US Immigration Questions

  1. Wednesday,...
    Question: Will there be any issue with my I-485 approval? If it gets denied, will my unlawful presence/out of status be counted from the time my I-94 expired? What should be my next steps?
    Answer:

    Audio FAQ: Protection of section 245 (K) for employment-based I-485

    Audio Transcript

    1. 245(k) says if you are an employment based applicant or spouse or child of an employment based applicant we will forgive you up to 180 days of being out of status or on authorized employment since the date of your last entry. Any period accumulated before last entry we can disregard. We only count from the date of the last entry. Hence it is a very strong permission to help you file I-485.

    2. 245(k) is automatically given. The government actually applies for it themselves. You don't have to do anything special for it.

    3. When you are in between statuses: H-1B extension pending or old I-94 expired you are not in status enough to apply for this kind of status. But if your status expired less than 180 days ago because of section 245(k) you can file Adjustment of Status. 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, 25...
    Question: I wanted to understand how Child Status Protection Act (CSPA) works in the case of employment based green card (EB-2) of the parent. My priority date is of 2012 under EB2, I-140 approved. Can CSPA be used to calculate child age when my EB2 priority date becomes current? Wondering what options I have when priority date becomes current and child age is 21+
    Answer:

    Audio FAQ On: Child Status Protection Act in employment-based petitions

    Audio Transcript

    Child Status Protection Act (CSPA),  in employment-based petitions will allow you to take advantage of the time your I-140 is pending. So if your I-140 was pending for 8 months your child can file I-485 with you if the dates become current until 21 years, plus 8 months. Hence whatever time your I-140 was pending that time becomes an additional grace period for the child to file I-485 with you. The only advantage you will get is the dependency of the I-140. Other than that, there is no advantage. 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, 25...
    Question: If I change my employer, given the recent changes to I-140 rules for revocation/withdrawal, can my H1-B be extended again for 3 years, with me providing only the LIN number (which can be verified for an approved I-140 on the USCIS website) towards H1-B transfer to my new employer? Do I strictly need to provide the I-140 approval notice to extend/transfer my H1-B to a new employer?
    Answer:

    Audio FAQ On: Is a copy of I-140 approval required to extend H-1 B?

    Audio Transcript

    As long as the I-140 was not revoked before 180 days were over and it was good until January 17 you are fine. There is no need to provide the I-140 approval notice. 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. Monday, 24...
    Question: My Project with My Client will end soon and my employer doesn't have any further projects and asking me to go back to my home country (India) by end of this month. My Visa is valid till Aug 2017 with extension filed. So I am considering to resign on last day of the assignment. ( no new employer found yet).<br> 1) as per new Rule would I be getting the grace period till my I 94 expires i.e till Aug 2017? Is this correct? ( 60 days grace period rule) Also during this Grace period Can I apply for a Change of Status to another non immigrant Visa - F1? (change to a different nonimmigrant classification.) if yes and F1 filed after termination of employment, will this not be considered as timely filed which can result in problems in the future?<br> 2) if F1 is filed Should I start my classes before I94 expiry date or can I Start in September or should I wait till F1 is approved ( after 90 days from date of filing F1)?
    Answer:

    Audio FAQ: 60 days grace period for H-1B

    Audio Transcript

    1. Let's say your I-94 was not expiring for five or six months no doubt you could lay claim on the 60 day grace period and get another extension or change of status filed during that time. If you do anything during that 60 day period unless the grace period is denied for any other violation of status you are considered to be applying within the status.

    2. As long as the difference between the last day of the 60 days and the period your F-1 begins is not more than 30 days you should be ok. 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. Wednesday,...
    Question: Recently I got Consular visa, that my I-797 was approved without I-94 so I need to step out of the country to get H-1B visa stamped. Got laid off from EMP A and took around 55 days for EMP B to file h-1 and now I’m with EMP C. Both I-797's from EMP B and EMP C, I got consular visa to step out for visa stamping.<br> 1. Usually, how much time I have to step out of US for stamping, if I go little after 3-4 weeks what’s the valid reason that I can give to Visa officer at interview time.<br> 2. How can I justify myself about the 55days of gap I have from EMP A to EMP B ( during the time I do not have H-1B status), my attorney suggested that I need to tell VO that “I was looking for a Job and my employer took time to file for H-1B “. I’m not sure whether I can say this. Can you suggest a valid reason to give VO.<br> 3. MY GC Perm Labor has approved and EMP C has applied for I-140 recently and it's still in processing status, during this situation If I get a full-time opportunity can I move with a new employer? OR I have to stay with current one until I get I-140 approved and then transfer with a new employer.
    Answer:

    Watch Video on this FAQ: Applying for H-1B visa when there was a status violation


    Video Transcript

    1. Go as quickly as you can. It isn't an emergency, but it is something you should not take lightly.

    2. It is not an issue. Even if you had a 179-day gap it is not at a ground of denial for a visa. Just make sure you reveal it. If they ask you if you were out of status which is a part of the form you will say yes. Be truthful.

    3. When you want to move and a case is pending unless the pending case is decided you have to go outside for visa stamping. 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.

  6. Friday, 14...
    Question: I have a question regarding the 6-year stay on H1B if someone was in the US on L1B & later H1B. When does the clock gets reset, does it has to be 1-year stay out of USA at the time of H1B application filing OR 1 year stay out of USA between exit & re-entry in the USA?
    Answer:

    Watch Video on this FAQ: How to Reset H-1 Six Years

    Video Transcript

    You have to be physically outside the USA for at least one full year. If you visit the USA during that time that is if you are here for ten days you've got to stay outside for ten extra days. If you are here too long, for eg: if in that one year you are here for seven months you might have to start the one year all over again.  

    Therefore:

    1. you have to be physically outside the USA.

    2. if you visit you must keep your visit short but then add in that time to the back end of your H-1 stay outside the USA.

    3. don't be here too long. 

    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. Friday, 14...
    Question: I got H1B approval from company 'A' till Oct 2015, filed H1B extension in May 2015. As there were no updates, changed extension regular case to premium and got RFE in 2016.Before responding to RFE got to know that company 'A' has some issues and no one was responding from company 'A'. So before 240 days completion of I-94 got visa transfer with company 'B' in a premium process. Now my H1b is in security check with company B. My Both H1b cases/receipts are still in pending status. I applied for H4 visa now within the USA and if any of my H1B cases get declined. Can I stay on my H4 visa receipt?
    Answer:

    Watch Video on this FAQ: Applying for H-4 status while H-1 is pending

    Video Transcript

    Looks like you are basically in an authorized period of stay because your approval was only good till October 2015. They will not give it to you. You are better off going outside the USA for visa stamping. You should have your H-1 lawyers call the U.S. attorney's office and see if they can talk with the prosecuting attorney and get some kind of a letter or an email from them that that would make your approval possible because you have not committed anything wrong. You just happen to be caught in a case which is either being investigated or prosecuted. If it is being investigated there isn't much you can do, but if it is already being prosecuted and it's already in court you might be able to get around this problem because even if you go for H-4 visa stamping if there is a red flag on you, you might have trouble getting H-4 visa stamping. 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. Wednesday,...
    Question: On 10-Mar-2017 I completed my 5th year on H-1B visa. I changed my job and joined my current employer on 01-Feb-2017 (after receiving the H-1B receipt number) while my H1B petition was being processed at USCIS.In the meantime, my employer filed my GC PERM application on 01-Mar-2017 while my H1B was still in process at USCIS.I got a RFE on my H1B application and while responding to the RFE my employer requested for 2 years of H-1B visa instead of 1 year i.e. 1 year for the 6th year on H1B and another year extension as my PERM application was filed and pending.
    Answer:

    Watch Video on this FAQ: Effect of revocation of PERM on an already approved H-1 extension

    Video Transcript

    Once they give you an H-1 extension, if later on the PERM is revoked, which was the basis for the extension they will not take away your H-1 extension. So, supposing the date I filed my H-1 and the date my application was decided, my PERM was the basis for my H-1 extension, once the extension is given the PERM goes away and I should be able to keep my H-1. 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. Wednesday,...
    Question: I am a US GC holder and planning to get married to a bride in India. If I get married to a bride in India, can she get a tourist visa.? (Bride is a Software engineer working in India.)My idea is that after marriage, my wife enters the US under Tourist and stay for 6 months and then go to Canada and renter the US and stay in the US with me for next 6 months for a total of a 1 year.
    Answer:

    Watch Video on this FAQ: The best methods for spouse of a green card holder to enter the USA

    Video Transcript

    As there is a gap between when you apply and when they can actually get some kind of a legal status it can be several years, so it becomes problematic for spouses of green card holders to stay outside the USA for that long. One option would be, if you in the interim become eligible for citizenship you can then upgrade the pending case of the spouse of a US citizen from the spouse of a green card holder. The other option is to get into a situation like H-1 or L-1 where a pending green card application doesn't matter. Even O-1 or E-1, E-2, E-3 visas. A tourist visa, student visa or a J visa would be a difficult option while a green card is going on, but not impossible. It is quite difficult to get those visas because they require nonimmigrant intent. 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. Tuesday, 11...
    Question: In 2014, My wife was working with employer "A" on L2 EAD and the employer "A" filed H1B petition in April-2014. She got approval notice in May-2014 but due to some family reasons we have to go back to India and she continues working for the same employer from India since then. Her approved H1B petition with the same employer "A" is valid till Aug-2017 and H1B visa is stamped in Dec-2016 for the same employer "A". She never traveled to the USA on that H1B visa as her employer does not have any opportunity there. Since she never traveled to the USA on her H1B visa ever, does that mean she has never granted status as an H1B Non-immigrant?
    Answer:

    Watch the Video on this FAQ: Exemption from H-1 quota, Visa stamped, did not join employer

    Video Transcript

    I personally feel once your case is approved on October 1st, you should be exempt from the quota. If you are outside the USA and you do not get a visa stamp, the government takes the position that you are not yet exempted from the H-1 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.

  11. Friday, 7...
    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 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.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.

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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.

  20. 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. 


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