Recording for July 27, 2023 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. Whether a member of the forum or not, you are welcome to call in and ask questions or just 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 that we answer posted questions and follow-ups first.
-------------------------------------------------
Call Details:
Next Call Date: August 10, 2023
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
-------------------------------------------------

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

 

[Venkats1]

FAQ: Can I omit a previous experience in PERM filing and I-140 transfer between companies?

Hi Rajiv, I have an approved I-140 with COMPANY A. However, I have recently moved to COMPANY B, and they have initiated the green card process on my behalf. I prefer not to include my experience with COMPANY A in the PERM filing with COMPANY B. My understanding of the terms with company A is limited, and I may encounter difficulties in obtaining experience letters and supporting documents from COMPANY A. Could omitting my experience with COMPANY A cause any potential problems when COMPANY B files the I-140 & PERM and requests the previous priority date from COMPANY A.

 

[yeshaswini]

Switching from F-1 CPT to H-4 with H-4 EAD: Job continuity and other visa options

Hello,
Currently, I am on F1 CPT. My husband has an approved I140. Can I switch from an F1 CPT to an H4 and get an H4 EAD without losing my job? Please let me know if there are any alternative options for changing my visa status without losing my job.
Thank you

 

[ravi22]

Impact of job title discrepancy on the I-140 process and the need for reapplying Prevailing Wage Determination

Hello Rajiv ,

I have been employed with 2 employers in the past.
Employer A - Current Employer
Employer B - Past Employer [No i-140 application filed, he filed H1B once and that got rejected, I have been on OPT with them for a year]

For my i-140 process , the current employer has filed the PWD(Prevailing Wage Determination) and that got approved this June, But Initially my current employer attorney asked for a document for filing the PWD , then accidentally I have provided my job title with my previous employer as 'Data Engineer',As that being my title at the client location . Now to proceed further the current company asked for the employer verification letter from the previous employer, provided the draft.

When I reached out to my previous employer ,my title with them turned out to be 'Software Developer', but all the job duties remain the same as provided by us.

So, my previous employer provided only title software developer in the employment verification letter.

As there is a conflict between the titles which I have provided before and after,the current attorney is suggesting reapplying Prevailing Wage Determination to avoid the rejection at i-140 stage.

If we do so , I might again lose 8 months in the process . Is it really required to reapply PWD , as the job duties remain the same with my previous employer

Please suggest me

 

[Karma Yogi]

FAQ: Sponsoring Employment-Based immigration petition for Self-Employment: EB-2 or EB-1 I-140

Greetings Rajiv ji...

I have EB3 I-140-based EAD currently. If I set up a software firm for myself, can I sponsor EB2 or EB1 I-140 for myself? The main reason why I want to sponsor myself is I would not be under the constant fear that my employer may withdraw my I-140 for one or other reason. I will be able to work for myself.

Is there any rule that stops me from filing an employment-based immigration petition for myself?

 

[anushapt1]

H-1B extension pending - Out of status/denial due to travel and re-entering the U.S. Hello Sir My current H1b expires in October, applied for extension in April which is still pending. I-94 end date based on past H1b visa is Oct 12, 2023. Recently traveled to Canada for 2 days and re-entered US, got the new I-94 end date as Oct 12, 2023. 1. Now after my H1B gets approved, will I be receiving I797-A or I797-B in this case? if I-797A, will the end date of i-94 present on new I-797A approval notice be the last action one? 2. Does it supersede the previous I-94 issued by CBP during my travel? Or should I re-enter the country before Oct 12 to get new I-94 end date? 3. I was told by an attorney that the extension petition will be denied as I traveled out of the country, is it true? 4. Also, in case if do not get the H1B decision by Oct 12- will the automatic 240 day rule to stay & work still apply as I traveled out of country while the extension is pending? Please provide your valuable thoughts and what next steps I can take.

 

[KiranR]

Re-entry permit (I-131) delays and the effect on green card status: Is it safe to wait abroad or take risks to get a green card status?

Hello Rajiv ji,

I am an LPR since past couple of years. I have filed for a re-entry permit (I-131) last September and still waiting for the permit to be approved, even though I have cleared the biometrics stage long back. Because the process was taking time, I moved to India in Jan'23 to take care of personal matters but had to come back to US after 6 months outside to not risk my GC status. The official wait time for the permit to be approved is showing as 17 months, which means there is little possibility of getting the permit in next 5-6 months.
My question is: Given that I have applied for the permit and have shown the intent to lawfully stay out of US till I resolve the personal matters back at home, would it be safe for me to go back to India immediately and wait for the approval there (assuming it will take long to get the permit)? Or will it be an issue with my GC status if I stay out of US for so long without having a permit even if I have filed for it?

Thanks,
Kiran

 

[prempathak]

EB-2 I-485 pending and relocating to Canada on H-1B work permit: Influence on family's stay in the U.S. and use of Advance Parole

Hello Rajivji,
Me and my family have my EB2 485 pending and having EAD and AP.
I am planning to apply for Canada work permit for H1B.
If selected, I am planning to move to canada.
1) In that case can my spouse and kids can stay in US and I can monthly visit them using AP. Is there any risk using AP without actual job in USA?
2) If my family can not stay in USA without me than is it fine if we all visit frequetnly to maintan AP to not lose our 485?

Thanks.

 

[newquestion01]

Using both H-1B visa and H-4 EAD - H-1B location change and amendment process

Hi Rajiv Ji,
Hope you are doing well.
Could you please help me with information on below points-
1. Can I hold and use use H1B visa and H4 EAD at the same time?
2. I have H1B for X location and now I might get deployed to Y location which is in different state than X location, however my employer is same, in this case will it require new LCA and H1B amendment? can amendment be filed in change of status mode?

Thank you!

 

[anurag27397]

Edakunni v. Mayorkas settlement: Filing options for H-4 EAD application with H-1B amendment in the USA

Hello Rajiv Ji,
I am in Canada right now and will move to US on H4 visa. My spouse is already in US.
I want to apply for H4 EAD and get it fast:
Context:
My spouse's company is filing for H1B amendment for location. We plan to move to a new location together.
I recently heard about Edakunni v. Mayorkas settlement by USCIS where one can file H1B + H4 + H4 ead together.

My question is:
Since I will already be in USA on H4 visa. It makes sense for me to bundle my spouse H1B amendment with H4 EAD application in Premium. Will this still be under USCIS Edakunni settlement?
OR
We need to file H1B amendment + H4 (form i539) + H4 EAD together to achieve benefit under the settlement? Difference is filling H1B + H4 + H4 EAD vs H1B + H4 EAD

Really appreciate your help.
Thank you!

 

[Rahul_Patel]

Timing and effects of filing for green card during F-1 STEM OPT and travel issues for F-1 visa holders during green card process

Hi Rajiv Ji,
Based on our community conversion, I heard that employer can fill Green card for Any visa even we are in F1 (Student Visa)
Could you please highlight and give brief on step by step processing and maybe appropriate steps time ( How much time it will take for each and every steps) - For Instance: We are on F1 Visa and Employer filled for it.

Follow up question:
1) I am on Bachelor degree F1 STEM OPT ( 2 years ) right now and Expire date: May 2024.
Question: What if my employer agree to fill for my green card now (July 2023), I will be ok after end of OPT or you don't suggest this options?
2) I heard you also mentioned, there is some problem if you travel outside USA. Could you please give more background on it?
Note: The F1 visa stamp on the passport is expired.

Thank you for doing this; we really appreciate it.

Thank you,
Rahul

 

[msdr]

Remote work for manager in the U.S. subsidiary of multinational startup before L-1A application: Processing considerations

Hi Ragiv ji,

This is for a multinational startup. Can a Manager of an Indian parent company work remotely for a US subsidiary as manager before applying for L1A? Will it have an impact on L1A? will processing of L1A be easy?

The employee has some constraints to come to the US right away but has plans to come in the near future.

Thanks

 

[msdr]

Working remotely during I-140 appeal and I-485 application and employment status upon approval

Thanks for this amazing forum Rajiv ji

During the pendency of an I-140 appeal, is it permissible for a prospective employee to commence employment, return to India, and work remotely? The I-485 application is still pending, and the Employment Authorization Document (EAD) and Advance Parole (AP) are valid until July 2024.

If the appeal is approved, can the employee return to the United States, and what impact will it have on the I-485 application?

Thank you

 

[Kiaan3425]

Starting a job in the USA with stamped H-1B, entering on H-4, and utilizing Automatic Visa Revalidation from Canada

Hi Rajiv ji,
I have stamped H1B but have entered in States on H4, to start a job in USA can I travel to Canada and enter on H1B under automatic visa revalidation? I don't have Canada tourist visa and employer is not ready to go for change of status application. Do you find this valid?
Thanks a lot!

 

[geekAtHeart]

Working for client-B on STEM OPT CAP GAP, H-1B approval for client-A, and risks of changing clients before H-1B start date and traveling for H-1B stamping

Hello Rajiv,

I am on my F1 Visa and my STEM OPT EAD ended in June this year. My H1B got selected in lottery this year from a staffing company. While filing H1B my staffing firm used a job offer from client-A. I have been working for the client-A on CAP GAP via the same staffing company from the past 1month.

Now, I recently got a better offer from client-B with immediate joining via the same staffing company. Given that my H1B starts from October-1st and it got approved for client-A, can I terminate my job with client-A and start working for client-B? I cannot apply for amendment before october-1st. Am I allowed to work for client-B on CAP gap and apply for amendment reporting the new client-B and location in the first week October?

My concern is, on and after October-1st until the amendment is filed I will not be working for the client that we submitted during filing. What are the risks I need to be aware of if I terminate my job with client-A and start with client-B before October-1st?

Moreover, I am planning travel to India in the month of November this year to get my H1B stamping. Do you think filing an amendment just before stamping has any adverse impact on my stamping?

Thank you in advance!

 

[Vaibhav31]

FAQ: H-1B visa holder working remotely from India: Permissibility of working for an Indian company and also starting a business in India

Hi Rajiv ji,

I am on H1B with company A and currently working remotely from India. Given US rules fo not apply in India -

1. Can I work for company B which is based in India and whose payroll also runs in India?
2. Can I start my own company in India while being on H1B for a US company?

 

[suraj10]

Transitioning from EB-2 NIW to O-1 visa for multiple employers and avoiding concurrent H-1B transfers

Hello Rajiv,

I have EB2 NIW approved on an H1B visa with company A. If I want to work for multiple employers without going through concurrent H1B, can I ask future employer i.e company B to file for O1 instead of H1 transfer?

My plan is to get O1 with company B. Then I will ask company C to file for another O1.

 

[Aryyama_Kumar_Jana]

FAQ: Starting a new venture as an H-1B visa holder: Establishing an LLC/CCORP and Involvement as a Board Member and Founder

Hello Rajiv,

1. How can I set up an LLC/CCORP company for a startup while on H1B?
2. How to become a board member and founder without being an employee while maintaining legal H1B status as per USCIS?

 

[san_selvan]

Immigration Options: Returning to the U.S. for child's education with EB-2 green card consular processing and pending H-1B administrative processing

Hi Rajiv & Team,

First of all, Thank you!. Your service is greatly appreciated. I am San and have been living in Bangalore for the last 10 years. Prior to that, I worked for a US-based consulting company from 2006 to 2011, which initiated the EB2 Greencard processing in 2010. Both my labor and I-140 were approved in the same year. However, in 2011, I moved to India for personal reasons and converted my GC processing to Consular processing. Now, I want to return to the US for my child's education as they are currently studying in Bangalore. A few months ago, I received a letter from the Mumbai consulate stating that my case is ready for a Consular interview. However, my sponsoring employer has closed down their business in the US, so I haven't scheduled the consular appointment yet. (I understand that there might be a time limit, and if I don't take action within that period, the consulate will cancel my immigration visa.)

At the beginning of this year, another consulting firm from the US approached me with an H1B offer based on my approved I-140. I filed the H1B application and attended the interview, but it has been stuck in Administrative processing (221g) for the last 3 months.

Now, I find myself in a difficult situation and believe I have the following options (Please correct me if I'm wrong):

1. Should I give it a try and attend the Immigration interview at the Mumbai Consulate? I can explain to them that my previous employer has gone out of business and share my new H1B offer. I would emphasize that I can easily find new employment opportunities and request the consular officer to approve my GC. However, my understanding is that if the consular officer denies my immigration visa, I won't have any recourse. Additionally, my I-140 and priority dates would be invalidated once the consular cancels the visa. In this scenario, I won't be able to apply with another employer or reuse the old priority dates for a new GC application once I enter the US on an H1B visa. Is my understanding correct?
2. Alternatively, should I postpone the consular interview, proceed with the H1B process, and wait for the 221g administrative processing to be cleared? Once the H1B is approved and the administrative processing is resolved, I can then travel to the US using the H1B visa. At that point, I could consider using or porting my old priority dates to apply for a new GC application, taking into account the current priority date and proceed with the GC process.

I would appreciate your thoughts on these options.

Thank you, San