US Immigration Questions

  1. Monday, 24...
    Question: I have a question on the unpaid leaves when outside USA while on H-1. I am on H-1 and recently went to India for stamping which was completed without any problem. I had paid vacation of 2 weeks, which I had already used and stayed in India for a month which is not going to be paid. My employer is saying these will be unpaid leaves and won't be running paychecks for these leaves and is mentioning that this won't be a problem in future as this is legal. I want to take legal opinion from you regarding what the law says in the above situation. <p> 1. If I am out of US on unpaid leaves and won't get paid, will there be any issues on my H-1 status in future for transfer or GC? <br> 2. If due to unpaid leave, W2 is less than the LCA, will it be a problem? If yes, what documentation we can show to USCIS to clarify to them why it’s less?
    Answer:

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

    https://www.youtube.com/watch?v=ujMQ79pgzX8#t=1516

     

    FAQ Transcript

    If you are on H-1, sometimes people ask me, I want to maintain status even though I am getting laid off. Can I be on unpaid leave and does maintain status? 

    Answer is NO. Unpaid leave is not a device to maintain status. However in this scenario  you have gone to gone to India and  got the stamping done and you got the paid vacation of 2 weeks , but you want few more weeks of unpaid leave and is this legal? 

    And the answer is YES. It’s when the employer gives you leave unscheduled, normally unpaid based upon your request not because you don't have a project, then for them not to pay you there is no problem. And for them not to pay you especially when you are outside the USA is absolutely no issue. 

    The only problem is, make sure for the green card purposes the employer is generating enough money to meet the ability to pay wages issue. This is something you have to talk to your lawyers about it. Just tell them make sure if I am unpaid for few weeks it does not affect my green card, ability to pay wages issue. H-1 is no problem but if W-2 is less than the LCA because you are outside USA  there is good explanation. 

    What documentation can you show? The facts that you are outside the U.S.A; so your boarding passes, any other evidences you have been outside the USA any email from you, something inviting or requesting that unpaid leave of absence for personal reason.

  2. Monday, 24...
    Question: I am working on H-1B. This week, I got my I-140 petition approved that was filed in EB2. I am Indian citizen born in India. My marriage is scheduled to happen in Jan, 2015. The girl is citizen of India and was born in Nepal. I have heard that after marriage, I would be eligible to file I-485 for both myself and my (then) wife, based on cross-chargeability rules. <br> 1: Is my eligibility to file I-485 (based on the birth country of wife) and its approval thereafter dependent on discretion of USCIS? If yes, does USCIS generally approve or deny such I-485 petitions filed on the basis of cross chargeability rules? <br> 2: Is there any reason due to which my wife and I would be denied from filing I-485 and there-after getting an approval of I-485 (leaving aside fraud matters)? <br> 3: My fiancée is yet to get her passport made in India. I found that my fiancée does not have her birth certificate from Nepal. Is a birth certificate the only way to prove location of birth? If she gets her birth certificate made now, Does the USCIS create issues about a birth certificate made so many years after birth? <br> 4: In my scenario (EB2 petition, primary applicant India born, wife Nepal born Indian citizen), How long (approximately) after filing I-485 would it take to get the green card?
    Answer:
    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
    https://www.youtube.com/watch?v=ujMQ79pgzX8
    
    FAQ Transcript
    
    Here is the situation. What is Cross-Chargeability? Let me explain. Normally when we do analysis which country quota do you belong to for your employment based Green Cards we go by your country of birth. If you are born in India and you are citizen of Japan, you are still going to be charge to India not Japan. If however, your wife is born in third country in Japan you are born in India but your wife is born in Japan, you can be charge to Japan that is called Cross Charge-ability. That is very useful thing to have, because all of sudden from a heavily backed up country you go to country where dates are current. 
    So the problem is she is born in Nepal but does not have the birth certificate. Before I go to the birth certificate question, let me go one by one. First is, does USCIS have discretion to deny such cases? Or do they have to give me the Cross charge-ability? The answer is they have to give the cross chargeability. This is not the question of discretion; they are not doing any favors. Once you meet the requirements and you can prove it you are entitled to your cross charge-ability. You cannot be denied your I-485 for this reason.
    Now, she does not have the birth certificate from Nepal. Birth certificate is the only way to prove the location of birth, it gets tricky. In normal circumstances if you don't have a birth certificate what you will do is you will get a certificate of non availability from the village Panchayat or Municipal corporation where she is born saying that her birth is never recorded. Then you will get two affidavits from people like her parents, who say that we know that she is born on this date, this place. In areas of cross charge-ability USCIS may require further evidence. It can be any evidence about where she lived in Nepal, things like that but if you try to register her birth now that's not going to happen.
    So if you do go through the cross charge-ability and your dates are “current” typically your Green Card should be done within a year.
  3. Tuesday, 18...
    Question: Currently I am on H-1B and my wife in H-4, my company had recently filed for Green Card. It has been 6 months since the petition has been filed. My wife has about 5 years of work experience back in India. She is interested to work here now. What are the possibilities of her getting a job here in US. As my GC is in progress, can she start looking for a job once my I-140 is approved?
    Answer:

    Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

  4. Tuesday, 18...
    Question: I am an Indian studying in New Zealand. I have finished my first semester. During my 3 month semester break, from New Zealand I would like to apply for a B-2 visa(visit for pleasure) to the US to attend my best friends wedding as I am her bridesmaid. My query about the funds that I need to show <br> 1. How much do I have to show <br> 2. How old should the funds be
    Answer:

    For visitors visa, there is no requirement of possessing funds. The consulates can require, if they so choose, that you demonstrate your ability to support yourself during the visit, but there is no hard and fast rule on this. Your most likely hurdle will be the need to prove that you will come back and not stay in the US illegally. 

  5. Friday, 14...
    Question: In 2008 while I was working in gas station I was caught selling alcohol to minor. I was in student visa at that time and was getting paid in cash. This was unauthorized work. I was not arrested but went to the court and the final verdict of case came to attempt to sell alcohol to minor which falls into misdemeanor C. Right now I am in H-1B and I have filed my green card through my employment. My Labor and I-140 is approved and waiting for my PD date to be current to apply I-485. So what are my chances to get I-485 approved having that case in my past? I have got mixed answers from the attorneys I have contacted so far. Some said I should be fine and some said if USCIS ask about my work authorization at that time then my petition will be denied due to violating my F-1 status. Please let me know what you think. Will USCIS go further to ask that since you are selling alcohol on F-1, then you must have violated immigration law by being employed without work authorization?
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2538

     

    FAQ Transcript

    If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody  or some kind of public nuisance conviction, in  this  case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?

    First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.

    So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.

    Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction. 

    What is conviction under Immigration law?

    A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK. 

  6. Friday, 14...
    Question: My wife came to US on H-4 initially and applied for H-1B. She has got RFE asking for more project details. She got one job offer meanwhile and her employer replied for RFE also filed separate Amendment petition with new job offer details. We have got approval for H-1B without I-94 details. Shall we expect I-94 once the Amendment process is approved?
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2384

     

    FAQ Transcript

    This FAQ is on “filing amendment for pending H-1B petitions”.  

    Let me explain to you, what the problem is.  Let’s say I apply H-1B for myself and I am going to work for IBM as the end client. When we filed the case suddenly in 3 months my client changes now I am going to work with Sun Micro systems. Can I file amendment in midstream and the answer is very problematic.

    Normally, USCIS they used to be OK until a year ago.  Last year or so USCIS have been saying if your situation changes while the case is pending, we will not accept the change. You have to file H-1 again and if you are out of status you have to go outside USA for visa stamping.

    See in your spouse’s case there is little bit of a better situation. In that she is still on H-4 maintaining status. They applied for amendment separately, it might work. If she is a quota case that becomes another problem because if first case is not approved tenth amendment cannot be approved, just keep that in mind. 

     

     

  7. Friday, 14...
    Question: Iam a Indian National Married to A US PR holder She has cleared her N400 Interview .I have been last year Denied Admission (deported) from Airport after me being initially on Student (F-1) Visa & then on H1B (61/2 years previously) with Citations : 212(a) (7)(A) (i)(I) & 235(b) (1) .<br> The questions I have for you are :<br> Q) Do I have any 3 yr, 5 Yr or 10 yr ban on my entrance to USA ?<br> Q) Do I need any waiver like I-212 or anything else for my future entry to USA ?<br> My I-130 had been approved and I believe I can upgrade my I-130 by my Spouse sending her Naturalization Certificate & her passport copy to NVC(Kentucky)<br> Q) Do you think I might have difficulties while facing this changed IR-1 Category Visa Interview and any other problems at the Port of Entry ?<br> Q) What timeframe does NVC take to notify the Consulate & Can it be Hyderabad,India ? & Overall how much time will it take for me to get the Visa or the Conditional Green Card
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=1825

  8. Tuesday, 11...
    Question: Currently my I-140 is approved and now for the I-485 I need to present date of birth certificate. Problem is that DOB on certificate is correct and on all other documents including school, college, and passport and in all US records it is in correct. It started with wrong DOB in 10th certificate which was used in college, passport and finally all US documents. Now I went through all the channels and found the ways to change in passport and in all US documents. Question is what legal problems I should be prepared for and how it impacts my US records once it is changed. I am in US for last 7 years. I need to take decision on this as if it is worth doing it or just go back to India and may be forget about GC for this time. Really appreciate you taking out time for this kind of questions. Really appreciate you taking out time for this kind of questions.
    Answer:
    FAQ: Discrepancies In Date Of Birth Information

    FAQ Transcript

    First of all you don't need to leave USA and go away and the question regarding should I forget about Green Card?
    
    No, not at all. What you do is when you file I-140/I-485 make sure you mention your correct date of birth. Try to get your documents corrected, if you cannot get corrected have your lawyers file affidavit explaining what happened. But always go with correct date of birth.
    
    Have we done this in the past? Yes we have. Have we had the problems? Little bit. 
    
    We have to make sure that government understands it what the reason is and that we are just not being cute and trying to take advantage in some ways by creating the false identification. As long as government is convinced about that I usually see no further problems. So just don't give up, there should be detailed explanation, we should make attempt to make sure that you have corrected all the information about your date of birth on your passport, your school certificate. Whatever you can correct it, whatever you cannot correct document it. 
    
    So, yes you do need your correct date of birth and because the documents for immigration in the United States are all filed under the Penalty of Perjury, your information must be correct.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
  9. Monday, 10...
    Question: My H1B petition got approved through my existing employer and became effective 10/01/14 (I was on F1 OPT before). Where am I eligible to go to for doing first time H1B stamping, other than my home country (Russia) – can it be done in Canada, Mexico, or other countries? I have Masters from an American university, and over a year of working experience in the US. Also I’ve heard that starting June Canada has suspended doing first time H1B stamping, can you please provide any clarification, and also could you please advise what all options are available to me?
    Answer:
  10. 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.

  11. 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. 

  12. 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.

  13. 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

  14. 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. 

  15. 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. 

  16. 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. 

  17. 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. 

  18. 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...

  19. 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
  20. 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...

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