US Immigration Questions

  1. Thursday,...
    Question: I worked for ABC Company for last 3 years. They extended my H-1B at the end of 3rd year. But during my 4th year (this year) I changed my employer and updated my H-1B too. At the same year, ABC Company was sold to another company. ABC Company decided to give bonus to its current and formal employees. I got a bonus check from ABC Company. Since, I was not on their payroll they issued me a 1099 misc form for tax purposes for this tax year. My understanding is H-1B employee can file only W-2 form with current employee. If I file my tax with this 1099 misc form from ABC Company? Am I violating the H-1B rules?
    Answer:

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


    FAQ Transcript:
    I don't see any problem. The reason being, that payment even though they are paying you after you left the company is not the violation of your status. It is reflective of the amount already earned.  While you have H-1 with these folks you earned these amounts. Now, 1099 usually a bad idea but in your circumstances I don't see it as problem. Usually you can only do W-2 but in this particular case I am not quite sure how USCIS is going to look at it. What questions  they are going to ask you.
     
    But I can tell you this  in the ultimate analysis  after you have responded and made clear that , the money given as part of a bonus which  was earned  by you , you had a H-1 with that company . So it's not a new work. I don't think you will have any problem. So, legally you are in good position.
  2. Thursday,...
    Question: My sister is a naturalized US citizen and she is planning on applying for my GC. I have 2 questions: 1. If my company decides to sponsor my L1-A visa (after my GC application is submitted) will my L1-A be denied because of my GC application?. I have a multiple entry 10 year tourist visa that will expire in 2017. If I apply for a new tourist visa in 2017, will that be denied? 2. Furthermore, my father's GC (consular processing) is being processed currently. Once he becomes a GC holder, can he apply for my GC (I am single over 21 years of age) in such cases Processing time is also much less. If my father can sponsor my GC, what happens to my application in the unfortunate event of my father's demise during this period?
    Answer:

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

    https://youtu.be/R4-_pic6TzY?t=103

    FAQ Transcript

    1. Normally when you have a green card application pending you have exhibited immigration intent. You’ve clearly told the government look I want to live in the US. So filing of a green card is exhibition of an immigration intention. However there are certain kind of nonimmigrant visas that are immuned from the poison of immigrant intent. Those visas are called dual intent visas. Dual intent visas even though they are nonimmigrant visas allow you to have a green card application either filed or almost approved or pending , is no problem at all. L-1 and L-2 are examples of dual intent visas as are H-1 and H-4. These are the visas were even if you have a green card going  there is absolutely no problem.

    But tourist visas, student visas, exchange visitor visas like J visas, H-2B visas - these visas do not allow you to have an immigration intention. E-1 and E-2, E-3 are kind of ok. It is pretty complicated but overall they are pretty much to the level of dual intent visas. G visa which is for World Bank employees and international organization employees are also dual intent visas. K visas are dual intent visas. M visas are not dual intent visas. P and Q not dual intent. R probably is ok to have a green card going.

    It is important to understand the distinction between dual intent visa which allows you to have a green card going and single intent visa which does not allow you to have a green card going.

    So if you have a green card going and you apply for a tourist visa that can be denied. Not necessarily but can be denied. 

    2. There are certain things that can be done and I think one is called survivor benefits and the other one is called humanitarian reinstatement. Sometimes those two things can be of use. Look that up if something is not clear. 

  3. Wednesday,...
    Question: 1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD? 2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently? 3. I am currently on OPT ( from F-1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140 Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD ? 4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140. My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ? 5. Can H-4 EAD can do business ? 6. I am in USA on H1B and running my 5th year. but recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse? 7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back? b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped? 8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status? 2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time) 9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying? 10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously. Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer? b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition? c. If YES, how long is this ‘grace period’ for OPT cap-gap extension? - If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?
    Answer:

    1. Is there any time frame within which H-4 should have job offer after getting H-4 EAD?

    Answer: The H-4 EAD, like the EAD under AOS/I-485 is an opportunity, not an obligation. You can choose to get get an EAD and then not work at all. The EAD remains valid.

     

    2. Why is an adjustment of status I-539 needed? What status is being adjusted (H-4 to H-4?)? I get the other form for application of EAD. What if someone is on F-1? Could they file I-539 (To go from F-1 to H-1?) and I-765 concurrently? 

    Answer: I-539, change of status has to be filed only if the derivative spouse is in a status other than H-4. If your spouse is already in H-4 status, you will file the I-765 only. If they are in a status other than H-4, such as F-1, you will file for change of status to H-4 using I-539 and you can concurrently file the I-765.

     

    3. I am currently on OPT (from -F1- visa) and it ends in Dec. My husband on H-1B and I-140 to be approved 2009 PD in "ABC" company and he moved "XYZ" company .The XYZ company process my new I-140 Do we have any clarity on the F-1/OPT to H-4 EAD process? Should I move to H-4 and then apply for EAD?

    Answer: I think we have plenty of clarity at this time. You can apply concurrently for H-4 COS and EAD on or after 26 May. You can also apply for H-4 COS now and EAD later. 

     

    4. I know there is no clear picture that there will be a change in law for all candidates with I-140 approved can register for I-485, so that they can get EAD/AP. If that really happens, there is no use of this H-4 EAD regulation anymore it is just obsolete, any person with approved I-140 can apply for I-485. The H-4 EAD process took one calendar year from starting to beginning for approval which will become a waste of process, effort, wait time, expenses for the Government. If it really happens, it is a miracle or my guess is they might keep a condition that the person should be waiting at least 3-4-5 years with a approved I-140. My question is it that easy task for USCIS/GOVT/EO just amend the process for I-485 pre registering ? 

    Answer: Good points. But H-4 EAD will still be good for people with no I-140 who are in 7th plus year H-1 extension. As to whether or not this is an easy task, depends upon whether they do it by memo (real easy) or regulation (time consuming). 

     

    5. Can H-4 EAD can do business ?

    Answer: H-4 EAD holders CAN do business.

     

    6. I am in USA on H1B and running my 5th year. But recently I have got H1 extension from USCIS to 7th year. (This is because my labor is pending with DOL now for more than 1 year). So based on these conditions, is my spouse eligible for EAD?. Can your firm help me in filing the EAD for my spouse? 

    Answer: Since you have received extension beyond 6 years of your H-1, I see no problem in your spouse obtaining her EAD.

    As to whether we can represent you, is more problematic.  Since we do not know the depth to which USCIS will examine the supporting documentation that goes with the H-4 EAD petition, we have no good way to decide what to charge. For instance, if USCIS starts asking questions about the status of H-1 holder, it could involve hours of our time.  But if they do not, it would be just a simple filing.  There is no fair method to assess the issues that can be raised.  One of the options you have is to file the Form I-765 with supporting documentation yourself, and then retain us only if an RFE is issued.  That way, in reviewing the RFE, we can assess how much work is needed and charge accordingly.

     

    7. a. After the H-4 EAD, if the candidate is not willing to work or doesn't have a job and visited India, does she have to go for visa stamping while coming back? 

    b. Can she enter on approval EAD (without working) if she doesn't have H-4 visa stamped? 

    Answer: a. In my view it is no, she does not need to go  for visa stamping if she already has a visa. Not working after getting her  EAD is  her right. Therefore, it is not a violation of her H-4 status if she decides not to work, work part time, or own a business, etc.

    b. No. She will need a visa. The H-4 EAD does not operate like an Advance Parole.

     

    8. 1. I am planning to apply for H-4 EAD for my wife, what happens to her EAD if I change my current employer maintaining my H-1B status? 

    2. My wife has found a job which can apply for her H-1B, can we file for her H-4 EAD before actually knowing if her application is selected in lottery process? (In short have both H1B application and EAD application open at same time)

    Answer: 1. I see no issue with changing employers as long as your eligibility is otherwise maintained (status/I-140 etc.)

    2. Yes you can. I have discussed this in the video on my blog.

     

    9. I am on H-1 B and my husband on H-4 working in India. Can I apply H-4 EAD while he is in India or he has to come here before applying?

    Answer: USCIS's position is that casual trips that are brief are permitted. If your husband leaves for a long time, you are not permitted to stay in the USA.

     

    10. a. If my H-1B petition is not selected in lottery, I will apply for H-4 COS and EAD simultaneously.  Is it advisable to apply for H-4 COS/EAD on my own or through my wife's employer?

    b. While my H-4 COS/EAD petitions are under USCIS’ review, can my ongoing STEM extended OPT EAD be further extended (under cap-gap extension policy or similar) to allow me continue working after 9-June-2015 (the day my OPT EAD expires) till I receive the decision on H-4 work authorization petition?

    c. If YES, how long is this ‘grace period’ for OPT cap-gap extension? If NOT, will I be considered out of status (and have to leave USA) during the time period between the day my OPT EAD expires and H-4 EAD is approved/effective (assuming a positive outcome)?

    Answer: a. I see no reason why you must seek the help of your wife's employers.

    b. You will not get any new rights other than an H-4 EAD. 

    c. A timely filed H-4 petition will give you the right to stay in the USA awaiting outcome.

  4. Monday, 30...
    Question: My I-485 (based on EB-1) is pending more than 180 days. If I decide to change jobs under AC 21 rule -<br> (1) Does the new job description should be same as by definition of EB-1 or should it match my current job description based on which I applied for GC in EB-1B?<br> (2) Do you advise to change using EAD or transferring H-1B? <br> (3) Based on your experience, will you advise to change jobs under AC 21 or stay in the present job until GC is approved?
    Answer:

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

    https://youtu.be/GtOqgqgEG6I?t=242

    FAQ Transcript

    Very important issue is Job portability. Today the way it works is an AC 21 portability was basically enacted by Congress back in October 2000 under a law called American Competitiveness in the 21st Century Act, the kind of abbreviation or acronym for AC21. What does it mean? If you’re I-140 is approved and your I-485 is pending whether it was filed with the I-140 or after I-140 approval. If it has been pending 180 days, you may change employers to any same or similar job anywhere in the United States and you will not have to do your Green Card again. So basically you can port your job over as long as it is same or similar. Tricky problem, what is same or similar? No one knows. If you are a software engineer and you remain as software engineer in the next job then same or similar. If you are a software engineer and you become IT manager in next job then not sure same or similar job.

    This is where Obama steps in and he says look I will make it clear for the record that natural progression in a job does not take away from being a job same or similar that's the first thing President Obama wants to do and hopefully they will implement really quickly. So, natural progression is considered to be same or similar. Second thing President Obama wants to do is to let you file I-485 without the priority date becoming current. So that means you will earn a right for AC-21 almost a year- year and half, two years into your Green Card process which is very good. Right now if you are India born or China born you could have to wait minimum years to earn that right. So that's in a nut shell what AC-21 is.

    Further down somebody was asking a question today: Do we have to inform USCIS?

    Interesting thing is that there really is no formal process for implementing in AC-21 transfer over, job portability. Basically, you are not required to file a letter but we usually have employees, people, individual in that situation, file a letter and inform USCIS. Because USCIS is prone to making mistakes, sometimes if the old employer revokes your I-140, if you are an AC-21 eligible individual it does not make any difference if the employer revokes the I-140 as long as you cross the 180 days deadline. Even if they revoke you are entitled to AC-21. But the problem is USCIS sometimes is not aware of the new laws especially the less trained officers. They could revoke your I-485 and send you notice. Next thing is you are running around and trying to solve this problem and if the AC-21 is revoked you are immediately unlawfully present, you cannot work and work is debatable. Let’s just say you are unlawfully present, it’s just a whole lot of mess that should be avoided and that's why I also advice people to keep their H-1 active. So AC-21 letter should be sent.

    Another question asked is should I hire a lawyer?

    Please do not do this yourself, many things I OK with people doing by themselves you may be ok and you may be get through it. But this is not worth taking chance as downside is too terrible so get a lawyer don't do it by yourself.

    Now the question before me

    My I-485 (based on EB-1B) is pending more than 180 days. If I decide to change jobs under AC 21 rule -

    1. Does the new job description be same as by definition of Eb-1B or should it match my current job description based on which I applied for GC in EB-1B?

    Answer:  Current job description. If you are trying to take advantage of EB-1 portability or AC-21 portability your job description should be same or similar in relation to job description is already being filed.

    2. Do you advise to change using EAD or transferring H1-B?

    Answer:  I told you H-1 is better; keep your H-1B alive.

    3. Based on your experience, will you advise to change jobs under AC 21 or stay in the present job until GC is approved?

    Answer:  Yes if you have good opportunity. We have done thousands of AC-21 in last few years and we never had an issue as long as job is same or similar you should be fine.

     

     

     

  5. Wednesday,...
    Question: My F-1 visa was denied twice for the reason 214(b). I have visited my uncle in U.S for 6 months on a vacation. My Uncle (U.S citizen) sponsored me for my both F-1 (student visas). On my first appearance for F-1 visa interview in Chennai consulate my B-2 visa was cancelled by interviewing officer . Now I plan to appear for F-1 visa with my parents sponsorship. Will there be any problem for me in applying F-1 visa interview this time?
    Answer:

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

    https://youtu.be/GtOqgqgEG6I?t=87

    FAQ Transcript

    214(b) denials, typically you will come across in student visa applications, tourist visa applications, even J-1/J-2 applications. They can be problematic because they are very difficult to overturn. It is a matter of subjective determination of the consulate that they suspect the applicant has an immigration intention.

    If somebody has come to the US on a tourist visa or any other nonimmigrant visa and gone back within the time permitted that’s a good sign. That shows that you are somebody that you can be trusted. In a case like yours unless there was a reason for the consulate not to trust your submission they should have considered your case more sympathetically than the case of somebody who has never been to the United States.

    I don’t think the sponsorship is a problem.

  6. Thursday,...
    Question: My I-140 was currently approved but the company is keeping the Original copy of I-140 approval with them, also they are not giving me the copy of original. The GC is filed in EB-3 and I have US masters degree and technically qualify for EB-2 category. I was waiting to get my I-140 approved and H-1 filed so I can start looking for change of job who can file in EB-2 with same PD.<br> How important it will be for me to have the original copy of I-140 or how are the other ways which I can obtain this from the USCIS directly?
    Answer:

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

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=1376 

    FAQ Transcript

    First of all you really don’t need a copy of the I-140 approval. We have been able to get H-1 extensions as well as priority date transfers based upon just your name, social security number, date of birth , name of the old employer, but you should file a Freedom of Information Act request. If you go to the USCIS list of forms you will be able to see FOIA Freedom of Information Act. Strictly speaking it is a Privacy Act Request but they are the same form. The form is G-639. That will give you a copy of your documentation. Often time’s government gives you a copy of all your paperwork including your I-140 approvals. So doesn’t hurt to try that way. So we don’t really need it. You should be ok. But it is a good idea to have copies of everything that the government has and can share with you. So when you file the FOIA/Privacy Act Request form it’s free to file and there is no charge on it. In a few months (4-5 months) you will get copies of the documents and it could very well include I-140 approval as well.

  7. Monday, 16...
    Question: I am in a very difficult/complex situation, the situation is as below:<br> Have been on H-1 for 3 + 3 + 3 + 1 years (last 4 years extended based on approved I140). Have approved I-140 with priority date of June 2010 in EB-2 category. H-1 extension was denied last year hence had to leave employer A, now I am on H-4 and will be soon filing H-1 with employer B. I have following questions on which I am requesting your opinion. <br><br> Q1. When my priority date becomes current and if I am still with employer B, can employer A still file my I-485 and that way I can then get the EAD and join him on EAD? :<br> Q2. Further, do I have to be working with employer A on an active H-1 visa to be eligible to file EAD when my priority date becomes current? :<br> Q3. If question 1 approach works, can I then continue to work with employer B and employer A can process my green card in parallel. :<br> Q4. What are the risks in working for employer B when my I140 is with employer A. Note that employer A is willing to preserve my I-140 and process green card eventually without me working for him, because he is unable to find me any projects? :<br> Q5. I do plan to file for a new GC with employer B but worry is the priority date is likely to become current before I complete GC process with B. :<br> Q6. Do I need to be with employer A for my wife to apply H-4 EAD based on my I-140 with A (note that currently I am with employer B).
    Answer:

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

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=893 

     

    FAQ Transcript

    Answer to Q1. In other words you have the intention to join both of them but you haven’t chosen yet and I think that’s quite OK as long as that intention remains and the employer’s intention remains to hire you at the present date or future date you can file a green card or even an I- 485 that’s perfectly permissible. Actually you don’t have to join them on EAD you can join them after the green card is approved as long as you have the intention to join them the green card can go forward. 

    Answer to Q2. No you do not. 

    Answer to Q 3. The answer is yes 

    Answer to Q 4. The problem is USCIS can always question this arrangement from a common sense perspective. This type of situation has not been questioned very frequently. In my entire twenty plus years of practice of immigration law I have had only one instance out of Chicago where this issue was raised and questioned. We get a kick back from USCIS saying well you know if he wants to work permanently for this employer why is he working for the other one why did he leave and we had a very good answer. In fact being paranoid we had prepared for that and made sure we knew what the reason was and it was genuine. This company was specialized in JD Edwards ERP and JD Edwards had lost a lot of market share so the individual in question the green card employee was a senior technical person and he went to get experience in other types of ERP. He looked at SAP and he was doing work in oracle finances and applications. He was learning all these technologies and the idea was he would be able to bring it back to the employer and they would be able to expand their ERP offerings and we were able to get that green card approved without any problem. So even though he was working for another employer the prior employer got his green card approved and once the green card was approved he joined. By the way under AC21 once the I-485 has been pending 180 days you can file an AC21 without joining the prior employer. The intent to join has to remain active in your own mind till 180 days or I-485 pendency has passed.

    Answer to Q 5. I think that’s OK. 

    Answer to Q 6. No because the government has made it clear we just want one active I-140 we don’t care which employer it has been approved with.

  8. Wednesday,...
    Question: I am US citizen and planning to sponsor green card for my sibling. My sibling has already visited US in B-1/B-2 visa few times and holds that visa for another few years. I know that this kind of application takes 10+ years to approve. From this context in mind, I have few questions -<br> 1) Can my sibling enter United States on the same B-1/B-2 visa after I apply immigration application?<br> 2) Can my sibling apply for renewal or new B-1/B-2/H-1 visa while application is being processed?
    Answer:

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

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=782

    FAQ Transcription

    There really is no statute law that specifically prohibits such an entry. Well maybe there is something that says you must have nonimmigrant intent but the question is can they do it. Theoretically  yes they can enter on a b visa while the green card is pending especially when something is pending for 13-14 years they maybe allowed an entry but they can be disallowed an entry at any point of time. So there is no guarantee that the B-1/B-2 option either the renewal of the visa or entry at the airport will be permitted on a indefinite basis. You could be stopped any time.  However H visa, L visa, E visa and O visa are some of the visas that are not subject to the problem of green card pendency. These visas can be utilized. Also remember a green card can be filed through several different categories at the same time. So if your sibling qualifies for other categories they can apply under all the categories available for them. So H-1 visa is no problem b but B-1/B-2 no guarantee.

  9. Wednesday,...
    Question: My Citizenship Interview was held on July 8th 2013 (become PR 6/2007) and it is pending since then due to middle name issue. My Indian passport and documents in US does not have middle name, but my Birth certificate has listed my name along with middle name (there is no middle name section in the birth certificate, so they did not bother to mark it separately. <p> So it has been approx. 2 years and I reached out multiple times about the status and so far I got an answer “Will let you know once the decision is made”. Also I have been told that they need to do another round of security check with my name, including the middle name. <p> Now, my company wants me to send me to Germany for some years (approx. 2+ years). I am not sure how I can proceed further. My wife and Kids are US citizens and they will have to move with me to Germany for couple of years.
    Answer:

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

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=556

    FAQ Transcript

    When you have this length of delay for two years the best thing to do is first approach your congressman’s office. Go to https://www.congress.gov/ enter your zip code and it tells you who your house of representative members are and who your senator is. Contact either one of them. Send a letter to the representative and tell them you live in their area and you are a constituent and you have a pending naturalization application that has been stuck for two years. If they are not able to resolve it get yourself a lawyer and file for a law suit. Normally I don’t recommend a law suit but when naturalization applications have been delayed so long a law suit is a good bet.

  10. Tuesday, 10...
    Question: I am an Indian and have been living in London for the last 6 years and currently in the process of getting British Citizenship, which I am hoping to get by April and subsequently British Passport by June. I work for a leading international bank in London.<br> My girlfriend is currently doing Masters in Illinois, USA, so, I am looking to move to US, but understand the H-1B visa is a bit complicated. <br> My question is, how does the quota system work for H-1-B visa and when does the new quota start, and what's the best period to apply for one? So, If I am looking to move there in October 2015, when do I have to get an employer to apply for H-1B for me (provided an employer agrees to sponsor me)? or, is there a particularly good time to apply for H-1B visa? <br> Also, is it easier to get the visa if I am there physically in the US or it doesn't matter?
    Answer:

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

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=138

    FAQ Transcript:

    Well you don’t have any time to lose. Apply right away. The way it works is your H-1 application must reach the USCIS on April 1st no earlier and usually no later. Sometimes they give us three to four days but normally April 1st is the day the quota opens and that’s pretty much the quota closes as well and there are usually more applications received by the government than they have visas almost two to one ratio maybe more sometimes and then there is a lottery held and if you get selected in the lottery then your H-1B gets approved. You go for a visa stamping and you can enter USA no earlier than 10 days before October 1st when your H-1B visa period starts.

    What is this thing about October 1st?

    The US government fiscal year begins on October 1st so all the quotas including green card and H-1’s they get reset on October 1st.  H-1 you can apply six months ahead of the start date  which is April 1st  so that’s why you file on April 1st  and you begin working on October 1st  but you can enter USA ten days ahead of October 1st.

  11. Saturday,...
    Question: If a GC holder applies for permanent residency in another country (say Canada or Australia) is that automatically considered an abandonment of the GC here in the US? I am getting a very good job offer in Australia and would like to go try it out for a few months to see if its a good fit.
    Answer:

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

    https://www.youtube.com/watch?v=3BDxO6-OQbc#t=375

    FAQ Transcript:

    The question here is can I have permanent residency in more than one country?

    Yes. You can. I can only comment about USA. I don't know about other countries, so if you have a Green Card in the United States there are possibilities you have a Green Card in U.S. and you have permanent residence for Canada as well. But in fact you stay in USA permanently, you work here, you stay here we really don't care what other permanent residency you have. So if as a matter of fact you are living in the United States we don't care how many other permanent residency you have. 
    If on the other hand, you quit your job, go to other country and take permanent residency there, it can be an issue for your Green Card here in the United States. Government can ask you, what is your intention. I would advice you to take detail consultation with your lawyer and make sure your particular circumstances covered. I think re-entry can be applied to protect your Green Card. But in that case getting a permanent residency in a third country may not be very good idea. However temporary visa would be OK specially when combined with re-entry permit, Form I-131 and or N-470 to preserve your Naturalization. 
    So look into that before you make any firm plan. As a theoretical matter if you are permanent resident of USA and you are living here we don't care how many other permanent residency you have.
  12. Friday, 20...
    Question: Status of the H-4 EAD regulations
    Answer:

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

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=93

    FAQ Transcript:

    This FAQ is about H-1 quota, how does H-1 quota work?

    I think this is an issue important for many people.

    Question: I am on L-1 A, If I get H-1B this April, is it mandatory to work from October 1st. Can I continue on L-1A and then change to H-1B when I like.

    Answer: It can be done, sure. Here is how you do, when you apply for H-1, don't apply for change of status, its up to you. You can tell the employer and double check it,make sure you talk to lawyers. Just say I want an H-1 approval but I don't want change of status. That way from October 1st you don't automatically get on H-1, you stay on L-1 continue working on L-1. And whenever you are ready you can go outside, get your visa stamped and come back or apply for change of status within USA to H-1, which is like doing H-1 all over again but you are not subject to the quota. So that's how you do.  

  13. Friday, 20...
    Question: I am working for company A, last three years. In order to file green card I need to use my current experience(3 years) as I don't have previous experience to prove. Can I leave the current job from company A, go to another company(company B) and work for few months in ( company B) and go back to my previous company(company A) so I can use the three years experience for GC process? How long I have to be out of company A to use that three years experience?
    Answer:

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

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=813

    FAQ Transcript

    Normally you cannot use as a prerequisite qualification for a job experience that you gained with same employer. To give you an example, let say I joined an employer as an software engineer and I worked 3 years as an software engineer. When I joined the employer, I had zero experience I am right out of the school with master degree and all 3 year of experience with same employer. So when I file my PERM application, can I require that every applicant must have 3 years of experience at least? 

    Answer is No, unless you meet the following requirements. If the job being offered to you as a Green Card job is more than 50% qualitatively different than the software engineer. If you join as a software engineer you got 3 years of experience then next job offered is Project Manager for example where more than 50% of your time spent in managing projects not a hands on architecture or development. Now you can use the experience you gained because job offered is different than the job you had before. There is common sense reason for it. When you joined this employer you had zero experience, after three years employer claims that they require 3 year experience for the same job. USCIS or DOL would want to know what changed that their requirement changed. 

    Now answer to the mass question. I am working for company 'A' for last 3 years. In order to file Green Card I need to use my current experience (3 years) as I don't have previous experience to prove. Can I leave the current job from company 'A' go to another company 'B' and work for few months in company 'B' and go back to my previous company 'A'. So can I use the 3 years experience of GC process?

    Answer: No. I don't think so you still need substantially different job so it is better to be offered substantially different job and apply with the same employer because working for few months for another employer will not work. However if you go from employer 'A' to employer 'B' and employer 'B' does your GC then there is no problem. You can use the experience you got.

  14. Tuesday, 17...
    Question: I got my H-1B petition approved in 2008 and again got it extended in 2008 unto Jan 2011. Now, I have never used both these visa's to work in US. Though, I have traveled few times to US but on B-1 visa for meetings with customer. Today, one of my friend told me that I am eligible for cap exempt H-1B application if I get job in US. Also, what will be the processing time for this cap exempt H-1B. Can this be done in premium processing in 15 days ?
    Answer:

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

    https://www.youtube.com/watch?v=xv_vI7O0d4U#t=518

    FAQ Transcript:

    It is a very odd situation. I think the USCIS interpretation of when you become exempt from the quota is incorrect. But this is their current thinking at least as of last week. With them you never know. They felt if you are outside USA and you get an H-1B approval never go for visa stamping. You are not exempt from the quota. So if you never get visa stamped we don’t consider you to be exempt. If you’re in the United States and you get your H-1 approval but the employer who got the approval revokes your H-1 before October 1st you are not exempt from the quota. I think both the interpretations are incorrect. I would encourage you to try and take a chance and see if you can consider being quota exempt. Anyway if I were you I would certainly file a quota application in April just to preserve all my rights and if it does not get selected in the lottery file again and ask for quota exemption because of the reason that you have an H-1 from before.

     

  15. Tuesday, 17...
    Question: Currently I'm on L-1A status and it expires in *** hence my employer is planning to file new H-1B this April not change of status. Here are my questions...<br> 1) If I get H-1B this April, is it mandatory to work on H-1B from Oct 01, 2015?<br> 2) Shall I continue with L-1A status until it expires and then can I change to H-1B?
    Answer:

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

    https://www.youtube.com/watch?v=xv_vI7O0d4U#t=441

    FAQ Transcript:

    The answer to the first question is it can be done. When you apply for an H-1 do not apply for a change of status. That’s up to you. You can tell the employer and make sure you talk to the lawyers. Just say you want an H-1 approval but I do not want change of status. Come October 1st you don’t automatically get on to H-1 but stay on L-1 and you can continue working on L-1 and whenever you are ready you can go outside get visa stamping and come back or apply for change of status within US to H-1 which is like doing the H-1 all over again but you are not subject to the quota. 

  16. Tuesday, 17...
    Question: My spouse and I are living in different sates due to obvious work reasons. I am currently on H-1B Visa with my I-140 approved. My wife is on H-1b working as a full time employee to XYZ company. Now, with Obama's executive action particularly with H-4 EAD my wife is planning to change her visa status from H-1B to H-4 so that she can get opportunities at the place where I live (at this point of time all the companies at my place are asking her for Either Green Card or Proper Work permit without any sponsorship in order to hire her). In this regards I have 2 questions <br> 1. Would you suggest us to get H-4 approval in advance before H-4-EAD rule comes into effect or would you suggest we can file them concurrently?<br> 2. If she applies for H-4 when can she quit the job - Is it on the day of notice of application receipt from USCIS or from the day of H-4 approval?<br> P.S: I am aware that no rule has been published yet but just wanted to get your thoughts/suggestions on this issue.
    Answer:

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

    https://www.youtube.com/watch?v=xv_vI7O0d4U#t=110

    FAQ Transcript

    As you folks know there is a regulation that is pending for a long time and we were expecting in December that it will get finalized, published and H-4 people whose spouses are at the I-140 stage would have the right to work with an EAD. So far that is still pending; there is no news on that. Last week USCIS said that they are very close to finalizing but knowing the government I do not know what very close means. 

    There is a difference between Executive action of Obama and the pending regulation for H-1 EAD. These are two different things. Right now we are waiting for the regulation that was pending to be published.  

    So the answer to the question is she can quit the job on the date USCIS receives the H-1 application. If she does the H-1 application online then she can quit the same day. I would want you to wait and see what the rule looks like before you start making changes in the work authorization. if you’re ok with the idea that your wife could end up not working at all for many months then go ahead and apply for H-1 but if you do not  want to take that chance then wait until the regulations become finalized and then you can decide how you want to go about. 

  17. Thursday, 5...
    Question: I have two approved I-140`s in EB-2 from two different companies with same A# on them. One with 2009 PD and other with 2011 PD. I am working for the company with 2011 PD . 2009 case was approved after the 2011 case so we could not port the date at the time of filing for 2011 case I-140. Now my question is do I need to file for amendment to port the 2009 date? Or am I eligible for filing I-485 without the I-140 amendment? Both I-140's are alive and employer did not withdraw any of them.
    Answer:

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

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=657

    FAQ Transcript

    PD (priority date) date transfer is supposed to be automatic. We don’t have to do anything about it and it is my understanding what USCIS does is they do periodic sweeps in fact several times a month. They do a sweep like queries of their database and whoever is entitled to whichever priority date at the earliest they automatically assign that to you. So if you have one I- 140 approved earlier another I-140 going on or approved they will automatically assign you the earliest priority date to which you are entitled. That may or may not reflect in your approval though. So just because it does not reflect in your approval it doesn’t mean that you are not going to get the earlier priority date. You can confirm it by opening a service request. You can confirm by asking them your priority date.

    Hence the answer is you are eligible for filing I-485 automatically when the 2009 date becomes current. All you have to do is attach a copy of the earlier approval notice with it along with the current approval and you should be fine.

  18. Thursday, 5...
    Question: I have my I-140 approved under EB-3 category, even though I have Masters Degree from accredited US University. Can I change it to EB-2 now?
    Answer:

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

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=472

    FAQ Transcript 

    The idea is once an I-140 is approved under any category EB-1/EB-2/EB-3 the priority date becomes the property of the employee. Whether the employee goes to work for a different employer or a different job completely or like a different job where you go from being a IT professional to a civil engineer you would still carry your priority date. This is not AC21.  AC21 requires same or similar job but that also requires I-140 approval, I- 485 pending for 180 days. This is not that case. The priority date transfer from EB-2 to EB-3 requires only the I-140 is approved. 

    Hence the answer to the question is YES. If you get a job with the same employer or with a new employer that requires a masters degree or bachelors plus five year experience type of qualifications and your priority date will remain the same. The difference between AC21 and priority date carry over date is this: In AC21 you do not have to re file the green card. You can take the whole green card and take it over to a same or similar job if you’re I-140 is approved and I- 485 is pending 180 days. But in the priority date transfer you carry forward nothing. You only carry the priority date and it can be ported from EB-2 to EB-3/EB-1 to EB-2/EB2 to EB-1 it doesn’t matter. There is no requirement that the job that you are filing for is same or similar. That is the difference between AC21 and priority date transfer.

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

     

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

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


    FAQ Transcript

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

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

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

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

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

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

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

     

    FAQ Transcript

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

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

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

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

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

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

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

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

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