Recording Available, December 17, Community Conference Call with Attorney Rajiv S. Khanna

[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: January 14, 2016
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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.

 

[esys]

FAQ: Can TN work on 1099 as independent contractor

Mr.Khanna,

I am canadian citizen and got job offer in usa and going to work on TN visa.. They are going to employ me as an independent contractor and are going pay using 1099.. Can TN workers work as an independent contractors? Is this some thing valid and can I accept this one ?

Thanks a lot
esys

 

[JamFaz]

Hi,
My H1B visa was approved in 2006 and I got my VISA stamped in 2007 and worked in the USA for one year on H1B visa(June 2007 to June 2008).I returned to India from USA in June 2008. but in 2009 my employer revoked my H1B visa.
Can I apply under CAP exempt again on this petition.
Thanks,

 

[rkatta2011]

Hello Rajiv,

My current H1 B and I-94 are still valid till 2016 Jan 10th. My employer has filed for extension in premium processing.
If we get denial in December 2015,
1. Can I still work till Jan 10th?
2. Can we file another H1 B etx with same employer if new LCA is ready before 2016 Jan 10 th and I will be in status all the time?

Thanks a lot.
Raj

 

[Phani.charana]

Rajiv ji,
Kindly refer to my situation and help answer to the questions below, in case your time permits.

I got my visa stamp in India under H1B category in the month of June 2015 and this is valid till Dec 2017.
However, after I returned to United States, I lost my job and I moved to visitor visa in July 2015 as my employer revoked my H1B (I-797).
In the month of October, I found a new job and the new employer sponsored for new H1-B (I-797).
I am visiting India in December 2015 and I understand I need to get visa stamp from consulate for the new I-797

Now when trying to schedule for visa appointment, I am not sure about the answers to certain questions. The answers decide if I am eligible for drop box or if I need to attend interview.
Customer service is taking long time to get back to me with a response. Hence, I appreciate if you could help me here

1. Do you have a previous H-1B visa (temporary occupation, temporary worker or trainee)?
Do I consider my visa stamp (H1B from previous employer) and say YES -or-
Do I consider my prior visitor visa status I was in when in USA, and say NO
2. Were you denied any kind of U.S. visa after your most recent U.S. visa was issued?
Do I consider my visa stamp (H1B from previous employer) and say NO -or-
Do I consider my revoked H1B (I-797 from previous employer) and say YES

3. Is your previous H-1B visa (temporary occupation, temporary worker or trainee) still valid?
Again, I am not sure if I need to consider visa stamp on passport and say YES (valid Dec 2017) -or-
Do I consider my revoked H1B (I-797 from previous employer) and say NO

4. Was your most recent H-1B visa (temporary occupation, temporary worker or trainee) issued in India after January 1, 2008?
Does “H-1B visa” here mean visa stamp

I appreciate your time and immense help.

Thanks, Phani

 

[winaeyz]

Hello Rajiv Ji,
Here is my question:

Employer A filed my I140 which was approved in Jul 2011. Left employer A and joined employer B in Oct 2013. When I left employer A they said they might withdraw my I140. Now am planning to go back to employer A, I talked to them but they are not sure if they sent the withdrawal letter to USCIS. Is there a way for them to confirm?
They called USCIS and the immigration officer said the case is still approved and there is nothing related to withdrawal. Is there a chance that they might have sent the letter in 2013 and USCIS did not acknowledge or update the case till now?

Employer A is willing to refile I140 if needed in the future. I am assuming they can do that using the old perm, can they do premium processing?

Thanks,
Vinay

 

[Vijay Govindarajan]

Dear Sir,
I got my H 1B petition approved From 19-oct-2006 To 29-March- 2009,but i was in USA from 24-Nov-2007 till 29-March-2009 and came back to India since petition was expired.I did a H1 tranfer and the petition got approved From: 26-August-2009 To: 12-March-2012.
I went for visa stamping in India and US consulate gave me 221 g twice regarding additional document from the employer.

After this my company has processed L1 B. when i went for visa stamping the consulate gave me 221 g since the H 1B petition is valid so they cannot process furthur on L1B.

overall i have stayed only 16 months in USA.
currently a new company has filed Cap-exempt H1 B petition on 27-August-2015 in normal processing and currently the status of the new petition on the USCIS website is " case received on 27-August-2015". I am assuming that the company has provided all the required documents.
1) Please tell me the possiblity of my petiton approval and visa approval?
2) Can i go for Premium processing ?

Thanks,
Vijay

 

[anandarao]

Hi Rajiv - What are the current I - 130 processing times for family based green card for parents (mother/father) of US citizens who are living outside the US?

Thanks much,
Sudhir.

 

[rdrdrd]

L1B to H1B COS approval timing and already pending I-485 approval timing related question

Dear Rajiv Sir,

Thanks for providing such a great community service !

Situation / Case history -
Currently I am on L1B VISA filed by Company A and valid until 19th Sept 2017
Company A is planning to apply for my L1B to H1B changes of status using "recapture of unused previous H1B period" option in Feb 1st week of 2016 from with in USA (not using Consular processing option)

I have green card application already initiated by a Texas based Company B (which I plan to join once I get Green card).
Corresponding to which I already have my EB2 India I140 approved and my I485 is also pending adjudication with Priority date of March 4, 2008. (I485 pending since Oct 2014)
I will have my date current in Feb, 2016 and may get my GC in Feb or March.

My Question -
Once My H1B COS application is filed by Company A in first week of Feb 2016 and after then I get my Company B filed I485 approved in mid Feb or March 2016 prior to getting L1B to H1B Change of Status petition approved then what happens to my already approved green card?

Will I lose my Green card just because my L1B to H1B COS application got approved after getting approval decision on my pending I-485?

If my H1B COS petition gets approved after I get my Green card (but before I resign Company A while I am in transition mode to start my Job with GC sponsoring employer), Will I be on H1B status?

What are my options here to maintain my green card upon getting it via Company B?

Thanks !

 

[Ashok M Dhareshwar]

Dear Mr. Rajiv S. Khanna,

Thanks a lot for this invaluable public service. My case is as follows:

I have been on Green Card since 2001. It expired in 2014 July and I applied for an extension (form I-90) in 2014 April. I duly completed the fingerprinting step in May. In 2014 November, I got a letter saying that the renewed Green Card would soon be mailed, but I never received it. It was not returned to them either. I was in India at that time.

In 2015 May, on my return from India, I applied again (form I-90) claiming that the previous card was never delivered, and not paying a fee. I had expected them to reject the application and ask me to re-apply with due fees. I was pleasantly surprised to receive a letter, scheduling me for fingerprinting in 2015 June. The letter also said that the application fee has been waived. I duly completed the fingerprinting process in June 2015.

Now, after six months, I just received a letter saying that my application for extension is denied, because they have already sent a card; another card would be a duplicate; and I applied without paying a fee. I have two choices:
1. File I-90 again and pay the fee.
2. File Form I-290B to claim that their decision to terminate my I-90 application is in error.

What do you advise? I am reconciled to having to pay the fee again, but filing I-90 anew would entail a delay of 7-9 months and further uncertainty. On the other hand, filing I-290B now might itself cause further delay. My only ground for saying that they are in error is: they themselves had indicated that the fee had been waived; they could have told me seven months ago what they're telling me now, prior to scheduling the fingerprinting. I'd like to know if filing I-290B would help or just delay things.

Thank you.

Ashok

PS: I'm planning to contact your office for an appointment early next week, so it's not important for me to receive a reply from you here!

 

[Hardik8090]

Dear Rajiv Sir,

Thank you for providing this free service. My name is Hardik, I am an Australian citizen employed as an IT professional with 10+ years' experience currently residing in Australia.

Brief details of my case:

1. My sister (US citizen) filed petition for US green card for my parents and me under F4 category in 2007, subsequently my parents migrated to the United States and they are green card holders.
2. I applied for E2 investor visa in Nov 2013 and got denial under section 214(b).
3. In September 2014 I attempted to travel to United States to visit family only to realize that my ESTA under Visa Waiver Program has been denied, and hence I did not travel. I was advised that I need to get B1/B2 visa if I want to travel to USA.
I have traveled to USA under Visa Waiver Program three times (and departed within the allowed stay) before I got denial for E2 investor visa.
Very recently, I have come to realize that I have made a mistake in filling ESTA form - not disclosing previous denial.
4. I wish to travel to United States in early 2016 (Feb-March) to visit family and look for work to find a sponsor for E3 work visa.

B1/B2 and then E3 or H1B
I am thinking of applying for B1/B2 to travel to the United States to look for work. Do you see any issues with this approach?
As I have a prior denial for investor visa, do you advice me to go for H1B visa (immigrant intent) or E3 visa (non-immigrant intent)?
What are the pros and cons of each approach?

Australian ties
If you suggest me to go for E3 visa, How can you help me prove my Australian ties? (no assets, no family)

Sponsorship/LCA
A staffing agency based in Atlanta has shown interest to file LCA for me.
Does E3 visa require that the sponsorer needs to be an actual employer and not a staffing agency?
Do you see any problems with this approach ie getting LCA filed by a staffing agency?

Applying for E3
Once I have an LCA, do you recommend to apply for E3 from Australia or from Canada?

Many thanks,

Kind regards,
Hardik

 

[Rajiv S. Khanna]

FAQ: Difference between I-140 withdrawn and revoked

There is a an interesting question on Immigration.Com:

Sree replied on Dec 7th 2015 Permalink
I-140 Withdraw vs I-140 Revoke
Hello, I saw some online forums stating that if I-140 withdrawn you can retain your PD date. Is it true under current circumstances ?

What is difference between I-140 Withdraw vs I-140 Revoke? If both are not the same, in which cases employers to for withdraw.
- See more at: http://www.immigration.com/comment/reply/5040/24220#sthash.KjHGDsq5.dpuf

 

[tina_s]

Question for Dec 17th call:
For a Domestic Employee applying for a B-1 Visa
1) Can all the certifications listed on the site (http://lima.usembassy.gov/niv/required_documents/b1_domestic.html) be combined into one certificate?
2) Does the certificate need to be notarized/on a special stamp paper/letterhead?
3) Is there a format/template for the language required for the certification?
4) Can the employer book travel after the Domestic Employee visa is approved?
Thanks
Tina

 

[winaeyz]

Hello Rajiv Ji,

My perm and I140 were approved in 4th year of h1b, am in 7th year now. If the 140 is withdrawn and my employer refiles it, can I get h1 extensions going forward based on the approved perm and pending I140?

Thanks,
Vinay

 

[Cinchan]

Dear Rajiv,

I have a question about the DV Lottery.

Is one eligible to enter to the Lottery if they have been selected in the past but never claimed it?

So, I've just realized that you have to check whether you're selected or not on the Entrant Status Check website. I've been applying almost every year since the past several years and I've never checked. I know this is really stupid. But, anyway, I submitted my entry for the DV-2017 and next May I will surely check. I'm just concerned whether I had been selected once in the past and I never claimed it because I never knew. Does that make me ineligible to enter the current and future lotteries? I wonder.

Thank you very much.

 

[ChandiK]

Hi Sir,

I am on H1-B expiring on 31st December'15. My employer have filed for an extension under the same LCA for location A. I want to move at location B in a different state within few months through the same employer or a different one.

If I chose the same employer - Will it be possible to move to location B before my extension process is complete or should I wait on it? In cases with or without amendment, how will the process change?
If I chose any other employer - Is it possible to switch without hampering my extension Or should I wait on it to complete?

Is it possible to talk to my current employer to shift me to a different location and allow me to work remotely until my extension process completes on my current project?

Please guide me what can I do and how should I go ahead.

Thanks.

 

[AkVirani]

I am on H4 visa and want to go to india.

I am from India and I am on H4 visa and my dad is really old and sick and his last wish is to see me, My husband is on h1 visa with I-140 approved and his priority date is in oct 2012 on eb2 cat.

I came on visa type R, Class H4, Entries M and expiration date: sep 30, 2014 but we renewed the H4 visa and now i have a i797 a, notice of action which is valid from 09/30/2014 to 10/16/2016 with new i94 on it. Do i have to apply for apply for an H-4 visa from the Mumbai U.S consulate before I can re-enter the U.S.??

 

[Immiravs]

Hi Rajivji,

I have a question on I-140 from multiple employers.

I have an approved 140 from employer A approved in Sep 2010. Employer A had financial issues and my position was eliminated during downsizing.
I had to move to another employer Y who processed my PERM and received H1 extension based on employer A's, I-140 for 3 years. After 6 months of employment with Employer B, went to India for stamping and was stuck in India for 16 months but my 140 was approved with consular processing. Eventually visa was stamped but H1 was revoked so I'm no longer working with them.
Meanwhile, moved to a MNC employer C in India who transferred my H1 based on Employer C's approved I-140 and moved to US.
Employer C processed my PERM and is ready to file for I-140. So have the following questions.

1. I believe Employer C can request capturing the original priority date of Sep 2010 from employer B which in turn was from Employer A. Is this correct?. Employer B hasn't revoked my i-140.

2. What happens to Employer B's I-140 after PD port is requested?. Will USCIS inform employer B of the 140 PD port request?. Assuming Employer C's porting request is approved, is Employer B's I-140 invalidated automatically?

3. During I-140 approval and 485 filing times, hypothetically speaking, if the situation changes, will I be able to use Employer B's I-140 in spite of the earlier port request.

Thanks for your time and valuable suggestions.

 

[Mahita Velamati]

Hello,
I am in F-1 Status and have been approved for STEM Extension, while my EAD card is is still in mail I had to visit INDIA on (10th Dec) without CARD in hand. Now my case status shows that the card has been returned to USCIS since they were unable to deliver it.

I had called USICS customer service ans have been told that it might take them a month to re-send the card. But I have to return back to US before that. I am currently employed in US and do have Offer Letter and valid I-20 in hand.

Question: Will it be possible form me to return to US without EAD card in hand?