Recording for October 19, 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.
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Call Details:
Next Call Date: November 02, 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
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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

 

[Eb2or3]

FAQ - EB-2 vs. EB-3 visa filing: Pros, cons, and priority date considerations

My perm got approved on Oct 5, 2023. I am an Indian citizen with a priority date from my previous employer filing as March 28, 2012. As per the Oct 2023 visa bulletin, I am current under the “Dates for Filing” chart for EB2 and the “Final Action Date” chart for EB3. My employer's immigration firm insists on filing my I140, I485, I765, I131, and I693 under EB2 instead of EB3 for my case. So two questions:

1) Can you please explain the pros and cons of filing under EB2 and the pros and cons of filing under EB3?
2) As the EB3 “Final Action Date” chart is current for my priority date. Wouldn’t it be better for my case to be filed under EB3 instead of EB2, ensuring my 485 will get decided faster if filed under EB3 instead of EB2? Isn’t it?

Thanks.

 

[raju269]

I-485 status, job portability, and visa availability concerns

Hi Rajiv,

My priority date (March 2013) was current in EB2 last year, and Employer B attorney filed for I-485 based on previous Employer A approved I-140 without I-485J. I've been in touch with my previous Employer A and he has not been submitted I-140 withdrawal notice when I left the company. My attorney genuinely represented that Employer B PERM was in progress while filing I-485 and the processing timeline was impacted due to COVID. USCIS accepted the I-485 petition and sent an RFE for I-485J after 6 months of I-485 filing. By that time, the PERM and I-140 with Employer B has been approved. They responded to the RFE of I-485J with a request for job portability under INA section 204(j) with Employer B I-140 was mentioned in I-485J RFE response. After RFE response was submitted to USCIS, My I-485 case status changed to ‘Case Remain Pending’, but EAD/AP has been approved and a new I-485J receipt notice (status: pending) has been issued by USCIS.

USCIS response to congressman enquiry:
At the time the application was filed, an immigration visa number was immediately available to your constituent. Since the application was filed, however, the final action date listed in the visa bulletin has retrogressed or become unavailable. At this time, a visa is not available to the applicant which would allow them to ajust the status. As a result, the application will be held in abeyance pending visa availability. Since application for AOS is pending, the applicant is eligible to seek certain benefits such as EAD/AP.

1) Can I switch to AOS status and use EAD/AP after I-485J approval? (or) Can I use EAD/AP before I-1485J approval?
2) Would you recommend to maintain H1B until I get a GC in this situation?
3) Was this filing (I-485) considered to be misrepresentation per USCIS?
4) Would you recommend to withdrawn I-485 now? (or) Leave it as is and file a new application and withdraw the old one when date becomes current?

Thank you and appreciate for your guidance!

Thanks,
Raju

 

[Koushik324]

Transitioning from OPT to H-1B to STEM OPT extension: Status and employment concerns

Hello,

I am Koushik, I was on OPT until October 1st. I was working for a company and they filed for h1-b COS, my case was approved and got the i-787 approval. In July, I left that employer and they sent a withdrawal of h1-b to the USCIS, it was delivered to USCIS on July 14th. My OPT expired on September 25th and I have applied for STEM OPT Extension before September 25th. The dates were from October 1st 2023 to September 30th 2023, my college DSO has said that my SEVIS is completed because USCIS still haven’t processed (indicated by my previous employer) H1-b withdrawal. So by default my visa status changed to H1-b by October 1st.
Currently I have a copy of the withdrawal notice sent by the employer and the proof of delivery to USCIS. How should I proceed now and can I work in the meanwhile?

Thanks,
Koushik

 

[SravaniA]

H-1B work location and amendments: Addressing remote work and future changes

Hello,
My H1 got picked from a different employer and my current employer didn't file my H1. My project is hybrid mode but I've been working remotely (since my project started- 5 months). My work location is Austin but I've recently moved to Kansas since it's remote. My employer filed my LCa with 3 locations( office address, my Austin address and Kansas address). Could you please let me know if there'll be any issues later because of having multiple locations?
My employer also mentioned that if my mode of work becomes hybrid and I have to move to Austin, there's no need for amendment as my LCa already has my Austin address. Will changing payroll from Kansas to Texas be sufficient in that case?

Thank you.

Regards,
Sravani.

 

[MK3]

FAQ: What is a 212(a)(6)(c)(1) refusal of visa?

Hi, My entry into the United States was denied a few months back, and my H1B visa was canceled saying that I need to re-apply for a new visa and I agreed to that. A few days back I attended an interview on H4, but the interviewer was asking about the canceled visa and gave me a refusal worksheet Section 212(a)(6)(c)(1). I'm wondering what's happening here, could you please help me with this? Thank you!

 

[kunila]

Changing jobs on L-1A visa with pending I-485: Supplement J and impact on green card process

I am on L1A visa. I have the I-140, EAD and AP approved. I-485 was applied concurrently and has been pending over a year now. While I know it is recommended to continue in my current job until GC is processed, I am considering a job change due to layoffs going on in my current company. Do I need to apply for I-485J after joining the new company if I get an offer I wish to take? I plan to switch to a similar job role. Also, will the job change put the GC decision or future US citizenship at risk?

 

[Nikitha N]

F-1 visa application dilemma: Marital status disclosure and implications

Hi, we are recently Married, my husband is working(F1-OPT EAD) in Texas. I want to Pursue my Masters and planning to come on a F1. My marital Status is not mentioned in any of my ID proofs or documents(but we have a marriage certificate done in India) and now that i have already got the I20, while filling the DS-160 form should I mention that i am married and my husband works in US as F1 is given to Study and get back to my country.
I want to Pursue my Masters for the Spring, since I have got the i20 from the University, we have not mentioned anywhere about the marital Status not even my husband has Changed it yet as we are recently married. Please Let us know what best can be done.

I am thinking not to Disclose that i am married in DS-160 as i have heard people saying I wont get the approval for F1 Visa if mentioned i am married and my husband is Staying in US on a F1- OPT EAD. Will it be a Problem if i do so in the future when i have to disclose about the marriage. Please Let me know

 

[Anonymous7]

B-1/B-2 visa applications during H-1B 60-day grace period: Approval, rejection, and implications

Hi,

1. How often B-1/B-2 gets approved or rejected if applied during H-1B 60 day grace period to find new job? Also, what could be the reasons for denial? Secondly, what amount of money one should have to convince gov that he can support himself during this period?

2. If B-1/B-2 is rejected but already found a new job, then would it affect H-1B transfers? Also, can one stay in U.S. during time of H-1B transfer, provided that 60 day grace period is already over and B-1/B-2 is also rejected?

3. Is there any B-1/B-2 premium process option to expedite it?

Thank you.

 

[Hkapadia]

I-140 denial due to incorrect NOF address: Grounds for appeal and responsibility

Greetings Rajiv Sir,

My NOF included the address of US Dept. of Labor, Atlanta, Georgia instead of US Dept. of Labor, Washington, DC for the petition of I-140. The address was found to be incorrect. The NOF did not comply with regulatory requirements and a proper notice must be filed 30 to 180 days prior to filing of the application and it cannot be cured by filing at this time. Hence, the I-140 application got denied.

I've a following question if you could answer?

Do i have any grounds to appeal the denial of the I-140 application based on the incorrect address in the NOF?
As the error was not the client's fault neither the company and they complied all other requirements in timely manner.

Please do get back as there as several other employees facing similar issues.

Thanks,
Hardik

 

[rsh77]

Considering an H-1B to F-1 transition: Timing, I-140, and future employment consequences

Hi Rajiv Sir,

I apologize if this has been answered in the past but found ambiguous interpretations.

I have an approved H1B petition that went into effect on Oct 1, 2023. I am yet to get my H1-B visa stamped. My employer is ready to initiate i-140 proceedings.

I am considering starting a PhD next year but am not certain, for which I will need a COS within the US from H1-B to F1. With this intent:

1. Should I hold off on the employer filing for i140 that might cause issues with H1-B to F1 transition later on?
2. Are there any benefits to wait until i140 is approved before changing from H1-B to F1 status? Would it mean I will not have to enter the H1-B lottery again for future employment after the PhD?

Thank you for your time Sir.

 

[arpitarathore]

H-1B to B-2 change of status: Financial accounts, legal stay options, and future H-1B possibilities

Hi Rajiv Sir.

I have application of COS in process from H1B to B2 currently because of delay in PERM and I40 process. Questions:

1. Can I keep my 1099 still on without doing any new transactions which I have through robinhood or should I completely deactivate the account?
2. If my I40 and H1B extension process in not completed in next 12 months( on B2 including 6 months extension), what should be my best options to stay legally in the country?
3. Can I apply for fresh H1B lottery in coming year 2024 on B2 visa?

Thank you for answering!

 

[miheer]

Exploring day 1 CPT as an alternative to H-1B after first master's degree

Hi Rajiv Sir,

I have completed my first masters degree and am currently on Opt. Is day 1 cpt an option for me if I don't get picked in the h1b lottery?
I know i cant do Opt again if I pursue a 2nd masters degree but is day1 cpt allowed during the 2nd masters program?

Thank you for your time!

 

[DEEPAMENON]

Financial options for pending F-2 to H-1B transition: Subcontracting and payment considerations

Question from our community member:

I am currently on pending F2 change of status (from O1 visa). H1B (university) can take up to 3 months to initiate filing. Interim, I received an offer as a subcontractor under professor. My friend suggested me 3 options:

Option 1: get the money in an Indian account in INR.
Option 2: ask the professor to give the money as loan
Option 3: work now and get paid once H1B gets approved.

I am in a tight spot running out of funds. I really need this interim job.
Please suggest

 

[DEEPAMENON]

Challenging AOS denial and priority date retention: Lawsuit or fresh I-485 application

Question from our community member:

My question is:
Summary of the matter

My ex employer A withdrew I-140 back in Feb 2016 not due to fraud or misrepresentation. I didn't receive any notice of revocation. When I joined new employer B, they were able to retain my old PD even though the previous one was revoked prior to the Jan 2017 immigration rule. When my date was current in Oct 2020, I filed for AOS. I received EAD, AP and approved 485J in 2022. However, after 2 years of wait, in Sept 2022, uscis denied AOS stating my new PD (dec 2018 holds valid). My employer attorney submitted 290B motion to reconsider, that too got denied last week.

I'm planning to contest this decision in the federal court filing lawsuit. Is this the right move? Or can I file a fresh 485?

I've reached out to folks who had similar issues, USCIS is very inconsistent in this matter of retaining PD for old revoked 140. Please advice