US Immigration Questions

  1. Tuesday, 26...
    Question: My name is Harendra having H-1B and an Indian national , I want to file H-4 for my wife who is a Srilankan national with Srilankan passport , living in India legally with my parents after marriage for the past three months. Can she apply her H-4 from India or she needs to go back to her native country to apply ? Is there any rule for spouse applying visa from primary applicant's country of residence?
    Answer:

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

    https://youtu.be/3Heaadpk1Ik?t=396

    FAQ Transcript:

    Answer is yes. This is the requirement for visa stamping from US. If you want to apply for a US visa, you can actually go to pretty much any country. They are not obliged in that country to take your application but you should. US Consulates don't turn people away no matter you are from which country. They can if they can't verify degrees, for example H-1 visas or they can't verify your family ties in case of tourist and student visas. They can ask you to go to your home country. But there is no harm in asking for an apply. As of right where do you have right to apply, where do you live on the long term basis. Let’s say you are on student visa in Australia, you have right to apply for the US visa from the Australia, in the US Consulate in Australia . Or where you are a citizen, if you are resident in one place and citizen of other you can apply from both places, that's your right.   

    Everything else is called third country national processing TCM. In TCM  almost always Consulate will entertain your application but they may not be able to verify your degrees or your family ties, F-1 visa, H-1 visa, tourist visa this become problematic but you can certainly try.  There is no harm in trying. The only time TCM does not work when you are out of status. If you are out of status even for one day, under the law TCM option is taken away, Third country nationals will not be entertained unless you are in extra ordinary circumstances. In practice, however I have seen Consulates don't really make a big deal of out of status; of course unlawful presence is other thing.

    So for you Harendra there is absolutely no doubt your wife who is Srilankan citizen but living in India with your parents legally can apply for a visa to the United States, H-4 visa from India. 

  2. Tuesday, 26...
    Question: I am looking for opportunities using the remainder option of my H-1B. I have a year and half remaining out of six years. Now, most of the companies do not want to start the GC process immediately; they want to start after 6-12 months. I have the following two questions: 1. What stage do I need to reach on my GC process when the remaining time on H-1B ends. 2. If my company doesn't want to start GC process immediately, can I begin this on my own using my personal fund?
    Answer:

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

     https://youtu.be/3Heaadpk1Ik?t=273

    FAQ Transcript:

    There are only two ways to extend your H-1B beyond six years. One is that you have I-140 approved. So PERM is approved, your  I-140 is approved   and if you are an EB-1 person then your I-140 is approved (NIW EB-1). So if your I-140 is approved, we don't care when your Green Card started, whether its PERM based or direct filing of EB-1, you are entitled to your H-1 extension.

    The other method is your PERM was filed a year ago or your I-140 and NIW.  In the case of first anniversary you will be entitled to 1 year H-1 extension, in case of I-140 approval you will be entitled to 3 year H-1 extension

     

  3. Tuesday, 26...
    Question: Please let us know effective when we can change jobs without having to file for I-140 again?
    Answer:

    When:
    1. I-140 is approved; and
    2. The I-485 has been pending 180 days; and
    3. The job described in green card is the same or is similar to the job you are going to;
    you no longer have to refile the green card.

  4. Monday, 11...
    Question: My wife is eligible for H-4 EAD, I know there is no formal way for expediting the process but I've seen a clause in F-1 (OPT) EAD process called "financial loss" and if you've got a job and submit the offer letter while you're waiting for an EAD to get approved, they process your case faster and you get the EAD much sooner than expected. Does this rule apply for H4-EAD as well?
    Answer:

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

    https://youtu.be/y6RtaKhuoIY?t=864 

    FAQ Transcript:

    I do not know. But let me tell you this when you look at the expedite criteria for any government document they are basically the same. If you can show government error or economic necessity or emergency or some kind of humanitarian considerations - there is five or six criteria then apply. As general observation I think it should be possible to expedite H-4 EAD if you meet the requirements. Theoretically it is possible to expedite the H-4 EAD.

  5. Thursday, 7...
    Question: Q1. Among the documents needed for filing H-4, what are the ones we really need to make sure, we have them. I mean few like Date of Birth Certificate from Indian Municipal/Registration office..... is that needed even for H-4 EAD. What if the name on the Birth Certificate from Registration office is different from name on Passport? What should be done here? Any other documents etc. we need to be careful about and should be working to get ready now. (Education certificates and marriage certificate etc. we already have)<br> Q2. Would it again be first come -first served in terms of filing H-4 EAD? I mean people who file on May 26-27 --would their applications be processed earlier than the ones who file little later.<br> Q3. Approximately how much time it’s expected for EAD to arrive, everything going well<br> Q4. One last question, if I happen to change my employer at this time, and if my GC process is re-initiated would my wife be still eligible for filing H-4 EAD or NOT ( in a situation if old employer revokes I-140 )
    Answer:

     

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

    FAQ Transcript: 

    A1. So far it appears to me and again we don’t have the details yet. The very least you will need is proof of marriage and birth certificate. I don’t think that is the normal requirement but I believe proof of relationship should be acquired and kept. Then the question what if the names on the birth certificate and passport are different.... we still don’t know lot about these issues I would say an affidavit explaining the discrepancy and probably making efforts to remove the discrepancy whether you want to have the passport issued under the correct name or whether you want to have a Indian court give a declaratory judgment of some kind that the name X and Y are the same person. Something like that would be a good idea. But it is not going to stop you H-4 EAD application at least in my mind. I think even education certificates are irrelevant because the h H-4 EAD is not given based upon what degrees you have it is given based upon your relationship with the H-1  holder who is at a certain level of maturity in the green card process. I am not worried about the laminated original document. That doesn’t bother me. 

    A2. First of all USCIS just roughly follows the first in first out rule. They are not always bound by that rule because there are so many variations within processing times if it is given to a particular officer which depends on what is their case load is and what if they have to take a couple of days off. It’s not always predictable that you will always be first in and first out. 

    A3. Under the regulations USCIS should adjudicate EADs within 90 days. But in case you don’t know they are finding it very difficult to keep to that time, I do not know when they get hundreds and thousands of applications are they going to keep that to that time, do they have the resources for that, I will be surprised if they are able to keep to the 90 days process but if it is merely administrative process and there is not a whole lot of investigation involved then I don’t see why not but I really don’t know. 

    A4. The government has said as long as you have one I-140 that remains unrevoked they will give us the H-4 EAD. But if the I-140 is revoked then H-4 EAD will not be given.

  6. Wednesday,...
    Question: My I-140 was approved on Sept 2011. I came to US on 2008 beginning on L-1 visa and then my employer converted to H-1 visa. On February'15 I got an extension on my H-1 visa based on I-140 approval but I didn't get it for 3 years from Feb'15 rather I got it till Nov'16 (about 1 year 10 months). I am thinking to join another company now. What should I consider before I transfer my H-1 to employer B from employer A on my situation? My wife is on H-1 and it’s valid till 2018. I am also thinking my wife to apply H-4 EAD rather continuing on H-1. Is that going to be a better option?
    Answer:

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

    https://youtu.be/y6RtaKhuoIY

    FAQ Transcript:

    I would say that I think you should hold off. Don’t give up H-1 to go to H-4 EAD. There are couple of issues here. We don’t really know how far the government is going to go into investigating these cases - are they going to go to details of the H-1 status, if not it could be a simple matter to get H-4 EAD. If they start getting into status issues we could be looking at a protracted battle over the EAD issues.

    People who are thinking of going to H-1 to H-4 EAD I would suggest hold off for a couple of months and let’s see how the government is dealing with the EADs and if they are asking for too much information you may not want to convert from H-1 to H-4 EAD.   

  7. Wednesday,...
    Question: I am on H-1B visa more than 6 years. I also have I-140 approved. However my H-1B is under renewal process. I do have 'receipt of notice' but not approval notice yet. Looking at the waiting time I don't think I will get H-1B approval along with renewed I-94 before May 26th 2015. I need to file EAD for my wife on 26th May.
    Answer:

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

    https://youtu.be/y6RtaKhuoIY

    FAQ Transcript: 

    The answer is probably yes. But if you want to be even more circumspect you could even premium you’re H-1B. I mean if you are that concerned about it. Lot of these things have not been clarified but we do except them to issue a clarification before May 26th. Until then the practical approach I believe is you could apply for H-4 EAD while the H-1 extension is pending and you could, based upon the approved I-140 ask for the H-4 EAD but in the meantime you can also premium your H-1.

  8. Saturday, 2...
    Question: I got my H-1B petition approved last year, it got extended as well. I have never used any of these visas to work in the U.S. though I have travelled few times to U.S. but on B-1 visa for meetings with the customers. So the question is when do I become exempt from the H-1 quota?
    Answer:

    In your situation when you are outside the USA, you become  exempt from the H-1 quota  when you get your visa stamped. So I think USCIS interpretation of law is faulty and  incorrect, because in my view as soon as H-1 is approved you should be exempt from the quota but USCIS has taken the position that unless you get the visa stamped from the consulate we will not consider you exempt if you are outside the USA. So it appears to me that  you should be exempt from the quota.

  9. Saturday, 2...
    Question: My spouse is on H-1 visa and his former employer filed I-140 and then my spouse changed his employment to another employer and transferred his H-1, the I-140 has not been revoked by former employer. So my H-4 is with the former employer valid for three years, and current employer for my spouse has not filed H-1 for me. Is the H-4 from the former employer valid for file EAD or do I have to apply for H-4 again and what would be the documents that would I need to file H-4 EAD ?
    Answer:

    Every time the H-1 holder changes  job, the H-4 holder does not need to re -apply for H-4. Your H-4 is good.  You don't have to have different H-4 for the employer. Of course,  every time the H-1 holders change their job they have apply for new H-1 but as long as you never violated status and H-1  holder has  never violated status that H-4 continued to be good from job to job to job, you are good.

    Your  second question was what document need to file H-4 EAD?

    Answer is we don't  know yet. When the instructions for the new form I- 765 come out along with the form I-765 they will tell you exactly what you need to submit . I suspect probably marriage certificate along with evidence of  couple of last  pay stubs of your husband's, copy of H-1 receipt and a copy of your H-4 receipt or approval or visa stamped. That typically they should be looking for. But I don't have any basis for saying, this is just my guess.

  10. Saturday, 2...
    Question: I just got my citizenship and now wants to apply for my younger sister, who is alone in India. I lost my parents few years back so she is all alone but she is above 18. Is there any way I as a brother and only relationship here in United States apply for her Green card in such a manner that she can be here in United States as soon as possible.
    Answer:

    Siblings Green Card is like  planting mango trees, in India we used to have saying that mango trees takes so  long to bring fruit that one generation plants the tree and the second generation eats the mangoes. It's kind of that for sibling cases, it takes 13 years for the Green Card to come through and there is no way we can expedite that Green Card. However  leaving the option of Green Card filing  you could look at the things like  sponsoring her for her student visa if she wants to study or if she is an professional  or intent to be professional soon she can come on H-1 or L-1 visa, like other people  do. f you have money you can gift her half a million or million dollar depending upon what kind of money you have  that you can invest in her. So Investment visa could be an option but  there is no way you can expedite sibling green Card.

  11. Wednesday,...
    Question: 1.Can we own our business? 2. Do we have to run own payroll?
    Answer:

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

    https://youtu.be/3Heaadpk1Ik?t=933 

    FAQ Transcript:

    1. Yes you can.

    2. You do not.

    A business owner often does not get paid. Make sure you got a back up plan. If your EAD runs out for some reason and it is not renewed you should have someone run the business while you do not have an EAD. 

  12. Tuesday, 28...
    Question: I got my green card base on EB-2 category. I got mail from USCIS mentioning they change my status in to Permanent resident. As well as I got my Green Card in mail this year March. But I filed my I-485 last year July.I want to change my employer. (New Employer offering similar salary as well as similar position ). Is there any legal issue. Do I have to worry about this junction ?
    Answer:

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

    https://youtu.be/3Heaadpk1Ik?t=599

    FAQ Transcript:

    Green card which is employment based does not require you to enter into slavery.  It requires only this. On the date your green card was approved it was your intention to work at your job indefinitely, not permanently. So if I got my approval today and today I continue working indefinitely for the next few days or years but a week later I got a better job can I leave and the answer is yes. I think you can. But let’s say I already have an offer at hand and I got my green card and I want to go and would that be considered indefinite.  Probably not.  The government can take an objection but even there if the job was same or similar to what the green card job was I think a good argument can be made under AC21 portability. Currently the law requires only to have indefinite intention but on the date you got your green card. However once the green c ard is approved and if your intention changes, then I do not see any problem with it. 

  13. Thursday,...
    Question: 1. Can I apply for H-4-EAD on May 26 2015 even if my H-4 COS is still pending ? Or I will have to wait till it get approved ?<br> 2. My employer already filed my PERM and they are OK to come back with them on H-4 EAD. Can I apply for I-140 after H-4 EAD is approved ? Is it ok if I will stay on H-4 EAD to continue processing of my GC ?
    Answer:

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

    https://youtu.be/3Heaadpk1Ik?t=809

    FAQ Transcript:

    1. You can apply while your status is pending. but in my opinion an EAD can be applied on or after May 26th even if change of status to H-1 is pending.  

    2. Yes there is no law that stops you from applying a green card. you can start your green card , continue your green card or even finalize your green card while you are on your H-4. 

  14. 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.
  15. 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. 

  16. 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.

  17. 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.

     

     

     

  18. 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.

  19. 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.

  20. 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.

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