Dec 4, 2014, Video Recording available for Community Conference Call with Attorney Rajiv S. Khanna

[DEEPAMENON]

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Rajiv Khanna, US Immigration Attorney, hosts a Free Community Conference Call for all of you, every other Thursday at 12:30 PM Eastern Standard Time to answer US immigration related questions, Dial in No: (202)800-8394. Everyone, whether or not a member of discussion forums, is welcome to call in and ask questions or just listen live or listen to the recording for the call posted at the end of the day. Note that we answer posted questions and follow ups first.

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Conference Dial-in: : (202)800-8394
Topic: General Immigration Related Questions
Start Time: 12:30PM, EST
End Time: 1:30 PM, EST

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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.

 

[Rajesh mahajan]

FAQ: Change in job titles/duties during green card process

Hi Rajiv,
I have I-140 approved with title business systems analyst. Promoted to director in the same job profile , H1B amended to reflect the title but no new perm filed as was explained by my lawyer that it is ok to have some career progression and more than 50% of job duties are same as old job. Now we are going to go through another re-org and probably I may not have the same title but senior business systems analyst . What are the steps
1. Do we need to file new perm or wait for the new law and apply H1B reflecting the new title
2. Apply for EAD on the basis of existing I140 approved as business systems analyst.
Please advice..
Thanks Raj

 

[Aditya Sidhaye]

Hi Rajiv,
I currently have an approved H1b petition (not stamped as yet in India) filed through an employer in Ohio, but I am presently working in India. My wife is working in the US on H1b visa. I wanted to know,
1. Can I get my H4 stamped in India and come to the US, and then after a few days apply for a COS to shift to H1b through the new employer based on my approved petition.
2. Can I seek new employment on the basis of my H1b approved petition such that it can be transferred to the new employer.
Please advise.
Thank you.
Aditya.

 

[Raj-usa]

Hi Rajiv,
I have 3 years Bachelors degree ( computer science) from India and 2 years Masters degree ( computer science) from UK.
My Educational evaluation is equivalent to USA -Masters degree, from 3 reputed evaluators in USA.
I have 6 + years experience in US.

1. Can I apply PERM under EB2 with Masters + 1 year experience? Or EB2 with Bachelors + 5 years experience.

2.My PERM status is pending in BALCA. Can I apply one more PERM with the same employer for a different position.

Thanks,
Raju

 

[SMP721]

Hi Rajiv,
I need information and your help with following situation:

• My wife got H1b visa this year and her H1b visa is valid since Oct 2014. However, she is looking for a client right now.
• We have to go to India for family emergency, but my wife can't go for H1b stamping (as she does not have a client)
• My wife has stamped H4 visa (valid until 2016). Can she come back to USA on H4 visa?
• Do we have to apply for Change of status from H4 to H1b or can she just enter US on stamped H4 visa?
• If she comes back to US on H4 then her status will change automatically from H1b to H4, correct?
• What is the time required to change the status (COS) from H4 to H1b? (Can we do COS in premium filing? )
• Can she start working, if COS from H4 to H1b is filed or she has to wait until her status changes to H1b?

Thanks,
SMP

 

[Nishbal]

Hello Rajeev Jee,
I have approved I-140 from my previous employer and my new employer in the process of applying for perm. With this new immigration reform, what you think, what benefits we will get considering my sitiuation?
Thanks,
Nishikant

 

[Krishna_New]

Hi Rajiv,
My PERM is filed on 12/27/2013 thru a top indian consulting company. H1 max out- 01/05/2015. PERM is still in progress - no audit is recieved. I applied for H1
extension based on PERM is pending for 365 days rule - and waiting for 7th year extension approval.
Once my H1 extension is approved I am looking for possible options to change my job.
I have below questions.

1. Will my H1 go void, once my H1 transfer is complete with the new company, but the old company withdraws my PERM? Considering my new
company will file my PERM immediately, What would be my status in this case?
2. Is there any way my old company cannot withdraw my PERM (Heard like Supervised recruitment). Is there any way we can prevent to withdraw a PERM
3. What is the fee associated with it to withdraw a PERM
4. How will I know whether my old company has withdrawn my perm or not?

 

[zap0paz]

Hi Rajiv,

First of all, thank you very much for taking time to answer my question on your November 20th conference call. I believe, I confused you and probably others with my incomplete question. I apologize for that. I would like to quickly clarify two points:

1. I started Master's degree in the US right after I returned from my 2nd absence in 2012 and already graduated.
2. Soon, I will be eligible to apply for US Naturalization. I paid rent during my 2nd absence half of the time and have the rental agreement. Is lease agreement good enough to support my continuous residency during my 2nd absence?


Thank you very much for your time Rajiv. For your convenience, please see my post quoted from the last conference call:

I became a LPR on June 2009 and departed 3 months later for 9 month of absence. Second visit, I was physically present for 7 months and again absent for 11 months.

During my second absence, I continued to pay rent half of the duration, until my lease ended. I also got admitted to Master's program during my second absence, which I started immediately after my 3rd visit. I had not applied for re-entry permit and had not filed taxes in that year, since I was gone for the whole tax year. I had not worked anywhere.

I have a copy of my lease agreement and admission letter to Master's program. I also had a bank account which I was maintaining during my absence (paying necessary fees).

Are these documents strong enough to support that I never intended to leave the U.S.?

 

[sai1984]

Hi,

I'm holding H1B and haven't traveled to USA in the past. My employer has got a project with client which is of 2 to 3 months in USA.

My employer has offices across the USA .

As the intended duration of my stay is for Maximum 3 months, Employer has conveyed me that there is no need of transferring my payroll from India to
USA Payroll. Instead he conveyed me that employers USA office will pay all applicable taxes on my behalf.

I will be paid salary in India and irrespective of duration of stay in USA ,I will be given Per Diem.
My queries are :

Is it not mandatory for one not to be on Payroll / paystubs while my stay is only for 3 months ?
As the duration of my stay is less than 6 months, do I need not to file W2 ?
As my employer is not willing to move me to his USA payrolls, I'm not sure how does he claim my salary is as per LCA ?
Is this approach Valid by USA Immigration / labor/tax Laws when traveling with H1B and working for client in USA and not being on payroll.
In case I agreed to travel in this way and work at client site, do you foresee any problems in future with respective to H1B renewal or extension or even my subsequent entries at POE.
My main concern is, are there any laws or clauses in immigration / labor/ tax to claim that it is valid to be not on pay roll when working at client site holding H1B .

Regards,
Sai

 

[Nishbal]

Hello Sir,
Hope you are doing good!
My wife is currently on OPT and her employer will be applying for H1b visa in April 2015. So my question is, can she travel to India to attain her brothers marriage in May 2015 and come back to USA while on OPT and having pending H1b application in May 2015? Please let me know when you get chance.
Thanks.

 

[prplgrl]

Hi Rajiv,

I had a priority date of May 2003 under EB-3. I left the country for more than a year for personal reasons while my AOS application was pending. When my date became current, the application was denied as it was considered abandonment of the application. I would now like to return to the U.S. Can I apply for an F-1 visa to pursue my masters or a B-1 visa to visit my sister and her family? if yes, which is preferable and less risky? if not, are there any options available to me? I did manage to secure a job last year but didn't win the H-1 lottery.

Thank you for your advice.

 

[aks341]

Question 1) I am working on H1B. I-140 is approved two weeks back. If I change my job and the new employer needs to begin GC process again, what documents do I need to have from my current employer and attorney? Do I need original or copies would be sufficient?


Question 2) There is a possibility that I may lose my job in a few months.If I lose my job, I would file for a B2 change of status on the same day. This would allow me to remain in the US legally, until a decision comes for the B2 petition. Am I correct?

Question 3) Assuming it takes a few months for me to find another job, while I am awaiting a decision on my B2 petition. After I find a new job (in say 4 to 5 months), my new employer would file a H1B petition. What would be the impact of having a B2 filed ( and possibly approved ) on

a) the duration of the next H1B approval ( specifically, would the next H1b approval be for 3 years based on the approved I-140 from the last employer?) and

b) the continuity of the priority date from the current employer to the next employer? I am particularly concerned that there would be a gap in my H1B status due to a job loss, even if I file a B2 petition to remain legally in the USA. How does such a gap in H1B status impact the continuity of the priority date and the possibility of H1B extension?​

 

[Rafi123]

FAQ: J-1 physician in waiver job applying for AOS/1-485

My question

Rajiv sir

I am a physician compelting my j1 waiver ( on h1b now in US, waiver will finish by June 2015).
My wife became a U.S. citizen few months ago and she has filed I 130 for me.
If I 130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ?

If I have to wait till June to apply for I 145, will I be able to get EAD right away or will I need to be on H1 for a while I 145 is accepted ?

Sincerely appreciate your help and time sir.

rafi

 

[rameshasw]

Hi Rajiv ji,

Thank you for your help in guiding us. My husband is working on L1A visa since 2008. His 7 years visa expires on May 2015. His employer is not willing to sponsor Green Card. I am working in L2 EAD since 2008. I have an approved I-140 sponsored by my employer. President's executive action says H1 visa holders with approved I-140 can apply for I-485. It it becomes a rule, am I eligible to apply for I-485? (I am in L2 Visa and I have approved I-140). I applied for H1 visa in April 2014 and didn't get picked in lottery.

Thanks
AR

 

[aks341]

FAQ: Error by USCIS giving time beyond 6 years on H-1

Error in last H1B extension-now I-140 approved
I have been working on H1B since 2005. In between, I changed to F1 and also spent time outside of USA. Cumulatively, I would have completed six years of working on H1B by March 30 2015, after excluding stays in USA on non-H1B status and stays out of USA.

I changed my job in Feb 2014 and have been working with this employer since then. At the time of change, the current employer filed for a H1B petition and requested an extension for three years – from Jan-2014 until Jan 2017, even though, if I added up all the time of work on H1B visa in USA, I would have completed six years by march 30 2015.


My I-140 has been approved this month. Now I do not know whether my employer should file for an extension of H1B (assuming that without the I-140 approval, I was allowed to work until I completed six years of H1B in USA) or not file for H1B extension, because, the last extension is valid until Jan 2017.

 

[aks341]

Obama’s Immigration action and impact on pending employment based I-485 cases

Given that the counting of visa numbers is going to change, please help explain this data and its implication for someone whose priority date is May 2014.


http://www.uscis.gov/sites/default/...t-based_I-485_Pending_Inventory_2014_10_3.pdf


If the changed proposed by Obama are implemented, how long it may take for my priority date to be current.

Apologies for asking multiple questions but they were really important for me.

 

[sai1984]

Hi,

I'm holding H1B and haven't traveled to USA in the past. My employer has got a project with client which is around 60 days in USA.
My employer has offices across the USA .

As the intended duration of my stay is less than 90 days, Employer has conveyed me that there is no need of generating payroll in USA.
Also he has updated me that as per Tax and immigration laws it is valid practice for H1B visa / L1 visa holder to work in this model when duration is less than 90 days.
The model he is proposing is,

• Upon arrival to USA, SSN will be applied and this number needs to be shared with tax firm as they are going to take care of taxes on my behalf .
• When working for less than 90 days, no need of payroll generation or tax payments in USA. Instead payroll will be run in home country, i.e India.
• When one need to work for more than 90 days, then taxes need to be paid in USA . And no need of payroll movement in this case too.
• I will be paid per diem for my stay in USA and salary in home county.

My queries are :

1. Is it not mandatory for one not to be on Payroll / paystubs irrespective of my duration in USA ?
   
2. In case if I agreed for this practice, do you foresee any problem with respective to future H1B renewal or extension and also my subsequent entries at POE.
3. Is this approach Valid(i.e. by not running payroll for an employee) by USA Immigration/ Tax Laws when traveling to USA with H1B visa and working for client.
4. I'm not certain on how they are going to show to Department of Labor / Immigration / IRS on my agreed previaling wage in LCA.

He is simply assuring me that everything will be taken care by this Tax firm and this practice is being followed from long time.
My main concern is, are there any laws or clauses in immigration / labor/ tax to claim that it is valid to be not on pay roll when working at client site holding H1B .

Regards,
Sai

 

[sai1984]

My apologies Rajiv ji for multiple questions. I couldn't find option to edit my thread posted earlier.

XXXX

As per the PDF in the above URL, which my employer has brought into picture and enforcing me that the practice is valid w.r.t H1B.

Please refer to "Appendix C. Visas" section, and as per that section under H1B, it states as follows.

As per last line in the above statement , he is stating that one need not to be on U.S payroll while I work at client site.
Also he is claiming that one can stay upto 90 days in USA without paying taxes and it is a valid practice and it doesn't cause any problem w.r.t my H1B status.
Is this 90 days clause really exist for H1B

 

[Jerrica]

Hi Rajiv,

I came to the U.S. on an H4 visa this year and soon enrolled in a university and converted to F1 a few months back. I had previous work experience in India and now have a couple of job offers here. I was wondering if it is possible to apply for an H1 in the coming April since I've already had one status change just a few months ago and would be applying for another in April.

 

[kehuhu]

FAQ: Work for old employer when new H-1 transfer approved

Hello Rajiv Ji,

I have a question on H1B. I have an approved I-140 from company B and I'm currently working for company A on H1B( valid till feb 2015). Company B applied for H1B transfer and also 3 year extension based on approved I-140.

I'm expecting H1B transfer process to be over by 10th Dec 2014( as it was a filed under premium processing ) but I would like to join them only after Jan 1st 2015. In the meantime I would like to continue to work for company B till Dec 31st 2014.

My question is how long I can continue to work for company A after successful transfer of visa (H1B) to company B ?

Thanks for your help.