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[Rajiv S. Khanna]

Conference resceduled, but questions answered

I have to reschedule the call to next Thursday, February 11, Same time, same place. My apologies for the inconvenience. They are predicting a big snow storm in DC over the next day or so that may keep us snow bound for upto five days. Here is what I will do. I will answer all the posted questions here by Sunday. So you all will have your answers by the weekend. But we will still do the call next Thursday.

If something is urgent and my answer is not enough, just send me a mail through the contact form on our home page: http://www.immigration.com/contact

 

[monica1]

My wife came to US on H4 in May,2006.
-I shifted to new company in June,2007. New company processed H1B for me H4 for my wife.And H4 is valid until June,2010. She also got H1B in 2007 and valid from Oct 2007 to March 2010.
-She has been in the project since Nov 2007.
-She got H1 stamped on her passport.
-Her last project finished in Dec 2009.Now she has no project. She wanted to come back to H4.

Now my questions are
1) What are the documents are required for H1-H4 transfer?
2)Do they need her pay stubs? If so, she doesn't has January,2010 paystub(as no project for her).
3)Can we submit transfer without Attorney?
4)Since she has valid H4 until June, 2010 can she go to Canada(she has no canada visa), and get stampped with H4? She can't go India, as she is 6th month pregnant.
5)As she is pregnant, can she be on leave on medical grounds. If so, will she be in H1B status or out of status? If she is in H1B status, can she COS to H4 in March, as her H1B is expiring in March?

Thanks for your help
SK2008.

 

[monica1]

Question

Hi Rajiv,

Could you please answer my I-94 validity question. Here is the sequence of events happened with my I-94,

1) On 1/31/09, I-94 issued till 11/30/09 (because of Passport expiry) at POE last entry to USA even though I-797 valid till 2/25/10.

2) My passport was renewed and got H1-B extension approved which came along with new I-94 (on I-797) valid from 2/26/10 till 11/30/12

3) And there is no valid I-94 from 11/30/09 to 2/25/10. I have H1-B visa stamping on Passport till 2/25/10

4) To fill the gap, I Visited Canada and I-94 was issued till 2/25/10 at POE (Canada Border) till current H1-B (I-797) validity. I showed them the current I-797 (which is valid till 2/25/10) since new extension is not going to be effective as of 2/26/2010 (and I didn't show them new H1-B extension).



Question: What is my I-94 status from 2/26/2010 (Is my I-94 received on H1-B extension valid from 2/26/10)? What is the recommended approach to get this corrected, if anything. Please advise. Thanks.


(Both the current I-94 on Passport (Canada visit, valid till 2/25/10) and new I-94 (on H1-B extension, valid till 11/30/12) have two different numbers)

Thanks for your time and your generous service to community.

 

[monica1]

Dear Rajiv,

I noticed the thread is closed for tomorrow's call. I am wondering if you could consider the below question as well.

My wife came to US on H4 in May,2006.
-I shifted to new company in June,2007. New company processed H1B for me H4 for my wife.And H4 is valid until June,2010. She also got H1B in 2007 and valid from Oct 2007 to March 2010.
-She has been in the project since Nov 2007.
-She got H1 stamped on her passport.
-Her last project finished in Dec 2009.Now she has no project. She wanted to come back to H4.

Now my questions are
1) What are the documents are required for H1-H4 transfer?
2)Do they need her pay stubs? If so, she doesn't has January,2010 paystub(as no project for her).
3)Can we submit transfer without Attorney?
4)Since she has valid H4 until June, 2010 can she go to Canada(she has no canada visa), and get stampped with H4? She can't go India, as she is 6th month pregnant.
5)As she is pregnant, can she be on leave on medical grounds. If so, will she be in H1B status or out of status? If she is in H1B status, can she COS to H4 in March, as her H1B is expiring in March?

Thanks for your help
SK2008.

 

[Rajiv S. Khanna]

H1 transfer pending from long...
Hi Rajiv..
This is my first posting on this forum and i really appreciate your services on the immigration related matters.
And here is my case history and questions for you.

1) Did a h1 transfer regular from company A to Company B in Feb 09 and started to work for company B once i received the receipt in Mar 09.Company A I94 is valid till Jun 2011.I work at a client site.
2) Received a RFE from USCIS in Aug 09 asking for client letter, documents supporting the existance of the speciality occupation, employer employee relationship etc. which we responded in sept 09.
3) After 2 months when my attorney contacted USCIS for an update he was being told that the case went for background check in Nov 09.Due to family emergency i need to vist my home country but cannot do until i received the approval notice for company B.Meanwhile i also wrote a letter to my state senator seeking his help in expediting the process and got an update from them that as the case is in background check with FBI they cannot help much and it might take like 3 weeks to 3 months.

Questions are:

1) How long does the background check cases might take to arrive at a conclusion.And what are my best options for travelling to home country at the earliest and coming back without any issues.

2)Does doing another H1b transfer probably to the vendor will help ? More so considering the fact that now we have this Employer employee relationship memo. As my current case is in background check , Will this new transfer to the vendor will also go for the background check?

3)And does i go out of status if my current transfer gets denied due to some reason?And does the 240 days rule applies to my case?

4)Assuming the company B transfer gets denied , can i still be here in US and then join company A back again whose petition/I94 is valid till Jun 2011?

Appreciate your answers

Thanks

1) I have known some H-1 background checks that stayed pending for over two years.
2) There is no harm in trying another transfer. It may or may not go for background check. USCIS handling can be very strange.
3. You will be out of status. If I remember correctly, 240 rule applies only to extensions with the SAME employer. I believe you are covered by AC21 portability to continue working.
4) No. You will need to get a new visa stamp and come back to A, in my view.

 

[Rajiv S. Khanna]

Hi Rajiv

My H1B expires in Sept 2010 and I need to apply for extension this year. I have a layer between my company and the client. I’m unable to get a reference letter from the actual client (to carry with me during an international trip) as the layer claims that I work for them.

Also would there be any problem if I get a full-time job and transfer my H1B? Time is running out for the people who have extensions this year. Is there any way to get extensions?

Is there any chance for H1B candidates who work for consulting companies (body shoppers) either directly or with layers between the petitioning company to survive in USA going forward or would they be swept off with the memo until and unless they have a full time (which is rare now) job, with an actual client company that’ll do the visa transfer?

Thank you for your time.

The January 8 memo of USCIS is illegal for many reasons. Our firm or someone else will end up taking the govt. to court over it. Until that happens, we are still getting H-1 approvals even where there are layers (many times more than one) between the employer and the client. But getting end-clients involved is extremely important. See my article: http://www.immigration.com/sites/default/files/ALI-ABA_H-1Art_2009Oct.pdf

 

[Rajiv S. Khanna]

Hello Rajiv,

I wrote you 2 weeks ago in regards to my girlfriend's options with her J1 expiring. Unfortunately for us, the options weren't many.

So now if we would like to get married, what are the steps we need to take (I am a US citizen).

1. Go to the courthouse, get married, file the paperwork.

From there we are in the dark as to what forms we need to file.

Also, her J1 visa expires at the end of May, but she would like to keep working while the process is still in progress, is there a form we need to file to obtain a work permit for her?

Thanks,
-Dev

Dev, I will speak with you this Thursday in the conference call. I need a few more facts before I can comment.

 

[Rajiv S. Khanna]

Hello Rajiv

I got an offer from reputed US Company A as full-time employee. Company A has applied for H1b visa. My current visa expired on September 2009. I-94 valid till September 2010. This company had laid me off 4 years before while I worked for them as full time employee in India.

Question 1: If they terminate my employment after few months and revoke my visa in 15 days and I go back to India after being unable to find project, is there chance to get a new visa? If yes, will it be subject to 65,000 cap ?
Question 2: Is it a good idea to get another project & get another H1b filed from Company B as a backup, so that i can join them later in case I loose employment with Company A

Appreciate yours answers, thanks very much

1. You will not be subject to the quota. That does not even become an issue until you have been outside US for one year. You should be able to get a new visa if all other requirements are met.
2. I see no reason why not.

 

[Rajiv S. Khanna]

Dear Rajiv

How are you doing? I have a question about my wife's H1B extension.

1. I am primary applicant for my GC and my wife and daughter are derivative/dependant applicants and our 485 pending for the past 3 years in EB3 category.

2. My wife is working on her own H1B and completed 4 years on her H1B. When she applied for extension she got 3 years H1B extension. I thought she will get only 2 years extension as she already completed 4 years on her H1B. Is this because her 485 pending? Or did you see any issue in this?

Thanks
Cris

Use only two years. USCIS seems to have made a mistake.

 

[Rajiv S. Khanna]

My Employment Based AOS interview is over and due to PD not current I cannot get GC so the case in wait status ( as told by the officer at USCIS) . Now I need to renew my EAD and AP and I plan to do the paper filling only ( not electronic filling) . Can you please inform where does one file the paper based EAD and AP renewals after the AOS interview is over ?

so the question is
Q1. Do I need to file at the Texas center where the case was originally ( I have received all my earlier EAD from that center which were also paper filled before the transfer to NBC and local interview) or do i need to file at the National Benefits center where the case was for some time before I was interviewed at local office of USCIS or at the local field office where the interview took place ?

called USCIS got different response from different Custmer services rep I am hoping you can shed some light on this.. from your office experience of clients in similar situation.

Thanks

Send a mail to me through the "contact us" form on immigration.com. Just copy and paste your message and say Rajiv has said the team will answer this question. Paste a link to this posting. They will let you know. Please bear in mind, we can only give the info we have and what we do for our clients. Use at your own risk.

 

[Rajiv S. Khanna]

Hi Rajiv. I am a consultant working on a TN (3 year) for my current employer and they have recently initiated my GC process. At this moment we are at the stage of running the ad. I would appreciate if you could let me know the answer of the following queries:

1. How much time would be required by my employer, after running the ad, to file for my labor? considering the rest of the documentation is already done.
2. Since I belong to EB2, ROW with US Masters, is there any chance at all for me to get my labor done quicker than 9-12 (1.5 - 2 years in case of an audit)?
3. Is there a chance for the reduction of the processing time for labor in the near future?
4. What are the factors that usually causes the auditing of a labor?
5. As a Canadian citizen, I can legally stay on multiple TNs at the same time. Would there be a problem if I work for another employer through my 2nd TN for a short time during or before filing the labor incase if I can't find an assignment through my current employer?

Thanks and regards!!

1. No idea. Too many variables. But not more than 2 months or so. It could be as early as a week.
2. Unpredictable.
3. No one knows.
4. Some of them are secret, some random picks, and EB2 for IT occupations has a high probability of audit.
5. I am not sure. I will have to check the regs.

 

[Rajiv S. Khanna]

Hi Rajiv,

I have an H1B through company B valid till 2012. Now,if I quit company B and go out of US and come back after a year or so on L2 visa, can I change back to H1 again by just applying a Change of status without going through the quota( irrepsective of whether company B revoked my H1 or not)?or should I appply a fresh H1 through quota?Is there any condition/limitation on being exempt from quota next time when I apply?

Please advise

Thanks,
Prerana

From what I recall, you could take advantage of the so called "remainder option" and get exempted from the quota. Let your H-1 lawyers guide you.

 

[Rajiv S. Khanna]

Hi Rajiv,

I am a new member to this forum. I am working on H1B from couple of years and my family back in India are starting new company. My questions: Is it possible for me to associate with that comapny in any form? Can I be one of the Directors in the company?
Please advise.

Thanks for your time and help.

In my view, you cannot do any work on the US soil. If you are a director in name only, I see no issue.

 

[Rajiv S. Khanna]

Hi Rajiv, Thank you for your help to the community.
Please bear with me for a long question. I have no other way to explain the situation
I originally applied for myself and my family for immigration under religious worker program in 1996. I received my greencard and my family did not.
my wife and daughters did not. I subsequently filed 485 with 245(i) in 1997 and did not receive any response or receipt notice. I contacted USCIS & the congresswoman to no avail. I sent several requests and received no reply from USCIS They seemed to have lost the file. My family waited till 2000 Jan and left for india as my daughter could not attend college without proof of residency. Since then I am visiting my family and living separated.
I have applied I-130 for my daughters after i became a citizen in 2007.

After a long and difficult process we filed for Freedom of information act to request USCIS documents to ascertain what happenned to the applications.
They have sent fingerprint notices in 2003 which we never received. In 2006, I think but can verify.the USCIS contacted Congresswoman office which the Congresswoman replied saying they left for india unable to attend college and requested to transfer the aplication to NVC for adjucation.
As a response to this uscis closed the file saying
1. The family left without filing advance parole
2. Congresswoman said they did not wish to pursue the immigration. However that was not true and very evident from congresswoman's letter.

Is it possible to remedy this via writ of mandamus and get adjustment of status for my daughters ?. Will you be able to help me ?. if so please let me know the cost for this.
I just received the file via freedom of information act.

Why can you not do consular processing. That should not take more than a year. I discourage Mandamus until we have no other option.

 

[Rajiv S. Khanna]

Hi
I’m posting this on behalf of a very close friend who is shy to ask for himself. He has been in the US for 11+ years and got green card in 2006. He can file for nationality next year therefore.
However something very unfortunate happened to his family in Jan 2009 last year when during an argument, his wife got a small cut on her nose accidentally, got very upset and called 911 for medical help. The poor guy got arrested for Domestic Violence as that is the law in that county that is very strict. Later on the charge was reduced to a misdemeanor level and DA took the case on trial which resulted in a mistrial (hung jury). The wife did not testify but fully supported him. Wants to testify for him if 2nd trial happens.
DA does not give up and wants to try the case again. The case is open. He has taken voluntarily some Anger Management classes and seek marriage counseling and there is a chance that DA will offer a deal and reduce the charge to “Disturbing the Peace” if he pleads to that.
The court dates have been moving and he is tired of it as it is a block on his background now for any job change. The defense attorney says that this charge is a good deal and court record can be cleared after 6 months. The attorney says that if he gets convicted on DV charges, he can be deported. If he gets convicted for disturbing the peace, he can stay and it may have no impact on anything.
The question has asked is that “Is it a trap? Should he go for it or ask for 2nd trial? What will be the consequences in either case for his deportation or nationality application?”.
Any other suggestions? Thanks a lot.

Consequences of criminal convictions/please can be surprising even for the most seasoned practitioner. You have to think about possible revocation of green card (google "petty offense exception") and the effect on naturalization. I cannot give meaningful advice without reviewing the statute under which plea is being considered.

 

[Rajiv S. Khanna]

Hi Rajiv,
I've applied for citizenship application form N-400 and was scheduled for interview on 3/2/2010.

We have plans of making a 4-week trip to India towards end of March.

Can I go outside of USA after the interview is through (my application is approved) and before the oath was taken?

I would like my oath to be scheduled sometime in June. Will I have any say in this oath date and will my trip to India cause any issues to my citizenship afterwards?

Thanks in advance for your response.
- Gopal (Boston)

I cannot see why a 4-week trip should present any problems. I do not believe you can have an advance say in the scheduling. Once scheduled, you could request rescheduling. You could also request your Congressman's help in this matter. They may be able to get you a date in June.

 

[Rajiv S. Khanna]

Hi Rajiv,
I am going for H1 extension after the 6 year limit. Here is my situation.
I have an I-140 apporved through Company A. I am on H1B through Company B. Please suggest which company (A or B) should i go with for extending/transferring my H1B visa. Can i apply through Company B for extension based on Company A's I-140 approval. What are the chances of approval if i go through Company B.
Thanks a lot.

Under the law, you ARE permitted to extend H-1 through B for a green card applied through A. But overall, unless there is a good explanation for it, common sense says you should start working for the green card sponsor ASAP.

 

[Rajiv S. Khanna]

I have a similar question. I am about to submit my N400. But may need to visit India for a few weeks due to my father's illness. Is it OK to submit the N400 and then go to India for a few weeks ?

I would greatly appreciate any advice.

I see no problem with it.

 

[Rajiv S. Khanna]

our relative is on F1 visa from Aug 2009. Can he go for summer internship ?. Should he get any OPT or any other permission for getting paid outside the campus ?. Is there a procedure ?. Some friends of his /seniors in college are advising that he does not need any OPT or any other permission and he can do summer internship without any issues. Is that true ?. Thank you.

He must discuss this with the International Students Office of his school. I am sure there are some formalities associated with the process.

 

[Rajiv S. Khanna]

Any news or updates on H1 Employee -Employer issue ?

Nothing so far. It is only a matter of time. USCIS will get sued.