US Immigration Questions

  1. Wednesday,...
    Question:
    Answer:

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

    https://youtu.be/F0YZD8zWm88?t=72

    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 .  

  2. Wednesday,...
    Question:
    Answer:

    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. 

  3. Monday, 26...
    Question:
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=705

    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 www.cbp.gov 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. 

  4. Monday, 26...
    Question:
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=602


    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.

  5. Monday, 26...
    Question:
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=520

    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.

  6. Thursday,...
    Question:
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=2334

     

    FAQ Transcript:

     If you go to this website - http://www.dol.gov/whd/fmla/ 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.

  7. Tuesday, 20...
    Question:
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=1937

    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.

  8. Tuesday, 20...
    Question:
    Answer:

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

    https://youtu.be/ZvUVIGTM-Kk?t=1245

    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. 

  9. Thursday,...
    Question:
    Answer:

    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.

  10. Thursday,...
    Question:
    Answer:

    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.

     

     

     

  11. Tuesday, 13...
    Question:
    Answer:

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

    https://youtu.be/XAfykYM-cUQ?t=89

    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.

  12. Thursday, 8...
    Question:
    Answer:

    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.

     

     

     

     

  13. Monday, 5...
    Question:
    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. 

  14. Friday, 25...
    Question:
    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.  

  15. Wednesday,...
    Question:
    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.

     

     

  16. Tuesday, 22...
    Question:
    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.

     

     

  17. Monday, 31...
    Question:
    Answer:

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

  18. Monday, 31...
    Question:
    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). 

  19. Wednesday,...
    Question:
    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.

  20. Wednesday,...
    Question:
    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.

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