Recording for September 07, 2023 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, YouTube channel
Note that we answer posted questions and follow-ups first.
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Call Details:
Next Call Date: September 21, 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

 

[Gomesshanice]

FAQ: Do Canadian citizens need US visas? Canadian citizenship and F-1 visa

I will be eligible for my Canadian citizenship in March 2024 and will be pursuing a master's in the US for the fall 2024 intake. Do I have to get the F1 student visa stamped on the Indian passport (as the Canadian passport will take some time to process)? If yes, do I need to go to India to get the F1 visa stamped, or can I get it from a US consulate in Canada? Thank you

 

[Gomesshanice]

FAQ: Exploring permanent work and stay options in the U.S. for Canadian Permanent Resident

As a Canadian PR and having completed my post-graduate studies in Canada along with five years of Canadian work experience (HR), are there any specific visas I can apply for to work and stay permanently in the US? I will be eligible for my Canadian citizenship in March 2024. Thank you

 

[BhavikShah]

Choosing between COS and Consular Processing (L-1B to H-1B)

Hi Rajiv ji,

I'd appreciate your guidance and suggestion in helping me choose between COS and Consular Processing (L1B to H1B).

I've been in the country for a little over 9 months on L1B and my H1b petition (filed by the same employer) got selected during the second lottery round. I'm looking forward to take advantage of the Interview Waiver option by using the Dropbox facility that I believe I'm eligible for.
Do both the methods i.e. COS and Consular Processing qualify for Dropbox?

My wife has recently joined her new workplace. We understand that if we opt for the COS method, she will not be able to continue with her employment beyond Sep 30, 2023 due to COS from L2 to H4 until she gets her H4 EAD (which might take over a year may be more). But, also believe that this might be the right thing to do considering long term prospect.

I've been following your videos and mostly heard you recommend COS as the better/recommended option.
What are some of the risks involved in the 'Consular processing' method as opposed to COS? (Example: One that I can think of is uncertainty of situations (logistical/geo-political/etc.) during the time when one might decide to execute/activate H1B in a future date)

We also plan to visit India in Nov-Dec 2023 and re-enter.

I'm eager to know what would be your expert suggestion in this case?

Below are some timelines for your reference:

Sep 27, 2022	L1B and L2 visa Issue date
Nov 9, 2023	Entered US on L1B visa along with L2 dependents (L1B & L2 valid till Aug 21, 2025).
March 2023	Current employer submitted H1B cap registration on my behalf.
April 2023	H1B cap registration was not selected in the 1st lottery.
Aug, 2, 2023	L2 spouse accepted a job offer and is scheduled to start at the new workplace Aug 11, 2023.
Aug 4, 2023	HR informed about the second round of lottery during which my application got selected.
Aug, 11, 2023	L2 dependents official start date at new work place
Nov-Dec 2023	Need to visit India and re-enter US

 

[GCBy2010]

FAQ: Preparing for birth certificate issues in USCIS applications: Affidavits, DNA tests, and timing considerations

A general question on birth certificates for any case. If there are issues (like errors in names, spellings, etc.) and we know this upfront during/after the documents were submitted to USCIS, is it better to wait until the application is processed and an RFE is sent to us, or it is better to prepare affidavits from relatives (as secondary evidence) mentioning correct details of birth and keep it ready. The reason I am asking this is, sometimes getting affidavits in a short duration when the RFE is sent might not be feasible as relatives may not be available, maybe in different places, or may have even passed away.

Will USCIS accept affidavits by relatives prepared in the past, before the RFE was sent? Or is it only possible to prepare affidavits based on the specific questions raised in the RFE?

Also, how about a DNA test to prove relationships, can this be done and kept ready even if there is a likelihood of RFE in the future? Is this acceptable or should it be done only after an RFE is received for USCIS to accept the validity of this? This is again to save time, as there may not be sufficient time to get it ready during the RFE period, especially when applicants or beneficiaries live in different countries etc.

Thank you very much for your input on this.

 

[smandhada]

FAQ: H-1B approved after the lottery, can we change employers? Multiple employers in H-1B lotteries

Hi Rajiv, I hope you are doing well.
I have a question regarding my H1B. I filed for H1B this year and multiple employers applied in the lottery ( None of them are related to each other), if my H1B is approved can I transfer to a different employer in November who applied for H1B but didn’t get picked in lottery?

 

[yeshaswini]

Timeframe for receiving H-1B receipt after selection in second lottery round

Hi Rajiv,
Hope you are doing well. If an H1b was selected in the second lottery round under the master's quota, it is filed as regular processing. Is there an estimated time frame for receiving an H1 receipt?
Thank you,
Yeshaswini

 

[Salyte]

Complex immigration situation: Asylum, I-130, I-601A waiver, and the path forward

Hi Rajiv,

Can you please offer me some guidance.

I am from Africa. I entered at the California border, where I sought asylum in 2016. I was placed in immigration detention and released on an ICE immigration bond.

I attended my immigration court proceedings and followed the process. I filed my I-589 asylum application and filed and received work permit.

- While my I589 was pending I got married. My spouse filed I130 Petition in 2021. The I130 was approved in 2022

- The I589 asylum case was prolonged and eventually during COVID IJ terminated proceedings in 2022
- I refiled I589 asylum application to USCIS in June of 2022
- I completed biometrics for I589 in Sept of 2022
- This I589 is pending with USCIS
- After my approval for I-130, I completed my application and pay the fees with the NVC
- With my entry at the border, it is considered an unlawful entry so I was told that I do need to file I-601 A waiver. Is this true?
- I have completed my I601 Waiver, gathered affidavits of support, and other evidence but I have not been filed it yet.
I have 2 children born here. I provide for my family and my 2 year old has medical problem, hernia. My family will face extreme hardship if I am not allowed to stay. I cannot return to my country where my life is in danger. I was told that when my waiver is approved, I can travel to Canada, and enter legally. Is that the case?
- Do I also need to file I-485, Application to Register Permanent Residence or Adjust Status? If so when do I need to file it?

I need help and guidance.

Thank You

 

[Kiaan3425]

FAQ: Paystub requirement for H-1B transfer eligibility: Is it mandatory?

Hi Rajiv Ji,

Is it necessary for an H1B visa holder to have at least one paystub from the USA employer to be eligible for an H1B transfer to the next employer?

Thank you!

 

[rajit96]

H-1B visa: Stamping, Unemployment, Transfers, and Immigration consideration

Hello Sir,

I have my H1B picked in the second lottery of 2023. The law firm has filed the case with USCIS and I have opted for premium processing so estimated date of H1B approval is ~ 12th Sept. I have a few questions

1. Can I be unemployed when I go for my H1B visa stamping ? If I lose my Job after 1st Oct after H1B kicks in and before my H1B visa stamping date. I fear US embassy will decline my H1B.
2. Also, when I travel back to USA from India without a job on H1B will the immigration officers have any concerns ?
3. Can another company file for H1B transfer without/ before my H1B stamping is done ? Or is it necessary to get the stamp before H1B transfer ?
4. Can I switch job ( H1B transfer ) before 1st October when my H1B is approved.

Thank you so much hosting this community service. We really appreciate your work.
Looking forward to your guidance and help.
Thank you.

 

[iftikhar30082]

FAQ: Delays in marriage-based immigrant visa processing: Expedite options and travel issues

Hello Rajiv,

My son-in-law was interviewed at the US Consulate in Frankfurt in May 2023 for a marriage-based immigrant visa. They have requested his CV with traveling details for further processing. His case has been in Administrative processing for well over 90 days. I have two questions:

1. Is anything can be done to expedite the process?
2. He has traveled to the US on a B1/B2 visa four times prior to his interview from Germany. Is there any problem with him traveling to the USA to visit his wife while his case is in Administrative processing?

Thanks a lot for taking the time to answer these questions.

 

[h1_485]

Immigration status and I-485 denial with H-1B and job changes

Hello Sir,

I have a 2 part question,

a) If I entered US on AP, however I am using H1 (valid till Oct 2024) from job perspective and for my wife ( H4 /EAD valid Oct 2024) from Job perspective. If my 485 is denied does it mean I am out of status.

b) Would appreciate your view, if employer A filed 485 (OCT 2020) along with Eb3 downgrade I-140 ( Eb2 I-140 approved 2012). I changed job in Dec 2021, new employer filed I-485J (in this application Eb2 I140 reference was given along with AC21 reference etc). My old employer got RFE I-140 EB3 (Feb 2023) , asking for company finacials, they withdrew the I-140 since I moved to a new employer. In July 2023, 485 is denied. MTR filed, stating that I was moved to Eb2 and referencing a memorandum by USCIS. Do you think I485 will be reinstated?

 

[Aansari]

Multiple visa concerns: H-1B stamping, B-1/B-2 visa, and entry timing

Hi Rajiv Sir,
Hope You are doing Good.
I am a return customer as you say.

I have just got my H1b stamped ( IN UK ) and currently Out of US , and my status will change from F1 ( Stem OPT) to H1b on 1st of October.
I have few questions:

1. I am planning to get a B1/B2 ( Tourist Visa from London ) also in the next weeks as well.
Is it ok to have multiple active Visa’s on my Passport ( Are they gonna take away my H1b Stamping ) if I get B1/B2.

2. As I am working remotely, I am planning to be back in the states in Jan 2024 (By then I will be working and my pay roll will be running Fine). Is it safe to enter Late . Or should I Enter on my H1b first and then exit for my year End Plans ?

 

[squareclamp]

Transitioning from H-1B to B-2 visa: Considerations and documentation

Hi Rajiv,

I'm currently on H-1B, my visa stamp expires Sept 30. I have my I-797A approved till Sept 30, 2026. My current employer has also applied for green card, with i140 approved and should reach 180 days later this month.

I want to leave my current job, take some time off before I apply for next job. Can I apply for I-539 and switch to B2 visa for next 6 months while I explore job options? Will approved I-140 be a problem when switching to B-2 visa? Can you suggest how to document the reason in I-539 application.

 

[yashpatel]

Traveling abroad during pending STEM OPT: Immigration concerns

Hi Rajiv Ji!

I am currently working on 180 days extension while my STEM OPT application is pending for 70+ days. I am planning to visit India soon will I have any problem at immigration if my application is still pending as my I20 will show as STEM OPT applied not approved while re-entering to US.

Thanks!

 

[ashish11]

Visa options for traveling abroad: H-1B, H-4, and other visas

Hello Rajiv Ji,

I am from India and I have been in US since 2013. I have entered in US on B1/B2 visa and got it transferred to F1B. I recently finished my bachelors and I am on OPT now. I don't have STEM. I have not gone back to India since 2013. I am worried about my chances of getting visa stamping next time i go out of country. which visa category can boost my chances? H1B or H4? or any other way for me to start travelling again?

Thanks,
Ashish

 

[coolkid]

CSPA policy dilemma: AOS vs. Consular Processing and Legal implications

Hello Rajiv Ji,

I wanted to know your final thoughts on ensuring a dependent child is included within the new CSPA guidelines for EB-1 for an Indian-born parent! There has been a lot of speculation, so I was wondering if you have a definite answer!

The new CSPA policy states that for AOS (within the country), the dates of filing will be when the child's age is "frozen," which is currently June 2022, according to the latest visa bulletin for EB-1 for an Indian-born applicant!

However, it does not mention what dates consulates may use, and according to the latest State Department consular manual (updated March 2023), the final action dates should be used for CSPA (which is currently Jan 2012 for EB-1 for an Indian-born applicant).

Two questions,

1. If a child would age out via consular processing due to the discrepancy in USCIS dates of filing versus the consular's final action date, does this form a basis to sue the government to clarify its position on CSPA for all applicants (consular and adjustment of status)? Would you recommend to sue in federal court** if the child ages out?

2. If a child were to stay in the US to file via AOS, they would not be able to travel until the Advance Parole is approved, correct? Therefore, the additional waiting time before travelling would be only ~1.5 years (only the AP processing time after the date of filing) and NOT until the final action dates become current for visa availability for Indian-born EB-1, correct?

On August 24, 2023 (2 days ago), USCIS issued an updated Policy Alert for CSPA to clarify its position further for AOS filings that reiterated the February Policy Alert! However, it still doesn't mention anything about consular processing!

CSPA Policy Alerts
Aug 24, 2023: uscis.gov/sites/default/files/document/policy-manual-updates/20230824-CSPA.pdf
Feb 14, 2023: uscis.gov/sites/default/files/document/policy-manual-updates/20230214-CSPA.pdf


**The US Supreme Court decided 5-4 on May 2022 that they would deport Pankajkumar Patel (Indian-born applicant), who entered the US illegally in the 1990s. This is because of one small documentation error made (US Citizen checkbox ticked) when applying for a Georgia driver's license; his relief petition was denied by USCIS. The Supreme Court held that federal courts lack jurisdiction to review factual determinations made during discretionary relief immigration proceedings.

 

[monica1]

Strategies and insights for accelerating the I-485 application process

Hello Sir,

I have been in the USA on H1-B for 9 years 6 months with I1-40 approved in EB-2 with 2019 as priority date. I have not visited India since I moved to the USA in Feb, 2014.

I wanted to highlight 2 video's/news
1) No More Wait !!! All Priority Dates are CURRENT | Everyone Can Apply For Green Card - I-485 Aug 2023, as per bipartisan letter led by congressman
2) News of case where 'USCIS Surprising Twist: I-485 Approved Without A Current Priority Date'

So based on my case and above latest updates:
1. What are your views and what do you suggest in order to get I-485 application faster?
2. Is there anything I should be doing at this stage? Are there any other methods I can work upon?
3. Any expected rules coming in future that I should be aware of?

Thank You very much!
I really appreciate your guidance, expertise and organizing such open forums to help us in discussing crucial matters.

 

[Rajiv S. Khanna]

Traveling abroad during pending STEM OPT: Immigration concerns

Hi Rajiv Ji!

I am currently working on 180 days extension while my STEM OPT application is pending for 70+ days. I am planning to visit India soon will I have any problem at immigration if my application is still pending as my I20 will show as STEM OPT applied not approved while re-entering to US.

Thanks!

Please see this link: https://www.immigration.com/index.php/blogs/f-1-students-travel-during-opt-or-h-1b-process for F-1 students on OPT or before and after when they travel outside the US.