US Immigration Questions

  1. 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.
    Answer:

    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.

     

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

     

    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.

  3. 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.
    Answer:

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

  4. 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.
    Answer:

     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.

  5. Wednesday,...
    Question:
    Answer:

    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. 

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

    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.

  7. Friday, 27...
    Question:
    Answer:

    For recent updates on PERM processing please click here.


    http://www.immigration.com/processing-times-and-status-checks

  8. Thursday,...
    Question:
    Answer:

    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.

  9. 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?
    Answer:

    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.

  10. 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.
    Answer:

    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.

  11. Thursday,...
    Question:
    Answer:

    The attached document explains the criteria.

  12. 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.

     

     

     

     

  13. 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

  14. 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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.

  20. 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. 

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