US Immigration Questions

  1. Friday, 7...
    Question: I want to take my fiancé on a vacation to Hawaii but she stated she received a 214b due to a failed student visa in Oct 2014; at the same time her ESTA expired. Prior to that she had visited the states and left on time without overstay. My fiancé is Japanese and was in her late 20s when denied without explanation. Is there an expiration on 214b?I want to take my fiancé on a vacation to Hawaii but she stated she received a 214b due to a failed student visa in Oct 2014; at the same time her ESTA expired. Prior to that she had visited the states and left on time without overstay. My fiancé is Japanese and was in her late 20s when denied without explanation. Is there an expiration on 214b?
    Answer:

    Getting married to a US citizen and applying for a K visa/green card will remove the 214(b) issue. There is no expiration of this denial.Getting married to a US citizen and applying for a K visa/green card will remove the 214(b) issue. There is no expiration of this denial.

  2. Friday, 7...
    Question: I am on a H-1B Visa for past 9 years and have EB3 I-140 (2008 Priority Date) from Company A and EB3 I-140 from Company B (2014 Priority Date). I am now with Company C. I am Heart Patient and was operated for Heart By-Pass Surgery in 2013 and since then taking my regular Medicines (for my entire Life). I feel stressed on continually working for 40 hours a week and feel getting a EAD will be a god's gift and I can use this EAD to work at my convenience.
    Answer:

    Watch the Video on this FAQ: Compelling circumstances EAD

    Video Transcript

    I have given a few examples on my blog please look at that.

    Your surgery was a good four years ago I don't know if there is something particularly difficult about your medical situation, but normally people with bypass surgery resume their normal lives. In your case, like I said if there are any particular circumstances, you can certainly apply for compelling circumstances EAD and you can keep getting that renewed. 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. Wednesday,...
    Question: This is my second year on H1B and my H1b visa is valid till Aug 2017 with Valid 194. My Extension was filed on Oct 2016 normal processing and now I got an RFE on 22 May 2017. for the RFE I received last time ( Dec 2016 for amendment), I had submitted all documents like SOW, MSA, Client letter etc. and got an approval. However now due to some organizational changes, my Client is no longer providing us the Client letter. Due to recent changes and scrutinizing of H1b applications these days, is there any risk involved NOT providing the Client letter? are there any changes of getting a decline?
    Answer:

    Watch the Video on this FAQ: Current trends in H-1B end client letters

    Video Transcript

    Since 2005 it has become very difficult to get H-1B approvals without clarification from an entrant if you are in a consulting position. Unless the end client can verify what your job is and how much control your employer doing the H-1 has over you, USCIS is not going to give you an H-1B approval. It has become very difficult to get H-1B's without the end client participation and sometimes it can be difficult even with a letter from the end client. It's really very sad that we have to do business in this way that our approvals depend upon the mood and the education level or knowledge level of the USCIS officer whose adjudicating 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.

  4. Friday, 30...
    Question: 1. If I have my I-140 Approved and its been more than 180 Days after approval then I believe that even if I change the employer the I-140 does not gets revoked and it still stays valid. I can continue to extend my H1B with my old I-140. Is my understanding correct?<br> 2. If suppose I have applied for my H4 dependents EAD while I am in my first company and both of us are working. Now it's been 180 days after my I-140 got approved and I switch my employer. In this case does my dependents EAD get's affected in any way? <br> 3. Now assuming that answer to the first question is Yes, but I believe that in order to apply for GC my new employer has to file my PERM and I-140 again. If that happens will my dependents EAD gets affected in any way until the new I-140 gets approved?
    Answer:

    1. The essence of your understanding is correct. You are safe against revocation.
    2. No effect on H-4 EAD of H-1 change of jobs, as long as the H-1 holder maintains status.
    3. Again, no effect on H-4 EAD if your new green card is filed.

  5. Friday, 30...
    Question: I just had my interview with my family for an EB 3 application. Everything went well until the consul asked my years of working experience as a nurse. I only had a total of 21 months of working experience. Then she right away told me, "Oh I'm sorry, but your application is under EB 3 skilled worker since you are a nurse and you need to have 24months for you to qualify, I will have to send you to the releasing to give you further instruction." But having read all of these PERM law and provisions, why did the consul said that my case is for administrative review? Can somebody clear this up for me?
    Answer:

    EB-3, whether for nurses or any other worker, requires either 2 years of experience OR a bachelor's degree.

  6. Thursday,...
    Question: How long does the supplement J form take for approval? What happens if supplement J is denied? Can I work with the new employer without filing supplement J?
    Answer:

    Watch the Video on this FAQ: Changing jobs and Supplement J

    Video Transcript

    Supplement J is essentially a replacement for employment letters. See my blog for the rules. 

    The purpose of Supplement J is to confirm that the job offer from the employer and there is the intention of the employee to accept that job. It is also used to request portability. 

    .......When must you file Supplement J?

    When you are filing I-485 and I-140 separately. If you file them both together with the same employer, you don't need to file Supplement J. If you are filing them separately you file I-140 first and then you filed I-485 then you have to file Supplement J with it. 

    Second, when USCIS requests it, you got to provide it. So if you have a pending case, you've never given Supplement J and UCIS has asked for it, you got to give it. 

    Third, is when you do portability. When you change to a similar job you should file at that point Supplement J.  If you want to take benefit of portability you have to file it. But if you say I am going to be here for 3 months and then change jobs again you could skip Supplement J. 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. Tuesday, 27...
    Question: I got H-1B approval in August 2013 valid from Oct 2013 to Sept 2016. After this, I traveled to the US in August 2014 on H-1B & I am here till now. My question is, till what time I can stay in the USA. I know for H-1B we get 6 years. But will this count my earlier stay on L-1B? For more than 2 years, I didn't enter to the US. Will it be until August 2020 or ( August 2020 minus the L1B stay ) ?
    Answer:

    Watch the Video on this FAQ: Rules for counting 6 years of H-1B

    Video Transcript

    Any time that you spend on H-1 and L-1 will be counted together. So if you spend two years on L-1B or L-1A you've got four years left on H-1. The second rule is if you go outside the USA for one year the entire period is reset so you could have six years of H-1 back. If you were here on L-1A for seven years, then you went back to your home country stayed there for one year, did not come to the USA and even if you did come for a brief visit and then you have to be out those extra days you came, for example: if you came for 10 days you have to be out for ten days for the clock to be reset. You got your six years of H-1 reset. One thing L-1 is counted towards your H-1 and second thing, if you are outside for one year the period is reset. The next thing you need to know is every day you are outside the USA on H-1 you can recapture every day that you are outside. If you are outside the USA more than six months you get the entire year back. 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.

  8. Tuesday, 27...
    Question: What is RFE and audit of GC?
    Answer:

    Watch the Video on this FAQ: RFE and Audit of GC

    Video Transcript:

    An RFE simply means a Request For Evidence, which is typically a request by the USCIS to get more information from you. It can come in any petition. RFE typically gives you 87 days to respond sometimes it gives you lesser days to respond. RFE, when it is sent by the consulate, is called administrative proceedings where they will give you a notice. When it is sent by the US Department of Labor it is called an Audit. An audit from the US Department of Labor is the same thing as RFE from the USCIS. It merely requests for more evidence. It doesn't mean the case is denied, it just means it needs to be clarified. 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. Friday, 23...
    Question: 1. I am Green card holder, can I sponsor my mom for dependent visa, she is in India?<br> 2. Is there any time limit for which extension to be provided?
    Answer:

    1. You have to be a US citizen to sponsor her Green card. For Green Card holders as I recall the only family other than the children and wife they can sponsor is unmarried adult children over 21 but unmarried you can apply for their Green Card. Once you become US citizen your possible beneficiaries can be larger including your parents. There is little-known provision that is sometimes used, use it if it's necessary when let say your parents they don't have anybody in India to take care of them. We have been able to extend their tourist visa in those cases, stay in tourist visa even though you are on Green card we can try to make an argument that there is nobody in India to take care of them. This provision is not very clear cut in cases of holders of Green Card but believe it or not if you are on non-immigrant visa like student or H-1 visa or O-1 or B-1 any of those visas or L-1, you actually have more rights to bring your parents here. The reason being that there are certain categories of visas where people are not directly dependent and you cannot sponsor them for derivative visas but government recognizes that we will give you an extension of tourist visas. So if you are here on H-1 and you wanted to bring your mother here because she is alone in India, you could actually do her because she can't get her H-4 being your mother, she can still get B-1 or B-2 which can be extended because she is recognized or covered under those situations. However, Green card holders they don't have same privilege but you can be able to get their extension sometimes. It's not the full proof method for me wait until you get naturalization. Once you are naturalized, your parents can be here within a year on a Green Card.

    2. I have done it repeatedly, every six months we have to do it, there are some people who are in 3rd, 4th or 5th year we are doing repeatedly for them. But it's not or no means it should be taken as given or guaranteed rule. 


  10. Friday, 23...
    Question: The visa bulletin refers to two tables, dates for filing applications and final action dates. The latest Bulletin, June 2017, for category F2A, has 15AUG15 specified for final action dates and 08APR16 for dates for filing applications.Assuming that the dates move at the same pace, we might see the dates for filing applications move to 08JUN16 in a couple of months from now. If this happens, will my husband be eligible to apply for the next step (consular processing) or have to wait for the final action dates to become current? When will he be eligible to take action on the next step?
    Answer:

    Watch the Video on this FAQ: What are Visa Bulletin Final Action Dates and Date for Filing

    Video Transcript: 

    Visa Bulletin is an estimate. It is not mathematically accurate. It is an estimate based upon certain rules, statistical as well as legal which is an estimation by the State Department of what visa numbers they will be taking in the following month. In other words, it is the projection of the availability of visas in the month following the announcement of the visa bulletin. Let's say if your date is currently according to the visa bulletin which means either from your date forward or before your date, priority date cases are going to be dealt with in the following month you can then if you are in the USA in legal status apply for Adjustment of Status. If you are in the USA you need to look at the USCIS website and see what the final action date is according to them. Sometimes they might allow you to file as earlier than suggested by the visa bulletin. 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.

  11. Wednesday,...
    Question: What are the dos and don'ts to qualify for US Citizenship?
    Answer:

    Pay your taxes, don't default on your taxes, try not to get too many traffic tickets. If you get few that's OK, but if you get too many that can be ground for troubles. Don't get into any criminal plot, as you can lose your Green Card if you have a felony conviction. There are other things that can hurt your Green Card like DUI more than one or two of them then you can get into trouble. So, as long as you are like regular people I don't think there is anything to worry about.

  12. Wednesday,...
    Question: 1. I got my green card after that should I notify any US government agencies and Indian government regarding the change in status and having received my Green Card? <br> 2. Is there any restriction on my traveling outside the USA when I am on Green Card status?<br> 3. So what if I want to go to India for two months? <br> 4. What is N-470?<br> 5. Does any unemployment in the future affect Green card?
    Answer:

    1. There is no such requirement that I am aware of at this point today (June 2017) that you have to notify any US government agency or Indian government just because you received your Green Card. However, what you should do is you should inform your employer that you have got your Green Card so they can update your Form I-9 which is an internal matter within the files of the employer. They don't have to update any government agencies.

     

    2. Now, traveling has certain predicates or certain dependencies that should be calculated and that should be known. First of all, people have this idea that if I leave the USA for less than 6 months I won't lose my Green Card. Well, its little bit more complicated than that. Technically, if you leave the United States after you got the Green Card, you leave the United States with the intention to never come back even if you are gone for one day and the second day you change your mind and come back. If it could be proven that you left with the intention to never come back your Green Card is gone. So, the first thing very important - your intention. If you have to travel outside the USA where your intention is never to come back, your Green Card technically can be lifted.


    3. No problem at all, especially when your home is in the USA, you live here, you work here, your children go to school here taking vacations for a month, two months even three -four months is not the problem. So, some of these factors are important. Sometimes what happens is, let’s say you are in the USA and decide to go to India and take the job over there for two or three months and that goes up to seven or eight months you could be in trouble because the government can say that it looks like you quit your job here. The job is important, where your children are going to school is important, your permanent home is important. These are not issues for most of the people who live in the USA but I am just pointing out these so when a situation arrives I want you to consult a lawyer before you make a plan.

    An Intention is a state of mind, the state of mind cannot be directly looked at it can only be inferred from circumstances. So circumstantial evidence is important to prove your intention. For example, if you leave the USA with a one-way ticket and you don't come back for one year, chances are you lost your Green Card because if you are outside the USA for more than one year you will automatically lose your Green Card.

    There is something called Reentry permit which allows you to go up to two years and the reentry permit is a definitive announcement by the US Green Card holders that I do not intend to give up my Green Card. It is not the full proof for saving your Green Card but it is quite effective, if you need to go away for two years you can file for a reentry permit.  

    For reentry permit, you have to be in the United States to file for it. After you file it within a few weeks you will be scheduled for Biometrics. You have two choices whether you file and leave the USA, you have to be physically present when USCIS receives your application and then you can leave and come back for the Biometrics or you can stay here, do your Biometrics and then you go. The choices for receiving your reentry permit when it is approved are either to your lawyer or to the address in the United States or to the Consulate of your home country. If you go to live in Mumbai, you could pick up your reentry permit in Mumbai Consulate. 

    If you face a very bad emergency when you are in India, you can always apply for reinstatement of Green card which is called Returning Resident Permit or SB-1 Visa, that is done through the US Consulate. You go to the Consulate, explain to them in writing through the form. Everything has a Form, that shows that your stay was unintentional, they can take time and reinstate your Green Card for you. There is another Form you need to fill in, that's called Form N-470. 

     

    4. N-470 is a highly misunderstood Form. N-470 is helpful in naturalization only to the extent that normally, if you are gone for one year you have to start naturalization five years all over again. Normally, you can apply for Naturalization five years after you get your Green Card. If you need to stay away for one year you have to start your five years all over again. By filing N-470 you prevent that re-setting your five-year clock and there are very specific rule that covers N-470 including that there must be one year during which after getting the Green Card you must not have traveled outside the USA even for one day, this is one odd little rule but keep all these things in mind. So, N-470 is usually filed in conjunction with reentry permit application.

     

    5. No, of course not.

  13. Friday, 9...
    Question: Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?
    Answer:

    Watch the Video on this FAQ: Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

    Video Transcript

    First of all the moment, your I-140 is approved no matter which category EB-1 or EB-2, the Priority Date is yours to keep that means if you got your green card filed in let's say 2017 and you left this employer after the I-140 approval, they revoked your I-140 and you started another green card in 2020 your Priority Date will be still 2017 because your I-140 was approved. So the moment the I-140 was approved the Priority Date becomes your property and it can be carried across categories, across employers, and across geographical areas. So if you go from a PERM filing in New York to an employer in California and your previous filing was EB-3 next filing is EB2 or even EB-1 you can carry the date of the work petition as long as the I-140 was approved. The moment the I-140 is approved, the Priority Date is yours.

    There are limited exceptions unless the I-140 is revoked for fraud, etc., by the USCIS. Even if the employer revokes the I-140 you will keep your Priority Date. In addition to that, if the I-140 gets approved and stays approved for 180 days you will not only carry your Priority Date you will carry your right to extend your H-1 through any employer indefinitely. You will get a second benefit after 180 days and if the lawyer revokes the I-140 you will still get the benefit of both Priority Date and the right to extend your H-1 through any employer. The government has also said if you have an H-4 EAD for your spouse, your I-40 stayed approved for 180 days your wife's or your husband's H-4 EAD is safe even if the old employer revokes the I-140 later on as long as the I-140 stayed approved for 180 days. So if you left but the I-140 stayed approved for 180 days H-4 EAD is safe. That, in a nutshell, is the general law. 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.

  14. Tuesday, 6...
    Question: I am on H1 Visa, my H1, wife's H4 and H4 EAD expires on 7/18/2017. I will be completing my 6 years by 7/18/2017. My I-140 is approved. I have a question<br> 1. Should I file for H4 EAD extension along with my H1 and H4 extension<br> 2. Can my spouse (H4-EAD) work while her extension in progress?
    Answer:

    Watch the Video on this FAQ: Extending H-1/H-4EAD; working while extension pending

    Video Transcript

    1. Yes, you should. 

    2. No. Once the current H-4 expires and EAD expires and you are waiting for the new EAD to arrive she has to stop working. 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.


  15. Monday, 22...
    Question: 1. Can we file multiple green cards together? If yes what will be the side effect? <br> 2. My company filed my green card in EB-2 category and I-140 is approved with priority date 2013. I want to give a try with EB1 category personally if I will try in EB-1 and let’s say it is not approved, then will it affect my EB-2 green card?<br> 3. Should job description match in EB-1 and EB-2?<br> 4. What may all possible issues occur?
    Answer:

    Watch the Video on this FAQ: Filing green card through multiple categories or employers and/or family simultaneously

    Video Transcript

    1. The answer is yes. You can file green cards through as many categories as you want to. Both employment as well as a mixture of employment and family or investment. Any number of green cards can be filed as long as they are being filed honestly.

    2. I don't see why not. 

    3. It doesn't have to.

    4. It all depends on the facts of each case but at least theoretically it is possible. 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.

     

  16. Sunday, 21...
    Question: 1. Can an H-4 EAD person open a small business like ice cream shop as part time? <br> 2. Also can h1b spouse support the maintenance of the business without taking any remuneration. Is it legal and allowed?
    Answer:

    Watch the Video for this FAQ: Activities permitted under H-4 EAD

    Video Transcript

    1. With a H-4 EAD, you can do anything you like. You can work, you can choose not work, you can start your own business, you can work three hours a day, you can work ten hours a day, you can work eighteen hours a day. 

    2. I am a little uncomfortable with that. Normally it should not be a problem as a volunteer activity, but there are two problems here.

    a. the ice cream business is a for-profit business under the Fair Labor Standards Act, they cannot take free work.

    b. this might be a violation of your status because it is giving you a benefit directly or indirectly. I think it is a difficult situation. She can do what she wants. You should not work for her. 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.

  17. Saturday,...
    Question: I would like to know is there anything change in recent EO's that prevent one get Green Card or USC when a person issued a SuperSpeeder ticket. Is this considered a misdemeanor?
    Answer:

    Watch the Video on this FAQ: Impact of a misdemeanor under Trump EO

    Video Transcript

    The law is still the same as far as I know. There is no change if you are legally in the United States. If you are illegal things would be different. If you are in the legal status in the United States and you get convicted of one misdemeanor you are still covered and exempted by Petty Offence Exception. 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. Saturday,...
    Question: Do the 3 years spent in residency training in an HPSA/MUA area be counted towards the five years required for NIW? The residency training (3 years) and subsequent job (2 years) were on H1B visa in two different HPSA/MUA areas but not processed through NIW route. Can the NIW petition be filed now retrospectively for those years already worked in underserved areas? My current GC sponsoring job is in a University teaching hospital (job designation Assistant Professor) but obviously also involves treating patients. The PERM prevailing wage category was teacher/ Professor but job description included patient care. Can the job be changed to that involving only patient care (no teaching) and still be considered same/ similar? How about a job (with patient care only & no teaching) in a private practice (as opposed to hospital employee)?
    Answer:

    Watch the Video on this FAQ: Physicians (FMG) NIW, AC21 portability, Teaching to clinical position

    Video Transcription

    Under the current regulations beginning January 17, you can actually ask for a predetermination before you change jobs. You can send your Supplement J and wait, for they got to decide it before you join the new employer. They will readjudicate the case so you will know if you are safe when you move instead of just jumping. 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. Friday, 19...
    Question: My wife has received her L-2 visa. She plans to continue with her US branch of her India employer once she lands in the US and gets her EAD. However for the period while she is US waiting for her EAD to come in, can she continue to be employed with her employer in India and keep receiving paychecks in India, while technically not working for any US based employer prior to getting her EAD?
    Answer:

    Watch the Video on this FAQ: Is it legal to work for a foreign-based company in the USA?

    Video Transcript:

    In my view, if your wife has come here on L-2 visa and she wants to continue working I would wait till her EAD because I just don't like to have that grey area. I would not want her to continue getting her paychecks. I have had other colleagues of mine say if the business work for which she is working has nothing to do with the USA, they have no clients in the USA, they are receiving no money from the USA, they are not channeling any money through the USA that it is OK to work for this company in the USA while you are getting paid abroad. I have my doubts so my advice will be not to. 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. Tuesday, 9...
    Question: Lost job recently. Was working on H1B. I am trying to understand how much time I have effectively to find another job and have the H1B filed by next employer. Is it necessary that the H1B “start date” in the I-129 petition be within the 60-day mark ( the grace period) from the last day of job in order for USCIS to grant H1B approval after a layoff?
    Answer:

    Watch the Video on this FAQ: H-1B 60 days grace period explained

    Video Transcript

    The 60 day grace period is not a right, it is something you ask the government for. If you got unexpectedly laid off or something of that nature happened beyond your control you can request the government when to file for an H-1 transfer even though you were out of status for 45 to 50 days. You should request the government to give you status without having to leave the USA.  Once you file the application and get a receipt you can start working. AC21 does protect you under this rule. 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.

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