US Immigration Questions

  1. Sunday, 6...
    Question:
    Answer:

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

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

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

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

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

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

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

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

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

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

     

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

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

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

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

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

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

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

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

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

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

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

  6. Thursday,...
    Question:
    Answer:

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

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

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

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

  7. Tuesday, 17...
    Question:
    Answer:

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

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