Recording for December 15, 2022 Conference Call with Rajiv S. Khanna

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DEEPAMENON

Team Member, Immigration.Com
Staff member

Rajiv S. Khanna, US Immigration Attorney, hosts a Free Community Conference Call every other Thursday to answer immigration-related questions. Whether a member of the forum or not, you are welcome to call in and ask questions or just listen to the discussion live. Questions marked as FAQ will be addressed first and these FAQ will be posted in our immigration.com FAQ section. The recording of what was discussed during the live call will be posted at the end of the day. For previous recordings click here.
Note that we answer posted questions and follow-ups first.
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Call Details:
Next Call Date: January 05, 2023
Start Time: 12:30 PM Eastern Standard Time
End Time: 1:30 PM, EST
Conference Dial-in: : (202)800-8394
Topic: General Immigration-Related Questions
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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.
PLEASE KEEP YOUR QUESTIONS BRIEF. If you need a detailed consultation on elaborate facts, speak with your lawyers or set up a consultation with us:
https://www.immigration.com/our-fees
 
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FAQ: Explaining PERM Prevailing Wage Determination (PWD) and its elements

Hello Rajiv sir,
Hope you are doing well.
First of all, thank you for sharing all the information regarding immigration via LinkedIn, Instagram, and Youtube; it is very helpful for people like us.

I am on the h1b visa right now, still in my initial 3-year window, have this query about Prevailing wages In the Perm process. My company is filling Perm under the EB2 category, it was submitted in September 2022, and the current wait time is around 8-10 months so still waiting to hear back from authorities.

1. I had asked my lawyer for a copy of the PWD, but they said it is a company document. Is that correct?
2. When I asked about the wages mentioned in the document, they told me the figure is 123k $ and would be paid to me after the green card is received. This prevailing wage figure is 35% higher than my current wages. Is the prevailing wage figure includes cost to company? ( insurance,401k plan for which company pays for me) or is this figure to be paid to me as a yearly salary?

Also, being an Indian, and Since mine is EB2 filling, I may not receive a green card until the next 15-20 years, is there a way I can negotiate for this salary after the perm is approved?

Thank you for your help in advance
Vinit Sawant (Based in Boston)
 
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FAQ: Recapturing H-1B unused time (Remainder Option); Changing H-1B field; USCIS’s stand on combining degree and work experience

Hello Rajiv,

Hope all is well. Thank you so much for your community service and really appreciate it. I will be really glad to have your responses to my questions below.

1. As a follow-up on the 'H1B remainder option', what is the time limit (in years) where one can remain outside the US and still recapture their H1B remaining years? I am currently in India and have been here for two years now. I have approx. 4.5 yrs remaining on H1B and would like to recapture it. By when should I find an employer/employment so that I am eligible to use this H1B remainder option?

2. I did Masters in chemical engineering in the US, and my H1B was issued in 2019. H1B is a specialty occupation, and I was told that H1B could only be used to work in the same field of study, i.e., chemical engineering in my case. However, with this 'H1B remainder option', are you inferring that one can actually change professions and still work in domains like software or finance in the US again?

Wouldn't the USCIS take my previous Master's degree in the US in the chemical engineering field/work experience into consideration (The field in which my H1B was issued in the first place)? Isn't the documentation for the "H1B remainder option" the same as H1B, where I have to show my Master's degree in the US, work experience, etc.?

Please clarify that my Master's degree in chemical engineering in the US/work experience in the chemical field doesn't cause any problem with the USCIS while filing a new H1B for a different profession using the 'H1B remainder option', thereby avoiding the lottery.

Your responses are highly appreciated and will also be very crucial to my next steps in finding employment in the US. Thank you so much again for your time and help.

Best,
Anusha
 
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FAQ: H-4EAD visa holders opening an LLC in the U.S. and employing their H-1B holding spouse on concurrent H-1B

Hi Rajiv ji:

My wife is on H4ead, and I'm on H1b. Can she start an LLC and apply a concurrent H1b for me so I can do two jobs? Please let me know if this is legally possible. Any dangers associated with it?

Thanks,
Rajesh.
 
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FAQ: Gap in status, for instance, H-1B and H-4 status issues

Hi Rajiv,
I was on F1, and my spouse was on F2. My H1b was approved in 2020 for client A, but COS from f1 to h1b was denied, so I just continued my F1 status. Later, I moved to client B, and my employer filed an H1B Amendment and got the complete approval with I94, effective 29th April 2022. After approval, we filed I539 for my spouse's COS from F2 to H4 (still pending) with a receipt date of 17th May 2022.

Question: Since there is a gap between my H1b start date (04/29) and my H4 receipt date (05/17), may the USCIS deny our case? If so, what are our best options to proceed further?

Thanks
 
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Form I-797C - USCIS typographical error

We recently filed an I-129 in H1B classification. In that, there was a typographical error by USCIS in the petitioner's name in I-797C.

What can we do to make a request to fix the USCIS error?

The typographical error correction form asks for the Petitioner's First name, last name, and Date of Birth. Those are mandatory fields. Petitioner is the company name. How can it have First Name, Last Name, and Date of Birth?

Is there any other way that we can request to correct the error? I am asking on behalf of the employer. This is a very small company of 2 employees. They can't afford an attorney right now.
 
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Visa wait times and Eligibility for Interview Waiver; Working in Canada on Dependent Visa with Open Work Permit and applied for Tourist Visa to return to India

Hi Rajeev

Thanks for hosting the call. I regularly follow your feeds across all social media platforms, which are very helpful.

Background:
I was in the US on an L2 visa with EAD until this year in April (2022) and worked for multiple employers during the last seven years of my stay.

I moved to Canada on Work Visa in July 2022 (Dependent visa with open work permit) and work for a US-based company in Canada (they have their branch here, and I am on the Canadian payroll). I need to visit them quarterly for business-related meetings and to meet the teams on several assignments at our headquarters in the US.

My Question: I applied for DS-160, B1/B2 Business & Tourism (Temporary visitor) visa a few months ago and booked an appointment for the next year Dec (2023), as there is no slot available sooner. Based on the interview waiver announced earlier by USCIS, am I not eligible to take advantage of that?

Because when I was filling out the application and while booking the slot, I never was asked or prompted, or provided any option for an interview waiver though I was in the US for about seven years.
  • Is this expected, as I am now in Canada instead of my home country?
  • Or is it because of the type of visa I am applying for, B1/B2, but I was on a different visa that was L2 previously?
If the above is not applicable, the only option I see is to get my employer to provide a letter with a reason for the urgent business visit and request the local US consulate to give an earlier date for an interview.

What are my options? I appreciate your input or any suggestions. Thank you.
 
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EB-1C Green Card Eligibility

I have a question about EB1C Green card eligibility.

Brief background on career progression:
  1. Bachelor of Engineering (Mechanical) 2005-2009 in India.
  2. Worked at COMPANY A July 2009-December 2011 in India.
  3. F1 Visa for MS (Mech) May 2013-October 2015 in USA.
  4. H1B Visa with US COMPANY from October 2015-October 2017 in the USA.
  5. Moved back to India during the month of October 2017.
  6. Worked with COMPANY A from June 2018 to July 2022 as a Manager in India.
  7. F1 Visa (PhD applied learning format at Harrisburg University) August 2022 to till date, in the USA.
  8. Job offer from COMPANY B (Subsidiary of COMPANY A with HQ in India) in USA. Currently due to join F1 CPT with COMPANY B in the USA from January 2023.
  9. I need to know eligibility of EB1C with COMPANY B since it is a subsidiary of COMPANY A HQ in India.
My questions are as follows:
1. Can COMPANY B file EB1C green card for myself as I worked as a Manager in the parent Company A HQ in India?
2. Will working on F1 CPT with COMPANY B from January 2023 in USA affect EB1C application in future from the same company ?
3. Do I need to be continuously employed by a parent or subsidiary company to qualify for EB1C ? I left in July 2022 from the Manager position.
3. Cost of EB1C filing.
 
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Parents with EB-2 and EB-3 approved petitions; Can one request USCIS to process son's application in EB-3 by submitting a relinking letter?

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L-1A to H-1B Change of Status

Hello Rajiv sir,

Thanks for your time,

I am looking for suggestion , can you please help on this,

Currently, I’m in India, Company A filed H1B in 2022 CAP, and my current Indian Company B Applied L1A visa. Both L1A and H1B petitions are approved recently.

Questions:

1) Can I stamp both H1b and L1A petitions separately while I am in India.

for example: If I stamped H1b first and then later Can I stamp L1A as well.

2) Can I enter to USA by using L1A visa.

3) After some months, Can I apply change of status from L1A to H1B.

Ideally I am trying to travel USA by using L1A visa and later I can apply change of status from L1A to H1B. is it possible.
I want to be in safe side. That's why I am looking for your guidance on this.
 
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FAQ: Eligibility for EB-1A (Extraordinary Ability)

Hello Rajiv Sir,

Thanks for hosting the call. I appreciate you taking the time to answer our questions. I had a few questions about my eligibility for EB1A – Extra Ordinary Ability.

Background:
• I am in 3rd year of an H1B visa, and my current employer has filed for a green card (currently in the PERM process). I am currently a Sr. Energy Engineer with industry experience of 5+ years.

Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence:
o I have won several regional, national, and international awards for my research, volunteering, and contribution to the industry. Majority of these were while I was pursuing my masters in the USA. Can the awards from student life be considered for EB1A, or does it need to be from professional work?
o Recently, I was honored with 30 under 30 in the energy and sustainability industry by GreenBiz during my professional life. This award recognizes 30 people under 30 across the globe who have made a significant contribution to their field. Can this be considered an international award? I am confused since this is not an individual award.


Evidence that you have been asked to judge the work of others, either individually or on a panel:
o I am currently on the Editorial Board of an international journal paper, which is part of the world's biggest community for energy engineers. My role will be to peer review others' research work. This role will be for three years starting in 2022.

Evidence that your work has been displayed at artistic exhibitions or showcases:
o I have presented my work/research and provided training at small regional conferences and utility training programs.

Evidence of your authorship of scholarly articles in professional or major trade publications or other major media:
o I haven't published any paper so far, but I am writing an article soon and later publish a paper in journal and trade publications.

Evidence of your performance in a leading or critical role in distinguished organizations:
o I was the auxiliary board member of one of the biggest non-profit sustainability organizations in the state of IL. I was in this role for 2 years and educated and promoted awareness of energy & sustainability among the people from the industry. I also won the Outstanding Volunteer Award from the same organization in recognition of my contribution.

I have evidence for all the above criteria. Based on the above information, do you think I might be eligible for the EB1A category?

Thanks in advance.
 
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Can one work using the H-4 EAD Receipt?

Hello Rajiv Sir,
I am from Atlanta, I am on a H1B and I have applied for my wife EAD and its approved in Jun'2022, but since my H1b Extension was valid until Oct'2022; she could not start the job in time. Now my H1 and H4 is extended till March'2025 and I have applied for renewal of my wife EAD just 4 days before it's going to expire.

My Questions is, can she start working on receipt of EAD Extension application? If yes, any other things we need to follow for her to work legally?
 
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FAQ: Filing multiple PERM applications, PERM Recruitment period, and Processing Times for PWD (Prevailing Wage Determination)

1. Can we file two PERM simultaneously, one for the current job level and one for the future promoted level?

2. My employer filed my green card based on my master's degree and no experience as a job requirement. So, what are the chances it will pass recruitment during PERM, keeping the current recession in mind?

3. My employer told me PWD, and labor certification will take 12 months each normally and a total of 2 years, so is it true or is my employer being slow in the process?
 
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DOL Processing Times for PERM and Prevailing Wage not updated

Anyone know why the DOL website has not updated the perm section yet ?
 
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Adjustment of Status with Humanitarian Parole

Hello Rajiv-ji,
I am a 50 y.o naturalized US citizen. I care for my intellectually disabled (downs syndrome IQ 30) brother who has been living with me for the last 13 years. He is non-communicative and needs help for all activities. My brother has I-130 approved family immigration and his priority date is has been current for many years. USCIS & NVC have asked him to adjust status in home country(India) but he is not in a position to travel (health issues, needs assistance etc). I cannot take him to India for AOS as we do not have any ties/family in India (additionally, the risk of delay in AOS in India, hardship waiver requirement for unlawful presence etc.). While we were waiting for priority date to be current, he was on B1/B2 non-immigrant visa but after about 4 years of renewal his non-immigrant visa renewal was denied and he has acquired unlawful presence. I would like to request humanitarian parole so that he can adjust status in the United States. Is there a basic letter format that I can write for this? Who should this be addressed to?
This is an outlier case and when I speak to state rep or even congressman they think its an open and shut case and my brother should be able to adjust status in US, but no one is able to guide me on the correct path. Should I be addressing a petition to the USCIS District Director? Please suggest some ideas.
As he has been living in USA for the last 13 years, his India passport has expired and I am unable to renew it. He also does not have a pan or aadhar.
Thank you
Meena Kaushik
 
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