US Immigration Questions

  1. Wednesday,...
    Question: I have a friend who is having L1 visa came USA two years before on L1 working in Company A. After coming USA he applied for H1 and got approved in 2008 October thru Company B. His status from L1 to H1 is also changed in Oct 2008. The candidate is still working in the company A (with L1 Visa). 1) How long he can work in Company B(with L1 visa)? (due to market down he is not getting job and may take time to get job on H1 Visa, to come out of the company A (L1) What is the time limit to shift to H1 company from L1 company after change of status to H1 from L1. 2) Is there any impact in future (in H1 extensions or in Green Card process) if he continues to work in the same company A (with L1 Visa, even though his change of status is changed to H1 with new I-94 number)?
    Answer:

    I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

    To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

  2. Tuesday, 27...
    Question: When we apply for Green card under EB2 category, should the masters degree and present job be related? Here is a situation: I have a masters in Agribusiness and I am working as a business analyst. My employer says I am not eligible to apply under the EB2 as my masters is not related to my present job in IT sector. Please let me know the reality.
    Answer:

    In fact there is no simple answer.  Legally, there is nothing that requires that the degree must be in a related field.  But, the employer needs to make sure, under penalty of perjury, that they do require a Master's degree, even if it is unrelated.

  3. Tuesday, 27...
    Question: I am here on L1b visa from x company. My sister sponsored me Immigration visa in 2006. (File is still in processing). My assignment is going to over here. Is there any work around or change of status through which i can stay here?
    Answer:

    So, the questions is does filing for any green card permit me to stay in USA?

    The answer is no.

    Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.

    That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.

  4. Tuesday, 20...
    Question: Have a situation. My company applied for Labor in oct 2007 which got approved and we filed I-140 (EB-2) in april 2008. We got a RFE in Sep 2008 and reply recieved by the USCIS on oct 16th 2008. Mean while my 7th year of H1b was approved and now it expires on Nov 2009. We have not received any updates on my case and its been >90 days. My current lawyer now says that I should apply for EB-2 NIW as a back up. My concerns are: 1. If my current I-140 gets rejected will my 7th year of H1b be revoked? since it was based on labor pending? 2. What will be my options if it gets denied( can I file for Motion to reconsider). Will I still be in Status and work till nov 2009? 3. Will they extend my H1b beyond nov 2009 if the MTR is not resolved by then? 4. If at all everything is rejected what can I do to start residency in july if I match? If all else fails what are my options to continue working in the US? My wife is on her independent H1B visa and I have 2 US citizen kids. I also have a US citizen brother( dont know if that would help any)
    Answer:

    Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

    But here are some things to consider.

    Under current practice, CIS does NOT take away the H-1 time they have given you even if the 140 is denied.

    An MTR is another dumb option in most cases. An appeal is the way to go. While the appeal is pending, you are permitted to keep getting H-1 extensions (an MTR does not give you that right). During that time you can work out other GC options. Consult with your lawyers and also get a second opinion.

    The kids and your brother cannot do much. Your kids can petition for your green card only when they turn 21.

  5. Tuesday, 20...
    Question: I have recently gotten engaged to a green card holder. We are making plans for our wedding, very likely to happen this year. However, the following questions arose: 1. Does the fact that I already hold another Master and a Ph.D. degrees accelerate my green card application? I understand that the backlog is of 5-6 years, but I wonder if my advanced education will assist my application. 2. My H-1B application last year was approved, but I did not use the visa, as I decided to go back to school for (yet!) another degree. Will the approval of the H-1B be looked at favorably, unfavorably, or will it not make a difference? 3. I am currently an F-1 holder. If I marry my fiance' this year, may I simply maintain my Visa independent of his? I am eligible to an OPT after I graduate (to happen this year or in mid-2010) and I am certain I will be able to obtain an H-1B afterwards. Therefore, I do not depend on my fiance' to keep a legal status in the country. Is it legal (or advisable) to keep my Immigration records separate from his? 4. How about when we file for taxes, after the wedding happens? May we file separately, or do we need to declare we are married?
    Answer:

     1. Advanced degrees do not help in a family-based green card.

    2. H-1 approval also does not help in the GC process.

    3. Check with your international students office about the OPT part. This one is difficult for me to comment upon.

    4. Whether or not you declare, if you are married then that is so. You must state that you are married if any immigration forms ask you. This is VERY important. Regarding taxes, check with a CPA. You do not want tax advice from a guy who barely passed his Federal Tax exam in law school.

    If I were you, I would depend on my H-1, not OPT. The H-1 permits dual intent (Nonimmigrant and Immigrant) and is likely to be a strong visa for a person married to a green card holder

  6. Tuesday, 20...
    Question: I have a friend who came to US on H4 & was on H4 for 2 years. Then she applied for H1B from 2 companies (A & B) & got approved from both the companies. She got the project in Oct 2008 & started working for Co B . Now due to bad economy, her Project is ending in January 2009 and she is not able to find any new project. While working she have been paying taxes regularly. Pl let us know what needs to be done now:- * She is planning to go back to H4, pursue higher studies, Changing to F1 & then coming back on H1B work. (H4-H1-H4-F1-H1) or (H4-H1-H4-H1).Will this create Bad impression to USCIS ? * When next time the H1B petition is being filed for her, will her petition be subject to regular H1 B quota of 65000 & will have to go through a typical process of filing, that means Petition being filed in April & waiting for approval until Oct. to work? * If in case My friend goes back to H4, Will Co. A & B will terminate H1B petition as per law? & If in case yes will this create any difference?
    Answer:

    Changing the way she is planning is perfectly legal. There is no question of a "bad impression."

    In my view, she will not be subject to quota unless she is outside USA for a year.

    The companies are required by law to revoke her H-1. I see no issues there.

  7. Saturday,...
    Question:
    Answer:

    The following discussion applies to all visas where working is not permitted. Most typical examples of these types of visas are F-2 and H-4. The question often arises whether or not it is legal for such folks to volunteer their time or are they constrained to stay at home.

    Quote: Q. May an H-4 (or F-2 type visa) holder volunteer for work to provide charitable service, to gain experience or just to stay busy?
    A. Probably yes. The provisions of law noted below are vague and unclear. But it appears as long as you do not receive any money or other remuneration, you should not be considered to be violating any laws. If you do receive any “in kind” benefits, things get very tricky. Such benefits may be permitted if the H-4/F-2 holder did not ask for the benefits as a condition for volunteering, nor were they offered in exchange for the volunteer work, and if the volunteer would have performed the services regardless of whether he or she were to receive the in-kind benefits. Subsection (f) below defines “employee” as someone who works for an “employer” for “wages or other remuneration.

    Subsection (g) defines an “employer” as an individual or entity who engages the services or labor of an “employee” for “wages or other remuneration.”

    The problem clause is (h), which states that the term “employment means any service or labor performed by an employee for an employer within the United States.” This subsection makes no reference to wages or remuneration. So, is it legal to perform volunteer work without receiving any money in any form? My best GUESS is yes. Even though subsection (h) makes no reference to money and contains in its definition “any service or labor,” such work must be performed by an “employee,” who by definition (subsection (f)) is someone who works for an “employer” for “wages or other remuneration.”

    The Regulations

    TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR)/8 CFR PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS/Sec. 274a.1 Definitions.
    Sec. 274a.1 Definitions.

    For the purpose of this part--

    (a) The term unauthorized alien means, with respect to employment of an alien at a particular time, that the alien is not at that time either:
    (1) Lawfully admitted for permanent residence, or
    (2) authorized to be so employed by this Act or by the Attorney General;

    (b) The term entity means any legal entity, including but not limited to, a corporation, partnership, joint venture, governmental body, agency, proprietorship, or association;

    (c) The term hire means the actual commencement of employment of an employee for wages or other remuneration. For purposes of section 274A(a)(4) of the Act and Sec. 274a.5 of this part, a hire occurs when a person or entity uses a contract, subcontract or exchange entered into, renegotiated or extended after November 6, 1986, to obtain the labor of an alien in the United States, knowing that the alien is an unauthorized alien;
    ….

    (f) The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

    (g) The term employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer shall mean the independent contractor or contractor and not the person or entity using the contract labor;

    (h) The term employment means any service or labor performed by an employee for an employer within the United States, including service or labor performed on a vessel or aircraft that has arrived in the United States and has been inspected, or otherwise included within the provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but not including duties performed by nonimmigrant crewmen defined in sections 101(a)(10) and (a)(15)(D) of the Act. However, employment does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent;

    INS Comments
    Back in 1989, INS had commented on the definition of "volunteer" in the context of the employer sanctions provisions of the Immigration Reform and Control Act of 1986 (IRCA).

    In an October 10, 1989 letter, Mr. Schroeder speaking on behalf of INS stated that while the INS regulations implementing IRCA define such terms as "employer," "employee" and """employment," they fail to define "volunteer." It is clear, however, that employer sanctions apply only to acts of employment, and referral or recruitment for a fee. The regulations, Mr. Schroeder continued, define an employee as a person employed by another for "wages or other remuneration." Any determination as to whether an individual is an employee or a volunteer is made on a case-by-case basis.

    Quoting from a hypothetical presented, Mr. Schroeder stated that an individual on an H-4 visa who does volunteer work for a theatrical group does not appear to fall within the definition of employee simply because he or she receives free tickets for the group's performances or is permitted to attend at no cost. Mr. Schroeder continued:
    Factors that the Service would examine in making such a determination would be that the volunteer work was entered into without any expectation of compensation, that the volunteer did not require the free tickets, nor were they offered, in exchange for the volunteer work, and that the volunteer would have performed the services regardless of whether he or she were to receive free tickets or attend performances at no cost.

     

  8. Friday, 9...
    Question:
    Answer:

    Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

    Questions

    Qo1. Can I continue working on my L1 visa? If yes, for How many months? Is it legal to work on L1 after 1st October 2008 as my H1 has already been approved? (I am not sure COS has been applied or not)
    Ans1. The key to this is COS. If you have obtained Change of Status (issuance of a new I-94 with your H-1 approval), you are on H-1 beginning October 1 (or whatever the date of H-1 approval and COS is.

    If COS was not given, you can continue working on L-1 and either get COS or H-1 visa when you want to begin working on H-1. Of course, CIS or consulates may need an explanation for how/why the H-1 employer is willing/able to wait for you to join.

    Qo2. Can my wife continue working on L2-EAD as long as I continue working on L1?
    Is it legal to work on L2-EAD after 1st October 2008 as her H1 has already been approved? (I am not sure COS has been applied)
    Ans2. The key again is COS. If you have it, she cannot work after 10/1 because she would no longer be on L-2 from the date forward.

    Qo3 My wife will be joining on a permanent position for a company C on L2-EAD
    shortly. Can she get her H1 transferred to company C from Employer B (Who applied for her H1) from 1st October 2008 ?
    Ans3. In my view, she can do the transfer even before October 1.

    Qo4. What would be the best options to continue our L1 and L2-EAD status for another 3-6 months ? By doing this would the H1 be Invalid ? Do I have to apply for new H1 considered under CAP ?
    Ans4. You will not be under cap no matter whether you join the new employer right away or not. Read on for the rest.

    Qo5. I read from some of the postings that staying out side USA (Canada, Mexico, India) on October 1st and re-entering USA after 1st Oct will enable L1,L2 status back (if COS has been applied for H1). Is this the only way to retain the L1/L2 status?
    Ans5. In my view this is the best way. Leave on or before Sept 30th (or a day before COS kicks in) and come back on or after October 1st (or the day on which COS kicks in).

    Qo6. .I entered US on a L1-B visa from a 'company 1' on a blanket Visa (L1-b) from India to USA in 2006.
    2.Filed for H1 through 'company-2' in mar 2008.Approved as COS starting Oct 1st.
    3.I did not/could not switch over to H1(company 2) till date due the lack of jobs matching my skills.
    4.Would like to get back in status on L1 (My L1 visa and ITS I-94 are both valid till Nov 09 ).
    5.Some people say that since L1 visa and its i-94 is valid, i can exit and re-enter the country with the L1 petition and that would put me back into status.
    6.Continuing on point 6, once back on L1, i can file for H1 through a different company in future and i wont be counted against cap,is this true?
    Would appreciate your responses as i am concerned that having been out of status since Oct1 would leave me with limited options.

    Ans6. Ideally, to get back into status, you should apply for a NEW L-1 visa and come back into USA. There is a law on the books as far as I remember that says if you are ever out of status (which you are), all your visa stamps are "considered" canceled. This law, however, being next to impossible to implement is largely disregarded. Therefore, a lot of people in your situation just leave USA and come back with the same L-1 visa stamp. Theoretically, at least, that is not a perfect solution.

    You will not be counted against the cap next time you apply for another H-1 as long as you have not been outside USA for one year.

  9. Tuesday, 6...
    Question: Dear Mr.Khanna, I have reading all your post and found you quite informative. I will appreciate if you can let me know the possible consequences of my case. I was in restaurant in Gaithersburg MD on Jan 29 2008 with my boss who was visiting from Atlanta. I had a beer and 2 glasses of wine with dinner came out sat in the car and started backing up. As you know it was winter and had rained earlier the windscreen at the back got fogged out. While backing up I hit a car parked. Police was in that parking lot and arrested for drunk driving. I blew .09. I was given a bunch of tickets after being 30 minutes in the precinct and was released. In the court they dismissed 2 tickets like DUI and DUI par se and convicted me DWI and Failure to control Speed to Avoid Collision. BTW DWI in MD is a lesser offence when you blow less than the state .08 BAC typically .07. And Failure to control speed to avoid collision which is maximum fine $130.00.Now the Judge gave me Supervised Probation till I finish my MADD Class. After that the Probation goes to Unsupervised for 12 Months. Now I am elligible to file citizenship. I have finished 5 years of LPR time with minimal travel aborad. Now my questions are : 1.) Will I get deported or removed. 2.) Will I have problems while entering POE while travelling from overseas. 3.) Will my Citizenship be denied if I file after my probation gets over. Please share your knowledge It will immensly help my stress. This one mistake of my life has really taken a toll in my life. Your earliest reply will highly appreciated.
    Answer:

    Let us look at the law for green cards and removal (deportation) first.

    Remember the following GENERAL elements of the law (there is more to it).

    1. Traffic violations that are not considered crimes under state law have no implications and create no problems for your green card.
    2. If you have only one conviction ever and it is a misdemeanor, you are AUTOMATICALLY protected by law and forgiven under a provision of law called "petty offense exception."
    3. If you have a conviction for a felony we have to look at the law very carefully, but not all felonies are necessarily a problem fro your green card

    For naturalization, even too many traffic tickets can become an issue, if CIS wants to make it so. Generally speaking they look at only the last five years from your application for you history, but there is no law prohibiting them from going back further in time.

    Any kind of crimes could become a problem for naturalization and you must get yourself a lawyer if you have a criminal history of any kind.

    Both traffic tickets and crimes go to the issue of "good moral character," a prerequisite to naturalization. 

  10. Monday, 5...
    Question: I obtained my green card 4 1/2 years ago through employment. My former employer sponsored me h-1 visa for 6 years and labor certificate and green card as well. Unfortunately, I was terminated by the employer last year, which ended my 10 years career at the company. After the termination, I then filed workers compensation claim for the injuries at work, and civil lawsuit for discrimations and under-paid wages through lawyers. The two cases are pending at courts. Now I have a part time job which is not related to the job that helped me get the green card. It is almost time for me to apply for citizenship. However I am worried about how much the two cases would affect the application. I will be asked in the citizenship interview why I left the green card sponsor, why you were terminated and so on, so forth. Please help advise if my worries are correct ? Is it better to apply for citizenship when the problems above are ended in courts ? Thank you very much for your help.
    Answer:

     I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

  11. Monday, 8...
    Question: I have read some very nice articles on your Forum and wanted to get your help on My Weird Issue with I94. I am on H1-B Visa and my Approval (I797) is Valid Till October-2010 However My Indian Passport is Expiring on 26'th-Aug-2009. I just came back from India a week back and Immigration Officer has Issued me I94 Till my Passport Expiry.. Is thr any other way for me to Apply for I94 Extension based on Approval validity without Leaving the Country ??? or i have to leave the Country & Come back ??? Same Applied to my Wife as well Since we traveled together and went for Immigration together immigration officer Issued Her also I94 Till My Passport Expiry Date ...
    Answer:

    Whenever CBP gives you an I-94 with mistakes on it, they can easily correct it if you just go back to the airport and request a correction. Most airports have CBP office hours. In my view, they should issue an I-94 co-extensive with your approval, not your passport. So, go back to CBP. Post your experience here for all.

  12. Friday, 28...
    Question: If a new start-up IT consulting company wants to transfer H1 of a prospective employee who is already on H1 and working for his current H1 sponsor, what are the issues and feasibility for such a transfer? How can such a start-up IT consulting company go about hiring AC21 eligible folks on EAD? May this is the safest route in the beginning until the company gets more employees and grows revenue? Will the AOS of the prospective employee be safe if he is the only employee of this company in the beginning. Of course the company wants to expand in the future but has to start somewhere.
    Answer:

     H-1 by Start-up Companies

    It can be really difficult for start up (or very small) companies to obtain H-1 visas. Doubly so, if people are being hired outside the U.S. Normally CIS asks you to prove:
    1. You are capable of paying wages
    2. You have sufficient amount of work
    3. You are a reliable company with proper staff, offices and equipment.
    4. If providing consulting services, you are able to procure a letter from your end-client showing the terms of engagement including what the H-1 holder will do and who will supervise them.
    YOU MAY SUCCEED If you can:
    - SHOW HOW YOU CAN PAY THE WAGES
    LINE OF CREDIT
    We have advised people to try to get a line of credit from a bank. That works sort of like a credit card. Unless you use the money, you pay no interest on it. Contact any local bank for more details. It is difficult to put down exact numbers, but $250,000 line of credit is a healthy number. Please note, merely having money in the bank may not be sufficient. Also, those companies that are starting with a promised Venture Capital of more than $500,000 should be OK.

    BUSINESS PLAN
    Having a solid, detailed business plan can help. There is mush software out on the shelves that can help you put together a good business plan.
    This will also help show how you have enough work for employees.
    LETTER FROM/CONTRACTS WITH CLIENTS
    If personnel are being outsourced, contracts from clients will help.

    Start up Companies Doing AC21
    There is no law on this issue. The current thinking of CIS appears to be that there is no problem in doing AC21 for a start up, as long as the job offered to the employee is similar to their labor cert job. In the past, CIS had tried to question the start up on ability to pay wages. But Yates memo of May 2005 (posted on my blog under AOS/485 section) shut that down stating that is not relevant.

    Start up companies starting new green cards
    This would be difficult because you have to demonstrate the ability to pay wages from the day you file the labor cert on to the time an employee actually receives the green card approval. This ability is usually shown through a profitable tax history. But if you are consistently paying an employee the wage he/she is supposed to be paid under the labor cert, you are in a good position to get your GC through.

  13. Monday, 24...
    Question:
    Answer:

    Quote:

    Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

    Ans. On an EAD, you can start a company and do everything that a green card holder can do including opening and owning your company as an active participant/owner. Your spouse has larger freedom than you do. You have to be in a job "similar" to your labor certification job. In the May 2005 Yates Memo (Posted under AOS discussions in my blog), Yates said you can port to your own company, but I recommend that only as the last option, because there are some troublesome issues that are still unsettled in self porting.

    Quote:

    Can I hire few more peoples on H1B ??

    Ans. Yes.

  14. Tuesday, 18...
    Question:
    Answer:

    I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
    Q.a) Is the EB1A or EB1-B I-140 premium processed?

    Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

    Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
     

    Ans.a) Currently, there is no premium processing for this type of cases.

    Ans.b) No. We should be able to use the same 485.

    Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.

     

  15. Tuesday, 18...
    Question:
    Answer:

    I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
    Q.a) Is the EB1A or EB1-B I-140 premium processed?

    Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?;

    Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
     

    Ans.a) Currently, there is no premium processing for this type of cases.

    Ans.b) No. We should be able to use the same 485.

    Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.

     

  16. Wednesday,...
    Question:
    Answer:

    Q. I am a student graduating in December with my Masters degree. I have an offer from an university. I understand that universities apply for exempt-H1B. I also understand that exempt H1B's cannot be transferred to non-exempt H1B's.

    Will I be able to work in the period from April to October 1st with the private company, when my non-exempt H1B is still in process? Will accepting this offer be a problem if i want to move to a private firm later?

    Ans. The regulations seem not to address this situation. If I were to decide purely based upon the language of the regs, I would guess that you can work.

    But, my GUESS also is, somewhere along the line, CIS will clarify that you cannot work under these circumstances. The new regs were put into place to eliminate gap in the employment that occurs when a student and their employer confront the gap in employment between expiration of the F-1 EAD and October 1st - start date of the H-1. This may not be applicable to universities who are quota exempt. In your case, you will be working for a private employer while the H-1 is pending through the university. Tough call as far as I can see.

    Do note, I have not spent a lot of time thinking this issue through. So you should ask your employer's lawyers to give an opinion in writing.

    Q. Also will it be possible for me to request the university to apply for a non-exempt visa for me? Is that an option?

    Ans. This would be an option if you were actually not working for the university, but with an unaffiliated entity. I do not see how the university can apply for a non-exempt H-1.

  17. Tuesday, 4...
    Question: I got laid off from work from my present employer on October 31, 2008 and I have 3 questions. Presently, my employer has sponsored both my H1B (completed initial period of 6 years) and Green Card (EB-2, with priority date 2006). I have filled my I-485 in July 2007 and is currently pending. My I-140 has been approved 2 years ago and my employer promised that he will not revoke it. I have approved EAD & AP both for the primary and dependent.
    Answer:

    Quote:

     I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

    Ans. If you do go on EAD, you can get back on H-1 provided you are willing to get a visa stamp from outside USA. There is no limit on the number of days.

    I also think you can try filing for an H-1 transfer and ask to be "forgiven" the 30 days gap in the H-1 transfer.

    Further, per Yates memo (posted above in another note on AC21), even if the employer revokes I-140, you still keep your right to AC21.

    Quote:

    If I move from VA to MD the prevailing wages is changing. So should we file for a new LC?

    Ans. No. That is the whole point of AC21. You should not have to file a new labor certification or green card as long as the job and salaries are similar.

    Quote:

    Within how many days should I file for AC21?

    Ans. No limit. But in my view, ASAP.

  18. Thursday,...
    Question: Taking Promotion in future The current PERM filing is going to be done for the position "Dentist". In the future can she accept a promotion as "Dentist (Lead)" if offered by the company? Will it invalidate the green card application. If we accept the promotion in future can we use the same PERM application without filing another PERM for "Dentist (Lead)" job (jobs are very similar) . She is now a "Dentist(Associate)" and job duties between associate dentist and lead dentist are 70% the same. The lead dentist will have additional duties like oversee day-to-day operations/Supervision.
    Answer:

    Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?

    Ans. That is not advisable. A promotion or change in job description during the pendency of a green card can jeopardize the green card process. The GC process is for a specific job, at a specific location, at a specific salary.

    CHANGES IN JOB DESCRIPTION
    Minor changes can be accommodated. But any substantial change would require starting all over again.

    SALARY INCREASE
    Routine raises in accord with the industry practice should not create a problem. But any large salary hikes are likely to be a problem.

    CHANGES IN JOB LOCATION
    To preserve your green card, we must be able to show that you are TEMPORARILY changing some items in your job description for now, the present time. For instance, the GC is for a job in NY, but you are temporarily working from California. When the GC is approved, you will be placed back in NY.

    If there is an irreversible and substantial change in your job description, we will have to start the entire green card process from the beginning. The only exception to this would be where the change is temporary.

  19. Tuesday, 21...
    Question:
    Answer:

    In professions that require a license under State law (teacher, nurse, architect, physician), an H-1B cannot be submitted without the license. This is the general rule.

    Nevertheless, where the license is delayed because the beneficiary does not yet have a Social Security Number, CIS may approve the petition for at least one year. We must, however, submit documentation from the licensing State agency confirming that the beneficiary has met all other requirements for the license (except providing a SSN) and that one will be issued as soon as the agency receives the SSN.

  20. 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.

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