US Immigration Questions

  1. Monday, 5...
    Question: My H-4 visa extension has been approved, I mean the USCIS has sent me an approval notice with the I-94 record card. Now it clearly says, this is not a visa. What do I need to do in order to travel to India, do I have to go to a US consulate here, to get a visa stamped in my passport, because in order to travel through Europe we need a valid US Visa or travel through Dubai , which doesn't require any visa, and then get stamped in the US consulate while coming back? I am confused and do not know what is the next step after approval notice. By the way my spouse H-1B visa was also extended while in US by the Employer. But, my spouse hasn't gone out for visa stamping yet, will this effect my visa stamping?
    Answer:

    When you travel abroad, in order to return to the USA, you must first obtain a visa stamp from a US consulate in (any) country that you are visiting. Check the consulate web site to make an appointment and what documents you should bring for H-4 visa stamping. H-1B visa stamp is usually not a precondition to H-4 visa. 

  2. Friday, 25...
    Question: I am a green card holder and received it on Oct 21, 2011. I moved to India on Nov 21, 2013 . I applied for a re-entry permit before I left USA and I have a permit valid up to Mar 10, 2016.
    Answer:

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

    https://youtu.be/OMuYdzLJ2qQ?t=914

    FAQ Transcript:

    I want to point something to you, there is lot of misconception about re-entry permit. Reentry permit does not give you an irrevocable right to stay away from USA, but it is as close as you are getting security in maintaining your Green Card. Reentry permit simply says this; the fact that you are away for two years cannot be used by itself as a ground for revoking your Green Card. If on the other hand, it appears that you have no intention of coming back and you are abandoned your intention to live in the United States, they will take away your Green Card even if you have the Reentry Permit.

    As a practical matter, USCIS does not look behind the Reentry Permit. So far I have not seen any cases. But don't think it's a foregone conclusion just because you have Reentry Permit, you are hundred percent protected. No such thing.

    Another thing to remember is you don't have to visit USA even once, while the Reentry Permit is in play. But you must enter USA before the Reentry Permit expiration, if you want to extend it. And extension can only be done while you are physically present in the United States. You cannot send application via courier from India to USCIS, like as you asked. That's the way it should be.  

  3. Wednesday,...
    Question: I have my old Priority date as Dec 2009 in EB-3 and when I changed the company they filed the Labor and I-140 in EB-2 and my old Priority date is not ported on my new I-140 and I see the new I-140 in EB-2 with the Priority Date as Jan 2013. Now with the revised USCIS VISA Bulletin can I apply my I-485 with old PD ( EB-3) and simultaneously to be safer side can I apply I-485 from my wife's side and her PD is July 2010.
    Answer:

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

    https://youtu.be/OMuYdzLJ2qQ?t=1436

    FAQ Transcript:

    Current thinking of USCIS is if the old employer revokes I-140 or USCIS revokes I-140 it will take away your Priority Date.  Second thing is in a situation when one files the second I-140, USCIS has already given the date from the old I-140 and now if the old I-140 is already revoked why keep the date and the answer is not necessarily. Just because the date has been put on your I-140 does not mean you get to keep it at least that’s the way I see it.

    Let’s say husband and wife both have their  I- 485 going. Because she had her I-140, you had your Priority Date and might be a few months ahead of the other one should we be filing I-485s? One Primary and the other one Derivative and the answer is ...USCIS does not like it. On the other hand Is it legal to have multiple I- 485s the answer is "yes"... can it cause confusion and delays..."yes" but it also protects a bunch of very important rights.

    The interesting this is ...let’s say husband and wife both filed I-485 one each but wife’s case got approved first what USCIS  does these days is they take husbands case and convert it to derivative  and approve him also. So they automatically convert pending I-485s from derivative to primary...from primary to derivative which is very good. So bottom line  - can you file multiple I-485's? " yes"...should you do it ?..get your lawyers check with the USCIS. I probably would where there is an advantage and where there is no advantage ...both jobs are secured nothing to worry about let’s say I would probably file one each and then wait. Chances are USCIS will convert when the approved primary and they will  convert  the derivatives case also . The second primary case also as a derivative and approved.

     

     

  4. Tuesday, 22...
    Question: Situation -<br> 1. I am working with employer A on L visa.<br> 2. Employer B has filed my future employment based GC under EB2 category. My I-140 is approved. (I have not worked for employer B until now)<br> 3. My I-485 filed by employer B is pending for more than 180 days.<br> 4. I certainly want to join employer B as soon as I get a project prior to getting green card OR when I get my green card.<br> Questions - (in case point # 4 is not MET and I get an RFE on employment verification letter)<br> 1. During I-1485 adjudication if I get EVL RFE and I decide to respond to it using another job offer from employer C, then - How do I prove that I certainly had intention to join employer B at the time of filing I-140 and I-1485?<br> How to prove that my employer B also had intentions to hire me on a permanent Job offer at the time of filing I-140 and I-485?<br> 2. If we want to respond to EVL RFE using Employer C's offer then - How do we prove that this offer was extended prior to I-485 adjudication (with joining date after getting green card)?<br> What should be the offer extended date and<br> What should be the joining date to comply by AC21?<br> 3. If I respond to this EVL RFE using employer B's job offer letter then - What are the chances of getting "Ability to pay RFE" subsequent to my RFE response using Employer B's offer letter (Not using AC21 at all)? (FYI - as far as I know so far none of the GC applications are denied for "Ability to Pay" RFE for employer B)
    Answer:

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

    https://youtu.be/OMuYdzLJ2qQ?t=440

    FAQ Transcript:

    It is perfectly legal for an employer to process the green card for you as long as they have the good faith intention and you have the good faith intention of joining them. However once I-140 is approved and I-485 through a future employer has been pending 180 days you’re not required to join them. You could join anyone with same or similar job anywhere in the United States. So AC21 protects not only jobs you already have in hand it also protects future jobs. As long as the intention is honest basically that is based upon your statements and that’s all that matters.

    Now you are protected by AC21 job portability or green card portability you can take any job anywhere with any employer as long as it is similar to the job described by your employer B when they file your green card.

    Question: During I-1485 adjudication if I get EVL RFE and I decide to respond to it using another job offer from employer C, then - How do I prove that I certainly had intention to join employer B at the time of filing I-140 and I-1485?

    How to prove that my employer B also had intentions to hire me on a permanent Job offer at the time of filing I-140 and I-485? If I cannot join them during I-485 adjudication.........can I use another job.

    And the answer is - Yes you can and you don’t have to prove that this offer was extended prior to I-485 adjudication. That too can be a future job offer and the joining date does not really have to be specified all that needs to be specified is that is it is their intention to offer you the job and accommodate you either before or promptly after the green  card is approved.

    So you have all the options open if you want to respond using a job offer from the future employer (employer B/employer A) all of them are open to you and ability to pay RFE is usually only relevant to the employer who filed your green card. So if I use AC21 and go from employer X to employer Y USCIS is not going to question employer Y’s ability to pay. But if you stay with employer X they can question the ability to pay all the way till you actually get the green card.

     

     

  5. Monday, 31...
    Question: How does it work with financial co-sponsorship? Can a family member or a close friend co-sponsor a fiancee?
    Answer:

    Anyone who is a US Citizen or green card holder can co-sponsor affidavits of support .

  6. Monday, 31...
    Question: I am a US Citizen residing in the UAE with my Wife and two children. My Wife is a Syrian passport holder. We petitioned her case for residency in the US under I-130. We have received the first notice from the NVC which was on the 24th of June. The letter stated that all documentation necessary to complete the National Visa Center processing of your case has been received, and as soon as an interview date has been scheduled then we will be notified. How long does it take to receive the second notification with an Interview Date that we are closing on week eight? Is there a way that you can expedite an Interview Date? If the answer is Yes, Could we officially request your service? Case Number: ABD2014671004 Beneficiary's Name: KINANA WARD Preference Category: IR1 Priority Date: 25-NOV-13
    Answer:

    Hi Loay. Times are highly variable from a few weeks to a few months. Expedites are only granted for showing of some sort of urgent humanitarian situation in cases like yours. We would like to help, but I am not sure we can add much value at this stage. Contact us if there are any issues (other than timing). 

  7. Wednesday,...
    Question: I am on H-4 visa and my husband is on H-1 visa since 2008. We have an approved I-140 and have applied for a three year extension on the basis of approved I-140 on May 8, 2015, but we have not got any confirmation from USCIS yet, so my concern is that can I apply for a H-4 EAD before our visa extension is approved.
    Answer:

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

    https://youtu.be/tSRYmjhoEzA?t=928

    FAQ Transcript:
    You can apply for EAD. But USCIS has said they don’t like the idea of separating the applications as it can cause delays. Personally I think that’s baloney. I would file it if I were you. You have two options. You can premium the H-1 then H-4 gets premium. Kind of piggy bank on it and when the H-1 is approved file EAD as long as you have a receipt number. I don’t see why it should be a problem. So your choice I would file it.

  8. Wednesday,...
    Question: I entered US on Jan 2011 on F-1 Visa, completed my Masters and am now working for a reputed US organization since May 2012(OPT start date: May 2012, H-1B start date:Oct 2012. H-1B till: Oct 2017). My work does not require me to go to office, so I work from Home. Now I am planning to visit India next year and get my Visa stamped.<br> My Questions are<br> 1. Can telecommuting job cause any issue during Visa stamping? I heard someone was asked "if you can work from home, why can’t you work from India?” The organization I am working for has offices in India.<br> 2. Do I need any extra evidence to prove that I am telecommuting, therefore not within commuting distance from my office?<br> 3. I am married. Would you suggest going alone to India for Visa stamping and in case of rejection comeback on H-4 or will it be good to go as a family. My husband is also on H-1B
    Answer:

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

    https://youtu.be/tSRYmjhoEzA?t=437 

    FAQ Transcript:

    1. The answer is it can. When you have a telecommuting job in most cases what we do is we actually get an LCA for that location. I think that is the proper method to do things. So make sure you have LCA for your home location. You can always come back on H-4 if the H-1 is denied and your husband does not have to go with you. It is not necessary to go as a family but the option of coming back on H-4 is always there. 

    2. We always get LCA for home location. So if your employers have not obtained LCA for you I think they might need to do an H-1B amendment depending upon the facts of your case. So before you go for visa stamping it would be a good idea to discuss it with your lawyers. In my view the safest thing is to have an LCA and that location specifically approved under the H-1 process.

  9. Tuesday, 21...
    Question: I am currently on H-1B visa and I applied for my spouse, H-4 visa (Dallas Texas service center) on They received it on March 4th and Receipt Date March 6th. Now 4.5 months completed. I heard that usually visa processing time is 3 months, but no idea what happened. Like to know what are my options available to expedite it, due to this we could not visit India.
    Answer:

    Open a Service Request by calling USCIS customer service. By the way, you do NOT need an H-4 approval from USCIS to obtain a visa. In this respect, H-4 is different from H-1.

  10. Tuesday, 21...
    Question: I received my H-1 approval & other documents yesterday. I am worried because the I-129 document I received yesterday states no dependents are filed with my petition (Page 4, Part 4). I had sent all my spouse details/ marriage certificate etc. while attaching supporting documents in March. What is the process for H4 visa approval as my spouse would be accompanying me.
    Answer:

    H-4 visas do NOT require a USCIS approval for a spouse who is going to the consulate for visa stamping.

  11. Tuesday, 21...
    Question: Is it possible for me to apply I-485 on my own when I have I-140 approved and having receipt number? I am on L-1A visa, employer is not ready to neither provide I-140 approval notice nor file I-485. What documents you need to apply for I-485, is there any documents required from my employer, who actually is not cooperating so that I do not leave, which I do not intend to leave.
    Answer:

    You will need a confirmation of continued employment ("job letter") to file I-485. You should also put in a FOIA request to see you if you can get a copy of the I-140 approval.

  12. Tuesday, 21...
    Question: I got I-140 approved and also got EAD with EB2 category in April 2012. I need to change my employer but my employer did not give me my green card paper like I-140 approval copy, labor code etc. I have only receipt copy of I-140 and I-485. I heard about USCIS form G-884 (Returns of original documents) which use to get all green card documents from USCIS. I have following questions to ask you. Based on G-884, can I get my all green card documents from USCIS without knowing my employer?
    Answer:

    Form G-884 is used to request return of documents YOU had sent to USCIS (e.g., your college degrees and diplomas). Use FOIA for the purpose you are considering.

  13. Monday, 20...
    Question: I have questions related to I-140 denial & refile.<br> My first I-140 got denied in Jul 2013 due to 'unknown' reasons to me, but I suspect it's A2P. After 2 years now they told me that they are refiling it and will not lose the PD if approved. They didn't ask any info from me. Now my questions are:<br> 1) Is it possible to 'refile' I-140 with same old PERM after 2 years of first I-140 rejection?<br> 2) How many times can we 'refile' I-140 on same PERM?<br> 3) Can we do 'refile' under premium?
    Answer:

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

    https://youtu.be/ZBJhcjjIrzs?t=1548

    FAQ Transcript:

    The rule is once PERM is approved the I-140 must be filed within 180 days. If you do not then your PERM is extinguished and you will have to start all over again. However if you file I-140 within 180 days and then for some reason you have to file again, then 180 day limit does not apply. Let me give you an example: Let us say you’re I-140 was denied, you filed it within 180 days and you forgot to submit an education evaluation or because of some technical reason or a serious reason such as the inability of the employer to prove that they have the capacity to pay your wages. You can file an I-140 three years down the line. You are no longer confined to the 180 day deadline because when the first time around when you filed you were confined to the 180 days deadline.

    Now answer to question 1: Yes.

    Answer to question 2: No limit that I know of as long as it is done in good faith. 

    Answer to question 3: This is a tricky question. USCIS has said if you still have the original of the PERM and it has not been archived then they will take the premium processing only if they have the originals in their possession. If it was never submitted or if the case has been shelved they will not take premium processing.

  14. Tuesday, 7...
    Question: My employer did not run my payroll. He told me that we are going to get the project money after 2 months from client. Can I do something for that? If they do not run payroll can it create any problem?
    Answer:

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

    https://youtu.be/PreNUXXW9KU?t=696

    FAQ Transcript 

    The employer will be in a lot of trouble. The law is employers cannot bench or reduce the salaries of the employees just because they are in between projects. They are required to pay the full salary. If they don’t you can file a complaint with the Wage and Hour Division (United States Department of Labor) within a year when the wages were not paid. The form is WH-4. Once you file the complaint, Department of Labor investigates it. You have to do nothing. It does not involve any expense at your part for H-1 holders.  Department of Labor will recover the money and will get the cheques that are due. Secondly if the employer has the practice of doing this in a routine basis then the company can be in a lot of trouble. Please do not get involved in a situation where the employer runs the payroll and you return the cash to them. If that is the situation anybody invites you to that is a party to a fraud. Fraud and misrepresentation can result in criminal prosecution and also can result in a permanent bar from entering the United States.

  15. Monday, 29...
    Question: I am currently on EB-3. I have a company (say Company A) which is willing to file for my GC in EB-2 under 'Future Employment'. Do I or the 'company A' need to be aware of something on this front?
    Answer:

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

    https://youtu.be/PreNUXXW9KU

    FAQ Transcript:

    There are only two things.

    1. “I” the employee has the good faith intention in taking that job. You may never have to join that job but you should have the good faith intention to take up that job when the green card comes through. You may never have to do it but you should have the intention.

    2. The employer must have the same good faith intention of hiring you sometime in the future. What is that time within a commercially reasonable period after you get your green card or any time before that?

     Let’s say you get your green card approval today the future employer should hire you within 3,4 5 months. That is the commercial reasonable period. 

    So applying for a green card through a future job - can it be done and the answer is "yes" it is allowed. The employer should have ability to pay wages and that is an important thing. Other than that all that is needed is good faith intention on part of the employer and employee to give and take the job.

  16. Monday, 29...
    Question: Below are questions I have on the H-1B Amendment and H-1B transfer being filed almost at the same time with little gap with USCIS for the same person. The H-1B Amendment is in light of the new H-1B regulation that has been mandated by USCIS when there is a significant change in the Job Location of the beneficiary from the address mentioned in the initial Petition from the employer which was approved initially.<p> 1. Does the USCIS Last action rule apply in case of the below 2 being applied almost at the same time for the same beneficiary?<br> a) H-1B Amendment with Current Employer<br> b) H-1B Transfer to New employer while H1B Amendment is pending with Current Employer.<br> 2. If the answer for the above is 'Yes', then incase the H-1B Amendment Approval comes after the H-1B Transfer would the H-1B transfer to the new employer that was approved earlier be automatically nullified?<br> 3. If the answer for #2 above is 'Yes' Is there any way to request USCIS to consider the H-1B Transfer approval to new employer as the primary incase that get approved earlier and avoid the H-1B amendment to dictate the latest H-1B for a given employer? (I believe we can request USCIS to withdraw/cancel the Amendment but is this something that the new employer/employee can do or only the existing employer who was filed for H-1B amendment has the authority to request any cancellation/withdrawal of the H-1B amendment?)<br> 4. Also does the current suspension of H-1B premium processing apply even for the H-1B transfers (with a new extension for 3 Years) or is it only for new H-1B extensions of Petitions from the current employer?
    Answer:

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

    https://youtu.be/PreNUXXW9KU

    FAQ Transcript: 

    Filing for two benefits for eg: H-4 and F-2 or F-1 or even H-1 becomes problamatic when there is a change of status involved. So if you are applying for two different statuses at the same time that becomes problematic. If on the other hand your status is H-1 - the same status one is in the amendment mode, the other one is in the extension mode I don’t see it as a problem. Whether your amendment gets done first or your extension gets done later or the other way round I do not see how that makes a difference as long as your statuses is being maintained.  I do not see any problem with having simultaneous filing of H-1 amendment and extension. There is no question of the application of the last action rule really doesn’t matter. If the amendment comes before the extension or transfer comes before the extension it is your choice you can stick with the same employer and join the new employer later when the approval comes. Last action rule has little bearing on this. 

    Regarding question four what the government has said is we will not do premium processing where you request an extension whether the extension is with the same employer or with a new employer. So extension cases will not be processed in premium processing until the government says otherwise.

  17. Wednesday,...
    Question: FAQ 1. I am presently in Canada on a work permit and want to apply for H-4 EAD. My husband has a valid H-1 and an approved green card application . So we are eligible for applying. My question is that can I visit US for 2-3 days, mail my application and then leave the country? Do I need to be in the US when the USICS receives my application? Or I can immediately leave after mailing the application? <p> FAQ 2. My spouse's PERM approved & his employer is still gathering required documents to file I-140. It is still within 180 days limit. Can I apply for H-4 EAD with my spouse approved PERM copy and other documents required ( eligible under beyond 6 years extension of H-1 & PERM pending 365 days) ? Or do I have to wait until his I-140 filed ?
    Answer:

    Answer 1: Unless you are already on H-4, you cannot leave while the change of status request is pending. 

    Answer 2: I think you will need the I-140 APPROVAL, not just receipt (or 7+ year H-1 extension). 

  18. Tuesday, 2...
    Question: My husband got his I-140 approved from his previous employer. Then he changed his employer and has filed his LC which has NOT been approved yet. His previous employer has WITHDRAWN the I-140.He is in his 11th year of H-1. Couple of questions.<br> 1) Can I file for H-4 EAD?<br> 2) My husband currently has no I-140 approved. While checking my application, will they look into his application and cause any issues to his present H-1 extension?
    Answer:

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

    https://youtu.be/8N82R3qAiJo?t=569

    FAQ Transcript:

    Did he get his H-1 approval for one year or three years? If he got it for one year then you might be still able to get H-4 EAD filed. But if he got a three year approval or more than one year approval based upon the I-140 rather than the perm application you may not qualify and in fact the government has said if you are basing your H-4 EAD filing upon the I-140 then the I-140 is withdrawn you are no longer eligible to file the application and somebody asked a question what if my EAD is approved then the I-140 is withdrawn the government has said even then we reserve the right to revoke your H-4. So you cannot file unless you qualify under one of the two grounds. I-140 or one year extension based upon labor certification.

  19. Tuesday, 2...
    Question: I have a question about the H4 EAD. The USCIS states, "You may file Form I-765 with Form I-539, Application to Extend/ Change Nonimmigrant Status. However, USCIS will not process Form I-765 (except filing fees), until after USCIS has adjudicated Form I-539".<br> In our case, my spouse's employer will be filing for our extension (I-539) but are not willing to file the I-765, as it is a new process. I was wondering if I need to wait to receive the approval before filing the I-765 or if it would be fine for us to file the same once we receive an acknowledgement.
    Answer:

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

    https://youtu.be/8N82R3qAiJo?t=382

    FAQ Transcript:

    The reason that they do it that way is because then they are constrained to a 90 day deadline. If they start adjudicating both together the moment they open the I-765 they got 90 days. If they start doing both together they may not be able to meet the deadline. They already have the trouble meeting the deadline of 90 days for EAD cases. Government is discouraging you to file I-765 while the I-539 is pending. They say file either both together or wait till the I-539 is approved. Then file your I- 765.

  20. Tuesday, 2...
    Question: First of all thank you for all your blogs and videos on immigration. They are very informative and knowledgeable. I follow your views and suggestions on all my immigration work. I also recommend your suggestions to lot of my friends and colleagues. I appreciate your help towards the community.<br> I have a situation:<br> I am in my 3rd year of my H-1B status, my I-140 is approved and need to file for my spouse H-4EAD on May 26, but she needs to travel to India for family reasons in August this year.<br> Questions:<br> 1) Will that be a Ok for her to travel to India while her H-4 EAD petition is pending?<br> 2) How long will the petition will take to come to a decision (~estimate)?<br> 3) What happens if her H-4 EAD petition gets approved and she is in India? Does she have to go to the US Embassy again?<br> 4) (Being positive but need to think the other sides of a same coin) what happens if her H-4 EAD petition gets denied? Will she be able to retain her H-4 status? Will she able to enter US without any issues?<br> 5) What would you suggest? Will that be ok for her to visit (or) to wait till the decision is made on her H-4 EAD petition?
    Answer:

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

    https://youtu.be/8N82R3qAiJo?t=123

    FAQ Transcript:

    Answer 1. There are two possible situations. If you are already in H-4 status USCIS says you can travel, of course you will need a visa to enter. And if you’re I-765, EAD is approved while you are outside USA no problem but we advice is not to travel is because this can cause you delay. The reason they give for delays is what if they issue an RFE. That is not a problem if you have a lawyer or somebody else helping you they can take care of the RFE or the notice of intent to deny. Or if they schedule you for fingerprinting etc., in an application support center you can always be informed and you can come back. So it looks like if you are already in H-4 status traveling while the I-765 is pending is not a problem. However if you are applying for  H-4  status the old law was and still remains if you travel when your change of status application is pending then you are out of luck. Your application is deemed to be abandoned and they will also deny the I-765.

    Answer 2. There can be no estimate. What the government has said is if you file for H-4 and EAD at the same time we have by regulations 90 days to adjudicate the I-765 but we will begin the time to run until the H-4 is decided. That’s probably the approach they will take. 

    Answer 3. That’s not a problem. Visa has nothing to do with the H-4 EAD. She need not go to the embassy.

     Answer 4. Absolutely. If the H-4 for some reason is violated or denied EAD has no way of existing. The status can stand by itself or the visa can stand by itself and the EAD denial does not affect it.  

    Answer 5. I think it is ok to travel. It is up to you if you can avoid travel avoid it by all means if you must travel go ahead and travel.

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