EB2 Green Card FAQs

Obama's Immigration Action EAD At I-140 Stage

Authored on: Mon, 11/24/2014 - 00:52

Question

I am on H-1B Visa, got my I-140 approved in EB-2 Category and waiting for the dates to get current. Based on Executive Action, shall I be given any EAD ? Or at least any other forms so that I can travel and need not go for Visa Stamping and all the additional paper work.

Answer

I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

Cross-Chargeability

Authored on: Mon, 11/24/2014 - 00:00

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.

Writ of Mandamus for Govt. Delays

Authored on: Thu, 10/02/2014 - 13:49

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=UUm4s1qwOS…

Indian Experience While Filing PERM

Authored on: Tue, 09/02/2014 - 03:59

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

EB-2 or EB-3

Authored on: Tue, 04/22/2014 - 05:54

Question

I have two Bachelor's degrees from US universities. A 3-year Bachelor degree in Science and a 2-year Bachelor's degree in engineering. Will I be considered for a EB-2 visa with this?
In case I don't qualify for EB-2, my dilemma is that, I have worked approx 4 years at my current job. Should I wait another year to file EB-2 or should I just file EB-3 now? Also, do internships qualify when counting the number of years of work after school?

Answer

Internships do qualify as experience. You need to get your degrees evaluated under AACAO EDGE standards first .

GC in L1-A Visa

Authored on: Wed, 03/05/2014 - 09:30

Question

I have 14 years of overall IT experience and performing Manager, Service delivery role for past 3 years. Planning to enter USA in L-1A visa. I have a team of 30 resources, working in Chennai, Shanghai and San Jose. They all report to me. <br>
My Questions:<br>
1. How long I need to wait to initiate the GC process?<br>
2. Do I have a choice of selecting the type - EB-1 vs EB-2?<br>
3. I don't have bachelors or masters degree. Will that be a barrier for applying GC?<br>
4. Should I apply ONLY through my employer or can I apply myself

Answer

1. You can apply for green card without any wait.
2. Yes, but EB-1 is a gazillion times faster for Indian-born people.
3. Degree is not a requirement for international managers/execs.
4. Your employer needs to apply. 

EB-2 and 3+2 Pattern of Education

Authored on: Tue, 01/14/2014 - 01:22

Question

I have a three year Bachelors from India and 16 years of experience in US. Currently I have a pending EB-3 with a PD of 10/2006. I am wondering, if I do MS here (Online or Executive course), will I then qualify for EB-2 or do I need to show progressive experience from the time I get my MS?

Answer

If the Master's degree is accredited, you do not need post-Master's experience for EB-2. There can be some issue about the 3+2 pattern of education, but an accredited Master's should fix it.

Exhibiting Immigrant Intent

Authored on: Thu, 10/17/2013 - 08:04

Question

I currently have a J-1 (for four more years, no HRR). I am thinking about applying for an EB2-NIW. The question is, if I don't get the EB-2, will I have problems with traveling with my J-1? Can the officers at the airport know that I was denied an EB-2 and thus showed immigration intent?

Answer

Exhibiting immigrant intent CAN be a problem for J-1. It is not certain that you will have a problem, but the potential does exist.

EB-2 Visa for a Veterinary Assistant

Authored on: Thu, 07/04/2013 - 03:12

Question

I live in Bulgaria and I have a Master's Degree in Veterinary Medicine. My question is can I get a EB-2 visa if I work as a veterinary assistant in the USA ?

Answer

You can qualify for EB2 only if two conditions are met:

1. Your degree is equivalent to a U.S. advanced degree (a credentials evaluation service needs to assess that under proper standards); and

2. The job requires an advanced degree or equivalent experience.

Contacting USCIS when EB-3 is Changed to EB-2

Authored on: Wed, 04/17/2013 - 03:55

Question

How do I contact the USCIS Service Centers to inform that a priority date is current, that an EB case has been upgraded from EB-3 to EB-2, or that dependents have been separated from the principal applicant’s petition?

Answer

Send an email to the Nebraska Service Center at NCSCfollowup.NSC@dhs.gov or the Texas Service Center at TSC.NCSCfollowup@uscis.dhs.gov.  Make sure to include the Case Number and A# of the beneficiary(s).  If applicable, attached scans of any notices for the USCIS to reference.