H1B visa (EB3). I had a I-140 cleared in 1998 from my previous company ‘B’ under EB2. Company ‘B’ filed for my I-485 in 2004 and I finally got my green card.

Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.

Does chargeability change with citizenship change?
I have attained Canadian Citizenship but a born Indian citizen, when I am applying for 485 which priority dates do I need to consider, General or India. I do not have Indian passport.

Still, India. Your chargeability follows the place of birth, not your citizenship.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

AC21 Portability and Related Issues

Quote:

Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

Further questions on AC21
I got laid off from work from my present employer on October 31, 2008 and I have 3 questions. Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved EAD & AP both for the primary and dependent.

Quote:

 I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

Supervisory review
Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

AOS Pending, Should H-1 be Renewed
Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Priority Date and AOS (Form I-485) Processing
Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my FP done yet?

As of July 2008, this is how the system works.

First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

EAD and H-1 Conversions for Derivatives
I have applied for 485 as the primary applicant and my wife is the secondary applicant. Right now both of us are on H1 visa. We had applied for EAD and AP and intend to apply for renewal soon as we near 120 days. I am on my 7th year of H1 and my wife is on 2nd year of H1 and 3 year of (H1 and H4 combine). Her current H1 expires on April 2010. I intend to remain on H1 itself and have no intentions of using my EAD. Can you please clarify these questions.

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

 

Gap in Employment during AOS
My friend lost his job on Friday when he was working on EAD (this is not the employer who has applied for GC). His i-140 was approved last year in May. He is looking for new job which would take couple of weeks. I have following question for the situation:

Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.

Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.

AOS Denial – Consequences for H-1

Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.

AOS interview next week, mother in India on AP
I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

Advance Parole
Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question is can she go to India with advance parole and come back, will there be any problem?

If her I-485 was pending, she would not be out of status.

With I-485 pending can I be an investor ?
My 485 is pending and I am on advance parole and EAD, my employment based GC priority date date was June 2006. I want to be an investor in my friends start up company. I wont be leaving my current job but only investing in it. Should that be an issue If I dont have my GC?

I see no problem with it, especially, if you are a passive investor who takes no action to manage or conduct the business of the entity invested in.

When can I apply for EAD
May be a newbie question, I'm from india and I just got my I-140 approved in EB2, Can i file my I-485 as pending or do i need to wait for the date to be current. Is there any way to get EAD so that my spouse can also work?

This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.

Spouse of an O-1 - next step to Green Card
I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Questions regarding I-485
I am on H1-B visa and my EB-2 Priority Date is May 15, 2010. Please see below questions regarding I-485. Question # 1:- Typically, how long would it take to receive Advance Parole and EAD after filing I-485? Question # 2:- I entered USA on F1-Visa in year 2000, and then changed my status to H1-B visa within USA in year 2004. I never left USA since year 2000. My passport does not have H1-B visa stamp. In order to file I-485, is it required to have H1-B visa stamp in my passport? Question # 3:-After filing I-485 and before receving A.P., if I travel to my home country for H1-B visa stamping, is it possible that my company can mail A.P. documents to my home country so that I could enter USA using my A.P. in case H1-B visa in my home country is denied? Question # 4:- I came to know that it is required for an alien to be present in USA at the time of I-485 filing. Is it also required that an alien must be present in USA until A.P. is approved? Question # 5:- Does Visa Officer have the ability to cancel A.P., in case H1-B visa is denied in my home country due to 221(g)/missing tax returns/W-2's/Paystubs? Question # 6:- If my H1-B visa is denied in my home country, and if i enter USA using A.P., then could my spouse enter USA using H-4 visa using my valid I-797 approval notice even though I do not have H1-B visa stamp in my passport? If I enter USA using A.P., what are the options for my spouse? Question # 7:- At what point of time during GC process, do I need to add my spouse? Should it be before filing of I-485 or before Visa Number is available? Question # 8:- After filing my I-485, and if my spouse is in USA on H-4, will I be able to add my spouse to my I-485 application? By the time, I want to add my spouse to I-485 application, if Visa Number is available and if AOS/I-485 is approved, then would I still be able to add my spouse if spouse is in USA and also outside USA?

Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks

Answer 2: A visa stamp is NOT required. Proper status only is needed.


Answer 3: It is NOT advisable to travel before AP is issued, if you do not have an H/L visa already stamped. For details, listen to recording's of the community conference call. It is posted here: http://www.immigration.com/free-comm...nference-calls


Answer 4: Presence in USA for 485 filing is mandatory. See previous answer for AP.


Answer 5: I do not believe VO has the authority to revoke an AP.


Answer 6: Under Cronin memo, if you enter on AP to continue working on an existing, valid H-1, you are still considered to be on H-1. I believe your spouse can use his H-4.


Answer 7: Before APPROVAL of I-485.


Answer 8: Your spouse can file his 485 if he is in USA; Priority Dates are current AND he has not been out of status for more than 180 days -- whether or not your 485 is already approved.

AOS interview next week, mother in India on AP
I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

EAD-AC21-Self Porting
I have EAD/Pending AOS. I ported to employer B based on AC21 in 2008. Now i am considering a great opportunity: -Joining S corporation in Florida _I will receive similar hourly rate as prior employer -similar job -i will receive 40% of profits on top of salary -the new corporation will be my fututre full time job Does the new corporation have to be huge with lot of finances for me to use the AC21? I have valid EAD can I join as a partner in the S corporation in Florida? Any thoughts things i,ve to carefull with?

Very little is clear about self-porting. Read the Yates Memo of May 2005. It seems you should be fine as long as the jobs are same or similar, but like I said, not much is known about this issue.

AC21 and losing job
I am EB2 priority date Sep2005. I had lost my job in Apr 09. I started working on Dec09 with another company similar job description, in same geographic location and with 15% higher salary than labor approved. I was out of job for almost 8 months.My old employer has assured not to evoke approved I140 (more than 3 years since I 140 is approved) I have few questions: 1.Shall I file for AC21? 2.is it advisable to send copy of current paystunb with AC21, If yes how many months? 2.Is it okay to file AC21without paystub for around 8 months? 2.If I dont file for AC21, will there be an issue travelling on AP at POE?

AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.

J1 overstayed by years, married to a greencard holder
I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

Questions on AC21, EAD, losing job, etc.
1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.


2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).


3A. Correct. You are in authorized period of stay. That has been explained in my blog.


4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).


5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.



6A. No.


7A. No.


8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.


9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

I-485 pending and after 6 months laid off
I-485 pending and after 6 months (so AC21 portable). Laid off. H1-B revoked but I-140 not revoked. Since it was very hard to find a job in US, I found a job outside the US temporarily in Sept 2009 and stayed there till now. Can I still enter US on AP?

The way I see it, until and unless your AP or 485 is revoked, it is legal to use both.

AC21
1) My GC is into EB3 Catergory. 2) I have approved Labour. 3) I have approved I-40 and priorty date is July 2008. 4) As I am into EB3 Category and so cannot file I-485 till priorty date. My Questions is can I use AC21 to change job, what are a)pro's b)con's. Can I use my PD if I use AC21. If company revokes my I-40, do I need to start Labour again and full process from start.

AC21 can never be filed before I-485 has been filed pending 180 days. I have fairly detailed discussion on these issues on my blog. http://forums.immigration.com/blog.php?u=1

Current USCIS procedures for PD transfer and AOS
Recenlty we submitted my NOID response for my 485. Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file 1.EB3 PD,2002 2.EB2 PD,2005. They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now. Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

AC-21 Ability to pay
I have changed employer using AC-21. I-140 appoved - Jan'09. I-485 filed July 2007. PD June 2007, EB-3 ROW. My previous employer will not withdraw my approved I-140. I am current working on EAD with my current employer. My current employer filed for Bankruptcy under chapter 11. Do you think I might have an issue of ability of pay when I renew my AP and EAD. Thank you in advance for your help.

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

Changing jobs multiple times after I-485 pending
I have a question regarding changing jobs multiple times after I-485 pending >180 days. Last year I quit from the company that submitted my 140 petition and joined another company. After that move I received RFE from USCIS then submitted AC21. I attended an interview this March and passed; I received a letter afterwards saying my case as "waiting for visa quota". In April I was laid off by the new employer but found another job with similar duties in June. I haven't notified USCIS about this for about 2 months now. Do I need to do that? Please help!

I see no restriction in law preventing multiple job changes. In most cases, I like to inform USCIS, but speak with your lawyers.

Can AC21 be done for a future job?
I was laid off by my last employer in early May. Now I have a question regarding answering for the potential I-485 RFE requesting for employment verification letter. I was told that a future similar position will be enough for satisfying the I-485 employment letter request. Is that true? Can you confirm on that?

That is correct for AC21 portability. But USCIS can ask why you are not working for that employer right now. If you have a good, truthful answer for that question, you should be fine.

I-485 AOS Pending, Employer's Bankruptcy
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Important questions on H-1, AP and Travel
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

Working abroad while AOS pending
My self and my wife are on EAD and advance parole. My wife and I are from India. I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months. This is however not the company with which I started my green card. I changed jobs when I got my EAD. But I have several questions: 1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD? 2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay. 3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

Working for two companies on EAD
1. Wanted to check if on an EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time. 2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company. We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

AC21 - accepting a green card
1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

Leave of absence - I-485 pending
a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending. b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey? c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

Marriage to US Citizen with EB AOS is pending
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

What does AOS approval mean?
I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

Following to join
This is regarding my sister who is going through lot of stress due to visa issues. She has been on H4 for past 9 years. Her H1 was approved in 2007 with an employer who wanted to hire when she was doing her MBA from a reputed University here in US. They were even willing to hire her once she is done. 3 months back her husband lost his job and had to go on EAD since (My sister could not do it because she was traveling out of US in 2007 when the window opened). She has decided to go on H1 status. She has to get it stamped outside US as she had lost her H4 status. It has been now more than a month and she is stuck out of US (in UAE). Her employer is a small firm and due to THE bad economy she is very nervous about the future even if she gets H1 B. Here are our questions/ concerns. Please do answer these: 1. If she gets H1 B could her husband still file for Follow to Join. There is no guarantee in this environment it would give her peace of mind if he could. 2. God forbid - If she doesnot get H1B and her husband files for Follow to Join - would she have to stay out side US to do consulate processing?? How much time it takes? 3. Any advise/ suggestions are welcome.

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

Employment-based out of status protection for AOS - Section 245(K)
My previous employer didn't pay me for 7 continuous months in 2006, Current employer is going to file I-140 and I-485 based on my EB2 PERM. I have all W2 and Pay stubs except that period. will that going to affect my GC application ? Please let me know what are the possible consequences of that. I didn't know about that 180 days rule.

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

I-485: pre-adjudication and employment verification letter
1. I see few cases where CIS has sent an RFE to ask for Employment Verification Letter (EVL). When does this typically happen? 2. For cases where in the EVL was already sent along with the I-485 application, what are the reasons usually for CIS asking EVL again? 3. I had taken an Infopass few months ago, and they had said my I-485 application is pre-adjudicated. What does this mean?

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

 

 

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

I-485 interview-- does arrest create a problem

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

EB-3 "Unavailable"
Here is a question this morning from forclients.com, our clients' extranet. Quote: The nightmare has once again come true, eb3 would be unavailable until September 09, if I am not wrong? With this in the background, I am thinking of giving up the hope of getting my green card soon (my pd may 04). If I go back to India, can my GC application still continue to be processed?

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?

AC21 Portability - Changing Jobs After 180 Days

What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
 

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

I-485 Priority Dates and Processing Dates
One of our community members had asked a questing regarding the processing dates of 485.

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Am I obliged to join my sponsoring employer after GC approval?
For past 7 years I work for company ‘A’ on their H1B visa (EB3). I had a I-140 cleared in 1998 from my previous company ‘B’ under EB2. Company ‘B’ filed for my I-485 in 2004 and I finally got my green card.

Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.

Does chargeability change with citizenship change?
I have attained Canadian Citizenship but a born Indian citizen, when I am applying for 485 which priority dates do I need to consider, General or India. I do not have Indian passport.

Still, India. Your chargeability follows the place of birth, not your citizenship.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

AC21 Portability and Related Issues

Quote:

Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

Filing EB1 while EB2 AOS is pending

I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
 

Further questions on AC21
I got laid off from work from my present employer on October 31, 2008 and I have 3 questions. Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved EAD & AP both for the primary and dependent.

Quote:

 I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

Supervisory review
Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

AOS Pending, Should H-1 be Renewed
Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Priority Date and AOS (Form I-485) Processing
Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my FP done yet?

As of July 2008, this is how the system works.

First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

EAD and H-1 Conversions for Derivatives
I have applied for 485 as the primary applicant and my wife is the secondary applicant. Right now both of us are on H1 visa. We had applied for EAD and AP and intend to apply for renewal soon as we near 120 days. I am on my 7th year of H1 and my wife is on 2nd year of H1 and 3 year of (H1 and H4 combine). Her current H1 expires on April 2010. I intend to remain on H1 itself and have no intentions of using my EAD. Can you please clarify these questions.

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

 

Gap in Employment during AOS
My friend lost his job on Friday when he was working on EAD (this is not the employer who has applied for GC). His i-140 was approved last year in May. He is looking for new job which would take couple of weeks. I have following question for the situation:

Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.

Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.

AOS Denial – Consequences for H-1

Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.

Child of a permanent resident and I-130 approved
I am a child of a permanent resident and I got a I-130 approved 2003 but I was under the age and still single never been married when that was approved. Right now I posses an Employment Authorization that I have been re-applying for since 2000. Can I apply for a permanent resident?

I am assuming your priority date is not current. If that is so, you cannot get your green card until all preconditions, including the priority date being current, are met.

Green card under the Child Status Protection Act
I have a friend who got his green card recently. His sister in law was the one who applied for the green card which was filed on October 1997. His son was 14 at that time. By the time he got his green card, his son was 22, so the son didnt get the green card. Can my friend's son still get a green card under the Child Status Protection Act, or some other ruling?

Your friend can apply for an unmarried child independently. Application of CSPA requires analysis of specific facts. I suggest your friend should consult an immigration lawyer for that.

Read the section under CSPA
My sister's F4 application was approved 1997 and she is due to go for her interview any day. My question is - I was recently made aware that although at the time the application was made and approved her 2 kids were under 21, but now 12yrs later they are both over 21. What is the next step to take. I was told she has to petition them once she is in US and the priority date will be from 1997. Is that true? How does that work?

Child Status Protection Act http://www.immigration.com/greencard/409/child-status-protection-act-cspa
Contact the consulate for their assessment.

F-4 Visa for childrens who are over 21
My sister's F4 application was approved 1997 and she is due to go for her interview any day. My question is - I was recently made aware that although at the time the application was made and approved her 2 kids were under 21, but now 12yrs later they are both over 21. What is the next step to take. I was told she has to petion them onece she is in US and the priority date will be from 1997. Is that true? How does that work?

Ans. Please check the link for Child Status Protection Act (CSPA).

Contact the consulate for their assessment.

 

VisaScreen
I am Indian citizen, did Nursing accelerated bachelor from accredited university (4yrs course finished in 2 yrs)in USA, RN licensed for NY/NJ/VA compact states ,for H1 and Green card. Do I need visa screen certificate?

"Yes. Although your professional education was completed in the United States, the purpose of the VisaScreen®: Visa Credentials Assessment is to provide a screening program which meets all federal requirements for international health care professionals seeking an occupational visa in the United States, irrespective of where the professional education was completed. However, there is a streamlined process for foreign-born health care professionals educated in the United States." From CGFNS.

Green Card for RN
I am an RN with a TN visa from Canada. My wife who is an American Indian born in Canada will soon be sponsoring me. Will the fact that I have a visa speed up the process?

It will not speed things up, but filing for Adjustment of Status (which is available only to folks who are already in USA), makes it possible to continue to stay in USA while the green card process is in the works.

EB-3 category
I am on EB3 category and have been working in the IT sector for the last 6 years and one year ago I completed my MBA too. I am currently working as a contractor and using my EAD. I am on Adjustment of status right now. Is it possible to change my category from EB3 to EB2?

It is possible, but the green card will have to be started again from PERM.

I got my BSN in the US
I got my BSN in the US, passed NCLEX and got my employment authorization. I am currently on F1 visa, and working at a nursing home. I live in MN and it was extremely hard to get a job. How do I apply for a green card and what role will my employer play in this process? Is it going to cost my employer any money? And how long is it going to take to get a green card?

Your employer's role in this process is limited. You can pay for all expenses yourself. The length of the process is determined by the country of birth.

Job Change after I-140
I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Visa Retrogression - Nurses
How can a F1 student after graduation apply for greencard at this time? Isn't there a retrogression problem at present? Are there any hospitals that are currently sponsoring foreign nurses? Secondly what other options are there for a recent nurse graduate (who is a foreigner) to get employment in the US?

An F-1 student could apply, but will not get the green card right away. I cannot provide a list of hospitals that we work with. That would be a breach of confidentiality in my view. Nurses typically use H-1B, H-1C, H-2B and TN visas.

LPN applying for green card
I am on F1 visa studying Pre - nursing classes. I am planning to do LPN, based on it can apply for H1 or green card? ? Is there any possibility for LPN to apply for greencard or only Registered nurses can apply for H1 or Greencard?

 LPN's can apply for green card, but only RN's get the the benefit of schedule A green card without labor certification. See this page also: http://www.cgfns.org/sections/programs/vs/

I am an International student, with F-1 visa
I want to know if I can take the Green Card in my future. I am studing in Nursing courses right now, but can i take green card if I finish my Bachelor's degree? Please send me a response.

That is how most students get their employment-based green cards. Once you become an RN, under the current law, it should be relatively easy to apply for your green card. There may be other options as well.

EB3 to EB2 and I-140 Refile
I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business. 1. The new company B is in same County and State(but different cities). 2. I Will be doing similar or same work in a similar position. 3. H1B transfered from Company A to Company B. 1) Can company B use Company A Labor certicate and refile the I-140 again? 2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

EB1 Extraordinary ability
I filed my EB1 and EB2 NIW together, EB1 was denied but EB2 NIW was approved. I refiled EB1. I am a physician at one of top university , with many publications, presentations and offers from top league universities. There are only 12 people in the whole US that do same thing as I do in my clinical speciality. However I do not have any awards. What are the chances that my second filing of EB1 may go through.

Impossible to answer, Doc. This is like diagnosing a patient without access to the patient or his records. Impossible for me to say. I do not know your case.

L-1A holders trying for EB-1
I have 6 years experience with the same company with 4 years experience in US itself. I am on L1A visa and I have only a 4 year Bachelor Computer Science engineering degree. What GC category will I fall under?

L-1A holders should try under EB1. You could be done in a year.

Green card for L1-B or L1-A holders
I currently have a L1-B visa and I'd like to know if the company where I work(a Brazilian company where I did work for 2 years, one of them in a managerial position before coming to the U.S in 2009) could apply to change my status from L1-B to L1-A at the same time as filing my GC application. The company is a giant in Brazil with 600 employees but we are still starting the operations in the U.S and I'm the only employee here.

Smaller companies can have a tough time getting an L-1A.

EB-1: 1 year in 3 years preceding the petition
I have been with the same company for 4 years as a manager (overall industry experience 11 years today). I joined the company in India, stayed there for 1.5 years, moved to US 2.5 years back. I read that "1 year employment outside the USA should be in the 3 years preceding the petition". All of my 12 months does not fall into the last 3 years. What are my chances of qualifying for EB-1?

There may be an exemption if you continued working with a related company ever since you came to USA.

EB-1 for a visual artist
I am a visual artist and have the master degree in art. I exhibited in several countries including US , Canada , Greece etc..33 Years old..Worked as an assistant professor in Germany duration 1 year. Can I apply for EB-1?

That by itself may not be enough. You need to have evidence of sustained national/international acclaim.

EB1 - stay requirements
Is there any rule that necessitates an EB1 Green Card holder to stay for a certain number of days in the USA every year? I travel frequently to various parts of the world for concerts or professional business. Will this impact on my Green Card status in anyway? I still file my taxes in the USA though.

All green card holders are required to make USA their permanent home. Otherwise, their green card can be taken away. Look into the option of reentry permit.

EB 1 approvals
I am Physician turned Business man in Pharmaceutical business feild with outstanding acheivements and almost 8 international and national awards in recognition of my contributions in the feild of business. I live outside of USA and got my EB1 approved in 21days time in Dec 09. I am looking forward to Consular process now. However, it is taking so long and I applied for I-824 now requesting USCIS to forward the copy of EB1 Approvals to NVC for consular processing. I would like to know how long it might take for me to obtain my Green Card and start living in the United States.

Typically, anywhere from 5-6 months to a year.

L1A to EB1 from outside USA
I have completed 6.5 yrs in L1A in managerial role. Now the same employer wants me to stay outside of USA for few months. 1)Can we apply EB1 while being outside USA? 2)Do we have to apply for L1 A extn for remaining 6 months of 7 yrs while applying for EB1? 3)Can a new employer sponsor L1A and apply for EB1 while entering the country?

EB1 can be applied while you are outside USA. A new employer can sponsor only after you have worked for them for one year outside USA.

Chances of L1A to EB1
What is the chance for a L1A visa holder of 7 years to qualify for a EB1 category. Catch here is the original company which provided the L1A visa will not apply for GC. If the person moves to another company on H1 Visa can the new company file for GC under EB1 based on the previous 7 years of L1A status .

No, sorry. The basis of an International Manager's or Executive's EB-1 filing is that you must have been employed abroad with a related company for one year. Since you will not be able to meet that criterion, I do not see how that type of EB-1 can be filed through a new company.

EB-1 Visa Processing for medical doctors
I am working towards filing under EB-1 green card, currently on H-1B. Is there a certain number of publications in peer reviewed journals, presentations at international meetings that would make the application more likely to go through than not?

Number of publications, impact factor of journals and number of citations - that is what they look at these days.

Outstanding researcher
I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?

I cannot think of any stage at which you cannot travel. Good luck!

EB1 Extraordinary ability
I filed my EB1 and EB2 NIW together, EB1 was denied but EB2 NIW was approved. I refiled EB1. I am a physician at one of top university , with many publications, presentations and offers from top league universities. There are only 12 people in the whole US that do same thing as I do in my clinical speciality. However I do not have any awards. What are the chances that my second filing of EB1 may go through.

Impossible to answer, Doc. This is like diagnosing a patient without access to the patient or his records. Impossible for me to say. I do not know your case.

Considering EB-1 application (research)
I have been working as part of a research group in a bank over the last 4 years. I am a ranked research analyst on wall street and My work has been quoted in popular media, our research has been uploaded to government organisation webpages and have been referenced by government officials. I have also published 50+ articles over the last 2 yrs. The catch is that I may be moving from a research role to a trading role (my primary function will not be research). What do you think my changes are for EB-1 (b) and would this change totally eliminate me from applying?

There are two ways to approach this: Extraordinary ability alien (where the position need not be connected with research) and Outstanding Researcher, if you intend to go back to research upon approval of your green card.

If my company applies EB1
If my company applies EB1 this month (Aug, 09), and everything goes well, by when should I expect my green card? What are the disadvantages of applying under EB1?

Too many variables. IF the priority dates remain current AND IF USCIS follows its average processing times and IF you file I-140 premium processing concurrently with your I-485, you MAY get green card approval within one year. I see no disadvantage.

I was married 9 years ago, getting divorced - EB1
I was married 9 years ago and am now getting divorced. My wife’s green card was granted on the basis of my EB1 filing. To ensure that her GC remains valid, is there a period of time that we need to wait after the GC approval date before filing for divorce? If there’s no such requirement, is it okay to state that we separated over a year ago (prior to the GC approval) on the divorce papers?

First rule of all immigration filings is to state the truth. As to how they will view separation, I do not know if there is any specific law on this out there. My GUESS is, separation is NOT divorce. There can always be reconciliation. Hence, she should be permitted to keep her green card.

EB-1 derivative green card delayed
My company filed an EB1 in 2005 for me; my wife was part of the same filing. I received my Green Card in April 06 but my wife’s application is still pending. We contact the USCIS every 6 month and each time they send a standard letter telling us to check back in 6 months. Actually, one time the letter said check back in 3 months but the last letter went back to the normal 6 months. She went for fingerprinting in 2006 and 2007 but we have not received any requests since then. Is there anything that we can do?

Contact your Congressman. See the suggestions on this page: http://www.immigration.com/issues-relating-delays-various-immigration-ma...

L-1B applying for green card
My company applied to change my status from L1B to L1A at the same time as filing my GC application. It was approved and the GC only took about 5 months

True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.

Is employment required for EB1 extraordinary ability applicants?
Does a person with EB1 Extraordinary Ability category I 140 approved , require employment letter during I-485 filing ?

The short answer is no, but it helps. An offer of employment helps to show that you will continue to work in your own field and that you can support yourself and your dependents (if any).

Investment based green cards
I want to know whether our federal bank (reserve bank of India) is allowing this US $500,000.00 for investment in U.S.A. Then I will ask some more questions like whether it is easiest way to get green card and whether our money is safe in investment (in the regional projects) and the total expenses upto green card release level (apart from us$500,000.00)

We practice US laws so I have no idea about RBI permissions. Safety of money is not guaranteed in any of the trusts that I know of. After all, this is an investment, not a fixed deposit or a CD in a bank. For businessmen with established businesses, L-1A and then EB1 is usually the better option.

Obtaining H-1 Extension beyond 6 years
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

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

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

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

L-1B applying for green card
My company applied to change my status from L1B to L1A at the same time as filing my GC application. It was approved and the GC only took about 5 months

True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.

Criteria for Outstanding Researcher/Professor Category

Preliminary requirement: The applicants must be able to document at least three years of experience in teaching and/or research in the specified academic field and that they are "recognized internationally."

Generally speaking, experience in teaching or research while working on an advanced degree will not satisfy the three year requirement.

Pointers for EB1/NIW filings

The following pointers have emerged from recent cases and comments from USCIS:

1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.

2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.

3. Emphasize/document the "international" nature of your accomplishments.

Filing EB1 while EB2 AOS is pending

I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
 

Basic Criteria for Extraordinary Ability

This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.

EB1 Extraordinary ability
I filed my EB1 and EB2 NIW together, EB1 was denied but EB2 NIW was approved. I refiled EB1. I am a physician at one of top university , with many publications, presentations and offers from top league universities. There are only 12 people in the whole US that do same thing as I do in my clinical speciality. However I do not have any awards. What are the chances that my second filing of EB1 may go through.

Impossible to answer, Doc. This is like diagnosing a patient without access to the patient or his records. Impossible for me to say. I do not know your case.

Outstanding researcher
I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?

I cannot think of any stage at which you cannot travel. Good luck!

US embassy denial
I have my EB2 approved by the USCIS, do I still get the chance to be denied by the US embassy for the consular interview?

It is unlikely, but possible.

Restart the green card under EB-2 category
My Labour is filed in EB-3 & my PD is Oct-2003. I got my EAD in 2007. I have a BE degree from India & a work experience of 13 years. 5 in India & 8 in USA. Am I eligible for porting to EB-2? If I file a fresh EB-2 what is the process? Is it just the Perm process & I- 140 or do I need to file I- 485 again.

People with over 5 years of exp. after a 4-year degree may be ale to restart the green card under EB-2 category and then port their PD. Basically, you are redoing the PERM and I-140 for an EB-2 level job.

Avoiding PERM through EB-2 category
If one applies through EB2 category can the PERM also be avoided then?

You can avoid the need for PERM through EB-2 only if you are applying for a National Interest Waiver.

EB2 Master's equivalency and employer
Regarding EB-2 application, which is more likely to be approved (or faster), the Master's equivalency (BS graduate to be evaluated in a university to be master's equivalent) OR the 5 years progressive experience? There's only one Occupational Therapist that I know personally who was approved and it was through the Master's equivalency (she didn't even have 5 years experience). Also, would it rely/depend on the employer's capability to support documents or does it also depend on how meticulous the lawyer is with the details to be submitted in the USCIS?

It all begins with the lawyers. So, make sure your counsel are meticulous and plan for every possible eventuality they can think of. The job HAS to be described truthfully.

EB-3 to EB-2 with the same employer
My PD is EB3 - Dec 2007. I have 3+2 years of education from India which is equivalent to US Bachelors. I have 3 years of experience before joining the current empoyer. Now I have more than 10 years of experience(including the experience with the current employer). I would like to know if I can apply again in EB-2 with the same employer using the experience gained from current employer.

You can, if the job offered is more than 50% different than the job you were performing so far with the same employer.

Am I eligible for EB-2 or is it too early for green card
I am with a major US university as professor for only 9 months (H1B). Physician+PhD, 16 years professional experience in Europe, 20 papers, 1 book. Am I eligible for EB2 or is it too early to apply for EB green card?

You are certainly eligible for EB2 and you must apply as soon as possible. Professorial jobs can reuse existing advertisements if they file PERM within 18 months of when the job was offered to them. You should also have your resume assessed for a simultaneous EB1 application.

EB-2 eligibility
I have Bachelor of science in nursing with 10 years of progressive experience (8 yrs in my home country then more than 2 yrs here in USA), do I qualify for EB2? What are the chances to get approved? If the company will file for concurrent filing of I-140 and I-485; will they give me working permit or EAD within 60 days though I-140 under EB2 category is still pending?

If your job requires BS + 5 years experience and you meet the requirements, EB2 is a possibility. Assuming you are born in a country for which the EB2 priority dates are current, you should get an EAD while the 140 is still pending, as far as I know.

Do I qualify for EB-2 ?
I did three year bachelor of computer science degree from India in June 2005.Then I joined master of computer Applications program (M.C.A) in India in Aug 2005 (3 year program). While still being enrolled in masters degree program, I joined a full time job in a software company in Jan 2006. I was awarded master of computer applications(3 year degree)in 2008, until dec 2010 (5 years) I worked with the same company in a full time job. after i moved to us. Now I am working with US based company from 7 months as a full time employee.(total experience 5 years 7 months).Do I qualify for EB-2.

You qualify.

Chances to get EB2 with B.Sc.
I have B.Sc. from Israel(06/2002) At 10/2002 I started M.Sc. At the same time I was working as QA eng.(1.5 years) and was checking exercises and exams in university. I stopped my M.Sc. in the middle and joined the company I am working for till now. After 3 years I was relocated to US. Currently I am 4 years in relocation and decided to apply for green card. The law firm, my company works with, decided that I should be on EB3 path. What are my chances to get the EB2 with B.Sc.(Israel)+1.5 years in QA(Israel)+3 years development(Israel)+4 years development(US)?

Your degree must be equivalent to a US Bach. degree. Incomplete degrees are not counted for EB2.

EB-2 experience
I am currently on H1B and have I-140 approved on EB-3 with a PD of Oct 06. I have overall 9 years of experience, which includes 4.5 years outside current employer. However, I had resigned my current employer an year ago and worked for a different company for an year and then joined back my current employer in Aug 2010. Since I haven't been continuously employed with current employer, I am wondering if ALL years prior to Aug 2010 can be considered for EB2 qualification.

Continuous employment is not required, but you can use the experience with the same employer ONLY if the job you used to perform and the job you will perform after the green card are more than 50% different.

Switching Jobs after I-140 approval
I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12, 1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)? 2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

Green Card Expenses
For an employment-based green card application in the EB2 category, my employer has said that they would be willing to make the application if I am willing to pay for it. Can the employee bear the total cost of the entire process -- including attorney's processing fees, filing fees for all stages, advertising fees, EAD, advance parole fees -- from start to final stamping?

The employer is bound by law to pay for all expenses, including legal fees, associated with the PERM process (but not the rest of the green card process).

EB-2 Question
I have 3 yr BSc(Computer Science)+ 2 yr MSc(Information Technology)from India and I completed my MSc on May 2003 and I am currently working for my current employer from July 2008 and my job description requires Masters degree + 2 yrs to perform the job. Overall I started my career from Jan 2000 - Till Date. Am I eligible for EB2 please let me know? Also can u explain, will I fall into this category 3 yr bachelors degree + 2 yr masters degree = bachelors degree + 1 year and would require 5 yrs progressive experience to qualify under the EB2?

You could qualify for EB-2 under BS + 5.

Job description for the EB-2
I've been working for the company that is sponsoring my green card for the past 2.5 years and some of the experiences/skills required in the Job Description were acquired working with this company. Is it valid to include those skills on the Job Description? Should I have acquired those skills before?

It is possible to use the after-acquired skills only if the job in the past and the green card job are more than 50% different.

Perm process during OPT
I completed my master’s degree last summer and started working with a company from 2 months. I am in OPT status right now and I wanted to know, if I am eligible to file for Green Card process with my current employer. If yes can I file in EB2? I have 2 years IT experience in India If no, do I have to wait until I get H1b. Is the Green card process dependent on H1B?

This question requires your lawyers to assess the case. Generally speaking nothing stops you from filing a PERM application while on OPT and an Eb2 appears possible.

EB-3 category
I am on EB3 category and have been working in the IT sector for the last 6 years and one year ago I completed my MBA too. I am currently working as a contractor and using my EAD. I am on Adjustment of status right now. Is it possible to change my category from EB3 to EB2?

It is possible, but the green card will have to be started again from PERM.

Can I apply GC in EB-2 category?
I have BSC from India + 2 years diploma in NIIT (In H1 and L1 they considered my diploma as a master degree ..I guess) in India and 10 years of experience. Can I apply GC in EB2 category?

Diplomas are unpredictable. I think EB-2 is doubtful.

Am I eligible for EB2?
I have a BE (4 years) degree in Computer Science from India and have a work experience of 7.5 years in the related field. Am I eligible to apply GC in EB2 category?

You appear to be qualified for EB-2.

EB-2 category eligibility
I am working for one of the largest companies as mechanical engineer. I am shifting from Mechanical engineer to Product development engineer job within the same company. The job requirement is BS + 2-5 years of experience. I have Bachelors 4 Years, Masters in USA, Research Assistant 1 year 4 months, Teaching Assistant 10 months, Experience as a Mechanical engineer 3 years 7 months. Am I eligible for eb2 category?

The minimum requirements for the job are 2 years exp. This job does not qualify for EB-2. You do.

EB-2
I have 3 years bachelors in computer science and 2 years masters in computer science in India..My education evaluation says masters..so is it possible to apply in EB-2?

It is possible, but your lawyers must assess which route is best for you: evaluate the two degrees to be equiv. to a Bach. and use Bach + 5 for EB-2 OR just use the Master's degree (risky).

EB-2 eligibility
I have a 4 years Bachelors Degree in Civil Engineering and I am working in IT Industry for the last 13 years with documented progressive experience. Do I qualify for EB2 or EB3?

EB2 is possible

Accredited degrees
I have a 2 years B.Com from back home & a CA. I have 10yrs of Account exp, plus a CPA. My firm's lawyers refused to file EB-2 & insisted on EB-3. I know two people form another account firm with the same credentials (even same university) who filed EB-2 & got GC. When I got my H1B, I got foreign credentials evaluated & received equivalence to BBA (Accounting & Finance) based on B.Com & CA. But Lawyers insisted that for GC process USCIS won't consider CA.

Your lawyers are right in that CA is not accepted as education by USCIS. Speak with a credentials evaluation agency about Master's degrees.

Can I change jobs and file PERM and I-140 under EB-2
Can I change jobs and file PERM and I-140 under EB2 instead prior EB3 with the new employer. How risky the situation is? I can stay with my current employer, but it is going to take at another 3 years to get my GC under EB3. My PD is Feb 2007.

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

EB-2
I have a Masters in Biomedical Engineering and work in a company that implements eQMS for Biologics, Med Device and Pharma companies. I work as a Senior Consultant. If I apply for my GC, would it qualify for EB2? Also, once I start the application process, if I leave my employer and join another employer, would I have to restart the GC process from the new employer?

You COULD qualify for EB-2 depending upon your qualifications and the job requirements. If you leave before I-140 is approved, you may get nothing out of the process. But leaving after I-140 approval gets you your priority date to carry forward.

Job Change after I-140
I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Filing EB-2
I have a BE (4 yrs) from India and MS (2 yrs) from US and have 2 years work experience. I have to start my green card process in 2011 and I have good chances of promotion to senior engineer also next year. 1. Should I wait for the promotion before starting GC process in order to qualify for EB2? 2. My company has a requirement of BS+5yrs exp for senior level. Will BS+MS+2 yrs exp be equivalent? 3. Should the job description specifically state BS+5 yrs OR MS+2yrs, or either is fine?

You need to speak with your lawyers to decide on the timing of the filing. For EB-2 a requirement of minimum Master's degree or in the alternative Bach. + 5 years of post bach experience qualifies you for an EB-2.

Eligibility for EB2
I have Bachelor of Business Administration (3Yrs) and Higher Diploma in Software Engineering (2Yrs) and 10 Yrs of Experience in which 7.5 Yrs of experience in required job description. Will I be eligible for EB2 Category?

Depends. If the SE diploma is post graduate (not available for undergrads) AND recognized - you MAY be eligible for EB-2.

EB2 Eligibility
I have to apply the GC under EB2 category. I have done my B.Sc(CS - 3 yrs) + M.Sc (CS - 2yrs) and having 9 years experience with Tech Architect - Lead(leading 5-20 peoples) position at this moment. My M.Sc(CS) has evaluated as US MS for H1 visa approval. Will I eligible ?

If your BS and MS are in the same field and are related to your work, EB-2 should work.

EB3 to EB2 Portability
My EB3 I-485 is pending with PD 06/2006. My company is willing to file the new EB2 as I have Indian equivalent Masters (3+3 years) and more experience as well as increased job responsibilities. Can I accept it and do the portability to get my EB3 PD? What is the minimum wage for EB2 category? Would my current company experience counts for new EB2 category? Any suggestions on the EB2 job responsibilities?

Theoretically, this is possible. As to the practical implications, you must speak with the lawyers who will represent you in the second green card process.

EB2 qualification with MS
I have MS in Electrical engineering with 3 yrs exp. The job requirement is for MS in Engineering + 2 yrs. Do I qualify for EB2?

Yes, you qualify for EB-2, unless the alternate requirements, if any, for the job are less than Bachelor's + 5 years exp.

Masters in Computer Science and EB2 eligibility
I have done my Master's in computer science in US and I have 6 months experience before joining my current company. Will I be eligible for EB2 category?

If the job requires a Master's degree - yes.

Regarding GC application after PhD
I am in my final year of PhD (Semiconductor devices) at a university in US. I did my MS in the same university. I have around 5 first author publications. The jobs in my area typically require a PhD, so I was wondering what are my chances of getting green card under EB-2 category (right after I get a job in the industry)?

EB-2 chances look pretty good.

Can EB3 PD be carried to new EB2?
I filed Perm under EB3 category on 1-Oct-2008. I got an audit. As per your current Perm dates, they are processing Aug'08 audits. Can I file with same employer under EB2? If yes, can I also keep EB3 file running parallelly. Is there a way for me to carry EB3 PD after I-140 Approval,if I file a new EB2? I completed 4yrs 2 months on H1B already. Please suggest me if I can change my employer now to file for EB2 or not. (If there is any way i can carry my EB3 PD for EB2 or not?). My lawyer said they can not change the current EB3 file to EB2 as they did not describe it for EB2 role.

It is logically inconsistent for two jobs from the same company for the same individual. If you have a good, logical, true explanation, there is no law that says you cannot have two PERM apps for the same individual for different jobs with the same company. But you cannot transfer PD until the I-140 is approved. I see no issue with changing jobs right away. You may have just enough time.

EB2 - Eligibility
I have 3-year Bachelor's degree, Certified Software Architect, 15+ yrs experience(including current employer), 100K+ salary. Do I qualify for EB2 under Exceptional Ability/

Under EB-1, probably no. Under EB-2, unlikely, but have your lawyers review.

EB2 Schedule A question
My PERM application just got denied due to the recent layoff in my company. Can I apply EB2 (schedule A) to bypass the labor certification step? Will the recent PERM denial affect the Schedule A application? Is it ok to submit the schedule A application soon or I have to wait for a certain time period?

If you are qualified, you can apply for Schedule A. I cannot think of any way the PERM denial or layoffs could cause any issues and there should be no waiting to file.

EB2 Qualification
I have B.Tech in Engineering from India. I have over 13 years of experience in IT.I am working as IT architect.My company is ready to process my GC.Am I eligible for EB2?

Assuming BTech is a 4-year degree, it looks like you are eligible for EB-2.

EB-2 with ChE MS + 2 yrs exp
I graduated from a 4 yr US BSChE program and a 2yr MS ChE program and have been working on an H-1B for the same U.S. University as a Research Associate for 2 yrs.All my publications (2-3) are still pending and I am secondary on most of them.What requirements would the position I am promoted to need in order for me to qualify for the EB-2?

You qualify for EB-2, of course, whether or not a promotion is required is entirely up to your lawyer and the employer to determine. Any position that requires an MS OR BS = 5 years experience (progressively responsible) qualifies for EB-2 filing.

EB2 eligibility
I did my BSc (3 years) in Computer Science From St Xaviers Mumbai. Then I did my MCA ( 3 years ) from REC Trichy. I have 7 years of work experience and all those years have been in IT industry.My company is going to file my GC for me. Am I eligible for EB2 category?

Yes, you are eligible for EB-2.

EB-2 with three years bachelor's degree
I have 3 yr Bachelor's degree (BSc) + 3 yr Bacheolor's degree in technology(BTech) from India and 8 years of experience. Do I qualify to apply for Green Card under EB2 category if the position requiers MS or BS+5 yr experience.

Usually, you are NOT permitted to put together two 3-year bach. degrees. So, it appears unlikely you will qualify for EB-2.

EB2 or EB3
I have 7 years of experience with 3year bachelors degree + 2year masters degree from India.Job for which my GC is being filed is Bachelors degree+6yr experience. As per knowledge from different online sources 3year bach. degree+2year masters degree+5years progressive,post-masters exp.- Is considered as EB-2 Professionals with Advanced Degrees.My lawyer is saying since my bachelors(India)is a 3yr program & US bachelors degree is a 4yr program so my case falls under EB3 & not EB2. She also specified that under EB2 category the educational degree must be from a "single source" & not from combination of degrees.

Generally speaking, if BS and MS are in the same or similar fields, you should be able to combine them to arrive at a 4-year degree for EB2 purposes. You should have a shot at EB2.

GC Processing and EB2
I have a Masters degree from US and based on the forum and Q&A I think I'd qualify for EB2 category for GC. I am with company A and am contemplating if I should go forward with GC processing or change the job. I am completing 4 yrs on H1 by this month end and would like to make an educated decision given the companies are not eager to hire on H1 if it is completing 6 yrs soon. Can you please let me know how long the process may take if it has to be initiated now? I would be interested in premium processing of I-140, adjustment of status and EAD.

For people born in countries that have an EB2 backlog, times can vary greatly from 3-4 years to longer depending upon a number of variables. One big advantage of getting at least to the I-140 approved stage is that you can carry your priority date to the next employer and get H-1 extension beyond six years.

EB2 and Clinical Specialist
I have a concern regarding EB2 application in my current employer, I will complete my 5 years experience next year and they are willing to promote me as a Clinical Specialist to count my 1 year and 1/2 as a staff/lower position with them to complete my 5years experience. My question is, is it possible that they could sponsor me for EB2 after they promote me as Clinical Specialist even if my 1 year and 1/2 experience with them?

Under the current law, it is possible to use the expience gained with the same employer if the labor certain job is more than fifty percent different from the earlier positions held with the same employer. Only a competent lawyer can help you assess the chances.

EB2 Eligibility
I want to know whether I am eligibile for EB2. Following are the key information. Is it a requirement to have 5 years experiences outside of US ? I have combined experiences of 6 years (US +India). Education - B.Tech (Electronics) in 2004 from India Experiences - 6 Years ( 3 years in India and 3 Years in US)

With a four-year Bach. Degree and more than five years of post Bach experience, you should be able to have a shot at EB2.

EB2, volunteer work counted as an experience?
I am an OT practicing here in the US and came from another country. I graduated with BSOT and had an OT VOLUNTEER work for 2 years in an adult setting back home. Would that count as a part of the 5 years experience? And from that 2 years, I was not yet licensed OT for the first 6months.

GENERALLY speaking, for EB-2, there is no requirement that I know of mandating paid experience. Volunteer experience could potentially be used.

EB2 eligibility
I have completed my Bachelor's Degree in Computer Science Engineering (4yrs) and working as a Subject Matter Expert in US on L1B visa with a work experience of 4yrs. I have completed 2 Microsoft certifications and AICPCU certifications. Will I be eligible for processing Green card on EB-2 category ?

You will need 5 years of post-bachelor's experience. Certifications do not usually help.

If one has an approved I-140
If one has an approved I-140, does he/she to move to a similar job/position/field to save the PD?

No, the job does not have to be similar. The green card has to be done again, but the PD can be ported to any job and category (EB1, EB2, EB3).

GC and EB2
My GC application has been filed under EB3. 140 has been approved, PD-08/2008. I hold a MS degree from US and possess 5yrs work experience. I've recently been moved to a new role. While the role itself don't require a MS degree, will I be eligible to file an EB2 application if the role required a BS + 5yrs work experience? My Wife is an Indian citizen but was born in Kuwait and is on H4 currently. Is the concept of "Cross Eligibility" applicable to my GC application? If yes, how do we take advantage of it?

You can apply for EB2 if the job requires Bach. with 5 years of post bach. exp. and yes, you can use cross chargeability. Discuss details with your lawyers.

EB2 eligibility for advanced degree occupational therapist
I just want to know if I can be eligible for an EB2 visa...I have a bachelor of science in occupational therapy in the Philippines and I am taking up an advanced degree in OT online here in the US..the question is...can I apply for EB2 after I had finished the advance degree in OT?

In my opinion, if your job requires an advanced degree, you can apply for EB-2.

EB2 Priority Date Cross Changeability...
Let me first thank you for guiding hundreds of us with your valuable advice. My sincere thanks to you. I have a question regarding the inter-changeability of EB2 prority dates. I'm an Indian citizen and my wife is a Russian citizen, born in Russia. She will be filing as my dependent on my green card. I read on some online forums that I can user her country's priority date ("current" as of today) for the green card. Is this correct?

Yes, that is correct. This is referred to as "Cross Changeability."

EB2 for a State job
I have been offered a state job, whose requirements are a Bachelor's degree with a 1 year experience. However, I have a US-based Master's degree. From what I understood from the text above, my green card can not be filed under EB2. I have talked to my employer about it and they have indicated that they are willing to help me in any way they can. If I were to request them to hire me in another position and advertise the new job requirements (Master's) after I'm hired, will I be eligible under the EB2 category?

You are correct. You will not qualify for an EB2 unless the job also legitimately requires a post graduate degree or Bach. with five years of experience at a minimum.

EB2 with online masters degree
I have done my 5 years of Bachelors(traditional school) in IT from USA and also my 2 years of MBA through distance education(online) from accredited(Accrediting Commission of the Distance Education and Training Council (DETC)) University in USA. I need to know if I qualify under EB2 Category(provided that job requires advanced degree). My employer wants to evaluate my Master degree because he thinks that Distance education is not recognized.

The key here is to find if the degree is accredited. Get together with the school.

EB-2
In order to qualify for EB2 under advance degrees, is it sufficient to have a MS degree from US univ or should the job requirement state so?

The job must also require (genuinely) EB-2 level qualifications.

PERM is approved under EB2
My PERM is approved under EB2. My education is 3 yrs Diploma+ 3 yrs B.Tech + 1.5 Yrs M.Tech + 8 yrs of exp at the time of PERM). All my education is from India. Do you see any problem with my education in I-140?

There are some variables. Generally speaking, if the BTech is supposed to be a 4-year degree and you got it in three because of your diploma, you should be fine.

EB2
Could you please advise the average time it takes to obtain GC through EB2 category? I've got Master's in International Business and 7 years of experience in the USA and EU. I got a job offer from the States and I would like to file the petition.

The biggest delay for most people is in the priority date movement. Check out the Visa Bulletin and the PERM processing times. That should give you a good idea.

EB-2 Eligibility
Had a question regarding the EB-2 eligibility.My Perm was recently approved in EB-2 category.Had a question about education before we file the 140. I've a bachelors in Computing from UK which was a 3 year course and after that I have a Masters from UK in the computing which was a 1 year course. My question- is this qualification eligible of the EB-2 category. Just want to ensure that there is no RFE in 140.

Impossible to predict. It all depends upon the type of degrees and the language used in the Form ETA 9089

When can I apply for EAD
May be a newbie question, I'm from india and I just got my I-140 approved in EB2, Can i file my I-485 as pending or do i need to wait for the date to be current. Is there any way to get EAD so that my spouse can also work?

This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.

Cross chargeability
On H1B, born in India, EB2 I-140 approved but cannot apply for I-485 since PD is Nov 2008. Is cross-chargeability applicable in this case, if I marry GF who was born in country other than India/China? Is it OK if the GF is not here right now or on other visa category than H1B? Will marrying enable both of us to file for I-485 immediately?

Cross changeability is possible if your spouse was born in a country other than your country of birth. She can file her I-485 only if she is in USA.

US embassy denial
I have my EB2 approved by the USCIS, do I still get the chance to be denied by the US embassy for the consular interview?

It is unlikely, but possible.

PERM classification EB2
I am technology professional with nearly 9 years of work experience. I am currently working as a software consultant in a trading firm in the US and will be graduating from a part time MBA program (concentrations in Finance) this december. If I plan to apply for PERM next year, will I be eligible to apply under EB-2 US Masters degree, given that my MBA in finance will help in understanding complex financial principles and writing algorithms that support day to day trading? In this case, will my previous experience be evaluated?

As long as the job requires a Master's degree and you have earned that degree by the time you file your PERM, you should be able to get EB-2.

EB3 to EB2 and I-140 Refile
I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business. 1. The new company B is in same County and State(but different cities). 2. I Will be doing similar or same work in a similar position. 3. H1B transfered from Company A to Company B. 1) Can company B use Company A Labor certicate and refile the I-140 again? 2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

10+3.5 years diploma + 3 years BS
I did 3.5 years diploma in computer engineering + 3 years BS in information systems (BITS). MY labor is in process under EB2 catageory. I am worried that my i -140 is going to denied because for my education. Mr. Khanna do you have any approval cases with diploma + BS.

I think your worry is well founded. These type of cases are difficult to get approved. I am commenting in general because I do not know the exact facts. Discuss your concern with your lawyers and if possible, get a response in writing.

EB1 Extraordinary ability
I filed my EB1 and EB2 NIW together, EB1 was denied but EB2 NIW was approved. I refiled EB1. I am a physician at one of top university , with many publications, presentations and offers from top league universities. There are only 12 people in the whole US that do same thing as I do in my clinical speciality. However I do not have any awards. What are the chances that my second filing of EB1 may go through.

Impossible to answer, Doc. This is like diagnosing a patient without access to the patient or his records. Impossible for me to say. I do not know your case.

EB2 from EB3 qualification
I am currently petitioned under EB3 (for embassy interview already) but unfortunately is caught up with the retrogression. Can I apply for an EB2 visa? I have a Bachelor's degree (BSN), took up Medicine (equivalent of a master's degree in academe) and currently is a faculty/administrator in one of the top nursing schools in Manila, going on 5 years of service. I am likewise a PhD student (Major in Biology) in one of the top university also in Manila. Am I qualified for an EB2? If yes, is EB2 a family based peition? My parents live in New Jersey. Thank you.

The term "EB" means employment-based. EB-2 is available for people with post graduate degrees (by US standards) OR a 4 years bach. degree with five years of progressively responsible experience. You need to speak with your lawyers about applying for an EB-2 and transferring your priority date.

Master transcript as degree
I received a complete official transcript and a letter confirming that I have completed all the requirements of the master degree. The university's next graduation date is Jan-30 2009 when I will get the diploma. Can I apply for EB2 on my complete official transcript or I have to wait until I get the diploma.

Generally speaking, under immigration law we focus on when the degree was completed - NOT when the formal diploma was conferred. Speak with your lawyers.

When does education become ground for denial - EB-2
If I file under EB2 in same educational qualifications, so in which stage it would be chances to denied. I mean in Labor, 140 or 485?

Your education/qualifications are USUALLY questioned in great detail at the I-140 stage. But USCIS or DOL can question any of these matters at any stage. I have seen approved I-140's being reopened and denied at the I-485 stage.

EB2 Qualification
I do have a question regarding EB2 eligibility. I earned a Bachelor degree in Science(B.Sc with Physics subject-which is not related to IT) from India(3 years) and also earned Masters in Computer (MCA in IT) (3 Years). So will I be able to file my employment Green card in EB2 category if I file my Green card in IT based company?

It is possible, but tell your lawyers to draft the PERM application carefully, so if EB2 is denied, EB3 should still be approved.

EB2 Qualification
I do have a question regarding EB2 eligibility. I earned a Bachelor degree in Science(B.Sc with Physics subject-which is not related to IT) from India(3 years) and also earned Masters in Computer (MCA in IT) (3 Years). So will I be able to file my employment Green card in EB2 category if I file my Green card in IT based company?

It is possible, but tell your lawyers to draft the PERM application carefully, so if EB2 is denied, EB3 should still be approved.

Occupational Therapist and EB2
My wife has a Post Professsional degree in OT from a reputed school. However, we are not sure if she qualifies for EB2 processing similar to Physical Therapists. I think she has to file like any other profession and doesnot get special consideration that PTs get. Can you please clarify?

OT's have no special category unlike physical therapists. But EB-2 may be possible. Discuss with her lawyers.

3 years of experience in IT field and completing a Masters degree - EB2
I am having 3 years of work experience. My intention is to complete my masters. Is it good to do MS with having 3 years of work experience.Please suggest me on this.Thanks in advance.

I assume you are asking whether you can process an EB-2 green card. The answer is yes, once you complete your Master's degree and take up a job that requires such degree or Bachelor's plus five years experience.

Can an unrelated Masters degree get me an EB2?
When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.

The simple answer is yes, the degree must be related. In the past, we have received many EB2 approvals requiring Masters degree. Now, such approvals are unreliable. Your degree seems to be related. Agribusiness and business... hmmm. I believe an EB2 argument can be made. The labor cert should be prepared in such a way so that if EB2 is rejected, EB3 is still safe. Do bear in mind, all submissions made to DOL MUST be true. Ultimately, it is the employer who must decide.

Professional Experience for EB-3
I'm trying to apply EB-3 with skilled workers who have at least 2 years of experience. I worked with 1 firm for about 4 years after graduation. I would like to know all my experience from current firm does not count for my professional experience or not. And are there any alternative options to apply for green card?

Usually, we cannot use the experience gained with the same employer who is applying for the green card, UNLESS the job being offered for green card is more than 50% different than the earlier jobs for that employer.

Restart the green card under EB-2 category
My Labour is filed in EB-3 & my PD is Oct-2003. I got my EAD in 2007. I have a BE degree from India & a work experience of 13 years. 5 in India & 8 in USA. Am I eligible for porting to EB-2? If I file a fresh EB-2 what is the process? Is it just the Perm process & I- 140 or do I need to file I- 485 again.

People with over 5 years of exp. after a 4-year degree may be ale to restart the green card under EB-2 category and then port their PD. Basically, you are redoing the PERM and I-140 for an EB-2 level job.

EB-3 to EB-2 with the same employer
My PD is EB3 - Dec 2007. I have 3+2 years of education from India which is equivalent to US Bachelors. I have 3 years of experience before joining the current empoyer. Now I have more than 10 years of experience(including the experience with the current employer). I would like to know if I can apply again in EB-2 with the same employer using the experience gained from current employer.

You can, if the job offered is more than 50% different than the job you were performing so far with the same employer.

EB-3 category
I am on EB3 category and have been working in the IT sector for the last 6 years and one year ago I completed my MBA too. I am currently working as a contractor and using my EAD. I am on Adjustment of status right now. Is it possible to change my category from EB3 to EB2?

It is possible, but the green card will have to be started again from PERM.

Job Change after I-140
I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

EB3 to EB2 Portability
My EB3 I-485 is pending with PD 06/2006. My company is willing to file the new EB2 as I have Indian equivalent Masters (3+3 years) and more experience as well as increased job responsibilities. Can I accept it and do the portability to get my EB3 PD? What is the minimum wage for EB2 category? Would my current company experience counts for new EB2 category? Any suggestions on the EB2 job responsibilities?

Theoretically, this is possible. As to the practical implications, you must speak with the lawyers who will represent you in the second green card process.

Can EB3 PD be carried to new EB2?
I filed Perm under EB3 category on 1-Oct-2008. I got an audit. As per your current Perm dates, they are processing Aug'08 audits. Can I file with same employer under EB2? If yes, can I also keep EB3 file running parallelly. Is there a way for me to carry EB3 PD after I-140 Approval,if I file a new EB2? I completed 4yrs 2 months on H1B already. Please suggest me if I can change my employer now to file for EB2 or not. (If there is any way i can carry my EB3 PD for EB2 or not?). My lawyer said they can not change the current EB3 file to EB2 as they did not describe it for EB2 role.

It is logically inconsistent for two jobs from the same company for the same individual. If you have a good, logical, true explanation, there is no law that says you cannot have two PERM apps for the same individual for different jobs with the same company. But you cannot transfer PD until the I-140 is approved. I see no issue with changing jobs right away. You may have just enough time.

Changing to Skilled worker
My current employer is my first job out of college. They placed me in the other worker category. Is it true that they cannot move me to a skilled worker category becuase this is my first job out of college?

If the job requires a Bach. degree, you are entitled to the skilled worker/EB-3 category.

My wife filed for Skilled Worker
My wife filed for Skilled worker (EB-3(A)(i)). Can I apply for NIV to visit her?

There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.

EB2 or EB3
I have 7 years of experience with 3year bachelors degree + 2year masters degree from India.Job for which my GC is being filed is Bachelors degree+6yr experience. As per knowledge from different online sources 3year bach. degree+2year masters degree+5years progressive,post-masters exp.- Is considered as EB-2 Professionals with Advanced Degrees.My lawyer is saying since my bachelors(India)is a 3yr program & US bachelors degree is a 4yr program so my case falls under EB3 & not EB2. She also specified that under EB2 category the educational degree must be from a "single source" & not from combination of degrees.

Generally speaking, if BS and MS are in the same or similar fields, you should be able to combine them to arrive at a 4-year degree for EB2 purposes. You should have a shot at EB2.

EB3 to EB2 and I-140 Refile
I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business. 1. The new company B is in same County and State(but different cities). 2. I Will be doing similar or same work in a similar position. 3. H1B transfered from Company A to Company B. 1) Can company B use Company A Labor certicate and refile the I-140 again? 2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

EB2 from EB3 qualification
I am currently petitioned under EB3 (for embassy interview already) but unfortunately is caught up with the retrogression. Can I apply for an EB2 visa? I have a Bachelor's degree (BSN), took up Medicine (equivalent of a master's degree in academe) and currently is a faculty/administrator in one of the top nursing schools in Manila, going on 5 years of service. I am likewise a PhD student (Major in Biology) in one of the top university also in Manila. Am I qualified for an EB2? If yes, is EB2 a family based peition? My parents live in New Jersey. Thank you.

The term "EB" means employment-based. EB-2 is available for people with post graduate degrees (by US standards) OR a 4 years bach. degree with five years of progressively responsible experience. You need to speak with your lawyers about applying for an EB-2 and transferring your priority date.

Watch out - the prioirty date cut off in March was effective immediately

The April 2009 Visa Bulletin was issued on March 9th. The VB said the visa numbers for EB3 were unavailable with immediate effect (Philippines retrogressed to 2003).

This is highly unusual. The visa bulletin is a forecast for the month ahead and does not take effect immediately. But State Department says that this one was of immediate effect.

What does this mean?

Applying for investment visa - regional investment center EB5
If somebody is without status in U.S.A can the person apply for investment visa?

Yes, of course. Especially when you are going through a regional investment center.

EB5 investment visa
For EB5 investment visa, can one of my relative living in USA gift me the $500K required to invest in a "targeted employment area"

I do not see why not. But check with a CPA about gift tax.

Investment based green cards
I want to know whether our federal bank (reserve bank of India) is allowing this US $500,000.00 for investment in U.S.A. Then I will ask some more questions like whether it is easiest way to get green card and whether our money is safe in investment (in the regional projects) and the total expenses upto green card release level (apart from us$500,000.00)

We practice US laws so I have no idea about RBI permissions. Safety of money is not guaranteed in any of the trusts that I know of. After all, this is an investment, not a fixed deposit or a CD in a bank. For businessmen with established businesses, L-1A and then EB1 is usually the better option.

Obtaining H-1 Extension beyond 6 years
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

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

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

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

Criteria for Outstanding Researcher/Professor Category

Preliminary requirement: The applicants must be able to document at least three years of experience in teaching and/or research in the specified academic field and that they are "recognized internationally."

Generally speaking, experience in teaching or research while working on an advanced degree will not satisfy the three year requirement.

Pointers for EB1/NIW filings

The following pointers have emerged from recent cases and comments from USCIS:

1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.

2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.

3. Emphasize/document the "international" nature of your accomplishments.

Filing EB1 while EB2 AOS is pending

I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
 

Basic Criteria for Extraordinary Ability

This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.

Father filing an I-130
My US citizen father is filing an I-130 for me; will my husband automatically be accepted at the same time as me if I get accepted?

Your father does not have to file a separate application for your husband. In the various papers you get from the consulate and the National Visa Center, you can indicate that he is getting his green card with you.

I-130 for husband approved - what next?
I am a US citizen and my husband is an Indian citizen. We got married almost a year ago. His I-130 was recently approved. What are the next steps for him to come to the US?

It should take a few more months. You should be getting some correspondence from NVC in New Hampshire. After you complete their requirements, the file will be forwarded to US Consulate in India for further processing. They will contact your husband.

My mom's green card interview
My mom came in for a visit in Dec 2009, I applied for I-130 in Feb-10 for her and got approved, then she left to Canada to visit a friend and came back in May, I applied for an adjustment of status in June, and she has her interview this week. Does the fact that she reentered in June with the intent to apply for permanent residency because of the I-130 approval we got lead to denying her application.

If USCIS so wishes, they can certainly make an issue of it. But they tend to be much more tolerant of cases of immediate family like parents and spouse.

I-130 & I-485
My immigration status is in pending for AOS. My spouse got recently the US citizenship. If she files for I-130 do I need to file for another I-485?

No. You should be able to use the same I-485.

Petition for brother
What is the period time, apply for i-130 for brother's with family from India.

Over ten years. Check out the Visa Bulletin .

I-130 petition
I filled the petition for my son when I was GC holder.My son got married 10 days before I got citizenship.Now his petition is denied.USCIS want me to file I-130 again. Please tell me I have to file I-130 or there is any other way.

As far as I know, there is no way out of this except a new filing.

B visa while GC pending
A a citizen, I filled up a I-130 form for my parents; they live abroad, but they already have a tourist visa; may they visit USA for short time while they are waiting for the GC process, and then go back to their country, keeping back and forth in the meantime?

The law is uncertain. This type of entry will be left at the discretion of CBP. I have a blog entry on this subject. Please review it: http://forums.immigration.com/blog.php?u=1

Legality of I-485/I-130 filing
I married my Canadian wife in November 09 in the US. She had entered the country as a visitor. She flew back to her expatriate parents in Australia. She re-entered the country - POE was LAX - and we linked up in North Carolina to drive north to pick up her belongings in Montreal. We exited the US and then we re-entered. USCIS gave us some difficulty at the border but they let us in together. Now I know I need to file the I-130 form, and I am hoping to file an I-485 for AOS and I-765 so she can work. Is this legal? She is here legally as a visitor with 6 months to stay.

This is a touchy topic. As long as you revealed to the Post during your last entry that you were married, I see no problem with the 130/485 combo.

J1 overstayed by years, married to a greencard holder
I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

I130 and application for adjustment
I filed I 130 for my unamrried son but before it was processed i became citizen so I filed fresh which may take mor than 5 years Is there any possibility for my son to come here and file adjustment visa? Can he stay and work after adjustment visa?

No one can file for adjustment unless their priority date is current. You should be able to upgrade the earlier filed I-130 to reflect your current citizenship. That way, he keeps his priority date. Contact USCIS customer service.

I-130 for parents and sisters
I'm a US Citizen, and I want to file a I-130 on behalf of my mother, Do I need to file a separate petition for my 12 year old sister or should be included? They both live outside the USA.

As far as I know, it will have to be a separate petition.

TN Holder laid off
My husband was recently laid off after submitting an I-130. He is a Canadian citizen on a TN visa. He is still living in the US, all though his TN requires him to go back to Canada if he is not employed. The I-130 was approved, and now USCIS would like the I-485 change of status. This requires him to state his employment. Since he is not employed should we notify USCIS that he is moving back to Canada? Or should he apply for an EAD along with the I-485? What is the best approach?

Do not be alarmed. If you are a US citizen, there should be no issues.

I-130 has 3 years not yet approved
I submitted a I-130 for my wife (I am a greencard holder), and got my receipt of notice in October 30, 2006. No more information has been sent to me or her. Is that normal? No yet approved, what do I need to do? Just wait? Thank you so much.

This is not normal. Contact USCIS customer service. If that does not work, contact your congressman. See this page: http://www.immigration.com/issues-relating-delays-various-immigration-ma...

Reentry application and biometrics
I just sent my I-131 application (for reentry permit) via overnight delivery, but turns out that I need to briefly go abroad starting this Friday for a work emergency. The official Notice of Action (I-797c) would probably arrive at my house while I am still overseas. My question is, will the application be denied if I leave the country before receiving the Notice of Action? (I'm afraid that USCIS would assume that I've abandoned the application by leaving the country.) I should be back in the USA for the biometric appointment.

As I recall, as long as the application has been physically received by USCIS, your departure does not cause abandonment. So, you should not have to worry. But you will need to be back for biometrics associated with the I-131.

Spouse of an O-1 - next step to Green Card
I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Can I process I-140 with previous company
I got I-140 cleared through current company and labor approved from previous company. Can I process I-140 through previous company (to get PD to 2008)?

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

Can I apply for H4 visa for spouse while on EAD
My I -485 is pending since 2007, on EB3. My I-140 approved in Nov 2007. I did not for I-485 for my spouse and dependents as they were not in USA. I am working on EAD and I do not have H1B. My Question is can I apply for H4 visa for my spouse, as I am legally working on EAD? I heard that people on student visa can bring their spouse on dependent visa.

You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.

Can approved I-140 be revoked
My current employer has filed for my greencard. My I-140 was approved last year. I have 2 more years on my H-1B. I want to change employers and want to know whether: My current employer can revoke my I-140 for changing companies? Even if they do so, can I maintain my Priority Date?

The old employer can revoke I-140 and alarmingly, USCIS has recently taken the position that the PD will also be lost.

Switching Jobs after I-140 approval
I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12, 1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)? 2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

H-1 extension beyond 6 years
My situation. I work for company A 1. My 6th yr H1-B ends in Dec 2011 2. Labor approved (PD May 2010) and I-140 (applied Sep 2010) pending - EB3 3. Once my I-140 gets approved (hopefully) my lawyer's plan to apply for a 3 yrs extension some time next year (Till Dec 2014). After/If I do get my extension for 3yrs with my company A, then Can I change my job to company B in 2012(who is willing to do my labor and I-140 again).

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

Can I change jobs and file PERM and I-140 under EB-2
Can I change jobs and file PERM and I-140 under EB2 instead prior EB3 with the new employer. How risky the situation is? I can stay with my current employer, but it is going to take at another 3 years to get my GC under EB3. My PD is Feb 2007.

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

Job Change after I-140
I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Can my employer file a I-140 after I quit or he terminates me?
I am currently employed on a H1B visa ( 7th yr extension). My employer had applied for Labor back in Jan 2009 but it hasn’t yet been approved. my employer now intends to terminate my employment by the end of the year ( lay offs/ I could quit voluntarily ) Can they still file for a I-140 ( based on a future job offer)? I would like to maintain my priority date. Also can a prospective employer file for a H1B extension based on a pending/approved labor after I no longer work for the current firm?

Both things are possible as long as the I-140 is filed in good faith. I have doubts about the I-140 approval if the job ceases to exist even temporarily.

Approval of I-140
My I-140 has been approved. My company is working on the getting the green card done. My question is can I quit my job with my current company and get a job in a new state and a new company? Does this affect the status of the green card application. Any idea of how long will it take after this step.

CHANGING EMPLOYER WITHOUT I-140 APPLICATION
If a person changes employers without ever applying for I-140, they can carry NOTHING forward to the next employer. They have to start their labor certification all over again with the new employer.

WHAT IF I-140 IS DENIED
The PD cannot be transferred

CHANGING EMPLOYER AFTER I-140 APPROVAL
If a person has received an I-140 approval through an employer, the priority date then belongs to him or her until the I-140 is revoked. The current USCIS thinking is that if the employer revokes the I-140, the employee loses their priority date.

When can I apply for EAD
May be a newbie question, I'm from india and I just got my I-140 approved in EB2, Can i file my I-485 as pending or do i need to wait for the date to be current. Is there any way to get EAD so that my spouse can also work?

This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Must we withdraw a PERM application if the employee is laid off?
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

EB3 to EB2 and I-140 Refile
I have worked for Company A and got my labor certificate(Approved in May 2009) and I-140(Approved in Nov 2009 under Eb-3). But company A got acquired by Company B. Company B bought major part of the assets from Company A. Both companies do same kind of business. 1. The new company B is in same County and State(but different cities). 2. I Will be doing similar or same work in a similar position. 3. H1B transfered from Company A to Company B. 1) Can company B use Company A Labor certicate and refile the I-140 again? 2) Since Company A filed I-140 on EB-3, Can Company B refile I-140 on EB2?

Generally speaking, I see this as a good opportunity to start a new PERM under EB2 and then transfer the priority date. Speak with your lawyers.

Birth Certificate Question
My I-140 was approved in Oct 2009 under EB1-b category. Now for filing I-485 we I had obtained my birth certificate (for the first time) in 2009. My lawyer is saying that will not do, instead I should obtain a non-availability certificate for my birth and provide three affidavits about my birth date and place from my relatives who are at least 10 years older than me. This sounds bizarre to me, as the birth certificate that was issued to me should be seen as a valid document and perhaps better than a non-availability certificate.

As far as I can think, what your lawyers say makes sense only if your birth was not registered when you were born. If the registration was done recently, I would agree with your lawyers, otherwise not.

Questions on AC21, EAD, losing job, etc.
1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.


2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).


3A. Correct. You are in authorized period of stay. That has been explained in my blog.


4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).


5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.



6A. No.


7A. No.


8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.


9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

Use of priority date
I am on an H1B Visa and my wife is on H4. She is about to finish her nursing school. My I140 is pending along with both our 485's. My question is.. if my wife finds an employer who is willing to file an I140 for her can we use my priority date and the already applied I485's to get the green card? My priority date is sept 2001. EB3.

Your wife cannot transfer your priority date to her case.

H1 6th Yr - Labor Approved - NO I-140
My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

I-140 Denied
My I-140 got Denied on Aug 17 on Ability to pay after a RFE.Reason for Denial is "Employer had filed more than 30 cases since sep 2008, and company's net Asset $4M(approx) AND Liablity $2M (approx) and so the net "LIABILITY" is $1M (4-2=1 but they have calculate as -1).30 cases with $1M libality is not sufficient to support this Immigrant , company needs more than $3M to support 30 cases. The truth is (as per my employer) that we have filed 29 cases since 2006 and not sep 2008 also company has more funds and the numbers 4M and 2M are incorrect.What can be done ?

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

Current USCIS procedures for PD transfer and AOS
Recenlty we submitted my NOID response for my 485. Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file 1.EB3 PD,2002 2.EB2 PD,2005. They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now. Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

AC-21 Ability to pay
I have changed employer using AC-21. I-140 appoved - Jan'09. I-485 filed July 2007. PD June 2007, EB-3 ROW. My previous employer will not withdraw my approved I-140. I am current working on EAD with my current employer. My current employer filed for Bankruptcy under chapter 11. Do you think I might have an issue of ability of pay when I renew my AP and EAD. Thank you in advance for your help.

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

I-140 application, experience certificate
I am asked by my lawyer to obtain experience letters from my 2 previous employers in their letter head and signed by someone from HR. Is this something that is required for the application of I-140?

In my view, these letters should be obtained BEFORE the PERM application is even started. It can be one of the required and key pieces of evidence in I-140. But the preparation to deal with this issue has to be made even before the PERM application is drafted.

I-290B AAO Process case online status question
I am looking for your advice here, my online case status for denied I-140's appeal I-290B as "The I290B NOTICE OF APPEAL TO THE COMMISSIONER was transferred and is now being processed at a USCIS office." this status is there for past 19 months with no further updates, recenetly opened SR recieved response saying my case is pending at AAO office in washington, which one is correct,Is my case transfered back to USCIS or still with AAO any idea. is there anyway to expedite my denied/appeal I-140 I am on 7th year H1b extension. Incase appeal denied what are the options I have.

Call AAO directly. They should be able to tell you what is going on. If the case was transferred back to CIS, that is at least partly good news. That means the appeal was not denied. As to options, you need to make an appointment for consultation with your own lawyers or us.

I-140 may get revoked. What happens to priority date?
This is regarding my husband. My Husband's GC is filed through Employer A. His LC & 140 got approved. We did not file 485. He recently got a good job opportunity and transfered his visa to Employer B. We have priority date of Nov 2007 in EB2. But Employer A may revoke the 140 as my husband is no longer an employee of company A. We do have the copy of approved 140 with us. Employer B is wiling to start his GC process this year. Can we port the old 140's priority date even though the original 140 is revoked? Will it be lost if approved 140 is revoked?

The way I read the law, I believe he can port the PD, even if employer revokes the I-140.

Obtaining H-1 Extension beyond 6 years
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

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

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

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

RFE after the I-140 was approved
1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can USCIS go back and raise RFE's in this manner? 2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

USCIS Finally correct 140 Premium Policy

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15

The second memo from USCIS is attached.

 

Multiple I-140 filings
Our community member spring09 says: Hi Rajiv, Thanks in advance. I have an question and keeping me up during nights. I am working on H1 with comp A, who has filed for my I-140 in Feb-08. And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B. Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140. Thanks again.

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

CIS Reinstates Limited I-140 Premium Processing

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

Expected I-140 denial
Thanks in advance for your help. My current situation is this : 1. Applied for I140 and received RFE 2. RFE requires Employer's 2007 tax document and my recent W2 3. There is a salary difference in W2 and Labor ( salary < Labor = 7000 USD) and the company was in loss for the fiscal year 2008. 4. This is my 6th year in H1 B and it expires in October,2009 My questions are: 1. Can I transfer my H1 B to another Employer at this situation and apply for my new Labor? 2. If Labor is approved, can I file my I140 premium and apply for 7th year extension? 3. How long will it take to cancel the current I140? Please help me out regarding this situation. Thanks and awaiting for your valuable suggestions.

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

Does filing for any green card permit me to stay in USA?
I am here on L1b visa from x company. My sister sponsored me Immigration visa in 2006. (File is still in processing). My assignment is going to over here. Is there any work around or change of status through which i can stay here?

So, the questions is does filing for any green card permit me to stay in USA?

The answer is no.

Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.

That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.

Can an unrelated Masters degree get me an EB2?
When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.

The simple answer is yes, the degree must be related. In the past, we have received many EB2 approvals requiring Masters degree. Now, such approvals are unreliable. Your degree seems to be related. Agribusiness and business... hmmm. I believe an EB2 argument can be made. The labor cert should be prepared in such a way so that if EB2 is rejected, EB3 is still safe. Do bear in mind, all submissions made to DOL MUST be true. Ultimately, it is the employer who must decide.

What to do if an I-140 gets rejected?
Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Supervisory review
Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

Spouse of an O-1 - next step to Green Card
I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Questions regarding I-485
I am on H1-B visa and my EB-2 Priority Date is May 15, 2010. Please see below questions regarding I-485. Question # 1:- Typically, how long would it take to receive Advance Parole and EAD after filing I-485? Question # 2:- I entered USA on F1-Visa in year 2000, and then changed my status to H1-B visa within USA in year 2004. I never left USA since year 2000. My passport does not have H1-B visa stamp. In order to file I-485, is it required to have H1-B visa stamp in my passport? Question # 3:-After filing I-485 and before receving A.P., if I travel to my home country for H1-B visa stamping, is it possible that my company can mail A.P. documents to my home country so that I could enter USA using my A.P. in case H1-B visa in my home country is denied? Question # 4:- I came to know that it is required for an alien to be present in USA at the time of I-485 filing. Is it also required that an alien must be present in USA until A.P. is approved? Question # 5:- Does Visa Officer have the ability to cancel A.P., in case H1-B visa is denied in my home country due to 221(g)/missing tax returns/W-2's/Paystubs? Question # 6:- If my H1-B visa is denied in my home country, and if i enter USA using A.P., then could my spouse enter USA using H-4 visa using my valid I-797 approval notice even though I do not have H1-B visa stamp in my passport? If I enter USA using A.P., what are the options for my spouse? Question # 7:- At what point of time during GC process, do I need to add my spouse? Should it be before filing of I-485 or before Visa Number is available? Question # 8:- After filing my I-485, and if my spouse is in USA on H-4, will I be able to add my spouse to my I-485 application? By the time, I want to add my spouse to I-485 application, if Visa Number is available and if AOS/I-485 is approved, then would I still be able to add my spouse if spouse is in USA and also outside USA?

Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks

Answer 2: A visa stamp is NOT required. Proper status only is needed.


Answer 3: It is NOT advisable to travel before AP is issued, if you do not have an H/L visa already stamped. For details, listen to recording's of the community conference call. It is posted here: http://www.immigration.com/free-comm...nference-calls


Answer 4: Presence in USA for 485 filing is mandatory. See previous answer for AP.


Answer 5: I do not believe VO has the authority to revoke an AP.


Answer 6: Under Cronin memo, if you enter on AP to continue working on an existing, valid H-1, you are still considered to be on H-1. I believe your spouse can use his H-4.


Answer 7: Before APPROVAL of I-485.


Answer 8: Your spouse can file his 485 if he is in USA; Priority Dates are current AND he has not been out of status for more than 180 days -- whether or not your 485 is already approved.

Can I apply for H4 visa for spouse while on EAD
My I -485 is pending since 2007, on EB3. My I-140 approved in Nov 2007. I did not for I-485 for my spouse and dependents as they were not in USA. I am working on EAD and I do not have H1B. My Question is can I apply for H4 visa for my spouse, as I am legally working on EAD? I heard that people on student visa can bring their spouse on dependent visa.

You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.

AOS interview next week, mother in India on AP
I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

I-130 & I-485
My immigration status is in pending for AOS. My spouse got recently the US citizenship. If she files for I-130 do I need to file for another I-485?

No. You should be able to use the same I-485.

With I-485 pending can I be an investor ?
My 485 is pending and I am on advance parole and EAD, my employment based GC priority date date was June 2006. I want to be an investor in my friends start up company. I wont be leaving my current job but only investing in it. Should that be an issue If I dont have my GC?

I see no problem with it, especially, if you are a passive investor who takes no action to manage or conduct the business of the entity invested in.

How to check if I-485 received
How will i know if they already recived ( i mean is there a way to trck it) my application for the change of status (I-485). i sent that last april 29, 2010....how long do i have to wait for the responds from the uscis....

You can verify delivery (if sent by Fed Ex, UPS, etc.) and also check with your bank if your fees checks were encashed.

What would be derivative's status
What would be derivative's status during the interim between the final divorce and the 485 is adjudicated/denied? Is it true s/he is still on AOS until the 485 is adjudicated?

In my view, the moment of divorce takes away the right to be a derivative and hence also the legal right to have a 485 pending.

Green card under the Child Status Protection Act
I have a friend who got his green card recently. His sister in law was the one who applied for the green card which was filed on October 1997. His son was 14 at that time. By the time he got his green card, his son was 22, so the son didnt get the green card. Can my friend's son still get a green card under the Child Status Protection Act, or some other ruling?

Your friend can apply for an unmarried child independently. Application of CSPA requires analysis of specific facts. I suggest your friend should consult an immigration lawyer for that.

When can I apply for EAD
May be a newbie question, I'm from india and I just got my I-140 approved in EB2, Can i file my I-485 as pending or do i need to wait for the date to be current. Is there any way to get EAD so that my spouse can also work?

This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.

Quickest way to get a GC
I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

Pending I-485 and marraige
Currently My I-485 is pending and I-140 is approved last Year (2009) january My PD 05/29/2007. I am working using my EAD and change my job last year I don't have my H1B. I filed my I-485 as single, but I will get married to my Girlfriend (Germany). She come here Last November with waiver visa (stay up 90days), Now she is thinking to come back using F1 visa a students instead re-entry using waiver visa which she can't change her status anyway). If I get married, can I put her name under my petition (file I-485 for her) ? and apply EAD also with her Travel documents ?

If your priority date is current, you can file her AOS as long as she is legally in the US. I just have an issue with using F-1 visa to accomplish this purpose. Please consult with a lawyer about the details.

File I-485 while J-1 waiver is pending
I am currently in the US under the VWP which expires March 15. I was about to apply for a marriage-based GC but I just found out that I am subject to 2-years HRR. I applied for a waiver (no objection). A lawyer told me today that I should still file the I-485 and just leave the question "subject to" blank or check "yes" and add "waiver pending". Is that going to work? I don't want to overstay the VWP. How many days does it usually take to find out that I-485 submission got accepted and I can legally overstay the VWP?

To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.

Legality of I-485/I-130 filing
I married my Canadian wife in November 09 in the US. She had entered the country as a visitor. She flew back to her expatriate parents in Australia. She re-entered the country - POE was LAX - and we linked up in North Carolina to drive north to pick up her belongings in Montreal. We exited the US and then we re-entered. USCIS gave us some difficulty at the border but they let us in together. Now I know I need to file the I-130 form, and I am hoping to file an I-485 for AOS and I-765 so she can work. Is this legal? She is here legally as a visitor with 6 months to stay.

This is a touchy topic. As long as you revealed to the Post during your last entry that you were married, I see no problem with the 130/485 combo.

AOS and EAD
I have been in AOS since Sep 2007. I have a EAD and now a new opportunity hit the door to move to another company, same functions but much better pay, arounf a 40% increase. I also got married to a US citizen. My dilema now is should I take the job? my actual employeer may get angry, so could he do something to screw my case? should I re-apply through a spouse? is something the new employer can do so I can be safe? I don't want to bother new employer, but could he eventually at least help so I can keep my actual status until AOS is approved.

It looks like you have several options. Once 180 days of AOS pendency are over after I-140 approval, usually employers cannot hurt you. Speak with a lawyer.

EAD restriction for 245i
I applied for GC through 245i. I currently have a valid EAD. I140 approved. and I485 pending. Its for future employment. Can I work for a non related (not related to my labour) until my 485 is approved?

Theoretically, there is nothing wrong with that, but speak with your lawyers. In my view, not working for the future employer raises issues like is there a job, do you really want to work for this employer, etc.

How to renew green card
My father's greencard will expire in June. How do we renew it?

Please visit this link.
http://www.immigration.com/agency_memo_policy_report/how-renew-a-green-card

I130/485 for wife
I will become a US citizen in Jan. 2010. My wife is an F-1 student but will graduate on 12/12/09. Is there any problems if I file I-130/485 for her be the end of her grace period(2/10/10)?

I do not see any problem if the 130/485 is filed during the 60 days following the F-1. In any case, she can and should apply for OPT.

Birth Certificate Question
My I-140 was approved in Oct 2009 under EB1-b category. Now for filing I-485 we I had obtained my birth certificate (for the first time) in 2009. My lawyer is saying that will not do, instead I should obtain a non-availability certificate for my birth and provide three affidavits about my birth date and place from my relatives who are at least 10 years older than me. This sounds bizarre to me, as the birth certificate that was issued to me should be seen as a valid document and perhaps better than a non-availability certificate.

As far as I can think, what your lawyers say makes sense only if your birth was not registered when you were born. If the registration was done recently, I would agree with your lawyers, otherwise not.

EAD - Job title change on the same job
My wife and I am on EAD and also both have H1B (I am in my 8th year of H1B and wife is in 5th year as teacher). Our EAD is based upon my job in EB3 category in IT as System Analyst/Administrator, my priority date Aug'2003. Last year I have completed MBA in Finance and can now work as a Project manager within the same company. Can I change my title to Project Manager or IT Manager and also can I change my profile now to work in Investment Company or any other non-IT field in the same company I am already working. As these delay of getting green card are actually causing problem in my career.

If you change your field/job description, it is very likely that you have to start your green card all over again. You should be able to carry the same priority date, but the PERM/I-140 may have to be done again.

Turning 21 and I-485 pending
I am turning 21 on July and I filed my I-485 on sep 2007, I wanted to know if there is a problem with me turning 21 while my I-485 is pending or if the child status protection act applies to me.

Speak with your lawyers. You will be protected to some extent by CSPA.

I-485 pending and after 6 months laid off
I-485 pending and after 6 months (so AC21 portable). Laid off. H1-B revoked but I-140 not revoked. Since it was very hard to find a job in US, I found a job outside the US temporarily in Sept 2009 and stayed there till now. Can I still enter US on AP?

The way I see it, until and unless your AP or 485 is revoked, it is legal to use both.

Current USCIS procedures for PD transfer and AOS
Recenlty we submitted my NOID response for my 485. Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file 1.EB3 PD,2002 2.EB2 PD,2005. They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now. Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

Priority Date For Indians
I have LC approved and 1-140 approved last year April. How do I know when I can file I-485? Is USCIS going to let my employer know about it? Also what is the priority date for Indians who are current?

USCIS does not inform. You should keep track of the priority dates. See the Visa Bulletin each month: http://www.immigration.com/visa-bulletin

I-485 and Divorce
If both husband and wife are on EAD and waiting for I485 approval, how does it effect the status of i485 for the spouse of one of them decides to divorce?

If the divorce occurs before the 485 approval, the derivative spouse is no longer entitled to a green card

I-485 AOS Pending, Employer's Bankruptcy
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Important questions on H-1, AP and Travel
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

Working abroad while AOS pending
My self and my wife are on EAD and advance parole. My wife and I are from India. I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months. This is however not the company with which I started my green card. I changed jobs when I got my EAD. But I have several questions: 1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD? 2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay. 3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

Working for two companies on EAD
1. Wanted to check if on an EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time. 2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company. We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

AC21 - accepting a green card
1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

Leave of absence - I-485 pending
a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending. b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey? c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

Marriage to US Citizen with EB AOS is pending
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

What does AOS approval mean?
I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

Following to join
This is regarding my sister who is going through lot of stress due to visa issues. She has been on H4 for past 9 years. Her H1 was approved in 2007 with an employer who wanted to hire when she was doing her MBA from a reputed University here in US. They were even willing to hire her once she is done. 3 months back her husband lost his job and had to go on EAD since (My sister could not do it because she was traveling out of US in 2007 when the window opened). She has decided to go on H1 status. She has to get it stamped outside US as she had lost her H4 status. It has been now more than a month and she is stuck out of US (in UAE). Her employer is a small firm and due to THE bad economy she is very nervous about the future even if she gets H1 B. Here are our questions/ concerns. Please do answer these: 1. If she gets H1 B could her husband still file for Follow to Join. There is no guarantee in this environment it would give her peace of mind if he could. 2. God forbid - If she doesnot get H1B and her husband files for Follow to Join - would she have to stay out side US to do consulate processing?? How much time it takes? 3. Any advise/ suggestions are welcome.

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

Employment-based out of status protection for AOS - Section 245(K)
My previous employer didn't pay me for 7 continuous months in 2006, Current employer is going to file I-140 and I-485 based on my EB2 PERM. I have all W2 and Pay stubs except that period. will that going to affect my GC application ? Please let me know what are the possible consequences of that. I didn't know about that 180 days rule.

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

I-485: pre-adjudication and employment verification letter
1. I see few cases where CIS has sent an RFE to ask for Employment Verification Letter (EVL). When does this typically happen? 2. For cases where in the EVL was already sent along with the I-485 application, what are the reasons usually for CIS asking EVL again? 3. I had taken an Infopass few months ago, and they had said my I-485 application is pre-adjudicated. What does this mean?

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

 

 

Filing I-485 after I-130 approved
I filed I-130 for my mother at beginning of April. Now I want to file I-485 as part of the concurrent filing. Can I just file I-485 and attach a copy of I-130 notice? Please advise what I should do. Thank you

I think you can and there should not be any problem. As to where to file, call USCIS customer service. 1 (800) 375-5283.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

I-485 interview-- does arrest create a problem

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

EB-3 "Unavailable"
Here is a question this morning from forclients.com, our clients' extranet. Quote: The nightmare has once again come true, eb3 would be unavailable until September 09, if I am not wrong? With this in the background, I am thinking of giving up the hope of getting my green card soon (my pd may 04). If I go back to India, can my GC application still continue to be processed?

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?

AC21 Portability - Changing Jobs After 180 Days

What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
 

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

I-485 Priority Dates and Processing Dates
One of our community members had asked a questing regarding the processing dates of 485.

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Am I obliged to join my sponsoring employer after GC approval?
For past 7 years I work for company ‘A’ on their H1B visa (EB3). I had a I-140 cleared in 1998 from my previous company ‘B’ under EB2. Company ‘B’ filed for my I-485 in 2004 and I finally got my green card.

Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.

Does chargeability change with citizenship change?
I have attained Canadian Citizenship but a born Indian citizen, when I am applying for 485 which priority dates do I need to consider, General or India. I do not have Indian passport.

Still, India. Your chargeability follows the place of birth, not your citizenship.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

AC21 Portability and Related Issues

Quote:

Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

Further questions on AC21
I got laid off from work from my present employer on October 31, 2008 and I have 3 questions. Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved EAD & AP both for the primary and dependent.

Quote:

 I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Supervisory review
Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

AOS Pending, Should H-1 be Renewed
Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Priority Date and AOS (Form I-485) Processing
Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my FP done yet?

As of July 2008, this is how the system works.

First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

EAD and H-1 Conversions for Derivatives
I have applied for 485 as the primary applicant and my wife is the secondary applicant. Right now both of us are on H1 visa. We had applied for EAD and AP and intend to apply for renewal soon as we near 120 days. I am on my 7th year of H1 and my wife is on 2nd year of H1 and 3 year of (H1 and H4 combine). Her current H1 expires on April 2010. I intend to remain on H1 itself and have no intentions of using my EAD. Can you please clarify these questions.

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

 

Gap in Employment during AOS
My friend lost his job on Friday when he was working on EAD (this is not the employer who has applied for GC). His i-140 was approved last year in May. He is looking for new job which would take couple of weeks. I have following question for the situation:

Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.

Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.

AOS Denial – Consequences for H-1

Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.

I-751 genuine marriage
My wife and I have decided that marriage does not fit into each others dreams anymore. We have been married for almost 3 years and Just got a notice that after filing I-751, the evidence submitted with the form was "insufficient". Our marriage and relationship started and continued in the utmost manner of good faith. Our decision for divorce was a mutual one. We plan on continuing friendship in good faith and she will always be part of our family. She has a life here, she works hard, pays taxes and wants to continue her life here. We both don't want her residency here, her life, stripped away.

I like your attitude. It appears to me that what is missing is proof, not genuineness. I suggest you contact a lawyer locally. They should be able to assist with finding items of proof that you may have overlooked.

Green card
My green card got expired in nov 2007, I filled by mistake I-90, when I went for my biometrics, they saw that I filled the wrong application, I have to fill I 751, then I filled I 751, My rec number is EAC*********. I recently went through my biometrics again, in April 2009, but still, I do not have any proper response,when do you think i will get my GC?

In my view, failing to file an I-751 in a timely manner could cause serious problems. I think you should consult with a lawyer locally where you are.

Visit visa and marriage
Will I get 15 days visa for US as tourist visa and in this time marry a friend who is U.S citizen and also born over there in USA, so could I be able to apply for visa extension and then apply for PR in USA?

Spouses of US citizens are eligible for green card without any waiting. But I have always advised people to not use a tourist visa to enter USA with an intention to get married. I suspect USCIS can, if they choose to, raise an implication of fraudulent entry.

LPR petition for son
My mother just got recently approved to migrate to the US as LPR. I am a USC. Now I was wondering how soon my mom can submit a petition for my brother who is unmarried and over 21. I am assuming it would be faster for my LPR mother to petition my brother than me.

It will be faster for her to petition and she can do so as soon as she wants. I would suggest she should apply when she moves to USA. If you wish, you can also start a petition for your brother. He can wait in more than one category.

Sponsoring green card for brother
I am a legal permanent resident for 14 years; I would like to know what I need to do to ask for my brother to become a permanent resident or green card. He’s here in U.S visiting me with his visa. He is 27 years old and not sure if I am eligible to request it.

You cannot petition for brother until you become a US Citizen. And, even after that, it takes over 10 years to get a green card. See family category 4 in the current visa bulletin: http://www.immigration.com/visa-bulletin

Family Unification and Green Card
I want to know how I can come back to US. I came US 2006 like a guest, stayed about 5 years & left US. But my family still there, ex-wife, two daughters older 20 year old & younger 17. When my daughter turns 21 year old can she apply for family reunification, especially for me?

One of the ways could be for your daughter to apply for your green card when she turns 21. The problem is, if you were unlawfully present in USA for more than a year, you may be barred from entering USA for 10 years.

Father filing an I-130
My US citizen father is filing an I-130 for me; will my husband automatically be accepted at the same time as me if I get accepted?

Your father does not have to file a separate application for your husband. In the various papers you get from the consulate and the National Visa Center, you can indicate that he is getting his green card with you.

Green Card and last name
I am a US citizen turning 21 next month. Can I sponsor my dad to get a green card even if I am not holding his last name?

Yes you can. Having the same last name is not required.

New GC for my wife and child
My wife got her green card in 2006 but since 2008 she has been staying continuously overseas. In 2009 she applied and received SB-1 visa but she was not able to return to US before it expired.In 2009 our daughter was born overseas. Just recently I have become a US citizen through the naturalization process. I am planning to bring all my family members to US in April 2012. What are our options?

Apply for their green card and shoot for a K-3 visa simultaneously.

GC petition for a 21 year old
My friend filed a petition for an adult child (over 21 years old) six years ago and just received notification this year that there's a visa number available for the child. Meanwhile, the child has traveled to study and obtained a permanent residence in Canada. However, the child still wants to join his mother to the United States. Will the US give the child a GC if all the requirements are met?

Sure. The fact that he is in Canada is not an impediment.

Two year temporary green card
I just received my two year temporary green card, my malicious mother-in-law claims she went to immigration and put a "BLOCK" on me. Is this possible? Can she do this? I have a clean record good credit and have never been in trouble with the law. Should I be worried?

She cannot put a "block." There is no such provision in law.

AOS interview next week, mother in India on AP
I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

Last name in Passport and GC processing
I am filing GC for my mother who is in US on visitor visa & her I-94 got extended for another 6 months. She never used her surname on her Indian passport? What should I mention in the last Name on I-130 & rest of the forms (I-485).Should I mention NA or not used or leave them blank?

You have several choices, including "No Last Name Used." If she wishes to use some other name, including adding a last name, now would be a good time to do it.

I-130 for husband approved - what next?
I am a US citizen and my husband is an Indian citizen. We got married almost a year ago. His I-130 was recently approved. What are the next steps for him to come to the US?

It should take a few more months. You should be getting some correspondence from NVC in New Hampshire. After you complete their requirements, the file will be forwarded to US Consulate in India for further processing. They will contact your husband.

Visitors visa and green card
My mother wants to travel to US on her existing visit visa. We recently filed for her GC petition as well. We are wondering if she is allowed to travel on that same visit visa. Her visit visa is also expiring soon, would that be a problem coming into USA?

She will be at the mercy of CBP at the airport. They can decline entry.

Green card and overstay
My dad has a green card and went back home over 2 years ago. He is now trying to come back after being away from the US for 2 years. I was told by some people that if he stayed over a year outside the US they will not let him back in to the US even though he has a Green Card. Can you please tell me if this is true, or can I just get him a ticket and fly him back to the US?

It is highly unlikely that he will be allowed into USA.

Mandated poverty line
What is mandated poverty line? I want to petition for my husband, can my father sponsor him financially if I do not have enough income to support my husband? My father and me are both permanent residents.

Here are the poverty guidelines http://aspe.hhs.gov/poverty/index.shtml

Your father can co-sponsor (file an affidavit of support) along with you.

Processing time for spouse - greencard
We recently got married. My wife is currently in US student visa/OPT. I am a US citizen. We are currently filling out her green card application (I-130 from me and I-864 for her status adjustments). 1. How old will the entire process take - until she gets her green card? (I have heard 90 days - is that accurate?) 2. My wife's current visa expires in 3.5 weeks. If we send out all our finished paperwork in the next day or two, is that time for her status to be adjusted? What if the status is not adjusted before expiration? Can we do something so she won't have to leave the country?

1. Time should be approximately six months to one year if all goes well. EAD is issued usually within 90 days of applying for it.
2. Once you apply, she should not have to leave.

Family based petition - sibling
What would be the schedule of fees for a case of Family based petition for a brother of a US citizen?

Check out the Form I-130 filing fee.

Filing in India after wedding in US
I am planning to get married to a US citizen in a court in the US and afterward would be going to India where I will be filing for my GC.Please let me know whether the same procedures for filing for GC in India after the wedding in India is applicable for filing in India after the wedding in US. are there any complications involved in this?

Check with US consulate. They respond to emails. They often impose some residence duration requirement for applicants.

Interview for green card
My mom has an interview for green card in January. I really need to know if she`ll get some kind of paper or stamp in her (expired) passport right away. We are moving to another state for good and I want to make sure she will be able to fly.

If this is an adjustment of status interview and she gets approved, they should stamp her passport. But she does need to renew her passport before the interview.

Marriage in India or in US
I am in US on a H1B and I am having my wedding in India (with a US citizen) in the last week of Dec. I have to go for my stamping when I am in India. Since there is a lot of apprehensions about H1B stamping these days, could you please suggest what is the best way to go here. Would doing a court wedding in US before I go to India(and showing my marital status as married with US citizen)help in anyway - for getting H1B or for GC processing (if I have to do it from India in the worst case)? If my H1B gets rejected, can I go for H1B stamping using the approval notice from another company?

Having a US citizen spouse should neither hurt nor help your H-1 visa app. H-1B rejection does not mean you cannot apply for H-1 through another company.

Can I petition my Fiancé
How can I bring my fiancé to United States, can I apply for him by green card? I am not still a citizen.

There is no fiance visa for non-citizens, but look into the waiting times for spouses of green card holders. Those times are pretty good right now.

My mom's green card interview
My mom came in for a visit in Dec 2009, I applied for I-130 in Feb-10 for her and got approved, then she left to Canada to visit a friend and came back in May, I applied for an adjustment of status in June, and she has her interview this week. Does the fact that she reentered in June with the intent to apply for permanent residency because of the I-130 approval we got lead to denying her application.

If USCIS so wishes, they can certainly make an issue of it. But they tend to be much more tolerant of cases of immediate family like parents and spouse.

Can my daughter sponser me?
My daughter she's going to be 21 next year and she's an American citizen, can she sponsor me?

She can sponsor you for your green card upon turning 21.

Family based green card and country of origin
For the family based green cards, does my country of origin makes difference in speeding up the process? I am from Nepal and I suppose there aren't many who are applying in this slot.

Yes. The country of birth makes a difference. Check the latest Visa Bulletin for times.

Am I eligible for a green card?
If both of my parents apply for the green card lottery and one is successful and gets the green card, but they do not use it to move to the US, would I (I'm not married) be eligible to get a green card and move to the US?, or would my parents have to move to the US on the green card for me to be eligible to get one?

I do not see how you can move without them. They would be the primary applicants for the DV.

Cancel sponsorship of my brother
I have been a petitioner for my brother since I offered it in 2002. Now, I don't want to be a sponser for my brother. Can I cancel it or not?

You can withdraw the Form I-130.

Son sponsoring mother
What is the age the child can apply for a parent's green card?

A child can only apply for a parent's green card upon reaching the age of 21.

B2 visa to green card
I am a US citizen can I apply for green card for her while she is in US and can she stay here while the application is in process?

The answer to both your questions is - yes. But you MUST speak with a lawyer to understand all the nuances of her case.

Petition for brother
What is the period time, apply for i-130 for brother's with family from India.

Over ten years. Check out the Visa Bulletin .

GC for parents
Parents were in US July 2008, filed for an I-94 extension end Aug 2008 from Dallas, which was submit to VSC and subsequently routed to CSC their port of entry California. Extension was denied end Jan 2009 (guessing since they had extended 2 months the previous visit in year 2007). They left Mar 2nd 2009 (meeting the 30/31 day exit requirement). Are they ineligible for GC? If so how long? Is there an alternative?

It does not look like they were unlawfully present for over 180 days. So, I don't see why there should be a problem with the green card.

Can we still file for AOS
If my finace has overstayed his visa does that make him ineligible for AOS?

If he entered legally and is not subject to any other bars, and if you are a US citizen, he can apply for AOS when applying for his green card through marriage to you.

6 month rule
Good day, my concern is regarding the status of my mother. She is a GC holder and been staying here in the philippines for seven months now because of some family matters, she wants to go back to he US in june, 2010, what is the status of my mother , and what are the possible charges ( if there is), and how much?

Your mother should be prepared to explain the reason for why she was away from USA. If she stays outside for a year, she will lose her green card.

GC for Wife
My wife and I have been married for 15yrs. I am a U.S citizen and she is Mexican Citizen. We have been in mexico since 2001 and I want to get her green card. She went last year for a tourist visa and they said she is band for 10 yrs since she entered the U.S in 2001 without a visa. My question is can I go ahead and file for her GC even though we have 1 more year before the 10 period is up? Also since we have been here I have not filed income tax since she has a business here and pays taxes here I dont show income but she has a uncle in the U.S who will be able sign for support.

I have not reviewed the law specifically, but I think it is permissible for you to start the I-130 process even now and you can get a co-sponsor for the financial support.

Married to a US citizen
I got married to a US citizen in Mumbai under the Special Marriage Act about a month back. He is currently in the US and I am also planning to immigrate there with him. I have a tourist visa & am planning on going to the US on that visa and then apply for change of status. Will it be ok to do that? & once I apply for change of status, am I allowed to stay in the US beyond the regular tourist visa timelines (meaning the stamp given at the immigration counter at the airport showing the last permissible date of stay in the current visit)?

This may sound silly, but I think you should reapply for a tourist visa and tell the consulate what you are planning to do. They may not require a new visa or they may even deny you entry and ask you to wait for your green card. But that, I think is the right thing to do. Once you arrive in USA and file for adjustment of status, you can stay beyond your tourist visa/I-94 duration.

Greencard holder filing for a non-US citizen
I am a GC holder currently working in Texas. I lived in Ohio, still have an Ohio drivers license and still maintain a house there where all my letters go. I am trying to file for my wife who lives outside of the US. Should I be filing from texas or Ohio?

I think you should go with your actual place of residence. Also, remember to file Form AR-11 every time you move.

Petition for Father and Husband
I am a US Citizen, i want to petition my Father and my Husband,. Can I do that at the same time though? I mean pass the petition of both at the same time?

Yes you can. There is no limit to the number of simultaneous filings other than your financial ability to support the family members for whom you apply.

Green card under the Child Status Protection Act
I have a friend who got his green card recently. His sister in law was the one who applied for the green card which was filed on October 1997. His son was 14 at that time. By the time he got his green card, his son was 22, so the son didnt get the green card. Can my friend's son still get a green card under the Child Status Protection Act, or some other ruling?

Your friend can apply for an unmarried child independently. Application of CSPA requires analysis of specific facts. I suggest your friend should consult an immigration lawyer for that.

Green Card and marraige to a non citizen
I have my greencard. Can I marry a non citizen of US and file for her? How long will it take to secure a working permit for her?

Filing through a green card holder takes several years to get to the work permit stage.

Family based green card.
I am currently in the US on a h1b visa. My I-140 has been approved under eb3 category but looks like it will really take a while for the visa numbers to be current. My brother is a naturalized citizen. Can he file for my green card under family based siblings category? I was told by someone that i cannot file 2 immigrant petitions. Is that true?

You can simultaneously file through as many green card categories as you wish. Check out the backlogs on the visa bulletin.

American born mother and daughter born in Mexico
My mother is an american born in US and I, her daughter was born in Mexico. Am I an American citizen or what papers do I need and what do I need to do? Do I need a green card or what should I do? I have 4 sons that were born in US ages 22,20,15,12. Can one of them sponsor me or what status to be a permanent resident.

Contact USCIS customer service or a lawyer. This is what they say: Whether someone born outside the United States to a U.S. citizen parent or parents is a U.S. citizen depends on the law in effect when the person was born.
These laws have changed over the years, but usually require a combination of at least one parent being a U.S. citizen when the child was born and having lived in the U.S. or its possessions for a period of time. Additionally, children born outside the United States may become citizens after birth based on their parent’s citizenship or naturalization.

GC for Parents
I am a US Citizen through naturalization. I have applied for GC for both my parents and they are here. I applied I130 and I485 concurrently. I recd the notice letters and my parents got thier finger printing done on 03/22/2010. My Mother's I-94 is expiring on May 25, 2010. Do I need to apply for an I-94 extension since their 485 is still pending or can she stay till GC is approved without a new I-94 extenstion. Both my parents have a 10 year valid B2 visa till 2016. Please advise if I need to apply for a I-94 visa extension.

A timely filed I-485 gives your parents the right to stay (referred to as "authorized period of stay") in USA pending adjudication (without having to extend their B status).

GC for brother and family
I am a citizen here and would like to apply GC for my brother's family in India. My question is brother and family have 10 yr visiting visa and they keep travelling here every 2 yrs. Once I apply for their green card, can they still continue to visit here with their visitor visa? When would their visitor visa gets invalid.

Travel on a NIV while GC is pending is very uncertain. CBP can refuse entry.

Petition for siblings
My sister just got her green card last year. Can she petition her siblings ages 22 and 24? how long does the processing take?

Only US citizens can petition for their siblings.

GC through mother ....
My parents got GC and I could not get it since I was 21. I am now in the US on H-1B. My mom applied for me when she was a permanent resident under the unmarried son/daughter category. In 2009 I got a letter from USCIS that my visa is available since my priority date was Sept 2001 but in 2009 I was already married and my mom became a citizen after we got married. My question is - can I file for new I-130 and request them to allow me to use the old priority date (Sept 2001)? What are the chances of them allowing me to do that?

As far as I know your PD cannot be reused because you lost it through becoming ineligible for the visa category.

U.S citizen sponsoring mother
I am a U.S citizen and I want to apply GC for my mother. She has a multiple visa for U.S. If she comes here and then I apply for her do they need a medical for her in here or not?

Medical examinations are needed even if you file from here.

Unemployed husband
I came on an F1 visa but dropped out due to financial difficulties, I have been working without a work permit, my husband who is a US citizen,has been unemployed for the last two years due to a car accident,so we had to use my income for the I-864 now they USCIS want me to verify my employment eligibility, how can we deal with this problem?

You may be best served by getting a co-sponsor for the affidavit of support.

I-130 petition
I filled the petition for my son when I was GC holder.My son got married 10 days before I got citizenship.Now his petition is denied.USCIS want me to file I-130 again. Please tell me I have to file I-130 or there is any other way.

As far as I know, there is no way out of this except a new filing.

I have a green card, I was out of the U.S for more than a year
I got my green card back in 2003, I traveled to the U.S. in search of a better life. Since my grandmother was sick I had to comeback to my home country in 2008. I've been out of the U.S. for more than a year. My grandmother is fine now and I'd like to comeback to the U.S. My green card expires in 2014, so it's still valid now. Will I be allowed to comeback to the U.S.?

Generally speaking, a visit outside USA lasting more than one year terminates your green card (no matter what the card says).

Which state to file papers for green card
I'm on F1 visa and just got married to a US citizen, I'm looking forward to file green card papers..is there something like some states(MD or Kentucky) have the fastest processing time, what is the normal time limit from filing to the interview and receiving green card?

Follow the instructions on the form. Place of filing in immigration matters follows your residence. It is not open to choice. USCIS processing times should be here: http://www.immigration.com/processing-times-and-status-check

Marriage Immigration - Impact of divorce
I got married in November 2008 and my husband received his green card through our marriage (I am a US citizen) After a few months our marriage didn't work out and we are thinking about a divorce. Can he loose his green card if we get divorced?

The rule is, if the marriage was entered into in good faith, the condition on the green card should be removed even if the marriage fell apart.

How much more do I have to wait for my green card
On April of 1997 my dad as a citizen put in application for my sisters and I and we were accepted the same year on July 1997 but we have not heard anything else after the last correspondense we recieved in 2001. just wondering why it has taken so long for our green card to arrive or any notice what we are to wait any longer and how much longer. Can you please let me know what we should do?

There are too many unknowns in your situation for me to be able to answer. First, you need to check and see if your priority date (the date your I-130 was filed) is current. You do that by reviewing the most recent Visa Bulletin - http://www.immigration.com/visa-bulletin. If your PD is current, then you can start checking with the govt.

Marriage Based Petition
1. I am a GC holder for a year. I got married in dec of 2008 to a foriegn national and need to know when to file the I-130 for my wife. I do not have any tax returns as yet since i did not gain employement till 2009. I need to know the best way to tackle getting my wife over. If i send the I-130 in how soon will i need to provide financial documents like tax returns and other statements of support. Or will it be ideal for me to hold on till i have at least one years tax return as i would prefer not to be the cause of any processing delays. 2.As a follow up to the question 1, as advised by you I have gone ahead and submitted forms I-130/G-325A. The check for the applications has been cashed, but I would like to know what the next step is or how best to follow up on this.

1. I think you should file ASAP. You can get a co-sponsor and show all other assets you have.


2. For basic information call the USCIS customer service. Your local Congressman can help in the follow up.

Getting married to a green card holder
I might be getting married to a green card holder who has it since 5 years and is eligible to apply for a citizenship next june. If I get married to him now when will I be eligible to get a visa to join him in America? What sort of visa will help me be with him and when?

Once he is a Citizen, he can apply for a K-3 and/or green card for you. Each one of them takes different times, usually less than a year.

I130 and application for adjustment
I filed I 130 for my unamrried son but before it was processed i became citizen so I filed fresh which may take mor than 5 years Is there any possibility for my son to come here and file adjustment visa? Can he stay and work after adjustment visa?

No one can file for adjustment unless their priority date is current. You should be able to upgrade the earlier filed I-130 to reflect your current citizenship. That way, he keeps his priority date. Contact USCIS customer service.

Father wants to sponsor me
I arrived in the U.S. with a non-immigrant visa that expires 2016, my dad is a permanent resident who is now applying for his citizenship. My dad wants to sponsor me while i remain in the us. What forms do we have to fill out and would i be able to live and work in the us while my status adjustment is processing.

Review Form I-130. You cannot stay in USA while or just because the case is pending, unless you have some visa/status that allows you to stay.

Can my parents stay in the US?
I am an American citizen. My parents received their 1 year multiple B-2 visa in Aug-09 and they came to live with me in Sep-09. I applied for I-130 for my mother in Oct-09. I received my mom's I-130 approval notice in Feb-10. And my parents are still in the States with me now. They were granted 6 months stay till Mar-10. My questions are: 1. Can my mom stay in the States beyond March and file I-485 status ajustment? Or should she go back to her home country and wait to be interview at the consulate? 2. I haven't applied I-130 for my dad. Can I file a B-2 visa extension for my dad and can he legally stay in the States after Mar-10 until the B-2 visa extension is granted or denied by Immigration? What form should I use for B-2 visa extension? Approximately how long does it take Homeland Security Immigration to grant or deny a B-2 visa extension case?

1. From what you have described, I see no reason why you cannot file for their I-485 and have them stay.

2. He can legally stay in USA as long as USCIS receives the extension request (Form I-539)before the expiration of his current status. He can stay till the request is decided or till the time for which the extension has been requested, whichever comes first. It can take several months for the application to be decided.

Spouse's status -- Are you a US Citizen?
I recently got married and my wife is in F1 and has completed her MBA in december and is on CPT till Feb 2010. So whats the best way to get her status changed/adjusted.I am from Nepal and so if I go about filing I 130 how long does it take and can I file simultaneously AOS or not. If AOS is approved can she stay till I 130 get approved.Or I cant file AOS till I 130 approved

If you are a US citizen, there is no problem. You apply for her AOS simultaneously. If you are a green card holder, you cannot file AOS until the priority date is current and she cannot stay in USA based upon your application. She should probably think of H-1.

Green card for spouse entered illegally
I am an American with all my documents and I am trying to get my husband his green card, the thing is, he is already an alien of the U.S. that did not enter with a visa is there a specific form that I would have to address in these conditions.

You need to talk with a lawyer. If someone enters USA illegally (EWI), generally they are barred from adjustment of status (AOS).

Sponsoring both my parents
I am trying to sponsor both of my parents that currently live in Mexico. Do I have to pay 2 filing fees and do two separate applications?

Yes, you will need to file 2 applications and pay twice

I-130 for sibling
My husband is a naturalized citizen. He filed an I-130 petition for his brother. We have received an approval notice and understand there is a visa petition still has to be done to make it all final. Will my brother-in-law be able to bring his wife and daughter with him? Or will he have to come first and petition on their behalf? Where can we look to find out how long the visas are taking to be assigned/approved for specific countries/regions?

In your husband's case, your brother in law will be able to bring his wife and children without making a separate application. Follow the dates in the Visa Bulletin. The date of the I-130 filing (not approval) with be his "Priority Date."

Sponsoring brother from Vietnam, and he just has a new baby.
I am Vietnamese-American (US citizen). I have put in the application I-130 to sponsor my brother and his wife to come to the US, now my brother and his wife have another baby. What form/process do I need to fill out?

You do not have to do anything extra. This can be taken care of when you they get communication from National Visa Center.

Traveling to US while green card petition pending
My husband and I have been married for over 2 years now. On September, he filed I-130 on my behalf and we have also filed G-325A in October. My question is whether I can come to visit him for Christmas on a B-1 visa? I just want to make sure that it will not affect the application and that I will not have to stay in the US until the application is processed.

You can try, but such permission is rarely given.

Green Card through marriage
My boyfriend is a u.s citizen and we want to get married. The problem is that i came to mexico and i cant go back. I was wondering if there was any visa or anything that he can get for me to go back before i get my greencard. And how long and how much it takes to do the whole process.

You could look into a fiancee visa (K-1). It can take a few months.

I-130 for visiting parents
I'm a US Citizen & would like to sponsor GC for my parents who have 2.5 weeks of tourist visa validity. Is it possible in such a short time since you mentioned that they need to have visa validity until the I-130 is approved. Can they apply leave the country and get back?

You will need to file 130 and adjustment of status papers together.

GC for wife - marriage annulled
I applied for GC in February 2005. I was married in October 2007 in India. I got my GC in July 2008 on EB2 category. I never added my wife to GC application after marriage because we had conflicts. She left to India in November 2007. I have got the marriage annulled in USA in December 2007. However did not proceed in Indian court. Now we have reconciled and want to get back together. Since there was no divorce in Indian court can I get a family based GC for her? According to Indian law she is my wife since October 2007. What options do I have to bring her to USA?

As far as I can tell, you are out of luck till you get remarried and naturalized. A legal annullment strikes out the marriage. Whether done here or in India should be irrelevant. But you are so close to natz., this should be no problem.

F-4 Family Category
After completion of the case by NYC, interview date of my sister and family has been scheduled at the US Embassy at Johannesburg . Can you please let me know as to what type of questions are asked during interview. will they get visa same day, if everything goes well.

The questions in family-based cases tend to be basic and nothing to prepare for. Usually, the immigrant visa package could take a few days, but I am not certain as to the exact time frame. The consulates are good about responding to emails. Write to them.

Petition for mother
I am a US citizen and I want to petition my mother for Permanent residency using the I-130 form. She is currently in the USA illegally. Does she have to go back to her home country while I petition for her? Will she be deported if she stays here? I would like information about what to do with my case. Is there a fine that I have to pay because she has been here illegally since 1989?

As far as I know, if she entered USA legally, you should be able to get her green card. But I always advise people in this situation to get a local lawyer.

F1 student (wife of a GC holder) - pregnant
I'm on F1 and got pregnant. Can I take a break for sometime and get back to studies? My husband is a GC holder..well we got married after he got GC. Now can he apply for a family based GC for me, I kind of know that it takes atleast 4 yrs for me to get GC...but just wanted to make sure that he can apply while I am on F1

For various reasons, I usually see no point in applying for a green card through a permanent resident spouse while you are on an F-1. About taking a break, the F status requires you to attend school full time unless there is a medical necessity. You need to discuss that with your international students advisor.

Brother with medical issues
Can I petition my brother to come here who has a serious medical issue and needs my help?

Green cards for brothers take approximately 10 years to come through. But for medical treatment, a B-1 visa can be applied.

Green Card Through Marriage
I just got married to an American Citizen, unfortunately I am in his country illegally. I want to know what process would we have to go through to get me a Green Card and make me a resident. I am also pregnant, will this affect anything at all?

For all people on B visa or illegal in USA who are marrying a US citizen, I strongly advise at least one consultation with a lawyer to make sure you will not run into trouble.

I-751 genuine marriage
My wife and I have decided that marriage does not fit into each others dreams anymore. We have been married for almost 3 years and Just got a notice that after filing I-751, the evidence submitted with the form was "insufficient". Our marriage and relationship started and continued in the utmost manner of good faith. Our decision for divorce was a mutual one. We plan on continuing friendship in good faith and she will always be part of our family. She has a life here, she works hard, pays taxes and wants to continue her life here. We both don't want her residency here, her life, stripped away.

I like your attitude. It appears to me that what is missing is proof, not genuineness. I suggest you contact a lawyer locally. They should be able to assist with finding items of proof that you may have overlooked.

I-130 for parents and sisters
I'm a US Citizen, and I want to file a I-130 on behalf of my mother, Do I need to file a separate petition for my 12 year old sister or should be included? They both live outside the USA.

As far as I know, it will have to be a separate petition.

F1 student married with GC holder
I came to US on F1 visa in dec 2003. I have completed my bachelors in 2009.I got an OPT for 1 year. Meanwhile, I got married to a Green card holder as well as I got an admission in master programe to maintain my F1 status. Now my master is going to finish in May 2011 and my wife will be US citizen in December 2011. I was thinking to file I-30 only right now. Once she become a citizen then I would file for AOS. What if I file I-30 will I be able to recieve OPT after my graduation?. Or just wait until she becomes a citizen?

I would recommend filing I-130 when she gets her naturalization.

Applied Green card (family) while on H-1B
1. I came to the US on H-1B in November 2007. My sister is a citizen of this country and she applied for a green card for me (and my dependents) in the F4 category in 2009. I also came here in 2006 for 2 months on B1. I have never overstayed on my Visa. Is this fine or will it be a problem? We also mentioned my A#, SSN etc..on the I-130. 2. During the H1b process, I missed mentioning my sisters name on DS 156 (question 37). This is a question on the form to disclose if anyone in the family is a US citizen. Will this create an issue? On the I-130 form, in the proofs, my name was not on the birth certificate (date of birth, parents name etc..all match with my sisters birth certificate).However, after filing the form I-130, we worked with the government agencies in India to get it corrected.Is there a way we can send the updated birth certificate to USCIS or should we just wait?

1. I see no issue in applying for a family based or employment based green card while on H-1.


2.  If the omission of your sister's name was unintentional, I do not see it becoming an issue. Regarding birth certificate, you may want to contact the customer service. Normally, CIS is reluctant to accept later changes. But you should be able to overcome any problems they raise.

Waiting for PR
My husband has a greencard, and I came to US after marriage on L1 visa, my I94 expires on 09/2010. My husband is waiting for his citizenship in 2011 to file for 130 and 1-485. Can I still do AOS staying here in 2011 or do I need to go for consular processing.

A green card holder's spouse has no status while waiting for their priority date to become current. You should maintain your L-1 status.

Daughter of U.S. Green Card holder
I am married to a U.S. citizen. My two sons from Malaysia under 21 received their GC are already in the U.S. My husband could not file for my daughter as she was above 18 when we married so I filed on Sep 2009, I-130 before she turned 21 . My question, is there any way to bring her to the U.S. ONLY to visit us until her I-130 gets approved. We only want her to visit us and not overstay in USA.

There is no easy solution. The only two obvious visas that come to mind and that available for someone like your daughter would be H-1 or L-1 (employment-based) visas. A student visa can be tried, but the grant us unlikely because green card is pending. I have an entry on my blog on this - applying for a nonimmigrant visa while green card is pending. Check it out.

If my fiancee came to the US illegally
If my fiancee came to the US illegaly what is the best course of action to follow? Should we get married here and then go back to his home country and file for immigration or is it better to leave the US and get married in his home country and then file the I-129 and I-130? I am just not sure what happens since he came here illegally. Are there fines that have to be paid? Does anyone know?

Illegal entry into USA is a serious issue. Please consult a local lawyer.

Sponsor Green card
I obtained my US citizenship status early in 2009. Now my parents came to visit me and staying with me. I have a plan of applying the green card for my parents and keep them with me until the green card is fully processed. Can you please advise me whether I need to file I-130 or I-485 ? They have the I-90 stamped until April 2010. Also in I-130 there is a question ( I think no 22) , asking the preference of visa process. Is it possible for me to ask our my preference?

We cannot offer assistance in filling up forms. But without commenting on your situation and generally speaking, when applying for parents who are in USA, a US citizen files an I-148 package and form I-130 together.

I-130 has 3 years not yet approved
I submitted a I-130 for my wife (I am a greencard holder), and got my receipt of notice in October 30, 2006. No more information has been sent to me or her. Is that normal? No yet approved, what do I need to do? Just wait? Thank you so much.

This is not normal. Contact USCIS customer service. If that does not work, contact your congressman. See this page: http://www.immigration.com/issues-relating-delays-various-immigration-ma...

Green Card abandonment
My parents obtained their green card in December 2002 and came to U.S. Due to their age, they applied for I-130 and did not established 6 mo - residency until Jun - Dec 2005. Last US exit was in Dec 2005. They do not intend to abandon US residency and will come here when their health allows. Is their green card still valid - what else can be done here. Any help - most appreciated

There is no law that requires a lawful permanent resident (GC Holder) to return within 6 months. But it is certainly better to do so. In any case, you must return before 12 months. BUT, remember, if you do not maintain your permanent home in the U.S., you can lose your GC even if you step out the U.S. for a day with an intent to go live somewhere else.

Applying for NIV with a pending GC application
I have a family-based pending GC application that is likely to be processed in 2012. Could I apply for a NIV (visitor or student) before GC application is processed? How likely is it that a NIV application may be denied due to my immigrant intent, and if it is denied, what repercussions could that have for my GC application and beyond?

It is possible, but the grant is unlikely. Read my blog, including this: http://forums.immigration.com/blog.php?u=1&blogcategoryid=36

Sponsoring daughter over 21 on F1 status
I'm a permanent resident and I would like to know if I could sponsor my daughter who is over 21 and is currently on F1 status. If so, would she be allowed to stay in the U.S. if her visa expires during processing? How long will this process take.

I am assuming you are asking me whether a green card holder can apply for a green card for an over-21 child. The answer is yes, as long she is unmarried, you can. But she cannot stay in USA based only upon the fact that you have applied for her.


Check out the Visa Bulletin: http://www.immigration.com/visa-bulletin


 

Green Card
I married a US citizen on may of 2009 and we were going to have a baby but we lost it a month ago. I entered the US illegally when I was 3 years old I am now 21 yrs old. A few years ago my moms employer filled an I-140 for her and all her children including myself were on the application. I want to know if that would benefit me in anyway?

May be Section 245(i) can help. Call and check with your mom's lawyer. Also explore the fact that you are married to a US citizen.

Eligible husband?
I am a U.S citizen,I got married in U.S.A., my oldest son was born there,and I have 2 more sons that were born abroad and are citizens too, my husband had a green card, but he had drug trafficking problems almost 15 years ago, something like conspiracy, thats why we are living outside the U.S., if we want to go back, can something be done about this so the whole family can live there again? Can he get like a pardon and get a green card again, or there is no way this can be done?

Because you are a US Citizen, there could be waivers available for offenses committed by spouse. You may want to check first with the US consulate in the country where you are living.

Immigration after I-130
I found your site is very helpful to know the US immigration. I would like to ask few queries about Immigration. I have just got notice the petition has been approved as relationship of sister. My Brother is living in US, He is US citizenship card holder. My query is how many years or months should I wait for the Interview of VISA.. Does it take long time or now it is very short? I tried to search in different site but I didn't get my answers. As my understand this is in F4 categories. I am from Nepal. I would be very glad if you provide about my answer of question.

Wait times are governed by priority date. Read the visa bulletin: http://www.immigration.com/visa-bulletin

Petitioning for Parents
I want to know if I am applying for both my parents to immigrate I do know I need to do 2 separate petitions. But do I need to pay to pay 2 separate fees as well, or what is the process please help thanks.

As far as I remember, separate forms are needed for parents. Read the instructions on Form I-130.

Brother and Family Immigration
I am a US Citizen and I filled the forms for my brother to come here, but I want his son also to come because he is a very skilled computer programmer and I need him in my business. I included him in my petition form but he is 25, is it possible for him to come here? They are in Cuba.

Look into a work visa option for him (H-1, H-2B, etc). Family-based would take too long.

Renewing a green card
I am a US Citizen, my husband is a permanent resident whose green card expires in Nov. 09. Does it automatically get renewed or am I required to sign something? And what happens if I am contemplating a divorce. Does he get deported?

If he has a "permanent green card," divorce has no impact on it and renewal is a minor process in which your signature is not needed. If he has a conditional green card, he is required to file Form I-751 (read the instructions), where if the marriage was entered into in good faith, he can obtain his permanent green card even without your signatures.

Green Card for Husband
I just got my citizenship. My husband has an expired F1. We've been married for 4.5 yrs and live in the States, what do I have to do to get my husband permanent resident?

You need to file a whole bunch of forms (including but not limited to Forms I-130 and I-485). There is no way I can assess the whole situation since he is out of status. I do suggest you get a lawyer locally where you are.

How to apply for work authorization after I130 approval?
I found this site so useful for valuable information. I got approval from I 130 and I am in US with F-1 visa. Can I submit I 485 without immigration number? Also Can I request for the work permit on this basis?

I am glad our site has helped you. You can receive work authorization only when you apply for your I-485 (Adjustment of Status). You can file that only when your priority date is current. Mere I-130 pendency or approval gives you no help unless you are an immediate relative of a US citizen (like spouse or parent).

Parent of US citizen - Child born in USA
My son was born in the US, he was 2 months premature and his birth in the US was pure accident since i was on vacation there when i developed a complication and had to be hospitalised at 6 months pregnant. He is only 8 months, and we are living out of US. Is there any right for parent of young US born child to apply for residency so the child can be raised in the US?

The good news is that the child is a US citizen by birth. The bad news is that does not help the parents. He can apply for you only when he turns 21.

Change of status for Beneficiary
I am green card holder in USA. I filled I130 for un-married son (above 21) in July 2001. He got married in May 2005 and lives with his wife in USA on H1B. My application I130 which i filed in July 2001 for unmarried son has been approved. I am waiting for their communication. My question is Will my son be eligible for the approved application by just changing his status to Married and get his greencard along with his wife?

As far as I know, marriage automatically disqualifies your son. Sorry.

Green card Family category 4
Cut off date of approved petition for my sister and family is 17 May 1999. My sister who is Indian citizen, is at present in Botswana. My nice who is 18 yrs. and approved in petition is aready in US on valid student visa. Can she apply for change of staus indepentally when visa number is available or it has to be together with family . Can she apply before her parents apply or it has to be simultaneous?

 I have not looked into this issue specifically but my instinct is that AOS within USA may be problematic for her before your sister gets her green card. As a practical matter, she will only need to make a brief - perhaps a week long trip once to get her green card with the family.

How to renew a green card
Can I renew a permanent greencard that has been expired? How much do I have to pay?

If your green card has expired (but not abandoned), you will need to file Form I-90. Read the instructions on the form.

How long is the waiting?
I have a sister to sister petition on Jan.14,1998 under 245(i). Me,My husband and,our daughter already here in united states.We've been working now for 13yrs never stop. We bought a house and a car under our name,we file and pay taxes,we have a drivers license under our name.My question is what kind of financial support that my sister is gonna show,if we make more than she makes,is it not gonna be a problem? What is the time frame means? When the last time i checked my EAC at the uscis is sept.01,2001.pls.help

The waiting is determined by your country of birth and the category of immigration. The visa bulletin tells you when your date will be current. You can then apply for your last step of immigration. As to the issue of support, it should not matter if you make more than she does. Also read the instructions on Form I-864.

Marriage during F1 status
1. My son has LPR status and wishes to marry a girl who is on student visa valid for next 3 years. Is she required to maintain her F1 status after her petition is filed after marriage.? Can he apply for AOS after filing the petition? Appreciate your guidance. 2.Can she stay as long as she has valid F1 visa and opt to follow? After this period she may try for H1

1. She cannot apply for her AOS unless the priority date is current (which takes several years). And she has no legal status just because an I-130 was filed or approved. An additional problem is when an F-1 marries a green card holder, govt. can take that to be a violation of their non-immigrant intent, if that becomes an issue. That problem should not exist as and when she takes on an H-1.


2. I see no law against staying and OPT, but marrying an LPR can be problematic as indicative of immigrant intent. H-1 is the only safe option.

Sponsoring my Mom for reinstating Green card
My Mom had green card several years ago and lost staus. Now I would like to sponsor her for lost Green card. Will there be a preference or does it help her get GC faster? She is planning on coming here on a visitor visa and then file for sponsoring her for GC.

I am assuming you are a US citizen. You will be applying for a new green card, not reinstatement. As to the issue of applying for a green card after she enters on a visitors visa with a pre-conceived intent to apply for green card; this CAN (not always) be problematic. USCIS can consider this to be an improper use of her B visa.

Green Card holder parents bringing to US a child born outside USA
If the Child is born in India and we have the GC by that time, is there any way the child can travel to US?

Your child may accompany you or travel with you to the U.S if the following conditions are met:
a) the child has a separate passport;
b) has a birth certificate from the corporation, municipality or a registrar of births and deaths (please note hospital records are not adequate)
c) the child accompanies the immigrant mother or father upon her or his return to the U.S following the birth of the child
d) the child is under the age of two years
e) the immigrant mother or father has a valid Form I-551 or I-151, alien registration receipt card (in short called

Why does it take so much time to get green cards
Why does it take years and years for family to be reunited.

Many of the family-based categories are given only a certain number of green cards per year. The quota is based upon the country of birth. So, if there is more demand than supply, waiting develops. Every month, the govt. publishes the green card waiting times in their Visa Bulletin. Click here for more information http://www.immigration.com/search/node/visa%20bulletin

Applying for green card while on a B-1 or B-2 visa
1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? 2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application? 3) Is it better to apply for adjustment of status or consular processing for the last step of their green card? 4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?

A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

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

Marriage to US Citizen with EB AOS is pending
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

Can H-1 be extended based upon family-based green card?
I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?

You cannot. This extension is available only to employment-based applicants.

Waiver of Joint filing requirement
Divorced from my husband and need to file for removal of conditions (status: permanent resident), i.e. to apply for a waiver of the requirement to file a joint petition due to termination of marriage. How do I proceed? What documents do I need to file for removal of conditions based on the situation I am in.

You will need the waiver as you have said. Read the instructions on Form I-751. What you will be required to prove is that the marriage, when entered into, was in good faith and not to get a green card.

Filing I-485 after I-130 approved
I filed I-130 for my mother at beginning of April. Now I want to file I-485 as part of the concurrent filing. Can I just file I-485 and attach a copy of I-130 notice? Please advise what I should do. Thank you

I think you can and there should not be any problem. As to where to file, call USCIS customer service. 1 (800) 375-5283.

Adoption from India

I am sharing with you a response to a frequently asked question about adopting a child from India. Our inquirer also wanted to know if she could adopt her niece. Here is the info:

Does filing for any green card permit me to stay in USA?
I am here on L1b visa from x company. My sister sponsored me Immigration visa in 2006. (File is still in processing). My assignment is going to over here. Is there any work around or change of status through which i can stay here?

So, the questions is does filing for any green card permit me to stay in USA?

The answer is no.

Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.

That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.

Do advanced degrees help in marriage-based green card?
I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

 1. Advanced degrees do not help in a family-based green card.

B visa while GC pending or similar situation
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Green Card through Citizen brother
My brother got US Citizenship this month. I would like to apply Green Card using my brother's citizenship.Is it possible ? How long it will take . Now I am holding H1B.

This is usually not a feasible option. To see how long it would take, look at the Visa Bulletin: 

http://www.immigration.com/newsletter/vbarchive.html

You will note that it will take more than a decade to get a green card through family-based category 4. You are not permitted to stay in the USA just because this application is pending.

American born mother and daughter born in Mexico
My mother is an american born in US and I, her daughter was born in Mexico. Am I an American citizen or what papers do I need and what do I need to do? Do I need a green card or what should I do? I have 4 sons that were born in US ages 22,20,15,12. Can one of them sponsor me or what status to be a permanent resident.

Contact USCIS customer service or a lawyer. This is what they say: Whether someone born outside the United States to a U.S. citizen parent or parents is a U.S. citizen depends on the law in effect when the person was born.
These laws have changed over the years, but usually require a combination of at least one parent being a U.S. citizen when the child was born and having lived in the U.S. or its possessions for a period of time. Additionally, children born outside the United States may become citizens after birth based on their parent’s citizenship or naturalization.

GC for Parents
I am a US Citizen through naturalization. I have applied for GC for both my parents and they are here. I applied I130 and I485 concurrently. I recd the notice letters and my parents got thier finger printing done on 03/22/2010. My Mother's I-94 is expiring on May 25, 2010. Do I need to apply for an I-94 extension since their 485 is still pending or can she stay till GC is approved without a new I-94 extenstion. Both my parents have a 10 year valid B2 visa till 2016. Please advise if I need to apply for a I-94 visa extension.

A timely filed I-485 gives your parents the right to stay (referred to as "authorized period of stay") in USA pending adjudication (without having to extend their B status).

Sponser Birth Certificate
I have GC interview for my parents. I have photo copy of my birth certificate. Do i need original birth certificate of mine when we go to interview. If i don't have that, will the office deny the case or send us back for another interview.

USCIS does have the right to insist that you produce the original. They may give you time to get it if you do not have it. It is best to start the process of getting it right now.

Green card based upon one-year old child
I want to know if a mother of a 1 year old child will automatically receive her green card when the child is getting hers.

No, I cannot think of any such possibility.

I-130 for visiting parents
I'm a US Citizen & would like to sponsor GC for my parents who have 2.5 weeks of tourist visa validity. Is it possible in such a short time since you mentioned that they need to have visa validity until the I-130 is approved. Can they apply leave the country and get back?

You will need to file 130 and adjustment of status papers together.

LPR petition for son
My mother just got recently approved to migrate to the US as LPR. I am a USC. Now I was wondering how soon my mom can submit a petition for my brother who is unmarried and over 21. I am assuming it would be faster for my LPR mother to petition my brother than me.

It will be faster for her to petition and she can do so as soon as she wants. I would suggest she should apply when she moves to USA. If you wish, you can also start a petition for your brother. He can wait in more than one category.

GC petition for a 21 year old
My friend filed a petition for an adult child (over 21 years old) six years ago and just received notification this year that there's a visa number available for the child. Meanwhile, the child has traveled to study and obtained a permanent residence in Canada. However, the child still wants to join his mother to the United States. Will the US give the child a GC if all the requirements are met?

Sure. The fact that he is in Canada is not an impediment.

GC through mother ....
My parents got GC and I could not get it since I was 21. I am now in the US on H-1B. My mom applied for me when she was a permanent resident under the unmarried son/daughter category. In 2009 I got a letter from USCIS that my visa is available since my priority date was Sept 2001 but in 2009 I was already married and my mom became a citizen after we got married. My question is - can I file for new I-130 and request them to allow me to use the old priority date (Sept 2001)? What are the chances of them allowing me to do that?

As far as I know your PD cannot be reused because you lost it through becoming ineligible for the visa category.

Father wants to sponsor me
I arrived in the U.S. with a non-immigrant visa that expires 2016, my dad is a permanent resident who is now applying for his citizenship. My dad wants to sponsor me while i remain in the us. What forms do we have to fill out and would i be able to live and work in the us while my status adjustment is processing.

Review Form I-130. You cannot stay in USA while or just because the case is pending, unless you have some visa/status that allows you to stay.

Green Card and last name
I am a US citizen turning 21 next month. Can I sponsor my dad to get a green card even if I am not holding his last name?

Yes you can. Having the same last name is not required.

Last name in Passport and GC processing
I am filing GC for my mother who is in US on visitor visa & her I-94 got extended for another 6 months. She never used her surname on her Indian passport? What should I mention in the last Name on I-130 & rest of the forms (I-485).Should I mention NA or not used or leave them blank?

You have several choices, including "No Last Name Used." If she wishes to use some other name, including adding a last name, now would be a good time to do it.

Can my daughter sponser me?
My daughter she's going to be 21 next year and she's an American citizen, can she sponsor me?

She can sponsor you for your green card upon turning 21.

Getting married to a green card holder
I might be getting married to a green card holder who has it since 5 years and is eligible to apply for a citizenship next june. If I get married to him now when will I be eligible to get a visa to join him in America? What sort of visa will help me be with him and when?

Once he is a Citizen, he can apply for a K-3 and/or green card for you. Each one of them takes different times, usually less than a year.

LPR petition for son
My mother just got recently approved to migrate to the US as LPR. I am a USC. Now I was wondering how soon my mom can submit a petition for my brother who is unmarried and over 21. I am assuming it would be faster for my LPR mother to petition my brother than me.

It will be faster for her to petition and she can do so as soon as she wants. I would suggest she should apply when she moves to USA. If you wish, you can also start a petition for your brother. He can wait in more than one category.

Sponsoring green card for brother
I am a legal permanent resident for 14 years; I would like to know what I need to do to ask for my brother to become a permanent resident or green card. He’s here in U.S visiting me with his visa. He is 27 years old and not sure if I am eligible to request it.

You cannot petition for brother until you become a US Citizen. And, even after that, it takes over 10 years to get a green card. See family category 4 in the current visa bulletin: http://www.immigration.com/visa-bulletin

Family based petition - sibling
What would be the schedule of fees for a case of Family based petition for a brother of a US citizen?

Check out the Form I-130 filing fee.

Cancel sponsorship of my brother
I have been a petitioner for my brother since I offered it in 2002. Now, I don't want to be a sponser for my brother. Can I cancel it or not?

You can withdraw the Form I-130.

Family based green card.
I am currently in the US on a h1b visa. My I-140 has been approved under eb3 category but looks like it will really take a while for the visa numbers to be current. My brother is a naturalized citizen. Can he file for my green card under family based siblings category? I was told by someone that i cannot file 2 immigrant petitions. Is that true?

You can simultaneously file through as many green card categories as you wish. Check out the backlogs on the visa bulletin.

GC for brother and family
I am a citizen here and would like to apply GC for my brother's family in India. My question is brother and family have 10 yr visiting visa and they keep travelling here every 2 yrs. Once I apply for their green card, can they still continue to visit here with their visitor visa? When would their visitor visa gets invalid.

Travel on a NIV while GC is pending is very uncertain. CBP can refuse entry.

B1 rejected because I had applied for Green Card
I was denied B1 because of lack of documents. On reality I have applied for Green Card as my sister is citizen of USA. How can I convince US officers that I will not abandon India and settle down in USA.

I do not know of any special proof that you can provide. This is purely a matter of consular discretion.

Petition for siblings
My sister just got her green card last year. Can she petition her siblings ages 22 and 24? how long does the processing take?

Only US citizens can petition for their siblings.

Brother with medical issues
Can I petition my brother to come here who has a serious medical issue and needs my help?

Green cards for brothers take approximately 10 years to come through. But for medical treatment, a B-1 visa can be applied.

Green card Family category 4
Cut off date of approved petition for my sister and family is 17 May 1999. My sister who is Indian citizen, is at present in Botswana. My nice who is 18 yrs. and approved in petition is aready in US on valid student visa. Can she apply for change of staus indepentally when visa number is available or it has to be together with family . Can she apply before her parents apply or it has to be simultaneous?

 I have not looked into this issue specifically but my instinct is that AOS within USA may be problematic for her before your sister gets her green card. As a practical matter, she will only need to make a brief - perhaps a week long trip once to get her green card with the family.

Spousal abuse
What can happen to the US citizen if a spousal abuse case is filed by an illegal immigrant?

The abusing spouse can go to prison.

Labor certification and DV
I am a 2010 DV Lottery winner whose number is projected to be current in August 2010. My employer has started the first stages of the labor certification process. The job has just been advertised. They decided to go on with the process and will stop it when I have the green card in hand. When I go for the DV interview through Consular Processing, will the labor certification process negatively affect my chance to get the DV green card? Will there be any problem? Should I stop my employer from continuing the labor certification?

I see no problem at all with the two processes proceeding concurrently. I always advise people to concurrently file green card through all categories under which they can qualify.

Impact of unauthorized employment on DV
Is it a problem if a person wins a green card from the lottery but previously have been in USA with a tourist visa and has worked at the same time? The person have paid taxes and had returned in his country while still had a tourist status. But when he applies for the green card and when filling the forms what should he writes -that he has been with a tourist status but have worked? Is it possible that he may not be approved for the green card?

You have to tell the truth. You have paid taxes and returned within the time permitted on the I-94. I see no reason why it should impact your DV application.

Questions regarding I-485
I am on H1-B visa and my EB-2 Priority Date is May 15, 2010. Please see below questions regarding I-485. Question # 1:- Typically, how long would it take to receive Advance Parole and EAD after filing I-485? Question # 2:- I entered USA on F1-Visa in year 2000, and then changed my status to H1-B visa within USA in year 2004. I never left USA since year 2000. My passport does not have H1-B visa stamp. In order to file I-485, is it required to have H1-B visa stamp in my passport? Question # 3:-After filing I-485 and before receving A.P., if I travel to my home country for H1-B visa stamping, is it possible that my company can mail A.P. documents to my home country so that I could enter USA using my A.P. in case H1-B visa in my home country is denied? Question # 4:- I came to know that it is required for an alien to be present in USA at the time of I-485 filing. Is it also required that an alien must be present in USA until A.P. is approved? Question # 5:- Does Visa Officer have the ability to cancel A.P., in case H1-B visa is denied in my home country due to 221(g)/missing tax returns/W-2's/Paystubs? Question # 6:- If my H1-B visa is denied in my home country, and if i enter USA using A.P., then could my spouse enter USA using H-4 visa using my valid I-797 approval notice even though I do not have H1-B visa stamp in my passport? If I enter USA using A.P., what are the options for my spouse? Question # 7:- At what point of time during GC process, do I need to add my spouse? Should it be before filing of I-485 or before Visa Number is available? Question # 8:- After filing my I-485, and if my spouse is in USA on H-4, will I be able to add my spouse to my I-485 application? By the time, I want to add my spouse to I-485 application, if Visa Number is available and if AOS/I-485 is approved, then would I still be able to add my spouse if spouse is in USA and also outside USA?

Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks

Answer 2: A visa stamp is NOT required. Proper status only is needed.


Answer 3: It is NOT advisable to travel before AP is issued, if you do not have an H/L visa already stamped. For details, listen to recording's of the community conference call. It is posted here: http://www.immigration.com/free-comm...nference-calls


Answer 4: Presence in USA for 485 filing is mandatory. See previous answer for AP.


Answer 5: I do not believe VO has the authority to revoke an AP.


Answer 6: Under Cronin memo, if you enter on AP to continue working on an existing, valid H-1, you are still considered to be on H-1. I believe your spouse can use his H-4.


Answer 7: Before APPROVAL of I-485.


Answer 8: Your spouse can file his 485 if he is in USA; Priority Dates are current AND he has not been out of status for more than 180 days -- whether or not your 485 is already approved.

Green Card for musicians
I have a Christian band, and we have 2 CDs out for sell already, one of our singers would like to know how to obtain a green card with our band, is this possible?

A green card through work is unlikely unless either he/she has a full-time job offer in her field or is nationally/internationally recognized.

Family Unification and Green Card
I want to know how I can come back to US. I came US 2006 like a guest, stayed about 5 years & left US. But my family still there, ex-wife, two daughters older 20 year old & younger 17. When my daughter turns 21 year old can she apply for family reunification, especially for me?

One of the ways could be for your daughter to apply for your green card when she turns 21. The problem is, if you were unlawfully present in USA for more than a year, you may be barred from entering USA for 10 years.

Green Card Stolen
What is to be done when your green card is stolen? I just got mine not to long ago, I am 17 years old and I am not sure what I am supposed to do?

You can easily apply for a replacement green card. Read the instructions on Form I-90. Please visit this link for more information.
http://www.immigration.com/renew-or-replace-green-card

Out of F-1 visa status
I just found out a couple of days back by my international advisor that I was out of status for two years now for taking classes in a community and transferring credits and it made me a part time student..He suggested I left the country after the semester and come back with the new I-20 and letter of recommendation he gives me. And I also I have been married to a US citizen for 2 months. Is it safe to go out of the country?

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

Two year temporary green card
I just received my two year temporary green card, my malicious mother-in-law claims she went to immigration and put a "BLOCK" on me. Is this possible? Can she do this? I have a clean record good credit and have never been in trouble with the law. Should I be worried?

She cannot put a "block." There is no such provision in law.

Green card for L1-B or L1-A holders
I currently have a L1-B visa and I'd like to know if the company where I work(a Brazilian company where I did work for 2 years, one of them in a managerial position before coming to the U.S in 2009) could apply to change my status from L1-B to L1-A at the same time as filing my GC application. The company is a giant in Brazil with 600 employees but we are still starting the operations in the U.S and I'm the only employee here.

Smaller companies can have a tough time getting an L-1A.

Green Card for musicians
I am a mexican composer, Im finishing my career on film scoring and composition and I'm intersted to know about the green card for musicians.

Green cards in music would be available possibly for two categories of individuals: those who have a permanent job in USA in their field and those who are nationally or internationally famous.

Green Card Expenses
For an employment-based green card application in the EB2 category, my employer has said that they would be willing to make the application if I am willing to pay for it. Can the employee bear the total cost of the entire process -- including attorney's processing fees, filing fees for all stages, advertising fees, EAD, advance parole fees -- from start to final stamping?

The employer is bound by law to pay for all expenses, including legal fees, associated with the PERM process (but not the rest of the green card process).

Holding Company Stocks on TN Visa
I am on TN visa for the more than a year. The company wants to give me some stock option (10-15%). Is that ok to hold stocks of the company you are working for on TN visa, or will it create problem when I apply for renewal of my TN visa. Can I apply for GC on TN visa?

I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.

Green card and overstay
My dad has a green card and went back home over 2 years ago. He is now trying to come back after being away from the US for 2 years. I was told by some people that if he stayed over a year outside the US they will not let him back in to the US even though he has a Green Card. Can you please tell me if this is true, or can I just get him a ticket and fly him back to the US?

It is highly unlikely that he will be allowed into USA.

Working outside USA
Is it possible for me to work outside the US (for the same company that I work for now) while on green card? My company has an office in India, and I have to travel to India for family reasons. I was planning to work in India for some time, and then come back in about a year and half and apply for citizenship. I have lived in the US for about 3 years on my green card now.

It is possible. Look into both I-131and N-470 filing through a lawyer.

Mandated poverty line
What is mandated poverty line? I want to petition for my husband, can my father sponsor him financially if I do not have enough income to support my husband? My father and me are both permanent residents.

Here are the poverty guidelines http://aspe.hhs.gov/poverty/index.shtml

Your father can co-sponsor (file an affidavit of support) along with you.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

B1/B2
I entered the US with my mom in 2005. I was underage then. My visa B1/B2/BCC expires in Oct of 2010 and my permit I-94 expired in December of 2007. I am now 20 years old and I am married to the love of my life and he is a US citizen. I want to know what I can do. What files and forms will I need?

You should be able to get your green card. Do not travel outside USA until you do. I would suggest getting a lawyer.

Australian Musician to perform in US
An Australian Musician that is wanting to come to US for a few weeks to travel and play at approx 15-20 venues across the US. I am willing to sponsor him via my DJ entertainment service, and he will be paid for the shows. He is a professional musician in his country, has been for 15 yrs. Which visa would be required in this case?

A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.


An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.


"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.


"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.

Green card and priority dates
My father applied for a green card for me back in August 1993 and I was wondering when am I going to get my interview for my green card.

Green card waits are determined primarily by your priority date and the available visa dates. It is a queue. See the Visa Bulletin to know where your dates are. http://www.immigration.com/visa-bulletin

Co sign
Can a friend co-sign for me to bring my brother to the United States, I have green card and i don't make enough money. I just want to know if a friend can co-sign for me.

An affidavit of support can be co-sponsored by your friend. But green card holders cannot sponsor siblings for green cards, only US Citizens can.

P1 visa to green card
I have a P1 visa. Is there anyway to change this to a green card?

You may be able to apply for a green card if you meet the requirements of EB-1, aliens with extraordinary ability or based upon a job offer, and of course, if a family-based possibility exists

How to check if I-485 received
How will i know if they already recived ( i mean is there a way to trck it) my application for the change of status (I-485). i sent that last april 29, 2010....how long do i have to wait for the responds from the uscis....

You can verify delivery (if sent by Fed Ex, UPS, etc.) and also check with your bank if your fees checks were encashed.

Re-entry permit
If you have a valid LPR and you went and stayed over 2 years in the philippines and you want to come back here. If you don't have a re-entry permit how can you get a re-entry permit?

Reentry permit can be obtained only by people who have a valid green card. Your only option (other than filing for a green card again) seems to be to ask the US Consulate for a Returning Resident Permit if you can show them a genuine reason for your absence. Note that this would be a difficult application.

Outstanding researcher
I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?

I cannot think of any stage at which you cannot travel. Good luck!

EB-2 Eligibility
Had a question regarding the EB-2 eligibility.My Perm was recently approved in EB-2 category.Had a question about education before we file the 140. I've a bachelors in Computing from UK which was a 3 year course and after that I have a Masters from UK in the computing which was a 1 year course. My question- is this qualification eligible of the EB-2 category. Just want to ensure that there is no RFE in 140.

Impossible to predict. It all depends upon the type of degrees and the language used in the Form ETA 9089

When can I apply for EAD
May be a newbie question, I'm from india and I just got my I-140 approved in EB2, Can i file my I-485 as pending or do i need to wait for the date to be current. Is there any way to get EAD so that my spouse can also work?

This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.

Quickest way to get a GC
I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

I have a green card, I was out of the U.S for more than a year
I got my green card back in 2003, I traveled to the U.S. in search of a better life. Since my grandmother was sick I had to comeback to my home country in 2008. I've been out of the U.S. for more than a year. My grandmother is fine now and I'd like to comeback to the U.S. My green card expires in 2014, so it's still valid now. Will I be allowed to comeback to the U.S.?

Generally speaking, a visit outside USA lasting more than one year terminates your green card (no matter what the card says).

B visa while GC pending
A a citizen, I filled up a I-130 form for my parents; they live abroad, but they already have a tourist visa; may they visit USA for short time while they are waiting for the GC process, and then go back to their country, keeping back and forth in the meantime?

The law is uncertain. This type of entry will be left at the discretion of CBP. I have a blog entry on this subject. Please review it: http://forums.immigration.com/blog.php?u=1

AC21 and losing job
I am EB2 priority date Sep2005. I had lost my job in Apr 09. I started working on Dec09 with another company similar job description, in same geographic location and with 15% higher salary than labor approved. I was out of job for almost 8 months.My old employer has assured not to evoke approved I140 (more than 3 years since I 140 is approved) I have few questions: 1.Shall I file for AC21? 2.is it advisable to send copy of current paystunb with AC21, If yes how many months? 2.Is it okay to file AC21without paystub for around 8 months? 2.If I dont file for AC21, will there be an issue travelling on AP at POE?

AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.

EAD restriction for 245i
I applied for GC through 245i. I currently have a valid EAD. I140 approved. and I485 pending. Its for future employment. Can I work for a non related (not related to my labour) until my 485 is approved?

Theoretically, there is nothing wrong with that, but speak with your lawyers. In my view, not working for the future employer raises issues like is there a job, do you really want to work for this employer, etc.

How to renew green card
My father's greencard will expire in June. How do we renew it?

Please visit this link.
http://www.immigration.com/agency_memo_policy_report/how-renew-a-green-card

J1 overstayed by years, married to a greencard holder
I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

Conditional green card
After you receive your conditional Green card what is next?

Off hand, I can think of two types of conditional green cards: marriage-based and investment-based. In both instances, eventually you have to apply to get the condition removed.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Must we withdraw a PERM application if the employee is laid off?
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Questions on AC21, EAD, losing job, etc.
1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.


2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).


3A. Correct. You are in authorized period of stay. That has been explained in my blog.


4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).


5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.



6A. No.


7A. No.


8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.


9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

From a B-2 visa to a green card
I have a pen pal that is a citizen of Honduras. He would like to come to the US to visit me and our beautiful country. My question is this: if he obtains a 6 months B-2 visitors visa, then maybe half way through, he thinks he would like to move to the US and work here, could he apply for a green card during his 6 month stay. He has no family here in the US, just me, his friend.

That does not sound possible. Green cards to USA are granted based upon very limited basis. But, you should have your friend speak with a lawyer to see what options may exist.

Time Frame for Green Card
I am a college freshman student on an F-1 visa and am thinking about applying for green card, as I have also completed 2 years of HS in the US. Any idea how long the green card process may take and should I apply already for green card now in order to possibly get it by the time I graduate college?

The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.

E-3 visa dual intent - applying for green card
I am an Indian born, Australian Citizen on a E3 visa. Does applying for a Green Card jeopardize my chances of getting E3 visa renewed in the future? My wife is on E3D visa and has EAD. She is working now and can her employer start GC process and will that jeopardize her E3D visa renewal and/or my E3 visa renewal? What is the best bet? Applying GC on my name or her name? Both are qualified educationally and both have jobs in the U.S

Applying for a green card should not be a problem for you or your wife. I always suggest filing two independent green cards where the option is available. This provides for a safety net if the process fails for one of the spouses.

I-140 Denied
My I-140 got Denied on Aug 17 on Ability to pay after a RFE.Reason for Denial is "Employer had filed more than 30 cases since sep 2008, and company's net Asset $4M(approx) AND Liablity $2M (approx) and so the net "LIABILITY" is $1M (4-2=1 but they have calculate as -1).30 cases with $1M libality is not sufficient to support this Immigrant , company needs more than $3M to support 30 cases. The truth is (as per my employer) that we have filed 29 cases since 2006 and not sep 2008 also company has more funds and the numbers 4M and 2M are incorrect.What can be done ?

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

Current USCIS procedures for PD transfer and AOS
Recenlty we submitted my NOID response for my 485. Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file 1.EB3 PD,2002 2.EB2 PD,2005. They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now. Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

My mother got her green card
My mother got her green card in dec08. She left for Asia in March08 and plans to return in Nov08. Since it will be 8 months that she will be out of USA, does she need re-entry permit?

There is some error in your facts. It appears she left in March 2009 (NOT 2008). You cannot file a reentry permit while she is outside USA. If she is outside USA for more than one year, the GC is deemed abandoned. If it is out more than 6 months, but less than 1 year, she can be asked to demonstrate that her permanent home is in USA.

Green card
My green card got expired in nov 2007, I filled by mistake I-90, when I went for my biometrics, they saw that I filled the wrong application, I have to fill I 751, then I filled I 751, My rec number is EAC*********. I recently went through my biometrics again, in April 2009, but still, I do not have any proper response,when do you think i will get my GC?

In my view, failing to file an I-751 in a timely manner could cause serious problems. I think you should consult with a lawyer locally where you are.

Prevailing Wage - H-1 and GC
When is the employer bound to pay the prevailing wages as determined for an LCA and if the applicant is already working in the sponsored position. I have an H1B which was renewed recently, but my LCA was filed in March of 2008. Hence there were three wage determinations that were done for me - First one at the time of the initial H1B filing, second one at the time of the Labor for PERM and third one for the renewal. So at what dates does the prevailing wage come into effect as they happen to be different every time.

The employer is obliged to pay you the H-1 renewal wage now and the PERM wage after you get the GC approval.

DWI and Naturalization
I was stopped by a police once and received a traffic ticket.I paid the ticket in time but I was not aware that my license was suspended,since the suspension notice was sent to my old address which was never frwded back to me.I was stopped again few months later by police officer and he told me my license was suspended.I appeared in the court.I pleaded guilty,since I was driving w/out insurance.They dropped the "driving without a valid license" charge and fined me $100 for driving without insurance.BMV then suspended my license for 2nd time for 1 yr.Is this a problem filing N-40?

USCIS can question anything that has bearing upon good moral character.

Sponsoring Niece and Nephew
I am a US citizen. Can I sponsor my niece who is 8 years old and nephew who is 4?

It depends upon how we define the term "sponsor." If you mean can you apply for their green cards, the answer is no. If you mean can you provide an affidavit of support for them to visit or study in USA, the answer is yes.

Green Card holder parents bringing to US a child born outside USA
If the Child is born in India and we have the GC by that time, is there any way the child can travel to US?

Your child may accompany you or travel with you to the U.S if the following conditions are met:
a) the child has a separate passport;
b) has a birth certificate from the corporation, municipality or a registrar of births and deaths (please note hospital records are not adequate)
c) the child accompanies the immigrant mother or father upon her or his return to the U.S following the birth of the child
d) the child is under the age of two years
e) the immigrant mother or father has a valid Form I-551 or I-151, alien registration receipt card (in short called

I-485 AOS Pending, Employer's Bankruptcy
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Obtaining H-1 Extension beyond 6 years
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

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

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

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

Important questions on H-1, AP and Travel
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

Working abroad while AOS pending
My self and my wife are on EAD and advance parole. My wife and I are from India. I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months. This is however not the company with which I started my green card. I changed jobs when I got my EAD. But I have several questions: 1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD? 2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay. 3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

Working for two companies on EAD
1. Wanted to check if on an EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time. 2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company. We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

Applying for green card while on a B-1 or B-2 visa
1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? 2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application? 3) Is it better to apply for adjustment of status or consular processing for the last step of their green card? 4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?

A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

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

AC21 - accepting a green card
1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

Leave of absence - I-485 pending
a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending. b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey? c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

RFE after the I-140 was approved
1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can USCIS go back and raise RFE's in this manner? 2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

Marriage to US Citizen with EB AOS is pending
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

Should you be applying for employment-based green card in this economy?
Should you be applying for employment-based green card in this economy?

A lot of employers have been asking this question in the last few months. Is it even possible to get a labor certification with the US unemployment at a 26-year high.

What does AOS approval mean?
I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

Following to join
This is regarding my sister who is going through lot of stress due to visa issues. She has been on H4 for past 9 years. Her H1 was approved in 2007 with an employer who wanted to hire when she was doing her MBA from a reputed University here in US. They were even willing to hire her once she is done. 3 months back her husband lost his job and had to go on EAD since (My sister could not do it because she was traveling out of US in 2007 when the window opened). She has decided to go on H1 status. She has to get it stamped outside US as she had lost her H4 status. It has been now more than a month and she is stuck out of US (in UAE). Her employer is a small firm and due to THE bad economy she is very nervous about the future even if she gets H1 B. Here are our questions/ concerns. Please do answer these: 1. If she gets H1 B could her husband still file for Follow to Join. There is no guarantee in this environment it would give her peace of mind if he could. 2. God forbid - If she doesnot get H1B and her husband files for Follow to Join - would she have to stay out side US to do consulate processing?? How much time it takes? 3. Any advise/ suggestions are welcome.

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

Employment-based out of status protection for AOS - Section 245(K)
My previous employer didn't pay me for 7 continuous months in 2006, Current employer is going to file I-140 and I-485 based on my EB2 PERM. I have all W2 and Pay stubs except that period. will that going to affect my GC application ? Please let me know what are the possible consequences of that. I didn't know about that 180 days rule.

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

Can H-1 be extended based upon family-based green card?
I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?

You cannot. This extension is available only to employment-based applicants.

I-485: pre-adjudication and employment verification letter
1. I see few cases where CIS has sent an RFE to ask for Employment Verification Letter (EVL). When does this typically happen? 2. For cases where in the EVL was already sent along with the I-485 application, what are the reasons usually for CIS asking EVL again? 3. I had taken an Infopass few months ago, and they had said my I-485 application is pre-adjudicated. What does this mean?

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

 

 

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

I-485 interview-- does arrest create a problem

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

USCIS Finally correct 140 Premium Policy

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15

The second memo from USCIS is attached.

 

Watch out - the prioirty date cut off in March was effective immediately

The April 2009 Visa Bulletin was issued on March 9th. The VB said the visa numbers for EB3 were unavailable with immediate effect (Philippines retrogressed to 2003).

This is highly unusual. The visa bulletin is a forecast for the month ahead and does not take effect immediately. But State Department says that this one was of immediate effect.

What does this mean?

Criteria for Outstanding Researcher/Professor Category

Preliminary requirement: The applicants must be able to document at least three years of experience in teaching and/or research in the specified academic field and that they are "recognized internationally."

Generally speaking, experience in teaching or research while working on an advanced degree will not satisfy the three year requirement.

EB-3 "Unavailable"
Here is a question this morning from forclients.com, our clients' extranet. Quote: The nightmare has once again come true, eb3 would be unavailable until September 09, if I am not wrong? With this in the background, I am thinking of giving up the hope of getting my green card soon (my pd may 04). If I go back to India, can my GC application still continue to be processed?

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?

AC21 Portability - Changing Jobs After 180 Days

What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
 

Watch out for this immigration fraud!!

I have received inquiries on this type of email floating around. This is fraudulent. US govt. does NOT issue green cards based upon random email lottery. Please circulate this to all concerned.

--------------------------email---------------

U.S. Department of State

Bureau of Consular Affairs, National Visa Center

32 Rochester Ave. Portsmouth NH 03801-2909

Attention: Winner.

Multiple I-140 filings
Our community member spring09 says: Hi Rajiv, Thanks in advance. I have an question and keeping me up during nights. I am working on H1 with comp A, who has filed for my I-140 in Feb-08. And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B. Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140. Thanks again.

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

I-485 Priority Dates and Processing Dates
One of our community members had asked a questing regarding the processing dates of 485.

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

DOL gives PERM processing dates

For recent updates on PERM processing please click here.


http://www.immigration.com/processing-times-and-status-checks

GC approved. When should I start working on the green card job?
Now that I received my GC through employment, does my employer need to change my position to the one filed in the Labor Certification?

Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.

Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Renewing Expired GC and Citizenship for autistic/disabled persons
One of our clients (I think I have worked with these folks for over a decade) had these questions:

Quote:  A member of our family was issued a Green Card in November 1980. The green card did not have any renewal date (see enclosed). I assume Green Cards at that time did not have a renewal date. Does this need to be renewed?

Ans: Replace the green card. See:
http://www.uscis.gov/files/form/i-90instr.pdf

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Pointers for EB1/NIW filings

The following pointers have emerged from recent cases and comments from USCIS:

1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.

2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.

3. Emphasize/document the "international" nature of your accomplishments.

Am I obliged to join my sponsoring employer after GC approval?
For past 7 years I work for company ‘A’ on their H1B visa (EB3). I had a I-140 cleared in 1998 from my previous company ‘B’ under EB2. Company ‘B’ filed for my I-485 in 2004 and I finally got my green card.

Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.

Does chargeability change with citizenship change?
I have attained Canadian Citizenship but a born Indian citizen, when I am applying for 485 which priority dates do I need to consider, General or India. I do not have Indian passport.

Still, India. Your chargeability follows the place of birth, not your citizenship.

How does the Stimulus Bill affect H-1b, L-1 and Green Cards
What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?

There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

Adoption from India

I am sharing with you a response to a frequently asked question about adopting a child from India. Our inquirer also wanted to know if she could adopt her niece. Here is the info:

CIS Reinstates Limited I-140 Premium Processing

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

Can F/J holders apply for green card?
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

What happens when an employer is under criminal investigation/indictment?
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Turning 21 - do I have to convert to F-1 from H-4?
My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

 I do not see any way around filing an F-1.

Checked the wrong box on Form I-90
Form I-90 Green Card was lost. Instead of checking Part 2, 2a, I checked Part 2, 2f. Submitted online and paid with credit card. The instructions state the following: "If it is necessary t o change any information on your submitted I-90 application, please bring evidence to support the change with you to your biometrics appointment. DO NOT send written correspondence regarding changes to the address below." At the biometrics appointment, can the interested party state the above mistake and solve this situation? Or will the USCIS denie the application? And another filing fee will have to be paid?

You should certainly point this out at the biometrics appt. You should also call the CIS customer service number and explain the problem. In addition, you should contact your Congressman. Let them contact CIS and help you correct this issue.

Green Cards for Physical Therapists
I am a licenced physical therapist in Michigan and working on my OPT. Is it true that PTs and nurses are exempted from the labor certification during green card process? and they do not need to file labor certification? And considering the current scenario, can you please let me know approximately how much time does it take for a physical therapist to get a green card?

 PT's and RN's are both exempt from filing labor cert, but the time for their green card processing is still tied to the time it takes for people from the country of their birth. An India-born PT will wait the same time in EB-3 category as any other India-born EB-3 applicant.

May physicians process GC during residency?
Is it possible to start GC process during my first year medical residency if my hospital agrees. Have you dealt with cases like this.

The essence of a green card application is that it is meant to be for a job in the future. 

Is salary reduction possible/legal?

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

DOL Comments on PERM Processing Times

In a recent meeting, USDOL has stated:

Quote:

Expected I-140 denial
Thanks in advance for your help. My current situation is this : 1. Applied for I140 and received RFE 2. RFE requires Employer's 2007 tax document and my recent W2 3. There is a salary difference in W2 and Labor ( salary < Labor = 7000 USD) and the company was in loss for the fiscal year 2008. 4. This is my 6th year in H1 B and it expires in October,2009 My questions are: 1. Can I transfer my H1 B to another Employer at this situation and apply for my new Labor? 2. If Labor is approved, can I file my I140 premium and apply for 7th year extension? 3. How long will it take to cancel the current I140? Please help me out regarding this situation. Thanks and awaiting for your valuable suggestions.

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

Can an unrelated Masters degree get me an EB2?
When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.

The simple answer is yes, the degree must be related. In the past, we have received many EB2 approvals requiring Masters degree. Now, such approvals are unreliable. Your degree seems to be related. Agribusiness and business... hmmm. I believe an EB2 argument can be made. The labor cert should be prepared in such a way so that if EB2 is rejected, EB3 is still safe. Do bear in mind, all submissions made to DOL MUST be true. Ultimately, it is the employer who must decide.

Does filing for any green card permit me to stay in USA?
I am here on L1b visa from x company. My sister sponsored me Immigration visa in 2006. (File is still in processing). My assignment is going to over here. Is there any work around or change of status through which i can stay here?

So, the questions is does filing for any green card permit me to stay in USA?

The answer is no.

Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.

That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.

What to do if an I-140 gets rejected?
Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Do advanced degrees help in marriage-based green card?
I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

 1. Advanced degrees do not help in a family-based green card.

Consequences of DUI's on naturalization and green card
Dear Mr.Khanna, I have reading all your post and found you quite informative. I will appreciate if you can let me know the possible consequences of my case. I was in restaurant in Gaithersburg MD on Jan 29 2008 with my boss who was visiting from Atlanta. I had a beer and 2 glasses of wine with dinner came out sat in the car and started backing up. As you know it was winter and had rained earlier the windscreen at the back got fogged out. While backing up I hit a car parked. Police was in that parking lot and arrested for drunk driving. I blew .09. I was given a bunch of tickets after being 30 minutes in the precinct and was released. In the court they dismissed 2 tickets like DUI and DUI par se and convicted me DWI and Failure to control Speed to Avoid Collision. BTW DWI in MD is a lesser offence when you blow less than the state .08 BAC typically .07. And Failure to control speed to avoid collision which is maximum fine $130.00.Now the Judge gave me Supervised Probation till I finish my MADD Class. After that the Probation goes to Unsupervised for 12 Months. Now I am elligible to file citizenship. I have finished 5 years of LPR time with minimal travel aborad. Now my questions are : 1.) Will I get deported or removed. 2.) Will I have problems while entering POE while travelling from overseas. 3.) Will my Citizenship be denied if I file after my probation gets over. Please share your knowledge It will immensly help my stress. This one mistake of my life has really taken a toll in my life. Your earliest reply will highly appreciated.

Let us look at the law for green cards and removal (deportation) first.

Remember the following GENERAL elements of the law (there is more to it).

Does lay-off affect natutralization?
I obtained my green card 4 1/2 years ago through employment. My former employer sponsored me h-1 visa for 6 years and labor certificate and green card as well. Unfortunately, I was terminated by the employer last year, which ended my 10 years career at the company. After the termination, I then filed workers compensation claim for the injuries at work, and civil lawsuit for discrimations and under-paid wages through lawyers. The two cases are pending at courts. Now I have a part time job which is not related to the job that helped me get the green card. It is almost time for me to apply for citizenship. However I am worried about how much the two cases would affect the application. I will be asked in the citizenship interview why I left the green card sponsor, why you were terminated and so on, so forth. Please help advise if my worries are correct ? Is it better to apply for citizenship when the problems above are ended in courts ? Thank you very much for your help.

 I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

AC21 Portability and Related Issues

Quote:

Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

Filing EB1 while EB2 AOS is pending

I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
 

Further questions on AC21
I got laid off from work from my present employer on October 31, 2008 and I have 3 questions. Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved EAD & AP both for the primary and dependent.

Quote:

 I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

Promotion during the green card process through PERM
Taking Promotion in future The current PERM filing is going to be done for the position "Dentist". In the future can she accept a promotion as "Dentist (Lead)" if offered by the company? Will it invalidate the green card application. If we accept the promotion in future can we use the same PERM application without filing another PERM for "Dentist (Lead)" job (jobs are very similar) . She is now a "Dentist(Associate)" and job duties between associate dentist and lead dentist are 70% the same. The lead dentist will have additional duties like oversee day-to-day operations/Supervision.

Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

B visa while GC pending or similar situation
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Supervisory review
Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

Green Card through Citizen brother
My brother got US Citizenship this month. I would like to apply Green Card using my brother's citizenship.Is it possible ? How long it will take . Now I am holding H1B.

This is usually not a feasible option. To see how long it would take, look at the Visa Bulletin: 

http://www.immigration.com/newsletter/vbarchive.html

You will note that it will take more than a decade to get a green card through family-based category 4. You are not permitted to stay in the USA just because this application is pending.

Changing Careers after the GC
Q1. Can a legal permanent resident(LPR) change career after say one year from his AOS approval to an entirely different field from the one for which his labor and his AOS was approved? Will this raise any red flags at the time of citizenship? Q2. In other words, after receiving green card on the basis of say job in computer industry, when can one change his/her profession to an entirely different field (let say opening up a restaurant or go into real estate on full time basis) without jeopardizing the citizenship? Would waiting for one year(or some other amount of time?) after AOS approval be good enough to satisfy the "intent to work for in the field noted in labor application on a permanent basis"? Q3. Is the person after receiving green card on the basis of employment in certain field stuck in that field for ever? Q4. What are you thoughts in general about this scenario and how should one go about it?

 A1. I see no problem with this nor do I see any red flags.

A2. Sure. Why not. Permanent does not mean forever.

A3. Not at all.

A4. Nothing else I can think of.

Multiple Labor Certifications
I have consulted the local lawyers here but they have failed to answer this question with conviction. Can two Labor applications be filed for me by two companies (current and future employers) at the same time ?

In my opinion, most definitely, yes. As long as both companies are acting in good faith (honestly) and you have the intention to take whichever green card happens to be more convenient or quicker for you, you can file 2 or more labor certs (PERM) through different employers.

Can Employer Withdraw My Green card Application?
I had accepted an offer of employment from a well established Indian Consultancy company last year in the month of June 2007. I was given the pre approved labor and they filed I 140 and 485, EAD, AP during that Visa bulletin fiasco last year. I got EAD and AP for both me and for my wife. My I 140 approved from TSC last month. Now I have a better opportunity. My employer is threatening to withdraw GC files processing unless I work with them till I get my GC. Qo1. Is that possible for them to withdraw like that? Qo2. Does that affect my GC process in negative way? Qo3. What I have to do in case they withdraw? Qo4. Is it possible to re-start the whole GC process again in case? Qo5. By the time I file AC 21, if the present employer withdraws the GC files, what happens to my case? Qo6. How do we know whether they have withdrawn GC process or not?

Ans1. They can withdraw the 140. That is their petition, but they cannot withdraw the I-485. That is your petition. If they withdraw the I-140 you can still take recourse to AC21 and not suffer any negative consequences.

Ans2. If you are covered by AC21, you should be fine.

Ans3. File AC21 letter as soon as possible.

Ans4. Sure .

Ans5. See this link: http://www.immigrationportal.com/blog.php?b=25

How soon can I leave the employer after I get my GC
Q1. How soon can I leave my petitioning employer once I get my green card approval? Q2. I did not willingly left the GC sponsor employer but actually after three months I got my GC, i got laid off from the project and due to the bad economy , my employer was not able to get me other project so he gave me letter saying that he wont be able to pay me salary since he doesnt have any project for me.And, after getting that letter I resigned from GC sponsor employer. Q3. I am employed at the XYZ University (XYZU). I applied for 485 myself (without attorney). My 485 was approved last month and I got my passport stamped in July. My contract with XYZU is coming to an end. My job is renewed every year based on the availability of funding. I have been with XYZU for the last 5 years. There is a possibility that they (XYZU) may not extend the contract because the research grant I got is coming to an end in september. Will my termination from the job at XYZU affect my Green Card in the future, and is it better to be terminated from service (based on unavailability of funding) by the WVU or is it better to offer my resignation?

A1. There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits.

PERM News July 15 2008 DOL Meeting

The attached PDF document contains information from DOL on PERM backlogs, program future and other pertinent matters. Enjoy. Regards to all. Rajiv.

AOS Pending, Should H-1 be Renewed
Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Priority Date and AOS (Form I-485) Processing
Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my FP done yet?

As of July 2008, this is how the system works.

First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

EAD and H-1 Conversions for Derivatives
I have applied for 485 as the primary applicant and my wife is the secondary applicant. Right now both of us are on H1 visa. We had applied for EAD and AP and intend to apply for renewal soon as we near 120 days. I am on my 7th year of H1 and my wife is on 2nd year of H1 and 3 year of (H1 and H4 combine). Her current H1 expires on April 2010. I intend to remain on H1 itself and have no intentions of using my EAD. Can you please clarify these questions.

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

 

Gap in Employment during AOS
My friend lost his job on Friday when he was working on EAD (this is not the employer who has applied for GC). His i-140 was approved last year in May. He is looking for new job which would take couple of weeks. I have following question for the situation:

Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.

Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.

AOS Denial – Consequences for H-1

Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.

PERM Through Relative Owned or Controlled Company
Can a PERM case be filed through a company that is owned or controlled by a relative of the beneficiary?

The answer is yes, BUT, the case is likely to be very closely scrutinized and may even require supervised recruitment. That means, USDOL will most likely ask us to place advertisements again under their direct supervision. So, we could end up repeating the advertising. This could cause delays (and of course even denial).
This question had come up a few weeks earlier also. I wanted to clarify this with the USDOL so we wrote to them. Our letter and their response is attached.

Basic Criteria for Extraordinary Ability

This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.

Green Card Stolen
What is to be done when your green card is stolen? I just got mine not to long ago, I am 17 years old and I am not sure what I am supposed to do?

You can easily apply for a replacement green card. Read the instructions on Form I-90. Please visit this link for more information.
http://www.immigration.com/renew-or-replace-green-card

How to renew green card
My father's greencard will expire in June. How do we renew it?

Please visit this link.
http://www.immigration.com/agency_memo_policy_report/how-renew-a-green-card

Renewing a green card
What if already have a Green Card I lost it, but it wasn't expire yet and I need to redo it how much it going to cost me to renew to get it redo?

You do not need a lawyer for something simple like this usually. I think you should look at Form I-90 at the USCIS web site.

PERM Audit & H1 extension beyond 6 yrs
My employer applied PERM (in 6th year) in October 2011 EB-2 Category and it picked for random audit in Jan 2012, employer asked me to send signed ETA form to respond to Audit question with in 2 weeks. They said its random computer audit and has to respond with paper documents. I am already in 6th yr and my H-1 get expired by May 22, 2012 is it possible to go for H-1 extension beyond 6th year while PERM is still in Audit status.

You will be eligible for H-1 extension beginning October 2012, even if PERM is pending audit or not.

Restart the green card under EB-2 category
My Labour is filed in EB-3 & my PD is Oct-2003. I got my EAD in 2007. I have a BE degree from India & a work experience of 13 years. 5 in India & 8 in USA. Am I eligible for porting to EB-2? If I file a fresh EB-2 what is the process? Is it just the Perm process & I- 140 or do I need to file I- 485 again.

People with over 5 years of exp. after a 4-year degree may be ale to restart the green card under EB-2 category and then port their PD. Basically, you are redoing the PERM and I-140 for an EB-2 level job.

Can I process I-140 with previous company
I got I-140 cleared through current company and labor approved from previous company. Can I process I-140 through previous company (to get PD to 2008)?

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

Avoiding PERM through EB-2 category
If one applies through EB2 category can the PERM also be avoided then?

You can avoid the need for PERM through EB-2 only if you are applying for a National Interest Waiver.

PERM petition and employer
After a PERM DOL certification petition has been filed for an EB-2 application for someone currently on H1-B, at what stage is it safe to change employers without affecting the application process? In other words, will change in employer mean starting the process anew?

If you leave the employer after approval of I-140, you carry your priority date. Before then, you can carry nothing. In both cases you have to start another PERM application with the new employer. If you do not wish to start a new green card, read AC21 portability: http://forums.immigration.com/content.php?67-AC21-Portability-Changing-J...

PERM Audit and H-1 Expired
What happens if your H-1 expires before the PERM audit is cleared by DOL. Are we supposed to leave country. I have 20 months of H-1 life left to reach 6 years and my LABOR is in AUDIT status I am just wondering if I get an extension or will I be checked out of USA.

While a PERM audit or even an appeal against a denial after the audit is pending, you would still be entitled to H-1 extensions beyond six years.

Holding Company Stocks on TN Visa
I am on TN visa for the more than a year. The company wants to give me some stock option (10-15%). Is that ok to hold stocks of the company you are working for on TN visa, or will it create problem when I apply for renewal of my TN visa. Can I apply for GC on TN visa?

I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.

Perm process during OPT
I completed my master’s degree last summer and started working with a company from 2 months. I am in OPT status right now and I wanted to know, if I am eligible to file for Green Card process with my current employer. If yes can I file in EB2? I have 2 years IT experience in India If no, do I have to wait until I get H1b. Is the Green card process dependent on H1B?

This question requires your lawyers to assess the case. Generally speaking nothing stops you from filing a PERM application while on OPT and an Eb2 appears possible.

EB-3 category
I am on EB3 category and have been working in the IT sector for the last 6 years and one year ago I completed my MBA too. I am currently working as a contractor and using my EAD. I am on Adjustment of status right now. Is it possible to change my category from EB3 to EB2?

It is possible, but the green card will have to be started again from PERM.

Can I change jobs and file PERM and I-140 under EB-2
Can I change jobs and file PERM and I-140 under EB2 instead prior EB3 with the new employer. How risky the situation is? I can stay with my current employer, but it is going to take at another 3 years to get my GC under EB3. My PD is Feb 2007.

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

Job Change after I-140
I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

Can EB3 PD be carried to new EB2?
I filed Perm under EB3 category on 1-Oct-2008. I got an audit. As per your current Perm dates, they are processing Aug'08 audits. Can I file with same employer under EB2? If yes, can I also keep EB3 file running parallelly. Is there a way for me to carry EB3 PD after I-140 Approval,if I file a new EB2? I completed 4yrs 2 months on H1B already. Please suggest me if I can change my employer now to file for EB2 or not. (If there is any way i can carry my EB3 PD for EB2 or not?). My lawyer said they can not change the current EB3 file to EB2 as they did not describe it for EB2 role.

It is logically inconsistent for two jobs from the same company for the same individual. If you have a good, logical, true explanation, there is no law that says you cannot have two PERM apps for the same individual for different jobs with the same company. But you cannot transfer PD until the I-140 is approved. I see no issue with changing jobs right away. You may have just enough time.

PERM Audit
My perm application filed on July 2010 and got audit on September 2010. My employer sent audit response on October 2010. When I asked my employer how much time I would take then he said that now a days USCIS response within 3-4 months for new cases. How long does a PERM audit take?

The PERM audit can take a lot of time. I just checked with one of our case managers. They tell me that they have no figures for the time it takes between start and end of an audit, but the total decision life cycle (from filing to decision) of an audited case is 2 - 2.5 years.

Guidelines for 7th year extension
I could not find any guidelines for 7th year extension with the DOL PERM Program. In the six month period - less than 365 days but more than 180 days from the expiry of the six-year limit on my H1B, my company started the PERM process. In that six month period we got an approved I-140 and filed for Adjustment of Status. Would I qualify for 7th year extension ? Please note that I am a citizen of India and I thought there was also a provision for "Per Country Limit".

If you have an I-140 approval and your PD is backed up, you are entitled to a three-year H-1 extension beyond six years. It does not matter when your PERM was filed.

EB2 Schedule A question
My PERM application just got denied due to the recent layoff in my company. Can I apply EB2 (schedule A) to bypass the labor certification step? Will the recent PERM denial affect the Schedule A application? Is it ok to submit the schedule A application soon or I have to wait for a certain time period?

If you are qualified, you can apply for Schedule A. I cannot think of any way the PERM denial or layoffs could cause any issues and there should be no waiting to file.

PERM application
My company said they filed the PERM application on June 30th. I asked them to send the status a month ago. The sent me a message saying that it has Prepared status in the application and the overall status as in process. Is it how it looks?

When we check status of electronically filed applications, it should say "In Process" when it is pending. That should be sufficient.

Green Card for employees
If a company is willing to sponsor green cards for a number of valuable employees, currently working with temporary worker visas, does it reduce the chances of success? (like applying to 4 to 5 employees simultaneously)

Generally speaking, as long as the jobs are genuine and the employer has the ability to pay, the number is irrelevant.

Can I file I-140 under EB2 if PERM is filed under EB3
My Perm is filed in October 2008 under EB3 and was audited. As per your current dates, guessing it might be approved in October 2010. 1. I would like to know if I can file I-140 under EB2 as I got my work experience eligible for EB2 category. 2. If I change employer before my PERM approval, will my priority date change? If so, to retain Oct'08 date, till what time, I can be with my employer? 3. Once I-140 is approved, can I change employer or stay for 6 months and then change employer so that my priority date will retain oct'08?

1. No. PERM application determines what your category is.
2. If your I-140 is not approved, you cannot carry your PD to a new employer.
3. Once approved, you can carry your PD, even if you leave earlier than six months. You do have to start your green card process all over again.

Labor filing and F-1
My employer has being try to file labor for the last 2 years and finally decided filing as Finance major would be risky & decided to go with engineering specialization.Two major issues: - I have 4 months remaining for 365 day deadline (H1B with time captured outside US would be Dec '11) - My employer is asking me to go on F1 staus to freeze the time on H1.Two questions: Is 4 months enough time for me to find a new employer & ask them to file for labor? Is it legal for me to work on F1?

It could take a bit longer than 4 months to file. You can work on F- 1 if the school allows Curricular Practical Training.

Priorty date
I have a priorty date(PD)of dec 07 filled under EB3.my I-140 got approved this march.I have 5 years experience as of 2010.can I file as EB2 with another employer as my current employer is not willing and still use the same PD? My first labor certification was in audit for 2 years before they cleared it.Do I have to go through all these steps again with new employer? Can you please explain the process if possible?

You do have to start the green card all over again, but your PD is yours to take with you to the new job.

PERM processing times
I filled my PERM application at the beginning of May 2009 and my employer check the status of the application and it still says "processing". According to the processing dates shown in your website, they are reviewing August 2009, What that means? Why my application has not been approved or denied?

The information shows an approximation. Times vary. If your application goes into a review and audit, it can take 2-3 years.

Labor certification and DV
I am a 2010 DV Lottery winner whose number is projected to be current in August 2010. My employer has started the first stages of the labor certification process. The job has just been advertised. They decided to go on with the process and will stop it when I have the green card in hand. When I go for the DV interview through Consular Processing, will the labor certification process negatively affect my chance to get the DV green card? Will there be any problem? Should I stop my employer from continuing the labor certification?

I see no problem at all with the two processes proceeding concurrently. I always advise people to concurrently file green card through all categories under which they can qualify.

PERM - reduction in work hours, wages
I was in the fulltime employee in H1B and filed for the PERM application. after one year and approval of Perm application, The employer reduced my working hour from 1.0FTE to 0.8FTE and filed my H1b extension for the seventh year. My question is that, Is there any affect on my PERM application or in the future I-140 and I485 applications.

Reduction of hour from full time to part time can raise issues about the availability of qualifying job (full time, permanent) for green card purposes. In addition, this can be a violation of H-1 laws. I suggest you speak with a lawyer.

PERM when company has freeze in hiring
PERM process says they should advertise in the paper. What if company has freeze in hiring in certain areas because it already has enough. If they wanted to do GC for its employee, how will the process work.

Technically, the employees on H-1 are only temps. Those positions are available. Recruitment is conducted against those permanent positions that are currently occupied by temporary workers.

EB-2 Eligibility
Had a question regarding the EB-2 eligibility.My Perm was recently approved in EB-2 category.Had a question about education before we file the 140. I've a bachelors in Computing from UK which was a 3 year course and after that I have a Masters from UK in the computing which was a 1 year course. My question- is this qualification eligible of the EB-2 category. Just want to ensure that there is no RFE in 140.

Impossible to predict. It all depends upon the type of degrees and the language used in the Form ETA 9089

PERM times
I have applied perm under the category EB-3 on Dec-2008 and got a audit on June 2009 and replied the query in june 2009 itself. I have 2 questions here: 1) Can I know the application status .Do i get any file number or something to check my status of this perm application applied under EB-3 category? 2) Requesting you to let me know the probable completion date of my PERM?

PERM times are on our web site. You cannot check the progress of the case, except through your employer. If they filed electronically, the application status should show where things are in terms of: pending, denied, approved only.

Must we withdraw a PERM application if the employee is laid off?
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

PERM classification EB2
I am technology professional with nearly 9 years of work experience. I am currently working as a software consultant in a trading firm in the US and will be graduating from a part time MBA program (concentrations in Finance) this december. If I plan to apply for PERM next year, will I be eligible to apply under EB-2 US Masters degree, given that my MBA in finance will help in understanding complex financial principles and writing algorithms that support day to day trading? In this case, will my previous experience be evaluated?

As long as the job requires a Master's degree and you have earned that degree by the time you file your PERM, you should be able to get EB-2.

H-1 extension while PERM pending
My PERM application was filed last june 2009. My H1B expire last Sept 2009. Can I still renew my H1B? I got 2 extensions of H1B already.

You can keep applying for H-1 extensions indefinitely while the PERM is pending (filed a year ago).

When to file for 7th year extension (Timing)?
My 6th year is expiring in Oct2010 and my employer is planning to file PERM in Feb 2010. My questions is 1.Will I be able to file for the 7th yr extension before my 6th yr expires, say in Sep/Oct 2010 (even if my Labor is pending and it hasn't been 365 days yet)?Meaning,can they just go ahead & file for the extension but request for the 7th year to start from Feb 2011 (i.e. 365 day point from the PERMfiling)?Or do I have to actually wait until Feb 2011 to even file for the 7th year extension? 2.If I have to wait til Feb 2011,what start date can my employer request? Oct2010-11 or Feb2010-11?

They can file 6 months ahead of the contemplated start date - as long as one year of PERM filing is over by that date. But you might have some gap where you cannot live or work in USA.

PERM and H-1 extension
My company filed my perm application in march 2009 and We did`nt heard any thing from uscis. My H1 is expiring(Max-6 years) in March 2010. My question is when I can file for H1 extension?

You can apply for H-1 extension 6 months ahead. But the start date cannot be earlier than March 2010 (when the one year pendency/filing of PERM is reached). You can also get an H-1 extension when your I-140 is approved (if your priority date is not current).

Labor Cert - successor in interest
My Current company (A) applied for my Labor Cert on Feb 2009 and is still in progress. It's been acquired (Company B) and I will be continuing on my same positon/salary with company B that acquired us. As per new perm regulations 20 C.F.R. 656.11(a) and 20 C.F.R. 656.11(b) can company B act as a successor of interest, take over my pending labor and move forward to next step without any issues.

Generally speaking they can take over your green card application if they have taken over substantially all assets and liabilities and the job remains the same. Anything short of that needs to be analyzed.

PERM Process timeline
Is there any way of finding out the time it would take to finish the PERM process? Also, if I change my job after the PERM process is complete, will the date that I got get carried over when I apply from another company.

The processing times are available here: http://www.immigration.com/processing-times-and-status-checks. Priority dates are not transferrable unless I-140 is approved.

Mandamus against PERM delays
DOL seems to have stopped progressing on the Audit cases. Can litigation alleviate this problem and force them to atleast respond?

All things considered, in my view, a Mandamus is possible. But the chances of success are remote at least in DC circuit. Typically, in delay cases, courts do not interfere with the executive branch of the govt. At the very least, lawsuits draw attention to difficult issues. I think a petition to the govt. should be the first step. May be the worthy President can help. Although, speedy processing in this environment is certainly not a politically popular issue, but we have all followed the laws and the promise of the laws.

Obtaining H-1 Extension beyond 6 years
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

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

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

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

Should you be applying for employment-based green card in this economy?
Should you be applying for employment-based green card in this economy?

A lot of employers have been asking this question in the last few months. Is it even possible to get a labor certification with the US unemployment at a 26-year high.

L-1B applying for green card
My company applied to change my status from L1B to L1A at the same time as filing my GC application. It was approved and the GC only took about 5 months

True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.

Mandamus against PERM delays
DOL seems to have stopped progressing on the Audit cases. Can litigation alleviate this problem and force them to atleast respond?

All things considered, in my view, a Mandamus is possible. But the chances of success are remote at least in DC circuit. Typically, in delay cases, courts do not interfere with the executive branch of the govt. At the very least, lawsuits draw attention to difficult issues. I think a petition to the govt. should be the first step. May be the worthy President can help. Although, speedy processing in this environment is certainly not a politically popular issue, but we have all followed the laws and the promise of the laws.

DOL gives PERM processing dates

For recent updates on PERM processing please click here.


http://www.immigration.com/processing-times-and-status-checks

DOL Comments on PERM Processing Times

In a recent meeting, USDOL has stated:

Quote:

Can an unrelated Masters degree get me an EB2?
When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.

The simple answer is yes, the degree must be related. In the past, we have received many EB2 approvals requiring Masters degree. Now, such approvals are unreliable. Your degree seems to be related. Agribusiness and business... hmmm. I believe an EB2 argument can be made. The labor cert should be prepared in such a way so that if EB2 is rejected, EB3 is still safe. Do bear in mind, all submissions made to DOL MUST be true. Ultimately, it is the employer who must decide.

Promotion during the green card process through PERM
Taking Promotion in future The current PERM filing is going to be done for the position "Dentist". In the future can she accept a promotion as "Dentist (Lead)" if offered by the company? Will it invalidate the green card application. If we accept the promotion in future can we use the same PERM application without filing another PERM for "Dentist (Lead)" job (jobs are very similar) . She is now a "Dentist(Associate)" and job duties between associate dentist and lead dentist are 70% the same. The lead dentist will have additional duties like oversee day-to-day operations/Supervision.

Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Multiple Labor Certifications
I have consulted the local lawyers here but they have failed to answer this question with conviction. Can two Labor applications be filed for me by two companies (current and future employers) at the same time ?

In my opinion, most definitely, yes. As long as both companies are acting in good faith (honestly) and you have the intention to take whichever green card happens to be more convenient or quicker for you, you can file 2 or more labor certs (PERM) through different employers.

PERM News July 15 2008 DOL Meeting

The attached PDF document contains information from DOL on PERM backlogs, program future and other pertinent matters. Enjoy. Regards to all. Rajiv.

PERM Through Relative Owned or Controlled Company
Can a PERM case be filed through a company that is owned or controlled by a relative of the beneficiary?

The answer is yes, BUT, the case is likely to be very closely scrutinized and may even require supervised recruitment. That means, USDOL will most likely ask us to place advertisements again under their direct supervision. So, we could end up repeating the advertising. This could cause delays (and of course even denial).
This question had come up a few weeks earlier also. I wanted to clarify this with the USDOL so we wrote to them. Our letter and their response is attached.

PERM Audit & H1 extension beyond 6 yrs
My employer applied PERM (in 6th year) in October 2011 EB-2 Category and it picked for random audit in Jan 2012, employer asked me to send signed ETA form to respond to Audit question with in 2 weeks. They said its random computer audit and has to respond with paper documents. I am already in 6th yr and my H-1 get expired by May 22, 2012 is it possible to go for H-1 extension beyond 6th year while PERM is still in Audit status.

You will be eligible for H-1 extension beginning October 2012, even if PERM is pending audit or not.

PERM Audit and H-1 Expired
What happens if your H-1 expires before the PERM audit is cleared by DOL. Are we supposed to leave country. I have 20 months of H-1 life left to reach 6 years and my LABOR is in AUDIT status I am just wondering if I get an extension or will I be checked out of USA.

While a PERM audit or even an appeal against a denial after the audit is pending, you would still be entitled to H-1 extensions beyond six years.

Mandamus against PERM delays
DOL seems to have stopped progressing on the Audit cases. Can litigation alleviate this problem and force them to atleast respond?

All things considered, in my view, a Mandamus is possible. But the chances of success are remote at least in DC circuit. Typically, in delay cases, courts do not interfere with the executive branch of the govt. At the very least, lawsuits draw attention to difficult issues. I think a petition to the govt. should be the first step. May be the worthy President can help. Although, speedy processing in this environment is certainly not a politically popular issue, but we have all followed the laws and the promise of the laws.

Can approved I-140 be revoked
My current employer has filed for my greencard. My I-140 was approved last year. I have 2 more years on my H-1B. I want to change employers and want to know whether: My current employer can revoke my I-140 for changing companies? Even if they do so, can I maintain my Priority Date?

The old employer can revoke I-140 and alarmingly, USCIS has recently taken the position that the PD will also be lost.

Switching Jobs after I-140 approval
I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12, 1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)? 2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

Can I file I-140 under EB2 if PERM is filed under EB3
My Perm is filed in October 2008 under EB3 and was audited. As per your current dates, guessing it might be approved in October 2010. 1. I would like to know if I can file I-140 under EB2 as I got my work experience eligible for EB2 category. 2. If I change employer before my PERM approval, will my priority date change? If so, to retain Oct'08 date, till what time, I can be with my employer? 3. Once I-140 is approved, can I change employer or stay for 6 months and then change employer so that my priority date will retain oct'08?

1. No. PERM application determines what your category is.
2. If your I-140 is not approved, you cannot carry your PD to a new employer.
3. Once approved, you can carry your PD, even if you leave earlier than six months. You do have to start your green card process all over again.

Priorty date
I have a priorty date(PD)of dec 07 filled under EB3.my I-140 got approved this march.I have 5 years experience as of 2010.can I file as EB2 with another employer as my current employer is not willing and still use the same PD? My first labor certification was in audit for 2 years before they cleared it.Do I have to go through all these steps again with new employer? Can you please explain the process if possible?

You do have to start the green card all over again, but your PD is yours to take with you to the new job.

Green card and priority dates
My father applied for a green card for me back in August 1993 and I was wondering when am I going to get my interview for my green card.

Green card waits are determined primarily by your priority date and the available visa dates. It is a queue. See the Visa Bulletin to know where your dates are. http://www.immigration.com/visa-bulletin

If one has an approved I-140
If one has an approved I-140, does he/she to move to a similar job/position/field to save the PD?

No, the job does not have to be similar. The green card has to be done again, but the PD can be ported to any job and category (EB1, EB2, EB3).

Priority Date For Indians
I have LC approved and 1-140 approved last year April. How do I know when I can file I-485? Is USCIS going to let my employer know about it? Also what is the priority date for Indians who are current?

USCIS does not inform. You should keep track of the priority dates. See the Visa Bulletin each month: http://www.immigration.com/visa-bulletin

Reentry permit process
My family and I are about to leave our country and go to the U.S. for our green card and such this end of November, but I have to go back to our country since I want to finish my education there before permanently staying in the U.S. (I only have one year left before graduating in our university) So my question is, how long does it take for a re-entry permit take?

You have two choices: wait after applying for reentry permit to get called for biometrics (you can request expedite base upon your circumstances); OR, apply for reentry permit and leave USA. Come back for biometrics. DO SPEAK with a lawyer to understand the implications.

Reentry application and biometrics
I just sent my I-131 application (for reentry permit) via overnight delivery, but turns out that I need to briefly go abroad starting this Friday for a work emergency. The official Notice of Action (I-797c) would probably arrive at my house while I am still overseas. My question is, will the application be denied if I leave the country before receiving the Notice of Action? (I'm afraid that USCIS would assume that I've abandoned the application by leaving the country.) I should be back in the USA for the biometric appointment.

As I recall, as long as the application has been physically received by USCIS, your departure does not cause abandonment. So, you should not have to worry. But you will need to be back for biometrics associated with the I-131.

Reentry permit is it recommended?
My spouse and I am legal permanent resident here in the US for more than 3 years now. We are planning to travel back to India in early December this year and my wife tentatively plans to stay back in India for close to 3-8 months. I am planning to return back after 3 months. In such situation, is it advisable to file re-entry permit (I-131) for her. Also should I get an attorney if I have to file or can I do it on my own?

If you are not abandoning your permanent residence in USA (keeping your home, job, etc.), I see no need for a reentry permit for a three-month trip. She should apply and through counsel.

Reentry permit is not a guarantee
I acquired my green card in January 20, 2010 with an expiry date of 2/23/20. I came back to the Philippines on February 2011. I want to go back to the US next year around March. Do I have a problem?

Generally speaking, a reentry permit is not a guarantee. It is merely an official declaration of your intention not to abandon your green card. Normally, the govt. does not question it. But if there are facts that make them suspect that you either never established or never intend to establish permanent residence in USA, they can take you to immigration court to take away your green card.

GC and Company Involvement
I received my GC in Aug 2008. My company is willing to send me to India office. Does the company need to file for a N470 or can I file for it? Do I need to be employed my US operations or I can be on the parole of India operations?

Company needs to give you a detailed letter and you can work for their India operations.

Possession of re-entry permit does not guarantee readmission?
I came here June 2008 then got my green card on November 2010 and I am planning to go back to my country and will be staying there for 1 year and 11 months.(just enough for the permits 2 year limitation). But some parts of this article still bugs me, "Possession of a re-entry permit does not guarantee the alien’s readmission to the U.S." so on what reason and circumstances should this happen?

Good point. This is a widely misunderstood provision of law. Reentry permit is merely your official assertion: "I intend to keep my permanent residence." Usually, the govt. does not question this intention during the life of the RP. But if they want to make an issue of it, they can.

Working outside USA
Is it possible for me to work outside the US (for the same company that I work for now) while on green card? My company has an office in India, and I have to travel to India for family reasons. I was planning to work in India for some time, and then come back in about a year and half and apply for citizenship. I have lived in the US for about 3 years on my green card now.

It is possible. Look into both I-131and N-470 filing through a lawyer.

Reentry Permit and N-470
I got my GC on March 2006 and same time I got my Reentry Permit too. I was out of States within 2 years that I worked with US Forces Yokosuka Japan for Master Labor Contractor in less than 2 years. Is this form N-470 brand new rules?

Form N-470 has existed for a long, long time. This is not a new form or rule.

Reentering the US
I obtained my green card in 2004. I left US without obtaining a re-entry permit on July 2009 as I was out of job and found a job in India. Is it possible for me to get a re-entry permit to US? My wife is a US citizen, still working in US.

Unless you have an exceptional explanation for your year outside USA, you should just surrender your green card at the consulate and reapply. Reentry permit is not possible in your situation.

Eligibility for N-470
In a month I will have lived in the US for one year as PR. My company is sending me to do some work for them overseas. 1. Do I have to eligible for naturalization FIRST before I file N-470? Or is this just for any LP who have lived in the US for an uninterrupted year? 2. Can I file it while I am overseas? 3. Can I file when I come back having lived outside the US for less than a Year? 4. Can I file the application and leave BEFORE I hear back from USCIS? 5. What should my employer write in the supporting documents? 6. What makes my company an American corporation/firm?

1. No, you do not have to be eligible for naturalization.
2. No, you have to file while in USA.
3. No.
4. Yes.


5 and 6 require a lawyer to look over your company's details.

Can my wife use the N-470?
I'm a U.S. citizen working overseas with the U.N. Can my wife (GC holder) use the N-470 to preserve her residency while staying overseas with me?

Yes, she can, as long as she meets the other requirements of N-470.

Reentry permit time frame
What is time frame to return to the U.S?

A reentry permit gives you the permission to stay outside USA for up to two years at one time.

Re-entry permit
If you have a valid LPR and you went and stayed over 2 years in the philippines and you want to come back here. If you don't have a re-entry permit how can you get a re-entry permit?

Reentry permit can be obtained only by people who have a valid green card. Your only option (other than filing for a green card again) seems to be to ask the US Consulate for a Returning Resident Permit if you can show them a genuine reason for your absence. Note that this would be a difficult application.

Entering US with Valid Reentry Permit with Over two yeas absence
If LPR has Valid Reentry permit can he/she EASILY reenter US, after absence of OVER two Years. Since it was processed late after application reentry permit is still valid for over two years of absence. Do they ask lot of questions at the port of entry since they have stayed above two years? or will they be allowed easily to reenter.

If LPR has exceeded the time permitted by Reentry Permit, they have lost their green card. If they have a good explanation for the absence, they can try to apply a returning resident permit through the consulate.

Reentry permits and citizenship application
My husband is a LPR (since 1993) interested in applying for naturalization. He was granted a reentry permit and used it to enter the country nearly 2 years ago. How long does he have to wait to apply for naturalization?

If he was out of USA for more than one year at any one time, the reentry permit will allow him to file after 4 years and 1 day from re-establishing domicile in USA.

Reentry Permit
After getting the green card, can I get a re entry permit for two years more than one times for my self and my family, if I am working out of US for United Nations.

Where there is a good enough reason, reentry permits may be granted more than once.

Reentry permit
My husband is a US citizen and was assigned in kuwait,, so we decided to stay in the philippines while his working there for 1yr. Im only a greencard holder and we are in philippines right now for 2 months and planning to go back states to apply re entry visa. My question is is it possible to apply re entry visa in states and come back in the philippines while its on process or i have to wait till i get the visa? Do you think they will approve my request?

Reentry permits are granted where there is a genuine need for you to be outside USA for a limited period of time and you have no intention of abandoning your permanent residence. Since this is an important and complex issue, you should consult a lawyer. Once you have done the biometrics for the reentry permit, you can leave while the application is in process. But keep in mind the risk of a denial if you have left. So, do speak with a lawyer.

My mother got her green card
My mother got her green card in dec08. She left for Asia in March08 and plans to return in Nov08. Since it will be 8 months that she will be out of USA, does she need re-entry permit?

There is some error in your facts. It appears she left in March 2009 (NOT 2008). You cannot file a reentry permit while she is outside USA. If she is outside USA for more than one year, the GC is deemed abandoned. If it is out more than 6 months, but less than 1 year, she can be asked to demonstrate that her permanent home is in USA.

Is it possible to apply for reentry permit with the SSN
I am DV 2010 actually working in a gulf country and I m not expecting to get beter situation in the USA with the actual recesion. My plan is to go t0 united states for a month to activate my green card and my wife's as well. In the same time I would like to apply for a reentry permit. I have few questions and I will be very gratefull if you could answer to me. 1-Is it possible to apply for rentry permit before receiving the green card? 2-If not is it possible to apply only with the ssn? 3-Do I have to apply for my son who is only two years old? 4-How long does it take to finish with biometrics

I have no clue about any special issues for DV folks. But the general law of reentry permit is this. If you have received approval of green card and entered USA, you can apply. USCIS can expedite biometrics if you have a good reason.

Reentry permit and DV 2010 visa
I got DV 2010 visa, but I am currently still studying in foreign university till September 2010. I decided to come here for 2 weeks, leaving school for a while to process the green card. Would I be able to visit US, just to taking care of the issue and request a reentry permit at the same time, so that I could enter US permanently after I graduate?

This appears to be a classical case where a reentry permit is a good choice. There is an event (graduation) that is keeping you out for a certain length of time. I do not practice in DV area so I have no clue if there is something you need to worry about in that respect. You will of course have to be in USA to apply for a reentry permit and biometrics.

N-470 filing after an absence of one year
I have a GC since Oct 04, I got transferred out of my US branch to India office in Feb 07 and took a reenetry permit. I entered US with GC + reentry permit in May 09 and came back to India in Jun 09. Do I still have a chance to file N-470 now under "Necessary to protect prop rights of an American firm engaged in Foreign Trade", now that it's been it hasn't been one year, since I last left US under GC category? If you are absent from US from one year post GC, does it disqualify you forever for applying N-470? What if I go stay in the US for 1 year?

From what I recall (read the instructions on the Form) you could file N-470 only if you stayed in USA for one year without any international travel. I see no reason why you cannot do so now.

Two Year Re Entry Permit For Green Card Holders
Can an LPR(GREEN CARD HOLDER) apply for a two year re-entry permit from any state in the U S A?. What will be the time taken for biometric application. Will it vary from state to state?

You can apply from anywhere (the forms are processed centrally) and the times should be the same. It takes a few weeks for the biometric unless you can demonstrate some emergent reason.

Spousal abuse
What can happen to the US citizen if a spousal abuse case is filed by an illegal immigrant?

The abusing spouse can go to prison.

Visa Categories Not Using the DS-160
Are there any visa categories for which I should not fill out the DS-160?

Yes. If you are applying for a visa in any of the categories below, you should complete the DS-156, not the DS-160. You must also complete the DS-156K if you are applying for a K-1 visa.  If required, you should also complete the DS-157 and DS-158.


Visa Symbol                          Category


K-1                                  Fiancé(e) of a U.S. Citizen


K-2                                  Child of a K-1


K-3                                  Spouse of a U.S. Citizen


K-4                                  Child of a K-3


 

Treaty Trader or Treaty Investor, E Visa Applicants
I am applying for a Treaty Trader/Treaty Investor, E Visa. Do I need to fill out the DS-160 and the DS-156E?

It depends. If you are a Treaty Investor (E-2) applicant, you need only complete the DS-160. If you are a Treaty Trader (E-1) or an Executive/Manager/Essential Employee (E-1 or E-2), you must complete the DS-160, and you or your employer must complete the paper DS-156E form.

Alter Family or Group Applications
If I use the option on the "Thank You" page to create a family or group application, can I modify the data automatically populated by the system?

Yes. If one of the dependents has a different surname or nationality, for example, you can alter that data before submitting the application.

Family or Group Applications
I am traveling with my family or as part of a group. Can I create a family or group application?

Yes. On the “Thank You” page you will see an option to create a family or group application. When you select this option, certain information from your application, such as destination, will automatically be imported to and displayed on a new application. Please note that if you use this option you must create an individual application for each family member or for each individual within the group.

Reprint the confirmation page
I submitted my online DS-160 application, but lost my confirmation page. Can I print a new one?

Yes, you can reprint the confirmation page of an application that has already been submitted. In order to do so, go into the Consular Electronic Application Center website and select the Embassy or Consulate at which you are applying. Hit “Option C-Retrieve Application” on the Getting Started page and enter your application ID number. From there you will be able to view and print your confirmation page.

DS-160 Confirmation Page
Should I bring my entire application or just the confirmation page with me to the interview?

You are not required to bring your entire application. For your interview, you are required to bring your confirmation page with your application ID number on it so we can retrieve your DS-160. You must bring the confirmation page with you during all phases of the application process. Without the confirmation page, we may not be able to process your visa case.

Scheduling a new appointment after completing DS-160
After I have corrected or completed my DS-160 application, do I need to schedule a new appointment or return to the U.S. Embassy or Consulate?

Contact the U.S. Embassy or Consulate where you applied for specific instructions.

Correcting Answers on a Submitted DS-160
The U.S. Embassy or Consulate where I went for my visa interview denied my application because my DS-160 contained errors or was incomplete. What does this mean and what do I need to do next?

DS-160 applications submitted before April 1, 2010 cannot be reopened, and therefore, you must complete and submit a new DS-160.The Embassy or Consulate should reopen your DS-160 submitted after April 1, 2010 if your application is denied for this reason and ask you to correct it, as explained below:
DS-160 applications submitted on or after November 1, 2010: Enter your application ID number and answer additional questions as prompted to access and correct your application. 
DS-160 applications submitted on or after April 1, 2010, but before November 1, 2010: Enter your barcode or confirmation number into the Application ID field and answer additional questions as prompted to access and correct your application.

DS-160 confirmation page and uploading photo
The confirmation page has an "X" in the box where the photo should be. What does that mean?

That means that the photo upload failed. Therefore, you should submit one printed photograph meeting our requirements, along with the online DS-160 confirmation page, to the U.S. Embassy or Consulate at which you plan to apply for your visa. Please contact the U.S. Embassy or Consulate where you are applying for specific instructions on how to do this. See the print photo format found in the Nonimmigrant Photograph Requirements for more information. If the confirmation page includes a photo image, then the photo upload function was successful and no separate print photograph is required.

Uploading a Photo to your DS-160
I understand that I can upload a photo with my application. How do I get a digital photo that will successfully upload to my application?

Please refer to the Guidelines for Photographs - for Online Visa Applications for detailed guidance.

Reusing the DS-160 on your computer
I apply for U.S. visas often. Can I reuse the DS-160?

Yes. To do so, you must save your DS-160 to your computer’s hard drive or a disk. You can then access it to update and resubmit your application.

Data changes on DS-160
Why did the edits I made from the review page "edit" link not save?

In order for data changes made from the review page links to save, you must use the buttons at the bottom of each page to navigate, instead of the browser's back/forward buttons or the buttons along the side of the screen.

Application “times out,” or error received while saving DS-160
What if I lose my internet connection, the application “times out,” or I receive an error? Will my application be lost?

All information is automatically saved when each page is completed, so your application will not be lost. You will need to enter the application ID number, and answer other questions as prompted, to retrieve your application. Once your application has been retrieved, it will begin at the last page you completed. You will be able to edit previous pages, if needed.

Saving DS-160 application on a computer
How do I save my DS-160 application to my computer hard drive or a disk?

Saving to a hard drive or disk will allow you to be able to access your application after 30 days. To permanently save your application to your computer hard drive or a disk, select the “Save Application to File” button. Then, click the “Save” button on the File Download window. Identify a place on your computer to save the application file, browse to that location, and click the “Save” button on the “Save As” window. The system will download your application to the specified location. Once the download is complete, you can click “Close” to return to the application. You can then use the “Import Application Date” option on the “Getting Started” page to upload the data that you have already entered.

Accessing partially completed DS-160 application
Can I access a partially completed DS-160 application I started before November 1, 2010, but did not submit?

Yes, but only for 30 days. You must enter your barcode or confirmation number into the Application ID field, and provide other information as prompted. To access your application after 30 days, you must save it to your computer hard drive or a disk.


Applications started before April 1, 2010, but not submitted, cannot be accessed.

Saving your DS-160 application
How can I save my application? Can I stop in the middle of the application and return to it later?

As of November 1, 2010, you can save your application, or return to a partially completed application. When you begin a new DS-160, you will be issued a unique application identification (ID) number, after selecting and answering a security question. Once you have your application ID number and have selected and answered a security question, you may exit the DS-160 application and return to it later. You must have your application ID to return to your application. To save your DS-160 to the Consular Electronic Application Center website, click the “Next” button at the bottom of each page you complete. You have 30 days to return to a partially completed application.

DS-160 and third party signature
Can a third party complete the form on my behalf? Who is exempt from signing the form?

If an applicant is illiterate or unable to complete the application, the applicant must be assisted by a third party. The third party must be identified on the “Sign and Submit” page of the application. While the third party can assist the applicant in completing the application, he or she must instruct the applicant on how to endorse the application on his or her own behalf by clicking the “Sign Application” button.


If the applicant is under the age of 16 or physically incapable of completing an application, the applicant’s parents or guardian may complete and click the “Sign Application” button on his or her behalf. If the applicant has no parent or legal guardian, then the application may be completed by any person having legal custody of, or a legitimate interest in, the applicant.

DS-160 form Signature
How do I sign the DS-160 form?

You electronically sign your DS-160 by clicking the “Sign Application” button at the end of the form. Failure to sign may result in termination of the application. Your electronic signature certifies that you have read and understood the questions in the application and that your answers are true and correct to the best of your knowledge and belief. The submission of an application containing any false or misleading statements may result in the permanent refusal of a visa or denial of entry into the United States. All declarations made in the application are unsworn declarations made under penalty of perjury.


Unless you are exempted from appearing in person, your fingerprints will be electronically scanned on the day of your interview. By providing your fingerprints, you will again certify that that you have answered all questions on the DS-160 truthfully and to the best of your knowledge, and that you will tell the truth during your visa interview. You will be directed to read the following statement prior to having your fingerprints scanned:


“By submitting my fingerprint, I am certifying under penalty of perjury that I have read and understood the questions in my visa application and that all statements that appear in my visa application have been made by me and are true and complete to the best of my knowledge and belief.


Furthermore, I certify under penalty of perjury that I will tell the truth during my interview and that all statements made by me during my interview will be complete to the best of my ability.”

Principal applicant while completing DS-160
The form asks if I am the principal applicant. What is a principal applicant?

If you, or your family, are applying for B-1, B-2, or B1/B2 visas, you are all considered principal applicants, and each of you should select that box.


Applicants in the E, F, H, I, J, L, M, O, P, or R visa categories may have a principal applicant as well as what is called derivative applicants. Derivative applicants are the spouse and/or children under the age of 21 of a person applying for an employment type (E, H, I, L, O, P, R), exchange (J), or student (F, M) visa, as listed above. These spouse and child (derivative) applicants should answer “no” to this question and provide the requested information for the principal applicant (the spouse or parent).

Providing the name of a contact or organization while completing DS-160
The form asks that I provide the name of a contact or organization and a phone number, but I am not visiting anyone in the United States.

If you do not know anyone personally in the United States, but you are traveling here to visit a particular store, company, or organization, you may provide the name of the store, company, or organization you intend to visit. Otherwise, you may select “Does not apply.”

Passport Book Number while completing DS-160
The form asks for my Passport Book Number, but I am not sure if I have one.

While all passports contain passport numbers, not all passports contain book numbers, so this question will only apply to citizens from some countries. If your country of citizenship or nationality does not issue passports with book numbers, you should select “Does not apply.” You may check with your country’s passport issuing office to verify whether or not your passport has a book number, separate from the passport number.

Home phone number while completing DS-160
The form asks for my home phone number, but I do not have one.

You should provide at least one contact phone number, so that the U.S. Embassy or Consulate can contact you by phone, if necessary. If you have provided a mobile or cell phone number, you may enter “Does not apply” for home phone number.

Social Security number or a taxpayer identification number while completing DS-160
What do I enter for U.S. Social Security Number and/or U.S. Taxpayer ID Number?

Applicants, who have worked in the United States, as well as others, will have Social Security numbers or taxpayer identification numbers. If you do not have a Social Security number or a taxpayer identification number, select “Does not apply”.

National Identification Number and DS-160
I do not have a National Identification Number. How should I answer this question?

If you are a citizen of a country that does not issue national identification numbers, select “Does not apply.”

Selecting U.S. Embassy or Consulate while completing DS-160
What happens to my DS-160 if I select a U.S. Embassy or Consulate where I will be applying for my visa, but end up making an interview appointment instead at another U.S. Embassy or Consulate?

The Embassy or Consulate at which you actually apply should be able to access your form using the barcode on your DS-160 confirmation page, which you must bring to the visa interview. For example, a business traveler intends to apply for his visa at the U.S. Embassy in City X, so he selects City X as the location where he will submit his application when he completes his DS-160. He then has an urgent reason to travel to City Y on business. Because there is a U.S. Consulate in City Y, he schedules an appointment for a visa interview there, using the barcode from his completed DS-160 application for appointment scheduling. The U.S. Consulate in City Y is able to accept his DS-160 even though it lists the U.S. Embassy in City X as the location where he originally intended to submit his application.

DS-160 and additional forms
When I apply for a nonimmigrant visa using the online DS-160, are additional forms required?

No. The online DS-160 application replaced the DS-156, DS-157, DS-158, and DS-3032, which are no longer necessary. NOTE: In addition to the DS-160, Treaty Trader/Treaty Investor visa applicants also must complete an additional form (see the Treaty Trader/Treaty Investor, E Visa Applicants section below for more information). Only applicants for K, N, S, T, or U visas should use the DS-156 application form (see the Visa Categories Not Using the DS-160 section below for more information).

Mandatory questions on the DS-160
Are all questions on the DS-160 mandatory?

Most questions are mandatory and must be answered in the spaces provided. You may leave spaces blank when the questions are marked “optional.” You may answer a question with “Does Not Apply,” when that question does not apply to you; however, all other questions must be answered. The system will not allow you to submit an application with any mandatory questions left unanswered. When a mandatory question has not been completed, an error message will be displayed and you will be required to answer the question before continuing with the application. If you do not answer questions that apply to your circumstances and/or purpose of travel, your form may be rejected.

Completing the DS-160
Can my answers be in my native language?

No. All answers must be in English, using English characters only, except when you are asked to provide your full name in your native alphabet. Applications submitted in any language other than English will be denied, and you may be required to submit a new application. While you must answer all questions in English, translations of questions are available in many languages from the drop-down menu in the right upper corner of the application. These translations should assist you in completing the form in English.

Accessing the DS-160
Where can I find the DS-160?

Access the DS-160, by clicking: Consular Electronic Application Center website. We recommend that you use Internet Explorer or Firefox browsers to access the DS-160.

OPT - H4 - H1
I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions: 1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4? 2) How difficult it is for an employer file for H1 from H1 and what is the process? 3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


 

Two-year home residency requirement
Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

Nonimmigrant waiver
I recently abandoned the US for Canada. I had been living in the US illegally for 15 years (since the age of 11). I got an opportunity to conduct biological research at the University of Alberta, AB, and Canada. I'm fully funded to live in Canada by the institution. Anyway, I would like to return to the US in 2013 for my 10 year high school reunion. I would like to know how likely I would be to get a tourist visa given my recent history. I have no intentions of staying in the US, just visiting. Am I automatically banned?

Look into a 212(d)(3) waiver, which should allow you an entry. Ask CBP at the border how much time they need to process the waiver (usually a few weeks).

L-2 visa and EAD processing
I am in USA on L2 visa and I intend to start interviewing/ working immediately. For the EAD application, do I have to apply it before I interview or does the employer apply on my behalf once they make an offer? What are the processing times for EAD? I still haven't got my SSN but have scheduled the appointment for SSN. Should I apply for EAD after the SSN is approved or soon after SSN application?

You should apply (not the employer) for the EAD ASAP. Processing times are on USCIS web site.

L-2 visa application for spouse
I’m applying L2 for my wife. She is working in India and she is coming here on vacation. Do I need to mention her working details while filling L2? Or shall I mention saying that she is not working?

 Tell the truth. I see no reason why you need to worry. An L-2 is permission, not an obligation. She can come and leave as she pleases.

Multiple entries for UK Citizens
I am a US citizen - my partner is a citizen of the UK (we are not married). He is a consultant in the international development field so travels frequently, but often visits me in the US when he is not working. He has been to the US for visits of 2-3 weeks duration about 6 times in the last year. The past few times, immigration has hassled him about the number of visits he is making. We are concerned that one of these times he may be refused entry - is this likely?

He can be denied entry. UK citizens have the same options to work in USA as the rest of the world; typically H-1, L-1, E-1 and E-2 visas.

I-94 Extension Time
I have a L1-A VISA through company Blanket. I have visa up to 2013. But my blanket expires in 2011-dec. I got I-94 up to Dec-2011. I have already applied for I-94 extension. How long will it take?

It can take a few months. You can apply for premium processing even when the case is filed and pending.

L-1 Blanket petition
I have an L-1 Blanket petition and I traveled to US for one week and used that VISA. Part of my job, I need to work in one of our offices outside USA for a year, but will just have to go to US for one week every 2 months. Will that affect my visa since I would not be fulltime working in US? I have M entries in my L-1.

As long as you work full time and on the job described in your L-1B while you are INSIDE USA, it does not matter how long you stay outside USA.

Canadian with J-2 visa
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

Visa Stamp
I am planning to go home (outside US) for a month vacation this coming Dec. I have a visa stamp from my PREVIOUS employer that will expire on March 15, 2012. 1. Do I still need to go to the US embassy in my home country (where I am going for a vacation) since I have a new employer? 2. Could I use the visa stamp from my previous employer and present it to my point of entry? 3. Let's say I did not move to another employer, is there a time line when I can still use the visa stamp when I leave&go back to US(like for example, mine is nearing the expiration)?

1. In your situation, the same visa stamp is good for any employer as long as you have not been out of status even for a day while in USA.
2. Yes.
3. Visa can be used as long as it is valid.

J-2 holders and work authorization
Can I use my J-2 visa for internship and work after completion of FPGEE?

J-2 holders can get work authorization and work as per the licensing requirements of their profession.

Out of F-1 visa status
I just found out a couple of days back by my international advisor that I was out of status for two years now for taking classes in a community and transferring credits and it made me a part time student..He suggested I left the country after the semester and come back with the new I-20 and letter of recommendation he gives me. And I also I have been married to a US citizen for 2 months. Is it safe to go out of the country?

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

J-2 to TN
I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

Stopping at USA
I am working in a Federal Gov't Agency, and in the near future leaving for Frankfurt, Germany, for a conference, and with a plan in mind to fly to USA via Germany after my conference is completed. My question, here, is that whether I can use my US visa, which is valid up to Apr 06/2012, whereas the passport has already expired by last May 23/2011, and due to be replaced by a new one.

You will need an unexpired passport to enter USA. People in your situation carry both the new and the old passports.

Visa for family to visit brother
I have a brother here in US who is diagnosed with cancer. I would like my mom and brother who live in India to come and visit him. What type of visa should they apply for in India and how long will it take? On which visa can they come as soon as possible.

Tourist visa seems to be appropriate. Times vary by consulate and are usually very short -- often visa is issued the same day an application is made. You can also get an appointment for emergent reasons.

Working Visa
My fiance is from Pakistan, currently working in Kenya.He has done IT and Web-design. He is willing to work in the United States, Is it possible to get the visa?

It is possible if he has the relevant degrees and has a job in his field in USA. The most commonly used visa for professional workers is an H-1B visa.

H-4 Visa and Status Validity
My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012 My questions : 1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ? 2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

Pharmacist visa for FPGEE
I have plans of taking the FOREIGN PHARMACY EQUIVALENCY EXAM (FPGEE), I am from the Philippines what kind of visa should I apply for?

You will apply for B visa (B-1/B-2).

B-2 visa
I'm a non-married Iranian citizen who’s my first-degree family members are US citizens, currently residing in USA. During last several years I've been rejected every time I requested for a US visa (both F and J). Now, I am qualified to become a Canadian PR through the skilled-worker program. The visa is issued and I will be soon landing in Canada. I was wondering if my chances for getting a B-2 visa to visit my family will be any better once I'm a registered Canadian resident. Is it wise to ask for a visa once I get my PR card?

I think if you wait till you have a steady job and roots in Canada, and then apply to visit USA, you should have a better chance.

H1B interview travel cost reimbursement
I am currently on H-1 and interviewing with another company. The interview involved air travel within the US and staying at a hotel. Is anything wrong with my prospective employer reimbursing the air travel and hotel costs and also providing reasonable allowance (for covering food) for the days of my stay? Would receiving a cost reimbursement check from the prospective employer invalidate and/or interfere with my current H1 visa status?

Interesting issue. I do not believe there is any law covering this situation, but in my view out of pocket expense reimbursement including food is acceptable and is not a violation of H-1 status.

J-1 Waiver Pending
I applied for my waiver in Aug 09 from the US and sent completed DS 3035 to the Waiver Review Div. in St. Louis, MO and Indian Embassy in DC. I returned to India in Sept 09.I have not had any updates since then. I would like to know (1) If I have missed any steps and if that is the reason why my waiver status remains unchanged (2) If I HAVE TO and can still apply for the NORI and obtain my waiver since I already have my case number and barcode (3) If I apply for the NORI from India, where do I send the Statement and Affidavit for attestation? (4)Are there any additional steps for waiver from India?

Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.

J-2 visa and I-275
My spouse is J-1 and is in US and I want to apply for J-2 to enter US. But 10years back I was denied entry in US on my B1/B2 Visa with I-275 executed stamp on my passport because in my last stay in US I attended college for a semester on B1/B2 visa. So I need to ask are there chances that I will get a J-2 visa to join my spouse?

It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.

H1-B to F-1
I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?

If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

H1 Renewal Denial/I 94 expired
My H1 visa and I94 expired on 30th sept’10; we filed for a renewal but got an RFE in about 10 days for client letter. Replied to the RFE with client letter on October 29th, got visa denial on November 10th as client letter had project end date of 11/5. Current lawyer says I am ok to stay here 180 days from visa expiry, currently looking for new project with client letter to file for new H1 B visa and then go to India to get stamping and reenter. Am I ok to be here in the country or should I leave immediately? Will stamping and reentry be a problem? Is filing with the same company a good idea?

In my view that is bad legal advice. You are deportable the day your H-1 is denied. I advise our clients to make plans for leaving ASAP.

L-1 visa from an affiliate
I worked as Dept. Director at a Spanish Hotel from Jan 08-Jul 09. My employment was in the Hotel full-time, but was hired/paid through a consulting firm they employed (and still employ) to manage the operations of that department. I have now been offered a position (Dec 2010) in a similar Managerial/Director job within the Hotel's parent company in the USA but I have not got a US work permit, (I am Spanish). Can I qualify for the L1-blanket visa of the Company, based on my history with their consultant? Do I need to be employed by Hotel in Spain again prior to applying for the L1 visa?

Interesting situation. Not having researched this issue, I am guessing, the only way you can qualify for the L-1 is if you can establish that the hotel in Spain was your "true" employer in that they controlled you, even though your salary was paid by the consulting company.

Can I petition my Fiancé
How can I bring my fiancé to United States, can I apply for him by green card? I am not still a citizen.

There is no fiance visa for non-citizens, but look into the waiting times for spouses of green card holders. Those times are pretty good right now.

Wife work permit
My company is giving me option of taking a L1 visa or H1B. My wife recently completed a 3 year Bachelors degree in Computer application from India. I want to make sure that she can work once we immigrate to US. Can you suggest what approach should we take? 1) Get myself H1 and then she does a MS from US. 2) Get a L1 visa and she can find a job in US with her 3 year degree.

Personally, I prefer the L-2 option for her. She can work AND go to school. More choices.

B-2 to B-1
I am an IT professional who has come to the US for medical treatment on a B2. I am getting better. Since I like to constantly upgrade my skills, I found some training programs that I could attend as they are more frequent in the US than in Canada. Can I attend them on a B2? I mean I have a B1/B2 visa, but the officer marked it as B2 on the stamp on my passport at the POE. Second - I also have got an offer for a one day lecture to some technology professionals for which I might get paid. How would the folks know I worked for a day if while exiting the country there is no checking?

I believe you can take training on B-2 as long as your main purpose of stay in USA is is still medical treatment. Getting paid may be a bad idea.

Parents B-2 Visa
My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches: a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems. b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.

I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

My wife filed for Skilled Worker
My wife filed for Skilled worker (EB-3(A)(i)). Can I apply for NIV to visit her?

There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.

F-1 reinstatement
I am a F-1 student from India. I was declared out of status by the college as I dropped below 12 credit hours this semester. I had a sprain in my ankle, but i did not visited any doctor for such small thing, and as a result i don't have any medical proof to back my story in reinstatement. I am confused weather this reason (ankle sprain) will be sufficient for my reinstatement application to be accepted, or weather i should try re-entry with a new I-20; and if re-entry is a better option, from which country? (my home country(India) or any other country such as Canada, or Mexico).

As far as I know, reinstatement requires exceptional circumstances. A sprain may not be it.

L1B - resignation in US
I am currently on L1B in US. Could you please let me know if it is legal to resign on L1B while am in US or is it required by law that I need to return to my home country and resign? Am on US payroll and I believe am governed by US labour laws and they will supersede the Indian laws even if I signed a document mentioning that I will return to India. Could you please confirm?

What you are asking me has nothing to do with US immigration laws. This is a matter for an employment lawyer in the state where you are working. Under US immigration laws, you can resign in USA any time.

Lost old EAD card for another OPT application
I am currently a PhD student and preparing for application for OPT. Previously in 2004 upon earning BS degree, I got OPT and worked for a summer. In preparation for a new OPT, I realized that I need to provide copy of front and back of the previous EAD card. However, I cannot find the card. I just found copy of I-765, I-94, and I-20 for the previous OPT.If I submit without copy of the previous EAD card, will I be likely to be denied for the new OPT? Also, what is the safest way to deal with this situation.

First, discuss the possible solutions with your international students office. Second, call USCIS customer service and ask for solutions. Third, provide whatever you have with a full explanation to USCIS when filing the new OPT.

Student visa
I have student visa and want to come to the US earlier than that 30 days allowed period of time.Probably one month earlier.Can I enter on visa waiver and before school starts re-enter the US by going to mexico or canada to activate the student visa? (which i was told i need to do).if i do so,do i need to buy one way or round trip ticket since i do not need to go nack to europe to re enter the US and how do i explain it to the immigration officer that i only have one way ticket? a while ago i learned i need to obtain change of classification and fill form I539 which takes months.is that so?

There are several issues here and the outcome is uncertain, so I would advise against it. Your idea of entering on visa waiver and then later "activating" the F-1 through reentry should work, but I am concerned about how CBP will view your entry without a return ticket. Of course, you must always tell the truth and the truth appears to favor you, but I have no clue how a CBP officer would view this entry on Visa Waiver.

Advise needed for replying visa
I am a traditional artist, visited US in 2005 with P3 visa and later I have visited with 10 years B-1/B-2 visa two more times. And on fourth time the immigration officer, deported me from NY airport, saying that you have not paid tax $6000- of my sold paintings in the US. and if you agree to volunteerily withdraw applicatition then we will allow you to come back with right working visa.And the problem is my wife is in US and has applied for asylum, so do you recommend me to reapply for working visa or wait untill my wife gets the green card and I am deported on may 2009.

If you withdrew your application, you were not deported. You could apply for a work visa.

Where to file complain?
Some of my friends filed H1B through a Consulting company. They gave 1.5-2K USD each. All of the cases were rejected for some unknown reason. Now, that consulting company is not giving money back. Where should they file complain? The consulting company's mother company is listed in Bombay stock exchange.

If the company is in USA, you will file complaints with ICE and Wage and Hour Division of Department of Labor. If in India, I guess they will file a police complaint.

H1B Restamping
My visa is valid till Sept,2011. I recently changed employers;have received my approved I-797 from the new employer.Iam planning to travel to India in May,2010. Do I need to go for re-stamping? Shouldn't the employer name on my visa and my I-797 be the same? If not,then what all documents should I be carrying with me to show to the Immi officer at the Port of Entry? Should the employer name on the visa match the employer name in my I-797? My visa is valid till Sept,2011. I recently changed jobs and my I-797 from the new employer has the new employer's name;however my visa has the old employers name.

Generally speaking, if you have never been out of status, you can travel out of USA and back without changing the visa stamp on an unexpired H-1 visa, even though you have changed employers through a valid H-1 transfer while you were in USA.

Travel during H4 processing
I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

If you travel during change of status, the request for COS is deemed to be abandoned.

L1B to H1
I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.

You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

E3 visa
My E3 visa was applied and approved through an employer. I never joined the company or got paid. Are there any legal implications to the company as a result of me not taking employment with the company?

The employer should withdraw your application.

B-2 Visa Multiple destination
My grandmother has a B2 visa to visit Guam. After her two week stay, she wants to visit her other daughter in California but she will have to go back to Philippines for a day because its cheaper to travel from Phil. to Cali. Can she still use the same B2 visa. When will she have to surrender her I-94? After the California trip?

As long as the visa is valid and permits multiple entries (not all visas do), I see no problem.

B2 Visa
I am US citizen trying to bring my friend from Pakistan to visit me in America , how hard is the process for him to visit, as we have never offical met in person, but are connected online. I hear you have to have proof that we actually have met, like pictures?. Is this hopeless? Would it be better for me to meet him out of the country?

Getting a B-2 visa for a single person tends to be very difficult. If you meet him once, you can get him here on a Fiance (K-1) visa. That is much better if you want to get married.

B1/B2 Category
I have already applied for the draw for the Diversity Lottery Visa for which I am eligible.If at all I dont get selected and want to make a B1/B2 application thereafter will I have to mention in the application form that I have been denied such a chance for lottery before and if I choose not to do so can the consulate people find out that this person has made such an application before.Please advise for the correct approach.

As far as I can think, you would have to reveal your DV application. Not having researched DV specifically, I can only say that generally, having applied for a green card makes getting a B visa much more difficult.

G-4 to H1B
1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B? 2. Can they apply for a GC after I have an H1B approval?

If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.

H1B- denial
I was approved for an H1B by USCIS There is a new I-160 form, electronic to the previous form. I want to be able to travel to my home country during this working period, but I have to go home to get it stamped. Could I still be denied the visa even though I obtained my H1B?

Grant of H-1 approval by USCIS is absolutely no guarantee that a visa will also be granted.

Having a board test on B1/B2
have a valid B1/B2 visa.I visited usa( 2 years ago, when I was a student) for tourism.Is it legal to use this visa to enter the usa to have a professional test (foreign pharmacy graduate equivalency examination)?. is there any problem to show this purpose to the officer at the port of entry (in airport)?

As far as I know, this should not be a problem if you are truthful about your intentions.

L1A visa and H-1
I am in USA on a L1A visa. If my H1B is approved, do I need to go to India to get my H1B visa stamped?

That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

L1A Extension processing time
I had applied for my L1A extension back in Novemeber 13 2009 and yet the status is showing Initial Review. I am little concerned that would it really take this much time?What is the experience of other, with similar situation. Are L1's getting extended easily.

L-1A extensions are very difficult unless you meet all the criteria.

B1 rejected because I had applied for Green Card
I was denied B1 because of lack of documents. On reality I have applied for Green Card as my sister is citizen of USA. How can I convince US officers that I will not abandon India and settle down in USA.

I do not know of any special proof that you can provide. This is purely a matter of consular discretion.

Quickest way to get a GC
I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

Visa for Mother in law
I am a U.S citizen but my husband is not yet. My mother in law has been battling cancer for a while and I would love for her to come here and get medical treatment and to just see her grandson. She is from El Salvador, is there any way for us to do that?

A B-1 visa is appropriate for medical treatment.

Business Visa
I sent an invitation to my business associate in India for supplying and installing equipments. The visa was rejected saying it is illegal to pay in US in USD. Actually, I am paying the company in India for supplying and installing equipments and not as a salary to the installer/project consultant.Now, I have asked him to reapply for the visa. What is the best way to present the case to the consulate office during interview?

If you make the details of the transaction clear to the consulate, I feel you should have a shot.

Return to America on a B-2 visa
I want to know how long I have to spend in my country before I can return back to America,I left there on october 27 and I have a B-2visa.

I cannot give you a hard and fast rule, but generally speaking, CBP wants you to spend more time outside than inside USA each year.

H1B Pending
I have 5 year M entry visa to visit US from India. I got a job offer and my employer is filing H1b for me in April 2010. My 6 month B1/B2 visa is over on June 4th 2010. (A)Can I continue to stay in US on pending H1b? (B) Should I apply for extension of B1/B2? Will this application for extension confuse or spoil my chance of getting H1b? (C)If I do the premium processing will I know the status of my visa before 4th of June?

You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.

F1 visa to business visa or H1/L1
Which visa is easy to apply. Is it business visa or H-1 visa?

If you qualify, H and L visas are certainly more secure than an F visa.

H-2B Visa
I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

H1 working in University (non profit organization)
My question is "what is the last date for applying academic H1" Is it april 1st or any time during the year.

For university and other quota exempt positions, you can apply for an H-1 any time.

Transfer to a startup company H-1
I currently have an H1-B status supported by a large enterprise company. This visa is valid for another 2 years. In the next 2 months I would like to transfer to a brand new startup company that will only have 1 American employee and myself. Do you have any recommendations I need to watch out for when moving to a start up company like this. I guess I'm wondering if the government is more suspicious for these smaller companies than the large coorporations. I'm also looking for immigration lawyer to help me with this.

These H-1 approvals tend to be more difficult. You are correct. Do not leave the old employer until and unless the new H-1 is approved.

H1 approval and stamping
I got H1 approval and they asked me to immediately go to home country for stamping. What is the best answer that I can give when they ask me about the gap where the status was illegal. My stamping is on March 9th 2010 in Chennai.

There are too many variable for me to be able to respond meaningfully. The general answer to your question is that the response must be the truth. Before you leave, make sure you are not subject to the 3/10 year bar from coming back because of unlawful presence. There is an entry on my blog on this issue.

H1 B question
Can an individual be granted H1-B status if they are doing an internship (unpaid) or any type of volunteer position? If not, can anyone tell me how an individual would go about getting anything resembling this type of visa for an internship?

H-1B is available only for paid positions. Generally speaking, unpaid internships could be undertaken on a B-1 visa. That would be at the discretion of the US consulate.

Renewing O-1 visa
My husband used to have visa O for 2 or 3 years, and we decide to come back to Mexico in 2001, now we want to come back to USA, could you renovate this visa or is easy apply for new different visa? He has a BA in Spanish Literature and I have BA in psychology, we have one eighteen and one 15 years old sons and 1 year old baby girl, and we live in Canada right now.

You will need to have the employer apply for a new O-1 petition with USCIS.

J1 overstayed by years, married to a greencard holder
I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

Need information
I entered USA on F1 visa with my married name. As i got divorced a week before flying to USA wasn't able to change the last name. Now i am graduating soon and wish to obtain certificate in my maiden name. So i got my last name changed in passport from Indian Consulate San Francisco. But in my new passport there is no visa. So what should i do? The consulate and my school says that whenever i go back home i need to get a new visa. So is that true? Will there be any problem in going back India for summer vacation and getting a visa again? Is it possible to get visa here?

Generally speaking, getting a new visa endorsement should not be a problem. You cannot get a visa within USA.

E3 to H4
I am in the US from Australia and just lost my job as an Engineer. I was on an E3. My wife has an H1B and is employed. Since E3 restrictions give about 10 days grace period, our immediate option is for me to go to an H4. Does anyone know how long this process usually takes if I am currently in the US and what I may have to do.

Just go to Canada or Mexico and get your H-4 stamping and come back. That should work.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Visa for parents and niece
I want my parents and my niece to visit me here in US. Can I apply for visa for all 3 of them together. My brother and sister in law are currently undergoing separation. Will there be any issues because of that?

I see no reason why they cannot all apply. Separation should not raise a problem as far as I can see. But consulates may want some additional paperwork for a minor to travel with grandparents.

F1 visa to H1-b
I just completed my undergraduate degree and my F1 status does not expire till May 2010. My OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim OPT application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.

Since the H-1 quota is over, OPT is your best option as far as I can tell.

Questions on AC21, EAD, losing job, etc.
1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.


2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).


3A. Correct. You are in authorized period of stay. That has been explained in my blog.


4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).


5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.



6A. No.


7A. No.


8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.


9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

Time Frame for Green Card
I am a college freshman student on an F-1 visa and am thinking about applying for green card, as I have also completed 2 years of HS in the US. Any idea how long the green card process may take and should I apply already for green card now in order to possibly get it by the time I graduate college?

The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.

How to apply for visitors visa?
My mother in law would like to visit me and her grand daughter and i would like to get her a visitor visa what do i need to get that and how do i get one?

She needs to contact the US consulate closest to where she lives. Normally, they will be able to tell her what she needs to bring and what the procedure is. This information should also be available on consular web site. Most consulates also respond to e-mail enquiries.

H1B extension for pending labor
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

H1 6th Yr - Labor Approved - NO I-140
My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

Information regarding pharmacist immigration
I need an information regarding the pharmacist immigration. I have cleared Fpgee and right now i am in usa on F-1 visa. How can i end up getting an internship?

You may want to ask in the forums http://forums.immigration.com about how to get an internship. We do process H-1 for Pharmacist Interns, but I do not know how you would get a job.

Travel during 90 days of OPT without Job
My OPT started on September 16th, 2009 and I don't have job or job offer yet. But I need to travel outside the USA for 1 week. I talked to the International Adviser of my University and she told me its fine to travel no problem. I don't still feel safe. Can anybody answer whether I will be allowed to enter or not? I have other documents.

This is what ICE says:
2.O.

Filling out a DS 160 Non-immigrant visa Form by mistake ...
My wife needs to transit through a US airport for not more than 5 hours in February 2010 in order to go back to her birth country. However, she filled out by mistake a DS-160 Non-immigrant visa to submit to the US consulate in Vancouver (Canada) because at the US consulate in Vancouver they require DS-160 Forms to be submitted to them. However, she decided to fill out a second form called DS-156 in order to apply to another US consulate in Canada (in Calgary) for the same US transit visa to get an earlier appointment there. What does she has to do now to correct this situation ?

Contact the consulate. If they have not already done so, they will correct the situation upon request.

How does one assist family in applying for B-2 (Visitors/Tourist) visa
Q1. How to Assist Family Members in Applying for B-2 (Visitors/Tourist) Visa? Q2. In filling out Form I-134 form (Affidavit of Support), If you look at the question No.1. It says are your Citizen...., or permanent resident of US. It has no column says are you H1B etc. What should I do here. Should I leave this column or do something else please guide me.

A1. There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often a friend or a family member (who is in the U.S.) of the applicant may be required by the consulate to provide Form I-134, Affidavit of Support.

Divers Licenses, while H-1 extension pending
How can someone get a extension on drivers license if his H1B extension is pending and I-140 is approved in Georgia??? What do you suggest someone should do in such a situation?

I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

I-485 AOS Pending, Employer's Bankruptcy
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Obtaining H-1 Extension beyond 6 years
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

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

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

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

Important questions on H-1, AP and Travel
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Applying for green card while on a B-1 or B-2 visa
1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? 2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application? 3) Is it better to apply for adjustment of status or consular processing for the last step of their green card? 4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?

A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

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

Compensation for H-1 lay off
My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

Visa after B-1 to F-1 conversion
I entered the US on a B1/B2 visa in febuary 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in Fall 2008, I transfered and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. Its been close to 3 years now and I really wish i can get to see my family back home. I will really appreciate any advices and help. I dont know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp. Please tell me what is the best way to approach this and the best thing that I can do.

Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.

F-1 visa stamp, H-4 pending
I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April. In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India. Now we are very much concerned that what will happen to my H1 and her H4? 1) Since she has F1, will it affect H1/H4 processing? 2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same? 3) Is it possible to have F1 and H4 both together at the same time? 4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?

1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

3. Generally speaking, no.

H-1 denial, appeal, MTR
My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details. H1B/H4 filed: March 1st 2009 RFE was issued in April RFE replied: May 6th 2009 H1B/H4 denied: June 1st 2009 Our H1B/H4 I-94 expired: Apr 10, 2009 My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.). 1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status? 2) While new H1B is pending, what is my status? Am I considered to be in status? 3) Can we file brand new H1B through the same company while appeal is pending? 4) Can I work for my employer while appeal is pending, without filing new H1B? 5) Can I work for my employer while new H1B is pending? 6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition. 7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

K-3 visa when I-130 approved
We have an appointment set for the K-3 interview in Nairobi. Our I-130 Petition has been approved, IV fees payed and documents submitted. We have not seen each other since 12/08. If we go forward with K-3 processing, what are the negative consequences? Will my approved I-130 be cancelled?

In your case, a K-3 cannot be issued. You must wait for IV.

If an I-130 is approved, K-3 can still be approved if the consulate has not yet received OFFICIAL notice of approval of I-130. Note that your I-30 will NEVER be canceled.The recommended practice in K-3 cases is to indicate on the Form I-130 that the beneficiary will apply for AOS. Nevertheless, it is too late for that now. If they have received official notification, then an immigrant visa (green card will be issued) after processing locally. It should not take too much extra time.

Can H-1 be extended based upon family-based green card?
I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?

You cannot. This extension is available only to employment-based applicants.

Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
I (a software consultant) have EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know a- Can they do it legally? b- What are my options including can i sue this employer despite being on EAD?

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
 

From H-4 to F-1
1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification: If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ? 2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same? 3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS, CA ? Will I get an approved F-1 by then ?

1. No. An I-539 is used if you want to change status within USA.

2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

3. No one can predict that. Sorry.

What kind of company is good for H-1B processing
Can you give us some tips on legally what kind of companies should one look for to process H-1.

I think this is a timely question. I can give some pointers based upon my experience.

H-1 approvals are easier:
- for in-house projects and for companies who can obtain letters from end-clients verifying the work; the degree of control they have over the H-1 worker and the duration of the assignment; and

Entering on/applying for nonimmigrant visa while green card is pending
I filed I-130 for my parents in April 09 which is still pending. They have 5 years multiple visa and they been here 4-5 times already. Is it ok for them to visit for a month again while their I-130 is still in pending status?

The answer is it is unlikely, but not impossible, that they will be permitted entry if CBP finds out about the I-130. If it were my own parents, I would probably not take the chance.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

LCA's for H-1 will probably take longer now

New LCA Online System Beginning May 15th, 2009

Beginning May 15th 2009, the Office of Foreign Labor Certification will be disabling the filing of existing LCA form 9035E on its website http://www.lca.doleta.gov/.

Our office will use the new iCERT Portal System (http://icert.doleta.gov/) to file LCAs online using the latest Form 9035.

When to apply for L-2 extension
My employer is in the process of extending my current L1 status for another 3 years. Current I94 is due to expire on June 20, 2009. My wife is on L2 and employed with an EAD valid till June 20, 2009. How can she extend her EAD at the same time as my L1 is being extended? My company lawyers will not handle extending her EAD. Please advice.

I believe you have three choices. Add her L-2 extension/EAD to your L-1 extension in the same package; apply for your extension, wait for the receipt then apply for her L-2 extension/EAD; or apply for your extension, wait for the APPROVAL then apply for her L-2 extension/EAD (note that she must be in status when you apply for her L-2/EAD). I have listed these choices in the order of my preference.

H-1 Quota Count still at 45,000 as of 4 May 2009

USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
 

H-1 extension denied - status

Quote: Hi Rajiv,
Its good to see the way you are providing appropriate answers to our questions. your responses are very helpful for us, specially in this tough time when USCIS is scrutinizing every Non-Immigration case.

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

H-1 Quota still open

Here is the release from USCIS.

April 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated
65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;

PROPOSED Legislation to Reform H-1B Visa Program

Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

Thursday, April 23, 2009

[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

 

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

US employee working from India

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

H-1 Count 44,000 -- You can Still File

From USCIS:
Quote:

H-1 holder aplying for H-4 visa
My wife has been in US for 6 months on H1 and is going back to India. In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1? Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?

The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Effect of Bankruptcy on immigration
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

When is an H visa stamping required?

1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

PS: I do not have H4 stamping.

H-1 visa stamping -- is it difficult?
My son is employed on H1 B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to India, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions. Is it difficult now, in view of the present US laws/restrictions on H1B visa to get extension/renewal of the said visa in India. What is the procedure.

The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1.

In my view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.

Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

Inviting parents to provide care during pregnancy or postnatal period
Here's the situation: LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.

Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.

A1. I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.
 

H-1 Quota Status

USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

 

USCIS is continuing to accept H-1 filings

USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

H-1 Lottery for 2009

USCIS has confirmed that if they determine that they have received enough number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received on all five days. Note that the first five business days include upto 7th April.

When does CIS investigate fraud?

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

L-2 EAD and H-1
1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2? 2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)? 3. Does EAD allow one to be do multiple things as a free-lance professional?

1.  Ans. It lapses upon change of status from the date the status is changed.

2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

3. Ans. Yes.

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

How does the Stimulus Bill affect H-1b, L-1 and Green Cards
What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?

There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

H-1 Quota - what is acceptable evidence for degree

When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.

USCIS has stated:
 

Can B visa holder convert to F or other status?
My question is that i have just entered USA on B1 /B2 visa on February 21 and sir now I am planning to stay here in USA...I am planning to carry on my further studies in Bridgeport university my arrival is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

Can F/J holders apply for green card?
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

Turning 21 - do I have to convert to F-1 from H-4?
My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

 I do not see any way around filing an F-1.

Do physicians have the right to an extension beyond 6 years for waiver jobs?

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.

What happens when an employer is under criminal investigation/indictment?
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Employers responsibility in H-1 process

Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

Is salary reduction possible/legal?

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

L-2 to L-1 COS or Visa?
Hi...i have a question...i came to US on my L2 visa and am here for 1 month.meanwhile my company has initiated for my L1b visa in India..now my question is... 1. Should i have to travel back to my native for Visa stamping or i can apply for COS from L2 to L1B in US itself? 2.Since i already own L2 visa is there any chance that my L1B is rejected?i have been working in the company for 1yr and 2 months only now. 3.in case if my L1b is rejected is there will be any impact on my already approved L2 visa?can i come back to US again using L2 visa?

You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.

Note! Employer subject to H-1 quota, but the job may not be
My wife is on cap-exempt H1B working for a non-profit hospital. She got the offer from another non-profit community hospital but, their lawyer declined to file a H1B transfer with the reason that a new employer is not a cap-exempt employer because it's not affiliated with any higher education institution. It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think, any chances here ?

Difficult to say what the chances are, but read on.

Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.

Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.

Consequences of not using an H-1 visa
I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.

It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.

L-1/H-1 COS Issues
I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa). 1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1) What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1. 2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?

I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

Employer not paying, may I tranfer H-1?
At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have. Appreciate your help in this matter.

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.doleta.gov/Performance/gu...2003-02-05.pdf

You can also contact the local WHD of DOL where you are:

H-1 converting to H-4 and then (maybe) back again
I have a friend who came to US on H4 & was on H4 for 2 years. Then she applied for H1B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Co B . Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project. While working she have been paying taxes regularly. Pl let us know what needs to be done now:- * She is planning to go back to H4, pursue higher studies, Changing to F1 & then coming back on H1B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to USCIS ? * When next time the H1B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work? * If in case My friend goes back to H4, Will Co. A & B will terminate H1B petition as per law? & If in case yes will this create any difference?

Changing the way she is planning is perfectly legal. There is no question of a "bad impression."

In my view, she will not be subject to quota unless she is outside USA for a year.

The companies are required by law to revoke her H-1. I see no issues there.

What to do if an I-140 gets rejected?
Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Do advanced degrees help in marriage-based green card?
I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

 1. Advanced degrees do not help in a family-based green card.

Can H-4/F-2 holders perform volunteer work?

The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?

Fulfilling J-1 HRR in installments - not possible
I have been issued F1 and I fulfilled only 1 year of my previous J1 HRR. It was not difficult to get it once you show all the funding documents from school. I have another question though. I am on a PhD program now. If I decide to stay in my home country for 3-months periods several times - can I fulfill my second year of HRR in that way? The question is does it have to be consequent or I can split it like this?

You cannot do that as far as I know. The HRR has to be in one solid 2-year chunk. Brief absences - a week or two may be permitted but should be made up by spending that much extra time in your home country.

L-1 - H-1 COS issues

Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

Questions

H-1 related I-94 issue
I have read some very nice articles on your Forum and wanted to get your help on My Weird Issue with I94. I am on H1-B Visa and my Approval (I797) is Valid Till October-2010 However My Indian Passport is Expiring on 26'th-Aug-2009. I just came back from India a week back and Immigration Officer has Issued me I94 Till my Passport Expiry.. Is thr any other way for me to Apply for I94 Extension based on Approval validity without Leaving the Country ??? or i have to leave the Country & Come back ??? Same Applied to my Wife as well Since we traveled together and went for Immigration together immigration officer Issued Her also I94 Till My Passport Expiry Date ...

Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

H-1 Quota issues for students

Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

H-1 where there is no license in hand

In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.

Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.

H-1 - how to revert to old employer
My friend was working for Company A and he shifted to Company B, three months back filing a new H1B, But his employer got a 6 page H1B query list, his employer is not revealing the query and is not in a position to respond. Couple of questions, Can I switch back to Company A. 1. Does he need to file with DOL (or) USCIS that I am switching back to company A 2. If his H1B with company B is not approved, will it be a problem that I worked Company B for 3 months and has taken the pay? Other Question is, Company A send a letter to INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1B but send a normal letter to INS), Can he still switch back to Company A??? If he can not join back Company A, Can he file a new H1B with another company, knowing the fact that he has a query on his H1B with Company B.

In my view, he cannot go back to company A without taking some additional steps.

Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

F-1 OPT - No Job
I was approved for my OPT on February 2008 for a duration of one year. At that time, I was allowed to stay in US for 1 year while looking for job. On April, 2008, a new regulation came according to which a student on OPT can not stay in US without job for more than 90 days. I was not aware of this rule until end of September 2008. Now I have applied for dependent visa. My worry is that unknowingly I stayed for around 6 month without job when I was actually allowed for only three month. I am worried that is this mistake going to affect my new visa approval? Is there anyway I can explain USCIS that it happened because I was not informed about this rule and I did not come across it.

Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.

H-1 quota - the law

People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.

The Law
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AC21
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SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:

H-1 transfer - what action is needed for H-4
I came to USA with an H1b Visa, my family's H4 visa was also issued with me. After coming to USA I transferred my H1b visa to new company and I got my transfer approved and I got a new H1b with new I-94, my question is whether they can travel with the old H4 or not?

If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.

E-3 Issue
I am an Australian citizen currently on a B2 that expires in Oct. I lodged I-539 application for extension in Aug and received I-797 receipt Aug 25. I may have found an employer that will sponsor me on an E3 visa (Australians only). All I need is a letter of offer and a completed Labor Condition Application. To apply for the E3 visa though, I need to leave the USA and visit a US consulate. I do not have my original I94 any more (I submitted it with my I-539) but I do have a copy of it. Once I get a letter of offer, I will travel to either Toronto Canada or home to Sydney Australia to apply for the visa. Qo1. Can I still leave the USA without the original I94? Qo2. In the event my E3 visa is denied, will I be able to re-enter the USA from Canada without the original I94, provided my stay in Canada is less than 30 days? (And how would this work if I take the trip up there after the expiration date of the original I94? Remembering that my B2 extension is pending)

 Ans1. Yes. You should not need an original I-94 to travel out.

Ans2.  You probably cannot reenter using a copy of the I-94. Not only that, your departure from USA renders your pending B application void (considered abandoned).

They way I see it, you have two choices. Wait for B extension before you go for E stamping. Or, go for E stamping bearing in mind the consequences of abandonment and reentry not assured.

B visa while GC pending or similar situation
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

H-1 Quota
I came to US on F2 visa. In April 2008, my employer filed for my H1B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2. Qo 1. My question is if I change my visa status back to F2, and if I find an employer who is ready to file my H1B in the future, Will I have to go through the quota again? Qo 2. Hi, I have been inspired by the previous posts, I have a similar situation. I was on H1 till Mar 03. Then I transfered to F2. Now I'm about to get a job offer from a company. Is my H1b application subject to the Cap? My previous H1B was issued on Feb 2002 and I haven't been out of the states since.

Ans 1.  In my opinion, you will not be subject to the quota again.

Ans 2. You should not be subject to the quota.

Using B visa with F-1
I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

Multiple H-1 approvals

I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
I have the following questions

Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
Ans1. Yes. I usually recommend that all I-94’s be surrendered.

How to get back to H-1 status?

We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?

AOS Pending, Should H-1 be Renewed
Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Filling DS 156

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

Does J-1 HRR Prohibit Issuance of F-1?
If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master's degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?

The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.

Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.

Nonimmigrant waiver
I recently abandoned the US for Canada. I had been living in the US illegally for 15 years (since the age of 11). I got an opportunity to conduct biological research at the University of Alberta, AB, and Canada. I'm fully funded to live in Canada by the institution. Anyway, I would like to return to the US in 2013 for my 10 year high school reunion. I would like to know how likely I would be to get a tourist visa given my recent history. I have no intentions of staying in the US, just visiting. Am I automatically banned?

Look into a 212(d)(3) waiver, which should allow you an entry. Ask CBP at the border how much time they need to process the waiver (usually a few weeks).

Visitor visa rejected
I am having a problem getting my visitor visa. My fiancé is a US citizen and my sister is on H-1B visa she is there since 3 years with her family... my parents got their (B1-B2) visitor visa. But when ever I apply for B1-B2 I get rejected. My question is, when they ask me why you want to go to the USA my answer was to visit my sister and her family. Now can I answer like this? My fiancé is a US citizen and I want to meet her and get married.

You must tell the truth. The better visa for you is K-1, if you want to get married in USA. Your chances of getting a B visa do not appear to be very good.

Visit visa and marriage
Will I get 15 days visa for US as tourist visa and in this time marry a friend who is U.S citizen and also born over there in USA, so could I be able to apply for visa extension and then apply for PR in USA?

Spouses of US citizens are eligible for green card without any waiting. But I have always advised people to not use a tourist visa to enter USA with an intention to get married. I suspect USCIS can, if they choose to, raise an implication of fraudulent entry.

Multiple entries for UK Citizens
I am a US citizen - my partner is a citizen of the UK (we are not married). He is a consultant in the international development field so travels frequently, but often visits me in the US when he is not working. He has been to the US for visits of 2-3 weeks duration about 6 times in the last year. The past few times, immigration has hassled him about the number of visits he is making. We are concerned that one of these times he may be refused entry - is this likely?

He can be denied entry. UK citizens have the same options to work in USA as the rest of the world; typically H-1, L-1, E-1 and E-2 visas.

Re-entry with B-1 Visa
I am a UK resident and currently have a B1 visa with 7 years to run. When I enter the US via LAX they always stamp my passport and issue the I-94 card for 12 months. We always leave before the date given. Question - do we have to go back to the UK (our country of origin) or could we go to Canada for a week and then re-enter the US?

You can go to a third country, but your entry back into USA can be declined if CBP believes you are spending more time in USA than you should. Typically, B visas are for brief visits (may be six months or less in a 12-24 month period).

Stopping at USA
I am working in a Federal Gov't Agency, and in the near future leaving for Frankfurt, Germany, for a conference, and with a plan in mind to fly to USA via Germany after my conference is completed. My question, here, is that whether I can use my US visa, which is valid up to Apr 06/2012, whereas the passport has already expired by last May 23/2011, and due to be replaced by a new one.

You will need an unexpired passport to enter USA. People in your situation carry both the new and the old passports.

Visa for family to visit brother
I have a brother here in US who is diagnosed with cancer. I would like my mom and brother who live in India to come and visit him. What type of visa should they apply for in India and how long will it take? On which visa can they come as soon as possible.

Tourist visa seems to be appropriate. Times vary by consulate and are usually very short -- often visa is issued the same day an application is made. You can also get an appointment for emergent reasons.

Visitors visa and green card
My mother wants to travel to US on her existing visit visa. We recently filed for her GC petition as well. We are wondering if she is allowed to travel on that same visit visa. Her visit visa is also expiring soon, would that be a problem coming into USA?

She will be at the mercy of CBP at the airport. They can decline entry.

I am a US citizen and spouse on B-2 visa
I am US citizen and my wife is here on B-2 visa, her I-94 just expired, applied for extension, denied. Can I file I-130 and 485 for her now and can she wait here for her GC legally without leaving the country?

You can file I-130 and I-485, but she must not travel outside USA until she gets her green card.

Pharmacist visa for FPGEE
I have plans of taking the FOREIGN PHARMACY EQUIVALENCY EXAM (FPGEE), I am from the Philippines what kind of visa should I apply for?

You will apply for B visa (B-1/B-2).

Visit visa for my parents
Can I invite my parents while I am on a business visit. I have I-94 valid till June 2011. My dad is a defence employee.

Your parents can apply for a tourist visa on their own. There is no law that they must be invited.

B-2 visa
I'm a non-married Iranian citizen who’s my first-degree family members are US citizens, currently residing in USA. During last several years I've been rejected every time I requested for a US visa (both F and J). Now, I am qualified to become a Canadian PR through the skilled-worker program. The visa is issued and I will be soon landing in Canada. I was wondering if my chances for getting a B-2 visa to visit my family will be any better once I'm a registered Canadian resident. Is it wise to ask for a visa once I get my PR card?

I think if you wait till you have a steady job and roots in Canada, and then apply to visit USA, you should have a better chance.

B-2 to B-1
I am an IT professional who has come to the US for medical treatment on a B2. I am getting better. Since I like to constantly upgrade my skills, I found some training programs that I could attend as they are more frequent in the US than in Canada. Can I attend them on a B2? I mean I have a B1/B2 visa, but the officer marked it as B2 on the stamp on my passport at the POE. Second - I also have got an offer for a one day lecture to some technology professionals for which I might get paid. How would the folks know I worked for a day if while exiting the country there is no checking?

I believe you can take training on B-2 as long as your main purpose of stay in USA is is still medical treatment. Getting paid may be a bad idea.

Parents B-2 Visa
My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches: a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems. b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.

I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

Mother's visa expires - reentry
My mother's 6 month stay expires next month and she wants to go back to her country and come back to US in 10 days. What kind of questions will they ask her at the airport?

A trip back after just 10 days is likely to be problematic. She can be declined entry because the govt. Can view this is an abuse of B visa in that she is staying in USA more than she is in her own home country.

B1/B2
I entered the US with my mom in 2005. I was underage then. My visa B1/B2/BCC expires in Oct of 2010 and my permit I-94 expired in December of 2007. I am now 20 years old and I am married to the love of my life and he is a US citizen. I want to know what I can do. What files and forms will I need?

You should be able to get your green card. Do not travel outside USA until you do. I would suggest getting a lawyer.

B-1/ B-2 for business
I am an internet marketing professional and I had H1B visa for the period of 2007-2009. I visited US 3 times ( 7-15 days each) but for some reason I did not join job there. Meanwhile I registered a LLC there for my business and running a small business for last year.I am internet marketing professional and i had H1B visa for the period of 2007-2009. I visited US 3 times ( 7-15 days each) but for this or that reason i did not join job there. Meanwhile I registered a LLC there for my business and running a small business for last year. Now I have to attend a conference and set up things for the business. This time I want to go with my wife and 2 year old kid. Which visa would you suggest?

B-1/B-2 seems to be the correct visa.

Visit visa and work
I have B1/B2 visitor visa and I am planning to visit USA. I also have job offer from one of the company in USA. They are asking me to come on visit visa and then they will apply for my work visa (H1) while staying in USA. Should I accept their offer and travel with my spouse and children?

This could be viewed as fraud by the government.

My wife filed for Skilled Worker
My wife filed for Skilled worker (EB-3(A)(i)). Can I apply for NIV to visit her?

There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.

Mom's visa denial
My mother had an appoinment to get a visa today and she got denied but they did not give her a reason, is there a time period she should wait to try again or can we find out why somehow.

They are required by law to give a reason. Contact your Congressman.

B-1/B-2 visa for medical reasons
I am married to an alien and I am a citizen and I am looking to bring my mother-in-law here from mexico. It would be for pleasure and also medical reasons. She has a bad knee and I am looking to take her to go get checked for her knee.

I think until your husband get naturalized, a tourist visa for medical treatment is your best bet. These visas can be designated B-1 (Business visas) or B-2 (Tourist). You should get an appointment letter from her intended physician and try for the B-1/B-2 visa.

Australian Musician to perform in US
An Australian Musician that is wanting to come to US for a few weeks to travel and play at approx 15-20 venues across the US. I am willing to sponsor him via my DJ entertainment service, and he will be paid for the shows. He is a professional musician in his country, has been for 15 yrs. Which visa would be required in this case?

A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.


An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.


"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.


"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.

5 year multi entry visa
I have a 5 year multivisa. I visited US for two weeks 4 month ago. Now my friends invite me to stay longer than 2 weeks (2-3 months) and I dont have a job now. Can you please advice how long can I stay in US with this visa?

The duration of the stay will be determined by the CBP when you land in USA.

Visitor visa - passport in maiden name
My cousin has invited me to his wedding, and I got married October 31 2009. The thing is this - my current passport is not in my married name, can I just apply for the visitors visa with my current passport and bring my marriage certificate as proof of marriage? My current passport will be expiring in 2012.

There is no US law (that I can think of) requiring you to change your passport right away. I think you can travel. But eventually you should get it all corrected. Change to married name is not required, but I think the passport should accurately reflect marital status.

Tourist Visa Validity
I am a holder of a US tourist Visa which will expire on July of 2011. I will visit the US on March 2011 to attend a wedding. If I go I will only have 4 months visa validity. Can I still use it with less than 6 months valid stay? I will stay only for 2 months the most.

Visa validity is required only to enter USA, not to stay. The stay period is determined by CBP (at the airport) when you enter USA. The stay is noted on a document called an I-94 (Arrival Departure Record). Even if the visa expires, you can stay till the end of your I-94.

Co sign
Can a friend co-sign for me to bring my brother to the United States, I have green card and i don't make enough money. I just want to know if a friend can co-sign for me.

An affidavit of support can be co-sponsored by your friend. But green card holders cannot sponsor siblings for green cards, only US Citizens can.

B2 visa to green card
I am a US citizen can I apply for green card for her while she is in US and can she stay here while the application is in process?

The answer to both your questions is - yes. But you MUST speak with a lawyer to understand all the nuances of her case.

Visitors visa sponsored by H-1B holder
I got my parents Visitor Visa stamped when I worked for Company A . But now I work for company B and I am planning to get them to US now. Do they need to go for stamping again?

I see no need for a new visa.

Proper protocol for B-2 visa
I am american citizen, I wish to invite Egytian CEO for visit to U.S. since my dad is dying of pancratic cancer stage 4 and he wish to see him . Unfortunatly, he is stating. I need to provide documentation or application for B-2 visa. What is exact requirment for B-2 Visa? He has his own companies and I own a building in Texas and have bank account. We are both financially solid.

There are no formal requirements, but the consulates can ask for anything they feel is necessary. Get your Congressman involved. They will be able to get more information from the consulate very quickly.

Married to a US citizen
I got married to a US citizen in Mumbai under the Special Marriage Act about a month back. He is currently in the US and I am also planning to immigrate there with him. I have a tourist visa & am planning on going to the US on that visa and then apply for change of status. Will it be ok to do that? & once I apply for change of status, am I allowed to stay in the US beyond the regular tourist visa timelines (meaning the stamp given at the immigration counter at the airport showing the last permissible date of stay in the current visit)?

This may sound silly, but I think you should reapply for a tourist visa and tell the consulate what you are planning to do. They may not require a new visa or they may even deny you entry and ask you to wait for your green card. But that, I think is the right thing to do. Once you arrive in USA and file for adjustment of status, you can stay beyond your tourist visa/I-94 duration.

B-2 Visa Multiple destination
My grandmother has a B2 visa to visit Guam. After her two week stay, she wants to visit her other daughter in California but she will have to go back to Philippines for a day because its cheaper to travel from Phil. to Cali. Can she still use the same B2 visa. When will she have to surrender her I-94? After the California trip?

As long as the visa is valid and permits multiple entries (not all visas do), I see no problem.

B2 Visa
I am US citizen trying to bring my friend from Pakistan to visit me in America , how hard is the process for him to visit, as we have never offical met in person, but are connected online. I hear you have to have proof that we actually have met, like pictures?. Is this hopeless? Would it be better for me to meet him out of the country?

Getting a B-2 visa for a single person tends to be very difficult. If you meet him once, you can get him here on a Fiance (K-1) visa. That is much better if you want to get married.

B1/B2 Category
I have already applied for the draw for the Diversity Lottery Visa for which I am eligible.If at all I dont get selected and want to make a B1/B2 application thereafter will I have to mention in the application form that I have been denied such a chance for lottery before and if I choose not to do so can the consulate people find out that this person has made such an application before.Please advise for the correct approach.

As far as I can think, you would have to reveal your DV application. Not having researched DV specifically, I can only say that generally, having applied for a green card makes getting a B visa much more difficult.

Having a board test on B1/B2
have a valid B1/B2 visa.I visited usa( 2 years ago, when I was a student) for tourism.Is it legal to use this visa to enter the usa to have a professional test (foreign pharmacy graduate equivalency examination)?. is there any problem to show this purpose to the officer at the port of entry (in airport)?

As far as I know, this should not be a problem if you are truthful about your intentions.

B1 rejected because I had applied for Green Card
I was denied B1 because of lack of documents. On reality I have applied for Green Card as my sister is citizen of USA. How can I convince US officers that I will not abandon India and settle down in USA.

I do not know of any special proof that you can provide. This is purely a matter of consular discretion.

Visa for Mother in law
I am a U.S citizen but my husband is not yet. My mother in law has been battling cancer for a while and I would love for her to come here and get medical treatment and to just see her grandson. She is from El Salvador, is there any way for us to do that?

A B-1 visa is appropriate for medical treatment.

Business Visa
I sent an invitation to my business associate in India for supplying and installing equipments. The visa was rejected saying it is illegal to pay in US in USD. Actually, I am paying the company in India for supplying and installing equipments and not as a salary to the installer/project consultant.Now, I have asked him to reapply for the visa. What is the best way to present the case to the consulate office during interview?

If you make the details of the transaction clear to the consulate, I feel you should have a shot.

Return to America on a B-2 visa
I want to know how long I have to spend in my country before I can return back to America,I left there on october 27 and I have a B-2visa.

I cannot give you a hard and fast rule, but generally speaking, CBP wants you to spend more time outside than inside USA each year.

H1B Pending
I have 5 year M entry visa to visit US from India. I got a job offer and my employer is filing H1b for me in April 2010. My 6 month B1/B2 visa is over on June 4th 2010. (A)Can I continue to stay in US on pending H1b? (B) Should I apply for extension of B1/B2? Will this application for extension confuse or spoil my chance of getting H1b? (C)If I do the premium processing will I know the status of my visa before 4th of June?

You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.

F1 visa to business visa or H1/L1
Which visa is easy to apply. Is it business visa or H-1 visa?

If you qualify, H and L visas are certainly more secure than an F visa.

B visa while GC pending
A a citizen, I filled up a I-130 form for my parents; they live abroad, but they already have a tourist visa; may they visit USA for short time while they are waiting for the GC process, and then go back to their country, keeping back and forth in the meantime?

The law is uncertain. This type of entry will be left at the discretion of CBP. I have a blog entry on this subject. Please review it: http://forums.immigration.com/blog.php?u=1

Legality of I-485/I-130 filing
I married my Canadian wife in November 09 in the US. She had entered the country as a visitor. She flew back to her expatriate parents in Australia. She re-entered the country - POE was LAX - and we linked up in North Carolina to drive north to pick up her belongings in Montreal. We exited the US and then we re-entered. USCIS gave us some difficulty at the border but they let us in together. Now I know I need to file the I-130 form, and I am hoping to file an I-485 for AOS and I-765 so she can work. Is this legal? She is here legally as a visitor with 6 months to stay.

This is a touchy topic. As long as you revealed to the Post during your last entry that you were married, I see no problem with the 130/485 combo.

I want to bring my mom to the states
I have a question .. I am a US citizen .. my husband is in the navy i want to bring my mom to the states but i dont work cause we have a 2 year old baby . Can my husband be my mom's sponsor? or what should we do ?

You can apply for her and he can be a joint sponsor on the affidavit of support. No problem.

Visa for Mother in law
My husband and myself need to bring my mother in-law to the USA from Mexico, she is in need of constant elderly care how can we do this I am a US citizen and my husband is a permanent resident.

I can think of only a tourist visa or ER. But once your husband becomes a US citizen, he can get her green card.

Can my parents stay in the US?
I am an American citizen. My parents received their 1 year multiple B-2 visa in Aug-09 and they came to live with me in Sep-09. I applied for I-130 for my mother in Oct-09. I received my mom's I-130 approval notice in Feb-10. And my parents are still in the States with me now. They were granted 6 months stay till Mar-10. My questions are: 1. Can my mom stay in the States beyond March and file I-485 status ajustment? Or should she go back to her home country and wait to be interview at the consulate? 2. I haven't applied I-130 for my dad. Can I file a B-2 visa extension for my dad and can he legally stay in the States after Mar-10 until the B-2 visa extension is granted or denied by Immigration? What form should I use for B-2 visa extension? Approximately how long does it take Homeland Security Immigration to grant or deny a B-2 visa extension case?

1. From what you have described, I see no reason why you cannot file for their I-485 and have them stay.

2. He can legally stay in USA as long as USCIS receives the extension request (Form I-539)before the expiration of his current status. He can stay till the request is decided or till the time for which the extension has been requested, whichever comes first. It can take several months for the application to be decided.

Visit Visa to the U.S.
My grandmother and my auntie are US citizens, I would like to know how to get a tourist visa to visit there in US califonia? can I know the requirements or how much I need to spend?

Just contact the US consulate closest to where you live to find out the formalities and fees. Basically, you need to file a visa application and interview with the consulate. They will tell you what to bring with you.

Co-sign for my fiance's mom
My fiance's mother wants to visit him , but his income tax for 2009 not enough to sponsor his mother. Can I put my income tax to co-sign to let his mother get the visa visit US ? If its work how much my income should be that would qualify with the situation ? ( i'm a single mom with 2 kids).

Anyone can sign a Form I-134 (the affidavit of support for a visitors visa). As to the amount of income, run an internet search for "poverty guidelines." If you meet those requirements, you should be fine. In fact, a Form I-134 is not a requirement of law, but consulates can ask for it.

Entering U.S.
My boyfriend is from pakistan and we would like to know what would be the best way for him to get a visa to visit the US and how. He is a student in Sweden at this time and has a Europe Visa. Will this help him in anyway to be able to come to the US? Would really appreciate any help or advice you could give to help him be able to visit me and my family.

All he can do is try. There is no way to be certain, but being abroad already should help a bit.

B1B2 VISA multiple entry 10 years
I obtained my b1b2 visa on July 2007 with multiple entry and valid for 10 years. I travelled to USA on November 2007 and stay their for 2 weeks. I am planning to visit again my relatives this year but I heard from the people around me that my visa is already cancelled since I wasnt able to re enter USA after 2 years, they said that the requirements for me to do to keep my visa active is to enter USA every 2 years.

There is no requirement that you enter every two years. I see no issue with your travel.

Traveling to US while green card petition pending
My husband and I have been married for over 2 years now. On September, he filed I-130 on my behalf and we have also filed G-325A in October. My question is whether I can come to visit him for Christmas on a B-1 visa? I just want to make sure that it will not affect the application and that I will not have to stay in the US until the application is processed.

You can try, but such permission is rarely given.

I have been revoked to seattle with visa B1/B2
Last november 11, 2009 I went to seattle for vaccation. I detained: 1-one returned ticket for may 3, 2010; 2-one electronic ticket for one mission on geneva from december 1st to 7, 2009; 3- 3books for my online MBA courses; 4- one visa B1 & B2 for 10 years issue on july 2007, 5- a letter for my employer. But when I arrive to airport the immagration office say that I came to work or study, but not for vaccation. They put me in Jail ARROUND 1 MONTH and they revoked me. I want to know the way to make my complaint and ask to review my case. I am an international worker since 1999.

You will need a consultation with a lawyer. It appears you were formally denied admission and excluded from entering USA. The one-month detention sounds strange. Anyhow, get a lawyer, this is not a simple matter.

Applying for B1/B2
Have a pending I-130 with priority date of 26 OCt 2002 In the F2B category, now my cousin wish for me to visit her in MARYLAND, My parents and siblings live in the states and I have been denied B2 Visa befor in 2002 , but I have also travelled to the US before as a child first in 1987 and 1992 with my father. QUESTION is I have 5 Years working experience in a bank, I have travelled to the UK,FRANCE,ITALY AND SPAIN regularly on holidays in the last 3 years. What are my chances of getting a visitors visa? If my chances are not bright, I might as well forget about applying for a visitors visa.

Your chances are slim, but it is impossible to predict.

Visa for parents and niece
I want my parents and my niece to visit me here in US. Can I apply for visa for all 3 of them together. My brother and sister in law are currently undergoing separation. Will there be any issues because of that?

I see no reason why they cannot all apply. Separation should not raise a problem as far as I can see. But consulates may want some additional paperwork for a minor to travel with grandparents.

Are there any impediments to exit the US with a expired B1/B2
I came to US when I was a minor under the care of my parents with a B1/B2 visa. My parents decided to stay here for 1 year. 5 years have passed. I am 20 years old now. My B1/B2 visa expired in august of this year and I do not want to stay illegal in this country anymore. I am going back to my country. Are there any impediments for me to exit without any problems?

As far as I know, there is no impediment. But I think you will be subject to a ten year bar from reentering USA once you leave.

Vistor Visa for Niece
My parents are planning to visit us here in States in Summer. They have 10 year multiple entry visa. They have been here before (about 2 years ago). This time they want to bring my niece (9 years old) with them as my niece will have 2 months summer break during that timeframe. My question is what documents do we need for her visa. Does my parents need to accompany her during her Visa interview.

Send an email to consulate asking for local requirements for grant of a visa for a child to travel with grandparents. They may need consent from her parents.

B-1/B-2 visa to F-2 visa
I came to US by b1/b2 visa, now I want to change it to f2. My wife (we got married 4 months ago, when i came to the states) is studying here. We have a baby whom was born here 3 months ago. Now I can't go back to my mother land to get a visa, because my wife doesn't have a visa but just valid I-20 form. Do you think I should apply for a status change here or should we go to Canada to get visas? What is more safe for us?

There are several issues here that should require you consult with a lawyer. For instance, USCIS does not like it when people enter USA on a short-term visa and get married or try converting to a long term status (like F-2).

From a B-2 visa to a green card
I have a pen pal that is a citizen of Honduras. He would like to come to the US to visit me and our beautiful country. My question is this: if he obtains a 6 months B-2 visitors visa, then maybe half way through, he thinks he would like to move to the US and work here, could he apply for a green card during his 6 month stay. He has no family here in the US, just me, his friend.

That does not sound possible. Green cards to USA are granted based upon very limited basis. But, you should have your friend speak with a lawyer to see what options may exist.

Marrying B1/B2 girlfriend
My girlfriend and I decided to get married. She is on a B1/B2 visa, we didn't know it is some kind of offense, how to deal with this? I don't want her to be deported. Where do we start?

For all people on B visa or illegal in USA who are marrying a US citizen, I strongly advise at least one consultation with a lawyer to make sure you will not run into trouble.

Re-enter US on tourist visa
My mother has valid 10 year tourist visa. However, on tourist visa, she can stay upto 6 months in US. I wanted to know that after 6 months, can she fly to Canada for a month to stay with her sister and then return to US after a month. What's the min time limit she has to be out of US in order to re-enter US? I'm having a small child and would like her to stay with me as much as possible.

It is unlikely she will receive another six months after visiting Canada. The rule of thumb is that she must spend more time outside USA than inside.

B1 visa
I am supposed to apply for my business visa today for USA. I am traveling for pure business, meeting my existing suppliers and doing further business development and also inspect a loading on existing contract. I will be providing relevant business details on my visa form. The small query that i have is, that my real sister is based in usa, and her husband holds a green card.the visa form asks for mentioning of any blood relation/relative settled in usa, so would mentioning their details on my visa form create some kind of hindrance in my getting the business visa?

We have no choice. You have to tell the truth. I do not believe that by itself would be a problem.

B visa for fiance
I am a Filipina and I have my fiance in the US but he is still waiting for his greencard. We are really looking forward to be together soon. Which is more easier to get a visitor's visa or a fiance visa? But he is not a US citizen yet, he is still waiting for his greencard. Please tell us what would be the best for us to do in order for us to be together soon?

Fiance visa option is available for citizens only. B visa is always a toss of a coin. No-one can predict how it will go. But chances of getting B visa for the fiance of a US immigrant are very low.

How to apply for visitors visa?
My mother in law would like to visit me and her grand daughter and i would like to get her a visitor visa what do i need to get that and how do i get one?

She needs to contact the US consulate closest to where she lives. Normally, they will be able to tell her what she needs to bring and what the procedure is. This information should also be available on consular web site. Most consulates also respond to e-mail enquiries.

B Visa renewal
I came back from states in 2003. I had mulitiple b1/b2 visa that was expired in 2006. Now, if I apply again so what are the chances? Can i get multiple visa again?

I see no reason why not.

B1/B2 Multiple Entry Visa
I have a urgent question, and I would super appreciate any advice you could give me. I have a B1/B2 Multiple Entry Visa till 2019. I went to the United States on Feb 25, 2009 and came back to the Philippines August 21, 2009. While in the States I was granted an extension to stay in the U.S. till Feb 2010, but I still decided to come home to the Philippines. Now, I would like to go back to the U.S. on November 8, 2009 to spend Thanksgiving with my Husband and my In-Laws. Will they give me a hard time at the Port Of Entry? Are there documents that I should bring to show the officer at the POE?

Since you left without using the extension, the fact that you applied for one should not become an issue for reentry in the future. But the problem can be if you return too soon, CBP can deny entry. Have a happy Thanksgiving.

Confused - B-1 to F-1 change
I came to the US on a B1 visa got it changed to F1-->finsihed 4 years of undergrad moved on to 2 years of Masters(both in engineering). I am yet to apply for OPT. Is this going to affect my chances due to the entry method; also what will happen if I get a company that want to sponspor me. Would you advise me to go back home to rectify my visa situation. Because the B1 visa I entered the country with is expired, I haven't travelled out of the country. What would you suggest I proceed about this.I really would love to go back home to visit but scared the consulate will deny me. Confused as ever.

You should be able to get your OPT and even an H-1 and a green card. But if ever you want to travel outside USA, make sure you discuss the facts of the case with a competent lawyer. You have to make sure you have a good chance of getting a

I Need A B2 Visa
I am a citizen of Nigeria and presently studying in China with a resident permit but my friend wants me to visit him in the States and he has sent all the necessary documents for me to apply for a visa. I would like to know if I need a travelling experience to apply for US visa when Iam in China.

I am not sure what you mean by "traveling experience," but B-2 visas depend primarily upon the consular officer being convinced that you do not intend to overstay in USA or seek to become a long term or permanent resident during your visit. Good luck!

B1 Visa
I am a citizen of U.S. and had send the support documents. When my mother in law went for an interview they denied the visa because she stayed legally with the extension of three months in 1999 . After that she came to visit us in 2004 she went back by six months. At that time she got 10 years visa in 1998 multiple. My question is can they deny the visa without seeing the support documents.

They can do a lot of things, and often do, even things that are unreasonable. If you feel the decision is in error, contact the consulate through your Congressman.

B Visa renewal
I came back from states in 2003. I had mulitiple b1/b2 visa that was expired in 2006. Now, if I apply again so what are the chances? Can I get multiple visa again?

I see no reason why not.

Visa B2 - affidavit of support
I came to America 4 months ago. Am I eligible to send a visitor visa for my sister and her family? What should I do? Do I need a good financial credit?

Technically only US citizens or permanent residents can provide affidavit of support. You can read the instructions on Form I-134.

Can Europeans apply for B2 tourist visa?
I have been away from my fiance for a year now. I was planning to either apply for a B2 and after it for a F1. Since my Spanish passport applies into the VWP, can I still apply for a B2? If so, should I mention the real reason why I want the visa?I just want to spend time with him, as we still have 4 yrs ahead till he can apply for citizenship.

Yes, you can. Even if you are covered by Visa Waiver, you do have the option to apply for a B-2 visa. In my view, you must state the reason truthfully. As to what your chances are is impossible to predict.

Applying for B2 visa after voluntary departure from USA
I was voluntary deported from USA for over staying my b2 visa for almost 3 years ! What do I need to do to apply for the b2 visa again ( i am going for a medical reason )

Chances of obtaining a B-2 visa are slim if you have overstayed that long earlier.

How does one assist family in applying for B-2 (Visitors/Tourist) visa
Q1. How to Assist Family Members in Applying for B-2 (Visitors/Tourist) Visa? Q2. In filling out Form I-134 form (Affidavit of Support), If you look at the question No.1. It says are your Citizen...., or permanent resident of US. It has no column says are you H1B etc. What should I do here. Should I leave this column or do something else please guide me.

A1. There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often a friend or a family member (who is in the U.S.) of the applicant may be required by the consulate to provide Form I-134, Affidavit of Support.

Visitors I-94 extension on expired visa?
My mother entered US with a valid visa in June 5 and got 3 months stay (until Sep 5) as per I-94. Her visa has expired 2 months (Aug 5) after she entered in the US and now we're planning to file for I-94 extension but we're not sure if the visa should be valid (not-expired) for I-94 extension. Can someone please advice?

Once she is in USA, her stay is governed by the I-94, not the visa. There are other issues with extension (such as future problems in entering, etc.), but visa is not an issue.

Extension for Visitor Visa Denied Please Help
I applied extension for my mother, reason being she had a fracture 6 weeks before and was advised bed rest for 4 weeks. So I applied for extension and received I-797C in the mail (paid $300). Since I had requested 3 months ext, I rescheduled her departure date (luckily I bought 1 yr ticket, thx to my agent) and she left before 3 mos. I did not receive anything in the mail till then.Now, 3 days ago I got a letter from USCIS VT stating it is denied/abandoned as they did not receive any evidence supporting the app, file I-290B before Aug 23rd which has filing fee of $585!!! ouch. What can I do?

Not much you can do at this point. Keep copies of all documents so you can show that the overstay was entirely inadvertent. You may also want to get a new visa stamp. If the consulate says a new stamp is not necessary, explain how she fell out of status. You can send this info to the consulate by email and see what they say.

B-2 Visa
I have a friend whose an oversea worker and was assigned in Thailand,wants to visit me in San Francisco, CA. Is it possible for him to apply for a B-2 visa? What are the requirements? How much is the fee?

Sure. B-2 is for casual visits. I suggest starting with the consular web site.

Visitor Visa denials
I have been here in US for last eight years. I finished both my undergrad and grad degrees and presently under AOS based on skilled worker. My parents had applied for visitor visas on my three graduations, gradation of my wife, but got denied everytime. They showed enough balance and my father is a contractor. Should I give up my hope?

Barring extraordinarily strong reasons or evidence to the contrary, it is very difficult to overcome denial of discretionary visas like B, F and J.

B2 Visa
I have a B1,B2 visa issued in 1992, valid "indefinitley", allowing me to stay in the US for up to 6 months. Is this visa still valid today?

I have never heard of a "indefinite" visa. You should call the local US consulate in your country before you travel.

B2 -- unlawful presence
I have a B2 visa until Jan 2012. I had an approved H1 visa last year while I am here in the USA. But I have to get it from my home country , while my I-94 has expired already. As advised, I won't be able to come back since I overstayed my allowable I-94 duration. Being out-of-status already, what else can I do to make my stay here legalized? Can another employer like a school provide sponsorship?

Once you have accrued unlawful presence of over 180 days/one year, you become subject to 3/10 year bar from reentering USA. That is a very difficult position to be in. I suggest you speak with a lawyer about your situation. Read my blog for understanding more about unlawful presence.

Effective date on I-94 for a visitors visa
My parents came to US in 2009 to visit me. The effective date on I-94 form allowed them to stay in US for 7 months. After they left US, customer collected the forms and left no evidences about the effective date approved by immigration officer at customer in SFO airport. Now, they were rejected for new visa application to come to US due to this problem. How should we work it out with visa officer for this problem?

The usual time is 6, not 7 months. That could be part of the problem. If CBP gave them more time than is usual, your parents must not be penalized for it. In my view, contacting your Congressmen would help you.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

Applying for green card while on a B-1 or B-2 visa
1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? 2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application? 3) Is it better to apply for adjustment of status or consular processing for the last step of their green card? 4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?

A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

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

Visa after B-1 to F-1 conversion
I entered the US on a B1/B2 visa in febuary 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in Fall 2008, I transfered and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. Its been close to 3 years now and I really wish i can get to see my family back home. I will really appreciate any advices and help. I dont know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp. Please tell me what is the best way to approach this and the best thing that I can do.

Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.

Entering on/applying for nonimmigrant visa while green card is pending
I filed I-130 for my parents in April 09 which is still pending. They have 5 years multiple visa and they been here 4-5 times already. Is it ok for them to visit for a month again while their I-130 is still in pending status?

The answer is it is unlikely, but not impossible, that they will be permitted entry if CBP finds out about the I-130. If it were my own parents, I would probably not take the chance.

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Inviting parents to provide care during pregnancy or postnatal period
Here's the situation: LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.

Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.

A1. I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.
 

Can B visa holder convert to F or other status?
My question is that i have just entered USA on B1 /B2 visa on February 21 and sir now I am planning to stay here in USA...I am planning to carry on my further studies in Bridgeport university my arrival is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

B visa while GC pending or similar situation
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Using B visa with F-1
I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

Re-entry with B-1 Visa
I am a UK resident and currently have a B1 visa with 7 years to run. When I enter the US via LAX they always stamp my passport and issue the I-94 card for 12 months. We always leave before the date given. Question - do we have to go back to the UK (our country of origin) or could we go to Canada for a week and then re-enter the US?

You can go to a third country, but your entry back into USA can be declined if CBP believes you are spending more time in USA than you should. Typically, B visas are for brief visits (may be six months or less in a 12-24 month period).

Visa for family to visit brother
I have a brother here in US who is diagnosed with cancer. I would like my mom and brother who live in India to come and visit him. What type of visa should they apply for in India and how long will it take? On which visa can they come as soon as possible.

Tourist visa seems to be appropriate. Times vary by consulate and are usually very short -- often visa is issued the same day an application is made. You can also get an appointment for emergent reasons.

B-2 to B-1
I am an IT professional who has come to the US for medical treatment on a B2. I am getting better. Since I like to constantly upgrade my skills, I found some training programs that I could attend as they are more frequent in the US than in Canada. Can I attend them on a B2? I mean I have a B1/B2 visa, but the officer marked it as B2 on the stamp on my passport at the POE. Second - I also have got an offer for a one day lecture to some technology professionals for which I might get paid. How would the folks know I worked for a day if while exiting the country there is no checking?

I believe you can take training on B-2 as long as your main purpose of stay in USA is is still medical treatment. Getting paid may be a bad idea.

B1/B2 Category
I have already applied for the draw for the Diversity Lottery Visa for which I am eligible.If at all I dont get selected and want to make a B1/B2 application thereafter will I have to mention in the application form that I have been denied such a chance for lottery before and if I choose not to do so can the consulate people find out that this person has made such an application before.Please advise for the correct approach.

As far as I can think, you would have to reveal your DV application. Not having researched DV specifically, I can only say that generally, having applied for a green card makes getting a B visa much more difficult.

Visa for Mother in law
I am a U.S citizen but my husband is not yet. My mother in law has been battling cancer for a while and I would love for her to come here and get medical treatment and to just see her grandson. She is from El Salvador, is there any way for us to do that?

A B-1 visa is appropriate for medical treatment.

I have been revoked to seattle with visa B1/B2
Last november 11, 2009 I went to seattle for vaccation. I detained: 1-one returned ticket for may 3, 2010; 2-one electronic ticket for one mission on geneva from december 1st to 7, 2009; 3- 3books for my online MBA courses; 4- one visa B1 & B2 for 10 years issue on july 2007, 5- a letter for my employer. But when I arrive to airport the immagration office say that I came to work or study, but not for vaccation. They put me in Jail ARROUND 1 MONTH and they revoked me. I want to know the way to make my complaint and ask to review my case. I am an international worker since 1999.

You will need a consultation with a lawyer. It appears you were formally denied admission and excluded from entering USA. The one-month detention sounds strange. Anyhow, get a lawyer, this is not a simple matter.

Applying for B1/B2
Have a pending I-130 with priority date of 26 OCt 2002 In the F2B category, now my cousin wish for me to visit her in MARYLAND, My parents and siblings live in the states and I have been denied B2 Visa befor in 2002 , but I have also travelled to the US before as a child first in 1987 and 1992 with my father. QUESTION is I have 5 Years working experience in a bank, I have travelled to the UK,FRANCE,ITALY AND SPAIN regularly on holidays in the last 3 years. What are my chances of getting a visitors visa? If my chances are not bright, I might as well forget about applying for a visitors visa.

Your chances are slim, but it is impossible to predict.

How to apply for visitors visa?
My mother in law would like to visit me and her grand daughter and i would like to get her a visitor visa what do i need to get that and how do i get one?

She needs to contact the US consulate closest to where she lives. Normally, they will be able to tell her what she needs to bring and what the procedure is. This information should also be available on consular web site. Most consulates also respond to e-mail enquiries.

B Visa renewal
I came back from states in 2003. I had mulitiple b1/b2 visa that was expired in 2006. Now, if I apply again so what are the chances? Can i get multiple visa again?

I see no reason why not.

B-1 visa for amateur singer
I am an amateur singer who has had an american label interested in carrying my CD's (this is my first CD, and I have never been paid for my music before). They intend on having me appear on shows on radio and tv nationally, and to do press, both by doing interviews and performing. Would I qualify to do interviews and perform for national tv shows under a B1 visa, since I am still an "amateur" singer? Or am I NOT an amateur just because a major label is carrying my CD?

In my view, a B-1 would be appropriate because you are not engaging in any employment that would take a job away from a US worker and you are not getting paid for your appearances.

B-2 to B-1
I am an IT professional who has come to the US for medical treatment on a B2. I am getting better. Since I like to constantly upgrade my skills, I found some training programs that I could attend as they are more frequent in the US than in Canada. Can I attend them on a B2? I mean I have a B1/B2 visa, but the officer marked it as B2 on the stamp on my passport at the POE. Second - I also have got an offer for a one day lecture to some technology professionals for which I might get paid. How would the folks know I worked for a day if while exiting the country there is no checking?

I believe you can take training on B-2 as long as your main purpose of stay in USA is is still medical treatment. Getting paid may be a bad idea.

B2 visa and change of status
I am currently in the U.S. with B2 visa. Can a company that intents to hire me, apply for a work permit on my behalf and change my status while I am in the U.S.?

You can, but it is almost never a good idea to convert from a B to a longer term visa. Please discuss the consequences with your lawyers.

B2 visa to green card
I am a US citizen can I apply for green card for her while she is in US and can she stay here while the application is in process?

The answer to both your questions is - yes. But you MUST speak with a lawyer to understand all the nuances of her case.

B-2 Visa Multiple destination
My grandmother has a B2 visa to visit Guam. After her two week stay, she wants to visit her other daughter in California but she will have to go back to Philippines for a day because its cheaper to travel from Phil. to Cali. Can she still use the same B2 visa. When will she have to surrender her I-94? After the California trip?

As long as the visa is valid and permits multiple entries (not all visas do), I see no problem.

B2 Visa
I am US citizen trying to bring my friend from Pakistan to visit me in America , how hard is the process for him to visit, as we have never offical met in person, but are connected online. I hear you have to have proof that we actually have met, like pictures?. Is this hopeless? Would it be better for me to meet him out of the country?

Getting a B-2 visa for a single person tends to be very difficult. If you meet him once, you can get him here on a Fiance (K-1) visa. That is much better if you want to get married.

B1/B2 Category
I have already applied for the draw for the Diversity Lottery Visa for which I am eligible.If at all I dont get selected and want to make a B1/B2 application thereafter will I have to mention in the application form that I have been denied such a chance for lottery before and if I choose not to do so can the consulate people find out that this person has made such an application before.Please advise for the correct approach.

As far as I can think, you would have to reveal your DV application. Not having researched DV specifically, I can only say that generally, having applied for a green card makes getting a B visa much more difficult.

Return to America on a B-2 visa
I want to know how long I have to spend in my country before I can return back to America,I left there on october 27 and I have a B-2visa.

I cannot give you a hard and fast rule, but generally speaking, CBP wants you to spend more time outside than inside USA each year.

I have been revoked to seattle with visa B1/B2
Last november 11, 2009 I went to seattle for vaccation. I detained: 1-one returned ticket for may 3, 2010; 2-one electronic ticket for one mission on geneva from december 1st to 7, 2009; 3- 3books for my online MBA courses; 4- one visa B1 & B2 for 10 years issue on july 2007, 5- a letter for my employer. But when I arrive to airport the immagration office say that I came to work or study, but not for vaccation. They put me in Jail ARROUND 1 MONTH and they revoked me. I want to know the way to make my complaint and ask to review my case. I am an international worker since 1999.

You will need a consultation with a lawyer. It appears you were formally denied admission and excluded from entering USA. The one-month detention sounds strange. Anyhow, get a lawyer, this is not a simple matter.

Applying for B1/B2
Have a pending I-130 with priority date of 26 OCt 2002 In the F2B category, now my cousin wish for me to visit her in MARYLAND, My parents and siblings live in the states and I have been denied B2 Visa befor in 2002 , but I have also travelled to the US before as a child first in 1987 and 1992 with my father. QUESTION is I have 5 Years working experience in a bank, I have travelled to the UK,FRANCE,ITALY AND SPAIN regularly on holidays in the last 3 years. What are my chances of getting a visitors visa? If my chances are not bright, I might as well forget about applying for a visitors visa.

Your chances are slim, but it is impossible to predict.

How to apply for visitors visa?
My mother in law would like to visit me and her grand daughter and i would like to get her a visitor visa what do i need to get that and how do i get one?

She needs to contact the US consulate closest to where she lives. Normally, they will be able to tell her what she needs to bring and what the procedure is. This information should also be available on consular web site. Most consulates also respond to e-mail enquiries.

B Visa renewal
I came back from states in 2003. I had mulitiple b1/b2 visa that was expired in 2006. Now, if I apply again so what are the chances? Can i get multiple visa again?

I see no reason why not.

E-3 dual intent
I am married to a permanent resident of America, and have filed for a spouse visa (I130) in Sept 2010. Is it possible for me to apply for the E-3 visa with the spouse visa being processed, or does it demonstrate dual intent?

E-3 is not a clear dual intent visa. BUT, govt. tends to lean in the direction that they will permit dual intent as long as you clearly intend to leave if not permitted by law. My suggestion would be to avoid testing the E-3 limits in our current environment.

E-2 visa
Can someone apply for E-2 visa ,who now residing in USA,is it possible and how long it will take?

Yes, they can. I believe premium processing is available for E visas. If you opt for that, it could take a few weeks.

E-3 & Diversity Visa Application
Could entering the Diversity Visa Lottery have an adverse effect on a future application for an E3 visa?

No, I do not believe it would have any affect.

H-1B and E-3
I was working in US on E-3 visa before H1B. Which means I entered USA earlier. When does my 6 years clock starts?

In that case, your 6-year clock begins to run on the date you converted (changed status) to H-1.

E-3 for performer
As an australian actor/singer and teacher...would an E3 work for me and could an agency act as an employer in that case?

E-3 visas are available only for those jobs that demonstrably require a bachelor's degree in the field of work you will be performing. We recently provided assistance in an E-3 visa for a Shakespearean actor and teacher who was coming to teach acting classes in USA. He would probably not have qualified as an artist under E-3 visa, because to be an actor, a bachelor's degree in performing arts is usually not required. But as a teacher, a bachelor's degree was indeed required.

E3 visa
My E3 visa was applied and approved through an employer. I never joined the company or got paid. Are there any legal implications to the company as a result of me not taking employment with the company?

The employer should withdraw your application.

E-3 Visa - Accountant
I am Australian Citizen with Accounting Degree and looking forward to apply for E-3 Visa. Do I need to have job offer letter from the employer. How big the employer should be?

You do need a job. The company does not have to be a specific size, but it should be large enough to require a professional accountant (not just a book keeper).

E3 to H4
I am in the US from Australia and just lost my job as an Engineer. I was on an E3. My wife has an H1B and is employed. Since E3 restrictions give about 10 days grace period, our immediate option is for me to go to an H4. Does anyone know how long this process usually takes if I am currently in the US and what I may have to do.

Just go to Canada or Mexico and get your H-4 stamping and come back. That should work.

E-3 Visa
Are E - 3D visa holders allowed to work as freelancers?

To the best of my knowledge - no. You need an employer.

E visa
My sister's family lives in Sydney. They own a restaurant business. Can they move here with E class visa and open their restaurant here in States? She is not a citizen of Australia yet, but her husband and son is.

There are three kind of E visas: E-1, E-2 and E-3. You are probably thinking of E-2. Please read up on them. The primary applicant must be a citizen or national of the country in question. Their family can come as derivative beneficiaries.

Business on E2 has closed. Need help
My husband and I came over on E2, he was partners as a mortgage broker, due to economy the business did not make a good profit and attorneys have said that we will not get E2's renewed. So rather than keep throwing money away the business has closed its doors. We have approx $600k invested in the US in property. This is owned outright. I have been to college an got a diploma, with a 98.6GPA. Apparently this is of no consequence when it comes to staying in the US. Any advice of what else we can do. We need to act quickly. We are looking at losing over $200k to move back to UK. Due to economy.

You can apply for B visa to stay for a few more months. You cannot do business on that visa, but at least you will be able to sell when the time is better. Details are on my blog.

E-3 and TARP
I was wondering if the "Employ American Workers Act" applied to people who apply for the E-3 visa ? The act, from my understanding has restrictions on the H-1B and companies that have taken TARP funds.

As far as I recall, TARP focuses only on H-1 employees. See my blog article with links to the law: http://forums.immigration.com/blog.php?b=94

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
I (a software consultant) have EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know a- Can they do it legally? b- What are my options including can i sue this employer despite being on EAD?

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
 

E-3 Issue
I am an Australian citizen currently on a B2 that expires in Oct. I lodged I-539 application for extension in Aug and received I-797 receipt Aug 25. I may have found an employer that will sponsor me on an E3 visa (Australians only). All I need is a letter of offer and a completed Labor Condition Application. To apply for the E3 visa though, I need to leave the USA and visit a US consulate. I do not have my original I94 any more (I submitted it with my I-539) but I do have a copy of it. Once I get a letter of offer, I will travel to either Toronto Canada or home to Sydney Australia to apply for the visa. Qo1. Can I still leave the USA without the original I94? Qo2. In the event my E3 visa is denied, will I be able to re-enter the USA from Canada without the original I94, provided my stay in Canada is less than 30 days? (And how would this work if I take the trip up there after the expiration date of the original I94? Remembering that my B2 extension is pending)

 Ans1. Yes. You should not need an original I-94 to travel out.

Ans2.  You probably cannot reenter using a copy of the I-94. Not only that, your departure from USA renders your pending B application void (considered abandoned).

They way I see it, you have two choices. Wait for B extension before you go for E stamping. Or, go for E stamping bearing in mind the consequences of abandonment and reentry not assured.

E-2 visa
Can someone apply for E-2 visa ,who now residing in USA,is it possible and how long it will take?

Yes, they can. I believe premium processing is available for E visas. If you opt for that, it could take a few weeks.

E-3 dual intent
I am married to a permanent resident of America, and have filed for a spouse visa (I130) in Sept 2010. Is it possible for me to apply for the E-3 visa with the spouse visa being processed, or does it demonstrate dual intent?

E-3 is not a clear dual intent visa. BUT, govt. tends to lean in the direction that they will permit dual intent as long as you clearly intend to leave if not permitted by law. My suggestion would be to avoid testing the E-3 limits in our current environment.

E3 visa for LPN
I already have a USA LPN license, was just wondering if its possible to get E3 visa to work in USA, I am an Australian citizen. What are the requirements?

As far as I remember, most nurses jobs do not qualify for H-1/E-3 type visas because a US Bachelor's degree is not required for the jobs. If you can find a job where a Bach. degree is the minimum requirement, you can be eligible for E3 or H-1B.

E-3 for performer
As an australian actor/singer and teacher...would an E3 work for me and could an agency act as an employer in that case?

E-3 visas are available only for those jobs that demonstrably require a bachelor's degree in the field of work you will be performing. We recently provided assistance in an E-3 visa for a Shakespearean actor and teacher who was coming to teach acting classes in USA. He would probably not have qualified as an artist under E-3 visa, because to be an actor, a bachelor's degree in performing arts is usually not required. But as a teacher, a bachelor's degree was indeed required.

E3 visa
My E3 visa was applied and approved through an employer. I never joined the company or got paid. Are there any legal implications to the company as a result of me not taking employment with the company?

The employer should withdraw your application.

E-3 Visa - Accountant
I am Australian Citizen with Accounting Degree and looking forward to apply for E-3 Visa. Do I need to have job offer letter from the employer. How big the employer should be?

You do need a job. The company does not have to be a specific size, but it should be large enough to require a professional accountant (not just a book keeper).

E3 to H4
I am in the US from Australia and just lost my job as an Engineer. I was on an E3. My wife has an H1B and is employed. Since E3 restrictions give about 10 days grace period, our immediate option is for me to go to an H4. Does anyone know how long this process usually takes if I am currently in the US and what I may have to do.

Just go to Canada or Mexico and get your H-4 stamping and come back. That should work.

E-3 Visa
Are E - 3D visa holders allowed to work as freelancers?

To the best of my knowledge - no. You need an employer.

E-3 visa dual intent - applying for green card
I am an Indian born, Australian Citizen on a E3 visa. Does applying for a Green Card jeopardize my chances of getting E3 visa renewed in the future? My wife is on E3D visa and has EAD. She is working now and can her employer start GC process and will that jeopardize her E3D visa renewal and/or my E3 visa renewal? What is the best bet? Applying GC on my name or her name? Both are qualified educationally and both have jobs in the U.S

Applying for a green card should not be a problem for you or your wife. I always suggest filing two independent green cards where the option is available. This provides for a safety net if the process fails for one of the spouses.

COS from H-4 to F-1 visa
I want to change my status from H4 to F1 and assuming that it would take approx 3-4 months. If I apply for COS today, I make a trip to France (I am French citizen) next week, can I re-enter US on my valid H4 visa? Or do I have to wait until F1 is approved, get it stamped in Paris and then re-enter US?

You do NOT need USCIS approval to apply for F-1 visa. Just apply for F-1 visa during your visit to France. Ask the school to explain the formalities to you. By the way, if you leave USA during a COS request, the COS is deemed abandoned.


 

H1-B to F-1
I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?

If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

I got my BSN in the US
I got my BSN in the US, passed NCLEX and got my employment authorization. I am currently on F1 visa, and working at a nursing home. I live in MN and it was extremely hard to get a job. How do I apply for a green card and what role will my employer play in this process? Is it going to cost my employer any money? And how long is it going to take to get a green card?

Your employer's role in this process is limited. You can pay for all expenses yourself. The length of the process is determined by the country of birth.

My spouse working illegally
I am a F-1 student. My spouse is on F-2 visa and he is not supposed to work. If he works and it is found out, I know he will be expelled. How about my responsibility? Will I be also accused and be expelled?

You are not responsible for your spouse's illegal employment. I don't see how the govt. can hold otherwise.

F-1 reinstatement
I am a F-1 student from India. I was declared out of status by the college as I dropped below 12 credit hours this semester. I had a sprain in my ankle, but i did not visited any doctor for such small thing, and as a result i don't have any medical proof to back my story in reinstatement. I am confused weather this reason (ankle sprain) will be sufficient for my reinstatement application to be accepted, or weather i should try re-entry with a new I-20; and if re-entry is a better option, from which country? (my home country(India) or any other country such as Canada, or Mexico).

As far as I know, reinstatement requires exceptional circumstances. A sprain may not be it.

Lost old EAD card for another OPT application
I am currently a PhD student and preparing for application for OPT. Previously in 2004 upon earning BS degree, I got OPT and worked for a summer. In preparation for a new OPT, I realized that I need to provide copy of front and back of the previous EAD card. However, I cannot find the card. I just found copy of I-765, I-94, and I-20 for the previous OPT.If I submit without copy of the previous EAD card, will I be likely to be denied for the new OPT? Also, what is the safest way to deal with this situation.

First, discuss the possible solutions with your international students office. Second, call USCIS customer service and ask for solutions. Third, provide whatever you have with a full explanation to USCIS when filing the new OPT.

Student visa
I have student visa and want to come to the US earlier than that 30 days allowed period of time.Probably one month earlier.Can I enter on visa waiver and before school starts re-enter the US by going to mexico or canada to activate the student visa? (which i was told i need to do).if i do so,do i need to buy one way or round trip ticket since i do not need to go nack to europe to re enter the US and how do i explain it to the immigration officer that i only have one way ticket? a while ago i learned i need to obtain change of classification and fill form I539 which takes months.is that so?

There are several issues here and the outcome is uncertain, so I would advise against it. Your idea of entering on visa waiver and then later "activating" the F-1 through reentry should work, but I am concerned about how CBP will view your entry without a return ticket. Of course, you must always tell the truth and the truth appears to favor you, but I have no clue how a CBP officer would view this entry on Visa Waiver.

F1 visa to business visa or H1/L1
Which visa is easy to apply. Is it business visa or H-1 visa?

If you qualify, H and L visas are certainly more secure than an F visa.

F1 and OPT Expired but 60 days not up
I have a Bachelors degree and a Masters degree from the US. My EAD from my masters degree recently expired and the 60 days is almost up. I dont want to go back to school or go back to my home country. If i do find an employer willing to file for a green card based on EB2, will have to go back to school to maintain my status while the green card is in process or will my status change once the paper work is turned in?

This is a common misunderstanding. Starting a PERM-based green card does not give you the right to stay in USA.

Need information
I entered USA on F1 visa with my married name. As i got divorced a week before flying to USA wasn't able to change the last name. Now i am graduating soon and wish to obtain certificate in my maiden name. So i got my last name changed in passport from Indian Consulate San Francisco. But in my new passport there is no visa. So what should i do? The consulate and my school says that whenever i go back home i need to get a new visa. So is that true? Will there be any problem in going back India for summer vacation and getting a visa again? Is it possible to get visa here?

Generally speaking, getting a new visa endorsement should not be a problem. You cannot get a visa within USA.

Status change from F1 to H1b
I got F1 in Jan 2009. Got H1b approval in May 2009. H1b approval means just got I797B form. I preferred to join Fall 2009 semester in University and came in USA in Jul 2009, got I94 with F1 and continued to fulfill F1 obligations.Now I want to change my status from f1 to H1b, and its seems my employer needs to file a petition with form I-129, will that means it should be applied April 2010 and all the balloting process and I will be able to start work after 1st Oct 2010. Will my existing unused H1b approval be able to be used and to exempt cap and and all things required? And can I get I797

You are cap exempt and should be able to change status OR get H-1 visa stamping right away. No waiting till 1 Oct.

Visiting Canada on a student visa
My boyfriend is here in the US on a student visa. He graduates at the end of the week. He has put in his application for OPT and it is pending. We had plans to travel to Canada to visit his family for the holidays but now are worried that he will not be able to get back into the US since the student visa expires and the OPT has not been issued yet. Do we have any other options?

Get together with the school and tell them the visit is only to Canada. Also contact CBP. Once OPT is approved, travel to Canada and back to USA for less than 30 days MAY be an option without a visa. This is referred to as "automatic visa revalidation." You can do a search for that term on http://travel.state.gov

F1 visa to H1-b
I just completed my undergraduate degree and my F1 status does not expire till May 2010. My OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim OPT application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.

Since the H-1 quota is over, OPT is your best option as far as I can tell.

B-1/B-2 visa to F-2 visa
I came to US by b1/b2 visa, now I want to change it to f2. My wife (we got married 4 months ago, when i came to the states) is studying here. We have a baby whom was born here 3 months ago. Now I can't go back to my mother land to get a visa, because my wife doesn't have a visa but just valid I-20 form. Do you think I should apply for a status change here or should we go to Canada to get visas? What is more safe for us?

There are several issues here that should require you consult with a lawyer. For instance, USCIS does not like it when people enter USA on a short-term visa and get married or try converting to a long term status (like F-2).

F1 student (wife of a GC holder) - pregnant
I'm on F1 and got pregnant. Can I take a break for sometime and get back to studies? My husband is a GC holder..well we got married after he got GC. Now can he apply for a family based GC for me, I kind of know that it takes atleast 4 yrs for me to get GC...but just wanted to make sure that he can apply while I am on F1

For various reasons, I usually see no point in applying for a green card through a permanent resident spouse while you are on an F-1. About taking a break, the F status requires you to attend school full time unless there is a medical necessity. You need to discuss that with your international students advisor.

Time Frame for Green Card
I am a college freshman student on an F-1 visa and am thinking about applying for green card, as I have also completed 2 years of HS in the US. Any idea how long the green card process may take and should I apply already for green card now in order to possibly get it by the time I graduate college?

The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.

Confused - B-1 to F-1 change
I came to the US on a B1 visa got it changed to F1-->finsihed 4 years of undergrad moved on to 2 years of Masters(both in engineering). I am yet to apply for OPT. Is this going to affect my chances due to the entry method; also what will happen if I get a company that want to sponspor me. Would you advise me to go back home to rectify my visa situation. Because the B1 visa I entered the country with is expired, I haven't travelled out of the country. What would you suggest I proceed about this.I really would love to go back home to visit but scared the consulate will deny me. Confused as ever.

You should be able to get your OPT and even an H-1 and a green card. But if ever you want to travel outside USA, make sure you discuss the facts of the case with a competent lawyer. You have to make sure you have a good chance of getting a

Student Visa
I'm a H.S Senior student, I have studied all my school year in the U.S but Iam a citizen of Mexico, can I receive a student visa while in the U.S?

Not if you are in USA without status.

Travel during 90 days of OPT without Job
My OPT started on September 16th, 2009 and I don't have job or job offer yet. But I need to travel outside the USA for 1 week. I talked to the International Adviser of my University and she told me its fine to travel no problem. I don't still feel safe. Can anybody answer whether I will be allowed to enter or not? I have other documents.

This is what ICE says:
2.O.

Sponsoring daughter over 21 on F1 status
I'm a permanent resident and I would like to know if I could sponsor my daughter who is over 21 and is currently on F1 status. If so, would she be allowed to stay in the U.S. if her visa expires during processing? How long will this process take.

I am assuming you are asking me whether a green card holder can apply for a green card for an over-21 child. The answer is yes, as long she is unmarried, you can. But she cannot stay in USA based only upon the fact that you have applied for her.


Check out the Visa Bulletin: http://www.immigration.com/visa-bulletin


 

F-2 visa
Can I work in the campus of the school with F-2 visa?

I do not believe F-2 visa holders have any option for work while they are in F-2 status.

Working after studying
After studying a 1 year graduate course in the US. Would I qualify for a work permit? Or would I still have to find an employer to sponsor me first before I could apply for the work permit?

There are several different kinds of work authorizations like OPT, CPT, etc. Contact your International Students Office.

F1 Visa Expired on OPT
I got a 2 year visa for my Masters and my Visa was expired on May 31st 2009, I converted to OPT from June 1st, 2009. I am on OPT and I do have a job now. I got an emergency now to go to India. Is it possible for me to reenter United States.

You will need to get the visa stamping done again.

Social Security Card -- F-1 visa
I currently have both an B1/B2 and F1 visa. I got into a graduate program at a university in Teaneck, New Jersey. What are the possibilities of getting a job off campus and would i be able to get a social security card..? What are the issues i have to deal with in such cases?

You need to discuss your options with your International Students Office. Ask them also about curricular practical training, where you are allowed to work for credits.

F-1 working off-campus
I have a small query that F-1 student are allowed to work on-campus(20 hr) and for off-campus they need work permit but if they solve quetsions over internet and get paid by someone outside US then is it legal? or does it require any permit? In other words if some student (F1) provide support to some company outside USA (over internet) and get paid is it legal?

I do not believe there is any law that specifically addresses this issue, but I believe all work done on US soil is likely to be considered illegal.

F1 and starting a business
I was just wondering what the laws say about an F-1 student working for the company that he co-founded when he's on OPT. Suppose that I start up a new business while I'm still a full time student, I can't draw a salary from it but I maintain ownership, in part or whole. When I'm done with school, and approved for my OPT, can I work at my company and draw a salary from it then?

As far as I know, theoretically, you could be working for yourself on OPT as long as your work is related to your area of study. I think I read that in one of the FAQ issued by USCIS. But you will not be able to continue doing that on H-1.

F1 visa denial
I was denied a visa this morning under 214(b) in Kuwait. I have been working in Kuwait for a year (I am an expatriate), and have an offer of employment upon return from my studies. I just received a letter to that effect (after the denial). This is my second denial. Would the letter be sufficient as additional evidence for reapplication? I also have a bank account containing about $3000 which I plan to keep for when I return (apart from my sponsor's account).

214(b) denial is based upon a suspicion that you have no intention of returning to your home country. This ground is almost impossible to overcome when you are an expatriate, but you can try. I hate to be the bearer of bad tidings, but I doubt this will work.

Traveling on OPT-F1
I am on OPT F-1 Status after my second degree. I need to know what other parts of US outland I can visit besides Hawaii without having any immigration problems?

Normally, travel to "contiguous territories" (like Canada and Mexico) does not require a visa when the trip is less than 30 days AND you do not happen to be a national of one of the eight countries that US govt. looks upon with some suspicion. But there can be immigration problems. Trip to any one of the 50 states presents no special issue.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

Visa after B-1 to F-1 conversion
I entered the US on a B1/B2 visa in febuary 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in Fall 2008, I transfered and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. Its been close to 3 years now and I really wish i can get to see my family back home. I will really appreciate any advices and help. I dont know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp. Please tell me what is the best way to approach this and the best thing that I can do.

Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.

F-1 visa stamp, H-4 pending
I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April. In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India. Now we are very much concerned that what will happen to my H1 and her H4? 1) Since she has F1, will it affect H1/H4 processing? 2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same? 3) Is it possible to have F1 and H4 both together at the same time? 4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?

1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

3. Generally speaking, no.

From H-4 to F-1
1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification: If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ? 2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same? 3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS, CA ? Will I get an approved F-1 by then ?

1. No. An I-539 is used if you want to change status within USA.

2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

3. No one can predict that. Sorry.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

Can B visa holder convert to F or other status?
My question is that i have just entered USA on B1 /B2 visa on February 21 and sir now I am planning to stay here in USA...I am planning to carry on my further studies in Bridgeport university my arrival is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands

While it is permissible to change from one status to another from within U.S., it may not always be advisable.

Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

Can F/J holders apply for green card?
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

Turning 21 - do I have to convert to F-1 from H-4?
My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

 I do not see any way around filing an F-1.

Do advanced degrees help in marriage-based green card?
I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

 1. Advanced degrees do not help in a family-based green card.

Can H-4/F-2 holders perform volunteer work?

The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?

F-1 OPT - No Job
I was approved for my OPT on February 2008 for a duration of one year. At that time, I was allowed to stay in US for 1 year while looking for job. On April, 2008, a new regulation came according to which a student on OPT can not stay in US without job for more than 90 days. I was not aware of this rule until end of September 2008. Now I have applied for dependent visa. My worry is that unknowingly I stayed for around 6 month without job when I was actually allowed for only three month. I am worried that is this mistake going to affect my new visa approval? Is there anyway I can explain USCIS that it happened because I was not informed about this rule and I did not come across it.

Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.

B visa while GC pending or similar situation
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Using B visa with F-1
I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

Two-year home residency requirement
Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

F-1 Curricular Practical Training (CPT)
As part of our Curricular Practical Training (CPT), I completed my summer internship with a company on 2nd of the September. So the formal procedure for extending the work is to apply again for the new CPT but somehow my second CPT delayed and got approved on 28th of September. Between 3rd and 28th for around three weeks, company asked me to work and I did. At the time I was not aware of the consequences but now I am in a great trouble. What do I do?

You have two choices that I can see: apply for reinstatement or go outside USA and reapply for a visa.

Out of F-1 visa status
I just found out a couple of days back by my international advisor that I was out of status for two years now for taking classes in a community and transferring credits and it made me a part time student..He suggested I left the country after the semester and come back with the new I-20 and letter of recommendation he gives me. And I also I have been married to a US citizen for 2 months. Is it safe to go out of the country?

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

RN F-1 visa
I have just received my BSN and I'm currently awaiting certification from California. Will actively look for job once certification is approved. Have F-1 visa and just received OPT for a year. Can I qualify for "green card for nurses" after OPT period is over if already in country and having matriculated in the US? Any other recourse for permanency?

You will have several years of wait in the green card process.

I130/485 for wife
I will become a US citizen in Jan. 2010. My wife is an F-1 student but will graduate on 12/12/09. Is there any problems if I file I-130/485 for her be the end of her grace period(2/10/10)?

I do not see any problem if the 130/485 is filed during the 60 days following the F-1. In any case, she can and should apply for OPT.

MAVNI to F-1
I came US in f1 visa and i was maintaining my status till I was enlisted in US army through the mavni program and due to enlistment I way authorize by college to terminate my i-20 so that I can go for basic training. But I was discharge from the army(uncharacterized). Is it now possible to regain my f1 status.

You need to get back with your International Students Office and see what they recommend.

Travel overseas on F-1
I am an international student on F-1 from France, I just finish my semester and I am now transferring to a new school starting classes early October. Since I have almost a month off, I had thought once I get my new I-20, about going back home in France for a couple of weeks, but when I said that to my new school advisor, he suggested that I shouldn't travel overseas until the thanksgiving break comes and after classes start, however; I am not sure that this information is correct. I thought that once I have my new I-20, I could go home and come back without any problem. Should I go or not?

I do not know the details of your case or your SEVIS status. If your International Students Advisor is experienced in immigration law (most of them are), you should take their advice but ask them to tell you the reason.

G-4 to H1B
1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B? 2. Can they apply for a GC after I have an H1B approval?

If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.

H-1 transfer during pending extension
My H-1 extension with the current employer is applied and is pending. My current H1 expires on 25th. If I apply for a transfer to another employer after 25th Sept., then is it necessary to have approved both extension and transfer in order to work with new employer, because I file transfer after my expiration of current H1?

If, by the time your second H-1 is approved, the first H-1 is not, USCIS can approve the second H-1 only without an I-94.

Transfer of jobs under same employer
I am working for a newspaper in the U.S. as a designer under the H1-B visa. I might be taking up a job as a reporter at the same newspaper in the same location for the same salary. The only thing that would change would be my job profile. What are the USCIS formalities involved in this particular situation? Would my employer have to file a whole new I-129? Would the entire petition process have to be undertaken again?

The employer will have to file for an H-1B amendment. It is like doing an H-1 all over again, but the fees can be a lot lesser.

H-1B to B-2
I am working in USA on my H-1B right now and my wife is on H-4B. My H1 is valid until 2013. I am planning to leave my job within next few months. After that, we want to visit entire USA for few months before I go back home. Can I change from H-1B(for myself)+ H-4B(for my wife)or B-2 Visitor for both?

You can and should apply for B2 for both.

H-4 Visa and Status Validity
My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012 My questions : 1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ? 2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

OPT - H4 - H1
I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions: 1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4? 2) How difficult it is for an employer file for H1 from H1 and what is the process? 3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


 

Business in the US, on H1B visa
Fact "H1Bs cannot do their own business in US". So checking the legal limit with below scenarios. 1. Can a H1b, while working for H1 employer, work for non US employer using options like work from home or other internet technologies and earn in their local currency without further documentation? 2. Does anything changes if the non US employer has clients in US and the person in above position actually work with those clients under the payroll of non US based organization? 3. Does it cross the legal H1B limit if we assume the H1b person in scenario 1 and 2 is also the owner of non US company and earns in local currency not USD?

1. In my view, no.
2. No. The critical thing is that the work is being performed on US soil.
3. I believe this too would be illegal under immigration laws.

Switching Jobs after I-140 approval
I-140 App Aug 8th 08, EB2 Priority Date Mar 7th 08, H-1 In 8th Year, expiring May 12, 1.If I move to a new company (B), can I still keep my Priority Date which I have from my current company (A)? 2.Can the current company (A) withdraw my application in such a way that I loose my priority date?

1. You can keep the PD only as long as the sponsoring employer does not revoke your I-140, go out of business and USCIS does not revoke the I-140 OR, USCIS does not revoke the I-140 for fraud.


2. No.

H-4 Visa Stay in US
My husband is on H4 with an I94 valid till June 17, 2011 and I am a H1B visa holder with a valid petition document. I am planning to go for a vacation. Will it be a problem if I leave my husband (dependent) in US and go for a vacation and come back in 3 to 4 weeks?

A few weeks absence should create no problems for your dependents.

H-1B Stamping
I got my H1B approval on 31 Dec 2010, thus my visa status changed from F1 to H1B (I am currently going to grad school and graduating in April 2011). My company wants me to get my visa stamped. I have heard various stories about problems faced in Canada for first time stamping. Is this really an issue? Is there any law which prevents us to get first time stamping done in stamping done in Canada?

H-1B stamping has been made difficult by consulates. There is nothing stopping you from applying in Canada, but your lawyers need to help you decide what is best.

H-4 rejected under 214(b)
My wife's H-4 got rejected under section 214(b) recently and interview went for less than minute. Should I apply again ?

In my view, H-4 cannot be denied under Section 214(b). This is an error. Apply again.

H-1 Extension
I have filed for an Extension in the month of August'2010 as my Visa expires on Sep1'2010. I have not received anything yet. The Status is still in initial review. I have plans to go to India on Jan28. Should I convert to Premium now or shall I wait. My Case is with California?

Personally, I have seen no correlation between premium processing and increased RFE's.

H1-B Visa Transfer
I worked in US till August 2010 through my H1-B visa in some company. I had to come to India due to some problems. Now I am in India. My question is, can my visa be transferred when I am in India by some other US company so that I can again go back and work in US. My H1-B visa expires on 2013.

The H-1 can be "transferred" - yes.

H-1 extension beyond 6 years
My situation. I work for company A 1. My 6th yr H1-B ends in Dec 2011 2. Labor approved (PD May 2010) and I-140 (applied Sep 2010) pending - EB3 3. Once my I-140 gets approved (hopefully) my lawyer's plan to apply for a 3 yrs extension some time next year (Till Dec 2014). After/If I do get my extension for 3yrs with my company A, then Can I change my job to company B in 2012(who is willing to do my labor and I-140 again).

An extended H-1 can be transferred, but obtain the extension before the former employer revokes the I-140. I see no issues (generally speaking) with a PD transfer, unless USCIS (not the employer) revokes the I-140. Ask your lawyers for details.

H1B interview travel cost reimbursement
I am currently on H-1 and interviewing with another company. The interview involved air travel within the US and staying at a hotel. Is anything wrong with my prospective employer reimbursing the air travel and hotel costs and also providing reasonable allowance (for covering food) for the days of my stay? Would receiving a cost reimbursement check from the prospective employer invalidate and/or interfere with my current H1 visa status?

Interesting issue. I do not believe there is any law covering this situation, but in my view out of pocket expense reimbursement including food is acceptable and is not a violation of H-1 status.

Advance Parole
Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question is can she go to India with advance parole and come back, will there be any problem?

If her I-485 was pending, she would not be out of status.

H1-B to F-1
I am currently in US on H1-B and wanting to switch to F-1? How long does this process usually take? Is there an option for adjustment of status or do I have to leave the country to get the F-1 stamp?

If you are maintaining H-1 status on the date your H-1 to F-1 change of status application is received by USCIS, you can apply for H-1 to F-1 change of status within USA. Check with your school. They should be able to guide you.

H1 Renewal Denial/I 94 expired
My H1 visa and I94 expired on 30th sept’10; we filed for a renewal but got an RFE in about 10 days for client letter. Replied to the RFE with client letter on October 29th, got visa denial on November 10th as client letter had project end date of 11/5. Current lawyer says I am ok to stay here 180 days from visa expiry, currently looking for new project with client letter to file for new H1 B visa and then go to India to get stamping and reenter. Am I ok to be here in the country or should I leave immediately? Will stamping and reentry be a problem? Is filing with the same company a good idea?

In my view that is bad legal advice. You are deportable the day your H-1 is denied. I advise our clients to make plans for leaving ASAP.

Parents B-2 Visa
My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches: a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems. b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.

I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

Employer/Employee Relationship while H1B transfer
I am currently working for company A as a contractor via a preferred vendor Company B, and my employer is Company C. Now my client company (Company A)has offered me a permanent position with them, thus would there be any hassles while doing an H1B transfer to my client company(Company A) from my employer(Company C) due to the employer/employee relationship memo?

Working directly for the end-client eliminates the employer-employee issue usually.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

Can I apply for Social Security Number ?
Can I apply for Social Security Number on basis of I -797. My license to work as a vet in State A in depended upon SSN. How long does it take to get a SSN. On what status will I stay until I get a SSN & a license & subsequently start my job.

Generally speaking, when you get your H-1 approval, you can apply for SSN. If there is an urgency, SSA could expedite your application. I believe USCIS and SSA have said if you have the appropriate USCIS approval, you can start working even without the SSN. Check with SSA on the details.

H1B extension or EAD
I am currently on my H1B extension and my employer filed a petition,I-140 under EB3 category which was approved. I cannot file for an adjustment of status at the moment so if my H1 B visa expires before I can file for the AOS in that case does my employer have to file for an extension for H1b or is it the EAD. I am confused if they are two diffrent things or one and the same. Please advise.

EAD and H-1 are two different things. You will get your EAD only after you file the 485.

H-1 for Canadian PR with J-1 issue
I am presently in Canada on Canadian PR (and have an indian passport). An employer in Indiana (from a hospitality background) is interested in hiring me. 1. They have no clue abt H1B visa. How do I proceed? 2. I was on J1 from 2000 to 2001. I do not have a waiver. Will this affect my application?

If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.html

Self Employed while on EAD
I am employed with H1-B and EAD. My wife has EAD through my petition. She is looking into working as an Independent Consultant (Self Employed). Is she allowed to be IC under EAD?

I see no issues at all with the derivative beneficiary being self-employed on EAD.

H-4 visa and age
I am currently on H-4 (my visa expires 31st sept, 2010). I am 23 yrs old. I understand that the laws states that over 21 you are no longer on H4 visa. But in my case the immigration has issued me the visa for the date mentioned above. How do I go about ?

The general rule is - we should not try to take advantage of an error made by the govt.

H4
Just would like to know that how soon can a spouse and children apply for a H4?

There is no time limit. As soon as you get an H-1.

H1 Visa
I have come to US through my company with my L1 Visa. I am currently working with my client. There is an agreement between my company and my client not to hire my company employees within 6 months after quitting. I cannot move to any other company here in US as i am on L1. My company is not willing to file H1 either. If I have to move to a different company I should have a H1 Visa filed. Recently my client offered me to join their company, but I don't have my H1 and i cannot join my client company even if i get my H1 because of the 6 months restriction. What are the different options to join my client.

This seems to be an issue of contract only. Immigration law does not stop you from changing.

E3 visa for LPN
I already have a USA LPN license, was just wondering if its possible to get E3 visa to work in USA, I am an Australian citizen. What are the requirements?

As far as I remember, most nurses jobs do not qualify for H-1/E-3 type visas because a US Bachelor's degree is not required for the jobs. If you can find a job where a Bach. degree is the minimum requirement, you can be eligible for E3 or H-1B.

US RN Graduate foreign national
I am here on an H1B and completed my BSC Nursing as well as obtained my state licence. What is the best way to proceed to get a job/visa in the USA.

Start with Optional Practical Training.

H-1B and E-3
I was working in US on E-3 visa before H1B. Which means I entered USA earlier. When does my 6 years clock starts?

In that case, your 6-year clock begins to run on the date you converted (changed status) to H-1.

H1B Extension beyond 6 years
I got my H1B in Feb 2005 however never entered the country for first 22 months as I did not get an opportunity to visit my company here in US. Eventually I came here in Jan 2007. When does my 6 year period start? Feb of 2005 or when I first entered the US in Jan 2007?

H-1 starts on the date you ENTER USA.

H4 inquiry - Dubai resident holding Indian passport
I am on an H1b visa working in the usa. My wife currently has a residence visa from Dubai (UAE) and she is an indian citizen holding an indian passport.She has lived for 27 years in Dubai and for the last six to 12 months she has also been living in Dubai. Could you guide me on the process of getting her into the USA on a dependends visa please.

Easy. She needs to apply for H-4 visa at the US Consulate in Dubai. Contact them (you can check their web site http://dubai.usconsulate.gov/dubai/gvi.html) for what documents she must bring.

Visitors visa sponsored by H-1B holder
I got my parents Visitor Visa stamped when I worked for Company A . But now I work for company B and I am planning to get them to US now. Do they need to go for stamping again?

I see no need for a new visa.

Query about H1B Visa transfer
I have my H1B through a consultant company in USA. I never traveled on this visa and never worked for this consultant company. Now I have a direct job offer from another employer. My new employer wants me to work for them directly instead of going through my current visa sponsor. Can I transfer my visa to my new employer and enter US on this new visa? What is required for this? And how much time shall it take?

Sure. Have the new employer apply for H-1 for you. Apply for premium processing.

H1B Validity Period
My H1B got approved in Oct 2005 but I entered US in July 2006. Now 6 Years H1B Validity Period begins from the H1B approved date(Oct 2005) OR the day(Jul 2006) I entered this country.

H-1B count down starts from the date of entry.

Where to file complain?
Some of my friends filed H1B through a Consulting company. They gave 1.5-2K USD each. All of the cases were rejected for some unknown reason. Now, that consulting company is not giving money back. Where should they file complain? The consulting company's mother company is listed in Bombay stock exchange.

If the company is in USA, you will file complaints with ICE and Wage and Hour Division of Department of Labor. If in India, I guess they will file a police complaint.

H1B Restamping
My visa is valid till Sept,2011. I recently changed employers;have received my approved I-797 from the new employer.Iam planning to travel to India in May,2010. Do I need to go for re-stamping? Shouldn't the employer name on my visa and my I-797 be the same? If not,then what all documents should I be carrying with me to show to the Immi officer at the Port of Entry? Should the employer name on the visa match the employer name in my I-797? My visa is valid till Sept,2011. I recently changed jobs and my I-797 from the new employer has the new employer's name;however my visa has the old employers name.

Generally speaking, if you have never been out of status, you can travel out of USA and back without changing the visa stamp on an unexpired H-1 visa, even though you have changed employers through a valid H-1 transfer while you were in USA.

Travel during H4 processing
I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

If you travel during change of status, the request for COS is deemed to be abandoned.

L1B to H1
I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.

You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

G-4 to H1B
1. I'm on a G4 and have an offer to move to a US based company in a management role. They have offered to file for an H1B in the next few days on premium processing. Although premimum processing requires 15 days or so for an approval, the visa stamping does not happen until October 2010. That's too long to wait to move. What are my options to transition more smoothly from G4 to H1B? 2. Can they apply for a GC after I have an H1B approval?

If you are subject to the quota, I cannot think of how you can start earlier than 1st October, unless you have unique skills or circumstances. Once on H-1, you are like anyone else. Your green card can be filed because you would already have waived your privileges and immunities.

H1B- denial
I was approved for an H1B by USCIS There is a new I-160 form, electronic to the previous form. I want to be able to travel to my home country during this working period, but I have to go home to get it stamped. Could I still be denied the visa even though I obtained my H1B?

Grant of H-1 approval by USCIS is absolutely no guarantee that a visa will also be granted.

EB-1 Visa Processing for medical doctors
I am working towards filing under EB-1 green card, currently on H-1B. Is there a certain number of publications in peer reviewed journals, presentations at international meetings that would make the application more likely to go through than not?

Number of publications, impact factor of journals and number of citations - that is what they look at these days.

L1A visa and H-1
I am in USA on a L1A visa. If my H1B is approved, do I need to go to India to get my H1B visa stamped?

That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

Outstanding researcher
I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?

I cannot think of any stage at which you cannot travel. Good luck!

Quickest way to get a GC
I was a resident physician on the H1B visa.. Prior to completing residency, I got the EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

H1B Pending
I have 5 year M entry visa to visit US from India. I got a job offer and my employer is filing H1b for me in April 2010. My 6 month B1/B2 visa is over on June 4th 2010. (A)Can I continue to stay in US on pending H1b? (B) Should I apply for extension of B1/B2? Will this application for extension confuse or spoil my chance of getting H1b? (C)If I do the premium processing will I know the status of my visa before 4th of June?

You need to discuss this with your H-1 lawyers. I do not believe you can stay. Filing an extension may not help either.

F1 visa to business visa or H1/L1
Which visa is easy to apply. Is it business visa or H-1 visa?

If you qualify, H and L visas are certainly more secure than an F visa.

H-2B Visa
I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

H1 working in University (non profit organization)
My question is "what is the last date for applying academic H1" Is it april 1st or any time during the year.

For university and other quota exempt positions, you can apply for an H-1 any time.

Transfer to a startup company H-1
I currently have an H1-B status supported by a large enterprise company. This visa is valid for another 2 years. In the next 2 months I would like to transfer to a brand new startup company that will only have 1 American employee and myself. Do you have any recommendations I need to watch out for when moving to a start up company like this. I guess I'm wondering if the government is more suspicious for these smaller companies than the large coorporations. I'm also looking for immigration lawyer to help me with this.

These H-1 approvals tend to be more difficult. You are correct. Do not leave the old employer until and unless the new H-1 is approved.

H1 approval and stamping
I got H1 approval and they asked me to immediately go to home country for stamping. What is the best answer that I can give when they ask me about the gap where the status was illegal. My stamping is on March 9th 2010 in Chennai.

There are too many variable for me to be able to respond meaningfully. The general answer to your question is that the response must be the truth. Before you leave, make sure you are not subject to the 3/10 year bar from coming back because of unlawful presence. There is an entry on my blog on this issue.

H1 B question
Can an individual be granted H1-B status if they are doing an internship (unpaid) or any type of volunteer position? If not, can anyone tell me how an individual would go about getting anything resembling this type of visa for an internship?

H-1B is available only for paid positions. Generally speaking, unpaid internships could be undertaken on a B-1 visa. That would be at the discretion of the US consulate.

H1B renewal using an old I-140 from a previous employeer
When I was working at Company A I filed for my I-140. Unfortunate I had to quit the company A and join company B. When company B filed for my H1B transfer in 2007, the I-140 from company A got approved and we were able to extend my H1B for 3 years. After a year I had to quit company B and join Company C. Now in Company C I filed for Labor through PERM in 2008 which got an audited once and I am waiting for my Labor to approve. My H1B is expiring in Sep 2010 and my company is not doing good. So if I change a job now, would it be possible to use the old I-140 and Renew my H1b for 3 more years.

I cannot think of any reason why the same I-140 cannot be used for repeat H-1 renewals. By way of caution, do not change companies until the H-1 approval is in hand.

Employer change in 6th year before I-140
My H1 is expiring (6th yr) in Sep 2010 and did not get labour approval till now (filed in Sep 2009) , Can I transfer H1 before Sep 2010 and before I-140 approval?

Yes you can. But discuss the details with your H-1 lawyers.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Must we withdraw a PERM application if the employee is laid off?
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Status change from F1 to H1b
I got F1 in Jan 2009. Got H1b approval in May 2009. H1b approval means just got I797B form. I preferred to join Fall 2009 semester in University and came in USA in Jul 2009, got I94 with F1 and continued to fulfill F1 obligations.Now I want to change my status from f1 to H1b, and its seems my employer needs to file a petition with form I-129, will that means it should be applied April 2010 and all the balloting process and I will be able to start work after 1st Oct 2010. Will my existing unused H1b approval be able to be used and to exempt cap and and all things required? And can I get I797

You are cap exempt and should be able to change status OR get H-1 visa stamping right away. No waiting till 1 Oct.

H1B layoff, H1B transfer-RFE raised, New H1B approved
I was laid off by Company A on August 14th. I found a job with company B on October 14th. A transfer of H1B was filed by company B, but an RFE was raised asking me to prove that I had maintained my status. Since, I had no way of proving that I had maintained my status, a new H1B was filed by company B. The new H1B was approved. I have my stamping interview in 3 days. What kind of questions should I be prepared to answer? I am concerned that they might not approve my case. Please help!!

Merely being out of status is no ground for visa denial in your circumstances. Tell the truth. You should be ok on the status issue.

H4 to H1-B
I was working as an IT professional and my H1-B visa expired on 13 december 2008 (I shifted to H4). I have been in this country for 10 years now and there are other factors involved too. Is there some way I can reactivate my H1-B visa status?

Once 6 years on H-1 are over, I know of only two ways to reactivate: go physically outside USA for one year, OR apply for a green card, one year after which you can extend your H-1 (or upon approval of I-140, whichever is earlier).

H1B Visa Stamping
My first term of H1B is going to expire in August 2010, is it possible that I will get the new visa stamped from Canada before expiration like in June or July?

I think they will not stamp a new visa while the old one is still valid for some number of days (30 or 60, I forget). Email the consulate.

EAD - Job title change on the same job
My wife and I am on EAD and also both have H1B (I am in my 8th year of H1B and wife is in 5th year as teacher). Our EAD is based upon my job in EB3 category in IT as System Analyst/Administrator, my priority date Aug'2003. Last year I have completed MBA in Finance and can now work as a Project manager within the same company. Can I change my title to Project Manager or IT Manager and also can I change my profile now to work in Investment Company or any other non-IT field in the same company I am already working. As these delay of getting green card are actually causing problem in my career.

If you change your field/job description, it is very likely that you have to start your green card all over again. You should be able to carry the same priority date, but the PERM/I-140 may have to be done again.

F1 visa to H1-b
I just completed my undergraduate degree and my F1 status does not expire till May 2010. My OPT application is in process and still pending with a requested start date of 10th February 2010. However, I have found an employer who is willing to sponsor my H1B visa. So here are my questions. i)Can my employer file for my H1B visa right now, even though I am interim OPT application process? ii) When can I start working and getting paid from my employer? Essentially, I want to start working and I am wondering what is the fastest way to do so.

Since the H-1 quota is over, OPT is your best option as far as I can tell.

Questions on AC21, EAD, losing job, etc.
1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.


2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).


3A. Correct. You are in authorized period of stay. That has been explained in my blog.


4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).


5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.



6A. No.


7A. No.


8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.


9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

Convert L1B Blanket VISA to H1B
I have an L1B VISA and want to convert to H1B in order to shift from my current employer to a permanent employer in US. I am aware that quota for H1B is full for the year 2009 but need the H1B VISA by 2010 Feb for my new employer. Is it anyway possible to get this done before Feb 2010 although the quota is full?

Once the quota is full (as it is now) you can get an H-1 only for a job that is quota exempt (not just an employer that is quota-exempt)

H4 to H-1
I came on H4, got H1b, worked for few months, again changed to H4.Could somebody tell me how much would it cost to amend from H4 to H1.

I am not sure what you mean by "cost," but I can refer you to what we charge. See if this answers your question: http://www.immigration.com/services-fees/h-visa/h-visa-services-and-fees

When is the starting date to work on H-1B?
Regarding USCIS Updates H-1B Cap Count 10/30/09, if the employer files my H1B petition immediately, (1)how long the H-1B approval takes and (2)when is the starting date to work on H-1B? As far as I'm concerned, the H-1B petition quota had usually been reached on APR 1 and the starting work date is Oct 1. But this year is different since the quota has not yet been reached. My employer would like me to work ASAP, so I would like to know if they file my H-1B petition now, can I get approved and work before Oct 1, 2010? (I have a Master's Degree from USA.)

I believe the quota for this year is still available. If so, you can start work as soon as as the H-1 approval says you can (usually immediately upon approval). You need not wait till 2010. File through premium processing if you are in a hurry.

H1B extension for pending labor
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

H1B Visa
Isn't it interesting that this year (2009) there are still 20,000 H-1B left that no companies have applied for 4 months after the dead line were they usually all are taken? This is because the recession has made it impossible for banks and other TARP precipitants to hire people from abroad for a job that an American can fill and it is quite a stretch in this economy to argue that you can not find a qualified IT worker in the US.

True. But, TARP alone is not the real issue. I think the economy has been hard on all jobs including H-1. TARP is a factor. And there has been a disproportionately high rate of H-1 denials.

H1 6th Yr - Labor Approved - NO I-140
My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

Educational Qualification
I have 15 years of educational background against the requirement of 16 years for applying for an H1B.I wish to understand that if i complete a One Year Diploma in the same field as my College Degree, will this be counted/qualify? Or is it necessary to have something which would specifically mention 'Masters'? A 'Post Graduation Diploma' for an year will be equally valid or not?

A diploma that requires a bach. degree for admission may help, but a Master' in your own field is better. You can also acquire three years of experience in the field of your degree. That too can qualify you.

H-1 denial - options
I had applied for my H1B transfer from company A to company B. And I got query asking for last three months paystubs and Client letter. I had provided the paystubs but I didn't get the client letter. Though I got letter from primary vendor. And finally I got a denial notice. That denial is against the company B. It has three detailed reasons explaining the reason of denial. My question is should I go back to Company A(they have not cancelled my H1B) or should I look for another employer and file for new transfer.?

It appears you had already started working for B. The denial puts you out of status. In order to go back to A, it is my view, you will need to go back to your home country, get a new H-1

Prevailing Wage - H-1 and GC
When is the employer bound to pay the prevailing wages as determined for an LCA and if the applicant is already working in the sponsored position. I have an H1B which was renewed recently, but my LCA was filed in March of 2008. Hence there were three wage determinations that were done for me - First one at the time of the initial H1B filing, second one at the time of the Labor for PERM and third one for the renewal. So at what dates does the prevailing wage come into effect as they happen to be different every time.

The employer is obliged to pay you the H-1 renewal wage now and the PERM wage after you get the GC approval.

H1B exemption with I-131
I am an H1B visa holder and married to a US citizen. I have read that if I do not use the EAD and keep my H1B valid through the Petition and AOS process, I could keep my H1B status and travel abroad without the approved AP (I131). Is that right? Or do I need anyway to file the I-131 and do not travel abroad while the parole arrives? My concern is because I need to travel abroad every 2 weeks, and I could not wait for the parole if it takes too much too arrive. We have not filed the petition yet. Should I include I7565 and I131? Can I keep my H1B status to travel abroad even if I file them?

You are permitted to travel on either an H-1 visa, or an

Stamping of H1B except for IT - Chartered Accountant
I wish to understand from you, how difficult or easy it is to get an H1B stamped for people other than IT sector? I am currently pursuing CPA (certified public accountant) course and will be writing my exams soon. How difficult do you think can it be to get an H1B stamped after completion of this course? Is IT the only favored sector?

The degree of difficulty has no quantitive scale. But generally speaking, all professionals should have the same degree of difficulty.

Requirements (Degree/Education for H-1)
1. I have heard that for H1B VISA application process the minimum educational qualification required is 16 years of education.A Bachelor’s degree from India is considered as only 15 years of education. I have done an Intensive Diploma in German Language from Delhi University(regular) - one year and Advance Diploma in German Language from Delhi University(regular) - one year.So, ideally a two years regular course from Delhi University - will this be recognised? this is in addition to regular B.Com (H) from Delhi University. Will this fullfill the educational requirement for H1B? 2. How do i prove that i have actually been doing some/all of the tasks in my previous organisation? On my resignation, the company will provide me with an experience letter - but which is a very general one. Does not necessarily include the tasks performed.

A1. When a person has less than a complete 4-year bachelors degree, then each year of college education that they are missing may be replaced by three years of relevant experience in the field in which they are seeking a job. For instance, if a person has a three years degree in Mechanical Engineering and they wish to obtain an H-1

Applying for B-1 when laid off
I went through your blog on H1 to B1/B2. My friend has a similar case, he has been laid off and last working day is 09/15/09. He spoke to a local attorney on the feasibility of transferring H1 to B1/B2. But that attorney mentioned that the transfer request will be rejected as there will be a clear immigration intent. Can you please help with this?

From my blog, one thing should have been clear. Whether or not you get approved is irrelevant. A timely filed application puts you in authorized period of stay. That was the whole point.

H1B Processing
I have applied for EOS H1B at the end of june but my case still shows as pending processing on USCIS website. However, it looks like several cases filed in July have already been approved. What can I do about this?

Contact customer service of USCIS or convert your case to premium.

H1 6th Yr - Labor Approved - NO I-140
My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

Extending same H1B after staying outside US for 365 day
If I stay outside the US for 365 days and return back on the same L1/H1B,will it reset the 5/6 year limit for the visa? Let’s say i max-out on L1B in Aug 2009 and have a valid H1B petition from Jan 2010-Dec 2010. If I go out of the US in Aug'09 and return in Sep 2010,when I re-enter and apply for H1B extension, will I get 6 more years on the same H1?(since technically,at that point,i would have already stayed outside US for 365 days and my H1B clock would start over fresh). If No,should I apply for a NEW H1B?If yes,will this new H1 be subject to the 65k cap?

Once you have been outside USA for one year, there are two options. One, be subject to the quota and get 6 years of H-1. Two, if there was any H-1 period left, take the remainder and not be subject to the quota.

RFE H-1 without a client letter
I applied for a H1 Transfer in May 09 as my client required me to be an employee of the preferred vendor.In aug 09 I received an RFE asking for a client letter.Could you please let me know if there is anyway to get the approval without the client letter or any other supporting document will serve the purpose. Please do the need full.

Read my blog and my article on this issue.

H1B laid off while labor is pending
I might get laid off. My labor is pending and I will apply for B1/B2. In the mean time if my employer recruits me back again, will I be able to continue with my PERM and rest of the green card process? Do I have to start from the beginning?

There is no easy answer. It could be argued that the employer laid you off so the permanent job, which is the basis of the green card is gone. Hence, the process is fatally interrupted. Generally speaking, I think you should be able to continue.

H1B Revival process (Extension while still abroad)
I have valid H1b visa till Sep , and right now I am in India ....can you please help me guide through possible ways of visa extension.

An extension can be had only if the employer can demonstrate that they have a definite job open for you. The rest is up to the lawyers and USCIS.

H-1 Visa re-stamping
I have valid H1B stamp till 2010 sept from employer A. Just after coming into US, transferred to employer B. My transfer is approved and got the I797 approval notice, which is valid until Sep 2010. Now I am planning to go India. Can I re enter US using my previous employer's Visa stamp and the new I797 or do I need to get visa stamped again? Is it true that if the previous employer has cancelled the visa, it would be a problem and the visa has to be re-stamped. It would be great if this can be clarified?

An H-1 visa does NOT need to be stamped during its life even if you change employers. You can use the same visa to travel as long as you have never been out of status.

Unpaid leave on H-1
What is the effect of unpaid leave for sick time or maternity leave on H1B status? I had to take about 3 months of unpaid leave and back to work for about two months now. I will have to file extension of stay H1B end of the year and want to know if it effects the extension of stay approval.

As long as the leave is normal, or supported by documented necessity, you should have no problem.

Divers Licenses, while H-1 extension pending
How can someone get a extension on drivers license if his H1B extension is pending and I-140 is approved in Georgia??? What do you suggest someone should do in such a situation?

I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

Choices to work in USA
I am graduate B.A and I am married having one daughter of 2.8 yrs old . I want to to work in u.s.a -I can do any type of work . I want to immigrate with my family ( me ,my wife and my daughter ) .Till today I was doing import business from china from 2004 and visiting every month to china from 2004 to china for buying of goods from there and then selling it in india but due to some little bit loss i will have to stop my business . I have everything viz income tax dox , balance sheets etc. Sir now i want to immigrate to u.s.a and want to do job -any type .

The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!

I-485 AOS Pending, Employer's Bankruptcy
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Important questions on H-1, AP and Travel
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Compensation for H-1 lay off
My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

F-1 visa stamp, H-4 pending
I'm on H1B working in USA. My visa was expiring in May, so my company applied for H1B and H4 (for my wife) extension in April. In May 1st week, my wife got admission & assistantship in one of the university. She returned to India on May 20th and she got her F1 visa stamped from India. Now we are very much concerned that what will happen to my H1 and her H4? 1) Since she has F1, will it affect H1/H4 processing? 2) Do we have to apply for H4 withdrawal in order to maintain her status as F1 ? If so, is it possible for you to apply withdrawal on behalf of us? What is the fee you charge for the same? 3) Is it possible to have F1 and H4 both together at the same time? 4) Since my Employer is a large company and they have filed H1-H4 on behalf of us, is it possible for an outside agency to file H4 withdrawal? And will the H4 withdrawal application affect my H1 visa extension application?

1. H-4 is her personal application. All she needs to do is send a letter to USCIS stating "I hereby withdraw my application for H-4." Attach a copy of the fee receipt for H-4 application that comes from USCIS. I see no need for you spend money on legal fees, but that is your choice.

2. If nothing else works and she does get the H-4 approval, just have her step outside USA and reenter on F-1 visa and get a new I-94 from CBP at the airport.

3. Generally speaking, no.

H-1 denial, appeal, MTR
My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details. H1B/H4 filed: March 1st 2009 RFE was issued in April RFE replied: May 6th 2009 H1B/H4 denied: June 1st 2009 Our H1B/H4 I-94 expired: Apr 10, 2009 My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.). 1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status? 2) While new H1B is pending, what is my status? Am I considered to be in status? 3) Can we file brand new H1B through the same company while appeal is pending? 4) Can I work for my employer while appeal is pending, without filing new H1B? 5) Can I work for my employer while new H1B is pending? 6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition. 7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

Can H-1 be extended based upon family-based green card?
I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?

You cannot. This extension is available only to employment-based applicants.

Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
I (a software consultant) have EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know a- Can they do it legally? b- What are my options including can i sue this employer despite being on EAD?

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
 

From H-4 to F-1
1. I have been on H-4 for almost 3 yrs now, and starting my MS in Spring 09 (on H4 status itself). But now I want to change to F-1 for personal reasons. I have the following doubts. request your clarification: If I want to get my F-1 stamped from India, do I need to submit I-539 form also to the ISO of my school ? 2. How long should I be on F-1 before when I will be eligible to apply for OPT and work using the same? 3. If I want to start working as a grad assistant from Fall 09 semester, do I have enough time to apply for a change of Status through USCIS, CA ? Will I get an approved F-1 by then ?

1. No. An I-539 is used if you want to change status within USA.

2. You need to check with your school about CPT. The requirements for OPT as I recall are two full semesters on F-1.

3. No one can predict that. Sorry.

What kind of company is good for H-1B processing
Can you give us some tips on legally what kind of companies should one look for to process H-1.

I think this is a timely question. I can give some pointers based upon my experience.

H-1 approvals are easier:
- for in-house projects and for companies who can obtain letters from end-clients verifying the work; the degree of control they have over the H-1 worker and the duration of the assignment; and

LCA's for H-1 will probably take longer now

New LCA Online System Beginning May 15th, 2009

Beginning May 15th 2009, the Office of Foreign Labor Certification will be disabling the filing of existing LCA form 9035E on its website http://www.lca.doleta.gov/.

Our office will use the new iCERT Portal System (http://icert.doleta.gov/) to file LCAs online using the latest Form 9035.

H-1 Quota Count still at 45,000 as of 4 May 2009

USCIS Updates Information on FY2010 H-1B Petition Filings
Receipts remain relatively unchanged
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
 

H-1 extension denied - status

Quote: Hi Rajiv,
Its good to see the way you are providing appropriate answers to our questions. your responses are very helpful for us, specially in this tough time when USCIS is scrutinizing every Non-Immigration case.

H-1 Extension based upon spouse's 140; Child born in USA

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

H-1 Quota still open

Here is the release from USCIS.

April 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated
number of filings for H-1B petitions for the fiscal year 2010 program.
USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated
65,000 cap. The agency continues to accept petitions subject to the general cap.
Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;

PROPOSED Legislation to Reform H-1B Visa Program

Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

Thursday, April 23, 2009

[WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

 

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

H-1 Count 44,000 -- You can Still File

From USCIS:
Quote:

US employee working from India

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

H-1 holder aplying for H-4 visa
My wife has been in US for 6 months on H1 and is going back to India. In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1? Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?

The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

Effect of Bankruptcy on immigration
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

When is an H visa stamping required?

1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

PS: I do not have H4 stamping.

H-1 visa stamping -- is it difficult?
My son is employed on H1 B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to India, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions. Is it difficult now, in view of the present US laws/restrictions on H1B visa to get extension/renewal of the said visa in India. What is the procedure.

The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1.

In my view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.

Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

H-1 Quota Status

USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

 

USCIS is continuing to accept H-1 filings

USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Converting from EAD back to H-1--Updated 6 April 2009
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

H-1 and EAD

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?

H-1 Lottery for 2009

USCIS has confirmed that if they determine that they have received enough number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received on all five days. Note that the first five business days include upto 7th April.

When does CIS investigate fraud?

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

L-2 EAD and H-1
1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2? 2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)? 3. Does EAD allow one to be do multiple things as a free-lance professional?

1.  Ans. It lapses upon change of status from the date the status is changed.

2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

3. Ans. Yes.

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

How does the Stimulus Bill affect H-1b, L-1 and Green Cards
What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?

There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

H-1 Quota - what is acceptable evidence for degree

When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.

USCIS has stated:
 

Turning 21 - do I have to convert to F-1 from H-4?
My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.

 I do not see any way around filing an F-1.

What happens when an employer is under criminal investigation/indictment?
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Employers responsibility in H-1 process

Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

Do physicians have the right to an extension beyond 6 years for waiver jobs?

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.

Is salary reduction possible/legal?

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

If I-140 gets revoked/denied does my H-1 extension get canceled?

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

Note! Employer subject to H-1 quota, but the job may not be
My wife is on cap-exempt H1B working for a non-profit hospital. She got the offer from another non-profit community hospital but, their lawyer declined to file a H1B transfer with the reason that a new employer is not a cap-exempt employer because it's not affiliated with any higher education institution. It's a very large community non-profit hospital but, no affiliation with any universities or research organization. Do you think, any chances here ?

Difficult to say what the chances are, but read on.

Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.

Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.

Consequences of not using an H-1 visa
I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.

It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.

Leave US for job outside USA
If you leave USA for job outside USA before using 6 years of H visa and work for 1 year, does the H1B clock reset for another 6 years and what happens to unused period of H visa?

After one year abroad, you have 6 more years. The unused portion is ignored.

Employer not paying, may I tranfer H-1?
At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have. Appreciate your help in this matter.

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.doleta.gov/Performance/gu...2003-02-05.pdf

You can also contact the local WHD of DOL where you are:

L-1/H-1 COS Issues
I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa). 1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1) What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1. 2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?

I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

What to do if an I-140 gets rejected?
Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

Do advanced degrees help in marriage-based green card?
I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?

 1. Advanced degrees do not help in a family-based green card.

H-1 converting to H-4 and then (maybe) back again
I have a friend who came to US on H4 & was on H4 for 2 years. Then she applied for H1B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Co B . Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project. While working she have been paying taxes regularly. Pl let us know what needs to be done now:- * She is planning to go back to H4, pursue higher studies, Changing to F1 & then coming back on H1B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to USCIS ? * When next time the H1B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work? * If in case My friend goes back to H4, Will Co. A & B will terminate H1B petition as per law? & If in case yes will this create any difference?

Changing the way she is planning is perfectly legal. There is no question of a "bad impression."

In my view, she will not be subject to quota unless she is outside USA for a year.

The companies are required by law to revoke her H-1. I see no issues there.

Can H-4/F-2 holders perform volunteer work?

The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?

L-1 - H-1 COS issues

Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

Questions

H-1 related I-94 issue
I have read some very nice articles on your Forum and wanted to get your help on My Weird Issue with I94. I am on H1-B Visa and my Approval (I797) is Valid Till October-2010 However My Indian Passport is Expiring on 26'th-Aug-2009. I just came back from India a week back and Immigration Officer has Issued me I94 Till my Passport Expiry.. Is thr any other way for me to Apply for I94 Extension based on Approval validity without Leaving the Country ??? or i have to leave the Country & Come back ??? Same Applied to my Wife as well Since we traveled together and went for Immigration together immigration officer Issued Her also I94 Till My Passport Expiry Date ...

Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

H-1 Quota issues for students

Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

H-1 where there is no license in hand

In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.

Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.

H-1 - how to revert to old employer
My friend was working for Company A and he shifted to Company B, three months back filing a new H1B, But his employer got a 6 page H1B query list, his employer is not revealing the query and is not in a position to respond. Couple of questions, Can I switch back to Company A. 1. Does he need to file with DOL (or) USCIS that I am switching back to company A 2. If his H1B with company B is not approved, will it be a problem that I worked Company B for 3 months and has taken the pay? Other Question is, Company A send a letter to INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1B but send a normal letter to INS), Can he still switch back to Company A??? If he can not join back Company A, Can he file a new H1B with another company, knowing the fact that he has a query on his H1B with Company B.

In my view, he cannot go back to company A without taking some additional steps.

Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

H-1 quota - the law

People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.

The Law
_________________________________________

AC21
_______________________________
SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:

H-1 transfer - what action is needed for H-4
I came to USA with an H1b Visa, my family's H4 visa was also issued with me. After coming to USA I transferred my H1b visa to new company and I got my transfer approved and I got a new H1b with new I-94, my question is whether they can travel with the old H4 or not?

If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.

H-1 Quota
I came to US on F2 visa. In April 2008, my employer filed for my H1B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2. Qo 1. My question is if I change my visa status back to F2, and if I find an employer who is ready to file my H1B in the future, Will I have to go through the quota again? Qo 2. Hi, I have been inspired by the previous posts, I have a similar situation. I was on H1 till Mar 03. Then I transfered to F2. Now I'm about to get a job offer from a company. Is my H1b application subject to the Cap? My previous H1B was issued on Feb 2002 and I haven't been out of the states since.

Ans 1.  In my opinion, you will not be subject to the quota again.

Ans 2. You should not be subject to the quota.

Multiple H-1 approvals

I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
I have the following questions

Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
Ans1. Yes. I usually recommend that all I-94’s be surrendered.

How to get back to H-1 status?

We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?

AOS Pending, Should H-1 be Renewed
Should H-1 be renewed while the AOS is pending?

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Filling DS 156

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

Change of status from L-2 to H-4
I was on L-2 visa till present. I got my EAD few months back, which expires in April 2013. But I had to Adjust my Status to H-4 as my spouse's visa got changed to H-1.Can I work with my EAD as it has got validity till 2013? Is there any other way that I can work in this country?

H-4 holders can not use the EAD they received while on L-2. If you can, change to H-1.

Visa Stamp
I am planning to go home (outside US) for a month vacation this coming Dec. I have a visa stamp from my PREVIOUS employer that will expire on March 15, 2012. 1. Do I still need to go to the US embassy in my home country (where I am going for a vacation) since I have a new employer? 2. Could I use the visa stamp from my previous employer and present it to my point of entry? 3. Let's say I did not move to another employer, is there a time line when I can still use the visa stamp when I leave&go back to US(like for example, mine is nearing the expiration)?

1. In your situation, the same visa stamp is good for any employer as long as you have not been out of status even for a day while in USA.
2. Yes.
3. Visa can be used as long as it is valid.

Options for H-1 extension
I already completed 6 years of H-1, approved I-140. if I get laid off and change my status to H-4 can I change my status to H-1 after 1 year and still use my previous priority date and in that situation will I get H-1 approval for 3years? If I decide to pursue my further studies and change my status to F-1, and after my graduation or during my study, if I find a new employer can I get h1 approval with my old I-140 since I already completed 6years of H-1 and didn't leave country physically for 1 year. Will it be an issue?

In order for you to reset the 6-year clock on H-1, you have to be physically outside USA for one year. You can, however, get H-1 extensions continually for any employer if your I-140 is not revoked by the old employer or by USCIS.

H-1 transfer during pending extension
My H-1 extension with the current employer is applied and is pending. My current H1 expires on 25th. If I apply for a transfer to another employer after 25th Sept., then is it necessary to have approved both extension and transfer in order to work with new employer, because I file transfer after my expiration of current H1?

If, by the time your second H-1 is approved, the first H-1 is not, USCIS can approve the second H-1 only without an I-94.

J-2 to TN
I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

H-1B to B-2
I am working in USA on my H-1B right now and my wife is on H-4B. My H1 is valid until 2013. I am planning to leave my job within next few months. After that, we want to visit entire USA for few months before I go back home. Can I change from H-1B(for myself)+ H-4B(for my wife)or B-2 Visitor for both?

You can and should apply for B2 for both.

Working Visa
My fiance is from Pakistan, currently working in Kenya.He has done IT and Web-design. He is willing to work in the United States, Is it possible to get the visa?

It is possible if he has the relevant degrees and has a job in his field in USA. The most commonly used visa for professional workers is an H-1B visa.

H-1B transfer when 221g pending
I was working on a EVVC model till Dec in the US, when I came to India for my stamping, I got a 221g which is now pending at the Chennai consulate. I am now trying to transfer my visa to the primary vendor to work for the same client. Is there any issue with this? Can I also respond to the 221g when I am doing the transfer?

I do not see any major issue with this as long as 221g was related to your employer, not you.

OPT - H4 - H1
I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions: 1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4? 2) How difficult it is for an employer file for H1 from H1 and what is the process? 3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


 

Business in the US, on H1B visa
Fact "H1Bs cannot do their own business in US". So checking the legal limit with below scenarios. 1. Can a H1b, while working for H1 employer, work for non US employer using options like work from home or other internet technologies and earn in their local currency without further documentation? 2. Does anything changes if the non US employer has clients in US and the person in above position actually work with those clients under the payroll of non US based organization? 3. Does it cross the legal H1B limit if we assume the H1b person in scenario 1 and 2 is also the owner of non US company and earns in local currency not USD?

1. In my view, no.
2. No. The critical thing is that the work is being performed on US soil.
3. I believe this too would be illegal under immigration laws.

Concurrent H-1B
I am currently on H-1B with a university (cap exempt), working full time (40-hrs/week). An opportunity has come to work part-time for another For-profit institution (not cap exempt), may be for 20 hours or so per week. So my questions are: Can I apply for a concurrent H1 (For-profit; not cap exempt) whose work load will be additional to my current H1? Is there a restriction on where the concurrent H-1 sponsor is located in the US? Does 'Concurrent H-1B' need to go through the yearly quota since it is 'not cap-exempt' in my case?

The last time I checked into this issue, you could apply for a concurrent quota H-1 even though you are currently holding an exempt H-1. Location of the employer is not important, location of the job is.

H-1B after CPT
I do not qualify to apply for OPT. I have used my CPT completely by working for my current employer for past 1.5 yrs. They started my H-1B process. My current job (QA Analyst) minimum requirement is Associates degree or 0+ yrs experience. Lawyer came back saying job description should be changed to minimum bachelors or equivalent. I have 16 yrs education from India + MBA from here (April 2011) + 1.5 yrs experience. My employer is not willing to change the job description. Can they ask the lawyer to continue the process with the current job description?

An H-1 can be requested for a job that requires minimally a bachelor's degree. Note that the employer MUST TRUTHFULLY require a degree. If not, you cannot process an H-1.

PERM Audit and H-1 Expired
What happens if your H-1 expires before the PERM audit is cleared by DOL. Are we supposed to leave country. I have 20 months of H-1 life left to reach 6 years and my LABOR is in AUDIT status I am just wondering if I get an extension or will I be checked out of USA.

While a PERM audit or even an appeal against a denial after the audit is pending, you would still be entitled to H-1 extensions beyond six years.

H-1B Stamping
I got my H1B approval on 31 Dec 2010, thus my visa status changed from F1 to H1B (I am currently going to grad school and graduating in April 2011). My company wants me to get my visa stamped. I have heard various stories about problems faced in Canada for first time stamping. Is this really an issue? Is there any law which prevents us to get first time stamping done in stamping done in Canada?

H-1B stamping has been made difficult by consulates. There is nothing stopping you from applying in Canada, but your lawyers need to help you decide what is best.

H-1 Extension
I have filed for an Extension in the month of August'2010 as my Visa expires on Sep1'2010. I have not received anything yet. The Status is still in initial review. I have plans to go to India on Jan28. Should I convert to Premium now or shall I wait. My Case is with California?

Personally, I have seen no correlation between premium processing and increased RFE's.

H1-B Visa Transfer
I worked in US till August 2010 through my H1-B visa in some company. I had to come to India due to some problems. Now I am in India. My question is, can my visa be transferred when I am in India by some other US company so that I can again go back and work in US. My H1-B visa expires on 2013.

The H-1 can be "transferred" - yes.

H1B interview travel cost reimbursement
I am currently on H-1 and interviewing with another company. The interview involved air travel within the US and staying at a hotel. Is anything wrong with my prospective employer reimbursing the air travel and hotel costs and also providing reasonable allowance (for covering food) for the days of my stay? Would receiving a cost reimbursement check from the prospective employer invalidate and/or interfere with my current H1 visa status?

Interesting issue. I do not believe there is any law covering this situation, but in my view out of pocket expense reimbursement including food is acceptable and is not a violation of H-1 status.

Marriage in India or in US
I am in US on a H1B and I am having my wedding in India (with a US citizen) in the last week of Dec. I have to go for my stamping when I am in India. Since there is a lot of apprehensions about H1B stamping these days, could you please suggest what is the best way to go here. Would doing a court wedding in US before I go to India(and showing my marital status as married with US citizen)help in anyway - for getting H1B or for GC processing (if I have to do it from India in the worst case)? If my H1B gets rejected, can I go for H1B stamping using the approval notice from another company?

Having a US citizen spouse should neither hurt nor help your H-1 visa app. H-1B rejection does not mean you cannot apply for H-1 through another company.

Employer/Employee Relationship while H1B transfer
I am currently working for company A as a contractor via a preferred vendor Company B, and my employer is Company C. Now my client company (Company A)has offered me a permanent position with them, thus would there be any hassles while doing an H1B transfer to my client company(Company A) from my employer(Company C) due to the employer/employee relationship memo?

Working directly for the end-client eliminates the employer-employee issue usually.

H1B renewal
I am a foreign dentist with US degree MHA, employed with a dental company as dental tech (DT) under H1B. In 5 months I was moved internally to a Clinical reserach coordinator position. However, my visa was still DT position even after 3 yrs but doing a totally different job. It is time to renew my H1B visa and again they have renewed H1b as DT since the company lawyer said it is risky to renew the H1B under another title as this may be subject to approval. Can this cause any problem for me? I want to apply for my greencard, but because of the title I am still under DT I fall under EB-3.

You have no choice. When the job changes substantially, you are REQUIRED by law to file an H-1 amendment. Any lawyer/employer who advises you differently is breaking the law.

H-4 visa to H-1B
My Wife is on H4 visa.How can she convert her status to H1B Visa.What are the various ways out to attain work visa.

She can. For Indian citizens, H-1 and L-1 are two obvious choices.

There is a limiation of 100 H-1B2 visas
There is a limiation of 100 H-1B2 visas, how do you know if there are any available? I have tried to contact USCIS and NVC but no help.

I am not sure of a separate quota, but remember there is also no bar to also applying for an H-1B as a specialty occupation worker. That quota is still open.

Employer change in 6th year before I-140
My H1 is expiring (6th yr) in Sep 2010 and did not get labour approval till now (filed in Sep 2009) , Can I transfer H1 before Sep 2010 and before I-140 approval?

Yes you can. But discuss the details with your H-1 lawyers.

H-1 extension while PERM pending
My PERM application was filed last june 2009. My H1B expire last Sept 2009. Can I still renew my H1B? I got 2 extensions of H1B already.

You can keep applying for H-1 extensions indefinitely while the PERM is pending (filed a year ago).

When to file for 7th year extension (Timing)?
My 6th year is expiring in Oct2010 and my employer is planning to file PERM in Feb 2010. My questions is 1.Will I be able to file for the 7th yr extension before my 6th yr expires, say in Sep/Oct 2010 (even if my Labor is pending and it hasn't been 365 days yet)?Meaning,can they just go ahead & file for the extension but request for the 7th year to start from Feb 2011 (i.e. 365 day point from the PERMfiling)?Or do I have to actually wait until Feb 2011 to even file for the 7th year extension? 2.If I have to wait til Feb 2011,what start date can my employer request? Oct2010-11 or Feb2010-11?

They can file 6 months ahead of the contemplated start date - as long as one year of PERM filing is over by that date. But you might have some gap where you cannot live or work in USA.

H1B-H4-H1B
Recently (2009), I changed my status from H1B to H4. My Employer cancelled the H1B after I changed the status to H4 Visa. I have H1B petition document(I-797) with me. 1)Now Can I use existing H1B with the new employer? 2)Do I fall under quota or I need to file new H1B in this Year quota?

You will be exempt from the quota (assuming your previous employer was a private employer - NOT exempt from quota). The new employer will need to apply for an H-1 again.

H1B layoff, H1B transfer-RFE raised, New H1B approved
I was laid off by Company A on August 14th. I found a job with company B on October 14th. A transfer of H1B was filed by company B, but an RFE was raised asking me to prove that I had maintained my status. Since, I had no way of proving that I had maintained my status, a new H1B was filed by company B. The new H1B was approved. I have my stamping interview in 3 days. What kind of questions should I be prepared to answer? I am concerned that they might not approve my case. Please help!!

Merely being out of status is no ground for visa denial in your circumstances. Tell the truth. You should be ok on the status issue.

H-1b visa stamping in Toronto
I work for IBM and have my appointment for H1 visa stamping at Toronto , my prior stamp h1b was also from Toronto , I just recd a call from US embassy stating that since I am not getting my visa stamped in my home country and if there is any administrative processing on my case determined by the visa officer i would be required to stay in Canada till the time the visa officer is not satisfied or gets the results of the administrative processing .... I wanted to ask have any other client of yours also got any similar message ?

Yes, we did get this information.

PERM and H-1 extension
My company filed my perm application in march 2009 and We did`nt heard any thing from uscis. My H1 is expiring(Max-6 years) in March 2010. My question is when I can file for H1 extension?

You can apply for H-1 extension 6 months ahead. But the start date cannot be earlier than March 2010 (when the one year pendency/filing of PERM is reached). You can also get an H-1 extension when your I-140 is approved (if your priority date is not current).

H4 to H-1
I came on H4, got H1b, worked for few months, again changed to H4.Could somebody tell me how much would it cost to amend from H4 to H1.

I am not sure what you mean by "cost," but I can refer you to what we charge. See if this answers your question: http://www.immigration.com/services-fees/h-visa/h-visa-services-and-fees

When is the starting date to work on H-1B?
Regarding USCIS Updates H-1B Cap Count 10/30/09, if the employer files my H1B petition immediately, (1)how long the H-1B approval takes and (2)when is the starting date to work on H-1B? As far as I'm concerned, the H-1B petition quota had usually been reached on APR 1 and the starting work date is Oct 1. But this year is different since the quota has not yet been reached. My employer would like me to work ASAP, so I would like to know if they file my H-1B petition now, can I get approved and work before Oct 1, 2010? (I have a Master's Degree from USA.)

I believe the quota for this year is still available. If so, you can start work as soon as as the H-1 approval says you can (usually immediately upon approval). You need not wait till 2010. File through premium processing if you are in a hurry.

H1B extension for pending labor
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

H1B Visa
Isn't it interesting that this year (2009) there are still 20,000 H-1B left that no companies have applied for 4 months after the dead line were they usually all are taken? This is because the recession has made it impossible for banks and other TARP precipitants to hire people from abroad for a job that an American can fill and it is quite a stretch in this economy to argue that you can not find a qualified IT worker in the US.

True. But, TARP alone is not the real issue. I think the economy has been hard on all jobs including H-1. TARP is a factor. And there has been a disproportionately high rate of H-1 denials.

H1 6th Yr - Labor Approved - NO I-140
My Bank(!) has filed for my GC last year (Aug) and we got PERM Labor approved as of Feb'09. However, with everything going on with Banks and Economy in general, my new employer (who has taken over my previous employer Bank) has decided to not file for I-140. My 6th Year H1 is going to expire on May 2010. I explored few other companies where I can join and if they can start my GC. I was told by many of them that they will not apply for Labor as we don't have enough time left now to get my Labor approved and file I-140. Is there any option left for me?

Getting an I-140 filed is your best bet. If you end up leaving USA, see if you can get a job that can get you an L-1, which then leads to an EB1 green card (usually takes about a year only to complete).

Filing H1B
I am working in Company A with L1 status. I filed for an H1 (FY-2010) with Company B and got it approved. Now Company A as of date wants to file for my H1 (FY-2010). My questions are: a) Can the already approved H1 get cancelled because of A's application? b) Can I loose both H1's (A and B both cancelled) c) Is there any way to retain at least one (A or B)?

You do not "lose" an existing H-1 by filing of a new one.

RFE H-1 without a client letter
I applied for a H1 Transfer in May 09 as my client required me to be an employee of the preferred vendor.In aug 09 I received an RFE asking for a client letter.Could you please let me know if there is anyway to get the approval without the client letter or any other supporting document will serve the purpose. Please do the need full.

Read my blog and my article on this issue.

US employee working from India

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Effect of Bankruptcy on immigration
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

When is an H visa stamping required?

1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

PS: I do not have H4 stamping.

H-1 visa stamping -- is it difficult?
My son is employed on H1 B visa in USA. As of now, he is working as a consultant in a fortune 100 company. If he returns to India, to get married, he has to approach the US consulate for an H-1 visa. I have the following questions. Is it difficult now, in view of the present US laws/restrictions on H1B visa to get extension/renewal of the said visa in India. What is the procedure.

The degree of difficulty varies from case to case and should be evaluated by the lawyer who processed the H-1.

In my view, getting a visa stamping is no more difficult than it was a year ago. The big difference is the consulate may insist on a letter from the end client, the job site where your son works. Other than that, his stamping should be no more difficult than when he got it the first time. As to the procedure, I suggest you check the consulate's web site. They tend to be fairly comprehensive.

H-1 Quota Status

USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

 

USCIS is continuing to accept H-1 filings

USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

H-1 Lottery for 2009

USCIS has confirmed that if they determine that they have received enough number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received on all five days. Note that the first five business days include upto 7th April.

When does CIS investigate fraud?

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

H-1 Quota - what is acceptable evidence for degree

When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.

USCIS has stated:
 

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

J-2 to TN
I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

H-2B Visa
I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

Marriage to US Citizen
I am on H2b visa and married to an American. Should I go ahead and start filing my paper work or should I wait on till my contract is up with the company I am currently working for?

I see no reason to wait.

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

H-4 extension for spouse and child
We had applied for H-4 extension for my wife and child (1 year) in same I-539 form. We received an approved 797 form for dependents. Applicant's name is my wife's name and beneficiary's name is my daughter’s name. The I-94 in the form contains only my daughter’s number and not my wife's I-94 number. My wife's name is mentioned as a petitioner. Should my wife also have a separate I-94 in the approved 797 form?

She must have a separate I-94.

H-1B to B-2
I am working in USA on my H-1B right now and my wife is on H-4B. My H1 is valid until 2013. I am planning to leave my job within next few months. After that, we want to visit entire USA for few months before I go back home. Can I change from H-1B(for myself)+ H-4B(for my wife)or B-2 Visitor for both?

You can and should apply for B2 for both.

Can I apply for H4 visa for spouse while on EAD
My I -485 is pending since 2007, on EB3. My I-140 approved in Nov 2007. I did not for I-485 for my spouse and dependents as they were not in USA. I am working on EAD and I do not have H1B. My Question is can I apply for H4 visa for my spouse, as I am legally working on EAD? I heard that people on student visa can bring their spouse on dependent visa.

You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.

H-4 Visa and Status Validity
My husband has changed his job and his H1-B is being transferred. I am on H4 visa with valid stamp till 04/30/2012 My questions : 1. Do I have to also apply with him for H4 transfer ? Or should I be able to contd on valid status as my current H4 visa is valid ? 2. If I have to travel out of the country , can I travel with my current H4 visa stamp ? or should I have to re-stamp it with my husband's new I-797 for new company ?

Your current H-4 status and visa remains valid and can be used for travel. Each time, your husband changes jobs, you do not have to apply for H-4 until the time the H-4 is about to expire.

OPT - H4 - H1
I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions: 1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4? 2) How difficult it is for an employer file for H1 from H1 and what is the process? 3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.


 

COS from H-4 to F-1 visa
I want to change my status from H4 to F1 and assuming that it would take approx 3-4 months. If I apply for COS today, I make a trip to France (I am French citizen) next week, can I re-enter US on my valid H4 visa? Or do I have to wait until F1 is approved, get it stamped in Paris and then re-enter US?

You do NOT need USCIS approval to apply for F-1 visa. Just apply for F-1 visa during your visit to France. Ask the school to explain the formalities to you. By the way, if you leave USA during a COS request, the COS is deemed abandoned.


 

H-4 Visa Stay in US
My husband is on H4 with an I94 valid till June 17, 2011 and I am a H1B visa holder with a valid petition document. I am planning to go for a vacation. Will it be a problem if I leave my husband (dependent) in US and go for a vacation and come back in 3 to 4 weeks?

A few weeks absence should create no problems for your dependents.

H-4 rejected under 214(b)
My wife's H-4 got rejected under section 214(b) recently and interview went for less than minute. Should I apply again ?

In my view, H-4 cannot be denied under Section 214(b). This is an error. Apply again.

Advance Parole
Right now my wife and I am on advance parole, In 2005 what happened was, when my H-1 and my wife’s H-4 came to renew ,the attorney forgot to renew my wife’s H-4 so she was out of status for about two months later he filed it everything was alright.So my question is can she go to India with advance parole and come back, will there be any problem?

If her I-485 was pending, she would not be out of status.

H-4 visa and age
I am currently on H-4 (my visa expires 31st sept, 2010). I am 23 yrs old. I understand that the laws states that over 21 you are no longer on H4 visa. But in my case the immigration has issued me the visa for the date mentioned above. How do I go about ?

The general rule is - we should not try to take advantage of an error made by the govt.

H4
Just would like to know that how soon can a spouse and children apply for a H4?

There is no time limit. As soon as you get an H-1.

H4 Visa Stamping
I recently switched jobs and had my H1-B transferred from Company A to Company B. I have all the H1-B sponsorship documents in place from Company B. I am married and my wife is on H4 visa. My wife is currently in India and she has a valid visa and I-94 based on my Company A H1. My wife’s visa and I-94 are valid thru Sept. 30, 2010. My question is, although I have the all the approved papers for my wife’s new H4 visa based on Company B, instead of having her go for a re-stamping can she fly back on her old but valid visa and I-94?

She should be able to enter with her existing H-4 visa as long as she enters USA before the visa expires. But note that her H-4 I-94 given upon entry would be valid only till the visa stamp validity, so you may have to eventually get the visa restamped, or PERHAPS get the H-4 extended again.

H4 inquiry - Dubai resident holding Indian passport
I am on an H1b visa working in the usa. My wife currently has a residence visa from Dubai (UAE) and she is an indian citizen holding an indian passport.She has lived for 27 years in Dubai and for the last six to 12 months she has also been living in Dubai. Could you guide me on the process of getting her into the USA on a dependends visa please.

Easy. She needs to apply for H-4 visa at the US Consulate in Dubai. Contact them (you can check their web site http://dubai.usconsulate.gov/dubai/gvi.html) for what documents she must bring.

H-4 visa to H-1B
My Wife is on H4 visa.How can she convert her status to H1B Visa.What are the various ways out to attain work visa.

She can. For Indian citizens, H-1 and L-1 are two obvious choices.

Travel during H4 processing
I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

If you travel during change of status, the request for COS is deemed to be abandoned.

H1B-H4-H1B
Recently (2009), I changed my status from H1B to H4. My Employer cancelled the H1B after I changed the status to H4 Visa. I have H1B petition document(I-797) with me. 1)Now Can I use existing H1B with the new employer? 2)Do I fall under quota or I need to file new H1B in this Year quota?

You will be exempt from the quota (assuming your previous employer was a private employer - NOT exempt from quota). The new employer will need to apply for an H-1 again.

H4 to H1-B
I was working as an IT professional and my H1-B visa expired on 13 december 2008 (I shifted to H4). I have been in this country for 10 years now and there are other factors involved too. Is there some way I can reactivate my H1-B visa status?

Once 6 years on H-1 are over, I know of only two ways to reactivate: go physically outside USA for one year, OR apply for a green card, one year after which you can extend your H-1 (or upon approval of I-140, whichever is earlier).

H4 to H-1
I came on H4, got H1b, worked for few months, again changed to H4.Could somebody tell me how much would it cost to amend from H4 to H1.

I am not sure what you mean by "cost," but I can refer you to what we charge. See if this answers your question: http://www.immigration.com/services-fees/h-visa/h-visa-services-and-fees

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

H-4 extension for spouse and child
We had applied for H-4 extension for my wife and child (1 year) in same I-539 form. We received an approved 797 form for dependents. Applicant's name is my wife's name and beneficiary's name is my daughter’s name. The I-94 in the form contains only my daughter’s number and not my wife's I-94 number. My wife's name is mentioned as a petitioner. Should my wife also have a separate I-94 in the approved 797 form?

She must have a separate I-94.

I-94 Extension Time
I have a L1-A VISA through company Blanket. I have visa up to 2013. But my blanket expires in 2011-dec. I got I-94 up to Dec-2011. I have already applied for I-94 extension. How long will it take?

It can take a few months. You can apply for premium processing even when the case is filed and pending.

Have valid L-1 Visa, but I-94 expires
I have valid visa till 2013. Last year when I came to US, my passport was about to expire in Dec'2011 and hence I got my I-94 till Dec'2011. Now I have renewed my passport. At the time of entry, the officials said I can apply for extension once I renew my passport. I saw your previous comments "legality of stay in USA is governed by your I-94, not the visa." So my question is how to do L-1 extension?

Two choices: Leave USA and reenter using your L-1 visa or re file your L-1 with USCIS for extension.

L2 EAD Renewal based on I -94
Below are the validity dates of my L2 Visa,I-94& EAD: L2 Visa Expiration Date: 18JUL2010 I-94 : 06MAY2011 EAD expiration date: 02OCT2010 I would like to apply for EAD renewal on June 4th, 2010 [120 days before EAD expiration] Since I & my husband have I-94 valid till May 2011, my husband's company is planning to extend L1/L2 visas next year. Will my EAD renewal process have an impact with L2validity? As per my understanding, since I would remain on valid L2 visa after 18 July,2010 for 7 months[till I-94 expiration] can I renew my EAD without necessarily extending my L2visa.

Visa is irrelevant for status in USA. Look to your I-94 only. I dont see why you cannot renew EAD till I-94 validity. Since this matter is important, do double check with the company lawyers.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

Canadian with J-2 visa
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

J-1 extension beyond 5 years
My J-1 at Cornell Psychology Department expired on Aug 31 2011 after 5 years. Currently I'm spending my grace period. I'm exempt from the 2 years rule. I was wondering if it could be further extended. If not, would it be possible for my department to issue a new DS-2019 (J1) instead? I have only been working here for about a year and have been at a different university before.

Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.

J-2 holders and work authorization
Can I use my J-2 visa for internship and work after completion of FPGEE?

J-2 holders can get work authorization and work as per the licensing requirements of their profession.

J-1 Waiver Pending
I applied for my waiver in Aug 09 from the US and sent completed DS 3035 to the Waiver Review Div. in St. Louis, MO and Indian Embassy in DC. I returned to India in Sept 09.I have not had any updates since then. I would like to know (1) If I have missed any steps and if that is the reason why my waiver status remains unchanged (2) If I HAVE TO and can still apply for the NORI and obtain my waiver since I already have my case number and barcode (3) If I apply for the NORI from India, where do I send the Statement and Affidavit for attestation? (4)Are there any additional steps for waiver from India?

Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.

J-2 visa and I-275
My spouse is J-1 and is in US and I want to apply for J-2 to enter US. But 10years back I was denied entry in US on my B1/B2 Visa with I-275 executed stamp on my passport because in my last stay in US I attended college for a semester on B1/B2 visa. So I need to ask are there chances that I will get a J-2 visa to join my spouse?

It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.

H-1 for Canadian PR with J-1 issue
I am presently in Canada on Canadian PR (and have an indian passport). An employer in Indiana (from a hospitality background) is interested in hiring me. 1. They have no clue abt H1B visa. How do I proceed? 2. I was on J1 from 2000 to 2001. I do not have a waiver. Will this affect my application?

If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.html

I was on J-1 visa
I was on J-1 visa for 18 months of training in a dental lab as a dental technician .I got my waiver on my J-1 visa .I came back from USA to India and applied for the F-1 visa in a community college .But I was denied f-1 visa on bases of section 214(b) of immigration (possible immigrant).What can I do next to get back to USA?

If the consulate is not convinced of your nonimmigrant intent (214(b)), it is extremely difficult to remedy that. Usually, people in that situation should explore options like H-1, L-1, green card - all of which do not require a nonimmigrant intent (intention to remain in USA only for a brief period of time).

Travel during H4 processing
I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.

If you travel during change of status, the request for COS is deemed to be abandoned.

H-2B Visa
I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?

Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.

File I-485 while J-1 waiver is pending
I am currently in the US under the VWP which expires March 15. I was about to apply for a marriage-based GC but I just found out that I am subject to 2-years HRR. I applied for a waiver (no objection). A lawyer told me today that I should still file the I-485 and just leave the question "subject to" blank or check "yes" and add "waiver pending". Is that going to work? I don't want to overstay the VWP. How many days does it usually take to find out that I-485 submission got accepted and I can legally overstay the VWP?

To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.

I have a R J-1
I have a R J-1 i am not subject to the two year rule or section 212 (E). Do i have to leave the country if i adjust my status through marriage? I was advised that i should leave the country for at least 60 days and have my interview in my country. Is this correct?

I see no reason to leave. The 60-day advice makes sense only if you have just entered USA.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

Can F/J holders apply for green card?
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

Do physicians have the right to an extension beyond 6 years for waiver jobs?

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.

Fulfilling J-1 HRR in installments - not possible
I have been issued F1 and I fulfilled only 1 year of my previous J1 HRR. It was not difficult to get it once you show all the funding documents from school. I have another question though. I am on a PhD program now. If I decide to stay in my home country for 3-months periods several times - can I fulfill my second year of HRR in that way? The question is does it have to be consequent or I can split it like this?

You cannot do that as far as I know. The HRR has to be in one solid 2-year chunk. Brief absences - a week or two may be permitted but should be made up by spending that much extra time in your home country.

B visa while GC pending or similar situation
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

Does J-1 HRR Prohibit Issuance of F-1?
If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master's degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?

The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.

Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.

Two-year home residency requirement
Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

J-1 visa waiver concerns
I had come to US in September 2008 for 30 days externship (as short term visiting scholar) on J1 visa. After that I went back to India in October and came again in January 2009 on F1 visa to do PhD in animal science program. My concern is do I need to apply for J1 waiver before joining a job or a post doc here in USA? If yes, how should I go about it?

The 212(e) can attach to even a short program. Step one, ask DOS for an advisory opinion whether you are subject to the Home Residency Requirement. The detailes are here: http://travel.state.gov/visa/temp/info/info_1288.html

Canadian with J-2 visa
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

J-1 extension beyond 5 years
My J-1 at Cornell Psychology Department expired on Aug 31 2011 after 5 years. Currently I'm spending my grace period. I'm exempt from the 2 years rule. I was wondering if it could be further extended. If not, would it be possible for my department to issue a new DS-2019 (J1) instead? I have only been working here for about a year and have been at a different university before.

Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.

I was on J-1 visa
I was on J-1 visa for 18 months of training in a dental lab as a dental technician .I got my waiver on my J-1 visa .I came back from USA to India and applied for the F-1 visa in a community college .But I was denied f-1 visa on bases of section 214(b) of immigration (possible immigrant).What can I do next to get back to USA?

If the consulate is not convinced of your nonimmigrant intent (214(b)), it is extremely difficult to remedy that. Usually, people in that situation should explore options like H-1, L-1, green card - all of which do not require a nonimmigrant intent (intention to remain in USA only for a brief period of time).

File I-485 while J-1 waiver is pending
I am currently in the US under the VWP which expires March 15. I was about to apply for a marriage-based GC but I just found out that I am subject to 2-years HRR. I applied for a waiver (no objection). A lawyer told me today that I should still file the I-485 and just leave the question "subject to" blank or check "yes" and add "waiver pending". Is that going to work? I don't want to overstay the VWP. How many days does it usually take to find out that I-485 submission got accepted and I can legally overstay the VWP?

To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.

J1 overstayed by years, married to a greencard holder
I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

J-1 extension beyond 5 years
My J-1 at Cornell Psychology Department expired on Aug 31 2011 after 5 years. Currently I'm spending my grace period. I'm exempt from the 2 years rule. I was wondering if it could be further extended. If not, would it be possible for my department to issue a new DS-2019 (J1) instead? I have only been working here for about a year and have been at a different university before.

Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.

Canadian with J-2 visa
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

J-2 holders and work authorization
Can I use my J-2 visa for internship and work after completion of FPGEE?

J-2 holders can get work authorization and work as per the licensing requirements of their profession.

J-2 to TN
I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

J-2 visa and I-275
My spouse is J-1 and is in US and I want to apply for J-2 to enter US. But 10years back I was denied entry in US on my B1/B2 Visa with I-275 executed stamp on my passport because in my last stay in US I attended college for a semester on B1/B2 visa. So I need to ask are there chances that I will get a J-2 visa to join my spouse?

It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.

K-3 Visa
How long is it taking for K-3 visa to get approved? If we moved the wedding to Jan 31st, is there a chance to get K-3 approved by July 31st? My sister's fiance is in India. She lives in Philadelphia (Vermont service center). I also hear K-3 is getting closed automatically because I-130 is approved. Is this true?

Once the I-130 is approved and consulate is notified of the approval, they will not issue a K-3. They expect us to wait for the green card approval.

Can I petition my Fiancé
How can I bring my fiancé to United States, can I apply for him by green card? I am not still a citizen.

There is no fiance visa for non-citizens, but look into the waiting times for spouses of green card holders. Those times are pretty good right now.

K-1 visa for an illegal immigrant
My boyfriend came into the USA legally with a work visa at the age of 18 but it expired and he stayed the next 5 years in the country illegally working as a waiter. We met a year ago and started dating and fell in love but he already had plans to move back to Brazil because he wanted to study and that wasn't possible here...and he left 3 months ago. Will we have issues applying for the K1 Visa since he was here for several years as an illegal immigrant?

It looks to me that he is subject to a 10-year bar from entering USA and would not get a K-1 visa. Please take an appointment with a lawyer and discuss your (only) option of getting a waiver.

K-1
I was was born here in the USA. I am a widow. My boyfriend he is in India. 1.Does K1 Visa have any age differences, because I am 47 and my boyfriend is 25 he is single.. Does this make any problem.? 2.I have not met in person ? 3.I am not working, I am taking care of a person, and I have 3 kids, will marraige be a problem with kids? 4.Once I was caught for drinking and driving & paid the ticket, does this effect K-1 Visa ?

This will not be an easy K-1. First, the age difference is likely to viewed by the govt. as an indication of fraud. Second, you are required to meet - unless there are some extraordinary circumstances. Kids and drunk driving should not be an issue.

K Visa
I needed more information On the k visa. My fiancé is recently in the country of Port-au-prince, Haiti. Additionally I wanted to know if I sign these paper's for him can I add his 5 year old daughter and his 21 year old cousin on the paper's. His cousin recently lost his mother and father during the earthquake. I'am an American citizen.

Daughter should be possible, cousin would not.

Can I petition my girlfriend
Can I petition my girlfriend once we get married in the philippines? What is the best way to petition her as soon as possible...

Yes you can. Normally, I prefer K-1 - marriage in USA route.

K1 or K3
What is the fastest way to have my fiance and her children join me here in the US. They are Mexican citizens and I am a US ciitizen. We want to get married. The question is, which process is faster for them to be able to join me here?

The fiance visa is, generally speaking, faster.

K-3 Visa
I am married to a U.S. born citizen we just got married, is there a problem if I apply for the visa right after marriage? Do I have to leave the U.S? How long will it take to receive the visa?

I see no reason to wait. Bear in mind, if consulate receives your I-130 approval, they will not issue a K-3. They will ask you to wait for your green card.

K-1 Visa
I want to apply for a K 1 visa for my fiance and her 10 year old child. What is the waiting period for this visa type, and what can I do to expedite the process.

The processing times can be determined from this page http://www.immigration.com/processing-times-and-status-checks. As to expedite, check with USCIS customer service if they have any recommendations.

K1 visa approved
I applied for a fiance visa and it has been approved but now sent to the NVC center to be processed, what are the next steps and do I need my fiance to get his passport and medical done now or should I wait for instructions? At this point I do not know what to do.

Wait for instructions from the NVC and then the consulate.

K-1 visa
My fiance and I have started the process with USCIS for a 129-f petition.Are paperwork was recieved on the 24th of March and it may take up to 5 months to complete our petition.My question is, my fiance is a Canadian and she has a son.we really want to have him start school in California in the city where I reside.We will have him registered in the same school as my son for the up coming 2010 school year.Is there anyway that they can come and stay while the petition is pending so he can start school?We have a home to sell in Canada and want to get that under way as well.

The only way I can think of is driving through from Canada. At the border, his situation should be explained to the CBP officers. It is their discretion to permit or not permit the entry.

K-1 Visa AOS
My fiance came as k-1 and we got married within the 90 days but didn't file for AOS untile a few days before his I-94 expired? What will happen? will they still accept the application or what will we have to do next?

I think you will be fine. As I recall, the law only requires you to get married within 90 days. But confirm this information and do check with a lawyer as to whether you may travel or not while AOS is pending. This could be the only issue I can think of.

Green Card through marriage
My boyfriend is a u.s citizen and we want to get married. The problem is that i came to mexico and i cant go back. I was wondering if there was any visa or anything that he can get for me to go back before i get my greencard. And how long and how much it takes to do the whole process.

You could look into a fiancee visa (K-1). It can take a few months.

K visa
If a person comes to United States with a K1 visa and the petitioner didn't marry him or her what happens to the beneficiary? Especially if the beneficiary is a victim of domestic violence and there is a minor child in between? Is there any change in the law that could benefit the victim?

Such person would be deportable unless they come under Violence Against Women Act (VAWA) or similar provisions.

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

K-3 visa when I-130 approved
We have an appointment set for the K-3 interview in Nairobi. Our I-130 Petition has been approved, IV fees payed and documents submitted. We have not seen each other since 12/08. If we go forward with K-3 processing, what are the negative consequences? Will my approved I-130 be cancelled?

In your case, a K-3 cannot be issued. You must wait for IV.

If an I-130 is approved, K-3 can still be approved if the consulate has not yet received OFFICIAL notice of approval of I-130. Note that your I-30 will NEVER be canceled.The recommended practice in K-3 cases is to indicate on the Form I-130 that the beneficiary will apply for AOS. Nevertheless, it is too late for that now. If they have received official notification, then an immigrant visa (green card will be issued) after processing locally. It should not take too much extra time.

Visitor visa rejected
I am having a problem getting my visitor visa. My fiancé is a US citizen and my sister is on H-1B visa she is there since 3 years with her family... my parents got their (B1-B2) visitor visa. But when ever I apply for B1-B2 I get rejected. My question is, when they ask me why you want to go to the USA my answer was to visit my sister and her family. Now can I answer like this? My fiancé is a US citizen and I want to meet her and get married.

You must tell the truth. The better visa for you is K-1, if you want to get married in USA. Your chances of getting a B visa do not appear to be very good.

K-1
I was was born here in the USA. I am a widow. My boyfriend he is in India. 1.Does K1 Visa have any age differences, because I am 47 and my boyfriend is 25 he is single.. Does this make any problem.? 2.I have not met in person ? 3.I am not working, I am taking care of a person, and I have 3 kids, will marraige be a problem with kids? 4.Once I was caught for drinking and driving & paid the ticket, does this effect K-1 Visa ?

This will not be an easy K-1. First, the age difference is likely to viewed by the govt. as an indication of fraud. Second, you are required to meet - unless there are some extraordinary circumstances. Kids and drunk driving should not be an issue.

Can I petition my girlfriend
Can I petition my girlfriend once we get married in the philippines? What is the best way to petition her as soon as possible...

Yes you can. Normally, I prefer K-1 - marriage in USA route.

K1 or K3
What is the fastest way to have my fiance and her children join me here in the US. They are Mexican citizens and I am a US ciitizen. We want to get married. The question is, which process is faster for them to be able to join me here?

The fiance visa is, generally speaking, faster.

K-1 Visa AOS
My fiance came as k-1 and we got married within the 90 days but didn't file for AOS untile a few days before his I-94 expired? What will happen? will they still accept the application or what will we have to do next?

I think you will be fine. As I recall, the law only requires you to get married within 90 days. But confirm this information and do check with a lawyer as to whether you may travel or not while AOS is pending. This could be the only issue I can think of.

Green Card through marriage
My boyfriend is a u.s citizen and we want to get married. The problem is that i came to mexico and i cant go back. I was wondering if there was any visa or anything that he can get for me to go back before i get my greencard. And how long and how much it takes to do the whole process.

You could look into a fiancee visa (K-1). It can take a few months.

New GC for my wife and child
My wife got her green card in 2006 but since 2008 she has been staying continuously overseas. In 2009 she applied and received SB-1 visa but she was not able to return to US before it expired.In 2009 our daughter was born overseas. Just recently I have become a US citizen through the naturalization process. I am planning to bring all my family members to US in April 2012. What are our options?

Apply for their green card and shoot for a K-3 visa simultaneously.

K-3 Visa
How long is it taking for K-3 visa to get approved? If we moved the wedding to Jan 31st, is there a chance to get K-3 approved by July 31st? My sister's fiance is in India. She lives in Philadelphia (Vermont service center). I also hear K-3 is getting closed automatically because I-130 is approved. Is this true?

Once the I-130 is approved and consulate is notified of the approval, they will not issue a K-3. They expect us to wait for the green card approval.

I-130 approved,can k3 be filed?
My father(us citizen)petitioned for my mother march09,case approved june09,since then nothing,can he file (k3) for her.

From what I recall, K-3 can be approved at the consulate only until they do not receive official notification of the approval from USCIS. I think it may be too late for your mother. She will probably need to wait for her green card now. That is likely to be quicker than a K-3 at this point, anyway.

L-1 Blanket petition
I have an L-1 Blanket petition and I traveled to US for one week and used that VISA. Part of my job, I need to work in one of our offices outside USA for a year, but will just have to go to US for one week every 2 months. Will that affect my visa since I would not be fulltime working in US? I have M entries in my L-1.

As long as you work full time and on the job described in your L-1B while you are INSIDE USA, it does not matter how long you stay outside USA.

L-2 Visa without EAD
I have come here with my husband who is on L-1 visa. I have L-2 visa. What work opportunities are there if I have no EAD. Second,I have gone to the office to get SSN. But the lady there told me that I don't require that and they refused to give me.What could be the reason I didn't get that. Can I apply for EAD if I don't have SSN? I'm here in US for 6 months. I want to work as I have done my MBA.

USCIS has to issue you an EAD (apply using Form I-765) and the SSA has to issue you an SSN. Once you have your EAD, you may work anywhere in USA at any job.

Starting business on L-2 visa
I am on L-1 and my wife is L-2 with EAD. Can she do a home based business such as selling things on Ebay etc?

With an EAD, an L-2 can work anywhere including operating their own business and work as many jobs as they like.

L-1 visa from an affiliate
I worked as Dept. Director at a Spanish Hotel from Jan 08-Jul 09. My employment was in the Hotel full-time, but was hired/paid through a consulting firm they employed (and still employ) to manage the operations of that department. I have now been offered a position (Dec 2010) in a similar Managerial/Director job within the Hotel's parent company in the USA but I have not got a US work permit, (I am Spanish). Can I qualify for the L1-blanket visa of the Company, based on my history with their consultant? Do I need to be employed by Hotel in Spain again prior to applying for the L1 visa?

Interesting situation. Not having researched this issue, I am guessing, the only way you can qualify for the L-1 is if you can establish that the hotel in Spain was your "true" employer in that they controlled you, even though your salary was paid by the consulting company.

Wife work permit
My company is giving me option of taking a L1 visa or H1B. My wife recently completed a 3 year Bachelors degree in Computer application from India. I want to make sure that she can work once we immigrate to US. Can you suggest what approach should we take? 1) Get myself H1 and then she does a MS from US. 2) Get a L1 visa and she can find a job in US with her 3 year degree.

Personally, I prefer the L-2 option for her. She can work AND go to school. More choices.

Parents B-2 Visa
My company has agreed to bring me and my wife to USA on L2 visa and then later get a H1 B visa. I want to make sure my parents have a B2 visa before I leave India. I have thought of two possible approaches: a) Get a B2 visa for my parents but telling US consulate that I am traveling on business to USA and want my parent to visit the country. I used the same method for my wife 2 years back with no problems. b) Get a L2/H1B visa for my self and then submit a request saying my parents want to visit the country for some time.

I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

L2 Visa holder
I am L2 visa holder and a physiotherapist from India. I also have SSN. Do I need to take the EAD or health care worker certificate to work in USA.Or simply credit evaluation and taking the licence is sufficient.

You need complete credentialing including a license.

Moving to USA on L-1
I am a British citizen with Canadian permenant residency. The US office of my company (I work out of the canadian office) wants me to move to the USA to work on a L1. My wife (canadian) and 2 children (canadian/british) would move with me.I am concerned about 2 things, the first being what happens if I leave the company or get laid off? It's a huge issue since we would have uprooted a good life in canada. Secondly I am not completely sure about the company. Its a new employer and they seem to be pressuring me to make the move. I am worried that they could simply lay me off whenever they want which would cause turmoil if we had to move back and start again.

I am not sure it is worth the risk, either. You have no right to continue to live in USA if the company fails or lays you off. You can negotiate a large severance package, but that is all the protection you can get.

Denial of an L-1A
I am going to India for my wedding, I plan to do my L1A stamping and get an L2 for my wife. Now suppose my L1A stamping is denied, what happenes to my existing L1b petition which is valid till 2011 Oct? Can I use that to file and L2 for my wife and return back to US?

Your current approval is not invalidated by denial of an L-1A. You can use it.

H1 Visa
I have come to US through my company with my L1 Visa. I am currently working with my client. There is an agreement between my company and my client not to hire my company employees within 6 months after quitting. I cannot move to any other company here in US as i am on L1. My company is not willing to file H1 either. If I have to move to a different company I should have a H1 Visa filed. Recently my client offered me to join their company, but I don't have my H1 and i cannot join my client company even if i get my H1 because of the 6 months restriction. What are the different options to join my client.

This seems to be an issue of contract only. Immigration law does not stop you from changing.

L1A to EB1 from outside USA
I have completed 6.5 yrs in L1A in managerial role. Now the same employer wants me to stay outside of USA for few months. 1)Can we apply EB1 while being outside USA? 2)Do we have to apply for L1 A extn for remaining 6 months of 7 yrs while applying for EB1? 3)Can a new employer sponsor L1A and apply for EB1 while entering the country?

EB1 can be applied while you are outside USA. A new employer can sponsor only after you have worked for them for one year outside USA.

Chances of L1A to EB1
What is the chance for a L1A visa holder of 7 years to qualify for a EB1 category. Catch here is the original company which provided the L1A visa will not apply for GC. If the person moves to another company on H1 Visa can the new company file for GC under EB1 based on the previous 7 years of L1A status .

No, sorry. The basis of an International Manager's or Executive's EB-1 filing is that you must have been employed abroad with a related company for one year. Since you will not be able to meet that criterion, I do not see how that type of EB-1 can be filed through a new company.

L2 Status
I came to USA as L2 with my spouse, after leaving my job. Now my parent company is asking me to take up their assignment based at USA. and also asking me to confirm the possibility of starting their office at States. Is these possible? at least working for them is possible. I have my EAD. Can I work and take salary from outside USA firm?

Once you have the EAD you can work for anyone in USA, including a company that is not in USA.

L1B to H1
I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.

You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

L2 EAD Renewal based on I -94
Below are the validity dates of my L2 Visa,I-94& EAD: L2 Visa Expiration Date: 18JUL2010 I-94 : 06MAY2011 EAD expiration date: 02OCT2010 I would like to apply for EAD renewal on June 4th, 2010 [120 days before EAD expiration] Since I & my husband have I-94 valid till May 2011, my husband's company is planning to extend L1/L2 visas next year. Will my EAD renewal process have an impact with L2validity? As per my understanding, since I would remain on valid L2 visa after 18 July,2010 for 7 months[till I-94 expiration] can I renew my EAD without necessarily extending my L2visa.

Visa is irrelevant for status in USA. Look to your I-94 only. I dont see why you cannot renew EAD till I-94 validity. Since this matter is important, do double check with the company lawyers.

L2 visa and EAD
My husband's employer are busy with a L1 / L2 application for our family. My husband will go to the US (in June) on his L1 visa, 2 months before me and the children, since I have to wait for them to finish their school year in July. We will join him end of July. When he goes over in June ... Can he 1) apply for my SS number 2) hand in the forms for my EAD without me being in the country, or does that have to wait till August when I arrive?

As far as I know, you will have to be here. Nothing can be done before that.

L1A visa and H-1
I am in USA on a L1A visa. If my H1B is approved, do I need to go to India to get my H1B visa stamped?

That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

L1A Extension processing time
I had applied for my L1A extension back in Novemeber 13 2009 and yet the status is showing Initial Review. I am little concerned that would it really take this much time?What is the experience of other, with similar situation. Are L1's getting extended easily.

L-1A extensions are very difficult unless you meet all the criteria.

F1 visa to business visa or H1/L1
Which visa is easy to apply. Is it business visa or H-1 visa?

If you qualify, H and L visas are certainly more secure than an F visa.

L1B
In your knowledge, how long does it usually take to obtain a green card (through dual intent)with an L1B visa?

The time taken for L-1B holder who applies through PERM is the same as for anyone else from the country you were born in. No special case here, unless yo convert to L-1A and go through EB-1.

L-1B
I have 3 questions about the L1B visa I hope you can help me with: 1.Is it possible to work part time for another company than your sponsor under an L1B visa? (at the same time) 2.Is there a minimum amount of hours you have to be employed weekly under an L1B? Or can you just work part time for your sponsor company? 3.Lets say I want to apply under the "dual intent" law to permanent residence with an L1B visa, is it possible to do so by working only part time to my sponsor or do I have to be full time employed to be able to apply under the dual intent law ?

1. L-1B visas do not permit part time employment.
2. I think 35 hours each week (full time). Part time is not permitted.
3. Part time is not allowed under L-1B.

Request Info for L1 visa to do business
My parents are in Kenya and do business there. I want to have them shift to the states and do business here. Can my parents start a subway franschise on an L1 visa? My father owns supermarkets and a mall in kenya. I was wondering if he could get an L1 visa and start business here. What options does he have? Can we start a fast food joint based on an L1 visa as well? Also, I would like to mention that my parents would like to keep the business in Kenya to continue and they would want to travel between the US and Kenya.

L-1 visas have progressively become more difficult for smaller companies. But I think it my be worth a try.

L1 Visa
I have been with Company A for 2yrs 8 months and later shifted to Company B. Recently I have joined back Company A, with a time gap of 8 months. Can Company A apply for an L1 now?

Yes, looks like you can. The law only requires one year of employment out of the last three years.

L-2 for Fiance
I am currently in the U.S. on an L-1 visa. My fiance is Hungarian and currently visiting me on a tourist visa. My L-1 was issued in Tokyo, Japan. Can we get married in the U.S. and get her an L-2 visa without her having to leave.

You would be getting her an L-2 status, not visa, within USA. I usually discourage change of status from B visa, but it is possible to do this. Consult with your lawyers.

Convert L1B Blanket VISA to H1B
I have an L1B VISA and want to convert to H1B in order to shift from my current employer to a permanent employer in US. I am aware that quota for H1B is full for the year 2009 but need the H1B VISA by 2010 Feb for my new employer. Is it anyway possible to get this done before Feb 2010 although the quota is full?

Once the quota is full (as it is now) you can get an H-1 only for a job that is quota exempt (not just an employer that is quota-exempt)

L-2 as dependent turning 21
I have an L-2 dependent visa as a child and I am currently attending US College. However, I am turning 21 in December of 2010, does that mean I will no longer be eligible for an L-2 visa through my father's company? And do I have to change to F-1 status?

Correct. Once you are 21, you cannot be on L-2 status.

L-2 to L-1 Visa
My husband and I work for a large MNC with big presence in US and India. His L1A application has some RFE which he is working on. In case it gets rejected can he move to L2 without leaving the country? Can I apply for his L2 now even though his L1A is under processing? If so how long will it take for it to get approved and come back?

Normally, you can apply for another status only while still in status. Once the existing L-1 term is over, getting a change of status within USA is difficult. You need to discuss your case with your lawyers.

L-1A visa eligibility and time spent in US
If during the one year overseas employment period, the overseas company sends me to US on a B-1/B-2 visa for brief tenures several times in the year, does that period of stay in US on B1/B2 visa, how so ever short it may be, also count towards calculating the overseas employment tenure of at least one year in preceding three years prior to filing L-1A petition.

Your time in USA must be compensated with extra time outside USA. If the time in USA is just a few days in a year, you should be fine with that formula. But, if the time in USA is too much (several months), things get much more complicated.

L1 visa
It seems that to qualify for an L1-A Visa, one has to be employed overseas by the same employer for a year on a full time basis. How would you define "full time"? Does a work schedule of 4 days a week qualify?

Generally speaking, 35 hours each week can be argued to be full time.

L-1B applying for green card
My company applied to change my status from L1B to L1A at the same time as filing my GC application. It was approved and the GC only took about 5 months

True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.

Choices to work in USA
I am graduate B.A and I am married having one daughter of 2.8 yrs old . I want to to work in u.s.a -I can do any type of work . I want to immigrate with my family ( me ,my wife and my daughter ) .Till today I was doing import business from china from 2004 and visiting every month to china from 2004 to china for buying of goods from there and then selling it in india but due to some little bit loss i will have to stop my business . I have everything viz income tax dox , balance sheets etc. Sir now i want to immigrate to u.s.a and want to do job -any type .

The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!

May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)

When to apply for L-2 extension
My employer is in the process of extending my current L1 status for another 3 years. Current I94 is due to expire on June 20, 2009. My wife is on L2 and employed with an EAD valid till June 20, 2009. How can she extend her EAD at the same time as my L1 is being extended? My company lawyers will not handle extending her EAD. Please advice.

I believe you have three choices. Add her L-2 extension/EAD to your L-1 extension in the same package; apply for your extension, wait for the receipt then apply for her L-2 extension/EAD; or apply for your extension, wait for the APPROVAL then apply for her L-2 extension/EAD (note that she must be in status when you apply for her L-2/EAD). I have listed these choices in the order of my preference.

L-2 EAD and H-1
1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2? 2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)? 3. Does EAD allow one to be do multiple things as a free-lance professional?

1.  Ans. It lapses upon change of status from the date the status is changed.

2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

3. Ans. Yes.

L-2 to L-1 COS or Visa?
Hi...i have a question...i came to US on my L2 visa and am here for 1 month.meanwhile my company has initiated for my L1b visa in India..now my question is... 1. Should i have to travel back to my native for Visa stamping or i can apply for COS from L2 to L1B in US itself? 2.Since i already own L2 visa is there any chance that my L1B is rejected?i have been working in the company for 1yr and 2 months only now. 3.in case if my L1b is rejected is there will be any impact on my already approved L2 visa?can i come back to US again using L2 visa?

You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.

L-1/H-1 COS Issues
I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa). 1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1) What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1. 2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?

I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

L-1 - H-1 COS issues

Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

Questions

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Have valid L-1 Visa, but I-94 expires
I have valid visa till 2013. Last year when I came to US, my passport was about to expire in Dec'2011 and hence I got my I-94 till Dec'2011. Now I have renewed my passport. At the time of entry, the officials said I can apply for extension once I renew my passport. I saw your previous comments "legality of stay in USA is governed by your I-94, not the visa." So my question is how to do L-1 extension?

Two choices: Leave USA and reenter using your L-1 visa or re file your L-1 with USCIS for extension.

British citizen on L-1 visa
I am a British citizen on L1 visa. My boyfriend is a US citizen and we intend to marry. If we seek the fiancé visa, will I have to go back to the UK for any time? And if I intend to relocate within the US to collocate with him (and therefore will need to find a new employer) what kind of working visa could I obtain?

You can just get married and apply for a green card directly while you are still in USA. You can continue working on L-1. In 90 days or so, you should also receive your EAD, if you apply.

L-1 visa from an affiliate
I worked as Dept. Director at a Spanish Hotel from Jan 08-Jul 09. My employment was in the Hotel full-time, but was hired/paid through a consulting firm they employed (and still employ) to manage the operations of that department. I have now been offered a position (Dec 2010) in a similar Managerial/Director job within the Hotel's parent company in the USA but I have not got a US work permit, (I am Spanish). Can I qualify for the L1-blanket visa of the Company, based on my history with their consultant? Do I need to be employed by Hotel in Spain again prior to applying for the L1 visa?

Interesting situation. Not having researched this issue, I am guessing, the only way you can qualify for the L-1 is if you can establish that the hotel in Spain was your "true" employer in that they controlled you, even though your salary was paid by the consulting company.

L1A-Blanket petition
I came to USA before 3 years and 6 months on L1B-Individual visa. I had 2 years of managerial experience before 3.5 years with the same employer, outside U.S.A. Now I got my L1A-Blanket petition approved and waiting for Personal Appearance with U.S.Consulate. My concern is that, I read in the conditions that the experience should be within the preceding three years....but I have managerial experience before 3.5 years. Will affect the chances?

There is an exemption of time for people who come to USA and continue working with the same group of companies in USA. Their 3 years are counted back from the date they enter USA.

Request Info for L1 visa to do business
My parents are in Kenya and do business there. I want to have them shift to the states and do business here. Can my parents start a subway franschise on an L1 visa? My father owns supermarkets and a mall in kenya. I was wondering if he could get an L1 visa and start business here. What options does he have? Can we start a fast food joint based on an L1 visa as well? Also, I would like to mention that my parents would like to keep the business in Kenya to continue and they would want to travel between the US and Kenya.

L-1 visas have progressively become more difficult for smaller companies. But I think it my be worth a try.

I-94 Extension Time
I have a L1-A VISA through company Blanket. I have visa up to 2013. But my blanket expires in 2011-dec. I got I-94 up to Dec-2011. I have already applied for I-94 extension. How long will it take?

It can take a few months. You can apply for premium processing even when the case is filed and pending.

L-1A holders trying for EB-1
I have 6 years experience with the same company with 4 years experience in US itself. I am on L1A visa and I have only a 4 year Bachelor Computer Science engineering degree. What GC category will I fall under?

L-1A holders should try under EB1. You could be done in a year.

Green card for L1-B or L1-A holders
I currently have a L1-B visa and I'd like to know if the company where I work(a Brazilian company where I did work for 2 years, one of them in a managerial position before coming to the U.S in 2009) could apply to change my status from L1-B to L1-A at the same time as filing my GC application. The company is a giant in Brazil with 600 employees but we are still starting the operations in the U.S and I'm the only employee here.

Smaller companies can have a tough time getting an L-1A.

L1A-Blanket petition
I came to USA before 3 years and 6 months on L1B-Individual visa. I had 2 years of managerial experience before 3.5 years with the same employer, outside U.S.A. Now I got my L1A-Blanket petition approved and waiting for Personal Appearance with U.S.Consulate. My concern is that, I read in the conditions that the experience should be within the preceding three years....but I have managerial experience before 3.5 years. Will affect the chances?

There is an exemption of time for people who come to USA and continue working with the same group of companies in USA. Their 3 years are counted back from the date they enter USA.

L1A to EB1 from outside USA
I have completed 6.5 yrs in L1A in managerial role. Now the same employer wants me to stay outside of USA for few months. 1)Can we apply EB1 while being outside USA? 2)Do we have to apply for L1 A extn for remaining 6 months of 7 yrs while applying for EB1? 3)Can a new employer sponsor L1A and apply for EB1 while entering the country?

EB1 can be applied while you are outside USA. A new employer can sponsor only after you have worked for them for one year outside USA.

Chances of L1A to EB1
What is the chance for a L1A visa holder of 7 years to qualify for a EB1 category. Catch here is the original company which provided the L1A visa will not apply for GC. If the person moves to another company on H1 Visa can the new company file for GC under EB1 based on the previous 7 years of L1A status .

No, sorry. The basis of an International Manager's or Executive's EB-1 filing is that you must have been employed abroad with a related company for one year. Since you will not be able to meet that criterion, I do not see how that type of EB-1 can be filed through a new company.

L1A Extension processing time
I had applied for my L1A extension back in Novemeber 13 2009 and yet the status is showing Initial Review. I am little concerned that would it really take this much time?What is the experience of other, with similar situation. Are L1's getting extended easily.

L-1A extensions are very difficult unless you meet all the criteria.

L-1 Blanket petition
I have an L-1 Blanket petition and I traveled to US for one week and used that VISA. Part of my job, I need to work in one of our offices outside USA for a year, but will just have to go to US for one week every 2 months. Will that affect my visa since I would not be fulltime working in US? I have M entries in my L-1.

As long as you work full time and on the job described in your L-1B while you are INSIDE USA, it does not matter how long you stay outside USA.

Green card for L1-B or L1-A holders
I currently have a L1-B visa and I'd like to know if the company where I work(a Brazilian company where I did work for 2 years, one of them in a managerial position before coming to the U.S in 2009) could apply to change my status from L1-B to L1-A at the same time as filing my GC application. The company is a giant in Brazil with 600 employees but we are still starting the operations in the U.S and I'm the only employee here.

Smaller companies can have a tough time getting an L-1A.

L1B - resignation in US
I am currently on L1B in US. Could you please let me know if it is legal to resign on L1B while am in US or is it required by law that I need to return to my home country and resign? Am on US payroll and I believe am governed by US labour laws and they will supersede the Indian laws even if I signed a document mentioning that I will return to India. Could you please confirm?

What you are asking me has nothing to do with US immigration laws. This is a matter for an employment lawyer in the state where you are working. Under US immigration laws, you can resign in USA any time.

L1B to H1
I am working in US with L1B Visa from company A, now I have my H1 petition approved from the same company had applied to me before I had L1B. Now is it possible for me to change my Visa status from L1B to H1, if yes then what are the situations under which I will be able to change as I am planning to change the company.

You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

L1B
In your knowledge, how long does it usually take to obtain a green card (through dual intent)with an L1B visa?

The time taken for L-1B holder who applies through PERM is the same as for anyone else from the country you were born in. No special case here, unless yo convert to L-1A and go through EB-1.

L-1B
I have 3 questions about the L1B visa I hope you can help me with: 1.Is it possible to work part time for another company than your sponsor under an L1B visa? (at the same time) 2.Is there a minimum amount of hours you have to be employed weekly under an L1B? Or can you just work part time for your sponsor company? 3.Lets say I want to apply under the "dual intent" law to permanent residence with an L1B visa, is it possible to do so by working only part time to my sponsor or do I have to be full time employed to be able to apply under the dual intent law ?

1. L-1B visas do not permit part time employment.
2. I think 35 hours each week (full time). Part time is not permitted.
3. Part time is not allowed under L-1B.

Change of status from L-2 to H-4
I was on L-2 visa till present. I got my EAD few months back, which expires in April 2013. But I had to Adjust my Status to H-4 as my spouse's visa got changed to H-1.Can I work with my EAD as it has got validity till 2013? Is there any other way that I can work in this country?

H-4 holders can not use the EAD they received while on L-2. If you can, change to H-1.

L-2 visa and EAD processing
I am in USA on L2 visa and I intend to start interviewing/ working immediately. For the EAD application, do I have to apply it before I interview or does the employer apply on my behalf once they make an offer? What are the processing times for EAD? I still haven't got my SSN but have scheduled the appointment for SSN. Should I apply for EAD after the SSN is approved or soon after SSN application?

You should apply (not the employer) for the EAD ASAP. Processing times are on USCIS web site.

L-2 visa application for spouse
I’m applying L2 for my wife. She is working in India and she is coming here on vacation. Do I need to mention her working details while filling L2? Or shall I mention saying that she is not working?

 Tell the truth. I see no reason why you need to worry. An L-2 is permission, not an obligation. She can come and leave as she pleases.

L-2 Visa without EAD
I have come here with my husband who is on L-1 visa. I have L-2 visa. What work opportunities are there if I have no EAD. Second,I have gone to the office to get SSN. But the lady there told me that I don't require that and they refused to give me.What could be the reason I didn't get that. Can I apply for EAD if I don't have SSN? I'm here in US for 6 months. I want to work as I have done my MBA.

USCIS has to issue you an EAD (apply using Form I-765) and the SSA has to issue you an SSN. Once you have your EAD, you may work anywhere in USA at any job.

Starting business on L-2 visa
I am on L-1 and my wife is L-2 with EAD. Can she do a home based business such as selling things on Ebay etc?

With an EAD, an L-2 can work anywhere including operating their own business and work as many jobs as they like.

Wife work permit
My company is giving me option of taking a L1 visa or H1B. My wife recently completed a 3 year Bachelors degree in Computer application from India. I want to make sure that she can work once we immigrate to US. Can you suggest what approach should we take? 1) Get myself H1 and then she does a MS from US. 2) Get a L1 visa and she can find a job in US with her 3 year degree.

Personally, I prefer the L-2 option for her. She can work AND go to school. More choices.

L2 Visa holder
I am L2 visa holder and a physiotherapist from India. I also have SSN. Do I need to take the EAD or health care worker certificate to work in USA.Or simply credit evaluation and taking the licence is sufficient.

You need complete credentialing including a license.

L2 Status
I came to USA as L2 with my spouse, after leaving my job. Now my parent company is asking me to take up their assignment based at USA. and also asking me to confirm the possibility of starting their office at States. Is these possible? at least working for them is possible. I have my EAD. Can I work and take salary from outside USA firm?

Once you have the EAD you can work for anyone in USA, including a company that is not in USA.

L-2 as dependent turning 21
I have an L-2 dependent visa as a child and I am currently attending US College. However, I am turning 21 in December of 2010, does that mean I will no longer be eligible for an L-2 visa through my father's company? And do I have to change to F-1 status?

Correct. Once you are 21, you cannot be on L-2 status.

Spouse of an O-1 - next step to Green Card
I am the spouse of an O-1 visa holder and we live in the US (so I am on an O-3). His company is putting together the application for his green card, but do they need to do a separate one for me too? Or do I get one automatically if he gets one? Or do I have to wait until he gets one and then he applies for one for me? And what about our children - too young to work yet, but want to make sure they are ok too.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

O-1 renewal
I would like to know the travel restrictions to renew O-1 visa within the US. I heard that it is better to go back to your citizenship country to renew it in order to get the same visa as I have now where I can travel with no restrictions.

You should be able to get an O-1 visa stamping in any country.

Australian Musician to perform in US
An Australian Musician that is wanting to come to US for a few weeks to travel and play at approx 15-20 venues across the US. I am willing to sponsor him via my DJ entertainment service, and he will be paid for the shows. He is a professional musician in his country, has been for 15 yrs. Which visa would be required in this case?

A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.


An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.


"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.


"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.

Renewing O-1 visa
My husband used to have visa O for 2 or 3 years, and we decide to come back to Mexico in 2001, now we want to come back to USA, could you renovate this visa or is easy apply for new different visa? He has a BA in Spanish Literature and I have BA in psychology, we have one eighteen and one 15 years old sons and 1 year old baby girl, and we live in Canada right now.

You will need to have the employer apply for a new O-1 petition with USCIS.

Australian Musician to perform in US
An Australian Musician that is wanting to come to US for a few weeks to travel and play at approx 15-20 venues across the US. I am willing to sponsor him via my DJ entertainment service, and he will be paid for the shows. He is a professional musician in his country, has been for 15 yrs. Which visa would be required in this case?

A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.


An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.


"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.


"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.

P1 visa to green card
I have a P1 visa. Is there anyway to change this to a green card?

You may be able to apply for a green card if you meet the requirements of EB-1, aliens with extraordinary ability or based upon a job offer, and of course, if a family-based possibility exists

Advise needed for replying visa
I am a traditional artist, visited US in 2005 with P3 visa and later I have visited with 10 years B-1/B-2 visa two more times. And on fourth time the immigration officer, deported me from NY airport, saying that you have not paid tax $6000- of my sold paintings in the US. and if you agree to volunteerily withdraw applicatition then we will allow you to come back with right working visa.And the problem is my wife is in US and has applied for asylum, so do you recommend me to reapply for working visa or wait untill my wife gets the green card and I am deported on may 2009.

If you withdrew your application, you were not deported. You could apply for a work visa.

Canadian with J-2 visa
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

J-2 to TN
I am Canadian citizen & currently working on TN visa. My spouse is on J1 visa. I want to switch to J2 and get EAD. After couple of years he will apply for waiver and will move to H1. I believe I will be switched to H2 automatically as his dependant and my EAD will be void. Will that be possible at that time that I can switch back to my TN status?

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

TN Visa denied
I am a pharmacy graduate from India and a Canadian national. I passed my FPGEE Examination and hold a Intern Pharmacist License from Michigan Board of Pharmacy. I have been twice denied TN Visa saying I don't have Pharmacist License from US or Canada. I have been advised by the officer to apply for H1B visa. Recently, I read on State Department Website that License is not a prerequisite for YN visa. But my TN visa request was refused.

NAFTA clearly implies that you do not need a license (if you work under a licensed pharmacist).


Pharmacist—baccalaureate degree, licenciatura degree, or state/provincial license.

Holding Company Stocks on TN Visa
I am on TN visa for the more than a year. The company wants to give me some stock option (10-15%). Is that ok to hold stocks of the company you are working for on TN visa, or will it create problem when I apply for renewal of my TN visa. Can I apply for GC on TN visa?

I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.

TN Holder laid off
My husband was recently laid off after submitting an I-130. He is a Canadian citizen on a TN visa. He is still living in the US, all though his TN requires him to go back to Canada if he is not employed. The I-130 was approved, and now USCIS would like the I-485 change of status. This requires him to state his employment. Since he is not employed should we notify USCIS that he is moving back to Canada? Or should he apply for an EAD along with the I-485? What is the best approach?

Do not be alarmed. If you are a US citizen, there should be no issues.

PERM Audit & H1 extension beyond 6 yrs
My employer applied PERM (in 6th year) in October 2011 EB-2 Category and it picked for random audit in Jan 2012, employer asked me to send signed ETA form to respond to Audit question with in 2 weeks. They said its random computer audit and has to respond with paper documents. I am already in 6th yr and my H-1 get expired by May 22, 2012 is it possible to go for H-1 extension beyond 6th year while PERM is still in Audit status.

You will be eligible for H-1 extension beginning October 2012, even if PERM is pending audit or not.

H-1 transfer during pending extension
My H-1 extension with the current employer is applied and is pending. My current H1 expires on 25th. If I apply for a transfer to another employer after 25th Sept., then is it necessary to have approved both extension and transfer in order to work with new employer, because I file transfer after my expiration of current H1?

If, by the time your second H-1 is approved, the first H-1 is not, USCIS can approve the second H-1 only without an I-94.

H-1 Extension
I have filed for an Extension in the month of August'2010 as my Visa expires on Sep1'2010. I have not received anything yet. The Status is still in initial review. I have plans to go to India on Jan28. Should I convert to Premium now or shall I wait. My Case is with California?

Personally, I have seen no correlation between premium processing and increased RFE's.

H1B Extension beyond 6 years
I got my H1B in Feb 2005 however never entered the country for first 22 months as I did not get an opportunity to visit my company here in US. Eventually I came here in Jan 2007. When does my 6 year period start? Feb of 2005 or when I first entered the US in Jan 2007?

H-1 starts on the date you ENTER USA.

H1B extension for pending labor
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time. Pls let me know.

I have responded on my blog: http://forums.immigration.com/blog.php?b=214

Two-year home residency requirement
Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

Nonimmigrant waiver
I recently abandoned the US for Canada. I had been living in the US illegally for 15 years (since the age of 11). I got an opportunity to conduct biological research at the University of Alberta, AB, and Canada. I'm fully funded to live in Canada by the institution. Anyway, I would like to return to the US in 2013 for my 10 year high school reunion. I would like to know how likely I would be to get a tourist visa given my recent history. I have no intentions of staying in the US, just visiting. Am I automatically banned?

Look into a 212(d)(3) waiver, which should allow you an entry. Ask CBP at the border how much time they need to process the waiver (usually a few weeks).

J-1 visa waiver concerns
I had come to US in September 2008 for 30 days externship (as short term visiting scholar) on J1 visa. After that I went back to India in October and came again in January 2009 on F1 visa to do PhD in animal science program. My concern is do I need to apply for J1 waiver before joining a job or a post doc here in USA? If yes, how should I go about it?

The 212(e) can attach to even a short program. Step one, ask DOS for an advisory opinion whether you are subject to the Home Residency Requirement. The detailes are here: http://travel.state.gov/visa/temp/info/info_1288.html

J-1 Waiver Pending
I applied for my waiver in Aug 09 from the US and sent completed DS 3035 to the Waiver Review Div. in St. Louis, MO and Indian Embassy in DC. I returned to India in Sept 09.I have not had any updates since then. I would like to know (1) If I have missed any steps and if that is the reason why my waiver status remains unchanged (2) If I HAVE TO and can still apply for the NORI and obtain my waiver since I already have my case number and barcode (3) If I apply for the NORI from India, where do I send the Statement and Affidavit for attestation? (4)Are there any additional steps for waiver from India?

Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.

Green Card and last name
I am a US citizen turning 21 next month. Can I sponsor my dad to get a green card even if I am not holding his last name?

Yes you can. Having the same last name is not required.

Citizenship through US citizen spouse
I have my green card since June 30, 2001 and stayed in the US till December 2003 before leaving for India to attend to my father diagnosed with cancer. I have since been residing in India, visiting the US every 6 months or so to maintain GC. My wife got her citizenship in 2006 since she stayed back here in the US. I would now like to consider applying for citizenship - what is the minimum duration I need to be physically present in the US before applying?

1.5 years out of the last three and you must move back to USA before applying.

Citizenship for spouse
How do I get a citizenship for my husband?

Read the instructions on Form N-400.

Citizenship eligibility question
I have a GC since Nov 2004 and stayed in US for 3 years before moving to India on a temporary assignment. I have been in India for the past 2.5 years and have got a re-entry permit. When I return to US in April of next year, since it has been more than 5 years since I got GC and I had been physically present in US for over 2.5 years, will I be eligible for applying for citizenship?

Since you have been out of USA for more than one year, you will be eligible for naturalization only after 4 years and 1 day after you come back to live in USA.

US Citizen sponsoring wife
I am a US Citizen and I want to apply for my wife. Been married for 9 years. She comes and visits me on her visa waiver from NZ. What papers do I need to apply for her and how long would it take? Would it be quick and easy to apply for her while she is here on her visa waiver?

I generally discourage people from applying for a green card while they are here on a visa waiver type visa/entry. Call USCIS customer service for a list of the forms you will need. Generally speaking, these are relatively easy cases and should not require a lawyer.

Citizenship eligibility
My green card was approved in Sep 2005 but I did not get the Card until Feb 2006. Does USCIS consider the approval date or actual date when card was issued for establishing the five year eligibility period for accepting the N400 application? Also I have a 13 year old son who was born in India, do I need to submit N600 form for his citizenship?

It is the date of approval that counts. For your son, read the instructions on the Form N600. That should tell you what you need to do.

N400 Interview and selective services
How important is your enrollment in selective services when you appear in a citizenship interview. Will the interview officer ask you about why u did not register in selective service.

I believe this can be a problem. You should speak with a lawyer. You will need to establish that the failure to register was inadvertent, not intentional.

Citizenship and criminal record
In 2001 I was charged with shoplifting (retail fraud 3rd degree in michigan. I was convicted and paid fine and 7 days community service. In 2005 i got my green card. The case was expunged in 2008. Ever since 2001 i do not have any other criminal record in the last 9 years. Would this be a problem during the citizenship cause the application says good moral character in the last 5 years. My case is 9 years old and so i satisfy the 5 year rule for good moral character but not sure.

Generally speaking, USCIS looks at the last five years preceding the application, but they CAN go back as long as they wish for adjudicating good moral character. My guess is, you should be fine.

Reentry permits and citizenship application
My husband is a LPR (since 1993) interested in applying for naturalization. He was granted a reentry permit and used it to enter the country nearly 2 years ago. How long does he have to wait to apply for naturalization?

If he was out of USA for more than one year at any one time, the reentry permit will allow him to file after 4 years and 1 day from re-establishing domicile in USA.

Shoplifting and naturalization
I am permanent resident of USA for 5 yrs,and I was shoplift in jcpenny and caught by securities in 2008,they took me to their office,took my pic, and got copy of my driver license,and asked me to sign 2 form of documents,one was saying I can't enter store for a year,second one was a civil demand($500 fines),they did't called police,do i have criminal record? FBI will check it out? I already sent in the citizenship application,and have wait for 3 months after the fingerprint taken,still didn't receive interview notice,they will reject my application? What can I do now

From what you have described it does not appear you have a criminal conviction. Nevertheless, in my view, you should get yourself a local lawyer to assist you with the naturalization process.

Travel while citizenship/naturalization pending
I am currently a GC holder and have resided in the US for 30 month out of 5 years. I will be eligible to file my Citizenship (N400) paperwork next month. Once I have filed my application for Citizenship, can I leave the US and travel to Canada to visit my daughter? I was planning to be out of the US in Canada for 3 months. Will it be ok or me to leave the US once I have filed my application or Citizenship? or should wait to file upon return back from Canada?. Do I need to live continuously in the US while my application for Citizenship is in process?

Temporary absence of three months while your citizenship application is pending should not pose a problem as long as you remain a permanent resident of USA.

Citizenship Form
Iam a US citizen I want to fill for citizen for my mom I dont know which form I should fill out to send to immigration.

I am assuming she has been a green card holder for 5 years the form is N-400.

Travel and citation dates on N-400
I've taken about 60 trips outside of the US since I received my green card in 1988 - while I have exit and entry dates for most of them, for some of them I no longer have the exit dates, only the US entry stamps, and it is possible that I don't have all US entry stamps... same goes for dates of various traffic citations over the decades, minor things like parking, speeding, unsafe stopping, seatbelts - how do you suggest I enter this information on the N-400 form?

The burden of proof is placed on you. USCIS can deny an application where proof is insufficient. For entry/exit, I would recommend an affidavit from you giving the best possible approximation. The tickets - go back into your driving record at the DMV and see what you can pull from there.

US Citizenship, misdemeanor case
First of all I would like to thank Rajiv for this website. I am a new user but I've read some answers and felt so easy already. I had a misdemeanor charge back in 2007, shoplifting (less than 500). I did community service 24 hours and was on probation, got early termination of probation in 2008. All records got cleared in the state of Colorado. I am thinking to apply for US citizenship but very nervious about it. Please advise. I have two daughters. My husband could apply first with kids and I could try after them. Please help me. Need your advice.

Thanks for your kind comments about our web site. You can apply, but USCIS can certainly make an issue about the misdemeanor. You may want to retain a local lawyer.

My naturalization interview experience
I had my interview today.The officer asked me simple direct questions like my DOB,when I came to USA ,when I moved to this state..then on the trips section he said "what was your purpose of your visits, becuase I see trips for like 3 months "i said " i visited my husband and relatives"and thats it on this section,given that i made 6 trips out,the longest is for 5.5months after civics,he said I passed,but no decision was made because they need to review my physical residency. Is my case very bad? I am worried!total days spent out were 554(1.5yr)in my 5yr residency!how bad is that? do they take long time to respond?

I see no problem with the visits - they were all less than 6 months. I think it should be ok. It is difficult to estimate how long it will take.

How does Immigration office verify the dates of entries/exits
Could you tell me how does the Naturalization Office verify dates of US entries/exits? My wife and I have been lawful US Green Card Holders since 1990 and we're interest in applying for naturalization now. We've been traveling in and out the US for the past 19 years and I didn't save all the plane stubs. I believe we only have some of the US entries (not exit) stamps on our passports. Also we've renewed our passports once, so our passports only show the entries stamps for the past 3 years or so.

As far as I know they rely upon your passport and their own entry-exit records through Form I-94 system. This situation is common and can be corrected by supplying affidavits from applicants along with any other evidence you may have.

Green Card
I married a US citizen on may of 2009 and we were going to have a baby but we lost it a month ago. I entered the US illegally when I was 3 years old I am now 21 yrs old. A few years ago my moms employer filled an I-140 for her and all her children including myself were on the application. I want to know if that would benefit me in anyway?

May be Section 245(i) can help. Call and check with your mom's lawyer. Also explore the fact that you are married to a US citizen.

B1 Visa
I am a citizen of U.S. and had send the support documents. When my mother in law went for an interview they denied the visa because she stayed legally with the extension of three months in 1999 . After that she came to visit us in 2004 she went back by six months. At that time she got 10 years visa in 1998 multiple. My question is can they deny the visa without seeing the support documents.

They can do a lot of things, and often do, even things that are unreasonable. If you feel the decision is in error, contact the consulate through your Congressman.

Eligible husband?
I am a U.S citizen,I got married in U.S.A., my oldest son was born there,and I have 2 more sons that were born abroad and are citizens too, my husband had a green card, but he had drug trafficking problems almost 15 years ago, something like conspiracy, thats why we are living outside the U.S., if we want to go back, can something be done about this so the whole family can live there again? Can he get like a pardon and get a green card again, or there is no way this can be done?

Because you are a US Citizen, there could be waivers available for offenses committed by spouse. You may want to check first with the US consulate in the country where you are living.

Marriage to US Citizen
I am on H2b visa and married to an American. Should I go ahead and start filing my paper work or should I wait on till my contract is up with the company I am currently working for?

I see no reason to wait.

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

Changing Careers after the GC
Q1. Can a legal permanent resident(LPR) change career after say one year from his AOS approval to an entirely different field from the one for which his labor and his AOS was approved? Will this raise any red flags at the time of citizenship? Q2. In other words, after receiving green card on the basis of say job in computer industry, when can one change his/her profession to an entirely different field (let say opening up a restaurant or go into real estate on full time basis) without jeopardizing the citizenship? Would waiting for one year(or some other amount of time?) after AOS approval be good enough to satisfy the "intent to work for in the field noted in labor application on a permanent basis"? Q3. Is the person after receiving green card on the basis of employment in certain field stuck in that field for ever? Q4. What are you thoughts in general about this scenario and how should one go about it?

 A1. I see no problem with this nor do I see any red flags.

A2. Sure. Why not. Permanent does not mean forever.

A3. Not at all.

A4. Nothing else I can think of.

How soon can I leave the employer after I get my GC
Q1. How soon can I leave my petitioning employer once I get my green card approval? Q2. I did not willingly left the GC sponsor employer but actually after three months I got my GC, i got laid off from the project and due to the bad economy , my employer was not able to get me other project so he gave me letter saying that he wont be able to pay me salary since he doesnt have any project for me.And, after getting that letter I resigned from GC sponsor employer. Q3. I am employed at the XYZ University (XYZU). I applied for 485 myself (without attorney). My 485 was approved last month and I got my passport stamped in July. My contract with XYZU is coming to an end. My job is renewed every year based on the availability of funding. I have been with XYZU for the last 5 years. There is a possibility that they (XYZU) may not extend the contract because the research grant I got is coming to an end in september. Will my termination from the job at XYZU affect my Green Card in the future, and is it better to be terminated from service (based on unavailability of funding) by the WVU or is it better to offer my resignation?

A1. There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits.

Reentry permit is it recommended?
My spouse and I am legal permanent resident here in the US for more than 3 years now. We are planning to travel back to India in early December this year and my wife tentatively plans to stay back in India for close to 3-8 months. I am planning to return back after 3 months. In such situation, is it advisable to file re-entry permit (I-131) for her. Also should I get an attorney if I have to file or can I do it on my own?

If you are not abandoning your permanent residence in USA (keeping your home, job, etc.), I see no need for a reentry permit for a three-month trip. She should apply and through counsel.

Reentry permit is not a guarantee
I acquired my green card in January 20, 2010 with an expiry date of 2/23/20. I came back to the Philippines on February 2011. I want to go back to the US next year around March. Do I have a problem?

Generally speaking, a reentry permit is not a guarantee. It is merely an official declaration of your intention not to abandon your green card. Normally, the govt. does not question it. But if there are facts that make them suspect that you either never established or never intend to establish permanent residence in USA, they can take you to immigration court to take away your green card.

GC and Company Involvement
I received my GC in Aug 2008. My company is willing to send me to India office. Does the company need to file for a N470 or can I file for it? Do I need to be employed my US operations or I can be on the parole of India operations?

Company needs to give you a detailed letter and you can work for their India operations.

Eligibility for N-470
In a month I will have lived in the US for one year as PR. My company is sending me to do some work for them overseas. 1. Do I have to eligible for naturalization FIRST before I file N-470? Or is this just for any LP who have lived in the US for an uninterrupted year? 2. Can I file it while I am overseas? 3. Can I file when I come back having lived outside the US for less than a Year? 4. Can I file the application and leave BEFORE I hear back from USCIS? 5. What should my employer write in the supporting documents? 6. What makes my company an American corporation/firm?

1. No, you do not have to be eligible for naturalization.
2. No, you have to file while in USA.
3. No.
4. Yes.


5 and 6 require a lawyer to look over your company's details.

Can my wife use the N-470?
I'm a U.S. citizen working overseas with the U.N. Can my wife (GC holder) use the N-470 to preserve her residency while staying overseas with me?

Yes, she can, as long as she meets the other requirements of N-470.

Application for Naturalization
I have a question regarding naturalization filing period. I will complete my 5 years in US in June. Can I only file after 5 years or I can submit my documents after 4 years 9 months only.

You are allowed to submit Naturalization application any time after 90 days following the 5th year from your green card approval.

I am a US citizen and spouse on B-2 visa
I am US citizen and my wife is here on B-2 visa, her I-94 just expired, applied for extension, denied. Can I file I-130 and 485 for her now and can she wait here for her GC legally without leaving the country?

You can file I-130 and I-485, but she must not travel outside USA until she gets her green card.

N400 Interview and selective services
How important is your enrollment in selective services when you appear in a citizenship interview. Will the interview officer ask you about why u did not register in selective service.

I believe this can be a problem. You should speak with a lawyer. You will need to establish that the failure to register was inadvertent, not intentional.

Citizenship and criminal record
In 2001 I was charged with shoplifting (retail fraud 3rd degree in michigan. I was convicted and paid fine and 7 days community service. In 2005 i got my green card. The case was expunged in 2008. Ever since 2001 i do not have any other criminal record in the last 9 years. Would this be a problem during the citizenship cause the application says good moral character in the last 5 years. My case is 9 years old and so i satisfy the 5 year rule for good moral character but not sure.

Generally speaking, USCIS looks at the last five years preceding the application, but they CAN go back as long as they wish for adjudicating good moral character. My guess is, you should be fine.

Reentry permits and citizenship application
My husband is a LPR (since 1993) interested in applying for naturalization. He was granted a reentry permit and used it to enter the country nearly 2 years ago. How long does he have to wait to apply for naturalization?

If he was out of USA for more than one year at any one time, the reentry permit will allow him to file after 4 years and 1 day from re-establishing domicile in USA.

Shoplifting and naturalization
I am permanent resident of USA for 5 yrs,and I was shoplift in jcpenny and caught by securities in 2008,they took me to their office,took my pic, and got copy of my driver license,and asked me to sign 2 form of documents,one was saying I can't enter store for a year,second one was a civil demand($500 fines),they did't called police,do i have criminal record? FBI will check it out? I already sent in the citizenship application,and have wait for 3 months after the fingerprint taken,still didn't receive interview notice,they will reject my application? What can I do now

From what you have described it does not appear you have a criminal conviction. Nevertheless, in my view, you should get yourself a local lawyer to assist you with the naturalization process.

Travel while citizenship/naturalization pending
I am currently a GC holder and have resided in the US for 30 month out of 5 years. I will be eligible to file my Citizenship (N400) paperwork next month. Once I have filed my application for Citizenship, can I leave the US and travel to Canada to visit my daughter? I was planning to be out of the US in Canada for 3 months. Will it be ok or me to leave the US once I have filed my application or Citizenship? or should wait to file upon return back from Canada?. Do I need to live continuously in the US while my application for Citizenship is in process?

Temporary absence of three months while your citizenship application is pending should not pose a problem as long as you remain a permanent resident of USA.

Citizenship Form
Iam a US citizen I want to fill for citizen for my mom I dont know which form I should fill out to send to immigration.

I am assuming she has been a green card holder for 5 years the form is N-400.

US Citizenship, misdemeanor case
First of all I would like to thank Rajiv for this website. I am a new user but I've read some answers and felt so easy already. I had a misdemeanor charge back in 2007, shoplifting (less than 500). I did community service 24 hours and was on probation, got early termination of probation in 2008. All records got cleared in the state of Colorado. I am thinking to apply for US citizenship but very nervious about it. Please advise. I have two daughters. My husband could apply first with kids and I could try after them. Please help me. Need your advice.

Thanks for your kind comments about our web site. You can apply, but USCIS can certainly make an issue about the misdemeanor. You may want to retain a local lawyer.

My naturalization interview experience
I had my interview today.The officer asked me simple direct questions like my DOB,when I came to USA ,when I moved to this state..then on the trips section he said "what was your purpose of your visits, becuase I see trips for like 3 months "i said " i visited my husband and relatives"and thats it on this section,given that i made 6 trips out,the longest is for 5.5months after civics,he said I passed,but no decision was made because they need to review my physical residency. Is my case very bad? I am worried!total days spent out were 554(1.5yr)in my 5yr residency!how bad is that? do they take long time to respond?

I see no problem with the visits - they were all less than 6 months. I think it should be ok. It is difficult to estimate how long it will take.

How does Immigration office verify the dates of entries/exits
Could you tell me how does the Naturalization Office verify dates of US entries/exits? My wife and I have been lawful US Green Card Holders since 1990 and we're interest in applying for naturalization now. We've been traveling in and out the US for the past 19 years and I didn't save all the plane stubs. I believe we only have some of the US entries (not exit) stamps on our passports. Also we've renewed our passports once, so our passports only show the entries stamps for the past 3 years or so.

As far as I know they rely upon your passport and their own entry-exit records through Form I-94 system. This situation is common and can be corrected by supplying affidavits from applicants along with any other evidence you may have.

Renewing Expired GC and Citizenship for autistic/disabled persons
One of our clients (I think I have worked with these folks for over a decade) had these questions:

Quote:  A member of our family was issued a Green Card in November 1980. The green card did not have any renewal date (see enclosed). I assume Green Cards at that time did not have a renewal date. Does this need to be renewed?

Ans: Replace the green card. See:
http://www.uscis.gov/files/form/i-90instr.pdf

Consequences of DUI's on naturalization and green card
Dear Mr.Khanna, I have reading all your post and found you quite informative. I will appreciate if you can let me know the possible consequences of my case. I was in restaurant in Gaithersburg MD on Jan 29 2008 with my boss who was visiting from Atlanta. I had a beer and 2 glasses of wine with dinner came out sat in the car and started backing up. As you know it was winter and had rained earlier the windscreen at the back got fogged out. While backing up I hit a car parked. Police was in that parking lot and arrested for drunk driving. I blew .09. I was given a bunch of tickets after being 30 minutes in the precinct and was released. In the court they dismissed 2 tickets like DUI and DUI par se and convicted me DWI and Failure to control Speed to Avoid Collision. BTW DWI in MD is a lesser offence when you blow less than the state .08 BAC typically .07. And Failure to control speed to avoid collision which is maximum fine $130.00.Now the Judge gave me Supervised Probation till I finish my MADD Class. After that the Probation goes to Unsupervised for 12 Months. Now I am elligible to file citizenship. I have finished 5 years of LPR time with minimal travel aborad. Now my questions are : 1.) Will I get deported or removed. 2.) Will I have problems while entering POE while travelling from overseas. 3.) Will my Citizenship be denied if I file after my probation gets over. Please share your knowledge It will immensly help my stress. This one mistake of my life has really taken a toll in my life. Your earliest reply will highly appreciated.

Let us look at the law for green cards and removal (deportation) first.

Remember the following GENERAL elements of the law (there is more to it).

Does lay-off affect natutralization?
I obtained my green card 4 1/2 years ago through employment. My former employer sponsored me h-1 visa for 6 years and labor certificate and green card as well. Unfortunately, I was terminated by the employer last year, which ended my 10 years career at the company. After the termination, I then filed workers compensation claim for the injuries at work, and civil lawsuit for discrimations and under-paid wages through lawyers. The two cases are pending at courts. Now I have a part time job which is not related to the job that helped me get the green card. It is almost time for me to apply for citizenship. However I am worried about how much the two cases would affect the application. I will be asked in the citizenship interview why I left the green card sponsor, why you were terminated and so on, so forth. Please help advise if my worries are correct ? Is it better to apply for citizenship when the problems above are ended in courts ? Thank you very much for your help.

 I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

Naturalization - travel before oath

My husband and I have our N400 petition pending for almost 18 months. We passed our interview in July 2007 and had our 2nd fingerprinting 2 weeks ago. We were also informed that we have been cleared from background check. We have to leave for an international assignment in December and would like to understand the steps we need to take so it does not impact/disrupt our naturalization process, in case we do not get called for oath by then.

Filling out a DS 160 Non-immigrant visa Form by mistake ...
My wife needs to transit through a US airport for not more than 5 hours in February 2010 in order to go back to her birth country. However, she filled out by mistake a DS-160 Non-immigrant visa to submit to the US consulate in Vancouver (Canada) because at the US consulate in Vancouver they require DS-160 Forms to be submitted to them. However, she decided to fill out a second form called DS-156 in order to apply to another US consulate in Canada (in Calgary) for the same US transit visa to get an earlier appointment there. What does she has to do now to correct this situation ?

Contact the consulate. If they have not already done so, they will correct the situation upon request.

L1B - resignation in US
I am currently on L1B in US. Could you please let me know if it is legal to resign on L1B while am in US or is it required by law that I need to return to my home country and resign? Am on US payroll and I believe am governed by US labour laws and they will supersede the Indian laws even if I signed a document mentioning that I will return to India. Could you please confirm?

What you are asking me has nothing to do with US immigration laws. This is a matter for an employment lawyer in the state where you are working. Under US immigration laws, you can resign in USA any time.

Job as petrochem field operater
I am working in petro chemical industries as a field operator 7 and have 15 years experience with computer, operated sap system,dcs pannel operating etc. I am intersted in a job in usa. I am hard working &honest person.I am married for 7 yrs and have two children.

Lawyers should not get involved with finding jobs. That creates an inherent conflict of interest. Nothing we can do about finding you a job. Once you have a job in USA, we can assess the visa processes and advise you and your employer.

Passport Help
My father in law is a US citizen.He went to India in january 2009.There one of his relative register a false case against him and the Punjab police took away his passport from him.Then the case started in the court.His passport is in the hands of police till now.The judge is just giving him dates.how can he get his passport back? He is still in India.

I checked with Rajiv.  He said that a passport is ultimately the property of the issuing government.  Punjab police will probably not be able to hold the passport beyond a certain time.  We do not practice laws of India (US only).  They need to discuss this with local counsel.

MAVNI to F-1
I came US in f1 visa and i was maintaining my status till I was enlisted in US army through the mavni program and due to enlistment I way authorize by college to terminate my i-20 so that I can go for basic training. But I was discharge from the army(uncharacterized). Is it now possible to regain my f1 status.

You need to get back with your International Students Office and see what they recommend.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Compensation for H-1 lay off
My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

US employee working from India

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Effect of Bankruptcy on immigration
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

When does CIS investigate fraud?

The attached document explains the criteria.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

Employer not paying, may I tranfer H-1?
At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have. Appreciate your help in this matter.

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.doleta.gov/Performance/gu...2003-02-05.pdf

You can also contact the local WHD of DOL where you are:

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Compensation for H-1 lay off
My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

US employee working from India

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Effect of Bankruptcy on immigration
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

When does CIS investigate fraud?

The attached document explains the criteria.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

Employer not paying, may I tranfer H-1?
At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have. Appreciate your help in this matter.

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.doleta.gov/Performance/gu...2003-02-05.pdf

You can also contact the local WHD of DOL where you are:

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

Change of status from L-2 to H-4
I was on L-2 visa till present. I got my EAD few months back, which expires in April 2013. But I had to Adjust my Status to H-4 as my spouse's visa got changed to H-1.Can I work with my EAD as it has got validity till 2013? Is there any other way that I can work in this country?

H-4 holders can not use the EAD they received while on L-2. If you can, change to H-1.

L-2 visa and EAD processing
I am in USA on L2 visa and I intend to start interviewing/ working immediately. For the EAD application, do I have to apply it before I interview or does the employer apply on my behalf once they make an offer? What are the processing times for EAD? I still haven't got my SSN but have scheduled the appointment for SSN. Should I apply for EAD after the SSN is approved or soon after SSN application?

You should apply (not the employer) for the EAD ASAP. Processing times are on USCIS web site.

L-2 Visa without EAD
I have come here with my husband who is on L-1 visa. I have L-2 visa. What work opportunities are there if I have no EAD. Second,I have gone to the office to get SSN. But the lady there told me that I don't require that and they refused to give me.What could be the reason I didn't get that. Can I apply for EAD if I don't have SSN? I'm here in US for 6 months. I want to work as I have done my MBA.

USCIS has to issue you an EAD (apply using Form I-765) and the SSA has to issue you an SSN. Once you have your EAD, you may work anywhere in USA at any job.

Can I apply for H4 visa for spouse while on EAD
My I -485 is pending since 2007, on EB3. My I-140 approved in Nov 2007. I did not for I-485 for my spouse and dependents as they were not in USA. I am working on EAD and I do not have H1B. My Question is can I apply for H4 visa for my spouse, as I am legally working on EAD? I heard that people on student visa can bring their spouse on dependent visa.

You can have them apply for H-4 only if you go to an H-1 (you can). An F-1 is difficult if you have an AOS pending.

AOS interview next week, mother in India on AP
I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

NPTE license
After clearing the NPTE license exam do we need to go for health care worker screening or with EAD we can work?

If you already have an EAD, for instance as a derivative beneficiary, you only need to fulfill the State licensing requirements.

H1B extension or EAD
I am currently on my H1B extension and my employer filed a petition,I-140 under EB3 category which was approved. I cannot file for an adjustment of status at the moment so if my H1 B visa expires before I can file for the AOS in that case does my employer have to file for an extension for H1b or is it the EAD. I am confused if they are two diffrent things or one and the same. Please advise.

EAD and H-1 are two different things. You will get your EAD only after you file the 485.

Self Employed while on EAD
I am employed with H1-B and EAD. My wife has EAD through my petition. She is looking into working as an Independent Consultant (Self Employed). Is she allowed to be IC under EAD?

I see no issues at all with the derivative beneficiary being self-employed on EAD.

With I-485 pending can I be an investor ?
My 485 is pending and I am on advance parole and EAD, my employment based GC priority date date was June 2006. I want to be an investor in my friends start up company. I wont be leaving my current job but only investing in it. Should that be an issue If I dont have my GC?

I see no problem with it, especially, if you are a passive investor who takes no action to manage or conduct the business of the entity invested in.

Lost old EAD card for another OPT application
I am currently a PhD student and preparing for application for OPT. Previously in 2004 upon earning BS degree, I got OPT and worked for a summer. In preparation for a new OPT, I realized that I need to provide copy of front and back of the previous EAD card. However, I cannot find the card. I just found copy of I-765, I-94, and I-20 for the previous OPT.If I submit without copy of the previous EAD card, will I be likely to be denied for the new OPT? Also, what is the safest way to deal with this situation.

First, discuss the possible solutions with your international students office. Second, call USCIS customer service and ask for solutions. Third, provide whatever you have with a full explanation to USCIS when filing the new OPT.

EAD-AC21-Self Porting
I have EAD/Pending AOS. I ported to employer B based on AC21 in 2008. Now i am considering a great opportunity: -Joining S corporation in Florida _I will receive similar hourly rate as prior employer -similar job -i will receive 40% of profits on top of salary -the new corporation will be my fututre full time job Does the new corporation have to be huge with lot of finances for me to use the AC21? I have valid EAD can I join as a partner in the S corporation in Florida? Any thoughts things i,ve to carefull with?

Very little is clear about self-porting. Read the Yates Memo of May 2005. It seems you should be fine as long as the jobs are same or similar, but like I said, not much is known about this issue.

L2 EAD Renewal based on I -94
Below are the validity dates of my L2 Visa,I-94& EAD: L2 Visa Expiration Date: 18JUL2010 I-94 : 06MAY2011 EAD expiration date: 02OCT2010 I would like to apply for EAD renewal on June 4th, 2010 [120 days before EAD expiration] Since I & my husband have I-94 valid till May 2011, my husband's company is planning to extend L1/L2 visas next year. Will my EAD renewal process have an impact with L2validity? As per my understanding, since I would remain on valid L2 visa after 18 July,2010 for 7 months[till I-94 expiration] can I renew my EAD without necessarily extending my L2visa.

Visa is irrelevant for status in USA. Look to your I-94 only. I dont see why you cannot renew EAD till I-94 validity. Since this matter is important, do double check with the company lawyers.

L2 visa and EAD
My husband's employer are busy with a L1 / L2 application for our family. My husband will go to the US (in June) on his L1 visa, 2 months before me and the children, since I have to wait for them to finish their school year in July. We will join him end of July. When he goes over in June ... Can he 1) apply for my SS number 2) hand in the forms for my EAD without me being in the country, or does that have to wait till August when I arrive?

As far as I know, you will have to be here. Nothing can be done before that.

When can I apply for EAD
May be a newbie question, I'm from india and I just got my I-140 approved in EB2, Can i file my I-485 as pending or do i need to wait for the date to be current. Is there any way to get EAD so that my spouse can also work?

This is a newbie question. :-) I-485 cannot be filed till PD is current and EAD cannot be obtained until I-485 is filed. H-1 is one obvious way for her to work.

Pending I-485 and marraige
Currently My I-485 is pending and I-140 is approved last Year (2009) january My PD 05/29/2007. I am working using my EAD and change my job last year I don't have my H1B. I filed my I-485 as single, but I will get married to my Girlfriend (Germany). She come here Last November with waiver visa (stay up 90days), Now she is thinking to come back using F1 visa a students instead re-entry using waiver visa which she can't change her status anyway). If I get married, can I put her name under my petition (file I-485 for her) ? and apply EAD also with her Travel documents ?

If your priority date is current, you can file her AOS as long as she is legally in the US. I just have an issue with using F-1 visa to accomplish this purpose. Please consult with a lawyer about the details.

F1 and OPT Expired but 60 days not up
I have a Bachelors degree and a Masters degree from the US. My EAD from my masters degree recently expired and the 60 days is almost up. I dont want to go back to school or go back to my home country. If i do find an employer willing to file for a green card based on EB2, will have to go back to school to maintain my status while the green card is in process or will my status change once the paper work is turned in?

This is a common misunderstanding. Starting a PERM-based green card does not give you the right to stay in USA.

AOS and EAD
I have been in AOS since Sep 2007. I have a EAD and now a new opportunity hit the door to move to another company, same functions but much better pay, arounf a 40% increase. I also got married to a US citizen. My dilema now is should I take the job? my actual employeer may get angry, so could he do something to screw my case? should I re-apply through a spouse? is something the new employer can do so I can be safe? I don't want to bother new employer, but could he eventually at least help so I can keep my actual status until AOS is approved.

It looks like you have several options. Once 180 days of AOS pendency are over after I-140 approval, usually employers cannot hurt you. Speak with a lawyer.

EAD restriction for 245i
I applied for GC through 245i. I currently have a valid EAD. I140 approved. and I485 pending. Its for future employment. Can I work for a non related (not related to my labour) until my 485 is approved?

Theoretically, there is nothing wrong with that, but speak with your lawyers. In my view, not working for the future employer raises issues like is there a job, do you really want to work for this employer, etc.

EAD - Job title change on the same job
My wife and I am on EAD and also both have H1B (I am in my 8th year of H1B and wife is in 5th year as teacher). Our EAD is based upon my job in EB3 category in IT as System Analyst/Administrator, my priority date Aug'2003. Last year I have completed MBA in Finance and can now work as a Project manager within the same company. Can I change my title to Project Manager or IT Manager and also can I change my profile now to work in Investment Company or any other non-IT field in the same company I am already working. As these delay of getting green card are actually causing problem in my career.

If you change your field/job description, it is very likely that you have to start your green card all over again. You should be able to carry the same priority date, but the PERM/I-140 may have to be done again.

AOS interview next week, mother in India on AP
I am a US citizen, had applied for my parents GC in October 2009. Mom underwent fingerprinting three times here, but did not get her AOS done in time. End of last year my father (who got his EAD and AOS smoothly) had emergency heary bypass here, and then they had to leave back for India for more tests. Mom left on AP. Subsequently I wrote a letter to NBC, MO to ask them to expedite my mothers case. Yesterday I received a letter stating that she has go to Philadelphia USCIS office next week for "Completion of application to register for Perm residence." Mom is in India now.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

RFE H-1 without a client letter
I applied for a H1 Transfer in May 09 as my client required me to be an employee of the preferred vendor.In aug 09 I received an RFE asking for a client letter.Could you please let me know if there is anyway to get the approval without the client letter or any other supporting document will serve the purpose. Please do the need full.

Read my blog and my article on this issue.

Travel overseas on F-1
I am an international student on F-1 from France, I just finish my semester and I am now transferring to a new school starting classes early October. Since I have almost a month off, I had thought once I get my new I-20, about going back home in France for a couple of weeks, but when I said that to my new school advisor, he suggested that I shouldn't travel overseas until the thanksgiving break comes and after classes start, however; I am not sure that this information is correct. I thought that once I have my new I-20, I could go home and come back without any problem. Should I go or not?

I do not know the details of your case or your SEVIS status. If your International Students Advisor is experienced in immigration law (most of them are), you should take their advice but ask them to tell you the reason.

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

H-1 holder aplying for H-4 visa
My wife has been in US for 6 months on H1 and is going back to India. In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1? Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?

The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

When is an H visa stamping required?

1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

PS: I do not have H4 stamping.

Using B visa with F-1
I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

H-1 holder aplying for H-4 visa
My wife has been in US for 6 months on H1 and is going back to India. In india if she applies for H4 , will it be necessary to carry any Salary Slips generated during her stay in US on H1? Is there a possibility that the consulate might demand for her W2 and salary slips before stamping her H4 visa?

The cardinal rule in visas is that consulates can ask for pretty much anything. If they do ask for proof of H-1 employment or pay stubs and you do not have it, the H-4 still cannot be denied. The fact that one has been out of status is no bar to the grant of an H-4 visa.

When is an H visa stamping required?

1. My story begins like this: I was working for company A, got stamping in May2007(in canada). Came back to US, changed to company B. Got laid off on Feb 27th, 09. In order to have a valid status I got married on Feb 15th and got my H4 legally on March 20th, 09. Two weeks back a miracle happened, got a job through company C and applied for PP H1b, received it last Thursday. Now, I am planning to go to India for a week in June, 09. Tough having a valid H1b stamping prior to the H4-H1, do I still need another H1b stamping?

PS: I do not have H4 stamping.

Consequences of not using an H-1 visa
I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.

It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.

L-2 to L-1 COS or Visa?
Hi...i have a question...i came to US on my L2 visa and am here for 1 month.meanwhile my company has initiated for my L1b visa in India..now my question is... 1. Should i have to travel back to my native for Visa stamping or i can apply for COS from L2 to L1B in US itself? 2.Since i already own L2 visa is there any chance that my L1B is rejected?i have been working in the company for 1yr and 2 months only now. 3.in case if my L1b is rejected is there will be any impact on my already approved L2 visa?can i come back to US again using L2 visa?

You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.

Using B visa with F-1
I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?

My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

While in USA, your stay and status is controlled exclusively by your I-94.

You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

Filling DS 156

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

Waiver of Joint filing requirement
Divorced from my husband and need to file for removal of conditions (status: permanent resident), i.e. to apply for a waiver of the requirement to file a joint petition due to termination of marriage. How do I proceed? What documents do I need to file for removal of conditions based on the situation I am in.

You will need the waiver as you have said. Read the instructions on Form I-751. What you will be required to prove is that the marriage, when entered into, was in good faith and not to get a green card.

H-1 for Canadian PR with J-1 issue
I am presently in Canada on Canadian PR (and have an indian passport). An employer in Indiana (from a hospitality background) is interested in hiring me. 1. They have no clue abt H1B visa. How do I proceed? 2. I was on J1 from 2000 to 2001. I do not have a waiver. Will this affect my application?

If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.html

I-290B AAO Process case online status question
I am looking for your advice here, my online case status for denied I-140's appeal I-290B as "The I290B NOTICE OF APPEAL TO THE COMMISSIONER was transferred and is now being processed at a USCIS office." this status is there for past 19 months with no further updates, recenetly opened SR recieved response saying my case is pending at AAO office in washington, which one is correct,Is my case transfered back to USCIS or still with AAO any idea. is there anyway to expedite my denied/appeal I-140 I am on 7th year H1b extension. Incase appeal denied what are the options I have.

Call AAO directly. They should be able to tell you what is going on. If the case was transferred back to CIS, that is at least partly good news. That means the appeal was not denied. As to options, you need to make an appointment for consultation with your own lawyers or us.

Filling out a DS 160 Non-immigrant visa Form by mistake ...
My wife needs to transit through a US airport for not more than 5 hours in February 2010 in order to go back to her birth country. However, she filled out by mistake a DS-160 Non-immigrant visa to submit to the US consulate in Vancouver (Canada) because at the US consulate in Vancouver they require DS-160 Forms to be submitted to them. However, she decided to fill out a second form called DS-156 in order to apply to another US consulate in Canada (in Calgary) for the same US transit visa to get an earlier appointment there. What does she has to do now to correct this situation ?

Contact the consulate. If they have not already done so, they will correct the situation upon request.

Consequences of not using an H-1 visa
I really appreciate ur efforts here.I had one question to ask u if u can answer humbly.I am a doctor from india and i had got a residency in internal medicine last year.I got my H1b visa stamped but coulnt go to usa coz of some reasons.So the hospital got my H1B visa legally cancelled.This year again i have got residency in another hospital and they r ready to sponsor my H1b visa.I wanted to ask u that will there be any problem from USCIS in processing my petition this time as my visa got cancelled last year.As i have not told this hospital about my visa cancellation last year will that be a problem.Will my petiton be processed in a routine way this time too by uscis.

It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine.

L-2 to L-1 COS or Visa?
Hi...i have a question...i came to US on my L2 visa and am here for 1 month.meanwhile my company has initiated for my L1b visa in India..now my question is... 1. Should i have to travel back to my native for Visa stamping or i can apply for COS from L2 to L1B in US itself? 2.Since i already own L2 visa is there any chance that my L1B is rejected?i have been working in the company for 1yr and 2 months only now. 3.in case if my L1b is rejected is there will be any impact on my already approved L2 visa?can i come back to US again using L2 visa?

You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.

Filling DS 156

I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

Can I apply for Social Security Number ?
Can I apply for Social Security Number on basis of I -797. My license to work as a vet in State A in depended upon SSN. How long does it take to get a SSN. On what status will I stay until I get a SSN & a license & subsequently start my job.

Generally speaking, when you get your H-1 approval, you can apply for SSN. If there is an urgency, SSA could expedite your application. I believe USCIS and SSA have said if you have the appropriate USCIS approval, you can start working even without the SSN. Check with SSA on the details.

Green Card for musicians
I have a Christian band, and we have 2 CDs out for sell already, one of our singers would like to know how to obtain a green card with our band, is this possible?

A green card through work is unlikely unless either he/she has a full-time job offer in her field or is nationally/internationally recognized.

Green Card for musicians
I am a mexican composer, Im finishing my career on film scoring and composition and I'm intersted to know about the green card for musicians.

Green cards in music would be available possibly for two categories of individuals: those who have a permanent job in USA in their field and those who are nationally or internationally famous.

EB-1 for a visual artist
I am a visual artist and have the master degree in art. I exhibited in several countries including US , Canada , Greece etc..33 Years old..Worked as an assistant professor in Germany duration 1 year. Can I apply for EB-1?

That by itself may not be enough. You need to have evidence of sustained national/international acclaim.

Australian Musician to perform in US
An Australian Musician that is wanting to come to US for a few weeks to travel and play at approx 15-20 venues across the US. I am willing to sponsor him via my DJ entertainment service, and he will be paid for the shows. He is a professional musician in his country, has been for 15 yrs. Which visa would be required in this case?

A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.


An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.


"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.


"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.

Advise needed for replying visa
I am a traditional artist, visited US in 2005 with P3 visa and later I have visited with 10 years B-1/B-2 visa two more times. And on fourth time the immigration officer, deported me from NY airport, saying that you have not paid tax $6000- of my sold paintings in the US. and if you agree to volunteerily withdraw applicatition then we will allow you to come back with right working visa.And the problem is my wife is in US and has applied for asylum, so do you recommend me to reapply for working visa or wait untill my wife gets the green card and I am deported on may 2009.

If you withdrew your application, you were not deported. You could apply for a work visa.

Work visa for an artist
I am a visual artist. I recently finished my Masters in Fine Arts. I have a job offer to work as an art teacher for a non-profit organisation. I am offered only 1 hour per week job. What kind of work visa can I apply for?

I cannot think of any visa that could permit work for one hour a week.

B-1 visa for amateur singer
I am an amateur singer who has had an american label interested in carrying my CD's (this is my first CD, and I have never been paid for my music before). They intend on having me appear on shows on radio and tv nationally, and to do press, both by doing interviews and performing. Would I qualify to do interviews and perform for national tv shows under a B1 visa, since I am still an "amateur" singer? Or am I NOT an amateur just because a major label is carrying my CD?

In my view, a B-1 would be appropriate because you are not engaging in any employment that would take a job away from a US worker and you are not getting paid for your appearances.

AOS applicants applying for H-1 visa
My spouse and me are currently working on H1 and we do have our EAD and AP even though we are not using it. We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped. We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

AC21 and losing job
I am EB2 priority date Sep2005. I had lost my job in Apr 09. I started working on Dec09 with another company similar job description, in same geographic location and with 15% higher salary than labor approved. I was out of job for almost 8 months.My old employer has assured not to evoke approved I140 (more than 3 years since I 140 is approved) I have few questions: 1.Shall I file for AC21? 2.is it advisable to send copy of current paystunb with AC21, If yes how many months? 2.Is it okay to file AC21without paystub for around 8 months? 2.If I dont file for AC21, will there be an issue travelling on AP at POE?

AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Must we withdraw a PERM application if the employee is laid off?
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

Questions on AC21, EAD, losing job, etc.
1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs? 2. Does having an EAD permit me to work multiple jobs? 3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct? 4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’? 5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application? 6. Do I lose EAD and AP? 7. My wife is working using her EAD…will she lose her EAD? 8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done? 9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.


2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).


3A. Correct. You are in authorized period of stay. That has been explained in my blog.


4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).


5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.



6A. No.


7A. No.


8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.


9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

Divers Licenses, while H-1 extension pending
How can someone get a extension on drivers license if his H1B extension is pending and I-140 is approved in Georgia??? What do you suggest someone should do in such a situation?

I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

AC21 - accepting a green card
1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

Compensation for H-1 lay off
My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

H-1 denial, appeal, MTR
My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details. H1B/H4 filed: March 1st 2009 RFE was issued in April RFE replied: May 6th 2009 H1B/H4 denied: June 1st 2009 Our H1B/H4 I-94 expired: Apr 10, 2009 My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.). 1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status? 2) While new H1B is pending, what is my status? Am I considered to be in status? 3) Can we file brand new H1B through the same company while appeal is pending? 4) Can I work for my employer while appeal is pending, without filing new H1B? 5) Can I work for my employer while new H1B is pending? 6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition. 7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
I (a software consultant) have EAD from my current employer(consulting firm). My employer holds my salary abruptly without any notice or reason. When pressed why? after the salary date passes by without getting paid, the general excuse given is "The bill is not collected from the client" , though there is no such contract between us wherein my salary is dependent on the accounts receivable/ collection. I want to know a- Can they do it legally? b- What are my options including can i sue this employer despite being on EAD?

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
 

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

US employee working from India

1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Effect of Bankruptcy on immigration
I tried to find information on the internet on how bankruptcy affects H-1 visa status and future green card processing, but couldn't find any information on this.

Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.

Are H-1 holders being turned back at the airport?
This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

GC approved. When should I start working on the green card job?
Now that I received my GC through employment, does my employer need to change my position to the one filed in the Labor Certification?

Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.

Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Starting business while in AOS/I-485/H-1/H-4
1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

What happens when an employer is under criminal investigation/indictment?
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Employer not paying, may I tranfer H-1?
At the very outset I would like to appreciate your for the credible service you are doing by explaining the law in a very lucid manner to a common man. I have an issue where I need your help. I am on H1 B since Oct 1st 2008 and working with my employer at his site. Though he is paying me in cash and kind he is not running a payroll for me since the inception. Now if I want to move or transfer my H1 to a different company can I do that with out the paystubs. If so that is great news for me, if not what are the options I have. Appreciate your help in this matter.

It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
http://www.doleta.gov/Performance/gu...2003-02-05.pdf

You can also contact the local WHD of DOL where you are:

Consequences of DUI's on naturalization and green card
Dear Mr.Khanna, I have reading all your post and found you quite informative. I will appreciate if you can let me know the possible consequences of my case. I was in restaurant in Gaithersburg MD on Jan 29 2008 with my boss who was visiting from Atlanta. I had a beer and 2 glasses of wine with dinner came out sat in the car and started backing up. As you know it was winter and had rained earlier the windscreen at the back got fogged out. While backing up I hit a car parked. Police was in that parking lot and arrested for drunk driving. I blew .09. I was given a bunch of tickets after being 30 minutes in the precinct and was released. In the court they dismissed 2 tickets like DUI and DUI par se and convicted me DWI and Failure to control Speed to Avoid Collision. BTW DWI in MD is a lesser offence when you blow less than the state .08 BAC typically .07. And Failure to control speed to avoid collision which is maximum fine $130.00.Now the Judge gave me Supervised Probation till I finish my MADD Class. After that the Probation goes to Unsupervised for 12 Months. Now I am elligible to file citizenship. I have finished 5 years of LPR time with minimal travel aborad. Now my questions are : 1.) Will I get deported or removed. 2.) Will I have problems while entering POE while travelling from overseas. 3.) Will my Citizenship be denied if I file after my probation gets over. Please share your knowledge It will immensly help my stress. This one mistake of my life has really taken a toll in my life. Your earliest reply will highly appreciated.

Let us look at the law for green cards and removal (deportation) first.

Remember the following GENERAL elements of the law (there is more to it).

Does lay-off affect natutralization?
I obtained my green card 4 1/2 years ago through employment. My former employer sponsored me h-1 visa for 6 years and labor certificate and green card as well. Unfortunately, I was terminated by the employer last year, which ended my 10 years career at the company. After the termination, I then filed workers compensation claim for the injuries at work, and civil lawsuit for discrimations and under-paid wages through lawyers. The two cases are pending at courts. Now I have a part time job which is not related to the job that helped me get the green card. It is almost time for me to apply for citizenship. However I am worried about how much the two cases would affect the application. I will be asked in the citizenship interview why I left the green card sponsor, why you were terminated and so on, so forth. Please help advise if my worries are correct ? Is it better to apply for citizenship when the problems above are ended in courts ? Thank you very much for your help.

 I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

Laid off - Now what ???
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.

This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

Can Employer Withdraw My Green card Application?
I had accepted an offer of employment from a well established Indian Consultancy company last year in the month of June 2007. I was given the pre approved labor and they filed I 140 and 485, EAD, AP during that Visa bulletin fiasco last year. I got EAD and AP for both me and for my wife. My I 140 approved from TSC last month. Now I have a better opportunity. My employer is threatening to withdraw GC files processing unless I work with them till I get my GC. Qo1. Is that possible for them to withdraw like that? Qo2. Does that affect my GC process in negative way? Qo3. What I have to do in case they withdraw? Qo4. Is it possible to re-start the whole GC process again in case? Qo5. By the time I file AC 21, if the present employer withdraws the GC files, what happens to my case? Qo6. How do we know whether they have withdrawn GC process or not?

Ans1. They can withdraw the 140. That is their petition, but they cannot withdraw the I-485. That is your petition. If they withdraw the I-140 you can still take recourse to AC21 and not suffer any negative consequences.

Ans2. If you are covered by AC21, you should be fine.

Ans3. File AC21 letter as soon as possible.

Ans4. Sure .

Ans5. See this link: http://www.immigrationportal.com/blog.php?b=25

Out of Status
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ? I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock ) (Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

H1B Status
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Must we withdraw a PERM application if the employee is laid off?
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

Importance of having continuity of employment/pay stubs
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

H-1 visa denial and investigation
1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application

1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

Compensation for H-1 lay off
My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

New H-1 employee returning -- rights and issues
Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

If the employee wishes to continue to stay for tourism, I think they should apply for B status. See this post: http://forums.immigration.com/blog.p...gcategoryid=36

As for returning in the future, that can be problematic because the govt. can questions whether there truly exists a job for him. If you have a truthful answer for that, return should be possible and can be done any time during the life of this H-1. Note also that you have no obligation to pay him while he is outside USA, but there is a general obligation to withdraw an H-1 if the worker leaves. SO, that makes this a gray area as well.

Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

Employers and Employees -- H-1 or EAD?
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

When does CIS investigate fraud?

The attached document explains the criteria.

H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

GC approved. When should I start working on the green card job?
Now that I received my GC through employment, does my employer need to change my position to the one filed in the Labor Certification?

Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.

Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.

GC Compliance for Employers
Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Employers questions on H-1 compliance

1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

Employers responsibility in H-1 process

Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

What happens when an employer is under criminal investigation/indictment?
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Is salary reduction possible/legal?

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

Start-up applying for H-1 and AC21 for employees
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.

 H-1 by Start-up Companies

How to get back to H-1 status?

We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?

VisaScreen
I am Indian citizen, did Nursing accelerated bachelor from accredited university (4yrs course finished in 2 yrs)in USA, RN licensed for NY/NJ/VA compact states ,for H1 and Green card. Do I need visa screen certificate?

"Yes. Although your professional education was completed in the United States, the purpose of the VisaScreen®: Visa Credentials Assessment is to provide a screening program which meets all federal requirements for international health care professionals seeking an occupational visa in the United States, irrespective of where the professional education was completed. However, there is a streamlined process for foreign-born health care professionals educated in the United States." From CGFNS.

RN F-1 visa
I have just received my BSN and I'm currently awaiting certification from California. Will actively look for job once certification is approved. Have F-1 visa and just received OPT for a year. Can I qualify for "green card for nurses" after OPT period is over if already in country and having matriculated in the US? Any other recourse for permanency?

You will have several years of wait in the green card process.

Green Card for RN
I am an RN with a TN visa from Canada. My wife who is an American Indian born in Canada will soon be sponsoring me. Will the fact that I have a visa speed up the process?

It will not speed things up, but filing for Adjustment of Status (which is available only to folks who are already in USA), makes it possible to continue to stay in USA while the green card process is in the works.

I got my BSN in the US
I got my BSN in the US, passed NCLEX and got my employment authorization. I am currently on F1 visa, and working at a nursing home. I live in MN and it was extremely hard to get a job. How do I apply for a green card and what role will my employer play in this process? Is it going to cost my employer any money? And how long is it going to take to get a green card?

Your employer's role in this process is limited. You can pay for all expenses yourself. The length of the process is determined by the country of birth.

My wife filed for Skilled Worker
My wife filed for Skilled worker (EB-3(A)(i)). Can I apply for NIV to visit her?

There is nothing in law that stops you from getting an NIV. But grant of visas like B-1/B-2 is completely discretionary.

E3 visa for LPN
I already have a USA LPN license, was just wondering if its possible to get E3 visa to work in USA, I am an Australian citizen. What are the requirements?

As far as I remember, most nurses jobs do not qualify for H-1/E-3 type visas because a US Bachelor's degree is not required for the jobs. If you can find a job where a Bach. degree is the minimum requirement, you can be eligible for E3 or H-1B.

US RN Graduate foreign national
I am here on an H1B and completed my BSC Nursing as well as obtained my state licence. What is the best way to proceed to get a job/visa in the USA.

Start with Optional Practical Training.

Visa Retrogression - Nurses
How can a F1 student after graduation apply for greencard at this time? Isn't there a retrogression problem at present? Are there any hospitals that are currently sponsoring foreign nurses? Secondly what other options are there for a recent nurse graduate (who is a foreigner) to get employment in the US?

An F-1 student could apply, but will not get the green card right away. I cannot provide a list of hospitals that we work with. That would be a breach of confidentiality in my view. Nurses typically use H-1B, H-1C, H-2B and TN visas.

LPN applying for green card
I am on F1 visa studying Pre - nursing classes. I am planning to do LPN, based on it can apply for H1 or green card? ? Is there any possibility for LPN to apply for greencard or only Registered nurses can apply for H1 or Greencard?

 LPN's can apply for green card, but only RN's get the the benefit of schedule A green card without labor certification. See this page also: http://www.cgfns.org/sections/programs/vs/

I am an International student, with F-1 visa
I want to know if I can take the Green Card in my future. I am studing in Nursing courses right now, but can i take green card if I finish my Bachelor's degree? Please send me a response.

That is how most students get their employment-based green cards. Once you become an RN, under the current law, it should be relatively easy to apply for your green card. There may be other options as well.

Pharmacist visa for FPGEE
I have plans of taking the FOREIGN PHARMACY EQUIVALENCY EXAM (FPGEE), I am from the Philippines what kind of visa should I apply for?

You will apply for B visa (B-1/B-2).

Information regarding pharmacist immigration
I need an information regarding the pharmacist immigration. I have cleared Fpgee and right now i am in usa on F-1 visa. How can i end up getting an internship?

You may want to ask in the forums http://forums.immigration.com about how to get an internship. We do process H-1 for Pharmacist Interns, but I do not know how you would get a job.

Which category of green card for Pharmacists?
Iam an FPGEC certified Indian pharmacist, I wanted to know what category does pharmacist green card come under ,am I eligible for EB1?

Pharmacists, like all professionals can potentially come under any of the three -- EB-1, EB-2 and EB-3 category depending upon their qualifications and the jobs they do. So read carefully information about all the categories.

NPTE license
After clearing the NPTE license exam do we need to go for health care worker screening or with EAD we can work?

If you already have an EAD, for instance as a derivative beneficiary, you only need to fulfill the State licensing requirements.

How to transfer the approved I-140 - Physical Therapist
I am a Physical Therapist and My I 140is approved through an OP rehab clinic and they applied for my GC too. Now I am ending 2 yr contract with the above mentioned company and I would like to know what is the procedure to change the company by maintaining my GC process.

I cannot think of any reason the law would be different for PT's in this respect. You can only carry the priority date (if your I-1485 was not filed more than 180 days ago). You will have to refile the I-140 with the new employer. Read my blog.

Green Cards for Physical Therapists
I am a licenced physical therapist in Michigan and working on my OPT. Is it true that PTs and nurses are exempted from the labor certification during green card process? and they do not need to file labor certification? And considering the current scenario, can you please let me know approximately how much time does it take for a physical therapist to get a green card?

 PT's and RN's are both exempt from filing labor cert, but the time for their green card processing is still tied to the time it takes for people from the country of their birth. An India-born PT will wait the same time in EB-3 category as any other India-born EB-3 applicant.

Marriage to US Citizen with EB AOS is pending
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

GC future job; H-1 ext. revocation upon 140 denial, etc
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Do physicians have the right to an extension beyond 6 years for waiver jobs?

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.

May physicians process GC during residency?
Is it possible to start GC process during my first year medical residency if my hospital agrees. Have you dealt with cases like this.

The essence of a green card application is that it is meant to be for a job in the future. 

F-1 Curricular Practical Training (CPT)
As part of our Curricular Practical Training (CPT), I completed my summer internship with a company on 2nd of the September. So the formal procedure for extending the work is to apply again for the new CPT but somehow my second CPT delayed and got approved on 28th of September. Between 3rd and 28th for around three weeks, company asked me to work and I did. At the time I was not aware of the consequences but now I am in a great trouble. What do I do?

You have two choices that I can see: apply for reinstatement or go outside USA and reapply for a visa.

H-1 Quota issues for students

Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

Nonimmigrant Visas
Green Cards
Common Topics
Professions