US Immigration Questions

  1. Wednesday,...
    Question: My sister's F4 application was approved 1997 and she is due to go for her interview any day. My question is - I was recently made aware that although at the time the application was made and approved her 2 kids were under 21, but now 12yrs later they are both over 21. What is the next step to take. I was told she has to petition them once she is in US and the priority date will be from 1997. Is that true? How does that work?
    Answer:

    Child Status Protection Act http://www.immigration.com/greencard/409/child-status-protection-act-cspa
    Contact the consulate for their assessment.

  2. Wednesday,...
    Question: I am graduate B.A and I am married having one daughter of 2.8 yrs old . I want to to work in u.s.a -I can do any type of work . I want to immigrate with my family ( me ,my wife and my daughter ) .Till today I was doing import business from china from 2004 and visiting every month to china from 2004 to china for buying of goods from there and then selling it in india but due to some little bit loss i will have to stop my business . I have everything viz income tax dox , balance sheets etc. Sir now i want to immigrate to u.s.a and want to do job -any type .
    Answer:

    The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!

  3. Wednesday,...
    Question: My father in law is a US citizen.He went to India in january 2009.There one of his relative register a false case against him and the Punjab police took away his passport from him.Then the case started in the court.His passport is in the hands of police till now.The judge is just giving him dates.how can he get his passport back? He is still in India.
    Answer:

    I checked with Rajiv.  He said that a passport is ultimately the property of the issuing government.  Punjab police will probably not be able to hold the passport beyond a certain time.  We do not practice laws of India (US only).  They need to discuss this with local counsel.

  4. Friday, 4...
    Question: My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?
    Answer:

    1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

    2. An amendment should be filed, though it is debatable if it is required.

    3. In my view, AC21 port is easier.

  5. Tuesday, 1...
    Question: My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.
    Answer:

    H-1 extension beyond six years can be obtained under two circumstances:

    First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

    - Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
    - for PRE PERM cases - by the local office (SWA); and
    - for PERM cases - the date it is received by the DOL; and

    -EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

    Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

    You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

  6. Monday, 31...
    Question: 1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?
    Answer:

    1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

    2. No. See answer above.

    3. It is impossible to predict times. Plan for a six-month turnaround.

    4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

    5. Advance Parole and Passport.

  7. Tuesday, 25...
    Question: My self and my wife are on EAD and advance parole. My wife and I are from India. I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months. This is however not the company with which I started my green card. I changed jobs when I got my EAD. But I have several questions: 1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD? 2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay. 3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.
    Answer:

    1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

    2. As long as the permanent job continues to exist, there is no other requirement of presence.

    3. I see no problem with visiting USA as often as you like.

  8. Tuesday, 25...
    Question: 1. Wanted to check if on an EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time. 2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company. We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.
    Answer:

    1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

    2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

  9. Tuesday, 25...
    Question: May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?
    Answer:

    One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

    In the E visa context, this is what the govt says:

    Quote:
    9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
    (TL:VISA-404; 04-29-2002)
    An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
    So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

    Quote:
    9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

    (CT:VISA-803; 04-27-2006)

    L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
    There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

    By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

    As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

    The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

    O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
    Pursuant to 8 CFR Section 214.2(O)(13)
    (13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

    TN is also not allowed dual intent, but are often not questioned on their green card pendency.

  10. Tuesday, 25...
    Question: 1. I had filed for H1B visa last year but the VISA consulate in Delhi denied it as they wanted Tax returns of the Client company and other details which my H1B sponsor company was not willing to share. I was really frustrated with VO at embassy. I then applied to embassy to withdrawn my H1B visa application. I got a confirmation that it has been withdrawn. Now today after so many days when I checked my H1B status on USCIS, it said " This case has been received from the State Department with a request we review it." Please let me know what does it mean and does it mean something serious to take care of. 2. Updated FAQ - What are the implications of H1B Visa revocation for future H1b application
    Answer:

    1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.

    2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.

  11. Friday, 21...
    Question: 1) I am a US Citizen. My parents (or spouse/spouse-to-be) are in USA on visitors visa. Can I apply for their green card? How does it all work? 2) My parents' I-130 application is currently pending. They are currently living in their home country, India. Can they visit me during the pendency of the green card application? 3) Is it better to apply for adjustment of status or consular processing for the last step of their green card? 4) Updated FAQ - My parent came to US with B1 visa and they are still here. But the visa were expired several years ago. Now I am a citizen, I wonder if I can still apply for green card for them. Could I apply by myself or need to consult with a lawyer?
    Answer:

    A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

    There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.

    The tricky thing is, intent being a state of mind, can only be inferred from circumstances. If intent ever became an issue, INS may look at how soon after entering a green card was applied. Obviously, the more time has elapsed, the better the case is.

    Once the I-130/I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site at: http://www.immigration.com/node/1412/

    A2. Maybe. If they already have a visitors visa stamp on their passport, they should be able to visit. Chances of INS (CBP) sending them back from the airport are probably small. But if they will be applying for a tourist visa (also known as visitors visa) now, they may be refused the visa by the US consulate because they have exhibited immigrant intent. In that case they will have to wait until they receive their green card approval.

    A3. In terms of legal effect - they are both the same.

    Consular processing is faster (as of May 2002 taking about 3-5 months to completion).

    For persons outside USA, consular processing is the only option. Once the I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site. See link in the question above.

    A4. As I understand the law, they should be able to get their green card. You should talk with a lawyer.

  12. Friday, 21...
    Question: 1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?
    Answer:

    A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

    A2) You can behave like you would in any other permanent job - take vacations, etc.

    A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

  13. Monday, 3...
    Question: My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.
    Answer:

    There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

  14. Tuesday, 21...
    Question: a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending. b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey? c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?
    Answer:

    a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

    b). Getting a green card approval while you are abroad is not a large issue as long as you have advance parole. Giving a relative's address is a bad idea. In the absence of a US address, you do run the risk of the green cards being returned back to USCIS, but we can figure that out.

    c). USCIS may not accept medicals from anyone except a USCIS approved physician. But we can double check options on this issue also.

     

  15. Tuesday, 14...
    Question: 1. One of my friend had his 140 approved in 2005. He has his 485 pending since 2005. now he got RFE which essentialy says that 140 was approved in error and asks for ability pay prooof. Can USCIS go back and raise RFE's in this manner? 2. If yes then would he have been better if he had changed the job using AC21 ? My impression was that Once one is eligible for ac21( 180 days past 485) , RFE's related to old employer should not come. seeing this , using AC21 seems very risky. what happens if someone changes job and then USCIS says that 140 approved was in error , and asks for bunch of proof from the old company. what is your take?
    Answer:

    1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

    2. My take is AC21 would be a better idea, although, not fool proof.

    I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

  16. Tuesday, 14...
    Question: I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.
    Answer:

    NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

    A legal marriage in India is fully recognized in USA.

  17. Monday, 6...
    Question: I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?
    Answer:

    That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

  18. Friday, 3...
    Question: Should you be applying for employment-based green card in this economy?
    Answer:

    A lot of employers have been asking this question in the last few months. Is it even possible to get a labor certification with the US unemployment at a 26-year high.

    The answer is yes, if the job requires skills that are not available in the market. For instance, physicians and health care workers in certain areas, IT professionals with specialized skills such as warehousing, BI, LAMP and other open source products, advanced ERP packages (like Peoplesoft, Oracle Apps, SAP, Documentum), Pharmacists, CPA's... there are so many professions and skills still in demand. This list is by no means exhaustive.

    The way I look at it, at least you should try. If you fail, at the most you have lost money and can try again in a few months. Job markets can change very rapidly.

  19. Tuesday, 30...
    Question: I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.
    Answer:

    Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

  20. Thursday,...
    Question: I entered the US on a B1/B2 visa in febuary 2007, and then changed my status to F1 in May 2007. I enrolled into a 1 year certificate diploma program and started attending school in June 2007. I completed the program and in Fall 2008, I transfered and enrolled into a Master's program at a prestigious university. I have completed 1 year of study and I am half way through the program. I am intending to visit my home country this summer. I would like to know the procedure to obtain the F1 visa stamping. I wish to travel and come back while I am a student. I have obtained my SSN and my Driver's License as well. I have also signed a lease for my apt for the next 1 year. I have always maintained legal status till date. I have working on campus for the last 6 months. I would like to know about the chances of getting my visa stamped before coming back to continue my studies. I am very confused listening to people and I really need some good advice. Its been close to 3 years now and I really wish i can get to see my family back home. I will really appreciate any advices and help. I dont know what kind of questions will be asked in the interview. Also the probability or obtaining the visa stamp. Please tell me what is the best way to approach this and the best thing that I can do.
    Answer:

    Chances of getting an F-1 visa are remote. I would want you to reconsider the trip. The biggest problem here is, unless you declared to the consulate that you intended to convert from B to F status, they are likely to consider you to have misrepresented your true intention when you obtained/traveled on B visa.

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