June 25, Community Conference Call with Attorney Rajiv S. Khanna, Recording Available

[DEEPAMENON]

Rajiv Khanna, US Immigration Attorney, hosts a Free Community Conference Call for all of you, every other Thursday at 12:30 PM Eastern Standard Time to answer US immigration related questions, Dial in No: (202)800-8394. Everyone, whether or not a member of discussion forums, is welcome to call in and ask questions or just listen live or listen to the recording for the call posted at the end of the day. Note that we answer posted questions and follow ups first.

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Conference Dial-in: : (202)800-8394
Topic: General Immigration Related Questions
Start Time: 12:30PM, EST
End Time: 1:30 PM, EST
NEXT CALL DATE: July 09, 2015
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NOTE: This call does not mean that we have agreed to represent you or that there is an attorney-client relationship between us. This is merely a community service. You should discuss the specifics of your case with the attorney representing you.

 

[victor_25]

FAQ: Simultaneous filing of H-1 amendment and extension

Hi Rajiv -

Thanks a lot for your service and help to the community.

Below is question I have on the H1B Amendment and H1B transfer being filed almost at the same time with little gap with USCIS for the same person. The H1B Amendment is in light of the new H1B 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.

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?
a) H1B Amendment with Current Employer
b) H1B Transfer to New employer while H1B Amendment is pending with Current Employer.

2. If the answer for the above is 'Yes', then incase the H1B Amendment Approval comes after the H1B Transfer would the H1B transfer to the new employer that was approved earlier be automatically nullified?

3. If the answer for #2 above is 'Yes' Is there any way to request USCIS to consider the H1B Transfer approval to new employer as the primary incase that get approved earlier and avoid the H1B amendment to dictate the latest H1B 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 H1B amendment has the authority to request any cancellation/withdrawal of the H1B amendment?)

4. Also does the current suspension of H1B premium processing apply even for the H1B transfers (with a new extension for 3 Years) or is it only for new H1B extensions of Petitions from the current employer?

Thanks a lot for your help.

 

[SharmaR]

Hello Rajiv Ji

Thanks a lot for all your help to the community…. I have a question

I got my I-140 approved with employer A under EB2, was working for them for Client B (Fortune 500 company).

Client B gave me an offer and I joined Client B, employer A did not withdraw my I-140 worked with Client B for 2yrs then the laid me off. Client B H1B got approved for 3yrs based on I-140 approval as I have completed my 6yrs H1B.

Went back to employer A and now working for employer A for Client C. Applied for H1B and got RFE then replied back to the RFE. Job is exactly the same as shown in PERM.

Employer A head office is in NJ, when I applied for my GC I was working in NJ and my PERM and 140 approved when I was in NJ.

I am currently working for Employer A’s in GA for Client C. Employer A also have an office in GA.

Question:

1. My Priority date is Jan 2011 in EB2 which is coming close, when applying for I-485 will it cause problem as I am working from GA not NJ?

2. Will I have to file PERM and I-140 from scratch just because I have moved to GA? And then port my previous priority date?

3. Employer having office in GA as well will that help?

4. Wages shown of GC is high compared to what I am getting now. There is a difference of 14,000 will this cause problem? GA prevailing wages are less than NJ so will it be fine? Job is exactly the same.

5. Would I be able to higher my own lawyer when applying for I-485? Or I have to use the company lawyer?

Thanks for all your help

 

[Bhaskard]

Hi Rajiv Ji:

Thanks for your valuable service.
I have few questions Regarding PERM

PERM was filed in 9/14/2015
Received Audit on 2/15/15 and submitted documents on 3/16 and it is still pending.

H1B Expiring 7/29/15

1. Now I'm considering to recapture time spent outside approximately 70 days. That time I was ith my previous employer. will that be an issue?
which after approval I will be eligible to extent H1B for 1 year(365 days rule)
For recapturing do I need to have a new 9035E/ 9035? or I can still submit the old LCA approved. what are the other documents I would need?

Is this the best option for me or I have other options as changing to B2 Visa.

Thanks,
Bhaskar

 

[kiran007]

FAQ: Green card through a future job

Hello Rajiv ji,
I am currently on EB3. I have a company (say Company A) which is willing to file for my GC in EB2 under 'Future Employment'. Do I or the 'company A' need to be aware of something on this front?
My understanding, as long as my current job description and the one that 'company A' would file for matches, that should suffice. Am I right? Anything else I need to worry about?

Thanks for your help.

 

[kumsakthi]

Dear Rajiv Ji

I am a naturalized US citizen and my wife is a green card holder (based on marriage). I am continuously residing in US from Aug 2010. My wife is pregnant. Though we currently reside in US, we are thinking to have kid born in India around Jan-Feb 2016 timeframe and then have mother and baby back to US in mid 2016.

Please advise
a. If the baby is eligible for US citizenship upon birth. If so, do I need to apply for naturalization certificate (N600) for the baby, in order to apply US passport for the baby or can I go directly for obtaining the US passport for the baby, so that the baby can enter into US.

c. Can the baby get US passport from India itself easily and the Indian visa without any issues. If so, how long it will take to get the US passport in India.

From my wife's immigration (future citizenship) perspective.
a. How long my wife can be outside of US without having any issues to her green card/getting back to US/while applying for her citizenship

Also please advise if it is better to have the baby born in US itself from the US immigration/citizenship perspective for the mother and baby.

Regards!

 

[winaeyz]

Hello sir,

Here is my question:
My wife currently on H1B is on maternity leave (8 weeks). She is not paid by her employer for these 8 weeks. Can she apply for state (NJ) disability benefits? Will this affect her H1b status?
Here is the link to apply for it:
lwd.dol.state.nj.us/labor/tdi/worker/state/sp_clt_menu.html

Can a person on H1b be paid by anyone else (state of NJ here) who is not their employer? Please advise.

Thank You!
Vinay

 

[Hari74]

Hi Rajiv ji,

I am under naturalized US citizenship process. I have interview scheduled on July 16 and I have travel coming 18th relocating to India for 2 months.

here is my question.
1. Can I reschedule(pre-pone) my interview?
2. Can I request for oath on same interview day?
3. If I complete my oath my any chance, Can I travel to India with Indian passport and work in India?
4. Can I request USCIS for oath after 6 months to 1 year..
5. what are all other options I have?

Thanks in Advance..
Hari

 

[BanyanTree]

Dear RajivJi,

My current I-797 expired on 12/12/2014. My employer filed for the H1B extension on 10/14/2014. The USCIS has raised two RFE's in the meanwhile and the case is still pending.

I have the following questions:

1) I assume that the 240 day grace period will be up in Aug'2015. Please confirm that this is correct.
2) If any another employer files for a transfer, will this clock be reset?
3) The USCIS is questioning the job responsibiliites are not commensurate with the requirement for bachelors degree I have been in the US for 13+ years on H1B as FTE/consultant and this has never been questioned. Is this a common situation?
4) The USCIS has also questioned Employer/Employee relationship due to working in the EVC model for which my employer responded with some evidence, but I suspect that this is still an issue.
4) What are my options? Should I get a new job? Should I go back to India for good?

Please help

 

[Ashish1802]

Dear Sir,
I want to check on what are the options available to work and stay in USA. Here is my situation.
I came to USA in Aug 2009 on L1-B and after three years in 2012 i got to L1-A and I am still holding L1-A visa and petition valid till Aug 2016. My employer is NOT willing to file a Green Card Application. My question, can any other employer file a GC based on future employment? If NOT, what are the options available for me to work and stay in USA.

 

[Krishna_New]

Hi Rajiv,
I am working in Company A here . I worked with the same Company A as a Manager in India from 1-7-2011 to 12-16-2011 and came here on 12-19-2011. I am missing 21 days for EB1 eligibility. My present company is telling I should have 365 days in a managerial capacity within 3 years of entry into US. Are there any exception clauses to this?
Can I work in India now and cover this remaining 21 days for EB1 eligibility.
Before Company A, I worked in Company B & C for 9 years(6 years in India, 3 years in US) . And right now I am filing my I140 in EB3.

Thanks
Krishna

 

[Indeep]

Hi Rajiv Ji,

My employer filed for my h1b and I got my receipt notice recently. However I do not have the job now as the company did some reorganization. I was earlier on F1 (OPT expired in March, 2015) and also filed for change of status to h4 (change of status to H4 from F1 was applied before filing for an H1b). It's been 4 years that I did not go outside USA so both my h4 after extension and f1 did not get stamped. I entered USA on H4 when I came in 2009.

I heard the last few community call (the link you provided) and really appreciate your expert guidance and support always. Rajiv ji, I have some follow up questions as my case is little different since I have applied for both H4 change of status and H1b. I have both receipt notices but no approval yet (so both are pending with USCIS). I was planning to travel to India in September and come back on H1b in October. But since I have no job yet my situation is changed.

Here are my questions:

1. What if my change of status to h4 comes before h1b gets approval, would it complicate anything? Would h1b automatically becomes valid on October 1, 2015.

2. Same thing, if my h1b approval comes before h4 change of status, what status I would be on then?

3. Is it possible to get an H1b transfer before October 2015 without joining the employer who filed the H1b.

4. If I travel to India and come back on H4 if I do not have a job, would I be able to reuse my H1b i.e. would I be quota exempt later if the h1b is not revoked?

5. Looking at this situation, would you advice that I apply for an H4 EAD before traveling to India or after I am back from India?

Please advice.

Thanks
Indeep

 

[gchelps]

Hi Rajiv , Thank you for the help in advance .

1)I work on H1B and im planning to transfer to H4+EAD (based on my husband`s 140 and H1B). What are the chances of getting H4 and EAD approved together ? I do not want to have interruption in my current job . What do you suggest at this time .

2)And regarding H1B amendment - Do i need to file for H1B amendment even when i work at the same Location but my salary is reduced ?

3)I am taking maternity leave for 2 months . Being on H1B and not getting paid for these 2 months cause any issues for my H1B/for my husbands green card (Me being a dependent )in future ?

Please let me know your inputs .

Thanks

 

[venkata]

Hi Rajiv,

I have an approved I140 in EB2I category with priority date in 2013. I have a very good offer from company B who is willing to start GC process in EB2 in less than a year after I join them. However,I am seeing these news updates that USCIS recently taking a position which does not allow individuals to port priority date from previously approved I140 if the employer withdraws it for any reason and USCIS is revoking it even though the reason is not fraud or willful misrepresentation. I am very confused whether to accept the offer or not.The offer is really good but I would like to make sure that I am not going lose my priority date by accepting it and my current employer withdraws my I140.

Is there(or are you expecting) any clear direction/guidance from USCIS in what scenarios they are not going to allow porting priority date from previous I140?

Thank you very much for providing your valuable insights on this matter.

Thanks,
Venkat.

 

[Vinil]

Hello Rajiv Sir,

My father's brother has filed for an immigrant visa for brothers and sisters under the F4 category. The priority date for the application is November 2003, which may become current by next year. I was 15 years old when the application was filed and currently 27 years. By next year when the application becomes current, I will be 28 years old. My questions are given below:

1. If I am unmarried, when priority date becomes current am I eligible to accompany my father to US? I am posting this question as I have read about the Child Status protection Act and whether I am eligible for permanent residence.
2. I am currently a temporary resident of Canada, who came as a student and hold a B1/B2 visa to visit US. Will it help me in any way for getting green card when the priority date becomes current.

Please share any additional information you have regarding accompanying children of age 21 or more.

Thanks and Regards,

Vinil

 

[gaurav trivedi]

FAQ: H-1 employer not paying

Hello Rajivji

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 does not run payroll. can it create any problem ?

 

[kam20]

Hello Rajiv Ji,

I have 3 questions:

1) i am a pending AOS applicant and i am continuing to extend my H1B visa for my work purposes. However i have used my Advanced Parole in the past to enter US a couple of times. I am filing for H1B extension now, and I suppose we should use the latest I-94 when i entered the US in Jan 2015 instead of the original I-94 that was issued with my H1B application. However, my new I-94 with last entry is valid until Jan 2016 where as my H1B i-94 only had a validity date of July 2015. Does this difference in dates (meaning using of Advanced parole to enter the country) present any issues in the H1B renewal ? Specifically, is there an issue to use AP to reenter the US, when my payroll is still being run as H1B visa holder? Or in other words, the fact that I used AP invalidates my H1B status.

2) My AOS application was filed in 2012 (after July 30, 2007). Therefore as per the instructions in the AP filing application, no Fee was necessary when filing for a EAD/AP extension. We addressed this in our AP renewal application and clearly explained why we didn't the attach the fee. Even then our AP application got rejected for NO Fee attached. We have taken an infopass appointment to address this concern with a USCIS office later this week. My EAD application however was accepted, but i am not sure what card will get issued in this case for EAD alone since the combo card (EAD + AP) may not be issued now. Did any of your clients face the same issue before? In your experience what advise do you provide to remedy this situation?

3) my final question is about the jon function change on H1B visa. I am presently working on a management degree and i am considering taking a job opportunity with within Management Consulting field. Given the new job profile is very different than what has been filed in my current LCA as a programmer analyst, can i have my new employer submit an extension to my current H1B application or does it have to be a NEW (second) H1B application and I need to go through the quota restrictions again? How does this impact my ongoing GC processing in EB2 status? I think i would need to restart with a new PERM application, is this correct?

Thanks a lot for taking the time to answer these questions.

 

[Ramesh]

FAQ: TN applying for green card

Hello,

As per our last conversation, you had advised me that I Would need to be on H1 Visa to file for my green card.
Assuming I-140 is approved, Will I be able to go back on TN visa?
Also, will there be any issues in renewing my TN?
In this scenario would it be better to file the TN Visa from within the US s it better to go back to Canada and get the TN at the border?

Thanks a lot for your help.

 

[Bob_87]

Hello,


I applied for a H1 transfer and it got denied on 6/19/15 and we (I & attorney, Employer) Still do not know the reason yet, as we are waiting for denial notice letter from USCIS.

I checked online and informed to company and attorney and they said we will wait till we receive the letter and take decisions. But I'm worried about my status and want to know how can I stay in the US and get a valid Status.


My first H1 was picked in the lottery in 2013 filed by Company 'A'and was approved and was activated from October '13. And later after one year, In October '14 I got a full time job in Company 'B' and had my H1 trasferred and H1 was filed sometime end of September on regular processing and I started working with just the receipt number, before getting any result(approved/rejected). And for somereason, Company was laying Off teams members all over the nation and I wanted to be safe/secured with the Status issues and so looked for a new job and got a new project as a contractor. So I left Company 'B' while the H1 was still in processing and and filed for new H1 with Company 'C' with Premium processing and started working with the receipt number. And after I started working with Company 'C', my previous H1 with Company was Approved. And now after I applied with Company 'C', after 6 months of time and 2 RFEs H1 was denied Friday 6/19/15, and reasons are still not know at this point of time.


My H1 with Company 'C' has one Prime vendor "P" and client "T".

First RFE said they need prime vendor's letter, as it was mentioned that I from Company 'C' is working for prime vendor "P". Prime vendor "P" provided a letter saying candidate is working for us. Later USCIS called the manager who gave the letter over the phone and requested for information regarding me, and he said Yes, the candidate works for us and we will contract him out to Clients. My LCA and H1 petition had Client location as work location.

Second RFE said that the letter is from prime vendor "P" and work location is Client "T"(as they googled and found that the location said it was Client "T") and now they asked for Client letter, which I provided from Client "T". And now it the case status says, petition I-129 is denied and denial notice has been mailed and the option for me.


1. What are the options, I have in order to stay in the country and what about my current Status?

2. What and how is going to help if my current Company 'C' re-opens/reapplies the same petition? How long does this take to process? Can I stay in the US while reapplying?

3. Can I opt for changing the status, like joining a college ? Will that be helpful in anyway? And does this change of status will affect me if I apply H1, like should I wait till April quota or next year? or I will not have to wait?

4. What if my both previous companies do not accept me to rehire or what if they accept? is that an option at all ? (P.S I do not have good terms with my previous employers)

5. What will be my status if I apply a new H1 with same company "C" for a new project? or new employer new H1?


Any information provided is greatly appreciated.


Thank you all very much.

 

[svtrajan]

Dear Sir,

I have a question regarding PERM Process:
1) In year 2012, I was working for Company A, they started my PERM process in 2012 for EB3 GC process and it went for Auditing and it was not handled well because Company A was taken over by Company X. Meanwhile, I changed my Job in 2013 and joined Company B ( a new company altogether ) hoping that a new GC process will be started in EB2 soon. But, it did not happen as i expected. Suppose, If I now join my previous company that is company X in 2015, Can i still use my priority date (June 2012) and apply for my PERM process once again and reuse priority date OR reuse the same PERM application? Because, It is very necessary as I am reaching close to my H1B Max out date in the next year.

2) what is the minimum processing time to apply for a fresh PERM application process (from the date of collecting my documents, obtain wage rate confirmation, advertisements, interview process, and PERM Application filing) ?

3) Is there any restriction about the employer / company who can file for GC / PERM application like financial strength of the company, Number employees, previous experience of GC sponsorship / can any company do GC Processing ?

4) Is GC Process / PERM Application possible for a future employment when I am not an employee of that company ? or , Do I need to be an employee of that company while PERM application? at what point i need to be the employee of that company (for I-140) ?

Please help me to understand , I highly appreciate your valuable information on this topic.

Thank you very much