US Immigration Questions

  1. Wednesday,...
    Question: My I-140 (EB2) approved. Priority Date: 1st July 2009. Wife on H4 EAD. H1B expires in October 2018. H1B and EB2(GC) were filed for "software engineer" position. I got an offer from a different employer, they are offering me "Director of Dev. services". Q1. According to Feb bulletin, final EB2 application date is 15 April 2008. Knowing that dates are so close, I am not sure whether to switch to the new employer and start GC fresh OR stick to the existing employer as dates are close.Q2. If I move to a new employer and take "Director" position, Will this impact my H1B and Green Card, as the roles and responsibilities are different between "Software Engineer" and "Director of Dev. Services"? Does the new employer needs to start fresh GC process for "Director" position?
    Answer:

    Watch Video on this FAQ: Job promotions during AC21 portability of green card

    Video Transcript:

    If you have not filed your I-485 you have to start your green card all over again. You can get an H-1B for any professional job and getting an H-1B for a director position should not be a problem. When you have to start the green card all over again and you are just taking the priority date forward your jobs can be completely different they don't even have to be same or similar. More...

     

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

  2. Tuesday, 28...
    Question: I have an approved I-140 with priority date 2013 from employer A and my employer A is withdrawing it. I am going to apply I-140 with employer B now in regular processing and also porting the date. I will complete my 6 years of H-1 end of the year. Will I still be eligible for 3 years of H-1 extension with my approved I-140 from employer A?
    Answer:

    Watch Video on this view FAQ: The new regulations, withdrawal of I-140, H-1 extensions

    Video Transcript:

    The moment your I-140 is approved the date is yours, the moment it stays unrevoked for 180 days your right to extend your H-1 with any employer remains safe even if the 1-I40 is revoked. But the caution that I was pointing out to be is sometimes USCIS can go back and revoke an already approved I-140. But they have raised the bar on that too. They will not be able to take away your rights merely because they made an error. The error has to be something I call error plus, basically which means there were some certain facts that were not in evidence when they approved the case. More 



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

  3. Tuesday, 28...
    Question: I have approved 140, Green card EAD/AP card in EB2 from company-A and passed more that 180 days. I have maintained H-1B status since last 9 years instead of using EAD/AP as the need to go India for marriage so my future wife gets H-4 easily. Just transferred my H-1B to company-B. Company-A will revoke my I-140 in March 2017 due to company policy. I have following questions to ask you.<br> 1. Shall I get H-1B extension (beyond 6 yr) in future with company-B after I-140 revoke from my previous employer?<br> 2. I have EAD/AP card from my previous employer. Is it required to start GC process like labor and I-140 application again with company-B if my previous employer revokes my I-140?
    Answer:

    You can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was sent more than 180 days after I-140 approval.

    Under AC21, you do not have to start a new green card if:

    1. Your I-140 is approved;

    2. Your I-485 has been pending for 180 days or more;

    3. You will take an employment same as or similar to your green card job; and

    4. You file Supplement J.

  4. Monday, 27...
    Question: I am on H-1B visa and my 9th year H-1B approval will expire on 09/01/2017. This approval is when I was working at client A and from 09/19/2016 , I am working at client B but my employer checked with Lawyer and she is saying no need to file amendment as it is in same MSA. Is that ok? and my wife she on H-4 with EAD she wants to travel to india and She has to go for stamping so since my H-1B amendment is not filed do you see any issues for her H-4 stamping ? Is it safe to travel ?
    Answer:

    Watch Video on this FAQ: When is an H-1B amendment required?

    Video Transcript:

    USCIS has given us a relatively an incomplete memorandum that currently says this: if an employee relocates within the same geographical area,  which is a normal commuting distance of an approved location they do not have to file a H-1B amendment. This is not a complete story. The memorandum is misleading and we have been advising our clients to work according to my suggestions and not depend on the memorandum. 

    First of all, even if you go by the language of the memorandum, remember USCIS and the Department of Labor have different regulations so just because the memo talks about the USCIS regulations does not mean you have complied with the Department of Labor regulations for change of job locations. Department of Labor says, any new location even if it is in the same building you must post the LCA notice there, at the very least. So even if you are moving within the same area LCA notice should be posted.

    The second way this memorandum is misleading is: what if I change jobs next door, but my job description changes completely? You will have to file H-1B amendment even though it is the same neighborhood.

    What if my client changes and what if my project changes. I think in all those situations, the conservative thing to do is to file an H-1B amendment. More..

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

  5. Friday, 24...
    Question: I am on H1-B and my H1-B is validating till 2019 and priority date is 2014 and I recently changed my job. I-94 is expired in 2014. Due to new trump gov. Do you think that it will very risky to go to India and do stamping ? do you find people are facing issues in stamping? What should we do if we go for stamping and face the problem? What precautions should we take? Should we go for stamping or not
    Answer:

    Watch the Video on this FAQ: Should I travel outside the USA/H-1B visa stamping

    Video Transcript:

    If you are not on those list of seven countries, people are traveling and coming back. Overall, I think H-1B visa stamping was always complicated, especially when you work at the client's site instead of in-house so that is not becoming any easier. When you reenter the USA, the government does look at your paperwork. If you are approved to work in San Francisco and you are working in Akron, Ohio they are not going to let you enter. That was always the case. That law hasn't changed. Going to India will be risky. As a precautionary measure make sure your paperwork is reviewed by your lawyer. Make sure all the H-1 required conditions are being adequately met and you are not violating any conditions. But if the traveling is merely discretionary or optional then don't travel. Getting H-1 visa stamps was always a hassle and it certainly hasn't got any easier. More...

  6. Thursday,...
    Question: How do we keep up with the rumors and changes in the laws? My I-140 is approved in 2013 and priority date is on 2013. Do you have any inside on country quota elimination bill?
    Answer:

    Watch Video on this FAQ: How do we keep up with the rumors and changes in the laws

    Video Transcript:

    I can speak only for myself and you can follow my twitter account and all our social media accounts on immigration.com.  If there is a rumor going on and you are not sure, you can send me a Twitter message or a message through LinkedIn. 

    Don't wait for any bills to pass because there is no guarantee that any bill would be passed. Bills take a long time and I personally feel that under the current rules if you change before I-485 filing you have to start the green card all over again. But if your I-140 was approved for 180 days you keep your priority date as well as your right to extend your H-1 through any employer even past six years. More...

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

  7. Thursday,...
    Question: My H-1B visa is going to expire in 01-Jan-2018 and if my employer submits my PERM application in the month of June (i.e. before 6 months of my current 6 years of H-1B visa duration).<br> 1) If my PERM gets approved before my current H-1B visa expires (i.e. before 01-Jan-2018).<br> Would I be eligible for a H1B extension for 1 year since my PERM was approved before the current H-1B expiration?<br> 2) If my PERM gets approved after my current H-1B expires can my employer file for H1B extension of 1 year since my PERM is approved now.<br> 3) If my PERM is not approved before my current H-1B visa expires.<br> Would I need to go back to India?<br> 4) I spent about 2 months (on vacation) in India. Can these 2 months be added back to my current H-1B visa? or this can only be added if my current employer files for my green card?
    Answer:

    Watch Video on this FAQ: Extension of H-1 beyond six years, gap, in H-1, late in filing PERM, etc.


    Video Transcript:

    Under the current rules, there are two ways you can get H-1 extension beyond six years: one is based upon the time you're green card has been going on and the other one is based upon the stage you are at and we don't care what time the green card was started. Time-based and stage based. Time-based works like this. The day of the first anniversary of your perm filing is reached you are entitled to a one-year extension of your H-1 on a year to year basis. Stage-based green card, the day your I-140 is approved, you are entitled to three-year extensions. So those are the only two ways.  

    What if you are late? What if you have only eight months left on your H-1 when your PERM is filed? 

    Well, if there is a four-month gap or a two or three-month gap you would either have to convert to another status or leave the USA and then you come when you're one year time is matured or stage based green card is activated because you're I-140 is approved.

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



  8. Thursday,...
    Question: I am a US citizen and would like to sponsor my brother for Permanent Residency. How long would it take for him to get Green card.If I file green card for him, does his family (His wife and kids) automatically get green card or should I file for each of them? I think I should for all. Just a question? He gets a EAD (so he can start working) when I file Green Card?
    Answer:

    Watch Video on this FAQ: US Citizen applying for green card for brother or sister

    Video Transcript:

    It takes about thirteen to fourteen years. Children who are below the age of 21 and spouse will automatically get a green card. There is no need to apply for them separately, but there is something called CSPA (Child Status Protection Act) which allows you to deduct the number of days the I-130 was pending from the age of the child. So as a general rule that might be something to keep in mind. There will be no EAD's until their dates are current and that takes thirteen to fourteen years and they cannot stay in the USA. You can have a green card pending as through many categories as you like but you cannot expedite a green card just because you have multiple green cads pending. So there is no advantage to it but you can have multiple green cards going. More...

     

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

  9. Thursday,...
    Question: I am in I-485 pending status based on EB2 and have been working on EAD since 2012. Under the new rules effective January 2017, I understand that I can file for EAD extension 180 days prior to expiration. Will EAD be considered extended automatically if the approval doesn't come before the expiration of my current EAD?
    Answer:

    Watch Video on this FAQ: Automatic EAD extension; I-485 EAD

    Video Transcript:

    If you have a EAD based upon a I-485 approval and if you timely file, you can continue working for up to 180 days even after the current EAD expires. Also, USCIS has indicated that they will allow us to file EAD's 180 days before the expiration of your current EAD. So there are two 180 day periods - one 180 day period is you can apply that early and the second EAD period is it gets automatically extended if timely filed. More...

     


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

  10. Thursday,...
    Question: I am a permanent resident, a citizen of Poland. I want to study medicine in Poland. The program lasts 6 years. I don't want to abandon my status and want to understand if such long-term abroad is possible. If I am not mistaken GC holder can be away 6month-1 year. But, since I'll be out of US on regular basis, so it's best to apply for a reentry permit?
    Answer:

    Watch Video on this FAQ: How can a US green card holder study abroad without losing their green card?

    Video Transcript:

    I can only guess that in a situation like this since there is a specific reason why you are leaving the USA, reentry permit is not a guarantee of being able to keep your green card, but the reentry permit is your definition that I want to keep my green card though I am going away for a long period of time and I want to come back. More...

  11. Thursday, 5...
    Question: I heard your community conference call for 1st December, you mentioned that even though the approved I-140 is withdrawn by a previous employer after 180 days of approval we should still eligible for H1 extensions with a new employer. My question here: is it required that new employer need to file labor and I-140 in order to apply for extensions or can I just keep on applying for H1B extensions based on my first I-140 approval?
    Answer:

    You can keep applying for H-1B extensions based upon a valid I-140 approval from an old employer. The new employer does not have to file. But if you want to get a green card, some employer will have to restart the process.

  12. Tuesday, 3...
    Question: If I may verify the processing times involved in NIW. Since it falls under EB2 category, I am assuming it may be a long time before I can get my EAD card and be able to change employers. Also, I want to confirm if there could be issues if I change employers during the process - If so, I'd prefer to change my current employer before starting with it.
    Answer:

    You can change employers any time if you are a self-applicant and will continue to work in your stated area of national interest.  But NIW priority date will take the same time as a normal EB-2 application does.  See: http://www.immigration.com/visa-bulletin under employment-based category 2.

  13. Tuesday, 20...
    Question: 1. Planning to transfer from H1B to H4, I-140 approved with Jan2015 priority date. Can I keep the priority date after I change to H4? Intend to come back to H1 after few months. 2. Currently I'm 7 months pregnant and I work for a consulting company (employer) on H1B visa, Can I take maternity leave on H1B? If yes, for how long? will it be a paid or unpaid leave? If not do I need to convert status from H1B to H4? If yes, can I change it back to H1B and work again or need to apply for a fresh visa?
    Answer:

    Here is an interesting question, if I am on H-1 and I convert to H-4, does that kill or affect my priority date ? Answer is no. If you were on H-1  and you had filed a Green Card, you got a priority date and I-140 was approved now you changed to H-4 that does not kill your priority date. That's not the problem.

    And the second part of the question was can I take maternity leave on H-1?

    Yes, absolutely. How much you can take that depends upon the State law, so the Federal law and the state law combined that's the best way to decide. So the maternity leave definitely allowed and sometimes if in addition to maternity leave if some have medical necessity and you need to take more time off , you should be able to do as well and you would be considered to be on H-1 and you don't need to convert to H-4   for maternity leave reasons but you can do that also and you can convert back to H-1 later on.  

  14. Tuesday, 20...
    Question: My I 140 is approved in 2013 and H1-B 5 year and 3 months are completed. I have important question , after 17 Jan 2016 , my any chance I loose my job and my employer revoke my H1-B and I 140. 1. Will I get some time to find new job and new employee to transfer my H1-B ? 2. after my employer revoke my H1-B what is time line I can still transfer my H1-B visa with new employer?
    Answer:

    Government will sympathetically consider unexpected layoffs and should give you consideration up to 60 days each H-1 period. So one 60 day period let say you have taken and then changed your employer another 60 day period kind of like that and there is little more to it but each time there is new validity to H-1 . You will be able to get 60 more days.

  15. Tuesday, 15...
    Question: My spouse is currently working on F-1 OPT or H-1 status. How can he/she change to H-4 status and obtain H-4 EAD without a gap in the ability to work?
    Answer:

    We have received several requests about how to ensure there are no gaps in a spouse’s ability to work when converting from another work status (such as H-1) to H-4 EAD.

     

    The short answer, as of now (November 2016) is that here is no way to guarantee that there will not be any gap in a spouse’s ability to work.  The problems arise from the fact that there can be a gap between change of status to H-4 and receipt of EAD.  The law requires that EAD must be approved and the EAD card must be in hand for the H4 holder to work. 

     

    To illustrate some of the scenarios we have been asked to comment upon:


    Question: My spouse is currently working on F1 OPT or H1 status.  How can he/she change to H4 status and obtain H4 EAD without a gap in the ability to work?

     

    Answer: There is no way to ensure there will be no gap between the current employment authorization and the H4 EAD approval.  The H4 and H4 EAD petitions can be filed concurrently, but USCIS has not been adjudicating them at the same time.  First, USCIS adjudicates the H4 petition, after which they start working on the H4 EAD petition.  As the H4 EAD generally takes about 90 days to be adjudicated, it is best to anticipate H4 EAD approval about 90 days after the H4 approval.

     

    It is possible to request a future start date for the H4 status.  The hope would be that by the time the H4 status becomes effective, the H4 EAD is also approved.  But again, there is no way to guarantee the time frame. 

     

    Question: My spouse entered the US on H4 status.  How soon can the H4 EAD be filed and how long will it take before he/she can work?

     

    Answer: The H4 EAD can be filed as soon as the spouse has arrived in the US on H4 status.  Because, the USCIS is taking about 90 days to adjudicate the H4 EAD petition, your spouse is likely to be able to start working in about 3 months after the EAD petition is filed. 

     

    Question: We need to renew my H1 and my spouse’s H4 and H4 EAD.  Would it help the EAD to be issued faster if we file the H1 petition through Premium Processing?

     

    Answer: Possibly.  There is no Premium Processing option for H4 or H4 EAD, but as a courtesy, the USCIS often tries to adjudicate H4 and H4 EAD petitions at the same time as the Premium Processing H1 petition.  There is no guarantee that the USCIS will adjudicate the H1, H4 and H4 EAD at the same time.  It is possible that only the H1 will be adjudicated under Premium Processing, and the H4 and H4 EAD will be adjudicated in the normal queue.

     

    Question:  My H1 does not need to be extended, but my spouse’s H4 and/or H4 EAD do need to be renewed.  How can the petitions be filed so there is no gap in the H4 EAD authorization to work? 

    Answer: It is critical to file these petitions early.  The H4 renewal can be filed 6 months before the current H4 expires, and the H4 EAD can be filed 120 days before the current H4 EAD expires.  While it is not a guarantee that there will be no interruption in the work, early filing is the best option to provide the USCIS with enough time to process the petitions.

     Click here for Rajiv's blog entry on H-4 EAD Rule

  16. Wednesday,...
    Question: What happens to existing/pending green cards?
    Answer:

    Nothing. The process continues.  Changes in laws are not retroactive.

  17. Wednesday,...
    Question: I recently moved from Company A to B on July-2016 as a contractor while on i was on my 6th year H-1B visa. Company B did my H-1B transfer and I-140 got approved through them as well. Now working at End client location placed through Company B. Now End client wants to hire me as Full Time employee.<br> 1. Given I recently joined Company B will my jumping to Company C cause any issue to my H-1B visa? <br> 2. Can company B cancel my H1B petition?If Yes, Do i have to have a approved H-1B petition from Company C before informing Company B about the offer?<br> 3. Will my I 140 which got approved thru company B still be valid? Can i use it for future extensions of H-1B?<br> 4. Company B did not provide I-140 copy, how to obtain the same from USCIS?<br> 5. Is there any mandatory period to serve in one company who has sponsored my GC as I recently got my I-140 approved in August-2016?
    Answer:

    FAQ: Issues regarding changing jobs while on H-1:-- Is there a minimum time gap necessary to transfer H-1 from one job to another, change jobs, timing of resigning and joining


    Video Transcript:

    1. The answer is of course not. There is no requirement that there must be a certain gap between when you went from one H-1 to another. So if you move from A to B and 10 days later decide to move from B to C that is not illegal. The law permits you to do it. 

    2. If they don't cancel your H-1B they are considered to be still the employer and they can be required to pay your salary. As for the second part of the question, no, but you have to have a filed petition. This is important. You have to have your second case filed before the first case if revoked.

    3. Yes, your I-140 which got approved through company B will still be valid and yes you can use it for future extensions of H-1B. If company B wants to keep your I-140 they can. You will have to start your green card all over again but you should be able to use your priority date with the old I-140 approval.

    4. One of the ways you can get a copy of I-140 is through FOIA request which is I think the form G-639. When you file a 639 it is a free form without fees. Government then gives you a copy of your immigration paperwork.

    5. There is no mandatory period that you have to work with a company after getting your I-140 approved. More...

     

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

  18. Friday, 30...
    Question: I have been in US for the last 8 years and got GC employment based 3 years ago. I have 15 and 21 year old sons. My wife and I have differences on who manages my finances. I am thinking about applying for divorce. Just wondering whether divorce would have any impact on obtaining citizenship (either for me or my wife and children).
    Answer:

    Watch Video: Effect of divorce on employment-based immigration

    Video Transcript:

    Divorce is a civil proceeding that has no consequences on immigration once you have obtained your immigration.  But in another situation if a I-485 was pending and before the I-485 could be approved the parties were going to get divorced you would have consequences because then the derivative spouse cannot really receive the immigration of the primary applicant that becomes much more complicated. More...

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

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

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

    Video Transcript:

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

     

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

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

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

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