Recorded answers available for May3 Conf. Call - "Getting F-1 while GC is pending"

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Transitioning from H1B to F1 and back


First of all thanks for this wonderful opportunity to ask questions on this topic! Here's my situation:

I've been on H1B since Sep 2001 and I've got my labor certification approved as part of the green card process. I haven't yet filed my I-140. My latest H1B renewal has got me an extension until Sep 2008 (the visa stamp on my passport is expired since I haven't been to India in a couple of years but my H1B status is current).

I'm planning to abort my green card process and join a b-school in US starting Sep 2007.

I have two questions:
1) Is there anything I need to be careful about when applying for an F1 visa?

2) Once I finish school in May 2009 I believe I can work on an OPT for an year. After that can I still utilize my one year of unused H1B (Sep 2007 - Sep 2008)? If not what are my options to continue working after my OPT? Can I file for my green card while on OPT?

Thanks once again for taking time to answer these questions.




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2 year agreement with Employer - possible to invoke AC21

Hi Rajiv,

My question is not related to the subject of this forum but I have a question about AC21 on EAD.

Changed to present Employer to use Sub labor in April 2006. Offer letter stated that I have to work with them for two years i.e, April 2008 otherwise I have to pay money. I -140 approved, 485 is in the process. Got EAD 6 months back. Now I am getting full time opportunity at Client, so can I invoke AC21? What happens to the clause saying "have to pay money if I brake two year term" with present Employer?

Thanks in Advance.

RFE - I-140 for past employment experience

Hi Rajiv,
My question is not related to this topic, but thought of posting it for some guidance.
I received a RFE in I-140 for previous employer experience letter. The company does not exist anymore and I don’t have any contact with any of my ex-collogues. What should I do in this case?

Thanks in advance,

asma unnisa

Registered Users (C)
Hello Rajiv,

I join today in your column. Its good to know you are helping lots of people like me. I have just started the consultancy business in hyderabad, my brother friend is having a head office in USA. this year we have sponscer people for H1B as you know this year US consulates got 2 lakhs of applications and there announced for randomenly selction. so, what i have decided is if i get back my candidates applications back i will process for canada. but i dont have any support in canada but ready to fly.

what shall i do when i land to canada?
Or shall i tie up with any consultancy before i land there?
If yes where i get consultancy list ?
I have 25 people applications in my hand there all belongs to IT Industry?
How to place them in canada?

Please help me out with this quires. I dont to be failure in my Business.


Registered Users (C)
Thanks for your service!
Myself and my spouse are in EAD and my Greencard is struck in Namecheck from past one year and no hopes of getting GC soon. My wife wants to do Full time Higher studieslike MBA or MS. Can she join on EAD ,she dont want to change the status to student visa as it will jeopardize the Greencard. What option are left.
Question for Mr. Rajiv

Hi Mr. Rajiv: My question is not related to the topic but i really really need some guidance here.....

My wife is a Nurse and hers and mine Green card application was filed on Oct 2nd, 2006. The visa numbers were available at that time for Shcedule A...

She got her I 140 approved in Nov with work permit etc and an A number assigned to her..... We have received and RFE on her 485 in March 07 for her visa screening certificate which have sent back and USCIS has receieved it on March 27th...

My Question is: Do we get the green card through her though the visa numbers are not available anymore OR it does not matter as the numbers were available when the filing was done especially they issued an RFE for 485 recently.....

On the other side: my employer had filed for my i 140 in EB3 category and i have PD of May 2003, which recently became current.... My i 140 was approved in 2003 too... MY lawyer is suggesting not to file 485 on my case at this time as my wife SHOULD be able to get the green card within couple of months....

I am confused, please guide me.... Thanks


Registered Users (C)
Hi,My question is not related to the topic. If you are not considering other topics then its fine. Anyways thanks for your service.

I got a RFE for my medicals. I sent TB X-ray test results which shows negative and sent the same with my I-485.Now i got RFE for TB Skin test.I did it last week and its showing positive and doctor told that its in inactive state and i should take medicine . but i am not sure how exactly i should reply to USCIS.If i send the same result then are there any chances of denying greencard just for have TB skin test to be positive.

I am very much worried


Registered Users (C)
Hello Rajiv.

My question is not relevant to the topic, but if you could take the time to answer it in the conf. call, I'd appreciate it.

I am not clear about the processing times of a PERM application by DOL. I've heard from different people that a PERM case could take anywhere between a day to six months or even more for a final response. DO we know why such a variation in the processing times? Does DOL provide any visibility around this area? If there is no audit/RFE, what have you seen in regards to processing times for an EB2 case at Chicago office? Is there any way to find out more details about the status of the case because the DOL online system have got broad categories like "In Process", "Denied" or "Certified". And last, what do they generally ask for when there is an audit/RFE by DOL?

Immigration Status


My parents are green card holders, but the last time they were in the US was in December 2003 when they had to leave due to some medical urgency in the family. They have not been back to the US since then, but would like to come here again. I know that generally you cannot leave the US for more than 6 months at a stretch to maintain your green-card, but I also know that this is not a strict rule - it depends on the immigration officer at the airport as far as I know. Is this correct? How do we make sure that they can come to the US and still maintain their green-cards?

Please advice.

Appreciate your service to the community !

I have a approved I-140 for EB3 and my Labor was approved under EB2(4 Years Degree & 5 Years

Experience) and my priority date is April 2003.

My questions are

1> Can i apply for EB2 even though i do not have full five years of experience( I am short of

two Months for five years) but based on the Num of hours b'coz i have worked for more than

40 hrs/week if we can apply based on the hrs is there any specific code to be documented

for this purpose.

2> I have 4yrs & 10 months before joining the Sponsoring company but i do have more than five

years by the time i applied for labor can we count the experience from the sponsoring

company for my five years experience.

3> Based on your experince What are the chances of getting approval for EB2 based on the

hours of work.

4> If I-140 for EB2 is denied based on the experience grounds, can i still use my approved

I-140 for EB3 for further process.

I was trying to move from EB3 to EB2 b'coz of the retrogess dates for EB categories.

Thanks a Lot for you Help Rajiv !



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h1 extension

Hello Sir.

I have some questions. My 9th year extension is filed via VSC to CSC. I live in TExas. it is now more the 3 months, I have not seen any update on my case. I also have a DWI in Texas from 2000. I got 18 monts probation which was probated sentence. Max time is 6 months in prison. Last year my H1 was denied, the only explanation I got was I have criminal record which makes me inadmissible in US. I filed MTR and my H1 was approved. However, I290b which was filed and I think its is knows as MTR. My MTR was 290B. On uscis website, it still shows as pending. I have letter form TSC stating that denail was in error and that my H1 be approved. After that my I140 also got approved. I understand that USCIS performs background checks on H1 extensions as well. IS DWI with not aggrevating factors considered to be a CIMT. I have heard and read that it is not.

Now I am concerned that my 9th year H1 will face the same fate as it did last year. Any ideas sir. Appreciate your hlep.
Hello Rajiv.

My question is not relevant to the topic, but if you could take the time to answer it in the conf. call, I'd appreciate it.
I have qn on number of yrs of experience counts from I-140/I-485 filing day or the day labor was approved.
I just joined a new company and my employer offered me a pre apporved labor under EB3 with Priority Date of Jan 2004 and as per the labour condition, it requires 6 years of experience. Now my question is, whether this 6 years of experience needed prior to Jan 2004 ( which is labor approved date) or as of today when I file the I-140?

I have another qn...I am having a bachelor's degree in computer science and total 6 yrs of IT experince, Am I eligible for EB2? Generally what are the minimum criteria for EB2?

Any guidance would be appreciated....Thanks in advance


Registered Users (C)
Job change and EB3 to EB2

Hi Rajiv,

Thanks a lot for hosting this conference call for people like me in need of some serious guidance. My question is not related to the topic but I really need some help.

My labor was approved in June-06 and 140 –EB3 was approved in March-2007 and currently in 8th yr. of H1B extension. I am planning to apply for the 3 yr. H1 extension with current company soon. My priority date is Oct-04 (EB3).

I will receive my Bachelor’s degree in Aug. 2007 and I have 7 years of IT experience already in US and another 6 years in India.

• Can I switch employer based on 140 approval and once I receive 3 yr. h1 extn. with current employer.
• Since I will get my B.S in Aug. 07 can I file my green card in EB2 with new company based on BS + exp. (above 7 yrs. in US).
• Can I port the priority date of old 140 (EB3) from previous company to new 140 (EB2) with new company as the qualification for job will change and some of the job description as well. My job title will change from “programmer analyst” to “data storage administrator.”
• Can my experience prior to receiving the Bachelor’s degree be counted to file in EB2 category.
• I have asked my employer for a copy of my labor and 140 approval and he always answers back saying that it is a company document and its against the company policy so he cannot give me a copy. What should I do in this case?

I need to change my job as soon as possible and so look forward to your guidance.

Thanks a lot.
OPT Application when currently holding F1 and fulltime job under CPT

First of all I would like to thank you Rajiv for this advising service. I am a student currently on F1 which will expire end of August 2007. I am currently working as a full time employee and enrolled as a full time student under special CPT arrangements. I have to apply for OPT and wanted your advice on the right time to request my OPT start date. My concern is that H1 status begins in Oct 2008 and should I begin right from September, it would mean that I will have a month between the end of OPT and beginning of H1. What is your advice and how should I go about it.(apply OPT to begin a month after September and not work for a month or is there another option?)



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Hi Rajiv,

The company is filing the H1 extention for me (not the GC OR immigration for me) but my mother has already filled the Immigration petition for me I-130, F1family based category(unmarried child of USC). Priority datas not current so No question of CP OR AOS.

For the H1 extension form template created by company has following 2 questions:

1. Are you, or any other person included in this application, an applicant for an immigrant visa or adjustment of status to permanent residence?

2. Was an immigrant petition ever filled for you, or for any other person included in this application?

Below is my understanding and answer please suggest if anything is wrong?
So I think the answer of the question 1 should be NO as I for my Family based F1 category the priority dates are not current.

The answer of the question 2 should be Yes as my mother has filed the immigration petition for me.

Is my under standing correct?
Also which form is used for the H1 Extension?
Is there any question in an H1 Extension form which requires me to answer such kind of questions?
what are they?
elimination of labor substitution-conflicting info for pending cases

Hello Rajiv,

Though this question is not related to the topic mentioned, your guidance is the need of hour in my case.

I filed for substitution for a pending labor at BEC 2 weeks back and have a Fedex confirmation that it has been recieved by DOL. With OMB approving the elimination of labor substitution on 4/27/2007, I have the following questions

a) Will my labor be affected by this rule?
b) Is there any kind of procedure followed by DOL called "substitution approval" or would the receipt of substitution application suffice for the further official labor approval at BEC?



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H4-f1 Conversion..

Hello Rajiv,

My wife is currently attending school on H4 visa and is planning to change her status to F-1 to get OPT. My company has filed for my greencard (EB2,Priority date 12/2006, Indian national). My labor cert has been approved and my I-140 is being processed.

My questions are:

1. If my EB2 priority date becomes current when my wife is on F1/OPT, can she apply for I-485 along with me without changing her status or does she need to be on H4/H1-B to apply for I-485?
2. Is it common for people to convert from (H4 to F1 to OPT to H1B/H4 ) or would you see any issues because she would change status multiple times?
3. Since F-1 visa holders aren't supposed to have immigration intent, would you see any issues with her greencard processing or visa stamping at the consulates?

Thanks a lot for your help.


Registered Users (C)
I am on H1 in US. The Petition and LCA (for boston location)used at the time of interview (Both of them) had Job Title Program 1. After getting visa and before coming to US I received a new LCA form my company specifying new location (LA) and Job title as Programmer 2 (with this I also got another letter from company specifying that "No change in my duties/work" but this letter also has the job title Programmer 2) . Then I came to LA as per new LCA

So I got visa on the bases of the Job Title Programmer I and then I entered using another LCA which has the Job title Programmer 2. Is this violation of anything?

For the above details do you thing that I have violated any rules/status and because of that I may have to face any problem in my H1 Extension OR AOS(AOS for my family based F1 category, i.e. AOS not through company)?


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Adjusting status

I am filing to adjust my status. I recently married a US citizen. I applied to a university mean time. I want to know while my application is pending, since I am awaiting for my approval from both the university and the US immigration officials. If i get accpeted to school, How would i be able to attend the university without leaving the US? (I understand that when an I-20 gets issued you need to leave the US to get the f-1 visa.)
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