Recording for January 18, 2024 Conference Call with Rajiv S. Khanna

[DEEPAMENON]

Rajiv S. Khanna, US Immigration Attorney, hosts a Free Community Conference Call every other Thursday to answer immigration-related questions. Whether you are 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, YouTube channel
Note that we answer posted questions and follow-ups first.
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Call Details:
Next Call Date: February 01, 2024
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

 

[shv2020]

FAQ: H-1B lay off 60 days grace, options including B-1/B-2, approved I-140, Severance pay

Hi Rajiv ji -
Many have asked this question before, but since rules and situations are never the same, so here I go - I'm on H1B with an approved i-140.
I was recently impacted by a layoff - my last day on payroll is 10th Feb 2024. I will also receive a severance (lumpsum) within 75 days of Feb 10th. My questions are -
1) Given the market, it may take more than April 10th to finalize an offer and start the H1B transfer. What are the options ( if any ) to extend my stay beyond April 10th?
2) Many suggest applying for B1/B2 (I'm single, have no spouse to move to H4, etc), but I also hear if it's rejected then the time of my stay after April 10th will be an illegal presence, is that true?
3) Say I receive the severance lump sum on March 15th -- are the days from Feb 10th until March 15th counted on company payroll?

Thanks,
Shiv

 

[gc_help22204]

Medical issues and expired green card: Impact on authorized stay in the U.S.

Hi Rajiv Ji,

My Permanent Resident card issued on 05/08/20008 which expired on 05/08/2018 based on my wife Employment-based EB-3 category. My wife and son both are US Citizens.

I visited India in 2015 due to my property sale but it's delayed and i was affected by COVID-19 in 2020/21. After the post issue, I got a medical nerve health issue in 2023. I am not able to visit the USA.

Now I like to relocate USA along with my Family. Please let me know the Options.

1. My Green card Expired 5 years ago. Is it possible to apply SB1 for Renewal and Success Rate?
2. I am looking for your Valuable suggestions and other possible best possible options

Thanks,
Palani

 

[nik-1606]

Transitioning from STEM OPT to H-4 EAD and planning for the H-1B lottery

Hi Rajiv,
My wife is on H1B and her PERM was filed in April 2023 which is under process. I am on STEM OPT and recently lost my job. My STEM OPT is valid till June 2024. If I am unable to file for the H1B lottery or if my H1B is not picked up in March, will I be able to go from STEM OPT to H4 EAD in June? We plan to do premium processing for H4 EAD.

If I do not find a job and lose my STEM OPT status in February, what should be my best course of action? Thank You!

 

[Suruthi]

FAQ: Optimizing H-4 EAD options and bundling premium processing for H-1B and H-4 extensions

Hi Sir,

I hope you're well. It's Suruthi, currently on an H4 visa valid until June 2024. I'm reaching out for your advice as I try to figure something out.

I'm a bit unsure about when to apply for my Employment Authorization Document (EAD), and I am considering following options:

Option 1: Apply for H4 EAD now (first time - applying separately) since my I-94 is valid until June 2024. If I do this, can I keep working after June 2024 while the H4 extension and H4 EAD are in the approval process if H4 extension is applied before June 2024?

Option 2: Apply for H4 EAD (first time) + H1B extension + H4 extension using the Premium processing option, probably during June 2024. Will the H4 EAD be approved in 15 days if all three (H4 EAD, H1B extension, H4 extension) are applied together in premium processing? Also, will the H4 EAD have a validity of three years if the H1B and H4 extensions are approved for three years?

Could you please guide me on which option is simpler and better to go for or any other better solutions?

Thanks a bunch for your help.

 

[josam]

Name change dilemma: Re-entry permit application with pending green card name change

Sir,

Me and my wife got our GC 15 months ago (in Aug 2022). Now we are wanting to move to India for couple of years to take care of my aging parents. We want to leave for India in June-July of 2024. So, we want to apply for our re-entry permits now.

6 months ago (in June 2023) we applied for a name change on my wife's GC (I-90 for replacement of GC), biometrics is finished and got the receipt number. The case is under processing right now. She changed her last name to my last name. We provided all the necessary documents (local judge approval notice, marriage certificate, SSN with new name etc.). She already changed her name in the local bank accounts, Texas Driving license, SSN. But the Indian passport still has her old last name.

Question: When we apply for the re-entry permit for my wife, should we write the new last name or the old last name in the application?

 

[Potters]

Unlawful presence: Implications, reinstatement, and F-1 visa application strategies


Hello Sir, first, thanks for all the great work you are doing.

My post-completion OPT ended in mid-February 2020, Covid-19 happened, and I left the U.S. in mid-September. Ideally, I could have departed in July when tickets were more affordable, but circumstances led to a later departure.

I had no intention of extending my stay or changing to another educational level. I was in contact with my DSO, she didn't emphasize reinstatement back then, but I later learned that if I had applied for reinstatement within five months of falling out of status, I might have avoided accruing unlawful presence.

Upon leaving, I contacted my DSO, she said that my SEVIS record completed in April 2020.

My question is whether I accrued 150 days of unlawful presence and how it differs from overstay. I discovered that international students in authorized D/S do not accumulate unlawful presence until an immigration judge or officer finds a status violation during an immigration proceeding or application for an immigration benefit. Since I voluntarily left the country and never faced any proceedings, did I accrue any unlawful presence?
Or did I get any type of "inadmissible for X years" according to INA § 212(a)(9)(B)(i)(I)?

Given this background, I am seeking guidance on what to anticipate when applying for a new F1 visa for masters/phd and how best to prepare my documents, such as a letter from my DSO. My I-94 shows four departures and arrivals during my studies, with no other violations. Will it be a positive point to disclose?

 

[AKonda1981]

FAQ: Implications of visa fraud by an employer on H-1B, L-1, green card, citizenship

Hi Rajiv Sir,

Sorry for this lengthy details. But I had to give you all details for und
I am exploring my options to file a new H1B and would be great if you can provide any suggestions or insights on my current situation.

My details are -
1) I have my I140 approved in 2013 with an Employer (XXX IT Services Inc) and had multiple successful H1B extensions until 2017.
2) My latest.H1B had I-94 expiry date as May 30, 2017. Extension was timely filed on May 16, 2017.
3) Work location changed in October 2017 and an Amendment was filed when my above H1B extension petition was still pending.
4) Amendment Petition was upgraded to premium service in December 2017.
5) I have continued to work for it until September 2019 as no decision was made by USCIS on my amended petition.
6) I have exited USA in October 2019 to join my wife and kids who were stuck in India for all these years.
7) In the middle of year 2020, administrative processing was lifted on my petition and an RFE was issued. However as I was already out of USA, no response was given.

At this point in time, I came to know that my Employer (XXX IT Services Inc) got into visa fraud and money laundering case and served jail sentence as well by 2020. Employees weren't made aware of it at all. Probably that's the reason for not hearing this long.

My questions are-

(A) Will USCIS consider my stay between May 2017 and October 2019 as unauthorized, will there be a 10 year bar on me?

(B) Can I apply for waiver of inadmissibility on the grounds of administrative processing hold on my last petition and I left before the decision taken?

(C) Will my employer's visa fraud case impact my H1B approval in future ?

H-1B visa holder seeks to claim remaining term after employer’s visa fraud case and husband’s administrative hold

++++++++++++++++++FROM ns2020++++++++++++++++++++++
Hi Rajeev Sir,

Thanks a lot for kindly taking time to answer all H1B visa related queries. Appreciate it.

I held H1B visa and worked with no break since Oct 2012 till Jun 2017. In Jun 2017, my project was completed and I travelled to India on a job break due to health issue thinking to get back after 2 months. However, since my project was over, I thought of traveling on H4 dependent visa through my H1B husband. But since my husband's H1B got into administrative hold for morethan an year, I couldn't get back to US thereafter until now. Later on I got to heard that my Employer got into visa fraud case.

My question is-

1) Will I be able to claim remaining of my H1B term anytime im future if I want to go back to US?

2) Will my employer's visa fraud issue pact my chances of getting h1b approved ?

Note: I never had any issue with my h1b approvals in the past.Never did any fraud from my end meaning I was genuine with h1b filing and documents submitted.

 

[ns2020]

Traveling abroad on AP with multiple pending EAD/AP applications and H-4 status

Thank you for taking the time to answer our questions.

My situation - filed for EB3 (2020) and then later EB2 (2022) based I-485 as opposed to interfiling. So I have two EB-based GC applications and so do my wife and daughter. Subsequently, my wife got two EAD/AP, one for EB3 and one for EB2.

Now, as renewal is due I filed for her EB3-based EAD/AP in June 2023, which is still in progress, and just recently filed her EB2-based EAD/AP.

My question
- If my wife gets any one of the AP's can she travel abroad and enter using that AP. If so what happens to the other pending AP, does it get denied? Is there any risk to her I-485?
- I have my H1B Stamped till 2025 July and as part of the renewal my wife got her I-539 H-4 extension approved too (doesn't have an H4 visa stamped). If she travels and enters on AP, will she still be considered as H-4 status and can continue with her H4-EAD or does she need to present her GC-based EAD.

thanks

 

[Potters]

Hello Sir, first, thanks for all the great work you are doing.

My post-completion OPT ended in mid-February 2020, Covid-19 happened, and I left the U.S. in mid-September. Ideally, I could have departed in July when tickets were more affordable, but circumstances led to a later departure.

I had no intention of extending my stay or changing to another educational level. I was in contact with my DSO, she didn't emphasize reinstatement back then, but I later learned that if I had applied for reinstatement within five months of falling out of status, I might have avoided accruing unlawful presence.

Upon leaving, I contacted my DSO, she said that my SEVIS record completed in April 2020.

My question is whether I accrued 150 days of unlawful presence and how it differs from overstay. I discovered that international students in authorized D/S do not accumulate unlawful presence until an immigration judge or officer finds a status violation during an immigration proceeding or application for an immigration benefit. Since I voluntarily left the country and never faced any proceedings, did I accrue any unlawful presence?
Or did I get any type of "inadmissible for X years" according to INA § 212(a)(9)(B)(i)(I)?

Given this background, I am seeking guidance on what to anticipate when applying for a new F1 visa for masters/phd and how best to prepare my documents, such as a letter from my DSO. My I-94 shows four departures and arrivals during my studies, with no other violations. Will it be a positive point to disclose?

Sorry sir for adding another point regarding this question. Your advice will be helpful for me to know which one to select here when submitting DS160 application.

 

[Makarand_k]

FAQ: Advantages of a National Interest Waiver, transitioning to EB-1, entrepreneurship, and H-4 employment for spouse

Hello Rajiv Sir,
Thank you for your advice and such helpful content on the immigration journey.
I entered the US to complete my Masters on an F-1 visa in 2018, I got my H1B visa approved in Oct 2022. I was planning to go for a green card through the EB2 NIW route. I have a few questions, which are as follows:
1. Suppose that I got EB2 NIW approved and I am waiting in queue for a green card, but I went back to India and worked in India (employer may or may not be related to the US). Can I collect my GC whenever the priority date becomes current?
2. Suppose that I have already applied for an EB2 NIW visa but then I build my profile and want to apply for an EB1 visa, can I do that?
3. When can I start my business/startup during the EB2 NIW application process? or Do I need to wait until the visa is approved to start a business?
4. When can my wife start working on an H4 visa? Is it during the EB2 NIW application process? Does she need to wait until the visa is approved?

 

[jbird]

H-4 EAD processing time and travel restrictions with H-4 COS approved and H-4 EAD application pending

Hello Rajeev,

Happy New Year! My wife had applied for her change of status from H-1B to H4, along with her H4 EAD application in September 2023. Her H4 case got approved in December 2023 but her H4 EAD case status as of January 2024 shows "Case Received" on the USCIS website. The date the case was actually received at the Western Adjudication Center shows September 21st 2023.

An important point to note is that, when my wife applied for her H4/H4 EAD, my primary H-1B extension was already pending; that got approved on December 16th, 2023, which most likely led to my wife's H4 approval shortly after that.

My question is, did the H4 EAD processing time clock start from when her change of status to H4 got approved, i.e., December 16th, 2023 or September 21st 2023, which is when her H4 EAD case was received at the WAC office? Based on information on the USCIS website, 80% of the H4 EAD cases are processed in about 3 months. Do we inquire with USCIS yet about the case status not having moved to something like, "Case being processed"?

Another related question is, can my wife travel outside the US with her H4 COS approved and H4 EAD application pending without any foreseeable problems, such as, any I94 issues or while getting her H4 stamping or any future H4 EAD extensions, etc.

Thank you for your advice.

Jai