US Immigration Questions

  1. Tuesday, 20...
    Question: I had applied for H-1B extension on May 15, 2015 with I-94 card expiring on Aug 29,2015. Due to some emergency, I traveled to India in June and returned in July with new I-94 card expiring on Nov 2015. Now, it's been 6 months that I applied for extension, no response from USCIS. Will there be any problem since I filed my H-1B extension with old I-94. Do we need to amend my case with new I-94 card?
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=1245

    FAQ Transcript:

    If you file for your H-1extension you are allowed to travel. You are allowed to travel even when your H-1 transfer is pending. A few things to keep in mind when you do - is are you maintaining status etc etc., but travel while transfer or extension of  H-1 is pending is allowed. The question is when you come back your I-94 changes and that is not a problem. That should not cause any delay and I don't see any need for any amendment. The fact that your H-1 is taking so long is most probably not related to this issue. But if you want you can double check with the USCIS customer service. I always advice that. 

  2. Thursday,...
    Question: I have a question on EAD validity for the below scenario. <p> H-1B holder got I140 with Employer A and applied EAD for H-4. H-4 is valid until MM-DD-YYYY 10-29-2018. Now H-1B holder moved to Another Employer B, then at this point he doesn't have Approved I-140. Will EAD which received using Employer A valid until MM-DD-YYYY 10-29-2018? I knew for renewal of current EAD after 10-29-2018, we need approved I-140, but not sure exiting EAD is valid until 10-29-2018 if H-1B holder moved to Employer B.
    Answer:

    USCIS has said that revocation of I-140 does not automatically invalidate an approved H-4 EAD, but they reserve the right to revoke such an EAD.

  3. Thursday,...
    Question: My wife's I-485 got rejected because of priority date not current. My application was delivered early by FedEx(Sep 29). Her priority date is Sep 2014 so as per Oct 2015 guidelines I believe she has the eligibility to apply. Can I re-apply same documents, and also do I need to apply for her Visa extension too because it will expire in 1 week from now. Will she be considered in status with her I-485 receipt number and in process of re submission?
    Answer:

    An untimely filing based denial does not invalidate the documents, and, a pending 485 keeps her in authorized period of stay. Nevertheless, I advise people to keep their status (like H-1, H-4) current, anyway. By the way, a B-2 to AOS application is FULL of potential problems. Make sure you consult a lawyer.

     

     

     

  4. Tuesday, 13...
    Question: My wife is working here in the US on J-1 visa as a Post Doctoral Fellow and She is subject to 2HRR requirement.I came to United States last year on J-2 visa from India and after few month I applied and got the EAD card and now I am also working for XYZ IT company here in the USA and I am subject to two HRR requirement as well. My employer wants to file H-1B visa for me but my wife does not have an offer for H-1B visa so in that case Can I (J-2 visa holder) file a waiver petition independently of the J-1 Principal?
    Answer:

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

    https://youtu.be/XAfykYM-cUQ?t=89

    FAQ Transcript:

    The question asked is can a J-2 holder obtain a waiver of the Home Residency requirement without the J-1 holder being involved and the answer is, the last time I looked into this issue it is a "No".  The exemption was if there was some sort of impossibility associated with the J-1 holder conferring the benefits of a waiver for instance if they were divorced or there was a death of the J-1 spouse. In those cases certainly this was a possiblity. But otherwise you cannot as a J-2 holder obtain a waiver by yourself. Your disqualification for the Home Residency requirement came into being because of the J-1 holders status. So the theroy of the law is that J-1 holder must apply for a waiver.

  5. Thursday, 8...
    Question: FAQ's Updated on 21 September 2015
    Answer:

    FAQ's Updated on 21 September 2015 

    FAQ 1. I am on the H-1B visa and my spouse on F-1. When my Priority date is eligible is it ok to apply for I-485 for me and my wife given she is on F1 or she has to be on H4 before we can apply for i485? If it is ok to apply with her F1 status, are there any possibilities that she can have issues in the future if she wants to get back to H-4 with a ending I-485?

    Answer: The law does NOT require that the spouse be on a derivative visa (like H-4 or L-2, if you are on H-1 or L-1) to file AOS through you. BUT, F-1 presents some potential issues that should be discussed with the school. 

    FAQ 2. My sincere thanks for your service. I had one quick question. I am on consular processing currently outside USA. My priority date is July 2010. My application is with NVC (National Visa Center). Do I need to submit my paper work for EAD, will I be eligible EAD ?

    Answer: You need to wait till NVC asks for papers, and no EAD, sorry.

     FAQ 3. Do you anticipate any date movement of the new date for I-485 eligibility for EB2 India? Also, are there any chances that this date will also retrogress?

    Answer: I think dates are likely to move in both directions: retrogression as well as advancement.

    FAQ 4. I filed for my 1-485 concurrently before I got married, now as per the new set of dates. In the October visa bulletin, I am eligible for filing Employment based visa application. Can I add my wife (who is currently on H4) to my application, after 1st Oct,15? Or do I need to wait for a notification before doing so?

    Answer: Ideally, wait till receipt. You have all of October to file AOS.

    FAQ  5. I have been waiting last 6 yrs and recently I booked h1b stamping interview at Hyderabad thinking that dates won’t move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AD, AP how long does it take? Not sure should I go for stamping or should i wait for few months. 

    Asnwer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

     


     

      

     

    FAQ's Updated on 14 September 2015 

    FAQ 1. My PD is December 2010. Will file for I-485 next month. My wife is travelling to India on Sept 26. Is it OK to add her while she is travelling (technically she will be in India next month). If not, she will come back March 2016. Can I file for her later and file only mine next month? 

    Answer: She has to be in the USA when 485 is received by USCIS.

    FAQ 2. From the USCIS point it seems that this bulletin was the last action item on Obama executive order for Empl based immigration,please let us know what do you think?

    Answer: I think there should be more. An explanation of promotion not being fatal to an employment-based green card, etc.

    FAQ 3. My priority date is April 2013. I left the previous employer and he revocked my approved I-140 . I got copy of approved I-140 and revocation letter from USCIS . When my current company will file I -140 , will I able to retain my old priority date ?

    Answer: No. The current thinking of the USCIS is that you will lose your PD. I am sorry. 

    FAQ 4. My Priority date is Jan2011 (EB2) and it is current now and it is with company A. Now I have moved to company B and they are in the process of filing Perm. And my previous I-140 is not withdrawn by company A. So my question is can we apply for I-485 based on company A's I-140 approval without even involving company A and then after 180 days can we use AC21 and port to company B. At this point i cant leave job at Company B since it is Fulltime. Please advice.

    Answer: You must not file I-485 without a genuine job offer from the I-140 sponsoring employer.

    FAQ 5. My Priority date under EB2 is June 9, 2011 with my Old Employer and my I-140 was approved on March 7, 2012 and stayed with that company till Nov 2014 and in dec 2014 moved to a new company, Can I file for I-1485, EAD and AP on October 1, 2015 and my Old Employer is ready to give offer letter and here I see you have mentioned to Mr. Pavan that you can only apply AOS, does it mean Adjustment of Status which Includes filing of I-1485 along with EAD and AP or only I485 ? 

    Answer: If you are entitled to file I-485, you are ALSO entitled to file AP and EAD.

    FAQ 6. Perhaps a mute point - but promised myself I will have this clarified by you. My priority date is in May 2011 - but that PERM and I140 are from previous employer. Current employer hasn't filed PERM yet (it's a non-profit org and things move slow I guess). My spouse has her PERM and i140 (priority date in 2014) from her current employer.

    1) Can I use my previous employers i140 to file i485?

    2) Can my wife use my PD and file for i485? 

    Answer: 1. Only if you have a genuine job offer letter from previous employer.

    2. No. 

    FAQ 7. Hi, my priority date is April'2011 in EB2 and based on recent employee based priority date for EAD, my date is become current. I am going to India on October 29th. I am planning to file 485 and then leave for vacation. Will that be a problem, kindly sugget.

    Answer: Travel after filing I-485 is a problem only if you do not have a valid H-1 visa stamp.

    FAQ 8. Can new employer re capture OLB priority date in case old employer revocked approved I 140 ? 

    Answer: A revoked I-140 takes away the PD.

    FAQ 9. There is I-140 EAD petition blog(regradless of any categories) is going on through out many website. Is it going to get approved this year that all approved I-140 folks are eligible for EAD? Do you have any insight on this? may be this could be scam? 

    Answer: That was the original plan of Obama Admin: when you file 140 (or 140 is already approved), you can filed 485 without waiting for PD. But that plan has not been implemented so far. 

    FAQ 10. What I understand from the news on the Visa Bulletin is that we (Indians) can only file for AOS under EB2 category if the PD is before 1st July 2011. But even if the PD is before 1st July 2011, the I-485 will ONLY be processed/approved until the Priority date becomes current (which is May 2005). Am I right? 

    Answer: A green card will be approved only if a visa number is available. EVERYTHING you see in the visa bulletin is an estimate.




     

    FAQ'S as of September 10, 2015 

    FAQ 1. My husband has his priority date Dec 2012. As per the new changes in VB , which might have progressive dates every month, Any idea how long it might take to reach to Dec 2012 ? 

    Answer: I am not sure if this will be repeated every month and how will the movement continue.

    FAQ 2. I have been waiting last 6 yrs and recently I booked H-1B stamping interview at Hyderabad thinking that dates wont move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AP how long does it take? I am sure should I go for stamping or should I wait for few months.

    Answer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

    FAQ 3. I have prior approved valid I-140 with previous employers with Sep-2010 as PD and my current employer has applied LC and waiting for approval. Can I apply for EAD with the previous employer I-140.

    Answer: You can only apply for AOS if the old employer, in good faith, can provide you an offer of employment.

     

     

     

     

  6. Monday, 5...
    Question: My H-4 visa extension has been approved, I mean the USCIS has sent me an approval notice with the I-94 record card. Now it clearly says, this is not a visa. What do I need to do in order to travel to India, do I have to go to a US consulate here, to get a visa stamped in my passport, because in order to travel through Europe we need a valid US Visa or travel through Dubai , which doesn't require any visa, and then get stamped in the US consulate while coming back? I am confused and do not know what is the next step after approval notice. By the way my spouse H-1B visa was also extended while in US by the Employer. But, my spouse hasn't gone out for visa stamping yet, will this effect my visa stamping?
    Answer:

    When you travel abroad, in order to return to the USA, you must first obtain a visa stamp from a US consulate in (any) country that you are visiting. Check the consulate web site to make an appointment and what documents you should bring for H-4 visa stamping. H-1B visa stamp is usually not a precondition to H-4 visa. 

  7. Friday, 25...
    Question: I am a green card holder and received it on Oct 21, 2011. I moved to India on Nov 21, 2013 . I applied for a re-entry permit before I left USA and I have a permit valid up to Mar 10, 2016.
    Answer:

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

    https://youtu.be/OMuYdzLJ2qQ?t=914

    FAQ Transcript:

    I want to point something to you, there is lot of misconception about re-entry permit. Reentry permit does not give you an irrevocable right to stay away from USA, but it is as close as you are getting security in maintaining your Green Card. Reentry permit simply says this; the fact that you are away for two years cannot be used by itself as a ground for revoking your Green Card. If on the other hand, it appears that you have no intention of coming back and you are abandoned your intention to live in the United States, they will take away your Green Card even if you have the Reentry Permit.

    As a practical matter, USCIS does not look behind the Reentry Permit. So far I have not seen any cases. But don't think it's a foregone conclusion just because you have Reentry Permit, you are hundred percent protected. No such thing.

    Another thing to remember is you don't have to visit USA even once, while the Reentry Permit is in play. But you must enter USA before the Reentry Permit expiration, if you want to extend it. And extension can only be done while you are physically present in the United States. You cannot send application via courier from India to USCIS, like as you asked. That's the way it should be.  

  8. Wednesday,...
    Question: I have my old Priority date as Dec 2009 in EB-3 and when I changed the company they filed the Labor and I-140 in EB-2 and my old Priority date is not ported on my new I-140 and I see the new I-140 in EB-2 with the Priority Date as Jan 2013. Now with the revised USCIS VISA Bulletin can I apply my I-485 with old PD ( EB-3) and simultaneously to be safer side can I apply I-485 from my wife's side and her PD is July 2010.
    Answer:

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

    https://youtu.be/OMuYdzLJ2qQ?t=1436

    FAQ Transcript:

    Current thinking of USCIS is if the old employer revokes I-140 or USCIS revokes I-140 it will take away your Priority Date.  Second thing is in a situation when one files the second I-140, USCIS has already given the date from the old I-140 and now if the old I-140 is already revoked why keep the date and the answer is not necessarily. Just because the date has been put on your I-140 does not mean you get to keep it at least that’s the way I see it.

    Let’s say husband and wife both have their  I- 485 going. Because she had her I-140, you had your Priority Date and might be a few months ahead of the other one should we be filing I-485s? One Primary and the other one Derivative and the answer is ...USCIS does not like it. On the other hand Is it legal to have multiple I- 485s the answer is "yes"... can it cause confusion and delays..."yes" but it also protects a bunch of very important rights.

    The interesting this is ...let’s say husband and wife both filed I-485 one each but wife’s case got approved first what USCIS  does these days is they take husbands case and convert it to derivative  and approve him also. So they automatically convert pending I-485s from derivative to primary...from primary to derivative which is very good. So bottom line  - can you file multiple I-485's? " yes"...should you do it ?..get your lawyers check with the USCIS. I probably would where there is an advantage and where there is no advantage ...both jobs are secured nothing to worry about let’s say I would probably file one each and then wait. Chances are USCIS will convert when the approved primary and they will  convert  the derivatives case also . The second primary case also as a derivative and approved.

     

     

  9. Tuesday, 22...
    Question: Situation -<br> 1. I am working with employer A on L visa.<br> 2. Employer B has filed my future employment based GC under EB2 category. My I-140 is approved. (I have not worked for employer B until now)<br> 3. My I-485 filed by employer B is pending for more than 180 days.<br> 4. I certainly want to join employer B as soon as I get a project prior to getting green card OR when I get my green card.<br> Questions - (in case point # 4 is not MET and I get an RFE on employment verification letter)<br> 1. During I-1485 adjudication if I get EVL RFE and I decide to respond to it using another job offer from employer C, then - How do I prove that I certainly had intention to join employer B at the time of filing I-140 and I-1485?<br> How to prove that my employer B also had intentions to hire me on a permanent Job offer at the time of filing I-140 and I-485?<br> 2. If we want to respond to EVL RFE using Employer C's offer then - How do we prove that this offer was extended prior to I-485 adjudication (with joining date after getting green card)?<br> What should be the offer extended date and<br> What should be the joining date to comply by AC21?<br> 3. If I respond to this EVL RFE using employer B's job offer letter then - What are the chances of getting "Ability to pay RFE" subsequent to my RFE response using Employer B's offer letter (Not using AC21 at all)? (FYI - as far as I know so far none of the GC applications are denied for "Ability to Pay" RFE for employer B)
    Answer:

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

    https://youtu.be/OMuYdzLJ2qQ?t=440

    FAQ Transcript:

    It is perfectly legal for an employer to process the green card for you as long as they have the good faith intention and you have the good faith intention of joining them. However once I-140 is approved and I-485 through a future employer has been pending 180 days you’re not required to join them. You could join anyone with same or similar job anywhere in the United States. So AC21 protects not only jobs you already have in hand it also protects future jobs. As long as the intention is honest basically that is based upon your statements and that’s all that matters.

    Now you are protected by AC21 job portability or green card portability you can take any job anywhere with any employer as long as it is similar to the job described by your employer B when they file your green card.

    Question: During I-1485 adjudication if I get EVL RFE and I decide to respond to it using another job offer from employer C, then - How do I prove that I certainly had intention to join employer B at the time of filing I-140 and I-1485?

    How to prove that my employer B also had intentions to hire me on a permanent Job offer at the time of filing I-140 and I-485? If I cannot join them during I-485 adjudication.........can I use another job.

    And the answer is - Yes you can and you don’t have to prove that this offer was extended prior to I-485 adjudication. That too can be a future job offer and the joining date does not really have to be specified all that needs to be specified is that is it is their intention to offer you the job and accommodate you either before or promptly after the green  card is approved.

    So you have all the options open if you want to respond using a job offer from the future employer (employer B/employer A) all of them are open to you and ability to pay RFE is usually only relevant to the employer who filed your green card. So if I use AC21 and go from employer X to employer Y USCIS is not going to question employer Y’s ability to pay. But if you stay with employer X they can question the ability to pay all the way till you actually get the green card.

     

     

  10. Monday, 31...
    Question: How does it work with financial co-sponsorship? Can a family member or a close friend co-sponsor a fiancee?
    Answer:

    Anyone who is a US Citizen or green card holder can co-sponsor affidavits of support .

  11. Monday, 31...
    Question: I am a US Citizen residing in the UAE with my Wife and two children. My Wife is a Syrian passport holder. We petitioned her case for residency in the US under I-130. We have received the first notice from the NVC which was on the 24th of June. The letter stated that all documentation necessary to complete the National Visa Center processing of your case has been received, and as soon as an interview date has been scheduled then we will be notified. How long does it take to receive the second notification with an Interview Date that we are closing on week eight? Is there a way that you can expedite an Interview Date? If the answer is Yes, Could we officially request your service? Case Number: ABD2014671004 Beneficiary's Name: KINANA WARD Preference Category: IR1 Priority Date: 25-NOV-13
    Answer:

    Hi Loay. Times are highly variable from a few weeks to a few months. Expedites are only granted for showing of some sort of urgent humanitarian situation in cases like yours. We would like to help, but I am not sure we can add much value at this stage. Contact us if there are any issues (other than timing). 

  12. Wednesday,...
    Question: I am on H-4 visa and my husband is on H-1 visa since 2008. We have an approved I-140 and have applied for a three year extension on the basis of approved I-140 on May 8, 2015, but we have not got any confirmation from USCIS yet, so my concern is that can I apply for a H-4 EAD before our visa extension is approved.
    Answer:

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

    https://youtu.be/tSRYmjhoEzA?t=928

    FAQ Transcript:
    You can apply for EAD. But USCIS has said they don’t like the idea of separating the applications as it can cause delays. Personally I think that’s baloney. I would file it if I were you. You have two options. You can premium the H-1 then H-4 gets premium. Kind of piggy bank on it and when the H-1 is approved file EAD as long as you have a receipt number. I don’t see why it should be a problem. So your choice I would file it.

  13. Wednesday,...
    Question: I entered US on Jan 2011 on F-1 Visa, completed my Masters and am now working for a reputed US organization since May 2012(OPT start date: May 2012, H-1B start date:Oct 2012. H-1B till: Oct 2017). My work does not require me to go to office, so I work from Home. Now I am planning to visit India next year and get my Visa stamped.<br> My Questions are<br> 1. Can telecommuting job cause any issue during Visa stamping? I heard someone was asked "if you can work from home, why can’t you work from India?” The organization I am working for has offices in India.<br> 2. Do I need any extra evidence to prove that I am telecommuting, therefore not within commuting distance from my office?<br> 3. I am married. Would you suggest going alone to India for Visa stamping and in case of rejection comeback on H-4 or will it be good to go as a family. My husband is also on H-1B
    Answer:

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

    https://youtu.be/tSRYmjhoEzA?t=437 

    FAQ Transcript:

    1. The answer is it can. When you have a telecommuting job in most cases what we do is we actually get an LCA for that location. I think that is the proper method to do things. So make sure you have LCA for your home location. You can always come back on H-4 if the H-1 is denied and your husband does not have to go with you. It is not necessary to go as a family but the option of coming back on H-4 is always there. 

    2. We always get LCA for home location. So if your employers have not obtained LCA for you I think they might need to do an H-1B amendment depending upon the facts of your case. So before you go for visa stamping it would be a good idea to discuss it with your lawyers. In my view the safest thing is to have an LCA and that location specifically approved under the H-1 process.

  14. Tuesday, 21...
    Question: I am currently on H-1B visa and I applied for my spouse, H-4 visa (Dallas Texas service center) on They received it on March 4th and Receipt Date March 6th. Now 4.5 months completed. I heard that usually visa processing time is 3 months, but no idea what happened. Like to know what are my options available to expedite it, due to this we could not visit India.
    Answer:

    Open a Service Request by calling USCIS customer service. By the way, you do NOT need an H-4 approval from USCIS to obtain a visa. In this respect, H-4 is different from H-1.

  15. Tuesday, 21...
    Question: I received my H-1 approval & other documents yesterday. I am worried because the I-129 document I received yesterday states no dependents are filed with my petition (Page 4, Part 4). I had sent all my spouse details/ marriage certificate etc. while attaching supporting documents in March. What is the process for H4 visa approval as my spouse would be accompanying me.
    Answer:

    H-4 visas do NOT require a USCIS approval for a spouse who is going to the consulate for visa stamping.

  16. Tuesday, 21...
    Question: Is it possible for me to apply I-485 on my own when I have I-140 approved and having receipt number? I am on L-1A visa, employer is not ready to neither provide I-140 approval notice nor file I-485. What documents you need to apply for I-485, is there any documents required from my employer, who actually is not cooperating so that I do not leave, which I do not intend to leave.
    Answer:

    You will need a confirmation of continued employment ("job letter") to file I-485. You should also put in a FOIA request to see you if you can get a copy of the I-140 approval.

  17. Tuesday, 21...
    Question: I got I-140 approved and also got EAD with EB2 category in April 2012. I need to change my employer but my employer did not give me my green card paper like I-140 approval copy, labor code etc. I have only receipt copy of I-140 and I-485. I heard about USCIS form G-884 (Returns of original documents) which use to get all green card documents from USCIS. I have following questions to ask you. Based on G-884, can I get my all green card documents from USCIS without knowing my employer?
    Answer:

    Form G-884 is used to request return of documents YOU had sent to USCIS (e.g., your college degrees and diplomas). Use FOIA for the purpose you are considering.

  18. Monday, 20...
    Question: I have questions related to I-140 denial & refile.<br> My first I-140 got denied in Jul 2013 due to 'unknown' reasons to me, but I suspect it's A2P. After 2 years now they told me that they are refiling it and will not lose the PD if approved. They didn't ask any info from me. Now my questions are:<br> 1) Is it possible to 'refile' I-140 with same old PERM after 2 years of first I-140 rejection?<br> 2) How many times can we 'refile' I-140 on same PERM?<br> 3) Can we do 'refile' under premium?
    Answer:

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

    https://youtu.be/ZBJhcjjIrzs?t=1548

    FAQ Transcript:

    The rule is once PERM is approved the I-140 must be filed within 180 days. If you do not then your PERM is extinguished and you will have to start all over again. However if you file I-140 within 180 days and then for some reason you have to file again, then 180 day limit does not apply. Let me give you an example: Let us say you’re I-140 was denied, you filed it within 180 days and you forgot to submit an education evaluation or because of some technical reason or a serious reason such as the inability of the employer to prove that they have the capacity to pay your wages. You can file an I-140 three years down the line. You are no longer confined to the 180 day deadline because when the first time around when you filed you were confined to the 180 days deadline.

    Now answer to question 1: Yes.

    Answer to question 2: No limit that I know of as long as it is done in good faith. 

    Answer to question 3: This is a tricky question. USCIS has said if you still have the original of the PERM and it has not been archived then they will take the premium processing only if they have the originals in their possession. If it was never submitted or if the case has been shelved they will not take premium processing.

  19. Tuesday, 7...
    Question: My employer did not run my payroll. He told me that we are going to get the project money after 2 months from client. Can I do something for that? If they do not run payroll can it create any problem?
    Answer:

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

    https://youtu.be/PreNUXXW9KU?t=696

    FAQ Transcript 

    The employer will be in a lot of trouble. The law is employers cannot bench or reduce the salaries of the employees just because they are in between projects. They are required to pay the full salary. If they don’t you can file a complaint with the Wage and Hour Division (United States Department of Labor) within a year when the wages were not paid. The form is WH-4. Once you file the complaint, Department of Labor investigates it. You have to do nothing. It does not involve any expense at your part for H-1 holders.  Department of Labor will recover the money and will get the cheques that are due. Secondly if the employer has the practice of doing this in a routine basis then the company can be in a lot of trouble. Please do not get involved in a situation where the employer runs the payroll and you return the cash to them. If that is the situation anybody invites you to that is a party to a fraud. Fraud and misrepresentation can result in criminal prosecution and also can result in a permanent bar from entering the United States.

  20. Monday, 29...
    Question: I am currently on EB-3. I have a company (say Company A) which is willing to file for my GC in EB-2 under 'Future Employment'. Do I or the 'company A' need to be aware of something on this front?
    Answer:

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

    https://youtu.be/PreNUXXW9KU

    FAQ Transcript:

    There are only two things.

    1. “I” the employee has the good faith intention in taking that job. You may never have to join that job but you should have the good faith intention to take up that job when the green card comes through. You may never have to do it but you should have the intention.

    2. The employer must have the same good faith intention of hiring you sometime in the future. What is that time within a commercially reasonable period after you get your green card or any time before that?

     Let’s say you get your green card approval today the future employer should hire you within 3,4 5 months. That is the commercial reasonable period. 

    So applying for a green card through a future job - can it be done and the answer is "yes" it is allowed. The employer should have ability to pay wages and that is an important thing. Other than that all that is needed is good faith intention on part of the employer and employee to give and take the job.

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