US Immigration Questions

  1. Monday, 18...
    Question:
    Answer:

    We got an approval for a L1 to H1 with an I-94 effective Oct 1, 2008. But the candidate got an admission for a one year full time MBA program which he wants to pursue and join us in August 2009. His MBA program is starting in September 2008. So, he will be applying for his F1 status soon.

    Qo1. What choices do we have to keep the H1 approval valid so that he can join us in August 2009 ?
    Ans1.  No problem. A few months (upto six months ahead) before August 2009, apply for Change of Status back to H- or a few days before he wants to join, have him go get an H-1 visa stamp.

    Qo2. Since he will be applying for L1 to F1 now, Will that automatically cancel the H1 I-94 (to be effective from Oct 1) or do we have to do something.
    Ans2.  In my view, nothing else needs to be done if changes status to F-1 now. Make sure he applies from L-1 to F-1 and attaches a copy of the H-1 approval also.

  2. Monday, 11...
    Question: Q1. How soon can I leave my petitioning employer once I get my green card approval? Q2. I did not willingly left the GC sponsor employer but actually after three months I got my GC, i got laid off from the project and due to the bad economy , my employer was not able to get me other project so he gave me letter saying that he wont be able to pay me salary since he doesnt have any project for me.And, after getting that letter I resigned from GC sponsor employer. Q3. I am employed at the XYZ University (XYZU). I applied for 485 myself (without attorney). My 485 was approved last month and I got my passport stamped in July. My contract with XYZU is coming to an end. My job is renewed every year based on the availability of funding. I have been with XYZU for the last 5 years. There is a possibility that they (XYZU) may not extend the contract because the research grant I got is coming to an end in september. Will my termination from the job at XYZU affect my Green Card in the future, and is it better to be terminated from service (based on unavailability of funding) by the WVU or is it better to offer my resignation?
    Answer:

    A1. There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits. Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary

    But REMEMBER, this is just my own guess. Technically speaking, the moment you decide that you will leave after a certain period of time, "permanent" intent is gone. Catch-22 eh? Well that is the way it is.

    There may be considerable relaxation in this interpretation because in the year 2001 Congress enacted a law that permits employees to leave an employer even while their I-485 is pending. We do not have the regulations or any detailed guidance on these issues.


    A2. There are no clear rules as we have stated above. But, In my opinion, there is no risk in this scenario. You acted in good faith to continue the job, but your employer could not continue to employ you.


    A3. I think it is better to be terminated. There are no clear rules as we have stated above. But, In my opinion, there is no risk in this scenario. You acted in good faith to continue the job, but your employer could not continue to employ you.

  3. Thursday,...
    Question:
    Answer:

    The attached PDF document contains information from DOL on PERM backlogs, program future and other pertinent matters. Enjoy. Regards to all. Rajiv.

  4. Wednesday,...
    Question: Should H-1 be renewed while the AOS is pending?
    Answer:

    Bottomline - I think H-1 should be renewed.

    A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

    One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

    Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get n H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

    While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

    All the above holds true, whether or not you intend to use AC21 portability.

  5. Monday, 14...
    Question: Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my FP done yet?
    Answer:

    As of July 2008, this is how the system works.

    First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

    When the Visa bulletin shows a category is current, the I-485 (AOS) can be filed in the month the PD is current. Once AOS is filed, if the PD stays current, CIS continues to process the case. They call you for FP, put you through security checks and if no further evidence or questions are raised – approve the case. Upon approval, they seek a Visa Number from the State Department. Once that visa number is received (by fax or electronically), they approve your AOS. Eventfully, your GC is produced and mailed to you.

    If the PD does not stay current, CIS puts he adjudication on hold till the PD is current again. When the PD is current, again AOS processing is resumed. This part makes no sense to me, but that is how, I believe they generally do it. Now, if you are fortunate enough to have already been assigned a visa number, your case may be approved even if the PD’s slide back again. But if your fingerprinting has not been done, you cannot get a green card approval.

    Do feel free to correct me if my understanding is incorrect.
     

  6. Monday, 14...
    Question: Rajiv, this month’s visa bulletin shows our category is current. What does this mean for people who have already applied for 485. Have AP and EAD. And now their dates are current again? Does it mean they will get a GC via mail? What if I haven’t had my FP done yet?
    Answer:

    As of July 2008, this is how the system works.

    First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

    When the Visa bulletin shows a category is current, the I-485 (AOS) can be filed in the month the PD is current. Once AOS is filed, if the PD stays current, CIS continues to process the case. They call you for FP, put you through security checks and if no further evidence or questions are raised – approve the case. Upon approval, they seek a Visa Number from the State Department. Once that visa number is received (by fax or electronically), they approve your AOS. Eventfully, your GC is produced and mailed to you.

    If the PD does not stay current, CIS puts the adjudication on hold till the PD is current again. When the PD is current, again AOS processing is resumed. This part makes no sense to me, but that is how, I believe they generally do it. Now, if you are fortunate enough to have already been assigned a visa number, your case may be approved even if the PD’s slide back again. But if your fingerprinting has not been done, you cannot get a green card approval.

    Do feel free to correct me if my understanding is incorrect.
     

  7. Sunday, 6...
    Question:
    Answer:

    I am trying to take an appointment for my wife to renew her H-4 visa since the dates are available right now. She came here on H4, switched in between to F-1 (change of status) but did not leave US, then got the new approval for change of status to H4 (after we filed for green card) and wants to get it stamped now. There is a bit of confusion on the DS-156 form that I have to fill out.

    Qo1. Question 30. Have you ever been Issued a US Visa - Yes, but for the second part it says When - Does this have to be the date when the first H4 was stamped or the date the second change of status H4 approval notification came through. My understanding is that is the visa date when it was stamped. Can you confirm?
    Ans1. The answer requires response only to the issuance of a visa – the stamp given by the US consulate. It does not refer to change of status. In your wife’s case, she came to US on H-4 visa. That is what they are asking about. The fact the she later changed to F-1 and then back to H-4 status (but no other visas were obtained) is irrelevant.

    Qo2. Also in the additional visa issuances section do we need to mention the change of status to F-1/H4 information (I would presume no since these were not visa stampings but change of status). Can you confirm?
    Ans2. Change of status is not a visa.

    Qo3. Question 36: Has Anyone Ever Filed an Immigrant Visa Petition on Your Behalf ? Yes since my wife's name was on the I-140 as per your previous post. For the Part where it says by ‘Who’ what should she enter - Spouses Company Name or Spouses name.
    Ans3. I would answer your name.

  8. Sunday, 6...
    Question: If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master's degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?
    Answer:

    The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.

    Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.

  9. Thursday,...
    Question: I have applied for 485 as the primary applicant and my wife is the secondary applicant. Right now both of us are on H1 visa. We had applied for EAD and AP and intend to apply for renewal soon as we near 120 days. I am on my 7th year of H1 and my wife is on 2nd year of H1 and 3 year of (H1 and H4 combine). Her current H1 expires on April 2010. I intend to remain on H1 itself and have no intentions of using my EAD. Can you please clarify these questions.
    Answer:

    Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
    Ans. That should be fine.

    Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
    Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

     

    Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another another employer? This employer is not willing to transfer H1.
    Ans. That should be fine.

    Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
    Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

    Qo3. From what I have read on forclients.com if she joins on EAD now she can come back later on H1 but will have to travel out of the country and get her H1 stamping done. Is this right(just confirming it)?
    Ans3. Correct.

    Qo4. When she comes back on H1 she will be using the current H1 itself? It will not be a new H1 and we will not have any issues of new H1 quota right?
    Ans4. Correct.

    Qo5. If she decides to come back to H1 should it be before April 2010(when current H1 expires) or it can be after that also?
    Ans5. Any time.

    Qo6. What happens if her current employer reinvokes her H1 after she quits them. Can she still come back on H1?
    Ans6. When she leaves, they should revoke her H-1. If she wishes to rejoin them, they can reapply the H-1.
     

  10. Monday, 23...
    Question: My friend lost his job on Friday when he was working on EAD (this is not the employer who has applied for GC). His i-140 was approved last year in May. He is looking for new job which would take couple of weeks. I have following question for the situation:
    Answer:

    Q1. Is there any limit or restriction for number of days without work between changing job?
    Ans. No. I do not believe a few weeks should make a difference.

    Q2. Will this impact his GC process?
    Ans. Not as long as he is eligible for AC21 portability.

  11. Thursday,...
    Question: Can a PERM case be filed through a company that is owned or controlled by a relative of the beneficiary?
    Answer:

    The answer is yes, BUT, the case is likely to be very closely scrutinized and may even require supervised recruitment. That means, USDOL will most likely ask us to place advertisements again under their direct supervision. So, we could end up repeating the advertising. This could cause delays (and of course even denial).
    This question had come up a few weeks earlier also. I wanted to clarify this with the USDOL so we wrote to them. Our letter and their response is attached.

  12. Thursday,...
    Question:
    Answer:

    Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
    Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.
    Technically, as I see the law, if CIS denies the AOS, they can also revoke the H-1 given beyond six years. As a practical matter, they do not. So, even after denial, you should be able to stay in USA to the end of the already granted H-1. You can start a new PERM application and eventually, get H-1 extensions based upon that.
    Also, just because AOS is denied, may not mean the CP is not an option. Depending upon the facts of the case, consular processing for green card may still be an option.

    Qo. So, would it not be better that a person who applies for AOS should NOT insist on maintaining H1 because he will use up the six years sooner. He should use Advance Parole and EAD to stop the H1 clock because H1 will give him/her more options ONLY IF six years are not up. Your thoughts?
    Ans. That may be a good option if there is over one year left on the original H-1 AND the beneficiary is not entitled to three-year H-1 extensions. I get very nervous when your entire work options are based upon an EAD whose renewal time is left in the hands of CIS.

    Qo. In your practice, have you encountered similar scenario where I-485 was denied but H1 was not canceled?
    Ans. Yes. Several times.

    Qo. I was given a three year H1 extension in my 8th year on H1 based on pending I-485 application and approved I-140. Please note that at the time of requesting H1 extension, my employer requested 3 year extension which I thought I wasn't eligible for as visa dates had not retrogressed for my category so I should have been given one year extension.
    My three year H1 extension is valid until 2011(8th, 9th, 10th year on H1), in case of AOS denial in the 8 th year, do I have two more years to sort it out?
    The maximum time one can stay in H status is 6 year unless the AOS is pending. If AOS is denied and CIS DOES NOT cancel H1 with AOS denial, does such a person start to accrue unlawful presence in US?
    Ans. If you have been given an extension mistakenly, that can be taken away and you can have other issues as well. And, I don’t want to us to digress into unlawful presence. That is a whole new topic.

  13. Tuesday, 17...
    Question:
    Answer:

    This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.

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