US Immigration Questions

  1. Friday, 10...
    Question: Here is a question this morning from, our clients' extranet. Quote: The nightmare has once again come true, eb3 would be unavailable until September 09, if I am not wrong? With this in the background, I am thinking of giving up the hope of getting my green card soon (my pd may 04). If I go back to India, can my GC application still continue to be processed?

    Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence? While these questions have never been asked, do not be surprised if they are. Our explanation must be truthful and not contrived.

  2. Thursday, 9...
    Question: Here's the situation: LPR wife is pregnant, currently visiting her in-laws overseas. The LPR husband will travel overseas later to see his parents and both husband and wife will travel back to U.S together. The couple wants to invite husband's mother who has been rejected twice for a visit visa for tourism purposes. Last rejection was more than a year ago.

    Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.

    I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.

    Q1. Should the mother take visa appointment for interview before her son arrives overseas to see her so she can tell interviewing officer that she wants to see her son in the States in addition to tourism purposes. This may make her case stronger as a mother wants to see her son.

    I am never in favor of trying to manipulate consulates. This could be considered outright fraud. Let us not go this way. Tell the truth. But, do let the consulate know that she is coming as a grandma - not a care taker or a health care employee.

    Q2. Should the couple get letter from their doctor stating the due date of the baby and requesting the embassy to allow the mother to visit US to take care of kids in the postnatal period etc.
    A2. Yes, but only if there are some special health concerns.

    Q3. Does it matter if at the time of her visa interview, the couple is already overseas? Then she can't claim that she wants to see her son in addition to tourism related activities.
    A3. The truth.

    Q4. Should the mother go for visa interview when the couple had returned back to US after seeing her overseas? Will the fact that the couple just visited the mother not a good thing for her visit visa application?
    A4. If the reason is to visit her grandchild and hold him/her and be the loving moral support for the family, why should it matter.

    Q5. If the main reason for visit is to provide care for the yet-to-born or new-born grandchild, what are mother's chances of getting visit visa?
    A5. Consulates have a very twisted idea of what "care" is. They start thinking of it as a job and not a part of what a grandparent normally does. So tell the truth but make it clear.

    Q6. What should the couple and the mother do in order to increase her chances of getting visit visa? What documentation/proof etc would be considered sufficient. Should they provide affidavits under oath that the visitor will return to her native country after her short stay in US?
    A6. I do not know of anything that would improve chances.


  3. Thursday, 9...

    USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

    USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.


    USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

    USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

    Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

    For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

    USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.

  4. Wednesday,...

    USCIS has announced that it is continuing to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. Master's degree or higher educational exemption cap.

    When USCIS receives sufficient number of petitions to meet the caps, it will issue public notification that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

    To ensure a fair system, USCIS may randomly select (lottery) the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

  5. Tuesday, 7...

    I have received inquiries on this type of email floating around. This is fraudulent. US govt. does NOT issue green cards based upon random email lottery. Please circulate this to all concerned.


    U.S. Department of State

    Bureau of Consular Affairs, National Visa Center

    32 Rochester Ave. Portsmouth NH 03801-2909

    Attention: Winner.

    I have received inquiries on this type of email floating around. This is fraudulent. US govt. does NOT issue green cards based upon random email lottery. Please circulate this to all concerned.


    U.S. Department of State

    Bureau of Consular Affairs, National Visa Center

    32 Rochester Ave. Portsmouth NH 03801-2909

    Attention: Winner.
    Congratulations! You are among the lucky selected winners of the U.S Green Card lottery program which was conducted under the terms of Section 203 of the Immigration and Nationality-Act (INA) Section 131 of the Immigration Act of 2006 (Pub.L.101-649)

    5.3 million email addresses were randomly extracted during the 66-days extraction period. The email addresses were assigned to different-ticket numbers for representation for final selection, and your email address attached to N0-#76403 was selected among the winners of the Green-Card.

    Notification is through the selected email addresses electronically undisclosed. Approximately 685 winners have been notified through their email addresses including you today (28-03-2009)

    Please read and follow all the enclosed instructions very carefully.

    The filing of an immigrant visa petition is the initial step required to receive the "green card" You will have to obtain your immigrant-visa through the U.S Embassy in your home country or your nearest U.S. Embassy.

    The visas have been apportioned among the six geographic regions and our representatives are stationed in all the regions. Your visa type permits you to travel to the U.S. with your family members.

    Your Green-Card winning detail falls within the Asia-Pacific region as indicated and we have forwarded your winning details to our Asia-Pacific office to which your case has been assigned for the processing of your application documents for the issuance of your visa.

    Therefore, for your Green Card and Immigrant Visa Issuance Application-Forms and Requirements, contact our Asia-pacific office with the below contact details:

    Contact Person: Mr. Mark Howard.

    Address: Diethelm Towers Building 2nd Floor, 28 North Wireless Road Bangkok, Thailand.

    Tel: 66-835 619 209 66-843 578 622

    Fax: 66-2251 9977

    Email: ugcls<@>America.Hm

    If it should be necessary to contact our Asia-Pacific office by telephone, you must always refer to your Case Number as they appear below. Your Case Number is clearly written at the lower left hand corner of your notification letter.

    Please complete and return Green-Card application form for yourself and all accompanying family members. Complete G-845S form with your Case Number.

    Prior to the submission of the completed forms, please note the followings:

    All forms and correspondences should be directed to our Asia-Pacific office where your case

    has been assigned and it is important that you complete and return the forms listed above as quickly as possible to enhance your chances of early visa issuance.

    Selected winners and accompanying family members who do not receive visas before the (30th of April 2-009) will derive no further benefit from their Green Card winning status. Selected winners living legally in the United States who wish to pursue their Green-Card status should contact any of our regional offices where their winning details falls for information's on the requirements and procedures.

    All the selected winners should be prepared to pay the processing fee for the processing of their Actual and Approved Green Card documents for the issuance of their visas.
    Application processing fee (for one person), US$970.00

    Family: US$1,490.00
    Application documents processed by United States officers abroad require a visa "application" (machine-readable visa - MRV) fee that recovers for the United States the costs associated with manufacturing, processing and printing the documents.

    Your documents will be post to you once the processing is completed and will be forwarded to the U.S. Embassy in your home country for registration of your Green Card status for the issuance of your visa.

    You will be notified of your visa interview appointment and should go to the Embassy on your appointment date with your application documents and visa interview appointment letter for the issuance of your visa.

    Case Number: WAC4044844157

    Preferences-Categories: DV DIVERSITY

    Foreign-State-chargeability: Asia-Pacific

    For more information about the program, click here- Visa Lottery
    Sincerely yours,

    Mrs. Roselyn Hodson.

    Secretary General, Kentucky-Consular-Center (KCC)

  6. Tuesday, 7...
    Question: (Article Reviewed on 26 June 2015)

    What is AC21 Portability?
    In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
    There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.

    What is AC21 Portability?
    In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
    There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
    Let me begin with a question being asked for this Thursday’s community call (I host a community conference call for all of you folks who need it twice a month). The question has been posted here:

    Qo. If I use AC21, Is it necessary to inform USCIS? It is not mentioned anywhere in the new AC21 guide lines. If so how may I do it?
    Answer. There is no law that requires us to notify CIS if you change jobs using AC21 portability (Don’t forget to file Form AR-11 for change of address, if you are changing residences as well). But let us look at the pros and cons of informing or not informing.
    If you do inform CIS, are you not inviting unnecessary scrutiny? Probably yes. But so far the process has been very smooth and safe for hundreds (if not thousands) of our clients. There are several legal/factual issues in assessing whether the jobs are same/similar, but that is not what I addressing here. If the jobs are suited for AC21, informing CIS may cause some delays but they should not be excessive or fatal to your AOS.
    If you do not inform CIS, you could have serious problems, which though rare, are serious enough for us to be cautious. I have seen cases where employers withdrew their I-140 after an employee left them. USCIS, in contravention of its regulations, revoked the AOS and placed the AOS applicants in deportation. I am simplifying the facts, but this is what can happen. We end up spending time and money in going before an immigration judge to show that we are in fact entitled to AOS and CIS has acted illegally and irresponsibly.
    Further, if you do not inform CIS, a red flag can be raised when you file for naturalization, five years down the line. Natz. Adjudicators have raised the question why you have not worked with the sponsoring employer.
    Bottom-line, whether to inform or not inform is a highly individual decision, unique to each case of the client.

    How do I inform CIS?
    There is no prescribed form for this. We send in a letter to CIS with an offer of employment from the future employer.

    Qo. Do we have to wait for a Response from USCIS informing the AC21 has been accepted or denied to take the new job?
    Ans. CIS does not respond. You do what you need to after sending in the AC21 letter.

    Denial of AC21
    Qo. Also, I heard in your conference call earlier today (June 19) that once the AC21 is invoked and it is denied the person is immediately out of status and could be asked to leave the country?
    Ans. Correct. Unless you have a simultaneous H/L type status, you would be in that situation.

    When Does the Eligibility Begin
    Qo. When does 180 days counting start, i.e. if 140 and 485 filed concurrently, is it 180 days after 140 approval or 180 days after 485 filing?
    Ans. It begins from the date of the fling of the 485, but begins to be counted only after I-140 is approved.
    For example, let us look at the following scenarios:

    Scenario – 1
    You file an I-140 and 485 today. Your I-140 gets approved after 100 days. You now have only 80 days more to wait for portability eligibility.

    Scenario – 2
    You file an I-140 and 485 today. Your I-140 gets approved after 180 days. You can port any time because your I-140 is approved and your I-1485 has been pending 180 days.

    Scenario – 3
    You file an I-140 and 485 today. Your I-140 gets denied after 300 days. You cannot port because if an I-140 is not approved, there can be no portability.

    AC21 for Spouse
    Qo. My husband got his GC approved in July, 2007. As his spouse, based on his application, I could add my name for i-485 only in July 2007, about same time he got his GC approved. That time I was working on H1B visa.

    Last month I lost my job, and so lost my H1B status. So now, I would be in status of AOS or i-485 pending. Now I've got new job and want to join the job on EAD.
    Would I've to file AC21, before joining this new job?

    Ans. You do not have to file AC21. You are not the principal applicant for I-485. You should be fine.

    Here are some more questions asked of me for AC21:

    Qo1. What if I got query for 485 while it is pending? Do I need to get support from old or future employer?
    Ans1. While it is always a good idea to maintain a good relationship, I do not see any need for help from the old employer as long as you have a copy of your I-140 approval, 485 receipts and labor certification application (ETA 750 or 9089). From the future employer, you should just need a letter describing job, title, salary and some other facts.

    Qo2.What documents are needed to file AC-21?
    Ans2. Just what I have described in Qo1. above.

    Qo3 Does the salary and Job description be the same as current or is it OK to be different?
    Ans3. Job description must be same or similar. If the salary is too far apart from the salary offered in the labor certification, you could have an issue. Discuss this with your lawyers.

    Qo4. Will taking a County/Govt job speed up the process of 485?
    Ans4. No.

    Qo5. Is there any charges to pay USCIS and to your office to file AC-21?
    Ans5. There is nothing to be paid to government and of course we charge additional fees for AC21 processing. The legal fees include all EAD and AP renewals and cover you to the end of your GC, unless you choose to do another portability to another employer.

    Qo. 6 (Added 5 March 2009)
    If I want to use EAD for changing jobs, will I be out of status if I don't have a job for more than a month?
    Ans. No. USCIS so far has adopted a policy that only if they send you an RFE, your then current status will be questioned. In between what you did or did not do is not that relevant. So let us say you leave the old employer. You do not have a job for 6 months. Then you get a "similar" job. The week after you get the job you receive an RFE. You will be fine because now (or by the time you respond to the RFE), you have a similar job.

    Added 7 April 2009
    Qo. Do I have to file a new I140 with my new employer if my employer withdraws his I-140 (don't know why be he said he will be doing it as his company policy) as part my AC21 filing process.
    Ans. For AC21, you do NOT have to file another I-140 even if the old employer revokes the existing I-140.

  7. Monday, 6...
    Question: Our community member spring09 says: Hi Rajiv, Thanks in advance. I have an question and keeping me up during nights. I am working on H1 with comp A, who has filed for my I-140 in Feb-08. And I also have an Approved I-140 ( Jul'07), have filed for I-485 and also have EAD from company B. I have never used my EAD from comp B, nor have I worked for comp B. Could there be any issues, which I should be prepared for? As I know it is legal to file for more than one I-140. Thanks again.

    As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

  8. Monday, 6...
    Question: I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

    Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

    Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

    Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

    Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

    Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.


  9. Monday, 6...
    Question: Here is a question from our clients-only extranet - I think this question is relevant for a lot of people.


    Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

    Ans. Yes.

    Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

    Ans. You will need to get an H-1 approval by having your new employer apply to USCIS any time you like (just like a new H-1 or an H-1 transfer. This is, of course, NOT subject to quota). After the approval you need to exit and reenter USA using your H-1 visa. You may use the old visa stamp if it is still valid and you have not been out of status or get a new stamp if you were out of status or the old stamp has expired.

    Quote: Rajivji,

    If I convert from H1B to EAD with my current sponsoring employer and they revoke the H1B as you have mentioned before being the best thing to do.
    1) Does the H1B revocation still mean that my H1 status is dormant?
    2) Would I be able to reactivate my H1 again with the current employer?
    3) Would my employer have to reapply for the H1 approval or the current approval that I have valid till Apr 2010 enough?
    4) I am assuming based on the answer to Q3 above, I will have to go out of the country and come back on my current H1 visa that I have stamped?

    Ans. Once revoked, the H-1 will have to be reapplied, will not be subject to the quota and will be valid for 1 or 3 years depeneding upon your situation. And, yes, you will need a visa stamping to activate the H-1.

  10. Friday, 3...
    Question: This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting. A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD. While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES! Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

    If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

  11. Thursday, 2...
    Question: Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

     There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

    Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

     Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

    The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

  12. Wednesday,...

    Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
    Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

    Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
    Ans. If it is an extension beyond six years, you will need to have 485 or 140 pending and meet other related requirements for the extension.

    Qo. After USCIS approves H1-B extension in this case, are we required to go immediately to India to get visa stamped or can we keep working on EAD and get the H1-B visa stamped when we like. My I-140 is approved and I-485 pending.
    Ans. You can go when you like.

    Follow up Qos/Ans

    Qo. Thanks a lot, Rajiv. Just one clarification related to H1-B visa stamping in the above case. Do you think the US embassy will ask me why I want to come back to H1-B after having worked on EAD for say 6 months or 1 year after 6 years of H1-B expiration at the time of applying for H1-B visa?
    Ans. It should not be any of their concern.

    Qo. what should be the response to their question?
    Ans. The truth.

    Qo. Also, God forbid, in a worse case scenario, if my I-485 is denied after my H1-B extension has been approved in the above case and then I go for H1-B visa stamping, w'd they still give me visa?
    Ans. That is legally uncertain. So it is wise to get stamping while the 485 is still "alive."

    Qo. On a different note, is there any basis other than a crime, misrepresentation, public health, or revocation of approved I-140 on which the I-485 can be denied?
    Ans. Sure. AOS is a discretionary process. It can denied for many reasons (but usually is not).

    Qo. If not, then will it still be more advantageous to work on H1-B instead of EAD? I am just trying to evaluate the benefit of coming back to H1-B as opposed to keep working on EAD. Your answers to the above questions will help me greatly in that direction.
    Ans. As I have commented several times, I like to keep both options open. So, work on H-1 while keeping your EAD in hand.

    Further Questions 

    Quote: Me and my spouse are working on H1B for two different companies. My spouse company is processing the green card and the process started in 2005 in EB2. We got married in 2006 and I-140 got approved before our marriage. We filed together for I-485 after marriage in August 2007. We got our EAD card in Nov 2007. We also got our second EAD card in Nov 2008 and it will be valid till Nov 2010.
    Though we had EAD card, we are using our H1B. Now, I got laid off from my company last week. I am looking for opportunities. I hope I could find one in a week or two. My questions are
    1. When I join my new company should I use EAD card or I do H1B transfer? Please advise.

    Ans. H-1 is the best option usually. You can try for a transfer. Usually, CIS declines transfer within USA (requiring you to go outside USA for a visa stamping) if there is any gap in status. But, it is in their discretion to permit it. Joining on EAD is no end of the world. You can start work on EAD and file an H-1. Gert stamping done whenever it is convenient. When you reenter on H-1 visa, you are back on H-1.

    Quote: 2. Also, if the market goes further bad and my spouse also got laid off, what will happen to me if I am using my EAD?

    Ans. If she uses AC21, you should be fine. Otherwise, if her 485 is void, so is yours. 

  13. Monday, 30...
    Question: One of our community members had asked a questing regarding the processing dates of 485.

    In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

  14. Friday, 27...

    For recent updates on PERM processing please click here.

  15. Thursday,...

    USCIS has confirmed that if they determine that they have received enough number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received on all five days. Note that the first five business days include upto 7th April.

    USCIS has said that they will not begin to issue fees receipts, until sufficient H-1B petitions have been received. After the lottery is conducted, USCIS will then issue receipts for those cases that are selected, and the receipts will probably all have the same receipt date: April 8, 2009. If, however, the quota is not filled by April 7, they will continue to accept H-1 filings.

  16. Thursday,...
    Question: Now that I received my GC through employment, does my employer need to change my position to the one filed in the Labor Certification?

    Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.

    Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.

    As to what is a "reasonable time," we would have to look at the circumstances of each case.

  17. Thursday,...
    Question: Some of our employees' Green cards have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.

    Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

    Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

    Quote: (2) Do we need to notify anyone about their GC process and let them know that they are no longer working for us?

    Ans. There is no such requirement, but the better practice is to write to CIS revoking the I-140.

    Quote: (3) Can we re-hire them on their EAD after few (or several) months once they get a project on their EAD?

    Ans. Yes, but the question about "permanent job" remains.

    Quote: (4) Can we continue their Medical Insurance (and our company pays for it) even if they are NOT employed with us.

    Ans. I can see that as objectionable on several grounds.

    Quote: (5) Can they stay in USA if I cancel there H-1 and they have a valid EAD but they are NOT employed by anyone.

    Ans. Yes. Have them review the entries on my blog under I-485. You will still have unanswered questions about "permanent job."

    Quote: (6) Is there an alternative for them to apply for Consular Processing, under what circumstances should they do so, what are the benefits / disadvantages

    Ans. I see no advantage in CP. The basic question about a permanent job remains unanswered.

  18. Thursday,...

    The attached document explains the criteria.

  19. Thursday,...

    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.





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

    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:

    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


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