US Immigration Questions

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form. This answer is for information purposes only and does not create an attorney-client relationship.

What happens if you stay outside the U.S. for more than 8 months as a permanent resident

Question details

Does it pose a problem if we stay out of the USA for 8 months or more while having permanent residency and returning after that duration? If so, what can be done to remedy this?

 

ANSWER
Video URL
FAQ Transcript

The green card remains valid as long as you don't exceed the 12-month mark. Crossing this deadline leads to losing the green card and going through complicated procedures to retrieve it. If you stay outside the US for more than six months, you are subject to close examination by Customs and Border Protection at the airport. However, if your absence is less than six months, you can pass without being questioned extensively. The critical six-month mark should be taken seriously. If you stay outside for more than eight months, expect to be asked questions about the reason for your lengthy absence. Therefore, carrying evidence supporting your reason, such as selling your property or helping a family member, can be useful.

Recommendation letters for EB-1A applications

Question details

Questions about 'recommendation letters' for EB1A:

1. For a strong case, a ballpark number of how many recommendation letters should one attach to the application? 5? 10? More the better or quality > quantity?

2. Is there a validity of recommendation letters? What if I collect letters today but apply for EB1A 1 year or 2 years later?

3. Is it mandatory for the recommenders to write the letters on the official letterhead of their company/college

 

ANSWER
Video URL
FAQ Transcript

To make a strong case, it is not just about the number of recommendation letters, but also the quality of the letters. A ballpark estimate for the number of letters would be around 5 to 10. Quality is definitely more important than quantity. When considering recommendation letters, people who know you by reputation rather than just personally are given more weight. It is important that the letters are detailed, with specific reasoning about what makes you special and why you are in the top 10%. The qualifications of the people writing the letters, including their resumes, should also be included. The validity of recommendation letters can become questionable if they are too old, so it is better to obtain recent letters if possible. However, if there is a choice between getting an old letter or no letter at all, it is better to have an old letter. If the letter writer cannot write on official letterhead, they should include a line stating that their opinion is not that of their employer.

 

Impact of job changes on pending I-140 and/or PERM applications for H-1B holder

Question details

If your company files a new PERM for a different role within the same organization after your initial I-140 is approved, will the initial I-140 still be active?

If your employer revokes your initial I-140 more than 6 months after it is approved and you move to a new role within the same company, is there any risk involved?

Will every organization need to apply for a PERM again in the future if you switch employers? Can you work for an organization that is not ready to start your PERM process, and can you use your previous approved I-140 to extend your H1B for a new employer?

If you lose your job post I-140 approval and don't find a new job within 60 days, can you still apply for jobs while outside the United States? Will your last approved I-140 still be active?

What are the cases or situations in which you can lose your I-140 or priority date (i.e., your approved I-140 is revoked)?

 

ANSWER
Video URL
FAQ Transcript

When filing for the permanent labor certification (PERM) application, it is important to file from the corporate headquarters instead of a branch or sub-office, especially for consulting jobs or jobs that can be transferred to different locations. This is because the U.S Department of Labor considers the corporate headquarters to be the job site for transferable jobs. After the I-140 is approved, the priority date belongs to the individual even if the I-140 is withdrawn, unless it is revoked for fraud, misrepresentation, or an obvious error. Additionally, as long as the I-140 stays approved for 180 days, the individual has the right to extend their H-1B beyond six years with any employer, even if the I-140 is revoked. After 180 days, the employer can revoke the I-140, but it does not affect the individual.

 

Nonimmigrant Visas

Unemployment benefits for Green card holder

Question details

Hi, My husband & I have been green card holders (Employment based thru my employer, prior Visa status L1 & L2) since August 2020. My husband recently lost his job, so I was hoping you could please clarify a few queries: • Is he eligible to apply for Unemployment benefits? • If yes, does this have any negative impact on our Citizenship/Naturalization process in the future? Truly appreciate your kind assistance. Thank you

ANSWER

Availing of unemployment benefits should have no impact on a green card holder's status or naturalization. Eligibility depends upon state law.

Green Card

H-1B transfer process for laid off employee

Question details

Hello, I have been laid off from Amazon, and I am unemployed since March-20, I got one offer from another company, and they did my immigration assessment, they told me that I do not have enough time and its difficult to ensure that I will not go out of status within this time saying that they have rejected my application. If I just file LCA my unemployment days will stop, or they will have to file my H1B change petition only then will I be able to save my status. Also, will I get 60 days grace period for each H1B petition?

ANSWER

Filing an LCA is not enough. In order to stop the running of the 60-days grace period and to start working, your H-1B transfer petition must be received by the USCIS within the grace period.

The grace period is not a one-shot deal. You will get it whenever you are in the layoff/cessation of employment situation again.

Nonimmigrant Visas

Immigration Law

Change of Status from H4 to Day 1 Cpt

Question details

Hello Rajiv Sir, My wife wants to do Masters and she is currently on H4 without EAD as I am awaiting PWD approval and other steps in the process.
 

My question is can she transfer from H4 to Day-1 CPT through F-1 by filing I-539? Also, If we do only 363 days of day-1 CpT, can she get opt and stem opt?

ANSWER

Once your wife obtains a change of status to F-1, she should be able to get CPT authorization if the school meets all the other requirements. Note that one year of full-time CPT takes away your eligibility for OPT. The regulations do not mention 363 days leading to disqualification. The regulations also provide an exception to the one-year bar for some graduate students. https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/se…. Source 8 CFR 214.2(f)(10)(i)

Nonimmigrant Visas

What to do if one is in India during the PERM and I-140 approval process

Question details

I'm on H-1B with employer A and am currently in the PERM process(recruitment done). I'm in India right now and would like to know what happens if:
1) PERM approved and i140 filed; (while I'm in India)
2) Receive PERM audit; (while I'm in India)
3) I-140 approved and Post I-140 approval; (while I'm in India)
Do I need to return to the US in any of the above scenarios? Any worst-case scenarios I should keep in mind?

 

ANSWER
Video URL

 

FAQ Transcript

1. No problem.
2. No problem.
3. No problem.
Do discuss your long-term plans with your lawyers.

Nonimmigrant Visas

AC21 AOS portability: Pending AOS I-140 withdrawn before 180 days

Question details

Currently working with Employer B since 2020.
Employer A - 140 Approved in 2013. EB2 category.
Employer A - Provided form 485J in Aug and I applied for I485 in Aug. My dates retrogressed to Oct 2011 now.
Employer A - Desi consulting company, we couldn't find a project for me to join them and they withdrew I-140 in Jan. At the time of the I140 withdrawal I485 was at 150 days timeline. Now that 180 days have passed since I485 was filed in Aug, can I provide 485J with my current employer to port the I485 application? Will USCIS approve porting or deny as I140(approved in 2013) was recently withdrawn before I485 reaches the 180 days mark? Is there any way to appeal the withdrawal of I140 as beneficiary with pending AOS or ex-employer can withdraw without any issue? Are there any laws to safeguard the beneficiary when dealing with abusive and mean desi consulting companies?

 

ANSWER
Video URL
FAQ Transcript

You should talk to an employment lawyer.

Marriage and relocation to the U.S.: Quickest path for the prospective fiancé of a U.S Citizen living in India

Question details

My sister is in India and the prospective groom is a US citizen. They have concerns about how to proceed with marriage and relocation of the girl to US in a timely manner (prefer not to wait more than a year for marriage/ living together post-marriage for personal reasons) Current fiancé visa processing time seems to be 15 months. It was not this long pre-covid, realistically can this processing time reduce this year? If they do marriage in India first, what’s the quickest way for her to come to US and how long would it take She has a valid B1. Can she travel on that to US post-marriage for 5-6 months only without any risk to her green card application? She is trying to get an L1-B visa through her current company. Will that visa approval be affected if they get married in the meanwhile? In short, what is the quickest path for her marriage & relocation to the US right now?

 

ANSWER
Video URL
FAQ Transcript

She can travel with a B-1 visa as long as she tells the truth. L-1 and H-1B visas are the quickest paths.

 

Citizenship and Naturalization

Handling H-1B visa and layoff : What happens if I get laid off before or after stamping my visa in India?

Question details

I got my H1B visa approval recently and I have got my stamping date in May. My company is going through a bad phase financially and has had 2 layoffs (might do another layoff in next few months) I go to India for stamping and get laid off before getting my visa stamped (Can I come back to the US with 60 days left? Can I get my visa stamped if my company pays me for another month or so considering that my last day is a month later? Can I get my visa stamped even if my last day has passed)I go to India for stamping and get laid off after getting my visa stamped (can I come to US and do my job search) If I get laid off while in India but have an offer letter from another company (H1B transfer done/ transfer to be done after returning to US)

 

ANSWER
Video URL
FAQ Transcript

This is a pertinent question. I don't think you should go for visa stamping if you have been laid off. If you do go, you should make it clear to the consulate that you have been laid off. However, under the law, you have a 60-day grace period during which you intend to apply for another job. I don't think it's going to work like that. I don't remember the details of the regulation off the top of my head, but I think there might be some restrictions against travel.

An offer letter is not good enough just to get the H-1B approval. Then, I don't think there's a problem with traveling.

 

Nonimmigrant Visas

Immigration Law