Questions Closed For Conference Call on Monday, Feb 12, 07

Status
Not open for further replies.

monica1

Administrator
Staff member
#1
Please post your questions in this thread. Try to read the questions already posted. If a question similar to the one you are asking is already posted, don't post it again. It will be answered during the conference call.

thanks
 
Last edited by a moderator:

pabbi

New Member
#2
Changing employer using AC-21

Hi
Thanks for hosting the call

My 485 is pending from past 1 year. my I-140 is approved 1 year back.
I am planning to join a new company.

I would like to know that weither my current employer can cancel my GC Process or Revoke my approved 140.Incase if 140 is revoked what will be the impact to 485 application

Recently I got my EAD extension also.

Please let me know
Thanks
 

alonglonwait4gc

Registered Users (C)
#3
Waiting Game

Hi Rajiv

I had my i485 filled in April 2004 with VSC. My file was send to NYC in Sep 2004 and then t/f back to VSC in Nov 2005.
Now PD(04/24/2001, EB3, India) became current in Jan 07. Received FP on 01/02/2007 and I confirmed it with VSC officer that they received it. Officer also told me that everything seems to her right but I have to wait.
I had also called VCS and put an inquiry. Please advice me what to do. I will really appreciate that. I am sick and tired of this waiting game...

Thanks and Best Regards!!!
 

ap74mo

Registered Users (C)
#4
N-400 stuck in name check

Hi,

Here are my dates:

N-400 priority date - Oct 10, 2006
FP - Oct 26, 2006
Interview and Oath - waiting (I've been told background check is pending with FBI)

I'm prepared to wait some more but what are my options (since USCIS does not tell me anything and I cannot contact FBI) and are the following really effective?
1) Contacting senator/congressman?
2) Requesting expedite?
3) Worst case scenario - filing Writ of Mandamus (a year after priority date)

Thank you.
 
#5
Help Needed - Please Advise

Hi,

My labor priority date is March 2005. I will be joining a new employer who has done a H1 transfer. He now tells me that he has a pre-approved labor (EB3, PD Jan 2003) that fits my profile. He also tells me that he will apply for an EB2 PERM (for me) and get the I140 approved for that. After that, he says that he will apply for my I485, using pre-approved labor’ EB3 priority date. Can this be done? Please let me know.

Thanks.
 
#6
Is it the intend of the Congress in AC21 act?

Hi Rajiv,

Your help in this forum is great. Thank you for this wonderful service. This question is not for any personal help. It is general question for all Indian/Chinese nationals to understand the AC21 law that eliminated country quota in EB catagories. I have concern over the method followed by U.S DOS in allocating immigrant visas in EB2 category for India and China inline with section 202 of Immigration and Nationality Act.

I feel that they have misunderstood the law that governs the allocation of immigrant visas to foreign states (INA section 202) particularly section INA 202 (a) (5) (A) that was included through AC21 act in 2000.

Here are some facts..

1.EB2 India cutoff date just moved 7 days in last 10 months. It stuck in Jan 2003.
2.However the EB2 visas have been "current" for all nationals other than India and China. It never retrogressed since heavy retrogressin started 2 years back. It indicates lot of unused visas availble in EB2.
3. For last 10 months EB3-All other chargable country has seen considerable movement in visa cutoff dates.

There may be something wrong with U.S.DOS in allocating visa numbers in EB2 category, as per section 202 (a) of current INA. They may be issuing only 2800 (7% of 40,000) visas to India and China in EB2 category for a fiscal year and redirecting unused EB2 numbers to EB3 category for nationals other than India and China. They may be imposing hard country cap in EB2 (Suspending AC21 law as per their VB Nov 2005).

There is a large room for this speculation, due to the pattern of cutoff date movement in EB2 category. This is just a speculation. This argument/speculation is valid if DOS has issued less than 40,000 EB2 visas in FY 2006 as mandated by the law, and issued those remaining numbers in EB2(40,000 minus actually issued in EB2) to EB3. In my view, it violates section 203 (b) (2) of the INA. One has to wait till they release statistics for FY 2006, to see how many EB2 visas are issued in that FY.

We know that, section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This section also explains how to handle unused numbers with respect to country quota.

Even before AC21 law enacted in 2000, there was no "hard" country cap as per INA then. Here is the section of INA before year 2000, describes how to allocate unused visas, if overall/total demand for FB an EB visas are less than supply*.

INA 202 (a) (3)

"Exception if additional visas available. - If because of the application of paragraph (2) with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a-Family category) and (b-Employment category) of section 203 for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter".


Therefore, the 7% country cap had always been "soft" till year 2000.

After year 2000, AC21 has completely removed country cap in each employment category, if excess visas are available in each preference categories.

After 2000 (After AC21) the following law was added to INA in the section 202.

INA 202 (a) (5) (A)

EMPLOYMENT-BASED IMMIGRANTS NOT SUBJECT TO PER COUNTRY LIMITATION IF ADDITIONAL VISAS AVAILABLE- If the total number of visas available under paragraph (1), (2), (3), (4), or (5) of section 203(b) for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation under paragraph (2) of this subsection during the remainder of the calendar quarter.



As per my simple interpretation of above AC21 rule, DOS should allocate unused visas by AOC – EB2 (All Other Courtiers - countries other than India and China in EB2 category) for the first two months of any calendar quarter to over-subscribed countries (India & China) at the third month of that calendar quarter. They should not allocate to lower Preference category (EB3), if demand is more in higher preference category (EB2) to consume all the visa numbers in that preference category. They should allocate visas to all the documentarily qualified applicants in that (EB2) preference category, irrespective of country of birth. If they followed this rule/law, there may be a considerable movement in cut-off dates for India and China in Dec 2005, Mar, June and Sep of 2006 in EB2 (last month of each calendar quarter in a fiscal year). We have not witnessed such movement in last 2 years. No one knows how DOS is allocating numbers. They may be allocating only 7% visas to India and China in EB2 category very strictly, every month, and allocating unused numbers to EB3 category, by suspending AC21 law as indicated in their Nov 2005 Visa Bulletin. If they do so, it is against the law, at least in my interpretation of AC21 rule that eliminates country quota in EB categories.

DOS can not interpret above AC21 rule that eliminates per country limit applies "totally" to all EB categories put together, not by individual preference categories. I.e. If they say they will issue more than 2,800 visas to EB2- India per year (more than 7% of 40,000), provided overall worldwide demand for EB visas are less than 140,000. If they interpret the law like this, then there is no need for section 202(a) (5) (A) due to AC21 law. The law before AC21 {i.e. section 202 (a) (3)} itself address the elimination of country quota in both FB and EB category*. Then, section 202(a) (5) (A) is a duplicate wording of section 202(a) (3). So, this section of AC21 law becomes a redundant/duplicate law.

Furthermore, if we take a close look of the section 202(a)(5)(A), it explicitly defines each preference categories exempted from country quota if excess visas are available in each category. They used "or" not "and" in the statue. Therefore overall demand will not come into the picture. If DOS interpret like this, there is no meaning of employment "preference" category if they interpret "totally or overall worldwide demand".

The following questions are bombarding my head.

"Is diversity is important that preference categories? In other words, a non-Indian/Chinese restaurant cook (EB3) is more preferred than a National Interest workers holding PhDs (EB2) from India or China?. Is it the intend of the congress when enacting AC21 law in removing per country limitation in EB category? Is it the American Competitiveness in 21st century? If diversity is important, then there is another category "green card lottery" available to all nationals in which Indians and Chinese not eligible to participate.


"My employer hired me not based on citizenship. They hired me based on their requirement for the job and my skills. They do not care, if I am male or female or Indian or Chinese or Iranian or Iraqi or Pakistani or European. I am penalized for just I am Indian not able to adjust/apply LPR even I have priority date in 2003 after a long wait for Labor certification and 140 approvals. However, if I am from other than India and China I would have got GC with in six months even if my PD in late 2006. I do not know how long it will take for me to adjust my status. If a person with a Priority Date 2007 can become LPR immediately in EB2 category even if he is from a state sponsoring terrorism (provided if his background check is cleared). However a person from India having priority date in 2003 can not become LPR and sitting in dark to hope to see the light at the end of tunnel. How fare it is? Is it not the discrimination by country of birth?"

Is my understating of law is right? Are my questions are valid? If so, What one can do in this situation?


* EB and FB categories will not mix in visa number allocation as per my understanding

Thank you for reading this lengthy post.
 
Last edited by a moderator:
#7
My Question Modified

Hello,

I will be joining a new employer who has done a H1 transfer. He now tells me that he has a pre-approved labor (EB3, PD Jan 2003) that fits my profile. He said he will use this pre-approved labor and apply for my I140. After this is approved, He also tells me that, concurrently, he will apply for an EB2 PERM LABOR(for me) and get the I140 approved for that. At this point, he will have two I140s for me. One with EB3(PD Jan 2006) and one with EB2. After that, he says that he can transfer the priority date of EB3 to EB2 and apply for my I485. Can this be done? Please let me know.

Thanks.
 

Iluvus

Registered Users (C)
#8
Section 245(i) and Visa lottery

Hi,

My question is this: For someone who is out of status in the US and they win the Visa lottery, Can they apply Section 245(i) provision to be able to Adjust their status to permanent residence?

This is assuming they already meet the requirements of 245(i) by having an approved I-130 application in 1997 b4 the 245i cut off date and they were in the US during the time the law was passed.



Second question:

I APPLIED FOR ADJUSTMENT OF STATUS AS A NURSE. I HAVE BEEN WORKING AS A NURSE BASED ON EMPLOYMENT AUTHORIZATION FROM INS HERE IN THE US. I HAVE SUBMITTED ALL DOCUMENTS RELATED TO MY NURSING QUALIFICATION BUT THE VISA SCREEN CERTIFICATE TO BE ISSUED BY CGFNS IS PENDING. I AM REQUIRED TO TAKE AND OBTAINED A SPECIFIED SCORE LEVEL ON THE TEST OF ENGLISH AS A FOREIGN LANGUAGE. I HAVE TAKEN THIS COMPUTER BASED TEST BUT HAVE NOT MET THE SCORE LEVEL. IS THERE AN ALTERNATIVE TO TAKING THE COMPUTER BASED TEST OR DO I HAVE AN OPTION OF TAKING A PERSONAL INTERVIEW TO VERIFY MY KNOWLEDGE AND MASTER OF THE ENGLISH LANGUAGE? I TOOK MY NURSING TRAINING IN NIGERIA WHICH IS ENGLISH SPEAKING AND HAVE TAKEN AND PASSED THE NURSING CERTIFICATION EXAM NCLEX HERE IN THE UNITED STATES WHICH IS OF COURSE IN ENGLISH. ALSO, THE DUE DATE FOR INS RECEIVING THE VISA SCREEN CERTIFICATE HAS PASSED, AND I HAVE ALREADY GOTTEN TWO EXTENSIONS OF THE DATE BECAUSE I HAD TO REPEAT THE TEST SINCE I HAVENT PASSED IT YET. IF INS DOES NOT RECEIVE THE VISA SCREEN CERTIFICATE ON TIME, COULD THIS BE GROUNDS FOR INS DENYING MY AOS APPLICATION?
Thanks!
 
Last edited by a moderator:

UVishwanath

Registered Users (C)
#9
Maintenance of Green Card.

Hi

Thank you for hosting this conference. Please enlighten me on steps to be taken esp reg while leaving U.S., so as not to lose Green Card. Secondly, how much time does it take normally to obtian Re Entry Permit and can it be applied more than once ?
 
#10
Post Doctoral Research Fellowship - EB1

I have a MD in Dermatology from India. I have completed all my USMLE exams including Step 3 with decent scores. Getting a residency for Dermatology in USA is extemely hard if not impossible.

I have a decent chance of securing a post-doctoral research fellowship in Dermatology from a very good university. The research is very important from their perspective and will have long reaching results if successful. I have to work there for atleast a couple of years as part of a verbal agreement. They will sponsor my H1B. I am presently on H4. I will be able to start publishing papers in American Journals after 6 to 8 months from the date of joining. I have already published a few papers in India.

Based on this background, do you think I will be able to apply for Green Card under EB-1 category (Assuming that they will let me apply for Green Card). Will I be eligible for this ? If your answer is a "tentative yes", could you please give me an overall time frame.

Your advise would be much appreciated.

Thanks.

Swapna
 

name_stuck

Registered Users (C)
#11
name check and EAD Delays

Hi Rajiv

Thanks so much for your time

1)My EAD has been pending for more than 90 days at Missouri Service Center, applied based on pending family based 485. I have not been able to get an interim EAD either at the local office , they have asked me to wait for one more week. If nothing happens in a week or two is there a legal option (through a court) to get this processed ? I really can not afford to loose my job at this point , will you be able to help in such cases please explain?

2) I filed by I-485 marriage based April 2004 in St. Louis , MO and has been stuck in name check since our successful interview in Aug 2004. me and my wife have tried everything from congressman, senator ,ombudsman, FBI (FOIPA "no results" received) to Mrs Bush and nothing has changed the pending status. I am thinking of WOM options , but in St. Louis district the judges have not ruled favourably for similar cases previously and AUSA has fought all the case(s). what are my option(s) can you help? Can i file in DC?
 

eromero

Registered Users (C)
#12
H1 portability after 6 years and 1year extension

can I (legal?) change jobs based on H1 portability?

I am on 1 year-extension after 6 years H1, same employer since 2000.
I140 approved, EB3-peru cannot apply for I485 due to retrogression
my PD is March 2003.

If the H1 poratbility is possible, can the new employer continue the existing GC application or at least redo the process but keep the I140 PD ?

thx
 

talktome

Registered Users (C)
#13
Changing Employer in 7th year !!

Hi Rajiv,

I have 2 questions:

1. My labor was filed by my current company in Feb 2004 (EB3). My labor was approved in Oct 2006. I have a 3 year Engineering Diploma + 1 yr Computer Diploma but in my ETA 750A,

Box 14: mentions Years of College Education: 4
Education Level: Bachelors

Experience required is 2 years.

Box 15: has no mention of equivalency but says experience could be gained pre or post qualification.

Attorney is confident that I -140 will get approved but I have doubts considering the fact that USCIS has been coming down heavily on 3 year degree issue.

What do you think are the chances of I-140 getting approved?

2. Fearing a I-140 denial, I started a PERM labor with another company in Sep 2006. In the mean time, I attained a BS degree with major in Computer Science from a US university. That labor was approved in 2 weeks, I guess because it mentions the US degree.

Now since this 45 days rule might come into effect. I have decided to pursue I-140 with this company.

They are suggesting that they will file an H1B for me and once they have a case number, they will file I-140 for me in Premium (EB3). Once the I-140 is approved, they will send an ammendment to USCIS to extend H1B for 3 years rather than one year. Till that happens, I can continue working with my current employer. My 7th year extension is valid till Nov 2007.

Is it possible to follow this path?

Can I have another H1B petition going in 7th year with company B when I am already working for company A on H1?

Your advice is really appreciated.

Thanks
 

tchennakesh

Registered Users (C)
#14
H4 to H1 Conversion

Hi Rajiv,

First of all I would like to thank you very much for letting all of us know some information about the immigration.

Here is my situation:

I am planning to do H1 for my wife. Currently she is on H4. I happened to hear that there are 2 ways to process the H1 for the H4 candidates.

1. H4 --> H1 Status change. That means applying for the H1 along with the status change.

2. New H1 filing. No status change at the time of application. After the approval of the H1, status change from H4 to H1 process will happen.



My Questions:

Q1: Is it true that, I can do the H1 process by any one of the above mentioned methods?

Q2:
Scenario:

If I process H1 by the method 1,

a) Let us say, I receive the receipt number by May first week.

b) She travel to India in the month of June. Since her H4 VISA on the passport got expired, she will get stamped (in the month of July) and come back to USA in the month of September.

c) NOW, Let us say her H1 got approved in the month of September only

Question: After coming back to USA after the H4 visa stamped in the month of September, What would be her staus (H4 OR H1)? Can she still work from October.

Q3:

Is it legal to file a fresh H1 when she is in USA with H4 and later amend the same from H4 to H1? If it is legal, then can she go at any time and come back without the worry of status problem.

In case if I can go ahead with fresh H1 filing, is it ok to change the status from H4 to H1 in the month of January (next year) also.
 

guyfromsg

Registered Users (C)
#15
I-94 for H-4

Is it true that Imm.officer at POE issues the I-94 with expiry date based on if the he/she is traveling alone or with the principal applicant who is on H1. My wife on H-4 traveled alone and at POE got the I-94 based on visa stamp even after showing and requesting based on extended approved 797. Officer said the I-94 in 797 can be used as the basis for legal stay in US? If this is not corrected she will be out-of-status?
 

united99

Registered Users (C)
#16
I-797 has maiden name, Passport has married name

Thanks for taking my question.

My wife recently got her H1B extended. We are planning to go to Canada to get her visa stamped. When we filed for her extension we used her maiden name. Her approval notice (I-797) came back with her maiden name. While we were waiting her extension, we stupidly changed her passport and Social security to show her married name. So now her approval notice has the MAIDEN name and the passport has the MARRIED name.

Can we go to Canada and get the H1B stamped? Or do we have to file some change of name form first and then wait till its approved before we can go to Canada?

Thanks in advance!
 

can_immig

Registered Users (C)
#17
H1 transfer after 6 yrs and approved 140 and GC process

Hi Rajeev,

Thank you very much for you time and advice on our queries. Here is my situation, please advice.

I am working for company A. My labor was filed under EB3; I have got 3 year extension ( VISA stamped) after completing 6 years on H1B as I have an approved I -140. Firm A is going to lay me off later next month ( March).


1. Can I still transfer my H1B to a new employer and if yes how long will it be granted for.

2. If I get approved on the new H1. Do I need to get VISA stamped with new employer's petition, If I travel outside the country( I already have a stamped visa with current employer which is valid thru 2009)

3. Can I maintain my priority date when I file new labor under PERM with the new employer under EB3?

4. Can I maintain my priority date when I file new labor under PERM with the new employer under EB2 (if required by Job; I have a U.S Master's degree and 8 years of experience).


What options do I have in this scenario.


Thank you for your help.
:confused:
 

pankajkandhari

Registered Users (C)
#18
Name Check Pending !! What should I do?

Hello Rajiv, Thanks for this great service. You will be blessed by many in this fourm.

I have few questions but before that a little bit of background. I am waiting for AOS as my wife is US citizen. I filed in June -06 and have my EAD and Parol approved. my interview was conducted on November 20, 2006. My I-130 was approved but officer told me that my name check is pending so I am waiting for my I-485 approval.

One thing you should know that my wife waited for her N-400 approval for 2 years. We were told that her name check is pending so we filled WOM and then got her approved.. Does that affect me in any way..

My questions are :

1) How long should I wait and Do I have any choice other than WOM? If not then - when should I file WOM? after how many days.

2) Can I study in this visa status when application is pending? Do I need to get F1 status to go back to school?

3) When my name check is performed - do they check spouse's name also? May be its again because of my wife's name check problem?

4) What is the best solution to this problem?

PS: my signature below will give all the information in timely manner
 

prman

Registered Users (C)
#19
Hello Rajiv,

I have filed my labor in EB3 category and waiting for the approval. Once it is approved can I file I140 in EB2? If not what are the options for filing I140 in EB2? I have over 10 years of experience in my field.

Thank you very much for your time.
 
Last edited by a moderator:

chetanmay

Registered Users (C)
#20
H1B Consular Processing to COS

Hi Rajiv,
I work on L1 visa which is expiring 04/2008. As I am finishing my 5yrs on L1 and unable to file I485 my employer got a H1B petition approved with consular processing. The H1B petition validity is from 10/2006 to 10/2009.

I wanted to know if I can now apply for COS instead of going abroad for stamping a H1B visa? Is there any way I can use my H1B petition approved for consular processing (not go through cap-subject again) and do a COS while working with valid L1B status in USA.
 
Status
Not open for further replies.
Top