Recording of June 09, 2022 Conference Call with Rajiv S. Khanna

[monica1]

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.
Note that we answer posted questions and follow-ups first.
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Call Details:
Next Call Date: June 23, 2022
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

 

[sandy9796]

FAQ: Traveled on Advance Parole - Maintaining H-1B status without going for stamping and filing multiple I-485 or Interfiling

Hello Rajiv Sir,

I entered USA on AP (EB3 EAD), I have a valid H1B I-797A till May 2024
I have approved EB2 I-140
I also have RFE on my EB3 I-140 (EAD and AP received on EB3 filing)

Question,
1) How can i get back on H1B status without going for stamping?
2) Can i interfile my EB3 485 to EB2 485 with pending EB3 I-140

Thank You for your Guidance and Advise

 

[jatpro]

FAQ: Green card application for parents during tourist visa

Hello Rajivji,

This is about filing GC for parents.

As per I94, parents are admitted until 8th August 2022 for their B2 visa.

We just sent the I-130/I-485 documents to USCIS.

Q1. What happens if there is no receipt generated till 7th August? Do parents have to leave the country?

Q2. If receipt is generated after they have left the country, what happens to the GC process?

Q3. If receipt is generated in time then what is the process to extend their stay or are they automatically eligible to stay till GC process is completed?

Thank you.

 

[PunitS]

Changing employer before 180 days of I-485 pendency

Priority date is Current , I485 is pending over 180 days, I140,I485,I765 & I131 filed 6 months ago, Biometrics done, I140 approved .
Can one change job and move abroad (home country) for an assignment with a company that is subsidiary of USA company.

 

[dvardanyan]

L-1A to green card through spouse

Hello Rajiv,

I’m on L1A status(till May, 2024, ), my wife is on L2. Her employer is sponsoring GC.
Can I get EAD when I-485 form will be submitted? If Yes, what validity period it is going to have?
Thank You!

 

[Pradip Advani]

Will my child be protected by CSPA while moving from F-1 to L-2, the option of continuing with F-1 OPT, chances of getting H-1B and including the child in green card processing?

Hi Rajiv,

I have an approved L1A status and will soon be moving to the US along with my spouse (awaiting visa stamping in the next few months). In addition my daughter currently studies in the US on a F1 visa (DOB Feb 27, 2002) having completed her Junior year. The following are my queries / questions at this time

1. If I move my daughter from F1 to L2 status, will her L2 eligibility end as she turns 21 next year ?
2. Is she better off continuing on the F1 status and work towards a OPT which allows her to work for a period of 12 months post completing her undergrad program. Additionally, as a STEM student (she is pursuing Biotechnology as her major) she can further extend that period by upto 24 months.
3. What are the likely chances of her getting the H1 B visa before her above period ends ?
4. If my company applies for a GC in 2 years from the time I move, can I include my daughter in it ?

Thanks and look forward to your response.

Pradip

 

[Ahmed_7]

Is it legal as a student of F-1 to receive money from someone on PayPal and other sources?

Hi Sir,

Q1. Being on student visa (F-1 OPT EAD), is it illegal i.e. violation of status to receive any money other than salary, such as money received by selling something like personal car, gift cards, or money received from someone on PayPal, and forget to declare those in tax filing?

Q2. Does it create any problem during GC and H-1B filing, such as receiving RFE?

Thanks Sir.

 

[ricknim]

H-1B Cap Exempt: Changing jobs and will H-1B lottery remain valid

Hello Rajiv,

I am currently on a cap-exempt H1 and another employer B filed my cap-subjective H1 that got approved last year before Oct 1st. But I never joined employer B. Do you think I will still have to go through the lottery again or can I use that approved H1 to join another employer if needed?

Thanks

 

[sandy9796]

I-140 rejected: Choosing Adjustment of Status

Hello Rajiv Sir,

Background (Same as #2)
I entered USA on AP (EB3 EAD), I have a valid H1B I-797A till May 2024
I have approved EB2 I-140
I also have RFE on my EB3 I-140 (EAD and AP received on EB3 filing)

Question (Sorry, in continuation to #2)
1) If my EB3 I-140 gets declined then do i have to leave country immediately?
2) Am i still eligible to stay base on AP while lawyers rework on I-140?

Thank You as Always

 

[sp_92]

F-1 to H-1 consular processing and change of employers

I am currently on an F1 visa and will be graduating in July 2022. I have job offers from two companies. I was selected in the H1B lottery for company A and now they are working on filing the petition.
1. How will the visa stamping work if company A files for H1B with consular processing and I never join company A?
2. If company A revokes my petition before or after approval, can company B file a fresh petition or transfer (in case the h1b is approved) without going for a lottery system?

 

[Ahmed_7]

FAQ: How are PERM minimum job requirements determined?

Hi Sir,

Q1. Does it make a PERM and GC case stronger if a job has high minimum job requirements? Because since the requirements are very high so it could be easy to prove that no qualified and willing US worker is available for the job.

Q2. If a job has very low minimum job requirements like only a bachelor's degree, does it makes a PERM and GC case weaker? Because since the requirements are very low so it could be hard to prove that no qualified and willing US worker is available for the job.

Thanks a lot sir.

 

[Vismay1998]

I-797 received date & priority date are different (CSPA confusion)

Hi Rajiv,

My immigration details are as follows.

Category - Family Preference - F3/INDIA.

1. Received (Filling) date_I-130: ---------------------- July 8th, 2008
2. Priority Date: ---------------------------------------- August 8th, 2008
3. Approval Notice Date: ------------------------------ March 4th, 2010
4. VB Current date ( As per Received date ):--------- February 1st, 2021
5. VB Current date ( As per priority date ): --------- May 1st, 2021
6. DQ Date: --------------------------------------------- June 26th, 2020

I am waiting for F3 immigrant visa interview. One of my children named "Vismay" is aging out. His birth date is August 15th, 1998. His name was already included in the welcome letter, so, I had filled DS 260 & AOS for him.
Questions:-

1. Does the consular officer decide CSPA eligibility based on the received date or priority date?

2. Is my son eligible to get F3 immigrant visa?

3. Which visa bulletin, received date or priority date, should be used to calculate CSPA age?

Regards,

Mukeshkumar Patel

 

[Rahul29]

FAQ: Extending or Renewing F-1 student visa risks and requirements

Hello Rajiv Sir,

I have been in the U.S since 2017 and my F1 visa expires this month due to the 5 year validity period.

1. I graduate in December 2022, so is there any risk in renewing my visa this summer? Any chance of rejections?
2. If it were to be renewed, would it be valid for another five years or just a year?
3. What is the risk involved in renewing my F1 visa in another country besides my country of citizenship? I lived my whole life as a resident in another country without citizenship, but am no longer a resident there, so was wondering if renewing there is fine?
4. Is renewing an F1 visa necessary for OPT? I believe it's not necessary.
5. Is renewing an F1 visa necessary to apply for H1B and Green card? I wasn't sure if I need a valid F1 visa.

Thank you for taking the time to answer my questions.

 

[Rajiv S. Khanna]

FAQ: Various Interfiling Issues - Merged Posts

I-485 Interfiling: Adjustment of status, transferring the basis of I-485 clarifications

Namaste Rajiv Ji

Hope you are doing well. Lately, we have been talking frequently, and I must say, there is always something new I learn from your expert comments every single time I get to talk with you. With that said, my hypothetical question is an extension of Mr. Hari's original scenario on the previous call - May 26, 2022. You very briefly touched upon this one during your last call and I did read some FAQ's as well, but still have a very specific continuation question:

Link to the original question below (May 26, 2022 Conference Call):

Mr. Hari's Question May 26, 2022

Background: -

1) Employer A
i) I-140 Approved in EB2
ii) Separate (Not an Amendment) Downgrade I-140 Approved in EB3
iii) Both have been approved, and not revoked more than 180 days back

2) Employer A - I-485 Filed using I-140 for EB3 category (Concurrent filing with Item 1- (i) above), Received EAD / AP (Both have been never used), Currently on valid non-expired H1-B Work Authorization

3) Both Filing Date and Final Action Date Becomes Current in EB2 Category

4) Switched to Employer B Before Final Action Date in EB2 gets current

5) Employer A Job and Employer B Job are assessed by immigration counsel and are valid for AC21 "Same or Similar" criteria.

Scenarios: -

A) Switch to Employer B made solely using Transfer (Change of Employer) for H1B Work Authorization, EAD / AP Still not used.
B) Switch to Employer B made Using EAD / AP received from I-485 process above in Item 2 above.

Questions: - In Both of the Above Scenarios A OR B,

a) Can you Interfile with Employer A (Previous Employer) requesting the change of basis to EB2; since Employer A already has both independently approved and not revoked / cancelled ?
b) If yes, Can you submit another I485 J requesting AC21 Same or Similar Portability corresponding to Employer B's Job (Current or the New Employer) after 180 days of the above interfile date ?
c) If Interfile is not an option, can a Re-File for I-485 through Employer A under EB-2 Category be an option, to get back to EB2 Basis?

Dhanywaad

Rahul Joshi

I-140 downgrade from EB-2 to EB-3

Chronology:

1. Employer A: Eb2 to Eb3 I140 downgrade filed and I140 still pending for 1 year with USCIS for Software developer.
2. Again With Employer A filed 485 under already approved Eb2 for the same Software developer position. 485 is pending for 200 days.

Question:

1. If I get GC based on Eb2 485 BUT have a Eb3 downgrade i140 pending: Can I take a new/different job with the same Employer A under AC21. New job title would qualify under the same or similar requirements. Will pending Eb3 I140 have any conflicts with the approved GC w.r.t taking a new job with the same Employer A?
2. If there are delays in USCIs processing Eb2- Eb3 downgrade I140( 12 months or so), Can I eventually move to another Employer with the approved Eb2 green card without waiting for the Eb3 i140 approval to minimize risks if any?
3. Should we withdraw pending Eb3 i140 after the Eb2 GC approval OR will USCIS close the application?

Thank you!

Hello Rajiv Ji,

We have PERM processed in EB2 and in Sept 2021, filed I-140, AP-EAD and I-485 in EB3. I-140 is approved and others are pending. My priority date is in May 2012, now current in EB2. We filed I-140, 485, 765 in EB3 in Sept 2021 because the date was current but it retrogressed later on. EB3 has not moved ahead and wondering about my options in EB2 and have some questions.

1. My employer lawyer says we can not interfile now since we have EB3 I-140 approved because we never filed EB2 I140 even if PERM is approved for EB2. Is this correct?
2. Since this is not a downgrade upgrade scenario, is it possible to have 2 I-140's filed (EB2 & EB3) for a single approved PERM?
3. I am not sure if lawyers used amendment to file EB3, if they did, can I still file for EB2 standalone I-140 with already approved EB2 PERM?
4. Is it possible for me to switch to EB2 category without filing new PERM and use already pending I-485?
5. Since USCIS said they have unused visas for this year in EB2 and they may again reset Final Action Date in Oct; is it still a good idea to file in EB2 if possible?

Thank You so much for taking my question and giving us your time.

Best,
Priyanka and Rahul