US Immigration Questions

H-4 visa if H-1B changes jobs

Question details

Hi, My husband is in USA working under H1B (his visa got expired last year) and I am a Canadian citizen living in Canada. We are Married for 18 years and we have 1son born in USA. We both applied for visa together (h1b for my husband and H4 for me) in Canada. We got visa interview date too but my husband’s company recently filed green card process for him. So, I believe he cannot travel to Canada if green card is under process. Can I go for visa interview by myself even if he is the main applicant and cannot attend visa interview?

Canadian citizens do not need a visa. Presentation of the H-1B approval and proof of relationship at the port of entry with proof of maintenance of H-1B status should be sufficient to gain H-4 status. See this entry also: https://www.immigration.com/faq/h-4-canadian-citizen I am unable to understand the rest of the situation. You are welcome to post a message for our next community conference call. We have one almost every other Thursday.

FAQ Transcript

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Main H1B applicant cannot attend visa interview

Question details

Hi, My husband is in USA working under H1B (his visa got expired last year) and I am a Canadian citizen living in Canada. We are Married for 18 years and we have 1son born in USA. We both applied for visa together (h1b for my husband and H4 for me) in Canada. We got visa interview date too but my husband’s company recently filed green card process for him. So, I believe he cannot travel to Canada if green card is under process. Can I go for visa interview by myself even if he is the main applicant and cannot attend visa interview?

The same H-4 visa can be used even if H-1B changes employment. As long as the H-1B maintains status, H-1B revocation has no impact on the H-4 visa.

FAQ Transcript

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Unemployed on AOS EAD/I-485

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Hi, My question is can I stay unemployed on EAD for long period of time (working for the same employer who petitioned me but on bench without payroll)? Can I be like that until my 485 gets adjudicated?. or do I need to show paystubs for each and every month?

Technically, you can be unemployed while on EAD/AOS/I-485. But if you are benched by the employer who petitioned for your green card, that casts doubt on the availability of the green card job. That can lead to revocation of the green card process unless you change employers using AC21 portability.

FAQ Transcript

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

The H-1B remainder option: Calculating recapture of H-1B unused time

Question details

I had a quick question for you. I worked in the US from 2009 to 2012 on an H-1B visa, left the US in 2012, then came back on a new H-1B visa to work in the US from 2014 to 2017, and then left the US again in 2017. So overall, I didn’t use 3 years on both my H-1B visas. Recently I came to the US on an H-1B visa in mid-2022 using the unused 3 years on my most recent H-1B visa issued in 2014. This H-1B visa expires in mid-2025.

(a) Do I need to leave the US for one year after mid-2025 to be eligible for a new H-1B visa, or am I eligible to apply for a new H-1B visa after mid-2025?

(b) Is it possible for me to recapture unused 3 years on my previous H-1B visa issued in 2009 after my current H-1B status expires in mid-2025?

(c) Is the only way for me to extend my H-1B visa status in the US after mid-2025 is to file for PERM ETA 9089 (pending over a year) or have an approved I-140?

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FAQ Transcript

Yes, you need to leave the United States because you have a total of six years. You are using the remainder left on that six years. You should have your ETA 9089 (PERM labor certification) pending for over a year, or have an approved I-140. There is no other way to extend this H-1B.

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Eligibility for the EB-1A extraordinary ability category

Question details

I wish to assess my eligibility for the EB-1A category. I have a B.Tech., M.Tech., and Ph.D. from India, and I just finished a postdoc in the USA. I am currently employed in India as an associate professor at a good university.

The following are my credentials.

1. I have over 25 publications in international journals and conferences that have undergone peer review.

2. I review articles for three high-quality journals.

3. I currently have 358 citations.

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FAQ Transcript

Just looking at the numbers is not enough. We need to look at the overall resume.

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Changing profession after receiving Employment Based Green Card

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Can I change my profession after getting a Green Card? I received my GC in EB2 as an Accountant. Now, I see the salaries in the software/IT sector to be much higher.

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FAQ Transcript

Sure, you can change your profession as long as you did not have a pre-conceived intention to do so before you got your green card. I cannot say that there is any particular time frame attached to it.

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Does approval of an I-485 EAD automatically invalidate my H-1B?

Question details

My Wife and Kid have an appointment to get stamped on H4 as i have a valid H1 till Jan2023 and I am in USA. Now I just received a notification that my EAD card is approved for my GC. Will this impact in any way for my Wife and Kid's H4 Stamping?

Your H-1B remains valid as long as you do not use the EAD. Mere approval of an EAD has no impact.

FAQ Transcript

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Name change during naturalization

Question details

If I request a name change on form N400, will it take longer to adjudicate the case? Is the name change processed by the adjudicating officer or by a judge?

It can take longer. The USCIS notes:

You can legally change your name after filing your application for naturalization with USCIS. If your name has changed after you filed a naturalization application, you must promptly provide USCIS with the document(s) that legally changed your name(s), such as a marriage certificate, divorce decree, court order, or other official record. Make sure to mention your name change and bring the documents related to your name change at the time of the interview.

FAQ Transcript

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Divorce while I-485 is pending: cross chargeability loss, section 498A criminal complaint

Question details

I work on H1B. My I 485 and wife's I-485 was filed in April 2022;
My priority date is Apr 2014; Have lived and worked in USA since 2004=Student visa and H-1Bvisa;
Wife was born in Nepal. She has the receipt number of my I-485 and her I-485;
I believe due to India Priority date current, I am eligible for filing and getting my GC without using cross-chargeability. Is there any implication that I should be aware of?
We are divorcing due to a mismatch in expectations. Got married in 2018; She came to the USA in early 2022 – after 4 years of disagreements and delays to live in the marriage with me.
She may file cases against me in India – such as 498A and claim that I used her Nepal birth for my GC. This was a genuine arranged marriage that was started through communication between our families.
Can she harm my I-485 case by directly communicating to USCIS about her claims. What possible risks I should plan for.
 

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FAQ Transcript

The way USCIS interprets legal separation or divorce as being the same status conceptually. While there is no direct law on your situation, since you do not need cross-chargeability, you should not have a problem. Regarding dowry complaints and charges like 498A, we have prevailed in several cases in both green card processes and naturalizations. As long as you can show that the charges are more likely than not untrue, you may be able to overcome the problem of criminal proceedings pending in India.

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

PhD students and eligibility for EB-2 NIW and working on F-1 OPT

Question details

1) Is it possible for current PhD students to apply for EB-2 NIW?
I have been through websites where they have said It's Possible, but then why is it not possible for current MS students?
2) Is it possible to work and study in F-1 OPT after completing the degree?
 

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FAQ Transcript

Sure, you can apply for any of these green cards while you are still a student.

Please go through my article in The Economic Times: 

https://economictimes.indiatimes.com/nri/migrate/can-student-visa-holders-apply-for-a-green-card/articleshow/83976519.cms

NIW laws require only that you possess an advanced degree. A Master’s degree is an advanced degree.

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Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.