US Immigration Questions

  1. Monday, 23...
    Question:
    Answer:

    There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

    One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

  2. Sunday, 22...
    Question:
    Answer:

     I do not see any way around filing an F-1.

  3. Sunday, 22...
    Question:
    Answer:

    You should certainly point this out at the biometrics appt. You should also call the CIS customer service number and explain the problem. In addition, you should contact your Congressman. Let them contact CIS and help you correct this issue.

  4. Sunday, 22...
    Question:
    Answer:

    That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

  5. Sunday, 22...
    Question:
    Answer:

    1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
    Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

    Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.

    2. How to leverage the I-140 to get H-1 extensions?

    Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.

    3. Is an approved I-140 ground for an automatic denial of J visa?

    Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.

  6. Sunday, 22...
    Question:
    Answer:

    Dear Rajiv, we are small business firm with few h1b workers. I have few questions that I would like to get your advise:

    a) Do we need to file a separate labor petition whenever a h1b worker moves to an different project location?

    b) We are having difficulty finding project for one of our h1b worker. As a small firm, we are unable to run a payroll while the candidate is on bench (so to speak). Should we need to withdraw the petition and send the candidate back home? or is it ok to accept a leave of absence from the candidate? She has a EAD also (as her husband has filled I485 in Nov 2007)

    Travel on H-1
    The rules on travel while on H-1 are fairly complex. Let me state the basic law.

    If the employee moves to an area beyond normal commuting distance for the approved location (stated in their approved H-1 and LCA), and you do not have another valid LCA for that location, you MUST amend the H-1.

    If the relocation is in the same area, you MUST file a new LCA and post the notice at two places in the new job site. You do NOT need to amend the H-1.

    There are a whole set of rules about exceptions for employees who are required to habitually travel (peripatetic employees), short term travel and travel for attending seminars etc. If you folks need more of that I will edit this article further when I get a few minutes.

    Leave of Absence on H-1
    Regs do permit leave of absence if an employee genuinely needs it. But you must not use LOA as a pretext to bench employees. In my view, you must withdraw the H-1.

    FAQ
     

    Quote: I have a question regarding the h1b candidates who left our firm almost 2 years ago(there are two case). We didn't send the withdrawal form (as we weren't familiar with the case). If we send a withdrawal notice now (stating that they resigned in the 2006 or 2007) will there be any implications for us? Appreciate your help.

    I do not believe we have a choice. You MUST inform USCIS. In my view, the fact that we are stepping forward to correct problems voluntarily is in fact helpful to us.

    By the way, I think I am scheduled to do an employer-only phone seminar answering and discussing all compliance issues this Thursday at 2 PM. This may be more for our existing clients. But go ahead and send an email though the "contact us" form on our home page. Send email from your corporate account. We are not opening the seminar for anyone but employers. There is no charge, fo course.

  7. Thursday,...
    Question:
    Answer:

     PT's and RN's are both exempt from filing labor cert, but the time for their green card processing is still tied to the time it takes for people from the country of their birth. An India-born PT will wait the same time in EB-3 category as any other India-born EB-3 applicant.

  8. Thursday,...
    Question:
    Answer:

    The essence of a green card application is that it is meant to be for a job in the future. 

    Thus, where an employee is currently working or working before obtaining a green card
    approval is largely irrelevant.

    You must, however, be fully qualified to take the job on the date the PERM application is filed. So, if the State in which you are filing your GC, permits you to get a license to practice in 2nd year of residency, you can file only in the second year.

    The process is also governed by good faith. You must have a good faith intention of joining the employer and the employer must have the intention of hiring you. Do you actually have to join the employer? Well, probably not. Look at the law on AC21.

  9. Thursday,...
    Question:
    Answer:

    Quote:

    1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

    Ans. Probably yes. That is the safest thing to do. The rule of thumb is, you can never pay an H-1 holder below the prevailing wage. You can also not pay them below what you pay other similarly employed professionals in the geographical location of the employment. So, if the 10% pay cut does not violate these two principles, the only other issue in immigration compliance is whether 10% cut in salary is a "substantial" change in the job. An H-1 amendment is always necessary when there is a substantial change. To be safe, I would recommend you amend.

    Quote:

    2. If an employee is on a GC processing (I140 or I485) they can have a reduction but need to be paid the amount equal to or greater that was listed on the GC petition on the day their GC is approved.

    Ans. Basically, yes.

    The main issue here is, if the salary being paid is below that expressed in the GC application, does the employer still have the ability to pay wages. This issue is usually not raised past the I-140 approval, but I see no law that says it cannot be raised after the I-140 approval. And in all cases before 140 approval, the salary shortfall must be balanced by showing an equal amount of taxable income or net current assets for each GC beneficiary (employee) still in the process.

    For example, you have to give a pay reduction to an employee on H-1. Assuming you have not violated the H-1 requirements we have discussed above, you will need to show continued ability to pay the GC salary. Let us say the salary stated on the GC application in $80,000. The employee is now making $75,000 after the pay cut.

    For GC, we will have to show $5,000 taxable income/current assets (or the proportion of salary that falls in that tax year). If there are 5 employees in the same situation, that amount would rise to $25,000.

    Quote:

    3. If an employee is on a GC processing and has a H1 they need to have their H1 revoked and work on their EAD for the #2 above to be accepted.

    Ans. You can do that as long as that employee is getting paid the same as others.

    Quote:

    4. Benefits that were listed as a part of an employees immigration processing cannot be decreased.

    Ans. There is no place where we commit to benefits or state them in the GC application as far as I know. The law does not require benefits.

     

  10. Wednesday,...
    Question:
    Answer:

    Quote:

    If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

    Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

    Quote:

    I really want to thank and appreciate the good work you and your team is doing.
    I had a question regarding Status. I am currently working on H1(6th Year) with one company and have another company who has filled for my GC. The I-140 has been approved(Oct'07) and 485 was also filled in Oct'07.
    My question is if my present employer lays me off and terminates my H1,
    1. Can apply for H1B transfer to other company?
    2. Will I be consider out of Status under any condition?
    3. Will H1B cap apply to me as its going to be a new H1B as the previous company will cancel the H1b after Layoff.
    4. Can you also tell me can I apply for the H1B from another company as a backup and join that company after layoff?

    Ans. You should be able to apply for an H-1 through another company. You may have to apply for an H-1 visa to get back into H-1, but you will not be out of status because your 485 is pending. You will not be subject to the quota. Having an H-1 as a backup is legallly possible, but tricky. Make sure you discuss this with your H-1 lawyers.

  11. Friday, 13...
    Question:
    Answer:

    In a recent meeting, USDOL has stated:

    Quote:

    ...As of late January 2009, DOL is processing cases with priority dates in June 2008, cases in the audit queue with priority dates in August 2007, and cases in the appeal queue of April 2007....

    One of the reasons that case processing slowed in the 4th quarter of 2008 was that DOL was hiring and training contractor staff for the Atlanta National Processing Center. The contract was awarded last summer, a losing contractor appealed and won the appeal, then the initial contractor sued. The workers did not come on board until last September 2008. The Atlanta Processing Center has only 40 federal employees and the rest of the staff consists of contractors. With the contractors now in place, the pace of processing has picked up. Only 4,571 PERM applications were completed in October-December 2008 but 3,500 PERM applications were completed in January 2009. However, DOL expects this will level off and processing rates will slow down again because of the limited number of federal employees available to review the contractors’ work.

     

  12. Tuesday, 10...
    Question:
    Answer:

     You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

  13. Tuesday, 10...
    Question:
    Answer:

    Difficult to say what the chances are, but read on.

    Note that sometimes the employer may not be exempt from the quota, but the job may be. In the last three months, we have processed three cases like this.

    Two H-1 cases were for a for-profit employer who was subject to the quota. But the employees are working at a Federal Research Lab. So that jobs are being performed to assist the function of a quota-exempt entity. H-1 were approved.

    One case was for an educator who was doing trainings for a private company. The employer is obviously subject to the quota, but there was a large component of the job where she is assisting art education outreach for a university. H-1 approved.

    But this is never easy, simply because CIS itself does not understand its own law. The first set of cases were returned as unapprovable by CIS 4 times and finally approved. The second, returned once and then approved. I will not get into the amount of pushing we had to do to get the govt. to obey the law, but we did get them approved.

  14. Tuesday, 10...
    Question:
    Answer:

    It looks like your visa was not canceled, you just did not use it. Note two things. First, non-use of an earlier issued visa should not create any problems in the future. But second and much more important, you HAVE to tell the hospital that you had an H-1 earlier. As far as I know, there is a question on the H-1 forms that specifically asks that question. Not answering the questions on the forms truthfully can get you into trouble. Check the forms, if there is no question that asks about any earlier H-1, you are fine. But I am pretty sure there is such a question and you have to get that answered truthfully.

  15. Tuesday, 10...
    Question:
    Answer:

    You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.

  16. Friday, 6...
    Question:
    Answer:
    After one year abroad, you have 6 more years. The unused portion is ignored.
  17. Wednesday,...
    Question:
    Answer:

    It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.

    You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
    http://www.dol.gov/whd/forms/wh-4.pdf

    You can also contact the local WHD of DOL where you are:
    http://www.dol.gov/whd/

    Not only will you most likely get your full salary for every day of H-2, you also well protected from any problems past or future due to non-payment. Good luck!

  18. Wednesday,...
    Question:
    Answer:

    I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

    To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

  19. Tuesday, 27...
    Question:
    Answer:

    In fact there is no simple answer.  Legally, there is nothing that requires that the degree must be in a related field.  But, the employer needs to make sure, under penalty of perjury, that they do require a Master's degree, even if it is unrelated.

  20. Tuesday, 27...
    Question:
    Answer:

    So, the questions is does filing for any green card permit me to stay in USA?

    The answer is no.

    Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.

    That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.

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