US Immigration Questions

  1. Wednesday,...
    Question: My Citizenship Interview was held on July 8th 2013 (become PR 6/2007) and it is pending since then due to middle name issue. My Indian passport and documents in US does not have middle name, but my Birth certificate has listed my name along with middle name (there is no middle name section in the birth certificate, so they did not bother to mark it separately. <p> So it has been approx. 2 years and I reached out multiple times about the status and so far I got an answer “Will let you know once the decision is made”. Also I have been told that they need to do another round of security check with my name, including the middle name. <p> Now, my company wants me to send me to Germany for some years (approx. 2+ years). I am not sure how I can proceed further. My wife and Kids are US citizens and they will have to move with me to Germany for couple of years.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=556

    FAQ Transcript

    When you have this length of delay for two years the best thing to do is first approach your congressman’s office. Go to https://www.congress.gov/ enter your zip code and it tells you who your house of representative members are and who your senator is. Contact either one of them. Send a letter to the representative and tell them you live in their area and you are a constituent and you have a pending naturalization application that has been stuck for two years. If they are not able to resolve it get yourself a lawyer and file for a law suit. Normally I don’t recommend a law suit but when naturalization applications have been delayed so long a law suit is a good bet.

  2. Tuesday, 10...
    Question: I am an Indian and have been living in London for the last 6 years and currently in the process of getting British Citizenship, which I am hoping to get by April and subsequently British Passport by June. I work for a leading international bank in London.<br> My girlfriend is currently doing Masters in Illinois, USA, so, I am looking to move to US, but understand the H-1B visa is a bit complicated. <br> My question is, how does the quota system work for H-1-B visa and when does the new quota start, and what's the best period to apply for one? So, If I am looking to move there in October 2015, when do I have to get an employer to apply for H-1B for me (provided an employer agrees to sponsor me)? or, is there a particularly good time to apply for H-1B visa? <br> Also, is it easier to get the visa if I am there physically in the US or it doesn't matter?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=baprYGs8IzQ&t=138

    FAQ Transcript:

    Well you don’t have any time to lose. Apply right away. The way it works is your H-1 application must reach the USCIS on April 1st no earlier and usually no later. Sometimes they give us three to four days but normally April 1st is the day the quota opens and that’s pretty much the quota closes as well and there are usually more applications received by the government than they have visas almost two to one ratio maybe more sometimes and then there is a lottery held and if you get selected in the lottery then your H-1B gets approved. You go for a visa stamping and you can enter USA no earlier than 10 days before October 1st when your H-1B visa period starts.

    What is this thing about October 1st?

    The US government fiscal year begins on October 1st so all the quotas including green card and H-1’s they get reset on October 1st.  H-1 you can apply six months ahead of the start date  which is April 1st  so that’s why you file on April 1st  and you begin working on October 1st  but you can enter USA ten days ahead of October 1st.

  3. Saturday,...
    Question: If a GC holder applies for permanent residency in another country (say Canada or Australia) is that automatically considered an abandonment of the GC here in the US? I am getting a very good job offer in Australia and would like to go try it out for a few months to see if its a good fit.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=3BDxO6-OQbc#t=375

    FAQ Transcript:

    The question here is can I have permanent residency in more than one country?

    Yes. You can. I can only comment about USA. I don't know about other countries, so if you have a Green Card in the United States there are possibilities you have a Green Card in U.S. and you have permanent residence for Canada as well. But in fact you stay in USA permanently, you work here, you stay here we really don't care what other permanent residency you have. So if as a matter of fact you are living in the United States we don't care how many other permanent residency you have. 
    If on the other hand, you quit your job, go to other country and take permanent residency there, it can be an issue for your Green Card here in the United States. Government can ask you, what is your intention. I would advice you to take detail consultation with your lawyer and make sure your particular circumstances covered. I think re-entry can be applied to protect your Green Card. But in that case getting a permanent residency in a third country may not be very good idea. However temporary visa would be OK specially when combined with re-entry permit, Form I-131 and or N-470 to preserve your Naturalization. 
    So look into that before you make any firm plan. As a theoretical matter if you are permanent resident of USA and you are living here we don't care how many other permanent residency you have.
  4. Friday, 20...
    Question: Status of the H-4 EAD regulations
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=93

    FAQ Transcript:

    This FAQ is about H-1 quota, how does H-1 quota work?

    I think this is an issue important for many people.

    Question: I am on L-1 A, If I get H-1B this April, is it mandatory to work from October 1st. Can I continue on L-1A and then change to H-1B when I like.

    Answer: It can be done, sure. Here is how you do, when you apply for H-1, don't apply for change of status, its up to you. You can tell the employer and double check it,make sure you talk to lawyers. Just say I want an H-1 approval but I don't want change of status. That way from October 1st you don't automatically get on H-1, you stay on L-1 continue working on L-1. And whenever you are ready you can go outside, get your visa stamped and come back or apply for change of status within USA to H-1, which is like doing H-1 all over again but you are not subject to the quota. So that's how you do.  

  5. Friday, 20...
    Question: I am working for company A, last three years. In order to file green card I need to use my current experience(3 years) as I don't have previous experience to prove. Can I leave the current job from company A, go to another company(company B) and work for few months in ( company B) and go back to my previous company(company A) so I can use the three years experience for GC process? How long I have to be out of company A to use that three years experience?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=813

    FAQ Transcript

    Normally you cannot use as a prerequisite qualification for a job experience that you gained with same employer. To give you an example, let say I joined an employer as an software engineer and I worked 3 years as an software engineer. When I joined the employer, I had zero experience I am right out of the school with master degree and all 3 year of experience with same employer. So when I file my PERM application, can I require that every applicant must have 3 years of experience at least? 

    Answer is No, unless you meet the following requirements. If the job being offered to you as a Green Card job is more than 50% qualitatively different than the software engineer. If you join as a software engineer you got 3 years of experience then next job offered is Project Manager for example where more than 50% of your time spent in managing projects not a hands on architecture or development. Now you can use the experience you gained because job offered is different than the job you had before. There is common sense reason for it. When you joined this employer you had zero experience, after three years employer claims that they require 3 year experience for the same job. USCIS or DOL would want to know what changed that their requirement changed. 

    Now answer to the mass question. I am working for company 'A' for last 3 years. In order to file Green Card I need to use my current experience (3 years) as I don't have previous experience to prove. Can I leave the current job from company 'A' go to another company 'B' and work for few months in company 'B' and go back to my previous company 'A'. So can I use the 3 years experience of GC process?

    Answer: No. I don't think so you still need substantially different job so it is better to be offered substantially different job and apply with the same employer because working for few months for another employer will not work. However if you go from employer 'A' to employer 'B' and employer 'B' does your GC then there is no problem. You can use the experience you got.

  6. Tuesday, 17...
    Question: I got my H-1B petition approved in 2008 and again got it extended in 2008 unto Jan 2011. Now, I have never used both these visa's to work in US. Though, I have traveled few times to US but on B-1 visa for meetings with customer. Today, one of my friend told me that I am eligible for cap exempt H-1B application if I get job in US. Also, what will be the processing time for this cap exempt H-1B. Can this be done in premium processing in 15 days ?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://www.youtube.com/watch?v=xv_vI7O0d4U#t=518

    FAQ Transcript:

    It is a very odd situation. I think the USCIS interpretation of when you become exempt from the quota is incorrect. But this is their current thinking at least as of last week. With them you never know. They felt if you are outside USA and you get an H-1B approval never go for visa stamping. You are not exempt from the quota. So if you never get visa stamped we don’t consider you to be exempt. If you’re in the United States and you get your H-1 approval but the employer who got the approval revokes your H-1 before October 1st you are not exempt from the quota. I think both the interpretations are incorrect. I would encourage you to try and take a chance and see if you can consider being quota exempt. Anyway if I were you I would certainly file a quota application in April just to preserve all my rights and if it does not get selected in the lottery file again and ask for quota exemption because of the reason that you have an H-1 from before.

     

  7. Tuesday, 17...
    Question: Currently I'm on L-1A status and it expires in *** hence my employer is planning to file new H-1B this April not change of status. Here are my questions...<br> 1) If I get H-1B this April, is it mandatory to work on H-1B from Oct 01, 2015?<br> 2) Shall I continue with L-1A status until it expires and then can I change to H-1B?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=xv_vI7O0d4U#t=441

    FAQ Transcript:

    The answer to the first question is it can be done. When you apply for an H-1 do not apply for a change of status. That’s up to you. You can tell the employer and make sure you talk to the lawyers. Just say you want an H-1 approval but I do not want change of status. Come October 1st you don’t automatically get on to H-1 but stay on L-1 and you can continue working on L-1 and whenever you are ready you can go outside get visa stamping and come back or apply for change of status within US to H-1 which is like doing the H-1 all over again but you are not subject to the quota. 

  8. Tuesday, 17...
    Question: My spouse and I are living in different sates due to obvious work reasons. I am currently on H-1B Visa with my I-140 approved. My wife is on H-1b working as a full time employee to XYZ company. Now, with Obama's executive action particularly with H-4 EAD my wife is planning to change her visa status from H-1B to H-4 so that she can get opportunities at the place where I live (at this point of time all the companies at my place are asking her for Either Green Card or Proper Work permit without any sponsorship in order to hire her). In this regards I have 2 questions <br> 1. Would you suggest us to get H-4 approval in advance before H-4-EAD rule comes into effect or would you suggest we can file them concurrently?<br> 2. If she applies for H-4 when can she quit the job - Is it on the day of notice of application receipt from USCIS or from the day of H-4 approval?<br> P.S: I am aware that no rule has been published yet but just wanted to get your thoughts/suggestions on this issue.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

    https://www.youtube.com/watch?v=xv_vI7O0d4U#t=110

    FAQ Transcript

    As you folks know there is a regulation that is pending for a long time and we were expecting in December that it will get finalized, published and H-4 people whose spouses are at the I-140 stage would have the right to work with an EAD. So far that is still pending; there is no news on that. Last week USCIS said that they are very close to finalizing but knowing the government I do not know what very close means. 

    There is a difference between Executive action of Obama and the pending regulation for H-1 EAD. These are two different things. Right now we are waiting for the regulation that was pending to be published.  

    So the answer to the question is she can quit the job on the date USCIS receives the H-1 application. If she does the H-1 application online then she can quit the same day. I would want you to wait and see what the rule looks like before you start making changes in the work authorization. if you’re ok with the idea that your wife could end up not working at all for many months then go ahead and apply for H-1 but if you do not  want to take that chance then wait until the regulations become finalized and then you can decide how you want to go about. 

  9. Thursday, 5...
    Question: I have two approved I-140`s in EB-2 from two different companies with same A# on them. One with 2009 PD and other with 2011 PD. I am working for the company with 2011 PD . 2009 case was approved after the 2011 case so we could not port the date at the time of filing for 2011 case I-140. Now my question is do I need to file for amendment to port the 2009 date? Or am I eligible for filing I-485 without the I-140 amendment? Both I-140's are alive and employer did not withdraw any of them.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=657

    FAQ Transcript

    PD (priority date) date transfer is supposed to be automatic. We don’t have to do anything about it and it is my understanding what USCIS does is they do periodic sweeps in fact several times a month. They do a sweep like queries of their database and whoever is entitled to whichever priority date at the earliest they automatically assign that to you. So if you have one I- 140 approved earlier another I-140 going on or approved they will automatically assign you the earliest priority date to which you are entitled. That may or may not reflect in your approval though. So just because it does not reflect in your approval it doesn’t mean that you are not going to get the earlier priority date. You can confirm it by opening a service request. You can confirm by asking them your priority date.

    Hence the answer is you are eligible for filing I-485 automatically when the 2009 date becomes current. All you have to do is attach a copy of the earlier approval notice with it along with the current approval and you should be fine.

  10. Thursday, 5...
    Question: I have my I-140 approved under EB-3 category, even though I have Masters Degree from accredited US University. Can I change it to EB-2 now?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=sXq6DaDK7AA#t=472

    FAQ Transcript 

    The idea is once an I-140 is approved under any category EB-1/EB-2/EB-3 the priority date becomes the property of the employee. Whether the employee goes to work for a different employer or a different job completely or like a different job where you go from being a IT professional to a civil engineer you would still carry your priority date. This is not AC21.  AC21 requires same or similar job but that also requires I-140 approval, I- 485 pending for 180 days. This is not that case. The priority date transfer from EB-2 to EB-3 requires only the I-140 is approved. 

    Hence the answer to the question is YES. If you get a job with the same employer or with a new employer that requires a masters degree or bachelors plus five year experience type of qualifications and your priority date will remain the same. The difference between AC21 and priority date carry over date is this: In AC21 you do not have to re file the green card. You can take the whole green card and take it over to a same or similar job if you’re I-140 is approved and I- 485 is pending 180 days. But in the priority date transfer you carry forward nothing. You only carry the priority date and it can be ported from EB-2 to EB-3/EB-1 to EB-2/EB2 to EB-1 it doesn’t matter. There is no requirement that the job that you are filing for is same or similar. That is the difference between AC21 and priority date transfer.

  11. Thursday,...
    Question: I am still in the process of getting a green card. During this process I want to change my job from a present one to another one that is more challenging than the present one. Would this in any way affect getting the green card or is it advisable not to shift jobs now?
    Answer:

     

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?x-yt-cl=84359240&v=uaBshBiaCUg&x-yt-ts=1421782837&feature=player_detailpage#t=719


    FAQ Transcript

    In this scenario we have employment based people who are good workers, very skilled people and they have a lot of trouble changing jobs or advancing in their careers because technically while the green card is going on even if you take up a promotion you could end up losing your current green card and have to start all over again - at least part of the process. So this is not a good thing. 

    Keeping in view with the current law what Obama had said on November 21st about his plan and finally what this bill (Immigration Innovation Act) says. 

    First of all under the current law if you change your employers before your I-140 approval is obtained you will lose everything. You have to start all over again. That means if you are a EB-1 based candidate your I-140 must be approved. If you are an EB-2 or EB-3 based upon the labor certification your perm application must be approved and then you’re I-140 must be approved. Remember I-140 can be filed by premium processing. So you got to get your I-140 approved very quickly. Generally speaking if you move before I-140 is approved you get nothing. If you move after I-140 is approved but before I- 485 is filed you keep your priority date and you keep the right to extend H-1 beyond six years as long as the I-140 is not revoked. This is an important concept to remember. You keep your priority date - that means when you go to the next employer you will have to start the green card all over again but your priority date will be the date the first case was filed which again is a very big advantage. The priority date is capped but here is an additional provision. if your priority dates are current and you have filed I-485 with the old employer, after 180 days of the I-485 pendency and the I-140 approval you can take any job anywhere with any employer and be able to carry the same green card forward without having to redo any work. so before I-140 you get nothing, after I-140 and before I-485 you get your priority date and the right to extend your H-1 beyond 6 years and after I-140 approval plus I-485 filing 180 days thereafter you get the right to keep your green card even if you take a slight promotion with another employer or move to an entirely different employer as long as the jobs are same or similar. 

    President Obama said normally applicant can only file the last step - the I-485 if the priority date is current. He said he would change that by allowing the applicant to file I-485 along with the I-140 no matter where the priority dates are. This is a big advantage. That means technically just roughly speaking once you start your green card process through PERM in a year and half you could be free to join any employer – proximately or two years at the most as long as you  maintain the job category you are in. President Obama also said he is going to make it clear that advancement in career is considered to be same or similar job so that your green card will not be disturbed. And that idea has been very welcomed. Combine that with the Immigration Innovation Act you could be getting your green card much earlier than 3, 4, 5....10 years that you are waiting for right now. So all these things combined are very good signs for people in a situation such as the query above. If you have not yet got your I-140 approved and you are far from that stage it’s ok as long as you don’t have H-1 problems. If you are about to get the I-140 approved then get it approved. If you have H-1 issues beyond six years make sure the second H-1 is approved before you change employers. Once the H-1 is approved for 3 more years even if the old employer revokes the I-140 they cannot take your right to the H-1 you already got. You can start another green card and protect yourself.

  12. Wednesday,...
    Question: I am a US Permanent Resident from Nepal. My girlfriend (soon to be wife) is a student doing her MBA and is in F-1 visa (student). She is graduating in May 2015 and will start her OPT soon after that. We are planning to get court married real soon (within a month) and file for her green card soon after that. Once she gets her green card, we'll go home and get married with all the religious ceremonies. <p> I had few questions about the green card process for my wife. I looked through various threads of various forums and I am more confused than before on how exactly this process works. I got conflicting answers for these questions. So, I am posting these questions so that I could get the correct answers from the expect himself. <p> I understand that for my wife's GC, first I need to petition I-130 and she needs to wait until her priority date becomes current (which the people say can take several years to be current), then she needs to apply for Adjustment of Status. <p> 1. Could you go briefly on the whole process from start to finish? <br> 2. Some of the threads on the other forums said that the Congress changed the law so that there is no wait time for Spouse of Permanent Resident to apply for her green card. How much truth is in this statement? <br> 3. Some people who applied about a year or two ago said that they got their GC on hand within 6 months. How is that even possible when the wait time to just apply for GC under this category is several years? <br> 4. What happens if she applies before her priority date becomes current? Will her application be denied or will it just sit in a queue (first come first serve) until the priority date becomes current and then it will get processed? <br> 5. If she starts her OPT in May 2015 and the OPT lasts for 1 year (till May 2016), would that be enough time for her to apply for GC through my petition?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=99

     

    FAQ Transcript

    One of the problem with a student applying for a green card is that traveling could become an issue because if CBP stops you at the border they could say that her student status is questionable because she has immigrant intent. She could have the same problem if she is married and has applied for a green card when she tries to go for her OPT. So keep these two things in mind.  You may want to time the filing of marriage and the filing of I-130 after the OPT starts and not travel until the green card is actually in hand.

    Looking at the Visa Bulletin which is a monthly estimation from the State Department of the dates that will be available in the following month, the latest one which is January 2015 (http://www.immigration.com/visa-bulletin/visa-bulletin-january-2015), and if we look at this in F2A category for Nepal which is “All Chargeability Areas  Except Those Listed” right now they are backed up to 15 April 2013. At least they are backed out for less than two years. It is reasonable to expect that the green card within a couple of years maybe two/two and half years.  But these dates can go up and down quite rapidly. Keep that in mind.

    Typically Form I-130 is filed. Once that is filed you have to wait till the priority date becomes current.  When the priority date becomes current you file I- 485 and with the I-485 typically you file an application for employment authorization for advance parole to travel. Once you get the advance parole you can travel. At that point student status is no longer an issue.

    So in a nutshell that is the process. When the time comes, the I-485 gets approved and she gets her green card.

    Answer to question 2: That is incorrect there is a wait time.

    Answer to question 3: That can happen only if the priority dates are current.

    Answer to question 4: I-130 has to be applied before I-485 or will simply be returned and you will lose your fees and will have to file again. 

    Answer to question 5: It does not look like it, but you can apply for H-1 because H-1 is immune from the problem of having a green card pending. F-1 has a problem and shhe can’t travel. But H-1 will not have that problem. I would suggest in this April apply for her H-1. That way you are good for three years and you can apply for her I-130 right away. She can travel freely once she gets her visa stamping. So it is a really good way to go.

  13. Monday, 12...
    Question: Need your esteemed advice for my mother (75 years old, sick and disabled). We are only two sons and our father passed away last year. We have nobody back in Pakistan who can keep her and look after her. My brother lives in UK. I am living and working in USA (on EB-2 green card). My mother had been refused UK visa twice as she has no sufficient family ties to home country (Pakistan). I received my green card in April 2011 therefore I have some time still remaining to apply for my US Citizenship (January 2016) and then sponsor her. <p> My mother B-1/B-2 visa is expiring in August 2015 and keeping in view her long frequent trips to US (she always departed before I-94 expiry, no overstays) and insufficient family ties to home country (Pakistan) her B-1/B-2 re-stamping seems very hard. <p> Can you please advice what can be done here? What are the options to keep her with us in US?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 


    FAQ  Transcript

    This is another very commonly encountered problem. Where somebody’s here on an H visa, L visa or Green Card and their parents are in India, Pakistan , UK or somewhere else and the child is the only support for the parents and  the parents are not eligible for any visa to come to the US . We had actually on immigration.com in our sample cases (http://www.immigration.com/sample-cases) there is some mention on cases like this we have done. It doesn’t mean that they will always be successful but really the law permits for a tourist visa and then continued extension of a tourist visa. Sometimes the USCIS and the State Department might  consider it to be an acceptable reason for a parent to live in USA on an extended basis. So if your brother has tried to go to the UK and they have not been able to procure a visa to the UK and you are in USA and you being a  Green Card holder of course cannot apply for them until you become a US Citizen.  I think it would be a good idea to apply for a tourist visa.  Make it clear that they want to come and stay here long term as far as the law allows them to.

    Once again it will be a good idea to try that. I am not sure if it will work but it is worth trying.  Does the law permit a B-1 and B-2 in these circumstances the answer is “yes”. You can actually disclose to the consulate that your parents are going to USA and intend to stay there as long as the law permits because the son resides in UK.

     





  14. Friday, 9...
    Question: I am in L-2 Visa with an approved I-140 from my employer with a priority date of August 2012. My H-1B applications never got picked up in the lottery. My husband's 7 years of L-1A comes to an end in March 2015. So we have to go back to India. My question is, if with Obama's immigration action develops and a possibility occurs for allowing approved I-140 petitioners to apply for I-485 and EAD, what is the process for me to get an EAD while I am in India and how can I come back to US using the approved I-140?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

    FAQ Transcript

    Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

    Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.

  15. Wednesday,...
    Question: <b>From our community member </b><p> <b>Here is my Situation.</b><p> I used to work for Employer "A" who filed for my EB3 Labor and I-140. I-140 was approved in Feb 2007. In July 2007, when the dates became current, I filed for my I-485. In December ending of 2007, which was around 180 days after filing the I-485, Company "A" was acquired by Company "B", at that time I got an email from my employer HR indicating that Company "B" will now take over all immigration responsibilities of "A" and no H1 transfers or re-filing of I-140 is required. I was also assured that since my I-485 was pending for 180 days and i had EAD and 6 pay slips / one per each month from company "A" , there should not be any issues, since AC21 can be applied too, in this case. So I continued to work for Company "B" for about 1 year from Jan 2008 to Jan 2009. I received pay checks from "B" during this period. <p> In Feb 2009 I joined a direct client, Company "C" on H1B. Got the H1B approval beyond 6 years, using company "A" I-140 approval copy. Company "C" Attorney sent AC-21 documents to USCIS. Company "C" does not file labor or I-140 they do only H1B or hire on EADs but does not do green cards. Now, after more than 7 years of I-140 Approval from Company "A", I came to know that USCIS, has revoked the I-140 of a different employee who was in the similar situation as me, but he didn't had H1B and he was forced to leave USA since his I-485, EAD and Advance Parole were all based on this I-140. It seems USCIS said the underlying Labor and I-140 were fraud. Hence everything is denied. He did leave the country. <p> <b>My Question : </b> What are my Options if something like this occurs for my case too? I understand its hard to tell if this will occur or not. Company "A" which filed my I-140 no longer exists and I have no contact what so ever with Company "B". If I-140 gets revoked for fraud by the company "A", will the employee be held responsible? Can this kind of adverse decision be appealed and during appeal process what happens to the status. Are we allowed to stay and work in the country when this case is in progress? I was reading online about the "The case, Kurapati vs USCIS”, this lawsuit is similar in nature. Is there a ray of hope with this? <p>You’re Suggestions/Comments please.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

    ANSWER TRANSCRIPT

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

    - See more at: http://www.immigration.com/faq#sthash.DTqPrkHp.dpuf

    First of all a company does not file labor or I-140. They are not going to do green cards.  

    Now Kurapati actually does not stand for this.  Let me explain to you what happens. First of all I-140 can be revoked by the USCIS for fraud at any time. In addition they can also revoke an I-140 where it was not approvable when filed.  So if it was incorrectly approved it can also be revoked. If it does get revoked unfortunately USCIS reading of the law is it gives you no portability right and it gives you no right to priority date. I think that’s a question because if they revoke an I-140 after they have approved it I can still argue for the priority date if the revocation was not for a fraud. Although I think I would probably loose that argument. So in any case right now the rule is that if they revoke a case either for fraud or for not having been approvable when filed you get nothing out of it. You cannot get the priority date, you cannot get anything. The problem is what do you do?  Can you file an appeal and while the appeal is pending keep getting H-1B extensions and the answer is doubtful unless the old employer wants to file the appeal.

    About five years ago we had a series of cases like this where a company went under - couple of hundred employees was put under the street. We were able to file appeals on behalf of the employees using the Kurapati logic. What is the Kurapati logic?  That’s the case in which the 11th circuit this year decided that even employees have the right to fight an I-140 revocation.  So in our view we always took the position that especially where AC21 rights are involved employees have a clear actionable plan to the I-140. So it’s not only the employer but even the employee who should be allowed to file the appeal.

    What can you do?

    In my view the best thing to do is leave this employer and find another employer who is willing to start your green card process because if this green card can go away really you need to have a backup plan. That is the only thing I can recommend.  

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

  16. Tuesday, 6...
    Question: 1. How does the National Visa Center fit into the U.S. immigration process? <br> 2. USCIS sent my immigrant visa petition to the NVC. Now what happens?<br> 3. How do I know if my priority date meets the most recent cut-off date? What does that mean? <br> 4. How do I know what my priority date is? <br> 5. How Do I Contact the NVC?
    Answer:

    1. After U.S. Citizenship and Immigration Services (USCIS) approves your immigrant visa petition, USCIS forwards your petition to the National Visa Center (NVC) in Portsmouth, NH for immigrant visa pre-processing at the correct time. Immediate relative categories do not have yearly numerical limits. However, family preference and employment based immigrant categories have numerical limits each year; therefore, lengthy wait times are involved for processing to begin.

    2. If your Priority Date meets the most recent Cut-off Date, or is likely to become current soon, the NVC will:

    1. Invoice you for your visa application fees
    2. Collect your visa application and supporting documentation
    3. Hold your visa petition until an interview can be scheduled with a consular officer at a U.S. Embassy or Consulate.

    If your Priority Date DOES NOT meet the most recent Cut-off Date, the NVC will notify you and hold your petition until your Priority Date meets the most recent Cut-off Date or is likely to become current soon. As your Priority Date gets closer to the Cut-off Date, NVC will contact you to start processing. The Department of State updates the Cut-off Dates on a monthly basis in the Visa Bulletin

    3. If your Priority Date meets the most recent Cut-off Date (called becomes current) and your petition is ready to begin processing at the NVC. As your Priority Date gets closer to the Cut-off Date and is likely to be current soon, NVC will contact you to start processing. Learn more by reviewing the Visa Bulletin.

    4. USCIS assigned your immigrant visa petition a Priority Date when you filed it with USCIS. If you are unsure of your Priority Date, you should refer to the Approval Notice that you received from USCIS.

    5. NVC Contact Information

  17. Monday, 5...
    Question: How does a traveler revalidate a visa without their I-94?
    Answer:

    The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation. In order to demonstrate eligibility for automatic revalidation, a traveler may be required to present a copy of the website printout to the air or sea carrier prior to boarding. If entry occurred prior to automation, a paper form must be presented in order to comply with validation requirements. For more information about automatic revalidation go to http://www.cbp.gov/document/bulletins/automatic-revalidation-visas.

  18. Friday, 5...
    Question: I have a question on H-1B. I have an approved I-140 from company B and I'm currently working for company A on H-1B( valid till February 2015). Company B applied for H-1B transfer and also 3 year extension based on approved I-140. I'm expecting H-1B transfer process to be over by 10th Dec 2014( as it was a filed under premium processing ) but I would like to join them only after Jan 1st 2015. In the meantime I would like to continue to work for company B till Dec 31st 2014. My question is how long can I continue to work for company A after successful transfer of visa (H-1B) to company B ?
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=2372


    FAQ Transcript

    The Answer to the question that is often asked: I am working for an employer on H-1B, my transfer to another employer, let's call other employer 'Y' gets approved. I am working for 'X', 'Y' gets approved and can I continue working for 'X'. The answer is 'Yes'.

    Under immigration law, approval of the second case does not over rule your previous H-1 approved. If you choose not to join them or join them 6 months later, I think it is OK. However, if you have signed any contract with employer 'B' or employer 'Y' in this case. Just make sure you are not violating any contract issue.

    Under immigration law, I don't see any problem for you to continue working for employer 'A'. How long that's very difficult question to answer.  I would say commercially reasonable period of time. Technically, under the law there is no limit to how long you can continue. If you have joined after 6 months, 7 months, 4 months or 5 months, USCIS can raise an objection, as to if the second employer really had the job through. Don't continue too long, there is no legal limit here established.

  19. Friday, 5...
    Question: Error in last H-1B extension- now I-140 approved and I have been working on H-1B since 2005. In between, I changed to -F1 and also spent time outside USA. Cumulatively, I would have completed six years of working on H-1B by March 30 2015, after excluding stays in USA on non-H-1B status and stays out of USA.I changed my job in Feb 2014 and have been working with this employer since then. At the time of change, the current employer filed for a H-1B petition and requested an extension for three years – from Jan-2014 until Jan 2017, even though, if I added up all the time of work on H-1B visa in USA, I would have completed six years by March 30 2015. My I-140 has been approved this month. Now I do not know whether my employer should file for an extension of H-1B (assuming that without the I-140 approval, I was allowed to work until I completed six years of H-1B in USA) or not file for H-1B extension, because, the last extension is valid until Jan 2017.
    Answer:

    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1831

     

    FAQ Transcript

    What happens is sometimes, USCIS by mistake gives you more time than you are entitled soon for your H-1. Let's say your 6 years is getting over in one year and they give you 2 or 3 years by mistake.

    Can you use that time?

    And the answer is, that is very risky, don't do that because USCIS could say that you are deliberately misusing an error made by them. They can consider it to be a deport-able offense. It can be a mess. You should assume you have to go through whatever the correct date. You can even call USCIS, make notes of date and time of call etc. Ask them what they want you to do. This is something that your lawyer should be able to resolve. Have them talk with USCIS, protect yourself. Don't assume that because USCIS made an error and gave you more time, you can use it.

  20. Friday, 5...
    Question: I am a physician completing my J-1 waiver ( on H-1B now in US, waiver will finish by June 2015). My wife became a U.S. citizen few months ago and she has filed I-130 for me. If I-130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ? If I have to wait till June to apply for I-485, will I be able to get EAD right away or will I need to be on H-1 for a while I-485 is accepted ?
    Answer:

     See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

    https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1320

     

    FAQ Transcript

    The way it works is physicians when they have J-1 they get a waiver job like Conrad 30 program or through veteran's administration any one of these things. They are working on completing their waiver job typically 3 years. So the question is when can I file I-485?  This comes up very frequently in the context of physician, both when they are trying to do EB-1 or National Interest Waiver. In this case applying for his wife.  The answer is you cannot file I-485 until your 3 years of waiver is complete. Even if you file 1 day early your I-485 will be rejected. So until your waiver is complete you cannot file I-485.

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