US Immigration Questions

  1. Monday, 12...
    Question: My query is that whether my name which was sponsored by an IT company and come under quota (in 2008) could still be considered to remain as 'VALID' and 'UNUTILISED' under the year 2008 quota (and initial period 2008-2011). As no stamping of H1B took place in 2008, then can this be UTILIZED by any new employer/sponsor (under the 2008 quota) but with the validity starting from the date of stamping (e.g. 2016) and till subsequent years (as applicable). Can we say that this would be a case of stamping based upon PREVIOUS quota/approval and any new sponsor would NOT require to file a fresh H1B petition. So, only some MODIFICATION of the 2008 petition documents would required to be made by any new employer/sponsor.
    Answer:

    Watch Video : Am I exempt from H-1 quota if visa was not stamped

    Video Transcript:

    Rightly or wrongly USCIS has been saying that if you are outside the USA and you do not get your visa stamped we do not consider you to be exempt from the quota. Chances are they are going to make you file for fresh quota. More

     

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  2. Thursday, 1...
    Question: I have a second degree in Nursing from the University of Alberta, Canada with a 6 yr continuous employment in Psychiatry through AHS. What are the procedure to apply either through the EB2 or EB3?
    Answer:

    There can be no RN green card without an employment in the USA and clearing of the required exams/licenses in the USA. As to EB-2, that would depend upon whether or not the job requires 5 years of experience after Bachelor;'s degree (or a Master's degree).

  3. Wednesday,...
    Question: I am a Green Card holder and intend to marry a Canadian citizen. I would like inputs on:<br> 1. After marriage, can the Canadian citizen stay in the USA based on Canadian citizenship credentials? Are there timelines associated with this (only stay for 6 months permitted, etc).<br> 2. Do I need to apply for a Family-based Green card for the prospective spouse?<br> 3. Can the Canadian citizen apply for USA jobs based on Canadian citizenship credentials (OR) would a NAFTA visa or something like that be needed? Also, I would like to know of any other specifics that I need to be aware of with reference to my case above.
    Answer:

    Watch Video: Canadian citizen (or any person) getting married to a US green card holder

    Video Transcript:

    1. The answer is No. Canadian citizens are not allowed to stay in the US indefinitely. They are allowed to come in without visas for most things except E-2. 

    2. Yes of course.

    3. The answer is No but NAFTA visa also known as a TN visa is very difficult if you already have a green card pending or your spouse is a US green card holder. I think what makes sense is probably a H-1 or L-1 type of visa which is not subject to the problems that are normally associated with the filing of a green card or they can wait outside for the green card to be processed. They may be allowed in as long as they are completely upfront about it. When you come to the border as a Canadian citizen and you are going to visit your spouse who is a green card holder you should tell them that's what you are going for. You should not say you are going just for a casual visit. 

  4. Monday, 15...
    Question: I am with one of the Indian MNC and I am working as Program Manager for last 4 years (L1-A). I would like to apply EB-1 GC through a future employer. What is the timeline and chances to approve ?
    Answer:

    EB-1C green card can be applied only through an employer that is a member of your the group of companies that you are currently working for on L-1A. To apply through an unrelated company, you will need to go through EB-2 or EB-3 categories.

  5. Tuesday, 26...
    Question: I am from India and holding an Indian passport. I work for a IT company. I manage around 250 members. One of the agencies are tied up with another EB-1 and EB-2 processing agency in USA and informed me that they can help in processing EB1-A visa (Self Petition).<br> My questions are:<br> 1. Is there a category of Visa as EB1-A?<br> 2. If so, is there a possibility for self - petition? i.e. without an employer?<br> 3. If I file EB1-A, what is the waiting period? Approximate is adequate.<br> 4. Once I get the EB1-A visa, can I self apply for Green card or should there be an employer assisting to file for Green card?<br> 5. If I apply for Green card on an EB1 A, how long generally with it take?<br>
    Answer:

    1.  Yes.  See: http://www.immigration.com/greencard/eb1-green-card/eb-1-extraordinary-a...

    2.  Yes, self petition is possible under EB-1A.

    3.  Usually, it takes appx a year for the whole process.

    4.  EB-1A IS a green card category.  Nothing else is needed.

    5.  See 3 and 4.

  6. Tuesday, 12...
    Question: If my visa is in an expired passport, what should I do?
    Answer:

    If your Visa is in a passport that has expired or will expire within 6 months of the end of your U.S. visit, you will need to get a new passport. However, you do not need to apply for a new visa. Just bring both your NEW and  passport with the valid visa to present to the CBP Officer when you arrive in the U.S. 

    *Note:  Your ESTA is not a U.S. Visa.  If you obtain a new passport, you are required to apply for a brand new ESTA.  To re-apply visit esta.cbp.dhs.gov.

    The U.S. has an agreement with certain countries exempting their citizens from the requirement that their passports be valid for up to six months past the end of their U.S. visit. (See page 19 of the Carrier Information Guide on cbp.gov).Citizens of the countries which are exempt the six-month rule need to have a passport valid for their intended period of stay.

    Please contact the U.S. Embassy in your country of citizenship to determine if you are exempt from this requirement. 

    Six-Month Club Update (Countries that Extend Passport Validity For an Additional Six Months After Expiration)

  7. Monday, 11...
    Question: A child is born to a lawful permanent resident mother during her temporary absence from the U.S. What must the parent do to be able to bring their child back to the United States and obtain LPR status for him/her?
    Answer:

    Children born during the temporary visit abroad of a lawful permanent resident (LPR) mother are classified as NA3.

         · A child who meets the requirements of the NA3 classification is exempt both the passport and immigrant visa requirement when arriving in the U.S. for the first time.

         · The child must apply for admission to the United States within two years of birth.

         · The child must be accompanied by the parent who is applying for readmission as a lawful permanent resident upon the first return of the parent to the United States after the birth of the child.

         · The accompanying parent will be admitted as an LPR per normal procedures and must be admissible to the United States.

         · The relationship between the parent and child must be established, usually by a government issued birth certificate (full version listing names of parents) with a certified (notarized) English translation, if applicable. The translator must certify that the translation is accurate and complete and that he or she is competent to translate from the foreign language into English.

         · The child's admission as an immigrant will be recorded at the port of entry on form I-181, which will then be forwarded to USCIS by CBP. The child will also be issued an A-file number by DHS that may then be used to establish eligibility for other federal, state, and local government programs within the United States. http://www.uscis.gov/tools/glossary/number

         · After the birth of the child during a temporary visit abroad, if the LPR mother seeks readmission to the U.S. and is not accompanied by the child, the child would then be required to have an immigrant visa and passport before seeking admission to the United States, even if the child subsequently arrives within two years of birth. If the child does not apply for admission prior to the age of two (2) with an accompanying LPR parent, the child will be required to present an immigrant visa and passport in order to be admitted to the United States as a lawful permanent resident. Requirements to determine eligibility and the process for obtaining an immigrant visa are outlined at www.uscis.gov and www.travel.state.gov

  8. Friday, 24...
    Question: I have an approved I-140 with PD 2013. My wife works on H-4 EAD based on my I-140. If I join another company with my I-140(say I get H-1, my wife's H-4 and EAD for 3 years), Would it be fine if she continues to work on that EAD even if my I-140 gets revoked/withdrawn after H-1 approval.
    Answer:

    USCIS has said if an I-140 is revoked, they reserve the right to revoke the H-4 EAD. So far, they have not been revoking.

  9. Tuesday, 7...
    Question: Today I have got denial on my I-485. Reason stated was "According to Visa Bulletin in effect on the date this application was filed , a visa was not available based on your established priority date and specific preference category" My category is EB2. Date of filing for this category is 1st July 2009. My priority date is 10th December 2008. I filed 485 application on 1/19/2016 and got receipt notice on 1/29/2016 I did my finger printing on 03/16/2016 based on USCIS schedule I and my family members also got EAD on 03/23/2016 I was surprised to see today’s denial reason. I filed 485 application based on Dates for Filing .e. 1st July 2009 for EB2 category. Not sure why they denied my case since Final action date is not current but I am sure I am eligible to file my application based on date of filing. Is there any way to appeal on this decision ? If appeal gets denied again is there any impact on my current H1B status ?
    Answer:

    FAQ: Remedy for denial of I-485 AOS

    Video Transcript: When you filed and the government says the priority date is not current then that's a question of fact. If they have mistakenly identified this petition as untimely filed you can definitely file an MTR (there is no appeal against an I-485 denial) and get it reopened, but if they are correct then have a lawyer review your case.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  10. Wednesday,...
    Question: I got married in May last year and my wife was born in Malaysia . I was on H-1B with I-140 approved then and learnt about cross chargeability and filed for green card in June, we both got our green card in October. Things are not going well with marriage and my wife moved to NY and she is thinking of getting divorce. If divorce does happen does this affect mine or her green card?
    Answer:

    Watch Video: Effect of divorce on an employment-based case and cross-chargeability

    Video Transcript: As long as the marriage was in good faith and you just did'nt do it to get cross chargeability benefit then there is no problem in a divorce and that will not have an effect on her green card or yours. Both principal and beneficiary can opt out of processing the green card for their spouse if there is a split-up.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  11. Tuesday, 31...
    Question: Can I apply for STEM OPT, if I work for a E-Verified staffing agency (similar to Aerotek, Kelly services) on contract basis that is related to my STEM field of education at a client location ?. (I along with staffing agency will fill out I983 form) <br> I read online that USCIS has regulated "Certain Types of Employment" for STEM OPT in this new rule. So am worried that working for a staffing company at a client company location is therefore invalid :/ ((If so, I think then all the staffing companies would suffer as well))<br> I have attached hereby the snippet from Federal Register:<br> """"""There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03).""""" <br> It would be really helpful if you could explain what the above paragraph means.
    Answer:

    Watch Video: STEM OPT extension for consulting or staffing companies

    Video Transcript: Basically what the government is saying is that if you have staffing arrangement or a consulting arrangement and you are not directly supervising the employee who is on OPT STEM extension on the site where they are working then you should not be filing for their STEM OPT extension. So far this is what we know of the USCIS comments. I have not heard anything different from USCIS so far. 

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  12. Monday, 30...
    Question: I have PERM approved and I-140 filed in regular processing by my current employer "A". I have got an opportunity from employer "B" and then told they will process my GC as fresh application. I have 17 months left on my H-1B visa. <br> 1. In pending approval of I-140. will I get the extension of 3 years from USCIS when employer "B" initiate the transfer ? OR Will I get the H-1B transfer extension till max out ?<br> 2. Is it recommendable to switch now in between of pending approval process of I-140?<br> 3. Will leaving in between of pending process impact me in future when employer "B" files my GC once again ?
    Answer:

    Watch Video: Changing jobs after I-140 approval

    Video Transcript:  Under the current laws, if you change jobs after I-140 approval you keep your priority date, but you lose your right to H-1 extensions beyond what is given if your old employer revokes/withdraws the I-140.

    Now answering your questions

    Answer 1.No, you will get an H-1B extension for the time remaining and you can actually claim one year extra if your PERM was filed more than a year ago. But you will get only three years if the I-140 is approved. Not if it is pending. 

    Answer 2. I don't recommend it. I think you should get your I-140 premiums, get it approved and then leave if you want to.

    Answer 3. I don't think that is a major issue, but do talk to your lawyers. Hence it makes sense in my view not to change until the I-140 is approved. 


    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  13. Friday, 27...
    Question: On December 18th 2015 I came back to USA on H-4, at that time my old passport was expiring on September 19th 2015 so the Immigration Officer approved my I-94 until September 19. Later I applied for H-1 and it got approved on Feb 2nd 2016 and my H-1 is valid until Ending Validity Date: 12/19/18 with I-94 number in it. I renewed my passport now and I have validity until 2026. Question: Do I have to go for stamping again to extend my I-94 validity? Or since I got new I-94 with my H-1B is that good enough.
    Answer:

    Watch Video: I-94 given for duration shorter than entitled

    Video Transcript: In this case there is one piece of information missing as in I do not know how long your I-94 was expired, how much is the difference between expiration of the old or the H-4/I-94 that was given to you during your last entry and the H-1 approval date beginning. So if that gap is more than 180 days you should consult with your lawyers or have a consultation with us if you like. But that needs to be evaluated very carefully because that has many ramifications. Remember errors made by CBP (Customs and Border Protection) can be corrected by just going back to the port or one of the many CBP offices all over the country. 

     

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  14. Friday, 27...
    Question: I was a student on F-1 (MS), and I got my H-1B two years ago. My company has started GC process and already got my I-140 approved. But I want to go back to school this fall (law school), which means I'll have to change my status back to F-1 again.
    Answer:

    Watch Video: Changing back to F-1 student status after filing for green card


    Video Transcript:
    If you have exhibited immigrant intent, getting F-1 status should be very difficult. So it is correct that when you have exhibited an immigrant intent the government or the counsellor officers can take the position that you have basically taken yourself out of consideration for a non immigrant visa like a student visa. 

    Theoretically at least your chances are made worse because of the green card. I don't think withdrawal of the I-140 necessary helps.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form. 

     

  15. Tuesday, 19...
    Question: I have BSc., [Maths] – 3 yrs degree + MSc., [Computer Science] – 2 yrs degree in India Grade A Universities and 11 years exp in IT industry applied I-140 under EB2 category. Last week I got the RFE like below. I can provide my legal name change evidence. Please see the RFE description and labor certification details below. <br> "Is USCIS not certain that I have met the educational requirements of the labor certification position"? I can see only one statement that "USCIS is unable to determine if the beneficiary has met the educational requirements "Once I have documentation that NEW NAME and OLD NAME are the same person, will USCIS accept my educational documents?
    Answer:

    Watch Video: Name variation in diploma or degree, name change for immigration


    Video TranscriptOne of the easiest way to remedy is to actually get a decree from the local court. You can just contact the local court system and tell them you want to do a change of name. They will typically give you some paper work to fill out and then you advertise in the newspaper and then you can show it to USCIS but of course then you have to take care of your passport, social security number. It is a little bit of a hassle but needs to be done. 


    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  16. Tuesday, 19...
    Question: My current status is AOS (Advance Parole) based on an employment-based EB3 green card filing with a PD of April 2007. I am an Indian citizen. My H-1B expired in 2007 and since then I have been working in the US on my EAD. My parents have found a prospective bride in India, so I am looking to get married soon and have her accompany me to the US after marriage. She does not have a US Visa. I have not found any information from any venue of getting married to an Indian girl from India in my current immigration status, except for hearing about Form I-824. Could you speak towards or confirm if indeed this is the process/procedure and its success rate or any caveat : filing Form I-824 to have my future wife added as a dependent to my pending AOS application, while she is still in India? And then subsequently filing my next I- 765 application and adding her as a dependent/spouse on the application. Once the EAD cards arrive then traveling to India and she could travel back to the US on her new EAD card?
    Answer:

    Watch Video: Getting married when AOS I-485 is pending (following to join and other options)

     

    Video Transcript: As per the law if you have an employment based case pending and you are married on the date your green card is approved, she is entitled to come through you through the same priority date and through a much shorter process called following to join. 

    What is following to join?

    Lets say you are here and your spouse is in India you will file form I-824 and request the government to send her papers to the consulate and that can take time. But this is processing time. It can take 6-10 months. But eventually she gets processed through an interview in the consulate following to join.

    In the above situation H-1/H-4 is the only option because unless she is in USA in legal status she can't file adjustment of status. When you are outside you can do only following to join.

    Get your H-1 stamping done and also her H-4 done. Both of you travel to USA on H-1 and H-4. If your priority date is current when you land you can file for her I-485 otherwise she can stay on H-4 and you can stay on H-1.

     

     

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  17. Tuesday, 19...
    Question: A couple of questions on Gap in status:<br> 1. I am on H-1B and my project/job is going to end on April 29,2016 (Friday). I have my H-4 approved effective May 2, 2016. I will get salary slip from 1 April to 30 April. Do I need to have salary slip for May 1, 2016 (which is a Sunday) to maintain H-1B/ legal status (considering that I won't be getting May 1 to May 31 salary slip).<br> 2. I am currently on H-1B and have an approved H-4 Effective 15 July 2016. As part of my H-4 application (which I had filed along with my spouse extension) , I had requested USCIS to give me H-4 effective date of 13 May 2016 as my project was going to end on 13 May 2016. But, the request was not honoured and USCIS responded citing the reason "Since the beneficiary of the I-539 and I-765 will change status, we cannot give an earlier start date than what is shown on the I-129 approval notice." If my project ends on 13 May 2016 , should I leave the country as my H-4 effective start date is 15 July 2016 to maintain legal status ?
    Answer:

    Watch Video: Gap in Status


    Video Transcript:

    Answer 1: These kinds of de minimis small gaps are sometimes  even a product of the way the government works. In your case I don't think it is going to be a problem. Technically yes even for one day being out of status the government can say you are out of status, but when they have already approved your status I don't think this is going to be a major issue. 

    Answer 2: I personally think it is still not a big issue because  if you got the H-4 already with an I-94 attached I doubt if the government is going to make an issue out of it. But you can do another thing. You can file a tourist visa to cover you for those two months but make sure it does not go beyond July 14. Other wise your status will be changed to B. So you could do a stop gap kind of arrangement or you could leave USA for a couple of months. But even if you stayed I doubt whether it is going to be an issue. 


    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  18. Wednesday,...
    Question: I am currently on H-1B(Valid till Sep 2018) with approved I-140 for Company A and spouse has H-4 EAD (valid till Sep 2018). My question is, if I switch my job to a company B. Can my spouse continue working with the current H-4 EAD (which is valid till sep 2018)?Will it cause any issue during next H-4/EAD extension?
    Answer:

    Watch Video: Does H-4 EAD have to be applied again if H-1 changes jobs?

    Video Transcript: The answer is of course not. The only time you have to worry is if you fall out of status. As long as you are maintaining status every time you change jobs her H-4 and H-4 EAD is good until her H-4 and H-4 EAD is about to expire there is nothing else you got to do. She can continue working and she need not change H-4 every time you change H-1.

     

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  19. Tuesday, 5...
    Question: My Spouse is on H-4 and has a Valid H-4 stamped till Jan 16 2017. I am planning to apply H-1 for my Spouse through an Employer this year. Is it advisable to travel to India while her H-1B is in Process? What will be the implications if she travels to India?
    Answer:

    Watch Video: Travel while H-1 COS is pending

    Video Transcipt: Whenever you are on one status and you apply for another status, like from F-1 to H-1, from H-1 to H-4 or from tourist visa to student visa, anytime you have a situation where you are going from one status to another your application with the government has two requests implicitly contained in your application. One request is find me eligible for the status I am asking for. When I go from H-4 to H-1 I tell the government (USCIS) can you please hold me to be eligible to receive H-1 and if they say yes then you go on to the next step.

    Next step is actual change of status. So not only do I want to be held eligible for H-1, I want you to then change my status to H-1. So there are two applications within that one application when you file for going from one status to another. One is the determination and the other one is the change. When you travel outside USA generically speaking there can be exceptions. Generically and generally speaking your application for determination is not invalid but your change of status is invalid. So what does that do. Let's say I am on H-4 like the questionnaires wife is and they file for my H-1 change of status, I travel to India or Switzerland where ever I want to go and I come back. Government will give me my H-1 if it is approved, but they won't give me status change from H-4 to H-1. I am still on H-4, my H-1 is approved but only the determination has been issued that I am entitled to an H-1. Now I have two choices either I cannot apply for change of status from H-4 to H-1, because by traveling out I abandoned that part. I didn't abandon my determination request but I abandoned my change of status. The second option is to go to a consulate and get a visa stamping and come. So if she travels she has to do one of these two things when she comes back. She won't have to wait outside the USA if she doesn't want to. She can come back on H-4. 

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

  20. Tuesday, 5...
    Question: My amendment has been filed by my company in Aug15 but not approved yet. Now I want to travel to India in month of April & get back in same month . after coming back H1B extension will be filed by company. My question is can they create any problem on my return since my visa is about to expire in June 2016 & amendment is not approved yet.
    Answer:

    Watch Video: H-1 entering USA when visa is about to expire

    Video Transcript: You can enter the United States even if you have one day left on your visa. There could be questions as to how long you are going to stay, how are you going to stay, if the employer has already filed an extension and what is the process of filing the extension., and if these questions are answered brilliantly and completely you will not have a problem. Nevertheless you are allowed to enter the United States under the law even if you have one day remaining in the visa stamping.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Pages

Subscribe to US Immigration Questions