Recording for October 27, 2022 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 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: November 10, 2022
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

 

[Vin16]

FAQ: What happens to H-1B after Green Card approval?

My last H1B was recently revoked 4 months after receiving Green Card and company attorney says automatic revocation is a standard practice by USCIS not always followed. But most people I know did not have their H1B revoked after Green card approval so I am bit concerned why this happened to my case only. Please advise.

 

[rishi-k]

Who can authorize CPT during winter break in school?

Hello Rajivji,

question is about CPT authorization during winter break in school.

my current Fall CPT ends on 18 dec 2022 and new CPT start in Jan 15 2023 for spring 2023

my employer wants me to work during December 2022 as well, Can my DSO issue me new I-20 for 20 dec 2022 to 14 Jan 2023 and approve my work.

I am on F1 visa and currently in my 3rd semester and I graduate in May 2023.

my school has less experience of working with international students, so DSO might have limited knowledge about this.

 

[amitgupta]

FAQ: OPT eligibility requirements, F-1 status for one academic year, and Change of Status or visa stamping from back to H-4

Namaste, Rajiv ji,
My spouse is a dentist from India and converted to F-1 from H-4 on Sep 29, 2022. She pursued a few courses for MBA (non-stem) between March 2022 and Jun 2022. Now she is completing the remaining courses of her MBA on F-1 for the next 12 months.
My queries are-
1. Does she need to be on F-1 status for a min 365days to be eligible for OPT?
2. if we ever need to change to H-4 status again (stamped till Aug 2024), can she travel to India and come back without F-1 stamping? or a COS application from F-1 to H-4 ( that may take 6 months) could be a better option for EAD application

Regards,
Amit

 

[ravick4u]

FAQ: PERM issues for a green card for remote jobs - headquarters

Hello Rajivji,
I am currently on an H-1B visa and working remotely. My h1b petition has two addresses, home (VA) and office (PA). The office headquarter is in NJ.

My employer filled PWD in Mar2022 which got approved in Oct 2022. When I reached out to them for the next step, they mentioned that there were some issues with the previously filled PWD, so they had to refiled my PWD in Jul2022.

Based on my discussion, I came to know that they did not mention the main headquarters address, which is in NJ, and put the address of the PA office, which is in my h1b petition. They said because I am a remote employee, they are supposed to put the address of the headquarters.

Q1: Are we supposed to put the headquarters address when we file GC for a remote job?
Q2: Are we supposed to put the headquarters address when we file h1b for the remote job? or any office is ok?

 

[mohangalax]

Future issues if your I-94 is "Not Found" online

Hello Rajiv,

My kid came with me first time to USA on this May 2022. On check his I-94 online it was “No record found for traveler”. For me & spouse it was updated fine.

I visited CBP office to correct my son I-94, during my visit, I have given previous LCA to him, which has my old work location.

I tried explaining him about my current approved LCA, amendment and my extension in progress, but he is not ready to listen.

He didn’t fix my kid I-94, also he removed my current I-94 online, now it shows my previous I-94 online. Travel history section looks good with recent travel.

Questions:

1. Do I have any issue with my current extension?
2. Will there be any issue on my next stamping or traveling?
3. Do I have any issue while my GC?
4. Can I go again to CBP officer with correct LCA and current in-progress H1B extension receipt?

Thank you!

 

[vp406]

Working remotely on H-1B from another country (India), Change of employers, Extending visitor visa (Form DS-160 mentions one month) for parents and Returning to the U.S. cap-exempt H-1B because of prior approved H-1B

Hi Rajiv,

Thanks for the free conference call!

I am currently working in USA on H-1B visa.

I have three unrelated questions:
1. How long can I work remotely from India with valid H-1B? I am working remotely in US, so I am wondering if working from India for 3 months is acceptable. Also, I changed employers recently. Will I need a new H-1B stamp of the new employer when I return back to US or is an approved I-797 from new employer sufficient?
2. Recently my parents got their visitor visa approved. I mentioned in DS-160 form that they will visit me for only 1 month. But now I'm thinking I am going to invite them to stay for about 4 months. Will this be okay? Do CBP officer at port of entry have access to DS-160 forms that were filled out for visitor visa? If so, is it okay to say to the CBP officer that the duration of stay will be 4 months instead of 1 month as mentioned in DS-160?
3. I have read online that if my company applies for green card I-140 application, I can leave US for a few years and then come back to work in USA again with a cap-exempt H-1B, so I won't have to go through the lottery process again if I wanted to start working on H-1B again for a US company. Is that true?

 

[nap8399]

On H-1B status: Pending I-485, I-765, & I-131 based on an approved I-526 and no H-1B visa stamp on the passport - Traveling back to the U.S. without Advance Parole

Hi Rajiv,

Currently, I am on H1b status and I have a pending i485, i765, & i131 based on an approved i526. I do not have a h1b visa stamp in my passport and i131 approval is taking about 1 year as per the USCIS website.

I have secured H1b visa appointment in India and planning my travel before getting my Advanced Parole. Is there high chances that my h1b visa can get rejected based on my pending i485? or is there any precautions that I can take before traveling and during the H1b visa interview?
Except my i131 gets rejected, will I have any other effect on my pending immigration forms due to my travel?
Is above scenario works, I am planning to call my spouse on H4. Can I apply her i485 and attach to mine the next day she lands in the United States or do I have to wait 60 days?

 

[lakshyz]

FAQ: Can an H-1B visa holder rent via Airbnb? Is this a violation of status?

Hello Rajiv!

My status changed from F-1 to H1b status this year on Oct 01, 2022. Since I am now on an H1B visa, I am planning to buy a house soon, before the end of this year, and my plan is also to rent out other rooms and maybe Airbnb in the future. I researched this is considered passive income and is legal but:

1. I was wondering if I can do the same by opening an LLC. Will this still be considered passive income?
2. Another ques, since my status changed from F1 to H1 this year, for 2022 taxes, should I still fill out the 1040 NR form or not?

 

[Hrz1]

FAQ: How long does it take from PERM to Green Card, and difference between NIW and PERM Labor Certification?

Hello sir,
Please help me with below.

1) How long does one have to wait in total if the company applied for PERM (EB2 - MS CS degree), and THEN Concurrently applied for I-140 (premium) and I-485 and the country of birth is UAE?

2) Can the above be done on an F-1 (OPT + STEM OPT) Visa instead of an H-1B? And any potential issues for F-1 in this case?

3) In this scenario, how would it work if the person also submits NIW in parallel with PERM?


Thank you very much

 

[Chandra25]

Switching from H-1B to H-4 EAD without a gap in the ability to work continuously

Hello Rajiv,

Currently working in H1B status, How can I change to H-4 status and get H-4 EAD without a gap in the ability to work continuously ?
Do I have to stop working if H4 is approved first and EAD was approved couple of months later ?

 

[tandm]

FAQ: Applying for E-2 Visa with a pending family-based Green Card; who can be the main applicant for an E-2 visa?

Hello Rajiv,

We're looking to apply for an E2 visa being Canadian Citizens born in India. Seeking your advice on a couple of questions- we have pending F3 status immigration with a 2011 priority date, can the primary applicant on the E2 application be my wife, who is also the primary applicant on F3 immigration? Would you recommend going through counselor processing or an adjustment of status for my wife, considering we have a pending immigration file? Appreciate your guidance!

 

[tv92]

H-1B to Marriage Based Green Card

Hello,

I am working on an H1-B visa (approved, not stamped). My spouse is a US citizen but does not have a job. Would it be advisable to apply for a marriage-based change of status for permanent residence on my personal sponsorship, or should we wait for him to get a job? Appreciate your help, thank you.

 

[Tome]

Working while waiting for H-1B extension

Hello Rajivji,

Happy Diwali

I have 2 approved I140(2011 n 2016) from 2 past employers ( A and B) .
Joined company C in Nov. 2019 but they delayed 485 filing. Currently waiting on perm.
Filed the H1B extension request on Sep 2022 but got RFE on extension due to adjustment of status new regulation ( that says since 485 is not filed for more than a year while PD is current, H1B cannot be extended ) and finally H1B extension petition is denied on on Oct 21st upon rfe response.
Since current H1B was expiring on 10/13/2022 , I filed for B2 and got biometrics appointment for 10/31/2022. Here are my questions:

1. Can I file new petition with same or different employer ? If yes should go for premium or regular?

2. With pending or approved B2 & H1 pending, can I work?

3. Is this true if B2 is pending then H1 will be in pending until B2 is approved?if so then should I delay biometrics or get B2 approved? Please note I am not working currently.

3.will this new h1b be still exempt? Especially if we want to buy time until perm is approved and then 140 and 485 is filed.

4.can past employer with approved I140 , file I485 irrespective if i join or not right away? Do they have to file 485j once I join them

5.if past employer file I485,does he has to pay same salary approved in I140/perm? If so, From the time I485 is filed or approved?

Thank you

 

[Rajiv S. Khanna]

Namaste, Rajiv ji,
My spouse is a dentist from India and converted to F-1 from H-4 on Sep 29, 2022. She pursued a few courses for MBA (non-stem) between March 2022 and Jun 2022. Now she is completing the remaining courses of her MBA on F-1 for the next 12 months.
My queries are-
1. Does she need to be on F-1 status for a min 365days to be eligible for OPT?
2. if we ever need to change to H-4 status again (stamped till Aug 2024), can she travel to India and come back without F-1 stamping? or a COS application from F-1 to H-4 ( that may take 6 months) could be a better option for EAD application

Regards,
Amit

To be eligible to apply for OPT, you must: (1) have been in full-time student status for at least one academic year by the requested OPT start date, (2) be maintaining F-1 status at the time of applying for OPT, and (3) have not used OPT at the same degree level previously.