Law Offices of Rajiv S. Khanna, P.C.
5225 Wilson Blvd
Arlington, VA 22205 USA Ph: (703) 908-4800
Arlington, VA 22205 USA Ph: (703) 908-4800
6 Byers Street
Staunton, VA 24401 USA Ph: (540) 886-6321
Staunton, VA 24401 USA Ph: (540) 886-6321
My husband is a UK citizen and has a Green Card, but no re-entry permit. I am a US citizen. We have been living in China for 6 years for my job and plan to return to the States. The last time my husband was in the US was 3.5 years ago. What is the process that he needs to go through to be able to reenter the States and hold onto his Green Card?
Start with contacting the local U.S. Consulate. See if they can issue a returning resident permit (also called SB1 visa).
Is it necessary for a beneficiary petitioned for Green Card under EB-2 classification (based on a U.S Master’s Degree) to have a degree from an accredited U.S. university?
A Beneficiary’s degree must be from an accredited university in order for the Beneficiary to be considered eligible for a Green Card under EB-2 classification. Evidence such as SEVIS certification or state board approval, which confirm that the university is a legitimate educational institution, is not sufficient to show accreditation for Green Card purposes. A university’s accreditation status may be determined from the following website:
You may also want to watch this video Mr. Khanna prepared, “Accreditation of distance education for EB-2” and read the transcript:
I am currently on H1-B and my I-140 has been approved. Because of the delay in I-485 Processing, I was thinking of doing my green card through the EB-5 Category with a $500,000.00 Investment through a Regional Center or a New Commercial Enterprise.
I had a few questions regarding the following:
For EB-5 through Regional Center
1. What is the time frame for Investing the money? Does it vary per Project?
2. What is the general Return of Investment on these Projects? Does it vary per Project?
3. Can we withdraw the Investment earlier if the Project is a failure?
4. How much involvement is necessary/allowed in the management of the Project?
5. When can I start withdrawing the money after I get my Green Card?
6. Is there any agency/firm that evaluates the Regional Centers?
For EB-5 Immigrant Investor through New Commercial Enterprise
7. Do the 10 people have to employed immediately or over a period of 2 years?
8. If I employ 10 people and put in 500,000.00 in a start up business in a rural area or highly unemployed area towards the income for the employees, is the money counted towards investment?
1. I dont know of any regional center who does not want the entire money up front. They also usually add on a few thousand dollars of additional fees.
2. No idea about ROI. We do not get involved with financial assessments. Not our expertise.
3. Not usually. But this depends upon the project and your agreement. But the green card would fail in such a case.
4. None, usually.
5. Hmm. I do not recall the exact time frame. Sorry.
6. No. Beyond the normal SEC regs, as far as I know, you are, unfortunately, on your own. This is the part about the regional centers that bothers me.
7. Over two years. But your business plan has to show how you will create the jobs.
8. Huh? Yes, of course. But there has to be a connection between the investment and the job creation.
The current prediction that the priority dates for employment based green card applications are likely to retrogress again has brought a lot of speculation and questions from our clients and our community. Let me clarify some of the questions and concerns.
Q 1. What happens if my priority date (“PD”) retrogresses while my I-485 is still pending?
Q 2. Can we expedite the adjudication of our pending I-485 (or any application, for that matter)?
A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.
A 2. Not usually. Here is what USCIS says about expediting:
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:
• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS
Note: Discretionary expedite requests for petitions and applications that have Premium Processing Service available will not be considered for expedite processing. The only exception is when the petitioner is a not-for-profit organization designated by the Internal Revenue Service. For information regarding premium processing, please refer to the premium processing webpage.
If you have already filed your application or petition:
You can make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.
I am on H1-B visa and my EB-2 Priority Date is May 15, 2010. Please see below questions regarding I-485.
Question # 1:- Typically, how long would it take to receive Advance Parole and ">EAD after filing I-485?
Question # 2:- I entered USA on F1-Visa in year 2000, and then changed my status to H1-B visa within USA in year 2004. I never left USA since year 2000. My passport does not have H1-B visa stamp. In order to file I-485, is it required to have H1-B visa stamp in my passport?
Question # 3:-After filing I-485 and before receving A.P., if I travel to my home country for H1-B visa stamping, is it possible that my company can mail A.P. documents to my home country so that I could enter USA using my A.P. in case H1-B visa in my home country is denied?
Question # 4:- I came to know that it is required for an alien to be present in USA at the time of I-485 filing. Is it also required that an alien must be present in USA until A.P. is approved?
Question # 5:- Does Visa Officer have the ability to cancel A.P., in case H1-B visa is denied in my home country due to 221(g)/missing tax returns/W-2's/Paystubs?
Question # 6:- If my H1-B visa is denied in my home country, and if i enter USA using A.P., then could my spouse enter USA using H-4 visa using my valid I-797 approval notice even though I do not have H1-B visa stamp in my passport? If I enter USA using A.P., what are the options for my spouse?
Question # 7:- At what point of time during GC process, do I need to add my spouse? Should it be before filing of I-485 or before Visa Number is available?
Question # 8:- After filing my I-485, and if my spouse is in USA on H-4, will I be able to add my spouse to my I-485 application? By the time, I want to add my spouse to I-485 application, if Visa Number is available and if AOS/I-485 is approved, then would I still be able to add my spouse if spouse is in USA and also outside USA?
Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks
Answer 2: A visa stamp is NOT required. Proper status only is needed.
Answer 3: It is NOT advisable to travel before AP is issued, if you do not have an H/L visa already stamped. For details, listen to recording's of the community conference call. It is posted here: http://www.immigration.com/free-comm...nference-calls
Answer 4: Presence in USA for 485 filing is mandatory. See previous answer for AP.
Answer 5: I do not believe VO has the authority to revoke an AP.
Answer 6: Under Cronin memo, if you enter on AP to continue working on an existing, valid H-1, you are still considered to be on H-1. I believe your spouse can use his H-4.
Answer 7: Before APPROVAL of I-485.
Answer 8: Your spouse can file his 485 if he is in USA; Priority Dates are current AND he has not been out of status for more than 180 days -- whether or not your 485 is already approved.
I have a Christian band, and we have 2 CDs out for sell already, one of our singers would like to know how to obtain a green card with our band, is this possible?
A green card through work is unlikely unless either he/she has a full-time job offer in her field or is nationally/internationally recognized.
I want to know how I can come back to US. I came US 2006 like a guest, stayed about 5 years & left US. But my family still there, ex-wife, two daughters older 20 year old & younger 17. When my daughter turns 21 year old can she apply for family reunification, especially for me?
One of the ways could be for your daughter to apply for your green card when she turns 21. The problem is, if you were unlawfully present in USA for more than a year, you may be barred from entering USA for 10 years.
What is to be done when your green card is stolen? I just got mine not to long ago, I am 17 years old and I am not sure what I am supposed to do?
You can easily apply for a replacement green card. Read the instructions on Form I-90. Please visit this link for more information.
I just found out a couple of days back by my international advisor that I was out of status for two years now for taking classes in a community and transferring credits and it made me a part time student..He suggested I left the country after the semester and come back with the new I-20 and letter of recommendation he gives me. And I also I have been married to a US citizen for 2 months. Is it safe to go out of the country?
You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).
I just received my two year temporary green card, my malicious mother-in-law claims she went to immigration and put a "BLOCK" on me. Is this possible? Can she do this? I have a clean record good credit and have never been in trouble with the law. Should I be worried?
She cannot put a "block." There is no such provision in law.
I currently have a L1-B visa and I'd like to know if the company where I work(a Brazilian company where I did work for 2 years, one of them in a managerial position before coming to the U.S in 2009) could apply to change my status from L1-B to L1-A at the same time as filing my GC application.
The company is a giant in Brazil with 600 employees but we are still starting the operations in the U.S and I'm the only employee here.
Smaller companies can have a tough time getting an L-1A.
I am a mexican composer, Im finishing my career on film scoring and composition and I'm intersted to know about the green card for musicians.
Green cards in music would be available possibly for two categories of individuals: those who have a permanent job in USA in their field and those who are nationally or internationally famous.
For an employment-based green card application in the EB2 category, my employer has said that they would be willing to make the application if I am willing to pay for it. Can the employee bear the total cost of the entire process -- including attorney's processing fees, filing fees for all stages, advertising fees, ">EAD, advance parole fees -- from start to final stamping?
The employer is bound by law to pay for all expenses, including legal fees, associated with the PERM process (but not the rest of the green card process).
I am on TN visa for the more than a year. The company wants to give me some stock option (10-15%). Is that ok to hold stocks of the company you are working for on TN visa, or will it create problem when I apply for renewal of my TN visa. Can I apply for GC on TN visa?
I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.
My dad has a green card and went back home over 2 years ago. He is now trying to come back after being away from the US for 2 years. I was told by some people that if he stayed over a year outside the US they will not let him back in to the US even though he has a Green Card. Can you please tell me if this is true, or can I just get him a ticket and fly him back to the US?
It is highly unlikely that he will be allowed into USA.
Is it possible for me to work outside the US (for the same company that I work for now) while on green card? My company has an office in India, and I have to travel to India for family reasons. I was planning to work in India for some time, and then come back in about a year and half and apply for citizenship. I have lived in the US for about 3 years on my green card now.
It is possible. Look into both I-131and N-470 filing through a lawyer.
What is mandated poverty line? I want to petition for my husband, can my father sponsor him financially if I do not have enough income to support my husband? My father and me are both permanent residents.
Here are the poverty guidelines http://aspe.hhs.gov/poverty/index.shtml
Your father can co-sponsor (file an affidavit of support) along with you.
My spouse and me are currently working on H1 and we do have our
">EAD and AP even though we are not using it.
We are planning on a trip to India in the month of December. Both of our H1 visa's on passport have expired. We plan on using AP when coming back to US to avoid the hassle of getting our passports stamped.
We plan on remaining on H1 even though we use AP to get back. We do plan on renewing our AP and EAD when they expire. What I want to know is... is there any advantage of having visa stamped in your passport as to using AP if you plan on remaining on H1? One that I know is cities like London require you to get a transit visa if your visa has expired when traveling to India.
We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.
I entered the US with my mom in 2005. I was underage then. My visa B1/B2/BCC expires in Oct of 2010 and my permit I-94 expired in December of 2007. I am now 20 years old and I am married to the love of my life and he is a US citizen. I want to know what I can do. What files and forms will I need?
You should be able to get your green card. Do not travel outside USA until you do. I would suggest getting a lawyer.
An Australian Musician that is wanting to come to US for a few weeks to travel and play at approx 15-20 venues across the US. I am willing to sponsor him via my DJ entertainment service, and he will be paid for the shows. He is a professional musician in his country, has been for 15 yrs.
Which visa would be required in this case?
A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.
An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.
"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.
"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.
My father applied for a green card for me back in August 1993 and I was wondering when am I going to get my interview for my green card.
Green card waits are determined primarily by your priority date and the available visa dates. It is a queue. See the Visa Bulletin to know where your dates are. http://www.immigration.com/visa-bulletin
Can a friend ">co-sign for me to bring my brother to the United States, I have green card and i don't make enough money. I just want to know if a friend can co-sign for me.
An affidavit of support can be co-sponsored by your friend. But green card holders cannot sponsor siblings for green cards, only US Citizens can.
You may be able to apply for a green card if you meet the requirements of EB-1, aliens with extraordinary ability or based upon a job offer, and of course, if a family-based possibility exists
How will i know if they already recived ( i mean is there a way to trck it) my application for the change of status (I-485). i sent that last april 29, 2010....how long do i have to wait for the responds from the ">uscis....
You can verify delivery (if sent by Fed Ex, UPS, etc.) and also check with your bank if your fees checks were encashed.
If you have a valid ">LPR and you went and stayed over 2 years in the philippines and you want to come back here. If you don't have a re-entry permit how can you get a re-entry permit?
Reentry permit can be obtained only by people who have a valid green card. Your only option (other than filing for a green card again) seems to be to ask the US Consulate for a Returning Resident Permit if you can show them a genuine reason for your absence. Note that this would be a difficult application.
I'm a researcher at a university and I will probably try to apply for EB1, Outstanding Researcher. I'm currently on an H-1 (since Oct. 2007). Are there certain stages in the process in which I won't be able to travel outside the US?
I cannot think of any stage at which you cannot travel. Good luck!
Had a question regarding the EB-2 eligibility.My Perm was recently approved in EB-2 category.Had a question about education before we file the 140. I've a bachelors in Computing from UK which was a 3 year course and after that I have a Masters from UK in the computing which was a 1 year course. My question- is this qualification eligible of the EB-2 category. Just want to ensure that there is no ">RFE in 140.
Impossible to predict. It all depends upon the type of degrees and the language used in the Form ETA 9089
I was a resident physician on the H1B visa.. Prior to completing residency, I got the ">EAD(my husband , a pharmacist had applied for a Green card through his company). That was in 2006 and we have since made no progress as the EB3 numbers are not current. I did not renew my H1B after the initial 3 years because I could work with the EAD. Would I get a GC faster if I start my own application or should we keep waiting? Can both of us have seperate applications without one affecting the other? Are we better off just waiting?
Generally speaking, where there is a choice, we always file multiple green card applications for spouses.
I got my green card back in 2003, I traveled to the U.S. in search of a better life. Since my grandmother was sick I had to comeback to my home country in 2008. I've been out of the U.S. for more than a year. My grandmother is fine now and I'd like to comeback to the U.S. My green card expires in 2014, so it's still valid now. Will I be allowed to comeback to the U.S.?
Generally speaking, a visit outside USA lasting more than one year terminates your green card (no matter what the card says).
A a citizen, I filled up a I-130 form for my parents; they live abroad, but they already have a tourist visa; may they visit USA for short time while they are waiting for the GC process, and then go back to their country, keeping back and forth in the meantime?
The law is uncertain. This type of entry will be left at the discretion of CBP. I have a blog entry on this subject. Please review it: http://forums.immigration.com/blog.php?u=1
I am EB2 priority date Sep2005. I had lost my job in Apr 09. I started working on Dec09 with another company similar job description, in same geographic location and with 15% higher salary than labor approved. I was out of job for almost 8 months.My old employer has assured not to evoke approved I140 (more than 3 years since I 140 is approved)
I have few questions:
1.Shall I file for AC21?
2.is it advisable to send copy of current paystunb with AC21, If yes how many months?
2.Is it okay to file AC21without paystub for around 8 months?
2.If I dont file for AC21, will there be an issue travelling on AP at POE?
AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.
I applied for GC through 245i. I currently have a valid ">EAD. I140 approved. and I485 pending. Its for future employment. Can I work for a non related (not related to my labour) until my 485 is approved?
Theoretically, there is nothing wrong with that, but speak with your lawyers. In my view, not working for the future employer raises issues like is there a job, do you really want to work for this employer, etc.
Please visit this link.
I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?
Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.
Off hand, I can think of two types of conditional green cards: marriage-based and investment-based. In both instances, eventually you have to apply to get the condition removed.
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ?
I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last ">co. is supporting by keeping her I-140 as such ( no revock )
(Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )
A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.
Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.
In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.
For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.
I have a pen pal that is a citizen of Honduras. He would like to come to the US to visit me and our beautiful country. My question is this: if he obtains a 6 months B-2 visitors visa, then maybe half way through, he thinks he would like to move to the US and work here, could he apply for a green card during his 6 month stay. He has no family here in the US, just me, his friend.
That does not sound possible. Green cards to USA are granted based upon very limited basis. But, you should have your friend speak with a lawyer to see what options may exist.
I am a college freshman student on an F-1 visa and am thinking about applying for green card, as I have also completed 2 years of HS in the US. Any idea how long the green card process may take and should I apply already for green card now in order to possibly get it by the time I graduate college?
The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.
I am an Indian born, Australian Citizen on a E3 visa. Does applying for a Green Card jeopardize my chances of getting E3 visa renewed in the future? My wife is on E3D visa and has ">EAD. She is working now and can her employer start GC process and will that jeopardize her E3D visa renewal and/or my E3 visa renewal? What is the best bet? Applying GC on my name or her name? Both are qualified educationally and both have jobs in the U.S
Applying for a green card should not be a problem for you or your wife. I always suggest filing two independent green cards where the option is available. This provides for a safety net if the process fails for one of the spouses.
My I-140 got Denied on Aug 17 on Ability to pay after a ">RFE.Reason for Denial is "Employer had filed more than 30 cases since sep 2008, and company's net Asset $4M(approx) AND Liablity $2M (approx) and so the net "LIABILITY" is $1M (4-2=1 but they have calculate as -1).30 cases with $1M libality is not sufficient to support this Immigrant , company needs more than $3M to support 30 cases. The truth is (as per my employer) that we have filed 29 cases since 2006 and not sep 2008 also company has more funds and the numbers 4M and 2M are incorrect.What can be done ?
You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.
Recenlty we submitted my NOID response for my 485. Today called
">USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file
They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now.
Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.
I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.
My mother got her green card in dec08. She left for Asia in March08 and plans to return in Nov08. Since it will be 8 months that she will be out of USA, does she need re-entry permit?
There is some error in your facts. It appears she left in March 2009 (NOT 2008). You cannot file a reentry permit while she is outside USA. If she is outside USA for more than one year, the GC is deemed abandoned. If it is out more than 6 months, but less than 1 year, she can be asked to demonstrate that her permanent home is in USA.
My green card got expired in nov 2007, I filled by mistake I-90, when I went for my biometrics, they saw that I filled the wrong application, I have to fill I 751, then I filled I 751, My rec number is ">EAC*********. I recently went through my biometrics again, in April 2009, but still, I do not have any proper response,when do you think i will get my GC?
In my view, failing to file an I-751 in a timely manner could cause serious problems. I think you should consult with a lawyer locally where you are.
When is the employer bound to pay the prevailing wages as determined for an ">LCA and if the applicant is already working in the sponsored position. I have an H1B which was renewed recently, but my LCA was filed in March of 2008. Hence there were three wage determinations that were done for me - First one at the time of the initial H1B filing, second one at the time of the Labor for PERM and third one for the renewal. So at what dates does the prevailing wage come into effect as they happen to be different every time.
The employer is obliged to pay you the H-1 renewal wage now and the PERM wage after you get the GC approval.
I was stopped by a police once and received a traffic ticket.I paid the ticket in time but I was not aware that my license was suspended,since the suspension notice was sent to my old address which was never frwded back to me.I was stopped again few months later by police officer and he told me my license was suspended.I appeared in the court.I pleaded guilty,since I was driving w/out insurance.They dropped the "driving without a valid license" charge and fined me $100 for driving without insurance.BMV then suspended my license for 2nd time for 1 yr.Is this a problem filing N-40?
USCIS can question anything that has bearing upon good moral character.
I am a US citizen. Can I sponsor my niece who is 8 years old and nephew who is 4?
It depends upon how we define the term "sponsor." If you mean can you apply for their green cards, the answer is no. If you mean can you provide an affidavit of support for them to visit or study in USA, the answer is yes.
If the Child is born in India and we have the GC by that time, is there any way the child can travel to US?
Your child may accompany you or travel with you to the U.S if the following conditions are met:
a) the child has a separate passport;
b) has a birth certificate from the corporation, municipality or a registrar of births and deaths (please note hospital records are not adequate)
c) the child accompanies the immigrant mother or father upon her or his return to the U.S following the birth of the child
d) the child is under the age of two years
e) the immigrant mother or father has a valid Form I-551 or I-151, alien registration receipt card (in short called
My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business.
1. How does it effect my H1B visa and GC application (filed I-485 - pending)?
2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment?
3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?
1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.
2. An amendment should be filed, though it is debatable if it is required.
3. In my view, AC21 port is easier.
My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.
H-1 extension beyond six years can be obtained under two circumstances:
First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:
- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable?
2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to ">EAD?
3. How long is AP processing taking these days?
4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing?
5. Please list out all the documents that I should carry while traveling?
1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .
2. No. See answer above.
3. It is impossible to predict times. Plan for a six-month turnaround.
4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.
5. Advance Parole and Passport.
My self and my wife are on ">EAD and advance parole. My wife and I are from India.
I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months.
This is however not the company with which I started my green card. I changed jobs when I got my EAD.
But I have several questions:
1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD?
2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay.
3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.
1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.
2. As long as the permanent job continues to exist, there is no other requirement of presence.
3. I see no problem with visiting USA as often as you like.
1. Wanted to check if on an ">EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time.
2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company.
We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.
1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.
2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.
In the E visa context, this is what the govt says:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work?
2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application?
3) Is it better to apply for adjustment of status or consular processing for the last step of their green card?
4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?
A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.
There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.
1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to ">USCIS?
2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC?
3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?
A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.
A2) You can behave like you would in any other permanent job - take vacations, etc.
A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36
a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending.
b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the ">USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey?
c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical ">RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?
a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.
1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got ">RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can ">USCIS go back and raise RFE's in this manner?
2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?
1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.
2. My take is AC21 would be a better idea, although, not fool proof.
I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.
I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & ">EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to:
1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status.
2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.
NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.
A legal marriage in India is fully recognized in USA.
I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of ">USCIS issued regarding ">unlawful presence. I am currently on ">EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 ( ">PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?
That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.
Should you be applying for employment-based green card in this economy?
A lot of employers have been asking this question in the last few months. Is it even possible to get a labor certification with the US unemployment at a 26-year high.
I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.
Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.
This is regarding my sister who is going through lot of stress due to visa issues.
She has been on H4 for past 9 years. Her H1 was approved in 2007 with an employer who wanted to hire when she was doing her MBA from a reputed University here in US. They were even willing to hire her once she is done.
3 months back her husband lost his job and had to go on ">EAD since (My sister could not do it because she was traveling out of US in 2007 when the window opened).
She has decided to go on H1 status. She has to get it stamped outside US as she had lost her H4 status. It has been now more than a month and she is stuck out of US (in UAE). Her employer is a small firm and due to THE bad economy she is very nervous about the future even if she gets H1 B.
Here are our questions/ concerns. Please do answer these:
1. If she gets H1 B could her husband still file for Follow to Join. There is no guarantee in this environment it would give her peace of mind if he could.
2. God forbid - If she doesnot get H1B and her husband files for Follow to Join - would she have to stay out side US to do consulate processing?? How much time it takes?
3. Any advise/ suggestions are welcome.
I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.
My previous employer didn't pay me for 7 continuous months in 2006, Current employer is going to file I-140 and I-485 based on my EB2 PERM. I have all W2 and Pay stubs except that period. will that going to affect my GC application ? Please let me know what are the possible consequences of that. I didn't know about that 180 days rule.
Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.
I am on H1B. If applied for GC through Family Based 4 category (brother/sister) can I apply for extension of my stay after my 6 yrs H1 period once the I-130 approved? Or this extension request is applicable only on Employment Based processing after Labor clearance?
You cannot. This extension is available only to employment-based applicants.
1. I see few cases where ">CIS has sent an ">RFE to ask for Employment Verification Letter (EVL). When does this typically happen?
2. For cases where in the EVL was already sent along with the I-485 application, what are the reasons usually for CIS asking EVL again?
3. I had taken an ">Infopass few months ago, and they had said my I-485 application is pre-adjudicated. What does this mean?
1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.
2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).
3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.
Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.
Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.
Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?
Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.
Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
The second memo from USCIS is attached.
The April 2009 Visa Bulletin was issued on March 9th. The VB said the visa numbers for EB3 were unavailable with immediate effect (Philippines retrogressed to 2003).
This is highly unusual. The visa bulletin is a forecast for the month ahead and does not take effect immediately. But State Department says that this one was of immediate effect.
What does this mean?
Preliminary requirement: The applicants must be able to document at least three years of experience in teaching and/or research in the specified academic field and that they are "recognized internationally."
Generally speaking, experience in teaching or research while working on an advanced degree will not satisfy the three year requirement.
Here is a question this morning from forclients.com, our clients' extranet.
The nightmare has once again come true, eb3 would be unavailable until September 09, if I am not wrong?
With this in the background, I am thinking of giving up the hope of getting my green card soon (my ">pd may 04). If I go back to India, can my GC application still continue to be processed?
Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence?
I have received inquiries on this type of email floating around. This is fraudulent. US govt. does NOT issue green cards based upon random email lottery. Please circulate this to all concerned.
U.S. Department of State
Bureau of Consular Affairs, National Visa Center
32 Rochester Ave. Portsmouth NH 03801-2909
What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
Our community member spring09 says:
Thanks in advance. I have an question and keeping me up during nights.
I am working on H1 with comp A, who has filed for my I-140 in Feb-08.
And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have ">EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B.
Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140.
As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.
I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to ">RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july
I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.
Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.
Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.
Here is a question from our clients-only extranet - forclients.com. I think this question is relevant for a lot of people.
Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?
Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)
Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the ">LCA salary as mentioned on my W2, would switching to ">EAD with my sponsoring employer help with getting away from this restriction?
Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B.
Just trying to find out what the possible advantages would be at this time with EAD.
There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.
Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.
Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.
Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
One of our community members had asked a questing regarding the processing dates of 485.
In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.
For recent updates on PERM processing please click here.
Now that I received my GC through employment, does my employer need to change my position to the one filed in the Labor Certification?
Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.
Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.
Some of our employees' Green cards
have been filed. There projects have ended. They are working on H-1 but possess ">EAD and have 140 approved and 485 pending more than 180 days.
Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?
Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.
One of our clients (I think I have worked with these folks for over a decade) had these questions:
Quote: A member of our family was issued a Green Card in November 1980. The green card did not have any renewal date (see enclosed). I assume Green Cards at that time did not have a renewal date. Does this need to be renewed?
Ans: Replace the green card. See:
1. Hi Rajiv I have a few questions about starting business in partnership.
I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has ">EAD.
I will be the one who will be investing in this business but I won't be employed with that business.
- Is this legal ?
2. Can you be a passive investor on H-1?
1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.
You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.
The following pointers have emerged from recent cases and comments from USCIS:
1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.
2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.
3. Emphasize/document the "international" nature of your accomplishments.
For past 7 years I work for company ‘A’ on their H1B visa (EB3). I had a I-140 cleared in 1998 from my previous company ‘B’ under EB2. Company ‘B’ filed for my I-485 in 2004 and I finally got my green card.
Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.
I have attained Canadian Citizenship but a born Indian citizen, when I am applying for 485 which priority dates do I need to consider, General or India. I do not have Indian passport.
Still, India. Your chargeability follows the place of birth, not your citizenship.
What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?
There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.
1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.
I am sharing with you a response to a frequently asked question about adopting a child from India. Our inquirer also wanted to know if she could adopt her niece. Here is the info:
The news item and related documents are available here:
Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?
There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.
One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.
What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?
That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases.
My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.
I do not see any way around filing an F-1.
Green Card was lost. Instead of checking Part 2, 2a, I checked Part 2, 2f. Submitted online and paid with credit card.
The instructions state the following: "If it is necessary t o change any information on your submitted I-90 application, please bring evidence to support the change with you to your biometrics appointment. DO NOT send written correspondence regarding changes to the address below."
At the biometrics appointment, can the interested party state the above mistake and solve this situation? Or will the ">USCIS denie the application? And another filing fee will have to be paid?
You should certainly point this out at the biometrics appt. You should also call the CIS customer service number and explain the problem. In addition, you should contact your Congressman. Let them contact CIS and help you correct this issue.
Is it possible to start GC process during my first year medical residency if my hospital agrees. Have you dealt with cases like this.
The essence of a green card application is that it is meant to be for a job in the future.
1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.
I am a licenced physical therapist in Michigan and working on my ">OPT. Is it true that PTs and nurses are exempted from the labor certification during green card process? and they do not need to file labor certification?
And considering the current scenario, can you please let me know approximately how much time does it take for a physical therapist to get a green card?
PT's and RN's are both exempt from filing labor cert, but the time for their green card processing is still tied to the time it takes for people from the country of their birth. An India-born PT will wait the same time in EB-3 category as any other India-born EB-3 applicant.
If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?
Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.
In a recent meeting, USDOL has stated:
Thanks in advance for your help. My current situation is this :
1. Applied for I140 and received ">RFE
2. RFE requires Employer's 2007 tax document and my recent W2
3. There is a salary difference in W2 and Labor ( salary < Labor = 7000 USD) and the company was in loss for the fiscal year 2008.
4. This is my 6th year in H1 B and it expires in October,2009
My questions are:
1. Can I transfer my H1 B to another Employer at this situation and apply for my new Labor?
2. If Labor is approved, can I file my I140 premium and apply for 7th year extension?
3. How long will it take to cancel the current I140?
Please help me out regarding this situation.
Thanks and awaiting for your valuable suggestions.
You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.
When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.
The simple answer is yes, the degree must be related. In the past, we have received many EB2 approvals requiring Masters degree. Now, such approvals are unreliable. Your degree seems to be related. Agribusiness and business... hmmm. I believe an EB2 argument can be made. The labor cert should be prepared in such a way so that if EB2 is rejected, EB3 is still safe. Do bear in mind, all submissions made to DOL MUST be true. Ultimately, it is the employer who must decide.
I am here on L1b visa from x company. My sister sponsored me Immigration visa in 2006. (File is still in processing). My assignment is going to over here.
Is there any work around or change of status through which i can stay here?
So, the questions is does filing for any green card permit me to stay in USA?
The answer is no.
Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.
That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.
Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a ">RFE in Sep 2008 and reply recieved by the ">USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are:
1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending?
2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009?
3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then?
4. If at all everything is rejected what can I do to start residency in july if I match?
If all else fails what are my options to continue working in the US?
My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)
Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.
I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose:
1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application.
2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference?
3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an ">OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his?
4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?
1. Advanced degrees do not help in a family-based green card.
Dear Mr.Khanna, I have reading all your post and found you quite informative. I will appreciate if you can let me know the possible consequences of my case.
I was in restaurant in Gaithersburg MD on Jan 29 2008 with my boss who was visiting from Atlanta. I had a beer and 2 glasses of wine with dinner came out sat in the car and started backing up. As you know it was winter and had rained earlier the windscreen at the back got fogged out. While backing up I hit a car parked. Police was in that parking lot and arrested for drunk driving. I blew .09. I was given a bunch of tickets after being 30 minutes in the precinct and was released. In the court they dismissed 2 tickets like DUI and DUI par se and convicted me DWI and Failure to control Speed to Avoid Collision. BTW DWI in MD is a lesser offence when you blow less than the state .08 BAC typically .07. And Failure to control speed to avoid collision which is maximum fine $130.00.Now the Judge gave me Supervised Probation till I finish my MADD Class. After that the Probation goes to Unsupervised for 12 Months. Now I am elligible to file citizenship. I have finished 5 years of ">LPR time with minimal travel aborad.
Now my questions are :
1.) Will I get deported or removed.
2.) Will I have problems while entering POE while travelling from overseas.
3.) Will my Citizenship be denied if I file after my probation gets over.
Please share your knowledge It will immensly help my stress. This one mistake of my life has really taken a toll in my life.
Your earliest reply will highly appreciated.
Let us look at the law for green cards and removal (deportation) first.
Remember the following GENERAL elements of the law (there is more to it).
I obtained my green card 4 1/2 years ago through employment. My former employer sponsored me h-1 visa for 6 years and labor certificate and green card as well.
Unfortunately, I was terminated by the employer last year, which ended my 10 years career at the company. After the termination, I then filed workers compensation claim for the injuries at work, and civil lawsuit for discrimations and under-paid wages through lawyers. The two cases are pending at courts.
Now I have a part time job which is not related to the job that helped me get the green card.
It is almost time for me to apply for citizenship. However I am worried about how much the two cases would affect the application. I will be asked in the citizenship interview why I left the green card sponsor, why you were terminated and so on, so forth.
Please help advise if my worries are correct ?
Is it better to apply for citizenship when the problems above are ended in courts ?
Thank you very much for your help.
I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.
If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer?
How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue?
Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.
H-1 by Start-up Companies
Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??
I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?
Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?
Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
I got laid off from work from my present employer on October 31, 2008 and I have 3 questions.
Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved ">EAD & AP both for the primary and dependent.
I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?
Taking Promotion in future The current PERM filing is going to be done for the position "Dentist". In the future can she accept a promotion as "Dentist (Lead)" if offered by the company? Will it invalidate the green card application.
If we accept the promotion in future can we use the same PERM application without filing another PERM for "Dentist (Lead)" job (jobs are very similar) . She is now a "Dentist(Associate)" and job duties between associate dentist and lead dentist are 70% the same. The lead dentist will have additional duties like oversee day-to-day operations/Supervision.
Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?
Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) ">EAD and I-485 pending in this situation.
This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time.
I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.
This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.
Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for ">USCIS.When I did ">infopass was told that case is under supervisory review,what does this mean.
Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.
My brother got US Citizenship this month. I would like to apply Green Card using my brother's citizenship.Is it possible ? How long it will take . Now I am holding H1B.
This is usually not a feasible option. To see how long it would take, look at the Visa Bulletin:
You will note that it will take more than a decade to get a green card through family-based category 4. You are not permitted to stay in the USA just because this application is pending.
Q1. Can a legal permanent resident( ">LPR) change career after say one year from his AOS approval to an entirely different field from the one for which his labor and his AOS was approved? Will this raise any red flags at the time of citizenship?
Q2. In other words, after receiving green card on the basis of say job in computer industry, when can one change his/her profession to an entirely different field (let say opening up a restaurant or go into real estate on full time basis) without jeopardizing the citizenship? Would waiting for one year(or some other amount of time?) after AOS approval be good enough to satisfy the "intent to work for in the field noted in labor application on a permanent basis"?
Q3. Is the person after receiving green card on the basis of employment in certain field stuck in that field for ever?
Q4. What are you thoughts in general about this scenario and how should one go about it?
A1. I see no problem with this nor do I see any red flags.
A2. Sure. Why not. Permanent does not mean forever.
A3. Not at all.
A4. Nothing else I can think of.
I have consulted the local lawyers here but they have failed to answer this question with conviction. Can two Labor applications be filed for me by two companies (current and future employers) at the same time ?
In my opinion, most definitely, yes. As long as both companies are acting in good faith (honestly) and you have the intention to take whichever green card happens to be more convenient or quicker for you, you can file 2 or more labor certs (PERM) through different employers.
I had accepted an offer of employment from a well established Indian Consultancy company last year in the month of June 2007. I was given the pre approved labor and they filed I 140 and 485,
">EAD, AP during that Visa bulletin fiasco last year. I got EAD and AP for both me and for my wife. My I 140 approved from
">TSC last month. Now I have a better opportunity.
My employer is threatening to withdraw GC files processing unless I work with them till I get my GC.
Qo1. Is that possible for them to withdraw like that?
Qo2. Does that affect my GC process in negative way?
Qo3. What I have to do in case they withdraw?
Qo4. Is it possible to re-start the whole GC process again in case?
Qo5. By the time I file AC 21, if the present employer withdraws the GC files, what happens to my case?
Qo6. How do we know whether they have withdrawn GC process or not?
Ans1. They can withdraw the 140. That is their petition, but they cannot withdraw the I-485. That is your petition. If they withdraw the I-140 you can still take recourse to AC21 and not suffer any negative consequences.
Ans2. If you are covered by AC21, you should be fine.
Ans3. File AC21 letter as soon as possible.
Ans4. Sure .
Ans5. See this link: http://www.immigrationportal.com/blog.php?b=25
Q1. How soon can I leave my petitioning employer once I get my green card approval?
Q2. I did not willingly left the GC sponsor employer but actually after three months I got my GC, i got laid off from the project and due to the bad economy , my employer was not able to get me other project so he gave me letter saying that he wont be able to pay me salary since he doesnt have any project for me.And, after getting that letter I resigned from GC sponsor employer.
Q3. I am employed at the XYZ University (XYZU). I applied for 485 myself (without attorney). My 485 was approved last month and I got my passport stamped in July. My contract with XYZU is coming to an end. My job is renewed every year based on the availability of funding. I have been with XYZU for the last 5 years. There is a possibility that they (XYZU) may not extend the contract because the research grant I got is coming to an end in september.
Will my termination from the job at XYZU affect my Green Card in the future, and is it better to be terminated from service (based on unavailability of funding) by the WVU or is it better to offer my resignation?
A1. There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits.
The attached PDF document contains information from DOL on PERM backlogs, program future and other pertinent matters. Enjoy. Regards to all. Rajiv.
Bottomline - I think H-1 should be renewed.
A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:
One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.
Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my ">FP done yet?
As of July 2008, this is how the system works.
First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).
I have applied for 485 as the primary applicant and my wife is the secondary applicant. Right now both of us are on H1 visa. We had applied for
">EAD and AP and intend to apply for renewal soon as we near 120 days.
I am on my 7th year of H1 and my wife is on 2nd year of H1 and 3 year of (H1 and H4 combine). Her current H1 expires on April 2010.
I intend to remain on H1 itself and have no intentions of using my EAD.
Can you please clarify these questions.
Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.
Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.
My friend lost his job on Friday when he was working on ">EAD (this is not the employer who has applied for GC). His i-140 was approved last year in May. He is looking for new job which would take couple of weeks. I have following question for the situation:
Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.
Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.
Can a PERM case be filed through a company that is owned or controlled by a relative of the beneficiary?
The answer is yes, BUT, the case is likely to be very closely scrutinized and may even require supervised recruitment. That means, USDOL will most likely ask us to place advertisements again under their direct supervision. So, we could end up repeating the advertising. This could cause delays (and of course even denial).
This question had come up a few weeks earlier also. I wanted to clarify this with the USDOL so we wrote to them. Our letter and their response is attached.
Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.
This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.