Recording Available, May 19, 2016 Community Conference Call with Attorney Rajiv S. Khanna

[DEEPAMENON]

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
NEXT CALL DATE: June 02 , 2016
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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.

 

[Cora]

FAQ: Changing back to F-1 student status after filing for green card

Hi Rajiv,

I was a student on F-1 (MS), and I got my H-1B two years ago. My company has started GC process and already got my I-140 approved. But I want to go back to school this fall (law school), which means I'll have to change my status back to F-1 again. I know there are two ways of doing this. Change of status (COS) or go back to my home country and apply for an F-1 stamp.

I searched online, and people with similar condition are extremely worried about being rejected by VO, since I-140 shows immigration intention. Is this true that I'll very likely get rejected if I go back to my home country and apply F-1 visa at the consulate? What if I ask my company to revoke the I-140? Anything else should I do? I do want to go back before school starts...

Thank you very much!

Cora

 

[NKGokana]

FAQ: I-94 given for duration shorter than entitled

Hello Rajivji,

On DEC 18th 2015 I came back to USA on H4, at that time my old passport was expiring on September 19th 2015 so the Immigration Officer approved my I-94 until September 19.
Later i applied for H1 and it got approved on Feb 2nd 2016 and My H1 is valid until Ending Validity Date: 12/19/18 with I-94 number in it.
I renewed my passport now and i have validity until 2026.
Question: Do i have go for stamping again to extend my I 94 validity? Or since i got new I 94 with my H1b is that good enough.
Please let me know the details.

Thanks,
NkGokana

 

[Amber Hassan]

Rajivji,

My father came to the US on a GC in 2007. He applied for his unmarried daughter over 21 years of age and left USA. Due to family circumstances he was unable to get back to the USA and the 6 month/1 year limit was expired for entry. I am USC and I applied again 2 years back for him to get the GC again. He has the visa now and will be entering the USA in a few weeks. The petition that he had filed with the first GC in 2007 for his daughter a status email has been sent to him to send in documentation for the further processing of the daughters case. The question is should he proceed with sending USCIS the documents for his daughters case as it is based on his old GC? Is this legal and allowed? He will get a new GC in a few weeks or does he attach both GCs to the case documentation so USCIS knows? Please advise. This daughter is also waiting for a petition that I filed as a sibling in 2012.

Thanks,
Amber

 

[svmsrocks123]

H-1B amendment when change of cities or changing project

Hello Rajiv Ji
I have a pending 485 EB-2 ROW. USCIS receipt date march 2016. I received EAD/AP card last week. My company have offices in Missouri and Indiana. I am working out of Missouri office and now want to use ead to shift to Indiana office. I am NOT changing employer. However its advisable to maintain the H1B status till I485 processing is over. My question is if I want to shift to Indiana office do I need to do h1 amendment or can shift on ead? Will my current h1 valid till 2018 will still hold even if I switch location without amendment on ead or will it nullify?

 

[Deepthi Kandukuri]

Hi Rajiv,
I am currently on H1b valid till Oct 2017 for company A and still have 3 yrs left on H1. My I 140 is approved and planning to apply for H4 EAD for my spouse soon. I got a job offer with university and are willing to sponsor my H1b and Green Card. But university can start my green card process one year after joining. I am not sure whether my current employer holds I 140 or revokes. My status wont be affected I guess but the main concern is about H4 EAD. So my questions are:
1. How long does it take employer to revoke I 140? Do you recommend to wait until H4 EAD is approved and then change employer?
2. Can I port I 140 to new employer (university)?
3. If company A revokes my I 140 then should I have an approved I 140 with new employer till end of 6 years on H1b ?
Thanks! Deepthi

 

[b.sundar]

Dear Rajiv

I will be getting my I140 in about a month. If I switch employers and refile for my PERM will I be able to port the priority date ?

 

[abhinav1982]

Impact of traveling while H-1 extension is pending

My current H-1B is valid till Sept 2016 and I got a new employment offer from another company.The new employer is going file the H-1B transfer in July month and on the same month I am traveling to India also.
So suppose my H-1B transfer filled on July 15th and I am planning to travel on July 20th and come back within 3 weeks while H-1b transfer still in pending status with USCIS.
Can I travel while my H-1B transfer is pending?

While H-1B transfer ,it asks the last entry/exit details in the country,Is it fine if I give my last entry/exit details but when traveling back the last entry/exit details will get changed,while H-1b transfer is still in pending status?

 

[hemagiyer]

FAQ: Birth certificate non-availability, affidavit

Hi Rajiv,
I have two questions regarding my father's GC. My sister is an US citizen and she has applied for my father's GC (consular processing). My questions are:

1) She has received an RFE asking for my father's birth certificate. My father's birth was not registered (he is 78 years old). We are trying to get his BC/NABC from his place of birth but this seems to be an uphill task. In the absence of his BC/NABC, what options do we have? We have an affidavit from his cousin who is slightly older to him and a couple of other secondary evidence such as school leaving certificate. Will this suffice? We need guidance.

2) The whole process in our case has taken over 1.5 years (some delay at our end too). If he applies for a tourist visa, what are the chances that he will / will not get it. He had a 10 years multiople entry tourist visa until 2014

Thank you for your help.
Hema

 

[Shibz]

FAQ: Changing jobs after I-140 approval

Hi Rajiv,

Thanks for opening this forum and help us with your suggestions.

I have few questiosn and need your advise on the same to shape my career.I have PERM approved and I-140 filed in regular processing by my current employer "A". I have got an opportunity from employer "B" and then told they will process my GC as fresh application. I have 17 months left on my H1B visa.

1. In pending approval of I-140. will i get the extension of 3 yrs from USCIS when employer "B" initiate the transfer ? OR Will i get the H1B transfer extension till max out ?
2. Is it recommendable to switch now in between of pending approval process of I-140?
3. Will leaving in between of pending process impact me in future when employer "B" files my GC once again ?

Please help me

 

[Saji_chs]

FAQ: STEM OPT extension for consulting or staffing companies

Hi Rajiv,

I did my Masters in Engineering field in US & I am on 12 months opt now which ends by June 2016.

My question is on STEM OPT (24 months).

Can I apply for STEM OPT, if I work for a E-Verified staffing agency (similar to Aerotek, Kelly services) on contract basis that is related to my STEM field of education at a client location ?. (I along with staffing agency will fill out I983 form)

I read online that USCIS has regulated "Certain Types of Employment" for STEM OPT in this new rule. So am worried that working for a staffing company at a client company location is therefore invalid :/ ((If so, I think then all the staffing companies would suffer as well))

I have attached hereby the snippet from Federal Register:

""""""There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03)."""""

It would be really helpful if you could explain what the above paragraph means.

I can still fill out all the documents, I983 training plan etc & submit it. But I will never know untill the last moment, when USCIS rejects the STEM application because of working through a staffing.

So any insights now will be helpful so I can look for new direct full time employment.

Thank you for your time!

 

[prodigy7035]

Hi Rajivji,
I was on a academic H1b visa till end of March 2016 (only 1 year of H1b used). Since I could not find a sponsor immediately, I filed for EB1A concurrently (I 140, I 485, I 765 and I 131 simultaneously) before H1b expired and currently waiting for EAD, (finger prints done). I have now 2 job offers, one from the same university for which I was working till recently (this University has a prevailing wage determination step from DOL before sponsoring H1b, which could take upto 3 months) and a different university, both hiring departments are ready to sponsor H1b by paying premium fee ( so H1b approval it self wont take more than 2 weeks after LCA approval), also I have the option of joining either of them with EAD.

Is it better for me to wait for the H1b to be approved and join on H1b, rather than using EAD ( ASSUMING if for any reason my I 140 and I 485 are not approved). Also if I take the risk and Join the job on EAD, Is it possible to change to H1b status after being in EAD status ( in case my concurrently filed I 140 and I 485 are denied). If yes, can this done here in US or do I need consular processing to change to H1b.

Also another scenario, if I wait for my H1b approval and do not take up the job on my EAD, but my wife ( who applied for I 485,I 765 and I 131 as my dependent) would use her EAD to start a job, will it mean I am also using EAD status even if I am not using my own EAD to start job.

Also if I am getting H1b visa, and apply for h4 visa for my wife, the fact that my wife is using her EAD, will it invalidate her H4 status. If my I 140 and I 485 are denied, can her h4 status be still valid or does she need to re-enter US with a H4 stamp, if both of us have not traveled on AP.

 

[Nitya Ginjupalli]

Hi Rajiv Sir,

I came to US on F1 visa,my husband came as a dependent to me on F2 VISA. I got my H1B approved in October 2015,he applied for H1 in 2015 but it did not get picked in lottery.

Unfortunately, due to lack of information and knowledge about changing the status of my husband to H4 along with my H1 application ,I let him continue on F2 while I am on H1. He is continuing still on F2 since October 2015 and went out of status. I even have a two month old baby now , which further complicated my issue. Please, advise me of all the possible ways to get my husband's status to H4 .

Thanks and Regards!

 

[panky111]

Hi Rajiv Sir,
Company A applied for H1B visa for me while I was in India. Petition got approved and me and my family (spouse+2 kids) all got visa stamped which is valid till July 2017. I traveled to US alone (as kids schooling was on) in May 2015 and was given I-94 up to passport expiry i.e. Jun 2016.
In Nov 2015, I transferred my H1B to Company B and is still under process. Meanwhile Company A revoked my approved petition. So presently I have receipt notice and pay stubs from Company B.
In such situation can my family travel ,based on their valid H4 stamping (from old employer- Co.A) , receipt notice of my H1B transfer, my recent paystubs (Co. B) and my employment verification? Please advice (we dont have any approved petition as of now due to transfer pending)
Also I renewed my passport and sent new passport details to USCIS (Mar2016), however the online status of my case is not updated. If I update my case to premium, will USCIS will consider my new passport for petition and I-94 validity OR will they give with old passport validity (Jun2016). Please advice on this too..

Appreciate your advice.

 

[Lakshmanacharyulu]

Hi Rajiv Ji
My daughter's H1B was picked up last month. Subsequent process and approval are awaited. Meantime her OPT expired in first week of May. In this situation, can she continue her work? Will the Cap Gap applies in this situation. What happens to her driving licence. What would be her status. Has she to take any steps? Any letter is required to be sent to her college (regarding I20 etc.) / Immigration office etc? Pl guide

Thanks and regards
Lakshmanacharyulu

 

[Rseth]

FAQ: Effect of divorce on an employment-based case and cross-chargeability

Hi Rajiv ,

I got married in May last year and my wife was born in Malaysia . I was on h1b with i-140 approved then and learnt about cross chargeiablity and filed for green card in june , we both got our green card in October.

Things are not going well with marriage and my wife moved to NY and she is thinking of getting divorce . If divorce does happen does this affect mine or her green card?

Thanks

 

[Jerrica]

FAQ: Transferring H-1 subject to cap, cap-gap extension

Hi Rajiv,

I’m currently in the US on an F-1 student visa. I’ll be graduating in September this year.

I already have a full time job offer and my employer applied for an H1B for me this year. I got picked for the H1B visa in the 2016 lottery (Non-AD/Regular Processing) and am waiting for my petition to get approved.

Question 1: Recently, I got another job offer from a bigger company with better pay. So I want to take that up. I’m wondering if I can get my H1B transferred to the new employer before approval.

However, if I need to wait for the H1B approval first before initiating a transfer, I want to know if I can get it transferred right away (as soon as I get the approval) or whether the first employer needs to run a certain number of payrolls before I can get the H1B transferred to the new employer.

I basically just want to know how soon I can transfer the visa to the new employer.

Question 2: I’ll be graduating in September 2016. There might be a bit of a gap between my graduation date and the start date of my H1B. I’m not sure how I should handle this “in-between” period between my graduation date and the start date of my H1B. Do I need to file for OPT or do I need to request a cap-gap extension? If I request for a cap-gap extension and then my H1B does not get approved, what happens then? Also, how do I file a cap-gap extension? Is it through my school’s DSO?

 

[server1]

FAQ: Remedy for denial of I-485 AOS

Hi Rajiv,

Today I have got denial on my I-485. Reason stated was "According to Visa Bulletin in effect on the date this application was filed , a visa was not available based on your established priority date and specific preference category"

My category is EB2. Date of filling for this category is 1st July 2009.
My priority date is 10th December 2008.

I filed 485 application on 1/19/2016 and got receipt notice on 1/29/2016
I did my finger printing on 03/16/2016 based on USCIS schedule
I and my family members also got EAD on 03/23/2016

I was surprised to see today’s denial reason. I filed 485 application based on Dates for Filing i.e. 1st July 2009 for EB2 category. Not sure why they denied my case since Final action date is not current but I am sure I am eligible to file my application based on date of filling.

Is there any way to appeal on this decision ? if appeal gets denied again is there any impact on my current H1B status ?

Thank you in advance for your help

Parag

 

[Ashish1802]

Hi Rajiv,

My employer applied GC on EB1,EAD and Advance Parole on 9th Feb 2016. I have received my EAD alongwith Advance Parole on 02nd April 2016 but GC is still Pending. My biometric has done on 4th April 2016. Now my employer want to relocate me to India.

My question is.
1. What will happen to my GC case with USCIS when I will relocate to India.? Will i be getting GC?
2. Can i get a job with different employer based on EAD received on 2nd April 2016? Should my new job be in similar nature?
3. If i am able to get an employer, will new employer be able to use my existing GC case? i heard about porting under 21AC

 

[Keshavulu]

Hi Rajiv,
I was on L1B in USA during period Aug 2009 to Aug 2012. My wife and Daughter joined me later when I was in USA. They got I-94 validity end date as my visa expiry date that is Oct 2011 whereas I got I-94 validity for 3 years from port of entry(i.e Aug 2009-2012). I applied L1B extension including my family on Sep 2011 but i got denial notice on June 1st 2012. My wife was 34 weeks pregnant that time and doctor advised not to travel back to India due her complications. I discussed with attorney and applied B2 visa(I-539) on June 2012 for my wife and daughter only since I had valid I-94 till Aug 2012. My baby was born on end of June 2012 and I left USA with my family Aug 14 th 2012 before my I-94 expiry. In Nov 2012, B2 visas for my wife and daughter got denied with reason applicant already departed from USA on Aug 14th 2012. I got picked for H1B in this year lottery.
1. is there any problems in terms of getting H4(dependent) visa for my wife and daughter If we all go together since they were out of status for 2.5 months.
2. Can I go for stamping first and sending family later for stamping