US Immigration Questions

  1. Thursday,...
    Question: My I-140 approved (India/EB2) from Employer A in June 2015, I joined Employer B in Oct 2016. Employer A sent revocation of my I-140, on USCIS website today is showing below status: "On December 7, 2016, we received your correspondence for Form I-140 ..." Will I still be eligible for 3 years of multiple H-1 extension with my approved I-140 from employer A without filing new I-140?
    Answer:

    Watch the Video on this FAQ: Impact of the new I-140 regulations

    Video Transcript:

    Your revocation of the I-140 is occurring from December 7 which is before January 17 where you would have been protected. I am worried that in your case if there was a revocation you will not be allowed for multiple H-1 extensions based upon an I-140 that has been revoked. If the revocation was from January 17 onwards you would be fine, but if it is before January 17 you will no longer have the right to keep getting H-1 extensions if the employer revokes your I-140. That was the old 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.

  2. Thursday,...
    Question: My elder son born in India and now he is 10 years old. We came to the US in 2009. My visa status is H-1B and GC is in progress. My son is a bleeding disorder patient(like hemophilia). The medicine available only in the US. Does my son's medical problem make any issue while applying 485/EAD or at the time of GC issue?
    Answer:

    Watch the Video on this FAQ: Medical problems/diseases that can cause issues in green card

    Video Transcript:

    It is not an issue for Green Card. 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: I am working for same company for more than 9 years out of which 2007 to Aug 2014 in the US and since Aug 2014 in India Development Center for the same company. I have visited the US frequently (4 times) between Aug 2014 to Sep 2015 and in India since then (through Advance Parole). I received my GC on 6/26/2016 and have got the physical cards delivered to me in India by a friend traveling from the USA. My father was sick for last one year and passed away on 15th Nov 2016. I have EAD card with validity till 12/10/17 (Not Valid for reentry to the US). My Advance Parole has expired on Dec 29, 2016. Also, 6 months timeframe for GC entry to the US has expired on 12/26/2016. <br> I want to work and live in the US but for immediate time (next 1 to 2 years) I need to spend more time in India to console and support my grieving mother. My current company does not have any immediate work for me in the US. I am looking for options outside my company to come back to the USA.<br> 1. Can I directly join some other company in the USA using the same GC my company has filed for me? If yes, are there any legal formalities/paperwork involved to do that?<br> 2. I have already filed for Advance Parole twice between 2014 and 2016. Once I am in the USA, can I file for a Re-entry permit to get a leave for another 2 years outside the USA to support my mother while she is going through recent grief? <br> 3. How long does the process for Reentry permit application take? Do I need to stay in the US till the time application is approved or can I leave for India once application is filed and bio-metric is done?<br> 4. On a side note - I have no earnings in the US for the year 2016 but I must file the taxes as a GC holder (and also to maintain my ties with the US). Do you have references for any good CA who can help me with this?
    Answer:

    Watch Video on this FAQ: Joining a company other than green card sponsor; staying abroad after green card - reentry permit

    Video Transcript:

    You have to take the green card job to make yourself safe. If you come to the USA and you take the green card job intending to work for this company in the USA on an indefinite basis and with the consent of the company you can apply for a reentry permit. A reentry permit is not a guarantee, but it is a formal declaration by you that says that you are going to live outside the USA for up to two years and not to take your green card away.

    A1. I think it is a little risky.

    A2. Not from outside USA. You will have to come into the USA.

    A3. After you file for your biometrics, it takes about 6-8 weeks to get it done and then you can leave and the reentry permit can be picked up even at your lawyer's office or at any USA address that you have given or at the consulate in your home country.

    A4. For green card holders, you can never file taxes as a non-resident. The best thing is because you are living in India we have some kind of a taxation relief treaty with India so that you don't have to pay taxes twice. 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. Tuesday, 14...
    Question: If Trump administration tries to revoke H-4 EAD through rulemaking /congressional Act, is there some way for the H-4 community to fight for it in the court to retain the H-4 EAD? What are the least possible ways to fight for it?
    Answer:

    Watch the Video on this FAQ: Revoke H-4 EAD regulation



    Video Transcript:

    The reason H-4 EAD regulations have come under a cloud is because there is a lawsuit pending. This all started about two years ago when an organization called Save Jobs USA sued USCIS for the regulations that created H-4 EAD and the basis was that these regulations were beyond the authority of the USCIS and they were hurting US workers. 

    The major issue right now is, does Save Jobs USA have the right to file this lawsuit. If they win then this case goes back to the District Court. H-4 EAD regulations should not go away very quickly. One of the dangerous thing is that Save Jobs USA as a part of their appeal has asked the court to not only rule that they have standing to sue but also to rule that the Department of Homeland Security does not have the power to issue these regulations. I don't think the court of appeals is going to entertain that.

    Rajiv in this video explains, discusses and answers questions on this issue.


    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. Tuesday, 14...
    Question: I am currently working as a research fellow on F-1 OPT and my employer is considering filing for EB-1. My question is, can the transition be done from F-1 OPT to EB-1 and in case my application does not go through can I come back to renew my F-1 status to continue a Ph.D. in the future?
    Answer:

    There is nothing in law that stops an F-1 student from directly filing for a green card. But, exhibiting immigrant intent while on an F-1 visa can raise some issues that should be discussed and planned for with your lawyers.

  6. Tuesday, 14...
    Question: I have an approved I-140. My priority date is April 2011. Can I file for EAD on the basis of approved I-140?
    Answer:

    No. The only EAD possible is a compelling circumstances EAD. This would not be a routine EAD. See the graphic on my blog.

  7. Friday, 10...
    Question: My wife is in F-1 visa status (cos from H-4) and I am on H-1B (I-140 approved). She needs to travel to Canada for an academic conference and she doesn't have stamping on her passport. Can we apply for visa stamping in Canada?
    Answer:

    Watch the Video on this FAQ: Automatic Visa Revalidation (AVR) traveling to Canada

    Video Transcript:

    She can apply for visa stamping in Canada. She can just use the H-4, 1-94 and at the airport when they ask her to surrender the I-94 she can tell them that she will be using the same I-94 to come back. Keep a copy of the I-94. If they insist on the surrender you can show them a copy of the I-94. On your way back they should let you on your AVR. 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. Thursday, 9...
    Question: Changing their employer from Company A (Current Primary Employer) to Company B (Direct Client of Company A - which will be the new primary employer going forward) - Can the experience earned by the person (skill set as well as number of years) earned with Company A be used for satisfying the job requirements of PERM / I-140 petition filed by Company B - if the person was actually working for the direct client i.e. Company B - all the time while employed by Company A (Current Petitioning Employer for approved I-140) ?
    Answer:

    Watch the Video on this FAQ: Using for green card experience gained with end client

    Video Transcript:

    Normally you cannot use the experience gained by the end client if the end client applies for your GC. That is the normal 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.

  9. Thursday, 9...
    Question: After getting GC (emp based):<br> 1. If an employee is working for an end client (employer - vendor - end client): while employed with GC sponsor, can a person be on bench (no pay) for some time? or like H-1B, it's considered as out of status, risk of GC revocation? <br> 2. Would like to travel to visit family abroad- At of POE, any questions by the officer ? Even though still employed, but not on a project at end client?<br> 3. While applying for citizenship later, if W2 < LC salary for any given year, negative impact during interview?<br> 4. Also, as a green card holder, can a person be self-employed(sole owner of LLC - and do 1099 contracting for US clients) ?<br> 5. In above scenario, is it legal if you(LLC) did not make any revenue in between contracts?<br> 6. Is it legal for GC holder to be unemployed, or like H-1B, if you are on bench or not getting paid by employer - you are out of status - hence risk of losing GC?<br>
    Answer:

    Watch the Video on this FAQ: Legal rights/benefits of Green Card compared to H-1B

    Video Transcript:

    It is easier to define the rights of a GC holder in comparison to the rights of a U.S. citizen. You can pretty much do everything that the US citizen can do.

    1. Of course, a US citizen can be on bench. no risk of green card revocation there.
    2. Technically if you are gone for less than 6 months there shouldn't be too many questions.
    3. Once you get your GC approval whether you get paid ten times more or less is irrelevant. 
    4. You can be self-employed as a GC holder and you can do a 1099.
    5. That's not a problem at all.
    6. Yes, it is legal for a GC holder to be unemployed. 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. Wednesday,...
    Question: I have an inquiry about the section that says:<br> Additionally, applicants graduating from an entry-level program accredited by the National League for Nursing Accreditation Commission (NLNAC) or the Commission on Collegiate Nursing Education (CCNE) are exempt from the English language proficiency-testing requirement.<br> If this is true then the program I graduated from is CCNE accredited. Is this included in the USCIS law if yes so that I check with the CGFNS how to proceed because in the visa screen section they don't mention being graduate of an accredited school as an exempt?
    Answer:

    For VisaScreen --

    Applicants educated in specific countries where English is both the native language and the language of classroom and textbook instruction (see below) are exempt from having to take an English language proficiency examination. For you to be exempt, you must meet BOTH of the following criteria:

    1. your country of entry-level education was in United Kingdom (England, Wales, Northern Ireland and Scotland), Australia, Canada (except for Quebec), New Zealand, Ireland or the United States, and

    2. the language of textbooks and verbal instruction of your education was English.

    Exemption is not automatic because you meet all the criteria, CGFNS/ICHP must review your educational documents to determine exemption. IF CGFNS/ICHP determines you are not exempt, you will receive a letter.

  11. Tuesday, 7...
    Question: My brother in law has got Green Card on November 2013 from Parents based. He will be getting engaged this year April 2017 in the USA with a girl who is Indian Citizen. She has B1/B2 visitor visa. So I have couple questions. If she comes to the USA and gets married here in the USA and my brother in law will fill petitioned for F2A category (on Green Card based) then will she face any issues in future while coming to the USA on B1/B2 visa?
    Answer:

    Watch the Video on this FAQ: Entering the USA on B-1/B-2 visa to get married

    Video Transcript

    It is a bad idea for a bunch of reasons. The better option would be where she can apply for an F-1 visa now, especially if she has been to the USA and gone back before. Her chances of getting an F-1 is good. If they have not been formally engaged then there is a question I think in the DS-160 during the student visa which asks: is your fiance is in the USA and I don't think if you are not engaged you can say yes to that question so I think she will be ok. Her chances of getting a student visa will be good because she has been to the USA before on a tourist visa. She must enter as a bona fide good faith student. She must want to go to school. After a semester or two, if they want to get married, I think that is ok. She can continue as a student while she waits out her GC category. That is the only smart scenario I see. 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.

  12. Friday, 3...
    Question: If new legislation proposed by Cotton and Purdue passes to remove the IR5 category (parents of USC), what happens to change of status (I-130/I-485) petitions in progress?
    Answer:

    Watch the video on this FAQ: Can pending immigration applications be affected by changes in the law?

    Video Transcript:

    Pending immigration applications will not be affected by changes in the law. Some of these things cannot be changed by executive order they can only be changed by Congress. The idea is you cannot change the rules of the game for those who are already in the game you can change them for people in the future. That's all the more reason for anybody who has not filed their green card or anybody who is waiting to file any application, including naturalization go ahead and file them all as soon as possible, but don't get worried about pending applications they should go through under the old laws. 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.

  13. Thursday, 2...
    Question: 1) Is it true H-4 EAD rule will be revoked by the government? <br> 2) My H-1B visa is going to expire in 14-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> a) If my PERM is not approved before my current H-1B visa expires. Can I change to H-4 EAD at that time?<br> b) If my PERM approved after change to H-4 EAD, Can I change back to H-1B?<br> c) Is it possible to convert from H-1 to H-4 EAD without taking a break in employment?<br> d) If my PERM gets approved after my current H-1B expires can my employer file for H-1B extension?<br> 3) I would like to move to H-4 EAD but I would like to come back to H-1B anytime in future, in that situation what is the best status for H-1B?<br> 4) If I apply for new H-1B is it comes under H-1 quota (After 6 years completes.)?
    Answer:

    Watch Video on this FAQ: Will H-4 EAD Rule be revoked?

    Video Transcript:

    1. I don't think it will be revoked.

    2a. Yes, you can if your spouse's I-140 is approved or she is in the 7th year of her extension.

    2b. Yes, you can change back to H-1B.

    2c. I cannot predict this question as it is a question of logistics. 

    2d. Most definitely.

    3. You can be in any status. If your right to activate or H-1B comes mature you can jump back to H-1B without any problem. 

    4. It does not.

    More...

  14. Thursday, 2...
    Question: I am a physician currently in H-1B undergoing 3 years of J-1 waiver program which is set to be completed on July end of this year. My husband got his greencard through E-B2 category (rest of the world) in early 2013 When I was still in J-1. My name was included in I-140 but could not file I-485 due to my J-1 visa. I have been married since 2006 and came to the US initially on H-4 visa before getting residency in J-1 visa. Is there a possibility of filing my I-485 directly without waiting for the long I-130 approval process? Or is there any exceptions for a situation like mine such that spouse happened to be in J1 and could not apply for a change of status at the time primary applicant applied for I-485?
    Answer:

    Watch Video on this FAQ: J-1 Physician applying for following to join after waiver

    Video Transcript:

    Yes, if you are in the USA in legal status and his priority date through which he got his green card is still current you should be able to file your I-485 directly. 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. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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...

  20. 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.



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