US Immigration Questions

  1. Thursday,...
    Question:
    Answer:

    1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

    Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

    2. For an exempt employee, where are not agreeing for Recruitment Efforts, Displacement and Secondary Displacement conditions, is it compulsory to do the Job Posting at the place of work ? How will be the approach of DOL at the time of auditing the LCA of an exempt employee, as we are maintaining the list of exempt employees as per DOL regulation in the public access file? Can we expect any kind of relaxation regarding the doing of job posting at the place of work, which is not always practical for the IT consulting companies? Nowadays we are listening to the stories, where the Officers from the Service Centers, Port of Entries and Consulates are questioning the employers or their clients regarding the recruitment efforts that were made in the case of exempt workers also. Then what is the use of hiring exempt employees?

    Ans. You are not required to show recruitment or non-displacement for exempt employees, but there is no exemption from posting. Your notices MUST be posted at the work site.

    3. In some cases, for the H1B employee who is entering into US for the first time, SSN is being issued after one month. Is it compulsory to put the new H1B employee on pay roll from the very next day he got admitted on H1B, by asking him to fill up the I-9 form before he gets SSN? Or Can we ask the new H1B employee to come and report after obtaining SSN? Is there any allowable waiting for the new H1B employee to report for his work after he got admitted into USA on H1B visa? If the new H1B employee enters into USA without informing the employer and starts living in the USA and the H1B employer comes to know about the H1B beneficiary’s stay in USA after some time, what kind of action the H1B employer has to take in this kind of scenario?

    Ans. An employee can start work even without the SSN. You are REQUIRED to start the payroll upon the earlier of the following two conditions:
    A. When the employee reports for the job; or
    B. No later than 30 days for employees coming from outside USA or 60 days for employees in USA. The days begin to be counted from the date of the H-1 approval.
    For "uninvited" employees, the better practice is to withdraw the H-1 immediately and document the fact that the employee did not report for the job. This document can be a detailed statement of an employee, such as HR, about the facts of the case with times and dates. Place the original of the statement (preferably notarized) in the employee's file.

    4. After taking the new LCA for the new work location, is it compulsory to file the Amended I-129 petition? If not, in what circumstances we need to file the amended I-129 petition compulsorily?

    Ans. An H-1 must be amended if the job location is changed to a place beyond normal commuting distance from the approved location.

     

     

     

     

  2. Monday, 16...
    Question: One of our clients (I think I have worked with these folks for over a decade) had these questions:
    Answer:

    Quote:  A member of our family was issued a Green Card in November 1980. The green card did not have any renewal date (see enclosed). I assume Green Cards at that time did not have a renewal date. Does this need to be renewed?

    Ans: Replace the green card. See:
    http://www.uscis.gov/files/form/i-90instr.pdf

    Quote: The child is an autistic and her parents have not applied for a US citizenship for her. Can she apply for citizenship? Passing a citizenship exam might be a challenge for her though.

    Ans: The law on disability is:

    Disability — If you have a physical or developmental disability or a mental impairment so severe that it prevents you from acquiring or demonstrating the required knowledge of English and civics, you may be eligible for an exception to these requirements. To request an exception, you must file a “Medical Certification for Disability Exceptions” (Form N-648). If you believe you qualify, contact a licensed medical or osteopathic doctor or licensed clinical psychologist who will need to complete and sign your Form N-648. To apply for a disability exception, your disability:
    • Must be at least 1 year old (or be expected to last 1 year); and
    • Must not have been caused by illegal drug use.
    If you qualify for this exception, an interpreter, who is proficient in English and the language of your choice, must accompany you to the interview

  3. Friday, 13...
    Question: 1. I am contemplating switching from H-1B status (in Year 4) to an L2 status (wife holds L1B status) and then applying for EAD. After I receive the EAD (receipt of application sufficient for starting work?), (1) am I allowed to hold on to my current H-1B status or does it automatically lapse upon conversion to L2? 2. Can I hold a CAP-EXEMPT H-1B with an academic institution/ think-tank etc CONCURRENTLY with the L2, (3) work as an independent contractor (1099)? 3. Does EAD allow one to be do multiple things as a free-lance professional?
    Answer:

    1.  Ans. It lapses upon change of status from the date the status is changed.

    2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

    3. Ans. Yes.

  4. Wednesday,...
    Question: 1. Hi Rajiv I have a few questions about starting business in partnership. I am currently on H-1B , my I-140 is cleared and priority date is not current. My wife is on H-4 visa and she is interested in starting her own business with some one who has I-485 pending and has EAD. I will be the one who will be investing in this business but I won't be employed with that business. - Is this legal ? 2. Can you be a passive investor on H-1?
    Answer:

    1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

    You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

    2. I think that should be fine. But passive means performing no work. Think of it as investing in IBM on the stock market. Just because you purchase a few shares, you do not get a seat at the Board of Directors of IBM. That is passive investing.

  5. Wednesday,...
    Question:
    Answer:

    The following pointers have emerged from recent cases and comments from USCIS:

    1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.

    2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.

    3. Emphasize/document the "international" nature of your accomplishments.

    Note: These comments have no application to physicians filing NIW through under served areas.

  6. Tuesday, 10...
    Question: For past 7 years I work for company ‘A’ on their H1B visa (EB3). I had a I-140 cleared in 1998 from my previous company ‘B’ under EB2. Company ‘B’ filed for my I-485 in 2004 and I finally got my green card.
    Answer:

    Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
    2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
    3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
    or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.
    4) If I inform company ‘A’ now about the green card, is there any legal basis for company ‘A’ to take any action on me and terminate me?
    6) If I am impacted in any way, will my spouse and daughter loose their green card status.

    Ans. Your basic question revolves around one issue. "Am I obliged to join my sponsoring employer after GC approval?"

    This is a tough question to answer with so many shades of gray that I am venturing into conjecture rather than well-founded legal opinion. But I must try, because this situation does come up a lot.

    First, we all the know GC is for a future position but you must have an honest intent ("good faith") to join the employer and they to hire you.

    Quote: Practical hint 1. Document as best as you can that you had a good faith intent to join the employer and they to hire you, but due to the economy or whatever other reason they do not have a job for you. You can get a letter from the employer and some evidence that shows they have lost business and have had employee lay offs. You are also not obliged to take a pay cut over the labor cert salary or join in a location other that that mentioned in the labor cert.

    Ans. Second, in my opinion, if you will join them, you should do so within a reasonable period. There is no definition of that either. May be a few months delay is justifiable.

    Quote: Practical hint 2. If the job you are doing now and the job under the GC are same or similar, make sure you document that. Keep copies of your labor cert and of your current job description. This gives an additional argument to protect your GC under AC21.

    Ans. The reason I am asking you to document all this is that when you apply for naturalization, these issues may and often do come up. I am thinking of the defense you will need 5 years from now and if we end up taking the govt. to court, we can have good chances of success.

    Company A should have no reason to let you go but you should update your I-9 now. If your GC is revoked so will that of your family.

  7. Tuesday, 10...
    Question: I have attained Canadian Citizenship but a born Indian citizen, when I am applying for 485 which priority dates do I need to consider, General or India. I do not have Indian passport.
    Answer:

    Still, India. Your chargeability follows the place of birth, not your citizenship.

  8. Monday, 9...
    Question:
    Answer:

    1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.

    Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.

    2. Is it OK to give advances - besides paying LCA wages while the person in on project and then during the project break, run the payroll for LCA wages but recover the advances (post-tax obviously) and pay only balances if any?

    Ans. In my view, this is illegal for many reasons.

    3. Is it OK to pay all our consulting employees a wage of 60K or the LCA wage whichever is higher, irrespective of the skill set - by making this a standard wage policy in the company.

    Ans. As long as you are following the wage guidelines and paying according to the seniority level of the job, I see no issue with this arrangement. But you cannot pay level, 1, 2, 3, and 4 employees $60,000. The wage must be paid according to the job they perform.

    4. Further, is it OK to give discretionary bonuses above these levels to employees that the management considers are more valuable to the company?

    Ans. As long as you can objectively justify the salary variance, I see no issues with this.

  9. Friday, 6...
    Question: What does the stimulus Bill (American Recovery and Reinvestment Act of 2009) say about H-1 hiring and about green cards?
    Answer:

    There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

    1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

    2. These requirements are already in place for employers whose workforce contains a substantial number of H-1 workers. These employers are referred to as H-1B DEPENDENT employers.

    3. The additional requirements that TARP accepting companies have to follow are:
    a. They must not displace U.S. workers in similar positions nor may they place H-1B employees at places where such displacement has or will occur (I can give more details to those who wish to know more. Feel free to send me an email through the contact form on http://www.Immigration.Com).
    b. They must have made good faith efforts to recruit US workers (there is a whole bunch of regulations on how we are supposed to do this. Again, feel free to send me an email through the contact form on http://www.Immigration.Com)
    c. TARP employers are bound by these requirements even if they hire exempt workers. An exempt worker is one who makes at least $60,000/year OR possesses a Master’s or higher degree in his/her filed. Normally the additional requirements of non-displacement and good faith recruitment do NOT apply with respect to exempt H-1B workers. Nevertheless, the Bill says, this exemption is not available for TARP recipients.
    4. This restriction on hiring H-1B workers will stay in effect for two years after the President signs the Bill.
    5. There appears to be no change regarding L-1 provisions.

    For those, who would like to read more on the laws, read section 1611 of referred to as “Employ American Workers Act.” This section refers to 8 USC 1182(n)(3). The full text of the American Recovery and Reinvestment Act of 2009 which I referred to is at http://www.house.gov/billtext/hr1_legtext_cr.pdf

    Regards to all. Rajiv.

    6 March 2009

    CIS has clarified that extensions of existing H-1 are not restricted by the new laws. 

  10. Friday, 6...
    Question:
    Answer:

    When filing for H-1, it often becomes an issue as to what is acceptable evidence that a foreign employee has completed their degree requirements.

    USCIS has stated:
     

    Quote: We will accept the following so long as the degree requirements were completed prior to filing:

    A final transcript; OR

    A letter from the Registrar; OR

    A letter executed by the person in charge of the records of the educational
    institution where the degree was awarded.

    If the third option is utilized, then that person must show that they are authorized to issue such letters.

  11. Tuesday, 3...
    Question:
    Answer:

    I am sharing with you a response to a frequently asked question about adopting a child from India. Our inquirer also wanted to know if she could adopt her niece. Here is the info:

    Adoptions of children from India to the US are covered under the Hague Convention on Inter-country Adoption. Adoptions of relatives are permitted under the Hague Convention so long as the adoption proceeds in the same manner as other Convention adoptions. Significantly, the relative child must still meet the definition of a "Convention Adoptee". Please see the following US State Dept. Website for more details: http://adoption.state.gov/about/who/relatives.html. In addition to other applicable requirements, all of the following Hague requirements must be true for a child to be eligible for the "Convention Adoptee" classification:

    1. The child is under the age of 16 at the time the I-800 petition is filed (with the USCIS) on his or her behalf, is unmarried, and lives in a Convention country (India is a Convention Country); But note, unless there are exceptional circumstances, India only permits relative adoptions for children under the age of six. This may be problematic for you and should be clearly discussed with your State Dept Approved Agency before proceeding.

    2. The child will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, habitually resident in the United States, whom USCIS has found suitable and eligible to adopt (Form I-800A approval) with the intent of creating a legal parent-child relationship. Note that at this stage the child must not have been adopted yet. However, India makes the following additional requirements: Prospective adoptive parents can’t be less than 30 or more than 55 years of age. Married couples must have a combined age of 90 or less. Prospective adoptive parents should be at least 21 years older than the child. Single parents up to the age of 45 can adopt.

    3. The child's birth parents (or parent if the child has a sole or surviving parent), or other legal custodian, individuals, or entities whose consent is necessary for adoption, freely gave their written irrevocable consent to the termination of their legal relationship with the child and to the child's immigration and adoption;

    4. If the child has two living birth-parents who were the last legal custodian who signed the irrevocable consent to adoption, they are determined to be incapable of providing proper care for the child; and

    5. The child has been adopted or will be adopted in the United States or in the Convention country in accordance with the rules and procedures elaborated in the Hague Adoption Convention and the IAA, including that proper accredited adoption service providers were used where required, and there is no indication of improper inducement, fraud, misrepresentation, or prohibited contact associated with the case.

    Please note for adopting a relative, item #3 is critical. However, even if the surviving parent provides the written consent of relinquishment, the Indian Government has the right to deny this case based on the sole parent's income, occupation, and reasons for relinquishment. Please see the following Indian Government site which provides guidelines for adoptions of relatives abroad:
    http://www.adoptionindia.nic.in/guidelinefamily.htm. If the surviving parent's income, occupation or reason for relinquishment bar classifying the child as a Convention Adoptee, then there is one more possibility. If the child has resided with the United States citizen in legal custody for at least two years, then the U.S. citizen may also file an immigrant visa petition for the child.

    If you choose to proceed with the adoption, our firm would work on the immigration petitions (I-800, I-800a) and the State Dept approved agency would be in contact with the Indian Government to arrange for adoption (or legal guardianship) in India of your niece as required by the Hague Convention.

  12. Friday, 27...
    Question:
    Answer:

    The news item and related documents are available here:
    http://www.immigration.com/newslette...prmprocss.html

    Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
    1. Your are currently on H-1;
    2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

    The news item and related documents are available here:
    http://www.immigration.com/newslette...prmprocss.html

    Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
    1. Your are currently on H-1;
    2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and
    3. You are not eligible to receive 1-year H-1 extensions because your labor certification was filed less than one year ago.

    FAQ

    Question 1
    Can we file I-140 PP if:
    A) The applicant is in 7th, 8th or 9th year extension? If yes, do we have to wait until 60 days before the current year expires or can we file at any time?
    Answer No. Because you fail the 3rd condition. You ARE entitled to receive one-year extensions of H-1.

    B) The 6th year has already expired because there was no way to extend H1 at that time and the I-140/I-485 are currently pending? Applicant is on I-485 Pending status.
    Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

    C) If the 6th year already expired and the applicant transferred to another non-immigrant status (for example, F-1) because could not extend H1?
    Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

    See attached copy of the letter sent to CIS.

    Addendum 02/27/09
    In February 2009, CIS expanded the premium processing to include those people who are not in H-1 status currently or are out of the US. Rest of the requirements are the same. Typical of their style, the public notice was confusing and singularly useless in providing accurate guidance. Note that we had pointed out this problem to USCIS back in June 2008. See attached letter. It took them only 8 months to (partly) fix it.
     

  13. Friday, 27...
    Question:
    Answer:

    The news item and related documents are available here:
    http://www.immigration.com/newslette...prmprocss.html

    Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
    1. Your are currently on H-1;
    2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and
    3. You are not eligible to receive 1-year H-1 extensions because your labor certification was filed less than one year ago.

    FAQ

    Question 1
    Can we file I-140 PP if:
    A) The applicant is in 7th, 8th or 9th year extension? If yes, do we have to wait until 60 days before the current year expires or can we file at any time?
    Answer No. Because you fail the 3rd condition. You ARE entitled to receive one-year extensions of H-1.

    B) The 6th year has already expired because there was no way to extend H1 at that time and the I-140/I-485 are currently pending? Applicant is on I-485 Pending status.
    Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

    C) If the 6th year already expired and the applicant transferred to another non-immigrant status (for example, F-1) because could not extend H1?
    Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

    See attached copy of the letter sent to CIS.

    Addendum 02/27/09
    In February 2009, CIS expanded the premium processing to include those people who are not in H-1 status currently or are out of the US. Rest of the requirements are the same. Typical of their style, the public notice was confusing and singularly useless in providing accurate guidance. Note that we had pointed out this problem to USCIS back in June 2008. See attached letter. It took them only 8 months to (partly) fix it.
     

  14. Friday, 27...
    Question: My question is that i have just entered USA on B1 /B2 visa on February 21 and sir now I am planning to stay here in USA...I am planning to carry on my further studies in Bridgeport university my arrival is for 3 months and I want to complete this procedure as soon as possible because I don't want to take the law in my hands
    Answer:

    While it is permissible to change from one status to another from within U.S., it may not always be advisable.

    Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

    While it is permissible to change from one status to another from within U.S., it may not always be advisable.

    Typically, when someone enters the U.S., supposedly for a short visit (e.g. B-1 or B-2) and then tries to change it to a longer term visa (F-1, L-1, H-1, etc.), USCIS often frowns upon it (and may not grant it), but the consulates invariably frown upon it. My recommendation in most of these cases is to avoid this type of change. If you have already obtained the change, it may be very difficult to procure a visa whenever you need to travel abroad.

    In April 2002, INS changed its regulations regarding B to F-1 or M-1 (students) status conversions for people who enter USA from then on. INS maintains that B to F-1/M -1conversions from within USA will be permitted only if at the time of entering the USA (for instance at the airport) the applicant expressly declares to INS his/her intent to change to F-1/M-1 status. AS A PRACTICAL MATTER, HOWEVER, CIS seems to have often given changes from B to F status ignoring its own regulations. But in these cases also, the visa problem from consulates will remain.

    The better thing to do is to go back to your home country and try for a visa there. Chances of getting a second visa are better if you have done nothing to violate the terms of an earlier visa.

     

  15. Monday, 23...
    Question: I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?
    Answer:

    There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

    One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

  16. Sunday, 22...
    Question:
    Answer:

    Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

    a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

    b) We are having difficulty finding project for one of our h1b worker. As a small firm, we are unable to run a payroll while the candidate is on bench (so to speak). Should we need to withdraw the petition and send the candidate back home? or is it ok to accept a leave of absence from the candidate? She has a EAD also (as her husband has filled I485 in Nov 2007)

    Travel on H-1
    The rules on travel while on H-1 are fairly complex. Let me state the basic law.

    If the employee moves to an area beyond normal commuting distance for the approved location (stated in their approved H-1 and LCA), and you do not have another valid LCA for that location, you MUST amend the H-1.

    If the relocation is in the same area, you MUST file a new LCA and post the notice at two places in the new job site. You do NOT need to amend the H-1.

    There are a whole set of rules about exceptions for employees who are required to habitually travel (peripatetic employees), short term travel and travel for attending seminars etc. If you folks need more of that I will edit this article further when I get a few minutes.

    Leave of Absence on H-1
    Regs do permit leave of absence if an employee genuinely needs it. But you must not use LOA as a pretext to bench employees. In my view, you must withdraw the H-1.

    FAQ
     

    Quote: I have a question regarding the h1b candidates who left our firm almost 2 years ago(there are two case). We didn't send the withdrawal form (as we weren't familiar with the case). If we send a withdrawal notice now (stating that they resigned in the 2006 or 2007) will there be any implications for us? Appreciate your help.

    I do not believe we have a choice. You MUST inform USCIS. In my view, the fact that we are stepping forward to correct problems voluntarily is in fact helpful to us.

    By the way, I think I am scheduled to do an employer-only phone seminar answering and discussing all compliance issues this Thursday at 2 PM. This may be more for our existing clients. But go ahead and send an email though the "contact us" form on our home page. Send email from your corporate account. We are not opening the seminar for anyone but employers. There is no charge, fo course.

  17. Sunday, 22...
    Question: My father is on an H1 b visa and his employer has filled for his green card Me and my Family are on H 4 but i am about to be 21 and thus my h4 visa cannot be renewed.I-140 of all the members of the family has been cleared but we cannot yet file I 485 as the priority date is not near. Do I have to convert my visa status into F 1 so that i can live and study here? Is there anyway that i can file for my green card as when i filled my papers i was not 21 and it is because the file is pending i cant put forth my 485 papers. Is there any chance that under special cases like mine we can get my papers filled as I am about to transfer to a University and it is very hard for me to afford to pay the fees as an International student when my papers are so close to green card.
    Answer:

     I do not see any way around filing an F-1.

  18. Sunday, 22...
    Question: Form I-90 Green Card was lost. Instead of checking Part 2, 2a, I checked Part 2, 2f. Submitted online and paid with credit card. The instructions state the following: "If it is necessary t o change any information on your submitted I-90 application, please bring evidence to support the change with you to your biometrics appointment. DO NOT send written correspondence regarding changes to the address below." At the biometrics appointment, can the interested party state the above mistake and solve this situation? Or will the USCIS denie the application? And another filing fee will have to be paid?
    Answer:

    You should certainly point this out at the biometrics appt. You should also call the CIS customer service number and explain the problem. In addition, you should contact your Congressman. Let them contact CIS and help you correct this issue.

  19. Sunday, 22...
    Question: What if an employer is indicted on multiple counts and he is cleared of all other charges but he pleads to a conspiracy charge with home detention for a few months as his punishment. How does this effect pending cases at his business?
    Answer:

    That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

  20. Sunday, 22...
    Question:
    Answer:

    1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
    Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

    Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.

    2. How to leverage the I-140 to get H-1 extensions?

    Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.

    3. Is an approved I-140 ground for an automatic denial of J visa?

    Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.

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