US Immigration Questions

  1. Thursday, 6...
    Question: I am currently waiting for my final visa interview since my priority date became current just last July. The target date of the interview may be between December to May (6-9 months from priority became current, right?) As of the moment, my civil status is single but I'm planning to get married soon but the schedule might be only after my final visa interview. Will I still be able to include my husband in the petition? If so, what should be done and what will be the range of months for the processing time?
    Answer:

    It is difficult for me to plan your course, but the law is relatively simple. If you get married BEFORE green card approval, your spouse is entitled to "follow to join." That process tends to be quicker than if you get married after you get the green card approval.

  2. Tuesday, 4...
    Question: I am a US citizen. I have applied green card for my parents. Because of certain defects in the papers, USCIS has asked us to go for DNA testing. My parents are in India, I am in US. Can DNA testing be done like this?
    Answer:

    This issue has been coming up more frequently in family-based immigration petitions than it ever did before. The way it currently works is, the RFE will tell you which web site you can go to to get a list of USCIS approved labs. You can call the lab. They will arrange to have the DNS sample collected in India from your parents and from you here in the USA. You send the lab a copy of the RFE. They will send the results directly to USCIS. 

  3. Friday, 31...
    Question: Last year my tourist visa was denied because the officer thought I may not come back. Now I am going for student visa. What effect will the tourist denial have on my student visa application?
    Answer:

    When the tourist visa denial is based upon a possible intent to immigrate (also known as INA Section 214(b) denial), it CAN be a problem for student visa.

  4. Friday, 31...
    Question: Can I just take over an existing business with the required investment and continue?
    Answer:

    That depends upon how old the business is and how you wish to structure your ownership.

    According to USCIS, an eligible enterprise for EB-5 investment is one that is either established after Nov. 29, 1990, or established on or before Nov. 29, 1990, and is:


    1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or


    2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

  5. Tuesday, 28...
    Question: 1) I recently submitted a PERM with company A which is wholly owned by a parent company B. Company B will soon absorb company A which will cease to exist as an independent company and will just become a new department within company B. How will my PERM be affected? <br> 2) If my PERM is audited and I don't want to go through the audit, will it be a good idea to change employers and submit a new PERM from scratch? What are the odds of being selected for an audit twice in a row?
    Answer:

    It IS possible for your green card to remain unaffected even after the corporate change over. Do some research on "successor in interest." I think it is a bad idea to change companies in response to a PERM audit. 

  6. Tuesday, 28...
    Question: Can a J-2 dependent (Canadian citizen) change to other working visa or have to change to H-4 when J-1 gets waiver and moves to H-1. Basically any hope for a spouse on J-2 to get work authorization (TN/H-1/investor visa) before the 3 year waiver is complete?
    Answer:

    Yes, the J-2 can, UNLESS the J-1 holder is a physician serving the three years for J-1 waiver. 

  7. Wednesday,...
    Question: I joined an IT company B abroad and worked for 1 year (Dec' 10 - Dec' 11). I came to US on H-1B (Dec' 11) and am still working with company A (it is the parent company of company B). In both cases I played the role of a manager.<br> 1) Am I eligible for EB-1C (Multinational manager)?<br> 2) In my case since I'm still with the parent company, does the 3 yrs start from the first time I came to US (Dec' 11) or will be from the current time (Oct' 14)? 3) Do software engineers (graduated in engineering) reporting to me qualify as professionals (EB-1C qualifying criteria for managerial role)? If not, what qualifies my role in the IT company as managerial and eligible for EB-1C?<br> 4) What evidences are required from me / the employer to confirm my qualification for EB-1C and also makes it a strong case? <br>
    Answer:

    Looks like you should be eligible for EB-1C. In cases like yours, three years are not an issue, if I remember the rule correctly. You can apply. Engineers qualify as professionals. As to the last point about good evidence, let your lawyers worry about it. I cannot write a meaningful answer. 

  8. Thursday,...
    Question: Can I get K visa for my spouse? I am a US immigrant with green card. Is there something called a V visa?
    Answer:

    V visa no longer exists. There is no K visa option for green card holders. Sorry. 

  9. Friday, 3...
    Question: 1. What are TN and L nonimmigrant classifications?<br> 2. How can Canadian citizens obtain TN and L-1 classifications? <br> 3. I am a first time TN and L-1 applicant – am I required to go to a designated port of entry?<br> 4. Which ports of entry are designated for optimized processing?
    Answer:

    1. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The L-1 nonimmigrant classification - Intracompany Transferee Executive or Manager – enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the U.S. with the purpose of establishing one.

    2. Canadian citizens can continue to apply for TN and L classifications at U.S. ports of entry or U.S. preclearance facilities with the required documentation.

    3. No, you may continue to go to any port of entry along the Canadian border for processing; however, we encourage you to go to one of the designated ports of entry where you will receive optimized processing.

    4. Fourteen total ports are designated, to include 4 preclearance locations.

    For more information please visit this page: http://www.cbp.gov/travel/international-visitors/canada-mexico-travel/tr...

  10. Friday, 3...
    Question: My sister filed petition for me last year maybe I-130. I am an Indian and my wife is Italian, I am in California nowadays since last week. Can we stay here permanently under I-485 or AOS whatever?
    Answer:

    That category takes 13-14 years. During the time you are waiting for your priority date to be current, you cannot stay in the USA just because your green card is pending. You can, however, stay or come to the USA under a visa independent of the green card such as L-1, H-1. You can also apply for a green card in several categories simultaneously.

    my sister filed petition me last year maybe i-130,i am an indian and my wife is italian,i am in califonia nowdays since last week.can we stay here permanantly under i-485 or aos whatever? - See more at: http://www.immigration.com/comment/14928#comment-14928
  11. Thursday, 2...
    Question: Hello Sir, I am H4 visa holder and want to blog for hobby. If I get any money from blogging due to advertisements or page hits, I want to take all of that money and donate it to charitable organization. I want to know is this legal while in H4 status and if so I want to know the correct procedure to do what I have mentioned, so that I am still following the rules for the H4 visa.
    Answer:

    See clip from video recording by Rajiv for the answer to this question regarding volunteer work on H-4 visa status.

    https://www.youtube.com/watch?feature=player_detailpage&list=UUm4s1qwOSz...

  12. Thursday, 2...
    Question: Hello Rajiv Ji, Thanks for your time and responses (over the email). I have below questions. 1) I am an EB-2, with Priority date Jun-2008. Applied i-485 in Jan-2012. Cut-off date became current in July-2014. Through congressperson / infopass found that my application is in background checks. 1.a) I have given fingerprints 2.5 years ago and background checks are not cleared yet. so what are my options in expediting it? 1.b) My worry is the checks may not be cleared before next time dates become current, and I may be in the same situation again. 1.b) Can I use Writ of Mandamus? Does my case (485 pending for 2.5 years, current for 2.5 months, but background checks are not completed yet) have enough reasons to claim "unreasonable delay"? 2) I am using my EAD. My labor says "Senior Analyst" as my job title. 2.a) Can I accept a promotion with a director/managerial job title ? 2.b) or does it cause a problem / RFE in future? Duties are more or less similar and work on same software technology, but will have few direct reports and need to manage projects. 3) Can I switch to H1-B as a safe measure? 3.a) Does switching mean I am abandoning my GC? 3.b) Do I need to go out of the country for stamping or can I continue to work without going out? 3.b) what are the risks involved?
    Answer:

    See the marked clip below from Rajiv's video recording for the answer to this question.

    https://www.youtube.com/watch?feature=player_detailpage&list=UUm4s1qwOSz...

  13. Monday, 29...
    Question: I am working for company X as a full time employee on H-1B visa. They have filed my green card and my I-140 has been improved. Company Y to hire me as a part time on W2 but I need to work as and when required. So sometime I have to work 20-3- hours in a week and sometime, I will not have work for months. I can work from home too during off hours. Company Y is going to file concurrent H-1B. I have few questions regarding my visa: <br> 1) Will it affect my current full time H-1B with Company X<br> 2) Will it affect my green card process<br> 3) Is it ok if I don't work for months for company Y without affecting Company Y's H-1B<br> 4) If I get new I-94 through company Y, will it affect my current status?<br> 5) Will company X know about H-1B filed by Company Y?
    Answer:

    This is not likely to work. Filing a concurrent H-1 is perfectly acceptable in this case and it does not affect your green card process, nor your current H-1. I dont know of any way an H-1 can be approved for an intermittent employment.

  14. Monday, 29...
    Question: I have my I-140 approved(in my 6th year of H-1). But my employer is not handing the approval notice to me. I have both Receipt Number and my Labor number (starting with A.). I have filed FOIA to get copy of I-140 approval notice. I wanted to know 1) Can I transfer my H-1 to another employer by just giving I-140 receipt number to them? 2) Can my new employer use this number to file my GC and keeping the PD based on this number?
    Answer:

    As long as your I-140 is not revoked BEFORE approval of H-1 extension/transfer, the receipt should be enough to get an extension with another employer. The priority date transfer is "automatic" and done at the USCIS level; that should not even need a receipt.

  15. Monday, 29...
    Question: If I have 3 years of college from the UK and 7 years of professional experience, can they give me E-3 visa? The employer has given me a job offer in USA. All degree and work is in IT systems
    Answer:

    If the degree and at least three years of professional experience are in the same field, E-3 should be available.

    If the degree and at least three years of professional experience are in the same field, E-3 should be available. - See more at: http://www.immigration.com/comment/14829#comment-14829
  16. Tuesday, 23...
    Question: What happens if I travel without visa or advance parole while my I-485 is pending? I want to go to India.
    Answer:

    That would lead to abandonment (sort of like cancellation of I-485). You will have to enter USA under some legal status (like H-4/H-1/L-2/L-1) and then file I-485 again when the priority dates becomes current.

    That would lead to abandonment (sort of like cancellation of I-485). You will have to enter USA under some legal status (like H-4/H-1/L-2/L-1) and then file I-485 again when the priority dates becomes current. - See more at: http://www.immigration.com/comment/14781#comment-14781
  17. Tuesday, 23...
    Question: Do we need to send an LCA for H-1B1 Singapore quota?
    Answer:

    Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA.

    Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA. - See more at: http://www.immigration.com/comment/14777#comment-14777
  18. Friday, 12...
    Question: Can I qualify for RN based H-1 if I have only an Associate degree in nursing?
    Answer:

    The simple answer is, no, unless you also have 6 years of professional experience. Also note, not all RN's can qualify for an H-1.

  19. Friday, 12...
    Question: Do I have to get a new visa stamp for my F-1 or can I travel back using the same F-1 visa stamp if my reinstatement is denied? I fell out of status because I registered for less than a full course load.
    Answer:

    In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry.

    In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry. - See more at: http://www.immigration.com/comment/14631#comment-14631
  20. Tuesday, 2...
    Question: My current employer is failing the GC. Below is the job requirement. My total experience is with the current employer only (2.5 years in INDIA+4.5 years in USA)<br> Job requirement:<br> Education: Master’s degree, or equiv., in computer information systems or related field Experience: At least 1 year in position offered or in design defect fixes/enhancements I have US equivalent Master degree. My attorney said for the experience, we can show your current employer INDIA experience(2.5 years for which i worked in India for the same employer and came USA for the same employer). Can we show current employer India experience while filing PERM?
    Answer:

    Generally speaking, you can use the experience gained with an employer who has a tax ID number other than your petitioning employer.

    generally speaking, you can use the experience gained with an employer who has a tax ID number other than your petitioning employer. - See more at: http://www.immigration.com/comment/14003#comment-14003

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