US Immigration Questions

  1. Thursday,...
    Question: My friend was working for Company A and he shifted to Company B, three months back filing a new H1B, But his employer got a 6 page H1B query list, his employer is not revealing the query and is not in a position to respond. Couple of questions, Can I switch back to Company A. 1. Does he need to file with DOL (or) USCIS that I am switching back to company A 2. If his H1B with company B is not approved, will it be a problem that I worked Company B for 3 months and has taken the pay? Other Question is, Company A send a letter to INS saying that he is not working with Company any more (Company A employer is telling that he did not revoke the H1B but send a normal letter to INS), Can he still switch back to Company A??? If he can not join back Company A, Can he file a new H1B with another company, knowing the fact that he has a query on his H1B with Company B.
    Answer:

    In my view, he cannot go back to company A without taking some additional steps.

    Here, company A has revoked the H-1 (all that takes is a letter), they will need to reapply the H-1 and he should get a new visa stamp. He can also get an H-1 through another employer but will most probably need a visa stamp before he can start work. The existing query (RFE) should not normally interfere with any future applications unless the RFE contains some allegations of fraud or lack of qualifications related to your friend.

    Hypothetically speaking and for the information of those of you who have a similar issue: if Company A had not withdrawn his H-1, he could have gone outside USA, applied for a new H-1 visa based upon the approval of H-1 by Company A. The consulate may have told him his visa is still valid and he would not need another. I would advise that such an applicant will need to inform them that they had worked after filing an H-1 transfer but now wishes to go back to old employer. Under the circumstances, having been technically out of status, they may need a new visa stamp. If the consulate says he does not need a new stamp (in fact he does), then there is no problem in reentering USA on the old stamp and starting work with A.

  2. Monday, 13...
    Question: Current economy is making lot of people sleepless. We have heard about a lot of layoffs around the state and nation. Could you please explain us what are the options we have, if a person with H1-B (6year extension) EAD and I-485 pending in this situation.
    Answer:

    This is most certainly a very important topic and relevant for everyone. I will address the various issues raised in the relevant parts of the blog to make it possible for everyone to find the information applicable to their case.

    Effect of Lay-off on H-1 and L-1
    An H-1 or L-1 holder who gets laid off can be thought to be immediately out of status. There is NO grace period, not even one day. If, however, you continue to receive your salary, it can be argued that you are still in status. How valid or good that argument is remains to be tested.
    Being “Out of Status” and Being “Unlawfully Present”
    Bear in mind the very important distinction between being out of status and being unlawfully present. Unlawful presence of 180 days bars you from entering USA for 3 years and unlawful presence of one year raises that bar to 10 years. These bars are very difficult (if not impossible) to waive.
    Most commonly, unlawful presence is triggered by expiration of I-94, revocation of H-1 by your employer or whenever CIS says your unlawful presence is now beginning.
    Being merely out of status does not impose such drastic penalties automatically, but there are dangers here too. If discovered, you can be deported (removed). In that case, you cannot come back for (I believe) five years. Usually, being out of status for a few days or even months by itself may not be a major problem. But you MUST try not to fall out of status. I will provide one method below.

    Option 1. Applying for Derivative Status
    You can apply for derivative status if your spouse is in USA with his or her own status.

    Option 2. Applying for B-1/B-2 Status
    In most cases where interim status is needed (Some exceptions, e.g., J-1 with HRR) a B-1 application could be an option.
    - Get Form I-539 from CIS (NOTE: CONFIRM THE FILING FEES)
    - Apply for a 6 months change of status to B-1/B-2 (business/visitors visa) which in my view is a catch-all visa/status for all stay in the U.S.
    - Attach to the I-539 a letter explaining to the CIS that
    1. You have been laid off unexpectedly and that you need to stay in USA to wind up your affairs and to look for a job, if possible;
    2. You have the means to support yourself; and
    3. You know you are not allowed to work on a B-1/B-2.

    This should usually get you 6 months stay without falling out of status.

    Note that in one of our cases back in June 1999, CIS seems to say that they may NOT issue B-1/B-2 to everyone. Note the following letter from INS:
    "The B-1/B-2 classification is not a "catch all" classification available to all who wish to come to the United States temporarily for whatever purpose. Instead it encompasses a specific, defined class of alien. You must establish the following to be eligible for a B-1 nonimmigrant visa: As you are in the United States conducting business on behalf of a foreign entity, it is reasonable to expect that you are making frequent contact with this entity. Submit evidence of your contact with the foreign company by submitting your phone statements.......Submit a letter from your employer that describe the nature of your employment with them...."
    I think CIS is wrong. B-1 specifically appears to me to be a catch-all visa. For example, when someone needs medical treatment, they apply for a B-1 visa. To be safe, we recommend you apply for B-1/B-2, casting even a wider net.

    Here are some Follow-up Questions from H-1 and L-1 Holders

    Q1. What if your company has promised that they will not revoke your H-1/L-1; does that make a difference?
    A1. It makes some difference. You are still out of status the day on which you stop working. But the 180-day period that results in the dreaded 3-10 bar would not apply to you until your I-94 expires or CIS catches on and formally declares that you are out of status.

    Q2. What if the company keeps you on their payroll but without pay?
    A2. CIS is unlikely to allow that as being "in status."" Also, if we were representing the company, we would never advise them to take this route. This is dangerous for the company.

    Q3. What is the company has given you a severance package that includes your getting paid for 2 (or more, or less) months after they laid you off?
    A3. Technically CIS would consider you out of status from the day you stop working. It does not matter if you are still getting paid. That is what they have said in one of their memos (which we find a rather strange interpretation of the law). But as a practical matter, CIS requires only pay stubs to prove that you were in status. So you may be able to take benefit of this CIS practice.

    Q4. Should you apply for some other status?
    A4. Probably yes. Some folks apply for a student status (F-1), some for H-4 or F-2 (if their spouses are on H-1 or F-1) and some for tourist (B-2) or business status (B-1). These options could all work to help you stay in status.

    Q5. If you convert to another status, can you then convert back to H-1 if you find a new employer?
    A5. Yes.
    Q6.1. To protect my status in US, if I transfer from H1 to tourist or business visa, have I to apply for it before my current H1 visa gets expired?
    A6.1. Yes.

    Q6.2. Am I legal and "in status" if my current H1 is expired and still I am waiting for approval of tourist/business visa?
    A6.2. You are authorized to stay in USA while waiting for a decision on a timely filed application.

    Q6.3. How much time will it take between I start preparing for tourist/business visa and Your office files the petition for it? (i.e. in preparation of papers)?
    A6.3. I do not believe a lawyer is needed, but you can call us to discuss your situation.

    Q6.4. Can I hold Tourist and H1, both types of status at the same time?
    A6.4. No.

    Q6.5. Do I need to have any specific eligibility for the Tourist visa?
    A6.5. If you mean any specific degree or education, no.

    Effect of Layoff on Green Card Process
    I will address here the most common method of obtaining green card – through PERM. If your situation is different, go ahead and post a comment here. I will respond as well as I can

    LAY OFF ANY TIME BEFORE I-140 APPROVAL
    If you get laid off before I-140 approval, you can carry NOTHING forward to the next employer. You have to start your PERM all over again with the new employer. If, however, the I-140 gets approved even after the layoff, we can at least try to carry the priority date forward as we would in a ordinary 140 approval. See the discussion in the next point.

    LAY OFF AFTER I-140 APPROVAL
    If a person has received an I-140 approval through an employer, the priority date then permanently belongs to him or her, UNLESS the I-140 is revoked.

    If such a person gets laid off, their priority date will remain the old one, even though they have to process their labor certification and I-140 again with the new employer. It does not matter where in USA the new job is located, what the new job title is or whether the new job falls under EB-2 or EB-3. The priority date is still transferable.
    We recommend that an applicant must keep at least a copy of the I-140 approval notice.

    LAY OFF AFTER I-140 APPROVAL AND I-485 PENDENCY OF 180 DAYS
    Chances are, you will be fine. Read the material on our website on AC21 portability.  For instance: http://www.immigration.com/faq/adjustment-status/ac21-portability-changi...

    Further Questions 26 Nov 2008
    My 485 AOS is pending and 140 is approved. If my current company does layoffs and I happen to lose my job.

    A: Can I be without job for some time(small duration)? I mean till I get a new Job?
    Ans.As long as your 485 is pending, you are not out of status even if you are not working. You need to find a "similar" job and should file AC21 letter with CIS. If there is a gap in employments, that is not a major issue as per the May 2005 Yates memorandum. The only way we can get into trouble is if CIS sends an RFE asking for an employment letter (they usually give us several weeks to respond) and we are not able to provide such a letter showing a "similar" job.

    B: Is my Green Card in trouble Immediately if I am out of Job? Is there any provision that I can use in this case?
    Ans If your I-140 was not approved and AOS had not been pending 180 days, there would potential for trouble.

    C: Will leaving the country and trying for job from India and then coming back in USA help?
    Ans. No need.

    02/27/09
    Q. Hi Rajiv, In context for preserving the PD, is there a time limit on that. If the 140 is approved and I get laid off, can I leave US, return after (say) 2 years with a different H1/L1 and start the GC process with same PD.
    Ans. Under the current law, there is no time limit. So, yes, you could. Bear in mind, this holds true only if the I-140 is not revoked.

     

  3. Thursday, 9...
    Question:
    Answer:

    My husband and I have our N400 petition pending for almost 18 months. We passed our interview in July 2007 and had our 2nd fingerprinting 2 weeks ago. We were also informed that we have been cleared from background check. We have to leave for an international assignment in December and would like to understand the steps we need to take so it does not impact/disrupt our naturalization process, in case we do not get called for oath by then.

    My husband and I have our N400 petition pending for almost 18 months. We passed our interview in July 2007 and had our 2nd fingerprinting 2 weeks ago. We were also informed that we have been cleared from background check. We have to leave for an international assignment in December and would like to understand the steps we need to take so it does not impact/disrupt our naturalization process, in case we do not get called for oath by then.
    Ans. As far as I know, the two most important things are not to abandon your permanent residence in USA and to make sure you do go for the oath ceremony. You may want to approach your Congressman's office for an expedited resolution so you have taken the oath before you leave.

  4. Thursday, 9...
    Question: I was approved for my OPT on February 2008 for a duration of one year. At that time, I was allowed to stay in US for 1 year while looking for job. On April, 2008, a new regulation came according to which a student on OPT can not stay in US without job for more than 90 days. I was not aware of this rule until end of September 2008. Now I have applied for dependent visa. My worry is that unknowingly I stayed for around 6 month without job when I was actually allowed for only three month. I am worried that is this mistake going to affect my new visa approval? Is there anyway I can explain USCIS that it happened because I was not informed about this rule and I did not come across it.
    Answer:

    Your best bet is to get your dependent visa stamp from a consulate as soon as possible. That should take care of any potential future problems.

  5. Wednesday,...
    Question:
    Answer:

    People (even lawyers, including me) find it difficult to keep the H-1 quota issues straight. I am giving the law here for reference and better understanding.

    The Law
    _________________________________________

    AC21
    _______________________________
    SEC. 103. SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES, AND GRADUATE DEGREE RECIPIENTS; COUNTING RULES.
    Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended by adding at the end the following new paragraphs:
    `(5) The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who is employed (or has received an offer of employment) at--
    `(A) an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity; or
    `(B) a nonprofit research organization or a governmental research organization.
    `(6) Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b), who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5).
    `(7) Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.'.

    Higher Education Act
    _________________________________________
    § 1001. General definition of institution of higher education

    (a) Institution of higher education. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" means an educational institution in any State that--
    (1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
    (2) is legally authorized within such State to provide a program of education beyond secondary education;
    (3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
    (4) is a public or other nonprofit institution; and
    (5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

    (b) Additional institutions included. For purposes of this Act, other than title IV [20 USCS §§ 1070 et seq.], the term "institution of higher education" also includes--
    (1) any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provision of paragraphs (1), (2), (4), and (5) of subsection (a); and
    (2) a public or nonprofit private educational institution in any State that, in lieu of the requirement in subsection (a)(1), admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.

    (c) List of accrediting agencies. For purposes of this section and section 102 [20 USCS § 1002], the Secretary shall publish a list of nationally recognized accrediting agencies or associations that the Secretary determines, pursuant to subpart 2 of part H of title IV [20 USCS § 1099b], to be reliable authority as to the quality of the education or training offered.
    __________________

  6. Tuesday, 7...
    Question: I came to USA with an H1b Visa, my family's H4 visa was also issued with me. After coming to USA I transferred my H1b visa to new company and I got my transfer approved and I got a new H1b with new I-94, my question is whether they can travel with the old H4 or not?
    Answer:

    If their visa is still valid, they can travel. Each time an H-1 holder changes jobs, the H-4 holders are NOT required to change their H-4, as long as the H-4 status (I-94) or visa is still valid. An action on H-4 is required only if the status (if within USA) or the visa (if traveling abroad or outside USA) is about to expire. Of course, if H-1 holder has been out of status even for one day, my answer would change.

  7. Thursday, 2...
    Question: I am an Australian citizen currently on a B2 that expires in Oct. I lodged I-539 application for extension in Aug and received I-797 receipt Aug 25. I may have found an employer that will sponsor me on an E3 visa (Australians only). All I need is a letter of offer and a completed Labor Condition Application. To apply for the E3 visa though, I need to leave the USA and visit a US consulate. I do not have my original I94 any more (I submitted it with my I-539) but I do have a copy of it. Once I get a letter of offer, I will travel to either Toronto Canada or home to Sydney Australia to apply for the visa. Qo1. Can I still leave the USA without the original I94? Qo2. In the event my E3 visa is denied, will I be able to re-enter the USA from Canada without the original I94, provided my stay in Canada is less than 30 days? (And how would this work if I take the trip up there after the expiration date of the original I94? Remembering that my B2 extension is pending)
    Answer:

     Ans1. Yes. You should not need an original I-94 to travel out.

    Ans2.  You probably cannot reenter using a copy of the I-94. Not only that, your departure from USA renders your pending B application void (considered abandoned).

    They way I see it, you have two choices. Wait for B extension before you go for E stamping. Or, go for E stamping bearing in mind the consequences of abandonment and reentry not assured.

  8. Saturday,...
    Question: After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.
    Answer:

    This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

  9. Tuesday, 23...
    Question: Filed I-130 and I-485 oct 29/07,went for interview feb/08 and have not heard anything from immigration.Is this normal for USCIS.When I did infopass was told that case is under supervisory review,what does this mean.
    Answer:

    Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

  10. Monday, 22...
    Question: I came to US on F2 visa. In April 2008, my employer filed for my H1B visa and it was approved. Due to some personal reasons I can't start work from October 1 and I will need to change my visa status back to F2. Qo 1. My question is if I change my visa status back to F2, and if I find an employer who is ready to file my H1B in the future, Will I have to go through the quota again? Qo 2. Hi, I have been inspired by the previous posts, I have a similar situation. I was on H1 till Mar 03. Then I transfered to F2. Now I'm about to get a job offer from a company. Is my H1b application subject to the Cap? My previous H1B was issued on Feb 2002 and I haven't been out of the states since.
    Answer:

    Ans 1.  In my opinion, you will not be subject to the quota again.

    Ans 2. You should not be subject to the quota.

  11. Thursday,...
    Question: My brother got US Citizenship this month. I would like to apply Green Card using my brother's citizenship.Is it possible ? How long it will take . Now I am holding H1B.
    Answer:

    This is usually not a feasible option. To see how long it would take, look at the Visa Bulletin: 

    http://www.immigration.com/newsletter/vbarchive.html

    You will note that it will take more than a decade to get a green card through family-based category 4. You are not permitted to stay in the USA just because this application is pending.

  12. Monday, 15...
    Question: Q1. Can a legal permanent resident(LPR) change career after say one year from his AOS approval to an entirely different field from the one for which his labor and his AOS was approved? Will this raise any red flags at the time of citizenship? Q2. In other words, after receiving green card on the basis of say job in computer industry, when can one change his/her profession to an entirely different field (let say opening up a restaurant or go into real estate on full time basis) without jeopardizing the citizenship? Would waiting for one year(or some other amount of time?) after AOS approval be good enough to satisfy the "intent to work for in the field noted in labor application on a permanent basis"? Q3. Is the person after receiving green card on the basis of employment in certain field stuck in that field for ever? Q4. What are you thoughts in general about this scenario and how should one go about it?
    Answer:

     A1. I see no problem with this nor do I see any red flags.

    A2. Sure. Why not. Permanent does not mean forever.

    A3. Not at all.

    A4. Nothing else I can think of.

  13. Sunday, 14...
    Question: I have a tourist visa to the US which expires in 2009. However, back in 2004, i was able to obtain a F-1 visa for MBA studies. It expired in 2006 and my stay was extended through practical training. I have all necessary documents supporting that. My question is, will I still be able to use my tourist visa until the March 2009 expiration?
    Answer:

    My assumption is that you are still on F-1 and in USA. If this is correct, you cannot use your B visa within USA.

    While in USA, your stay and status is controlled exclusively by your I-94.

    You can, however, try to reenter USA on B visa but after having stayed here for so long, a reentry is likely to be denied.

    If, you are outside USA and have been out for a while (like a year or more), I think you can still use that B visa and try to enter USA.

  14. Wednesday,...
    Question: I have consulted the local lawyers here but they have failed to answer this question with conviction. Can two Labor applications be filed for me by two companies (current and future employers) at the same time ?
    Answer:

    In my opinion, most definitely, yes. As long as both companies are acting in good faith (honestly) and you have the intention to take whichever green card happens to be more convenient or quicker for you, you can file 2 or more labor certs (PERM) through different employers.

  15. Thursday, 4...
    Question:
    Answer:

    I am on H4 in the USA , I have applied two H1B's through two different employers (Company-A and Company-B) on Apr 1st , 2008 and both have got approved which will be effective from Oct1st , 2008.
    I have the following questions

    Qo1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. Do I need to return all three I-94's if I leave the US
    Ans1. Yes. I usually recommend that all I-94’s be surrendered.

    Qo2. As I have two approved H1B's with company-A and company-B, Can I easily switch from Company-A to Company-B later time then to company-A , etc . For this do I need to inform USCIS. Is there any negative consequences in that ?
    Ans2. The law in this area is unsettled and unsettling. Not only is CIS inconsistent in its signals, USDOL has its own take on this situation. Bottom line advice – pick one company and stick with it.
    As per CIS regs, theoretically, you can have multiple H-1 approvals and all of them stay valid unless withdrawn or revoked. But there are DOL regulations that point in other direction. In appropriate cases, I may advise otherwise, but in this case, you better off picking one.

    Qo3. Can I apply SSN now using Company-A H1's approval then join in company-B from Oct 1st, 2008
    Ans3. I know of no law that says you cannot do this. So, I think you can.

  16. Monday, 18...
    Question: I had accepted an offer of employment from a well established Indian Consultancy company last year in the month of June 2007. I was given the pre approved labor and they filed I 140 and 485, EAD, AP during that Visa bulletin fiasco last year. I got EAD and AP for both me and for my wife. My I 140 approved from TSC last month. Now I have a better opportunity. My employer is threatening to withdraw GC files processing unless I work with them till I get my GC. Qo1. Is that possible for them to withdraw like that? Qo2. Does that affect my GC process in negative way? Qo3. What I have to do in case they withdraw? Qo4. Is it possible to re-start the whole GC process again in case? Qo5. By the time I file AC 21, if the present employer withdraws the GC files, what happens to my case? Qo6. How do we know whether they have withdrawn GC process or not?
    Answer:

    Ans1. They can withdraw the 140. That is their petition, but they cannot withdraw the I-485. That is your petition. If they withdraw the I-140 you can still take recourse to AC21 and not suffer any negative consequences.

    Ans2. If you are covered by AC21, you should be fine.

    Ans3. File AC21 letter as soon as possible.

    Ans4. Sure .

    Ans5. See this link: http://www.immigrationportal.com/blog.php?b=25

    Ans6. I do not think there is any easy way to do that. Unfortunately, you may find out only when CIS issues a Notice of Intent to Deny (NOID) your I-485. But you can try calling CIS customer service from time to time.

     

     

  17. Monday, 18...
    Question:
    Answer:

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

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

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

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

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

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

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


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


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

  19. Thursday,...
    Question:
    Answer:

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

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

    Bottomline - I think H-1 should be renewed.

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

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

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

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

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

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