US Immigration Questions

  1. Thursday,...
    Question: I have my perm labor and I-140 approved through EMPLOYER A (Consulting Firm). Priority Date June 2013. If I am going to change Employer, EMPLOYER A is going to REVOKE MY I-140. I heard from your last conference call that i will be loosing my priority if I-140 is revoked by employer.I am close to 5th year of H-1. so cant take chances. If I move to FT position in the next 6 months and say my current employer revokes I-140. I will not be able to get extension for H-1 beyond 6 years.

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

    FAQ Transcript:

    This is a very tricky issue that has come up time and time again and one month we have one answer and after six months we have another answer. There are two sets of questions here, one is priority date, if the employer revokes I-140 does it get lost and the other one is some issues about Green Card through a future employer.

    So let's discuss two sets of issues, as of November 12th, 2015 the answer is, USCIS will not take away your priority date if the old employer revokes the I-140. However, you will not have any right to extend your H-1 based upon I-140 that is already gone. In addition, if the I-140 is revoked for fraud, misrepresentation or mistakenly having been approved by USCIS, you will not have the priority date then.

    USCIS has reversed itself like three or four times. They started of a few years ago saying you will lose your priority date, if the employer revokes the I-140, then the sudden No, you will not. Few months ago they said Yes you will lose the priority date and couple of weeks ago again they said No you will not. So they have gone up and down on this issue all the time.

    Another question often asked by a community member who says there are cases were very accurately people reported that their priority date was lost between May 2015 and September 2015 and the answer is yes. I know that because I did lot of consultations in between and there were lot of cases that were denied. Now these cases should try to file a motion to reopen or reconsider and try to get their priority dates.

    The other question he put forth was, can we get to see a copy of this teleconference document?

    Unfortunately, there is no copy. It is comments from one of the committee members, we have all the volunteer committees as American Immigration Lawyers Association (AILA), where members go on behalf of AILA and meet the USCIS, in one of those there is a comment from American Immigration Lawyers Association committee member that says; the government has categorically stated in that meeting that they will not take away priority date.

    The other question is:  Does withdrawal of I-140 by an employer same as revocation by employer or withdrawal and revocation are two different things?

    Withdrawal implies of something little different. Withdrawal implies that I-140 was not approved at least to my mind, even when it was pending it was withdrawn. Because once it is approved only can be revoked, I don't think it can be withdrawn.  Something is not approved and its withdrawn then we are out of luck there is no priority date. Priority date only can be conferred by approved petition. Once it is approved then it is revoked by employer under the current thinking of the government that we all know, they will not revoke or take away your priority date.

    I am little hesitant to say that you can depend upon the word of the government, because I have looked at the regulations and I have looked at the way these folks have been flip flopping on the situation makes me very nervous to be in the situation, prepare for the worst, hope for the best that's all I can tell you.

    Question: Has USCIS listed their final official position on this issue as like a document anywhere on their website?

    Not yet, I have not seen anything in writing from the government.  So I won't be able to give you much there but as soon as I get something official from the government, I would be certain to post it. 

    Question: Now Green card through future employer, what if another employer starts my Green card processing, can I continue working for Employer A , while Employer B initiates new GC process for me?

    And the answer is yes. You can have 20 new employers to start Green card process. As long as you have good faith, intention to join whichever comes first or whichever is more suitable for you. I don't see any reason that you cannot have multiple Green cards filed.

    Question:  Is it possible for me to clear the PERM and I-140 Stage of GC process of Employer B while still working for EMPLOYER A?

    It is actually possible to process entire Green card with employer B, even though I-485 gets approved while you still working for employer A.

    Question: I may or may not join EMPLOYER B. As I am in the process of looking for FTE (full time) position ) Say I moved to EMPLOYER C (FTE) and I have never worked with Employer B and have I-140 approved with EMPLOYER B .

    There is actually Yates memorandum of May 2005 that talks about this. As long as you had good faith intention all the way to join, let’s say your I-140 was approved, PERM of course approved, I-140 was approved through employer B. You are working for employer A, I-140 approved through employer B, priority dates become current you still working for employer A, priority date becomes current after 180 days actually you do not ever have to join the sponsoring employer. You can join any employer who gives you same or similar job whether it is employer A, C, D or E.

    There are some issues about coming back to employers after leaving them during the Green card process. I would want you to have one on one consultation with your lawyers, not an easy issue to discuss in a few minutes but it can be a problem if you leave an employer in the middle of the process and come back. Lot of people did not have any problems, one or two cases occasionally do get the problems. The government asks questions like why did you leave if this was the permanent job, if you left who was doing that permanent job, things like that could come up and there are whole set of issues that need to be discussed with your lawyers basically.

    Question: I also heard about rejections in PERM. Can EMPLOYER B start two different GC process for me and file two PERMS at the same time?

    No. Technically they can file two Green card process against two jobs, I would highly recommend against it. It can be for two different positions only, you can't file a PERM for the same employer, same employee, same job twice No.

    Question: Does it cost anything for the Employer to hold an approved I-140? 

    It does not, except sometimes the government can question their ability to pay wages and they look at all outstanding Green cards and indirectly it can become an issue for the employers. It does not cost them anything out of ordinary. Let me rephrase it, nothing out of pocket but if the RFE comes and if any of the cases about ability to pay wages I guess at that point they can revoke the I-140 if they want.

  2. Wednesday,...
    Question: We have started a company recently and wanted to sponsor H-1B for experienced employees and place them with our clients. What is the criteria and can a new company sponsor H-1B?

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

    FAQ Transcript:

    Answer is of course. I am yet to see a major negative effect just because the company is small. What is more important is that you have specific projects that are clearly defined and you can define how long the project is, what the project description is, what the relationship of the employee being placed is with their employer, which is the new company and usually that is done through a letter from the end client or very comprehensive work order or job order kind of thing. 

    So if you can prove those things, duration of the projects etc. then filing an H-1 is not an issue but if you do not yet have a clear project in mind I would strongly advice you not to file H-1’s, because there is a trend in criminal indictment these days when companies get criminally indicted, two things government is bringing up time and again. The government is bringing up the fact that company applied for H-1’s without the specific projects and two if they kept employees on the bench. 

  3. Wednesday,...
    Question: 1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br> My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br> 2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B. <br> What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

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

    FAQ Transcript: 

    This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

    Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

    For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

    If PERM is filed, can she convert H-1to H-4?

    She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

    So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

    Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

    First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

    Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

    I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

  4. Wednesday,...
    Question: Question is, invested money is at risk although the process is approved in compliance to immigration. <br>By the above compliance does it mean, that when the money is spent completely on the application (approx 560000 USD):<br> 1) Is the conditional Green card guaranteed in 18 months for all cases, and<br> 2) Will conditions be lifted on applying I-829 within another 30 months - guaranteed?<br> 3) The intent of the query is, after spending so much, is there any chance of not getting the permanent Green Card, and if in case not approved, is the entire investment lost or it will be returned?

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

    FAQ Transcript:

    EB-5 is the investor visa where you invest five hundred thousand either with the pre-approved scheme or what is called regional centres or in a rural area or in a targeted employment area. Typically, where the unemployment is more than 50 percent.

    These questions are related to regional centre investments. Regional centres have always made me nervous because remember these pre-approved schemes are approved only for immigration compliance. They are not approved for vigilance by the government. Government doesn’t over see your investments. They are not guaranteed in any way as people can run away with your money. There are investment centre’s that have been fraudulent. Warrants are out on some of these people. But of course lot of them are quite genuine. Unfortunately, we as lawyers are not investment advisers, we cannot tell you which regional centre is safe and which are not, we can tell you what our other clients have used successfully. But that in no way means is going to be a repeat performance of success. So when you put your five hundred thousand in a regional centre there is absolutely no guarantee of the money.

    Answer to question 1. It is not guaranteed. It is not 18 months actually. The way it works is you first file the first set of forms I think it is I-526 and if that is approved then you get your green card process rolling. You can’t file for e.g.: AOS and I-526 jointly. It has to be done consecutively. There is no concurrent filing. So once the first form gets approved then the green card gets approved you get a conditional green card. Ninety days before the second anniversary of the approval you have to apply for the removal of the conditional status using form I-829 and you show the government the money is invested in the jobs are almost created.

    Answer to question 2. None of this is guaranteed.

    Answer to question 3. One involves immigration processing and the other involves the investment itself. The safety of the investment depends on the money where it is invested and how good the centre is. As for the immigration getting approved that depends on the immigration documentation requirements having been completed. This is definitely not a guaranteed process. In fact, the hallmark of EB-5 investment is that your money is at risk.

  5. Wednesday,...
    Question: I am contemplating marriage to a GC holder and I have a question regarding I-130 and AOS. My prospective spouse got GC in Jan 2015. I currently hold a valid visitors visa to USA and I have visited USA many times on this visa.Is it possible to get married, enter USA on the existing visitors visa and then immediately apply for I-130 and Adjustment of Status. What are the risks/implications with this approach. What is the best procedure in these circumstances?

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

    FAQ Transcript:

    It will be wrong if you entered USA for a visit visa and had a preconceived intention of getting married. I think that would be considered as a fraud by the government. On the other hand, you entered USA wanting to visit and fell head over heels in love with somebody, I think in a case like this we can definitely go and do a green card if you can demonstrate that you had no preconceived intention then I think you are ok. 

    My advice to people is don’t get married till you apply for a K-1 (fiancé visa) which would be a smart thing to do in a situation like this. It takes a few months or maybe more than a year.

  6. Thursday,...
    Question: 1. I am a Canadian physician on an H-1B (never been on J-1) which expires June 30th, 2017. I am currently doing a 2 year fellowship. I'm contemplating pursuing the physician NIW process vs EB-2 through potential employer. For EB-2, my understanding is that I need to be eligible for a full-time physician position on the day the employer submits the ad. Since I won't complete my general residency until June 30th, 2016, my potential employer cannot begin recruitment until July 1, 2016, correct?<br> 2. In your experience, is 1 year enough time to complete the EB-2 process?

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

    FAQ Transcript:

    Answer 1. In this context we are talking about a PERM and not the NIW. Also remember NIW is under EB-2. Most physicians fall under the EB-2 category.  Here is how a PERM can be drafted. It depends on your employers, your lawyers and you and there is no requirement that you be fully licensed. Only that you are eligible for a license, or you are at a certain level of profession shall we say maturity or advancement so it could be possible to file for a PERM depending upon what the employers requirements are and  what the state rules for licensing are to file upon even before what you believe is your eligibility. Also remember rules for giving full license to residents differ from state to state. They are not the same in every state. So you have to look at the states in which you are going to start the PERM application.

    Note: Your eligibility for licensing does not have to be from when the date of recruitment begins. It has to be established the date the PERM is filed and typically recruitment can last a few months. Before that your eligibility must be perfect upon the date PERM is filed and not when the recruitment begins. 

    Answer 2.  It may or may not be, very difficult to say.

  7. Tuesday, 17...
    Question: 1. My employer filed my I-140 and it was approved. They refused to provide me the approval notice but through InfoPass I was able to get my receipt number and Alien #. To port my priority date, I would like to request USCIS for the duplicate copy of I-140 approval notice.<br> 2. Is it possible to request USCIS a duplicate copy of my I-140 approval notice using either G-639 (FOIA) or I-824 (Action on an approved application or petition) or any other method as I have my receipt#?

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

    FAQ Transcript

    Answer 1. People typically file a FOIA request. File the Form G-639 (Form G-639 - USCIS).  Often you get copies of all kinds of documents. Government gives you copies of documents they have on you. It is not consistent but people have got copies of their 140 approval notices, copies of their H-1 approval notices, the entire perm package. So it is worth filing a FOIA and it doesn’t cost you anything. It can take a little bit of time a couple of months maybe three months but do file it if you don’t have documentation. You can port the Priority Date with your alien number itself and receipt number as well. It should not need a I-140 approval notice. Remember the government has that information already. They don’t specifically need it from you. 

    Answer 2. By all means file the form. File G-639 and not I-824. File G-639 and let’s see what they give you.

  8. Monday, 16...
    Question: I am currently pending I-485 (EB3, skilled worker employment based, priority date Oct 2008) since April 2014. I submitted inquiries through congressman, they received a letter that my case is on hold indefinitely. Do you recommend filing Writ of Mandamus or would that cause a denial? What other actions can I take, I've submitted a case through the Ombudsman and met with a USCIS officer through Infopass appointment (who told me nothing). No RFEs have been issued for this case, I-140 was approved and fingerprinting done (twice, since first set expired).

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

    FAQ Transcript:

    Writ is simply order of the court or a formal order.

    Mandamus is to ask the government to do something, which it is legally obliged to do. It is important to understand what the court can and cannot do. First of all the court has to decide whether your case has taken too long unreasonably long to the extent where the delay itself becomes unreasonable. So very difficult thing to prove, depends upon the court. There is a ruling I remember litigating this issue very vigorously in Washington D.C. and one of the cases that was against us was a case from  Board of Indian Appeal that's what they called BIA not to be confused with Board of Immigration Appeal but Board of Indian Appeal . 

    Usually if a group of people want to be declared Indian Tribe because if you are an Indian Tribe one of the things you can do is have unique rights within your own area such as opening a Casino. They had a determination pending for over ten years and court said that is not unreasonable.

    So first hurdle is to actually be able to prove, of course before that there is hurdle of legal fees, it can be quite expensive to litigate an issue. Second hurdle is proving that delays are unreasonable, unreasonable according to what. The government processing times are merely guesses; they don't give us a right. The third thing which is also important, court cannot ask the government to decide  I-485 in your favor, they can only make government  act, whether the action is Yes, No or RFE. 

    And my final point is something I find very odd, I never  believed to be possible until I saw it happened to  myself. The government behaves like a spoilt child because they have lost the case they can send you 30 page RFE requesting information that you would not believe could even be asked.

    So because the court cannot tell the government to decide the case in your favor, they can only order the case to be decided Yes or No. You could end up creating more issues. The Freedom of Information Act usually does not help in these cases much. 

    So keeping in view all these things personally my approach is very simple I tell people, are you at the point where you are so sick and tired that you either want a yes so you can get your Green card and stay in this country or get Naturalization whatever the benefit is or get a No and just leave, one way or the other. Once you come to that point that's when I want to litigate. Again it also depends upon the circuit, you know that in USA there are different Judicial circuits on the Federal level. So some circuits are more open to certain issues, some circuits are not open. We have to look at the law of the circuit also.              

  9. Thursday,...
    Question: I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017. <br> 1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?<br> 2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?<br> 3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?<br> 4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?<br> 5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?<br> 6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?<br> 7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?<br> 8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.<br> 9. Can my employer continue to pay severance checks when I am on B-2 status?<br> 10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?<br> 11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?<br> 12. What other words of wisdom do you have for me?

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

    FAQ Transcript:

    If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.

    Answer 1.  Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.

    However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government.  I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.

    Answer 2.  Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2  or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.

    Answer 3.  No because you don’t have a job. If you use the same visa to come back in, that could be fraud.

    Answer 4.  The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.

    Answer 5.  That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer. 

    Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.

    Answer 7.  It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is  well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.

    Answer 8.  B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.

    Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US.  You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor. 

    You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.

    Answer 9.  Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working.  In order for employment to be unauthorized there must be a payment or remuneration as well as work.  If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.

    Answer 11.  There is no consistency.  I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done  for two or three months. Most of the times they are not tolerant of this issue at all. 

    Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.

  10. Wednesday,...
    Question: 1) Is there any difference between I-140 revoked by employer - vs - I-140 revoked by USCIS (say for fraud or misrepresentation) with respect to being able to retain the priority date with the new employer ?<br> 2) Changing from Employer A to Employer B - If Employer B files the PERM before I-140 by employer A is revoked by the employer A - would that help retain the PD corresponding I-140 to employer A ? In other words, are there any specific scenarios in this case - where the PD could be retained based on the first I-140 approval ?

    As far as we know, USCIS has once again revered its position and has stated that priority dates will be retained if the revocation is based upon an employer's request.  See: the blog entry here

  11. Monday, 9...
    Question: I am on H-1B visa and in green card process (waiting for I-485 date to become current). I would like to know if I buy and rent houses on my own name (without forming an LLC) and actively manage the activities (finding a renter, maintenance etc) and make profit out of those rentals, then would it violate my status?

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

    FAQ Transcript:

    First of all in my view on passive investment where you are just putting in money and have no control over what happens to the investment it is ok to do that on H-1.   So if you buy stock in IBM that’s OK because you don’t get to manage or run IBM just because you bought 200 dollars worth a stock. So passive investments were you don’t actually control the investment or the business activity they are ok for H-1.

    But when you buy and rent out a house I think that would be objectionable. I think that could be considered to be a violation of your status. What if you invested money in a small company like say a two person company when you own 100 percent  stock but you are not managing and somebody else is managing I think that would be ok (in fact closer to be ok). But the question, can you start your own IT company...well if you did in a partnership and if you were a passive investor and if you want to work for that company you would have to have a true employer-employee  relationship with the company. That means somebody should be able to file you and then a H-1 concurrent, H-1 for your own company. So the decision tree is:  Is my investment active or passive. If it is passive no problem I can invest even if  I am on H-1. If it is active I would have to do an H-1B for my own company and make sure I have an employee employer relationship.

    I am finding that government is very much more understanding or flexible when it comes to radical practices, dental practices, were you own your company but you have somebody who can fire you whether  it is board of directors or president where you could be fired as long as that is there having a company on H-1 is possible.

  12. Wednesday,...
    Question: My H-4 to F-1 is approved on October 08 2015. My Spouse Employer filed H-4 extension for me which is currently in Process. We sent this H-4 withdraw letter and it has been reached USCIS (Vermont Service Center) on Oct 13th 2015. Could you please let us know approx when do USCIS withdraw this H-4 extension?. If by mistake USCIS approves this H-4 Extension, can we fight with USCIS to withdraw this H-4 extension?

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

    FAQ Transcript:

    Let's take an example of this, F-1 is approved, but H-4 extension is pending. Since you want to stay on F-1, you should write immediately to USCIS, put it in writing and make sure that you send it through something like Fed-ex or UPS or certified overnight mail, so that you can prove the delivery of the letter. That way once you have sent the letter of withdrawal out there is a very good argument that any subsequent approval of H-4 does not hurt your F-1, since you have already indicated an unambiguous intention and made a request to USCIS to revoke or withdraw an application which is currently pending but you don’t want to be acted upon.

    The risk here is you got the F-1 already approved and don't want to be H-4 acted upon, because there is  something called  last action rule, which is really not a rule but merely a matter of common sense applied by the USCIS offer to the situation, that whatever status approved last would be your status. So you have F-1, H-4 going on same time, you got your F-1 approved. If your H-4 gets approved that means you are back on H-4. So at least  that is the conventional wisdom and there is some question about whether or not that is correct but nevertheless smart thing to do is if you already received  the approval that you want go ahead and revoke in writing what you don't want .  

  13. Wednesday,...
    Question: I have been in the US for about 10 years with my wife and a daughter. All of us are Indian passport holder and got EAD/AP. Can you please let me know if we can adopt a child from India through Inter-Country adoption process?

    If you are not a US citizen, you need to adopt the child and then to possess custody of the child for 2 years (as far as I remember). Then the child can come here on H-4 or a derivative green card. 

  14. Monday, 26...
    Question: My current visa H-4 VISA is valid till Nov 25 2016.<br> - I had applied for an change of status/extension of stay (I539) for H-4 status to July 4 2018 (through underlying H-1 extension).<br> - I had to travel to India while it was pending. USCIS issued an I-797 - Approval for the extension of stay without abandoning it.<br> - At the port of entry, the I-94 expiry was marked as Dec 25 2016.<br> - The expiry date does not jive with the original VISA expiry date Nov 25, 2016 that was presented at the time of arrival. Nor does it reflect the I-539 extended date of July 4 2018 (that was not presented at port of entry).<br> Please advise -<br> a) What action would I required to correct I-94 expiry date? Who do I contact to correct it?<br> b) I am filing for a I-485 adjustment as a spouse of EB-3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

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

    FAQ Transcript:

    This is a recurring issue, so first of all I want to address the problem and the possible solutions or the lack of solutions. Often times we have a case, we have a case working on right now actually. This lady entered the US on H-4 visa which was good for let’s say till 2017 but her passport was expiring in 2016 or 2015 She comes in and Customs and Border Protection gives her  I-94 only till the date of her passport approval. And sometimes they do that; they will give it to the extent of visa approval, which is incorrect. Your visa could be expiring earlier than your approval. They should still give you the I-94 all the way to your approval not till your visa. In this case they gave it  only till 2015 and she is been here over a year now in unlawful presence not realizing that she has been given less stay than 2017.

    So, this is a very complicated issue or problematic issue. They will correct the mistakes they have made.  If they have made a mistake giving you a wrong date or giving you the date till visa not the approval date, you can actually go back to the CBP at the airport or any of their offices or nearby posts. They have lists of them at website and you can ask your I-94 to be corrected.

    But there are certain things they don't consider them as errors, such as approval till the passport expiration that cannot be corrected. Then the question is what do you do then?

    You have two choices; either you can do the extension of status or current status by filing the form I- 539 or I-129, if you are H-1, L-1 holder. For H-1, L-1 they do it all over again as new case. For H-4 it’s less complicated or simple or you can step outside USA, showing your visa and comeback  and receive your I-94 approval. But if your I-94 is already expired, you must speak with your lawyer before you leave. You could very well subject to the bar which comes from the unlawfully present.

    So, in this case what happened is the person who has the above question traveled to India while change of status for H-1 to H-4 was pending.

    Now USCIS should have declined change of status because they left US, came back received I-94 good till December 2016. The visa expiration date is November 2016, which is what I gave at the airport he says. 

    What action would I required to correct I-94 expiration date?

    Look you can go back to the CBP, make your case that you have made an error, I don’t see the error. If anything they have given you is more time not less and because you traveled abroad while your change of status was pending , that approval is really not  worth anything. That’s the mistaken approval.

    I am filing for a I-485 adjustment as a spouse of EB3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

    I would use the date which they have given you in I - 94 and I would attach an explanation saying that this date maybe incorrect but you don't know. According to your calculation it should have been November 2016.

    I always like to make full disclosure to the government, so that they don't come back and create a problem with the discrepancy. 

  15. Monday, 26...
    Question: 1. I am on H-1B with my I-140 approved in EB-3 with priority date is Sep 2013. I have 12+ years experience in the field. I am getting an opportunity from a company. They are ready to start my green card process. I have just completed my master degree(MCA) from India. Waiting for my degree certificate, which would take a month or two. <br>2. Can my new employer do the H-1B transfer now based on my BSc degree (Computer Science) and once I get the master degree certificate, can they start the green card process in EB-2? Or do I need to wait for my master degree certificate before the H-1B transfer?

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

    FAQ Transcipt:

    That is not required. If you can get the school to give you a letter that says  you have finished all your degree requirements and you are waiting for  formal  confirmation of diploma or degree, that's good enough. But you can't be in a situation where you have taken the examination but results has not come yet, who knows you may not be able to pass.

    So, if you have completed all requirements that is research or credits, whatever it is. If you have done those and you are nearly waiting for formal certificate, that is no problem. You can go ahead as you have got your degree already.

    Regarding Question 2 the answer largely depends upon the lawyers. Have them review it. There could be potential legal issue. But if your degree requirements are completed and they induct you , employer inducts you or a job requires the masters degree or equivalent, you should be able to use that degree certificate when it comes or even started now. This is an issue which needs to be discussed with your lawyers in detail.

  16. Monday, 26...
    Question: I want to pursue MS Degree from US and presently I am living in the US on J-2 visa. My wife is working as a Post doctoral Fellow here on J-1 visa. We both are subject to two years Home Residency Requirement. My concern is that how can I change my visa status from J-2 to F-1. Do I need to get a waiver before applying -F1 visa?

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

    FAQ Transcript: 

    Answer is yes. They can't convert within the United States, but they can go outside of USA and try to get F-1 stamped and come back. That does not  get rid of  two year residency visa. However, remember two year residency visa requirement only says this:  if you have J-1 or a J-2  which is subject to the 212 (e) HRR, you cannot convert  to H, L or Green Card, but you can  if you want to change to F-1 visa but not within the United States as far as I remember. It does not allow the change of status also. So you can always get a visa stamping done and you can do it without the waiver, F-1 does not require waiver. However if down the line you decide to convert to H-1, your J-1 holding spouse either must have received the waiver or a home residency a fulfillment of 2 year residence abroad to the home country.

  17. Thursday,...
    Question: My wife is on H-1B visa and went on Maternity Leave (normal delivery) starting 8-Sep-2015 and will be completing 6 weeks of allowed vacation on 16-Oct-2015 (We have 6 Weeks letter from doctor). However, she would like to extend the leave till 15-Dec-2015 ( Total Duration 3 Months 10 Days) as we do not have the required support for the baby. Her Employer is willing to provide her with a leave/vacation letter and she can continue to work with the same employer post her vacation. Pay stubs ($0) will not be provided by the employer.<br> Also, we are trying to have the pediatrician provide a letter suggesting 4 months of leave but not sure if we can get the same or will it be helpful? <br> State - New Jersey<br> Visa Type - H-1B<br> Question 1 - Will a $0 pay stub from employer be helpful to keep her in status while on leave?<br> Question 2 - Will letter from pediatrician suggesting 4 months of leave be helpful to keep her in status while on leave?<br> Question 3 - Request you to suggest if she will be in valid status if she continues to be on leave till Dec-15 and have a vacation letter from the employer without pay stubs ?<br> We do have an option of moving her to H4 starting 30 Oct but would like to avoid the same. <br> If she changes her status to H-4, <br> Question 4 - Will her current employer have to file a new H1B or a simple COS from H-4-H-1B would be required once she is ready to work?<br> Question 5 - Can COS from H-4 to H-1B be filed in premium processing ? If not, what are the timeline for processing of the same.

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


    FAQ Transcript:

     If you go to this website - on Family and Medical Leave Act the website explains a lot to you that you can go 12 weeks easily and USCIS will honor that and they will still consider you to be in status. So even if you don’t get paid for that time and you don’t get a pay stub that’s fine. Now if there is a medical reason for eg: a pediatrician saying she needs to have x number of months of leave. I think she will be in status. We had a case were one of our friends had to be hospitalized for extended period of time and then she was out of work on H-1 for almost a year but we were able to convert her to H-4 because the government realized she was not out of work because she didn’t have a job it was because she had a medical necessity.

    As for the question if she changes her status to H4, and file premium processing, she is not subject to the quota if she changes into H-4. But the employer will have to file H-1B change of status which is almost like doing a new H-1.  Also COS from H-4 to H-1B be filed in premium processing can be done.

  18. Tuesday, 20...
    Question: Currently on my H-1B post 6-year based on approval of PERM and I 140 under EB - 2. Would be In the process of switching jobs for some personal / professional reasons very soon.<br> 1) What documents would I need to have with myself - corresponding to PERM and I-140 - so that I can retain my priority date and start another green card process with a potential new employer ? <br> 2) For the documents above - would I need to have the originals or the photocopies ?

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

    FAQ Transcript:

    I think it is always a smart idea to have a complete copy of your file so that you know what has been filed on your behalf. If you can’t do that at the very least have copies of all your approval notices and at least a copy of your labor certification if you have filed the PERM. Copy of H-1 approval, copy of I-140 approval and copy of your PERM. That is what I would recommend.

  19. Tuesday, 20...
    Question: I had applied for H-1B extension on May 15, 2015 with I-94 card expiring on Aug 29,2015. Due to some emergency, I traveled to India in June and returned in July with new I-94 card expiring on Nov 2015. Now, it's been 6 months that I applied for extension, no response from USCIS. Will there be any problem since I filed my H-1B extension with old I-94. Do we need to amend my case with new I-94 card?

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

    FAQ Transcript:

    If you file for your H-1extension you are allowed to travel. You are allowed to travel even when your H-1 transfer is pending. A few things to keep in mind when you do - is are you maintaining status etc etc., but travel while transfer or extension of  H-1 is pending is allowed. The question is when you come back your I-94 changes and that is not a problem. That should not cause any delay and I don't see any need for any amendment. The fact that your H-1 is taking so long is most probably not related to this issue. But if you want you can double check with the USCIS customer service. I always advice that. 

  20. Thursday,...
    Question: I have a question on EAD validity for the below scenario. <p> H-1B holder got I140 with Employer A and applied EAD for H-4. H-4 is valid until MM-DD-YYYY 10-29-2018. Now H-1B holder moved to Another Employer B, then at this point he doesn't have Approved I-140. Will EAD which received using Employer A valid until MM-DD-YYYY 10-29-2018? I knew for renewal of current EAD after 10-29-2018, we need approved I-140, but not sure exiting EAD is valid until 10-29-2018 if H-1B holder moved to Employer B.

    USCIS has said that revocation of I-140 does not automatically invalidate an approved H-4 EAD, but they reserve the right to revoke such an EAD.


Subscribe to US Immigration Questions