Recording Available, January 14, 2016 Community Conference Call with Attorney Rajiv S. Khanna


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Staff member

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.

Conference Dial-in: :
Topic: General Immigration Related Questions
Start Time: 12:30PM, EST
End Time: 1:30 PM, EST
NEXT CALL DATE: January 28, 2016
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.
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Hi Rajeev,

I am in the US on H1B with approved PERM, priority date April 2015. My current H1B 6 years Visa will expire on April 2016 and employer is in the process of filing my I-140 on premium processing. My employer will file my three years H1B extension after we get the I-140 approved. My daughter is currently in India with my wife and she is on my depended H4 which will also expire on April 2015. My wife is on her own H1B with her employer. Currently she is working in India and has to move to US immediately for a new project.


1. Can my daughter travel on H4 which is against my H1B along with my wife who is on her own H1B.

2. Is there a concern on travel on H4 with validity of 4 months. My plan is to apply for my daughters H4 extension after I get my H1B extended subsequent to I-140 approval.
FAQ: Is percentage arrangement acceptable as salary (H-1 and PERM)


I had a few more questions about going through the EB-2 PERM process as a physician.

1. The physician group I'm talking with are looking to hire me on to work alongside them, and they would not actually pay me a direct salary. I would bill insurance for each patient seen, and the practice would take a certain percentage and give me the rest. Would this be allowed? Or do I have to actually receive a salary from the future employer? My understanding is that as long as the potential employer can show the ability to pay the prevailing wage via a business income tax return, that is all that is needed. Whether or not I actually get paid and how much I get paid once the green card is approved, is irrelevant, correct?

2. Once I receive the green card, would there be any reason why the employer would have to retain the services of an immigration attorney?

3. Does the salary for the position have to be listed in the ads during the PERM recruitment process?
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Hi Rajeev,

I am currently on L1B Visa (expired Dec 2014) with I-94 valid until 30-Sept-2016 through Employer-A. My current has initiated the Greencard processing in EB2 category, I-140 filed in Nov 15 awaiting decision.

  • PERM was approved but attorney did not get the DOL PERM approval letter in post and hence filed in normal processing. Can it be changed to premium? If yes, what the process.
  • If I change my employer after my I-140 is approved, can the new employer initiate Greencard and maintain my priority date of Feb-2015.
  • If I change the employer now with PERM approved but I-140 not filed, can I maintain my priority date with new employer with PERM approval notice
  • If I continue on L1B until 30-Sept-2015, return back to India and continue working with current Employer-A. What are my options? Will my Greencard process continue while I am in India? If yes, then when the EB2 Date of Filing is Feb-2015 (i.e. my PERM filing date), can my company file for EAD from India and can I travel to US based on EAD without needing visa?
  • Based on I-140 approval can I get extension beyond 5 years if I continue on L1B i.e. similar to H1B visa holder filing extension beyond 6 years?

Can my current Employer-A file for changing the status from L1B to L1A while I am in US before 30-Sept-2015 or would you recommend going back to India and file L1A through stamping process?

Thank in advance for your help and guidance.

Rajeev S
Naturalization (citizenship) after lengthy stay abroad

Hi, Need advice on best time to apply for citizenship:
-Received GC (company sponsored - EB1 category) - May 4th 2009
- Moved to India (parent cancer situation): Feb 4 2010
- Did not apply for advance payroll since was not certain about health issues.
- Visited US Jan 2011 for 20 days
- Health situation got worse there on (so no more travel to US)
- Moved back to US on Oct 17 2012
- Immigration officer at primary check point emphasized that i should have taken re-entry permit however let me in US without any action. It was all verbal communication.
- Since then have visited India twice for 2-3 weeks each trip. Rest all days have been in US
- Have been filling taxes in US since 2007 every year

Please advice how should I approach my citizenship. Would you be available to formally take my case for your professional services.
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FAQ: H-1 6 years expiring, options
Hi Rajeev,

I am on H1 Visa.My 6th year is going to complete on SEP 2016.My employer has file for my labor just in DEC 2015.If i don't received my labor approval until my visa got expired i need to leave the USA and go to India for 2 month and 15 days to complete my 365 days.
So i have the the following questions.
1- Can i go to F1 status instead of going to India?
2-if i go on F1 Status can i come back on H1 status after my 2 months and 15 days cycle to complete 365 days(As i can get extension for H1 visa on my Labor approval Pending or I have to wait for new April Quota to file my H1 as i have completed my 6 years of H1 and convert to F1 status and again want to come back to H1 status.
Or Is it good to go back to India and come back after 2 months and 15 days on Labor approval pending.Is there any problem with the stamping as my Labor is in pending?
And how easy to get H1 Approval as i am in India?

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FAQ: H-1 Cap exemption, visa stamped, but never worked

Hello Rajiv,
My H1B petition got selected in 2013 lottery, I have 2014 H1B visa stamp which expired last month, I have never traveled using this visa, petitioner Company(A) revoked this H1B petition as I didn’t join them, I don’t have any pay stubs from this Company(A) as I have never worked for them at any point of time. I am currently in USA on L1 with another Company(B) for last 18 months, EB2 PERM filed, awaiting PERM approval.

1) Can some other Company(C) use (or transfer) this H1B/Petition to employ me in USA?
2) Will I be CAP exempted?

Please guide me in this regard.

Thank you !
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Hi Rajiv,

I have a slightly complicated case and need a two line advise from you.

1)I started working for employer A from Aug 2013, Employer A started my GC process in Feb 2014 and perm submitted in Sep 2014.
2)I left employer A in Nov 2014 and joined employer B.
3)Employer A Perm got approved in Feb 2015 and he was willing to continue my GC process, so that I can join him. Employer A and I had good intentions of joining back once I-140 is approved.
4)Employer A submitted I-140 in July 2015 and it got approved in Dec 2015.

My Questions

1)Will there be any future problems if I go back and join employer A and continue my GC process.

2)In case I don't join employer A, Can my Employer B use the Approved I-140 to carry forward my priority date?

3)Can I apply H4 EAD for my wife with approved I 140 from employer A.

4)With the new I-140 portability rule, can I port my employer A approved I-140 to employer B.(I work on same technology at both employers)

I know my case is complicated and need to discussed with immigration lawyer, I am just looking for small advice on these questions.
FAQ: Can I apply for H-4 visa if H-1 visa is rejected; can I convert from H-4 to H-1

Hi Rajivji

I am on H1b with Approved i140 with Employer A. my wife is also on H1b. I am planning to go to H1 Visa Stamping to Hyd next month.

In case my if my H1 visa stamping is rejected at the US Consulate in India.
1) Can i come back to US on h4 visa as my wife is working on H1b.
2)Once i come back to US on H4. If new employer B is ready to sponsor H1, can i convert from H4 to H1b. At that point am I considered as CAP exempt for H1b as my i140 was approved with my first H1b ? .
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hello rajivji,
I am in 5th year of H1b and my wife is also on H1b with approved i140. As i am close to 6th year of H1b I would like to move to h4 EAD using my wife's h1b and approved i140.

1. After converting to H4 EAD, Say my employer starts GC process and i got my PERM and i140 approved by end of DEC 2016.

2.As my perm and i140 are approved when i am on H4 EAD. Can we make use of such i140 to extend my h1 beyond 6th year.

3. Would you advice me to stay on h1b instead of converting to h4 , as my employer is going to start gc process .

4. Would u explain how the i140 approval is tied to h1 extension beyond 6th year
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Hello Rajivji

Recently we came to know that my mom can apply for Portuguese citizenship since she was born in Goa, India in the year 1961, I called the the embassy of Portuguese in washington i was informed that my complete family can get the Portuguese citizenship.

1) My dad is on H-1 visa with I-140 approved and the priority date is oct 2012 on eb2 category can he transfer the H-1 visa to the new Portuguese passport and what will be his priority date? I am assuming that it will be current as per the visa bulletin, Do u suggest us to get the Portuguese citizenship which can help us getting the green card soon vs waiting on Indian priority date??

2) What will be the fees to be paid at USCIS for transferring H1 visa from Indian Passport to Portuguese passport includes my dad, my mom (h4 visa) and younger brother (h4 visa).

Again you have been very helpfull always to the immigrant community for completing our American Dream journey.
Hi Rajiv,

I got my H1B petition approved from Company A and after approval there is no H1 requirement in company A .So I transferred my petition to company B and it is approved now.

Now company A has onshore requirement and they are processing my petition for stamping. is there any chance my company A know that I transferred to company B and any problem in visa stamping for company A. I am interested to work with company A. Please advise.
Hello Rajiv Jee,
I hope you are doing great. I have two questions that I would like have your expert opinion on.
  1. I have I-140 approved with my previous company (not revoked, Priority date Aug 2012, EB3) which I left soon after my I-140 approval in March 2013. Now I am in my 5th yr of H1b visa and my current employer is starting on PERM process from Jan 2016. So my question is with new changes if I don’t get I-140 approval with my current employer, Can I use the previous I-140 approval to extend my H1b visa beyond 6 yrs.
  2. If the things with current employer don’t work out and I decides to return back to my previous employer to the same position, Do I need to restart everything beginning. If NO, then In that case how these new I-140 EAD rulings can help me with my situation?
I really appreciate your help and effort.
Hi Rajiv

I moved to US Dec 2015 with family on H1B from India Got H1B approved for only 1 Yr with I 94 valid till Sep 2016 (As I have completed 5 YRs on L1B during previous stay)
I have question regarding my wife who is on H4 status currently as she is having H1B approved petition filed during 2015. What is the best route for my wife to start working as she is not having any job offer currently :-

A) Apply COS first get it approved and next apply for H1B amendment by getting a new job offer.
- How long this whole procedure takes to complete.
- Is there Premium Processing available for COS and is it advisable to go for PP.
- What would be the approx cost for whole process to the company. OR second approach

B) I get my GC initiated through different employer and get my I 140 approved before my Visa expires in Sep 2016 and get extension on my I94 and later apply for H4 EAD for my wife. How feasible is this approach?
- What are the challenges that could possibly come up in both the scenarios?
- What would be her I 94 validity in case of either approaches?
Hi Rajiv Sir

I am in last year of my H1B validity with 11 month pending for my I94 expiration. And am planning to apply for GC through Company B on a future employment basis as my present employer is not ready to file my GC.
- Is this legal to change employer in the last moment , will it affect my GC processing in any manner?
- Also if my I 140 is approved how many years of extension will i receive?
- Will it require any H1B amendment as there would be a change in employer? When should this process be initiated? As i don't want to start working for company B till my I 140 is approved.
- As my spouse is on H1 B status with I 94 valid till 2018, if there is any delay in getting my I 140 approved prior to my I 94 expiration can i still continue to stay legally in USA on H4 status and once my I 140 is approved will i be able to do a COS to H1B again and start working?
- how soon should i shift to H4 Status if my I 140 is getting delayed?
- Will my current employer come to know if i apply for GC through company B.

Thanks for your help you are providing through these community services.
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Hello Rajiv ji

Currently on EAD and in AP status since 2012 and AOS is pending
since 2007 ( priority date April 2005 under EB3 category ). In 2012 my wife
who as also on AP [ being a dependent beneficiary ] had to leave USA to take
care of my ailing grandparent in India resulting in lapse of AP status as she could not come back to renew it
before the current one expired. I have two kids who are US citizens who are
staying in India as well because of this situation.

Its my understanding that the only way she can come back is - to go thorough
consular processing AFTER i get my green card in hand ( which is potentially
at least couple more years away given the movement of EB3 India visa bulletin
dates ).

1.) Can we request USCIS under any available appeal options to renew the AP ?

2.) Is she allowed to visit on visitor status until the time my green card is
approved ?

Your insight is deeply appreciated.

Rajivji - thank you very much for the service you provide to the community. I have a detailed question below and am happy to consult privately with your firm but thought I would put it out there in the forum as well for high level answers.

Immigration status: currently in 7th year of H1B, EB2 petition, I140 approved with priority date November 2014 (> 180 days).

Question 1: Job title change
Employer (Company A) is rolling out project manager designation and corresponding career path. Currently employed in engineer designation that encompasses project manager duties as well. Same job description as in petition for permanent residency and H1B can be used for current role in the manner it is performed right now.
Since my job duty is more aligned with project manager track, would the change in title from engineer to project manager trigger an H1B amendment?
Would this same change in job title require a new labor/PERM process? If not, what is the impact of title change, if any, on green card process and what are the steps, if any, that would need to be taken?

Question 2: Job duty change
The project manager track and role can be expanded from current job duties to include additional job duties.
How is percent change in job duties (eg. greater or less than 50%) determined? Based on number of new bullet items job duty list, number of distinct duties (some are trivial, some not)?
What is the threshold in job duty change (% change or other criteria) that would trigger an H1B amendment? Similarly, what is the threshold in job duty change for new labor/PERM?

Question 3: Promotions
Job duties of current role were written to be broad enough to cover duties of next level up. Similar to question 1, if job title changes from engineer to, say, senior engineer, (or project manager to senior project manager) would this change in title but no change in job duties (just higher salary) trigger either an H1B amendment or trigger a new labor/PERM?

Suppose qualifications submitted in job description for Labor/PERM for senior engineer (or project manager) is Masters degree + 5 years and what is required for senior engineer (or senior project manager) is Masters degree + 10 years, would it be possible to use the experience gained at the current employer (company A) for the senior level position?
If not, under what circumstances can I use the experience gained at the current employer to meet qualifying criteria for the senior level position? I read somewhere that if there is a change of greater than 50% in job duties, that would allow for utilization of experience gained at Company A for promotion within company A, with the condition that it may trigger H1B amendment and new labor/PERM and employer is ok with that? Is that true?

Question 4: RIN 1615-AC05
Does the proposed regulation how it reads in it's current draft form allow promotions in same-similar category prior to I485 + 180 days without need for H1B amendment or new Labor/PERM? When I read the draft, I did not see any benefit for internal promotions prior to I485 + 180 days.

Thank you,
I-485 RFE related to updated G325A form

Dear Rajiv Sir,

Thanks for providing such a great community service !!
I have a quick question related to form G325A in response to I485 RFE.

My RFE says send -
"Please submit a properly completed form G325A with your original signature"

To respond to this RFE, should I send just one completed form with original signature OR also make 4 copies of same filled and signed form G325A and send all of them??
Hi Rajiv Sir,

I have asked this question before and you were going to look into it. Please help me if you have figure it out. I am on my 2nd H1B extension (valid till 7-1-18) after first one was approved for 2 yrs. I have started my GC process and have filed the PERM. Once PERM is approved, can I file I-140 & I-485 concurrently? Can I use my wife’s country of birth (Panama), who is under DACA status right now, but facing 10 years bar which is getting over in May 2018? I have read online forums where it says that both person should be able to adjust their status at the same time, is it true? Also, is there a way that I can atleast file I-140 and I-485 using her country of birth or not? I will appreciate your response on the same.

Thank You,


Can a sworn affidavit for date of birth be signed by a person in a language other than english even if the content is in english?
Also, can a sworn affidavit for date of birth be signed by an older sibling who is only 4 years older than the beneficiary?