US Immigration Questions

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.              

  6. 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.

  7. 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

  8. 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.

  9. 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 .  

  10. 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. 

  11. 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. 

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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. 

  17. 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.

  18. Thursday,...
    Question: My wife's I-485 got rejected because of priority date not current. My application was delivered early by FedEx(Sep 29). Her priority date is Sep 2014 so as per Oct 2015 guidelines I believe she has the eligibility to apply. Can I re-apply same documents, and also do I need to apply for her Visa extension too because it will expire in 1 week from now. Will she be considered in status with her I-485 receipt number and in process of re submission?

    An untimely filing based denial does not invalidate the documents, and, a pending 485 keeps her in authorized period of stay. Nevertheless, I advise people to keep their status (like H-1, H-4) current, anyway. By the way, a B-2 to AOS application is FULL of potential problems. Make sure you consult a lawyer.




  19. Tuesday, 13...
    Question: My wife is working here in the US on J-1 visa as a Post Doctoral Fellow and She is subject to 2HRR requirement.I came to United States last year on J-2 visa from India and after few month I applied and got the EAD card and now I am also working for XYZ IT company here in the USA and I am subject to two HRR requirement as well. My employer wants to file H-1B visa for me but my wife does not have an offer for H-1B visa so in that case Can I (J-2 visa holder) file a waiver petition independently of the J-1 Principal?

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

    FAQ Transcript:

    The question asked is can a J-2 holder obtain a waiver of the Home Residency requirement without the J-1 holder being involved and the answer is, the last time I looked into this issue it is a "No".  The exemption was if there was some sort of impossibility associated with the J-1 holder conferring the benefits of a waiver for instance if they were divorced or there was a death of the J-1 spouse. In those cases certainly this was a possiblity. But otherwise you cannot as a J-2 holder obtain a waiver by yourself. Your disqualification for the Home Residency requirement came into being because of the J-1 holders status. So the theroy of the law is that J-1 holder must apply for a waiver.

  20. Thursday, 8...
    Question: FAQ's Updated on 21 September 2015

    FAQ's Updated on 21 September 2015 

    FAQ 1. I am on the H-1B visa and my spouse on F-1. When my Priority date is eligible is it ok to apply for I-485 for me and my wife given she is on F1 or she has to be on H4 before we can apply for i485? If it is ok to apply with her F1 status, are there any possibilities that she can have issues in the future if she wants to get back to H-4 with a ending I-485?

    Answer: The law does NOT require that the spouse be on a derivative visa (like H-4 or L-2, if you are on H-1 or L-1) to file AOS through you. BUT, F-1 presents some potential issues that should be discussed with the school. 

    FAQ 2. My sincere thanks for your service. I had one quick question. I am on consular processing currently outside USA. My priority date is July 2010. My application is with NVC (National Visa Center). Do I need to submit my paper work for EAD, will I be eligible EAD ?

    Answer: You need to wait till NVC asks for papers, and no EAD, sorry.

     FAQ 3. Do you anticipate any date movement of the new date for I-485 eligibility for EB2 India? Also, are there any chances that this date will also retrogress?

    Answer: I think dates are likely to move in both directions: retrogression as well as advancement.

    FAQ 4. I filed for my 1-485 concurrently before I got married, now as per the new set of dates. In the October visa bulletin, I am eligible for filing Employment based visa application. Can I add my wife (who is currently on H4) to my application, after 1st Oct,15? Or do I need to wait for a notification before doing so?

    Answer: Ideally, wait till receipt. You have all of October to file AOS.

    FAQ  5. I have been waiting last 6 yrs and recently I booked h1b stamping interview at Hyderabad thinking that dates won’t move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AD, AP how long does it take? Not sure should I go for stamping or should i wait for few months. 

    Asnwer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.





    FAQ's Updated on 14 September 2015 

    FAQ 1. My PD is December 2010. Will file for I-485 next month. My wife is travelling to India on Sept 26. Is it OK to add her while she is travelling (technically she will be in India next month). If not, she will come back March 2016. Can I file for her later and file only mine next month? 

    Answer: She has to be in the USA when 485 is received by USCIS.

    FAQ 2. From the USCIS point it seems that this bulletin was the last action item on Obama executive order for Empl based immigration,please let us know what do you think?

    Answer: I think there should be more. An explanation of promotion not being fatal to an employment-based green card, etc.

    FAQ 3. My priority date is April 2013. I left the previous employer and he revocked my approved I-140 . I got copy of approved I-140 and revocation letter from USCIS . When my current company will file I -140 , will I able to retain my old priority date ?

    Answer: No. The current thinking of the USCIS is that you will lose your PD. I am sorry. 

    FAQ 4. My Priority date is Jan2011 (EB2) and it is current now and it is with company A. Now I have moved to company B and they are in the process of filing Perm. And my previous I-140 is not withdrawn by company A. So my question is can we apply for I-485 based on company A's I-140 approval without even involving company A and then after 180 days can we use AC21 and port to company B. At this point i cant leave job at Company B since it is Fulltime. Please advice.

    Answer: You must not file I-485 without a genuine job offer from the I-140 sponsoring employer.

    FAQ 5. My Priority date under EB2 is June 9, 2011 with my Old Employer and my I-140 was approved on March 7, 2012 and stayed with that company till Nov 2014 and in dec 2014 moved to a new company, Can I file for I-1485, EAD and AP on October 1, 2015 and my Old Employer is ready to give offer letter and here I see you have mentioned to Mr. Pavan that you can only apply AOS, does it mean Adjustment of Status which Includes filing of I-1485 along with EAD and AP or only I485 ? 

    Answer: If you are entitled to file I-485, you are ALSO entitled to file AP and EAD.

    FAQ 6. Perhaps a mute point - but promised myself I will have this clarified by you. My priority date is in May 2011 - but that PERM and I140 are from previous employer. Current employer hasn't filed PERM yet (it's a non-profit org and things move slow I guess). My spouse has her PERM and i140 (priority date in 2014) from her current employer.

    1) Can I use my previous employers i140 to file i485?

    2) Can my wife use my PD and file for i485? 

    Answer: 1. Only if you have a genuine job offer letter from previous employer.

    2. No. 

    FAQ 7. Hi, my priority date is April'2011 in EB2 and based on recent employee based priority date for EAD, my date is become current. I am going to India on October 29th. I am planning to file 485 and then leave for vacation. Will that be a problem, kindly sugget.

    Answer: Travel after filing I-485 is a problem only if you do not have a valid H-1 visa stamp.

    FAQ 8. Can new employer re capture OLB priority date in case old employer revocked approved I 140 ? 

    Answer: A revoked I-140 takes away the PD.

    FAQ 9. There is I-140 EAD petition blog(regradless of any categories) is going on through out many website. Is it going to get approved this year that all approved I-140 folks are eligible for EAD? Do you have any insight on this? may be this could be scam? 

    Answer: That was the original plan of Obama Admin: when you file 140 (or 140 is already approved), you can filed 485 without waiting for PD. But that plan has not been implemented so far. 

    FAQ 10. What I understand from the news on the Visa Bulletin is that we (Indians) can only file for AOS under EB2 category if the PD is before 1st July 2011. But even if the PD is before 1st July 2011, the I-485 will ONLY be processed/approved until the Priority date becomes current (which is May 2005). Am I right? 

    Answer: A green card will be approved only if a visa number is available. EVERYTHING you see in the visa bulletin is an estimate.


    FAQ'S as of September 10, 2015 

    FAQ 1. My husband has his priority date Dec 2012. As per the new changes in VB , which might have progressive dates every month, Any idea how long it might take to reach to Dec 2012 ? 

    Answer: I am not sure if this will be repeated every month and how will the movement continue.

    FAQ 2. I have been waiting last 6 yrs and recently I booked H-1B stamping interview at Hyderabad thinking that dates wont move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AP how long does it take? I am sure should I go for stamping or should I wait for few months.

    Answer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

    FAQ 3. I have prior approved valid I-140 with previous employers with Sep-2010 as PD and my current employer has applied LC and waiting for approval. Can I apply for EAD with the previous employer I-140.

    Answer: You can only apply for AOS if the old employer, in good faith, can provide you an offer of employment.






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