Recording for February 29, 2024 Conference Call with Rajiv S. Khanna

[DEEPAMENON]

Rajiv S. Khanna, US Immigration Attorney, hosts a Free Community Conference Call every other Thursday to answer immigration-related questions. Even if you are not a forum member, you are welcome to call in and ask questions or listen to the discussion live. Questions marked as FAQ will be addressed first and these FAQ will be posted in our immigration.com FAQ section. The recording of what was discussed during the live call will be posted at the end of the day. For previous recordings click here, YouTube channel
Note: We answer posted questions and follow-ups first.
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Call Details:
Next Call Date: March 14, 2024
Start Time: 12:30 PM Eastern Standard Time
End Time: 1:30 PM, EST
Conference Dial-in: : (202)800-8394
Topic: General Immigration-Related Questions
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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.
PLEASE KEEP YOUR QUESTIONS BRIEF. If you need a detailed consultation on elaborate facts, speak with your lawyers or set up a consultation with us: https://www.immigration.com/our-fees

 

[mvgrglug]

H-1B visa port of entry and re-entry

Hello Rajiv,

Questions:
1. If someone got their H1B visa issued for the first time, for their initial travel and immigration, can they select a different port of entry than the one designated for their initial landing, where their employer is situated? If so, should they anticipate additional inquiries, and how should they address them?

2. In the event that an individual on an H1B visa exceeds the 90-day period, necessitating a return to their home country, how soon can they re-enter the US and on what conditions?

Thanks in advance.

 

[abhi_s]

H-1B grace period and expired I-94: Potential unlawful presence and future options

Hi Rajiv.. I was laid off last year 2023 while on US H1-B. I stayed in the US for 60 days after the layoff under the grace period (and then flew back to home country). However, I didn't realize that my i-94 expired in late 2022 (and was unaware about I-94 expiration affecting this grace period or to renew my i94). Have I accrued unlawful presence, and if so, what can I do about it?

Can I now renew my i94 to cover for this 60-day period?

Currently, I'm searching for jobs again in the US and want to come back. Would the above history affect my ability to get my visa stamp?

Also, would my previous i-797 valid till 2025 be available for the new employer to port for H1-B or would they have to start a new petition again?

Any other complications that are likely to arise and how would you suggest handling those?

I found out that there's another i94 on i797 valid till 2025. So I think I should be fine, correct?

Thank you!

 

[rp9777917]

Two-year STEM OPT EAD issued incorrectly: What are the next steps for correction?

Rajiv ji, The STEM OPT EAD card which I have received has a mistake from USCIS on the validity period. The EAD card should be valid for 2 years but the card which I have received is only valid for one year. When I received the EAD card, I got in touch with USCIS via mail (as university DSO recommended) but I haven’t heard back. I even filed the complaint online (referring to typographical error form which USCIS contact center recommends) the same day and I haven’t heard back on that as well.

It has been more than 2 months when I mailed USCIS a letter explaining the discrepancy along with copy of EAD card, copy of receipt that came with the EAD card and copy of I20 signed by DSO and me showing the correct date.

Points to note:
1. University DSO has confirmed that there is no mistake in my online application. Even the International Office Director went through my application to make sure that there is no mistake.
2. SEVIS portal shows "DSO Recommended STEM OPT Dates" as 2 years and "USCIS Approved STEM OPT Dates" as 1 year.

Can you please tell me what should be my next course of action?

 

[midnytblues]

H-1B visa and laundromat investment: Balancing passive ownership and active involvement || EB-1A visa: Eligibility of international publications and awards

Hello Rajiv! My questions are as follows:

1. My uncle (US Citizen) & I want to invest and open laundromat business in US. I'm on H-1B visa and I know I can make passive investment in a business but cannot work actively on running the business. However, can I put any hours (say ~4-5hrs/week) towards that business along with my job? If yes, can you please give any examples of what level of tasks that I can perform and how would anyone keep a check of how many hours I'm putting in?

2. For EB-1A, can the evidence of published materials and authorship of scholarly articles be associated with an Indian media/publication OR do the evidences have to be all US-based? Does this also apply to awards and judging the work of others?

 

[guptakaran003]

Green card application: Understanding the income requirements, EAD, and OPT for spouses of US citizens

Hi Rajiv ji,

I am married to a US citizen and have applied for green card last month. I have a couple of questions:

1. I-864: My spouse is my sponsor and we attached 3 years of her tax returns (2020, 2021, 2022). Her gross income in 2020 was lower than the required amount as she graduated from college in 2020. Do you think we will get an RFE to add a co-sponsor as one of the three years of tax returns is lower?
If we get an RFE, can we file her tax return for 2023 and attach a copy of that (tax returns of 2021, 2022 and 2023)?

2. I-765: I just received my EAD through pending I-485 and currently I am maintaining my OPT which is expiring in May 2024. Is it recommended to give up my F-1 or should I apply for STEM extension and continue maintaining my F-1 until I get my conditional green card?
What happens if I give up my F-1 now and later my green card application is rejected for some reason?

Thank you!

 

[Kiana]

Remarrying during I-751 with divorce waiver: Impact on pending green card application

Please i’d love love to hear your
advice
Can you remarry while your I 751 is still pending. I filed for renoval of conditions two years ago this month and i sent my divorce waiver once divorce was finalised
I was give a 48 months extension letter
I want to emphasise that the marriage was entered in good faith

All proof was sent
Joint bank statement
Life insurance
Health and car insurance
Utilitiy bills
Adoption certificate where i adopted his son
Statement from both of us stating why we are divorcing and no RFE has been requested in the 24 months it’s been pending

We divorced because he didnt want anymore children and honestly wasn’t truly over grieving his late wife
i have no biological children of my own
(he was a widower when we Married )

Anyway I am not sure if i can remarry while my I751 is still pending
As we know I 751 are taking tooo long and I hear you have to file N400 to get I751 moving. My case still shows normal processing time (potomac service center) I guess I don’t know if i can remarry while my case is still pending
I want children and age is not in my corner anymore

 

[Kumar_N]

Applying for green card sponsorship for parents with overstay: Eligibility concerns with parole entry

Hello Rajiv Sir,
Thanks for your help.

My father's employment I 485 was denied and they overstayed on their EAD/AP. I am a US citizen by birth and am now 21 years old. My question is, whether Overstay forgiveness will apply to them if I sponsor their GC. I heard overstay forgiveness is applicable only if entered lawfully/legally and Parole is not considered a lawful entry. Is this correct? Is entering the US with Parole a lawful entry for overstay forgiveness purposes?

 

[LiannaMinasyan]

EB-1A denial, L-2 status expiring: Impact on EB-2 I-485 eligibility with unauthorised work

I am in L2 status which expires soon. I am considering applying for EB1A. If my EB1A petition is denied after I've obtained an EAD extension and have been working under it, would I still be eligible to file an I-485 under the EB2 category if I am no longer maintaining my status and worked?

 

[SAMKD]

H-1B amendment pending: Travel with existing visa and LCA?

Hi Rajiv,

I am in India. I have a stamped H1B Visa with petition for Location1- Client1. But as position got closed I couldn't travel to Location1. Hence, my employer has filed a H1B amendment for me for Location2-Client2. The I-129 Petition for a Nonimmigrant Worker is pending with USICS. There is no change in employer. So, my question is , Can I travel to US as I already have a stamped Visa and LCA has already been processed.

Thanks in advance.

 

[Arjunzvb]

H-1B status and travel after resignation: Maintaining status, visa options and considerations

I am presently holding an H1B visa and intend to return to India. I have a couple of inquiries regarding this:

I understand that once I depart from the US and resign, my H1B status will be pause, correct?

So, if I plan to return to the US for travel or business purposes after six months, would I need to obtain a B1 or B2 visa? If I acquire a B1/B2 visa, will my H1B status be terminated, or what would you suggest if I wish to travel to the US while keeping my H1B status on hold?

Additionally, I'm wondering about the major visa-related things I need to sort out before moving back to India.

 

[sawakhalia]

F-1 to H-1B transition: Potential gaps, visa options, and spouse's F-1 conversion

Hello Rajiv sir,

I came to the US in 2016 on F-1 visa to pursue M.S. in Engineering. I was not lucky enough to get H1b during my OPT period and pursued 2nd Master's on Day 1 CPT. I will be graduating in May 2024 with this Day 1 CPT Master's and I have not been selected in H1b lottery yet. Although my employer will be registering for my H1b this year, I have following questions.

1. If my lottery gets picked up this year and my graduation is in May, on what status I will be able to stay and work in the U.S. during application process since h1b start date is October 1st?
2. What other visa types that I can convert to if we want to stay in the U.S. and work for the same employer assuming that I will not get h1b this year as well?
3. I have also heard that we can stay in the U.S. on CAP until USCIS officially declares the H1b completion for that FY. Is that true?
4. My wife is on F-2 visa and would like to convert to F-1 visa. However, we have heard a lot of cases where F-2 to F-1 conversion is denied but also F-1 was revoked. Is it possible to convert my wife's F-2 to F-1? (Note: My wife is also from STEM field and has completed Master's from home country).
5. If my wife converts from F-2 to F-1 with premium processing, and start date is in August, is it legal to stay in the US for us in the meantime?
6. Is it legal for my Wife to apply for H1b on F-2 visa if she has an employer in the US who wants to sponsor her H1b?

 

[TinaC]

Green card application for niece with special guardianship order: Eligibility and process

Hello Rajiv

My husband and I have legal custody of my niece aged 16 who is a UK citizen.

She has lived with us since August 2017 (age 9) under a Special Guardianship Order which was issued by the UK courts. The guardianship order gives us full legal and financial responsibility for her. Special Guardianship Order is basically Adoption without the name change and although parents retain responsibility they’re not able to exercise their rights. We have parental responsibility of her. She is not allowed to live with her parents for various reasons.

My husband is a US citizen and I have a green card. We moved back to the States in September 2023 after my husband retired from military service and my niece stayed temporarily with my mother in the UK. She can’t stay with her due to my mothers health conditions and age. My niece is covered by our medical which she’s had since 2017.

The reason she didn’t come straight away was because we had to get permission from the UK courts. The courts in the UK gave permission for her to live in the USA with us and have issued a legal court order which states this. As my mother was unable to look after her she is now in the USA under an ESTA.

We need to apply for a green card for her now. My question is,

1. Can we submit an I-130 then i-485 and use the adoption option as we’re legally and financially responsible for her? We have all the court documents and she has lived with us as our child for the last 6 1//2 years.
2. If not, what other option can we use?
3. Should I put in a covering letter explaining all of this? I have completed the I-130 and added additional information. We’re ready to file
4. Her current I-94 expires 05/06/2024, if we file before that date will she need to apply to extend it or will it be okay as an application is going through.
5. Would we be better to apply online and upload all documents rather than mailing them?

I can show the original court order which was issued in 2017 and the new amended one which was issued this month.

Apologies for all the questions, I hope they make sense

Kind regards

Tina

 

[vikingvns]

Incorrect date of birth on son's green card: Correction options after issuance

Hello Rajeev Sir,

--> Wanted to know if Date of Birth for our son can be changed on the permanent resident card?? Our son was born in India in June 2021 and we got the green card in April 2022.

--> The issue is that in India when we got the Birth Certificate the date was off by a month, but at that time due to Covid, most of the offices were closed, we could not get it rectified. So we had to apply for passport of our kid using the same birth certificate and the dependent visa using the same the Date of Birth on the Passport.

--> Since our I-485 application was already in progress at that time, application of our son was also filed along with us and we all recived the green card in April 2022. And the green card now has that incorrect date of birth on there.

I wanted to know if --

1) I can file some application to rectify the date of birth for our son on the Green card now, when it has already been issued in April 2022 ??
2) If yes, how difficult of a process is this??

I have talked to my folks in India and we can have the date of birth rectified on the Birth certificate and get it changed based on that, on our son's passport. But before that, I wanted to know if we can recitify it on my son's green card or not?? Would appreciate it, if you can please let us know.

Thanks

 

[jeshImmig24]

H-1B selection and job change: Options after approval and before start date

Hi,

I am currently on stem opt. I have few queries regarding H1B visa status.

1. What happens if my h1b gets picked with current employer this year and gets approved, but I have to leave this employer before October (layoff/firing)?
2. Is it mandatory to work with the company that filed my H1B for at least 3 months starting October?
3. If my H1B gets picked and approved by another company, can I still work with my current company till august and join the new company after that?
4. Can I work on h1b with the employer that filed my h1b for the month of October and shift job in the next month?

Thanks

 

[palikon]

STEM OPT EAD expiring: Eligibility to stay and work while awaiting marriage-based green card and EAD renewal

Hello,

Background:
I’m on employed on STEM extension right now. Employment Authorization (EAD) is expiring in June 2024. I am planning to get married in May 2024 to US citizen.
If I were to file marriage based green card along with change of status and Employment Authorization I-765 in May. Looking at current wait time it would take minimum three months for EAD to arrive.

- Can I continue to stay beyond June 2024 since I am applying for change of status?
- Can I continue to work for same employer post June 2024 since new EAD application is under review?

 

[AKonda1981]

H-1B extension expiring soon: Eligibility for H-1B amendment and continued work authorization

Hi Rajeev Sir,

Would be really helpful if you can shed some light here please.

My 240 days on H1B extension petition will complete in March, 2024 1st week.

As 240 day rule applies only to H1B extension, can my employer file another H1b amendment petition(I have an option to change client location) while my I-94 has already been expired but I am within 240 days of Authorized stay post I-94 expiry with timely filed extension.

Will filing H1b amendment petition keep my work authorization valid beyond 240 days which expires in March 2024 so I can continue working beyond 240 days while I wait for decision form USCIS?

 

[Pratham Sharma]

Securing US pilot employment as an Indian national: H-1B, EB2-NIW, and timing

Rajiv sir,
I am a pilot currently getting a Bachelor's in Aeronautics on an F-1 visa, I'm curious about whether airlines sponsor H1B vivas for Indian pilots. Additionally, I'm interested in knowing if I can apply for an EB2-NIW, if my H1B doesn't get picked. If so, when would be the optimal time to start the application process?
Thank You.

 

[arpitarathore]

B-2 visa expiration after I-140 filing: Options for staying in the US legally

Hi Rajiv Sir.

Currently I am waiting for I140 approval. My Perm was filled in Sept 2023.

In the meantime, have moved B2 visa and it is applicable till july 14th 2024(Including 6 month extension). My question is after July 14th 2024, what are my options to stay in USA legally? Can I extent my B2 visa more after using 12 months?

Thank you so much for your time