US Immigration Questions

  1. Monday, 24...
    Question:
    Answer:

    Concurrent filing is possible ONLY if your priority date for EB-2 is current, and not backlogged.

  2. Monday, 24...
    Question:
    Answer:

    I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

  3. Monday, 24...
    Question:
    Answer:

    Obama's Immigration Action plan could impact all waiting time for EB categories. We are not clear how far or how quickly. There is no indication that the method counting green cards will be changed to One per family, instead of one for each family member in an employment-based case. President has asked for recommendations for improvement within 120 days. We shall see.

  4. Monday, 24...
    Question:
    Answer:

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

    https://www.youtube.com/watch?v=ujMQ79pgzX8#t=1516

     

    FAQ Transcript

    If you are on H-1, sometimes people ask me, I want to maintain status even though I am getting laid off. Can I be on unpaid leave and does maintain status? 

    Answer is NO. Unpaid leave is not a device to maintain status. However in this scenario  you have gone to gone to India and  got the stamping done and you got the paid vacation of 2 weeks , but you want few more weeks of unpaid leave and is this legal? 

    And the answer is YES. It’s when the employer gives you leave unscheduled, normally unpaid based upon your request not because you don't have a project, then for them not to pay you there is no problem. And for them not to pay you especially when you are outside the USA is absolutely no issue. 

    The only problem is, make sure for the green card purposes the employer is generating enough money to meet the ability to pay wages issue. This is something you have to talk to your lawyers about it. Just tell them make sure if I am unpaid for few weeks it does not affect my green card, ability to pay wages issue. H-1 is no problem but if W-2 is less than the LCA because you are outside USA  there is good explanation. 

    What documentation can you show? The facts that you are outside the U.S.A; so your boarding passes, any other evidences you have been outside the USA any email from you, something inviting or requesting that unpaid leave of absence for personal reason.

  5. Monday, 24...
    Question:
    Answer:
    See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
    https://www.youtube.com/watch?v=ujMQ79pgzX8
    
    FAQ Transcript
    
    Here is the situation. What is Cross-Chargeability? Let me explain. Normally when we do analysis which country quota do you belong to for your employment based Green Cards we go by your country of birth. If you are born in India and you are citizen of Japan, you are still going to be charge to India not Japan. If however, your wife is born in third country in Japan you are born in India but your wife is born in Japan, you can be charge to Japan that is called Cross Charge-ability. That is very useful thing to have, because all of sudden from a heavily backed up country you go to country where dates are current. 
    So the problem is she is born in Nepal but does not have the birth certificate. Before I go to the birth certificate question, let me go one by one. First is, does USCIS have discretion to deny such cases? Or do they have to give me the Cross charge-ability? The answer is they have to give the cross chargeability. This is not the question of discretion; they are not doing any favors. Once you meet the requirements and you can prove it you are entitled to your cross charge-ability. You cannot be denied your I-485 for this reason.
    Now, she does not have the birth certificate from Nepal. Birth certificate is the only way to prove the location of birth, it gets tricky. In normal circumstances if you don't have a birth certificate what you will do is you will get a certificate of non availability from the village Panchayat or Municipal corporation where she is born saying that her birth is never recorded. Then you will get two affidavits from people like her parents, who say that we know that she is born on this date, this place. In areas of cross charge-ability USCIS may require further evidence. It can be any evidence about where she lived in Nepal, things like that but if you try to register her birth now that's not going to happen.
    So if you do go through the cross charge-ability and your dates are “current” typically your Green Card should be done within a year.
  6. Tuesday, 18...
    Question:
    Answer:

    Until the pending H-4 EAD regulations are promulgated, the only obvious option for her is to obtain her H-1 through employment.

  7. Tuesday, 18...
    Question:
    Answer:

    For visitors visa, there is no requirement of possessing funds. The consulates can require, if they so choose, that you demonstrate your ability to support yourself during the visit, but there is no hard and fast rule on this. Your most likely hurdle will be the need to prove that you will come back and not stay in the US illegally. 

  8. Friday, 14...
    Question:
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2538

     

    FAQ Transcript

    If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody  or some kind of public nuisance conviction, in  this  case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?

    First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.

    So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.

    Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction. 

    What is conviction under Immigration law?

    A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK. 

  9. Friday, 14...
    Question:
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2384

     

    FAQ Transcript

    This FAQ is on “filing amendment for pending H-1B petitions”.  

    Let me explain to you, what the problem is.  Let’s say I apply H-1B for myself and I am going to work for IBM as the end client. When we filed the case suddenly in 3 months my client changes now I am going to work with Sun Micro systems. Can I file amendment in midstream and the answer is very problematic.

    Normally, USCIS they used to be OK until a year ago.  Last year or so USCIS have been saying if your situation changes while the case is pending, we will not accept the change. You have to file H-1 again and if you are out of status you have to go outside USA for visa stamping.

    See in your spouse’s case there is little bit of a better situation. In that she is still on H-4 maintaining status. They applied for amendment separately, it might work. If she is a quota case that becomes another problem because if first case is not approved tenth amendment cannot be approved, just keep that in mind. 

     

     

  10. Friday, 14...
    Question:
    Answer:

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

    https://www.youtube.com/watch?v=xp4B1_qhvtM#t=1825

  11. Tuesday, 11...
    Question:
    Answer:
    FAQ: Discrepancies In Date Of Birth Information

    FAQ Transcript

    First of all you don't need to leave USA and go away and the question regarding should I forget about Green Card?
    
    No, not at all. What you do is when you file I-140/I-485 make sure you mention your correct date of birth. Try to get your documents corrected, if you cannot get corrected have your lawyers file affidavit explaining what happened. But always go with correct date of birth.
    
    Have we done this in the past? Yes we have. Have we had the problems? Little bit. 
    
    We have to make sure that government understands it what the reason is and that we are just not being cute and trying to take advantage in some ways by creating the false identification. As long as government is convinced about that I usually see no further problems. So just don't give up, there should be detailed explanation, we should make attempt to make sure that you have corrected all the information about your date of birth on your passport, your school certificate. Whatever you can correct it, whatever you cannot correct document it. 
    
    So, yes you do need your correct date of birth and because the documents for immigration in the United States are all filed under the Penalty of Perjury, your information must be correct.

    Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.
  12. Monday, 10...
    Question:
    Answer:
  13. Thursday, 6...
    Question:
    Answer:

    It is difficult for me to plan your course, but the law is relatively simple. If you get married BEFORE green card approval, your spouse is entitled to "follow to join." That process tends to be quicker than if you get married after you get the green card approval.

  14. Tuesday, 4...
    Question:
    Answer:

    This issue has been coming up more frequently in family-based immigration petitions than it ever did before. The way it currently works is, the RFE will tell you which web site you can go to to get a list of USCIS approved labs. You can call the lab. They will arrange to have the DNS sample collected in India from your parents and from you here in the USA. You send the lab a copy of the RFE. They will send the results directly to USCIS. 

  15. Friday, 31...
    Question:
    Answer:

    When the tourist visa denial is based upon a possible intent to immigrate (also known as INA Section 214(b) denial), it CAN be a problem for student visa.

  16. Friday, 31...
    Question:
    Answer:

    That depends upon how old the business is and how you wish to structure your ownership.

    According to USCIS, an eligible enterprise for EB-5 investment is one that is either established after Nov. 29, 1990, or established on or before Nov. 29, 1990, and is:


    1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or


    2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

  17. Tuesday, 28...
    Question:
    Answer:

    It IS possible for your green card to remain unaffected even after the corporate change over. Do some research on "successor in interest." I think it is a bad idea to change companies in response to a PERM audit. 

  18. Tuesday, 28...
    Question:
    Answer:

    Yes, the J-2 can, UNLESS the J-1 holder is a physician serving the three years for J-1 waiver. 

  19. Wednesday,...
    Question:
    Answer:

    Looks like you should be eligible for EB-1C. In cases like yours, three years are not an issue, if I remember the rule correctly. You can apply. Engineers qualify as professionals. As to the last point about good evidence, let your lawyers worry about it. I cannot write a meaningful answer. 

  20. Thursday,...
    Question:
    Answer:

    V visa no longer exists. There is no K visa option for green card holders. Sorry. 

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