Recording for September 17, 2020 Conference call

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monica1

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#1



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'S will be addressed first and these FAQ'S 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: 01 October 2020
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.
 
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#2
FAQ: Priority date and original I-140 approval notice
Hello,

I am currently on H1B visa(3rd year) and few days back I got my I-140 approved in EB-2 category. I want to know if I can change my employer and retain my priority date.
Also, would I need original copy of my I-140 when moving to a new company? As my current employer has provided me only E-approval of my I-140.

Thanks,
Bhanu Arora

FAQ: Staying with the same employer for 180 days after I-140 approval
Hello,
I've approved I-140 (approved last month in EB-3). Is it mandatory to stay with same employer until 180 days after I-140 approval? What will happen if one leaves the job? Also I have 1.5years left on H1b . If I change my job before my I-140 hit mark of 180 days, what will happen to my work authorization? Would I still be able to use my approved I-140 and retain my old priority date? I need more clarity on 180 days timeframe that employee has to spend with employer post i-140 approval.
Thank you!
 
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monica1

Administrator
Staff member
#3
From a member,
Hello Sir,
We are presently in GC-EAD with EB2 petition of a different employer approved
and Supplement J approved, but pending I-485 with current employer. We also
have EB3 petition from past employer 10 yrs ago approved from where we ported
our priority date.
Our EB2 and EB3 dates June 26, 2009 are current now, and we raised a Service
request to proceed with adjudication, but USCIS revoked EB3 as inability to
pay. This employer appealed to AAO with his personal tax returns as the
business was a disregarded entity. Yet to hear from AAO, it has been more
than 180 days. Even though our EB2 is current and from a different employer,
USCIS is not given our green cards since this EB3 is sent to AAO appeal. We
also put an Ombudsman case assistance to check if USCIS is adjusting status
based on EB2. No response on that still.
What Should be our next steps in getting the GC as our dates are current.?
Thanks
 
#4
Hello Mr. Khanna,

My employer filed my GC in EB1 in April 2018 and my i140 got approved in June 2018. Since my L1 visa extension got rejected, I have to leave US and move to Canada. Now since my priority date has become current, for the next steps - ideally i had to file i485 if I was in US. Since, I am not in US for me the other option is NVC but my employer is refusing to file i484 for transfer of my case from AOS to NVC. Can you please suggest what can we do this case. Really appreciate your timely revert.

Regards
Pooja
 
#5
Hello Rajiv,
Couple of questions on h1b transfer.

1. Did a change of status from H4 to H1 in 2018 and then working on that h1b for two years, i currently transferred the H1B to another employer. Then after getting approved i797a from that new employer, starting working for him. Question is, can the old employer withdraw his h1b? Will the withdrawal of that h1b have any impact on the approved h1b transfer? The reason I ask is, the original H1B from the old employer was a change of status from H4, instead of the h1b visa stamp.

2. My spouse is also on H1B but the I-94 expired last month, with extension pending with USCIS as my spouse got RFE on the case and have time until oct 2020 to respond (and additional 60 days for covid). But to be on the safer side, we applied the COS from h1b to h4 for my spouse before the I-94 expiry. However, while applying for that COS, I had given the h1b petition from my previous employer, so now that I have transferred my h1b to a new employer - will there be a problem on that COS for my spouse if my old employer withdraws my older h1b?
 
#6
Hi Mr. Khanna,

My H1B case was under you and it was approved but the change of status was not approved as i traveled outside of the country. My case was approved in March when Covid was at it's peek and then H1B ban came into place. I did not get a chance to go out and get my Visa stamped and change of status approved. I am still using my STEM OPT which expires on Feb 2021. Should i wait till the H1B ban is lifted or look for other options such as Canada. What are your thoughts on this?
 

VGCD

New Member
#7
Hello we are a couple in US. I am a US Citizen. We are under lockdown in India, and I am a physician working in both USA telemedically and in India. My wife is a Greencard Holder. Since part of my business is to build telemedical clientel, and I am treating patients here in India - can I use this to apply for a 319b application? We applied for the citizenship application, although have not been able to get a flight. Wil USCIS hold this against us in our interview for citizenship. Can this be overcome? We previously had 3 years without interuption in US, as husband wife, but applied late. Should we go 319b route or regular route?
 
#8
Hi ,
My H1 visa petition is expired without stamping from Employer A But I was able to transfer with Employer B . If I go to stamping with B and gets denied , Can I still use my Employer A expired petition for transfer to other employers ? (I am yet have an H1 stamp I am from India)
 
#9
Hi Mr. Khanna
I currently have a green card and I'm applying for citizenship. In 1998 I had an arrest for possession of marijuana, the charges were later dropped and dismissed. I recently called the court to ask about this arrest and the clerk said that there is a record of the arrest and that technically she wasn't even suppose to tell me about it because it was an ACD which mean it was wiped out of my record after 6 months if I didnt have any other arrests which I didn't. When I started to fill out the citizenship application I didn't know what to say when I got to the section "have you been arrested before" My understanding is that this type of arrest doesn't disqualify me from attaining citizenship so I have no issue with including this on the application but I dont want to say I was arrested if there is no record of the arrest since it was an ACD. My concern is that the arrest won't come up when they process my citizenship application and it will get rejected if I say I was arrested but there's no record of it or if I say I wasn't arrested and it does show up, it will also get rejected.
Should I include this arrest on the citizen application or not?
 
#10
FAQ: Green Card holder stuck outside the US for more than a year
Hello,

I am a US citizen who Sponsored my fathers green card in 2010. His green card is expiring oct 2020. He had to stay in India since Jan 2019 due to health conditions. With the Covid pandemic situation and his age (81) and health conditions, he is not able to travel back to the united States before the green card expiry. My father does not have any family in India to take care of him and will have to come here so that my brother and I can take care of him. What are our options for avoiding the expiry of the green card? Secondly, is there a 60 day extension on the expiry date due to Covid 19?

Thank you,
Anu Pakala

------------------------FROM AURORA--------------------------------------

Subject: LPR Stranded abroad, weighing the stress of COVID vs the stress of defending LPR.

Rajeev, thank you so much for this amazing resource. I apologize in advance for the length of this, but perhaps calibrating one clear case will help many other stranded LPR’s make this difficult choice. I have tried to keep the details as concise as possible.

I'm early 60’s, UK Citizen and LPR/US Homeowner for 30 years. I have no home, business interests or accounts outside the US. My entire work history since college has been in the US (I started with F1’s and H1B’s). My young daughter was born and lives in the US. I raised her as a single dad in her early years. She now spends school semesters with her mother and school holidays with me. Since 2014 I have been studying for a new career, living on savings, with no income or tax filing requirement. My home is always available for use by myself, my daughter and her friends. But to help with cash flow, a year ago I rented one bedroom only, to a roommate, so am now preparing my 2019 1040 to report the income. To connect an NOL in my 2013 1040, I need to also file interim years 2014-18. No tax is due.

Since 2014 I have spent considerable time traveling (to use up expiring frequent flyer and hotel points), but never broke continuous residence. Most trips were 5 months, 3 months, or less. One trip - in 2016 - was extended to 8 months for unplanned health reasons. The purpose of each trip varied: vacation, voluntary work, a photographic study, meet my girlfriend, etc. Each trip “was expected to end within a relatively short period fixed by some early event”. My intent to live in US remained unbroken.

In December 2020, my absence from the USA will exceed 12 months. Currently, I am stranded under local COVID lockdown on an island in a Philippine province with my Filipina fiancee of 2 years. My age, gender, and medical history put me at a very high statistical risk of death from COVID. The route back home is complicated, through crowded areas, with multiple opportunities for COVID exposure. A doctor has strongly advised me against travel until the risk level improves. However, I am very worried about the nightmare of complications that losing LPR will cause. Maintaining my health also requires I minimize stress.

Lockdown delayed our marriage/CR1 plans, and Philippine requirements are complicated. We are now considering a simple fast US state online marriage service, then filing our CR1 online. Obviously filing a CR1 for my fiancee and I to reside together in the US is in itself a very clear intent NOT to abandon US residence, but given how hard they make it for LPR marriages to stay together during CR1, the irony of “wife free to visit” justification of canceling LPR after trying to stay together in Singh vs Reno, I can’t assume reason will prevail. I feel torn:

- Voice A says: Stay Safe. Build immunity. Return home in June 2021, parent my daughter for the summer, and face the stress of defending LPR.

- Voice B says: Risk Death. Return before December and secure LPR to avoid the stress of fighting to get it back. At under 12 months, and given the reason for delay and my profile, it will be much easier for the inspector to waive me through.

I really should chose A, but need to quantify the stress level of the possible outcomes of doing so. If I feel confident of outcomes 1 or 2 below, then I’ll choose A. If 4, then B. If 3, not sure.

Since I have a “colorable claim to LPR” and valid I-551, I conclude that at border re-entry in June 2021, upon presenting documentation showing COVID prevented return or access to embassy for SB1 - plus abundant documentation showing lifelong US ties - the only possible scenarios, if code and manuals are followed, ranked in order of stress, from low to high (with associate questions for you Rajeev) are as follows:

1. Admission (with possible warning note written in passport beside entry stamp).
Q1a. At 18 months absent, does an inspector have the authority to do just this?
Q1b. Is secondary inspection a certainty, or does an inspector have the authority to Admit without even that?

2. Admission with Form I-193: Application for Waiver of Passport or Visa and $585 fee.
Q2a. In my case, is it more likely inspector will demand this, versus simple Admission with advisory above?
Q2b. Can the front line inspector handle this at the line counter without secondary inspection?
Q2c. I understand I-193 is submitted to the local District Director who has the authority to grant the waiver. Is it the district local to the port of entry or local to LPR’s home?
Q2d. Do we know which districts (directors) are more understanding towards LPR’s?
Q2e. Is approval granted after a wait at the port of entry, or later by mail?

3. Deferred Inspection: later appointment at local DHS office (Form I-546).
Q3. I understand this can happen if the inspector does not have immediate access to relevant government records. Can I reduce this risk by arriving within regular workday business hours, at a major, well-equipped, airport? (versus land borders or foreign CPB Pre-Clearance airports)

4. Referral to Immigration Court. Sworn Statement & Form I-862, Notice to Appear (NTA).
Q4a. I read that this is rare, due to the time for inspector to prepare the documents, and the likelihood the DHS will bin it where LPR has colorable claim. Given how colorable my claim is, do you feel NTA is unlikely?
Q4b. If NTA does happen, I read “the courts are so overwhelmed it will take 4-5 years to get a date, which is sufficient to “re-establish residency and terminate proceedings”. On what basis, and with what Form, is that accomplished?

Q5. In each case - 2, 3 and 4 above - is confiscation of physical green card optional or mandatory?
Q6. Since I have been honest and committed no crimes, I assume Custody is not possible. Is this a safe assumption?
Q7. Even if I could travel to Manila to get an SB1, COVID risk plus the fact that the State Dept applies stricter rules than CBP, favors presenting my case to CBP at border. However, since the central premise of SB1 - “delay for reasons beyond LPR’s control” - perfectly fits COVID, do you feel SB1 is actually a much better path for me? (if the domestic travel risk falls low enough to make it available)
Q8. Do we know which US airports are more understanding towards LPR’s? Are foreign CPB Pre-Clearance airports - such as in Canada - a good choice?
Q9. If my fiancee and I enroll in my local college to gain qualifications needed for a future a business together, is there any remote chance the US government will allow her an F1 during our CR1 wait time?

While it seems reasonable to be confident that the USCIS will make a broad COVID exemption, given how many COVID provisions have already been announced, one for LPR’s is conspicuous by it’s absence, and therefore perhaps deliberate. Therefore it seems Darwinian analysis is our only option.
 
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#11
Hi,
EB1 - Active Employee count in the foreign entity based Matter_of_F-M-_Co._Adopted_AAO_Decision_2020-01
I worked for a Company A in foreign country in managerial role and Company B(Parent company of Comapny A) in USA sponsored my H1b and have been working in USA for 10years in managerial role.
Now the Company A (foreign entity) has only one active employee and rest of the employees started a new entity. The foreign entity is still active. based on Matter_of_F-M-_Co._Adopted_AAO_Decision_2020-01 we must maintain the active relation at the time filing. Can you please let me know if there is restriction on active employees required, if so how many minimum employees need to be working at the time of filing?

Thanks
Suresh
 
#12
Hi,

I'm working for a hospital on cap-exempt H1B. A consulting firm applied H1B in the lottery and it got picked and approved. I have the soft copy of cap H1B approved I797 petition. Can I transfer the cap approved H1B petition to another private company after October 1 without working for the consulting firm who applied it?

Thanks.
 
#13
Hello, I am waiting for a nunc pro tunc interview and I’m a bit worried. I got my asylum through my dad who seeked asylum from a country different than the one I was born in/came from. He became a citizen in 2009 and didn’t submit for my i485 until 2014. I was still under 18 at the time but due to him naturalizing I have to go through the NPT process, he’s also deceased. I’m worried because we have different nationalities and I was very young when I came here in 2004. I wouldn’t know what to say if asked about rather I fear persecution in my country. I have a feeling they will ask me due to me being born in a country different from where my dad ran away from. I no longer speak the langue of my country and I don’t know anyone in that country. Being sent back there would be sending me back to die. What can I do to ensure I get granted asylum as the principal and adjust my status? Any other tips or input will be appreciated, thanks.
 
#14
Hi Rajeev Sir,

I have a question regarding I140 in EB1C category.

I have been working for India based Employer A in India for 9 months. Employer A has recently been acquired by a US based well established, 20 year old company B. Company B has applied for my H1B this year in Apr'2020 and it has been approved. I plan to start my employment with company B in USA 6 months from now.

When I start with company B in USA, will I be eligible for I140 in EB1C category, since I would have 15 months tenure in foreign subsidiary by then or I will be eligible only for EB2 since it has been just 6 months since acquisition.

I have worked in US in the past with another employer C on L visa for 5 years so I only have one year remaining period with new H1B. Does this one year period only start counting when I start my job in US or it'll start accruing since Oct 1. current validity of new H1B is Nov 15, 2021. I plan to start my job in US in Feb 2021 if everything goes well.

Thanks,
Ashish
 
#15
Hi Rajiv Ji,
Thanks for your service.

My spouse I-140 (EB2) was approved in Sep-2017 (3 years back) and her employer (A) didn’t share approved I-140. We are planning to get approved I-140 copy via FOIA. We have I-140 receipt number which employer shared (our latest H1B approval I-797 has beneficiary number above name, I believe that is Alien Registration number or A-Number).

I am working on H4-EAD, which is valid till next Jul 2021 (10 months) as per H1B approval date.

My spouse new employer (B) is telling they need approved I-140 copy, not receipt number. Getting I-140 copy from FOIA will take time and by the time new I-140 get approved; my existing H4-EAD will expire.

Q1:
If she changes employer, is it compulsory for her new employer (B) to file green-card for her, so we can renew H4-EAD or we can keep using existing approved I-140 of Employer A and get new EAD for 3 years?

Q2: I completed my 7 years on L1A, and currently working on H4-EAD. Can my employer file GC for me?

If yes, once I get my I-140 approved, can they apply for H1B so I can work independently on my visa or I need to go out of USA for at least 1 year before they can file H1B for me or is there any other alternative so I can work irrespective of my spouse visa status?

Q3: Once our H1/H4-EAD approved for another 3 years (i.e. till Jul 2024), can we go out of USA for 1 year and after returning USA (i.e. July 2023) I can again start working on Same H4-EAD and ask my employer to apply for H1 meanwhile; or after returning that H4-EAD will not be valid if my spouse (H1) come back through different employer?

Q4: My spouse’s attorney used only First (included middle name as well in First name) & Last name and left middle name blank in some of the documents, will it create any issue in future?
 
#16
Hello Mr. Rajiv,

I have some questions regarding Salary reduction on H1B.

I am on H1B since Oct 2019 with a small scale company on full time bases where I am the only one on H1B visa. I got my visa stamped in Dec 2019. Came back to US in Jan 2020. My salary was $65,000/year. Because of the Pandemic my salary reduced by 13% after 25th April 2020. I am still on reduced salary. My company didn't file Amendment or new LCA. As we are a small scale company I can talk to company's COO directly. Upon talking about salary we agreed on showing unpaid leaves because of the pandemic as a reason for the salary reduction. I am going to change my current job within a month or two.

I will really appreciate if I can get your opinions over this scenario. What we did is correct? If its correct, how long I can keep doing this. If its not correct, what should I do/should i have done. Will this affect H1B transfer in future when I change my current job? If yes, what are my options to avoid any consequences.

Thanks
Nil
 
#17
Hello!

A sincere thank you for all you do for us.

Here is my timeline which I have included in my Intent to Writ.

For background, I married my now husband July 16th, 2017 (

My I-485 application for adjustment of status was received by the USCIS Vermont Service Center on August 4th, 2017 – Receipt Number MSC1791668643. On August 29th, 2017 I had my fingerprints taken in Los Angeles where I reside.

On September 28th, 2018 we had our interview at the LA Field Office. During my interview I and my husband truthfully answered all questions asked. Mr. Hassan Johnson ---examined our file and approved us based on an updated I-693, which we provided on 3 separate occasions, and has since been confirmed as added to our file.

On May 20th, 2019 we contacted our Congressman regarding assistance with our case, as we had not heard anything for months.

On June 20th, 2019 our then lawyer contacted the Vermont Service Center regarding this matter, with no response.

On November 1st, 2019, we received notice that our case had been transferred to the National Benefits Center for quick processing.

On December 27th, 2019 NBC confirmed that they received our file.
3/5/20 - From Congressman via USCIS Liaison. NBC confirms that the application is facing some adjudication delays because of unresolved issues they are unable to elaborate on. They are also unable to determine when the review process will be completed, but our office will continue to monitor the status of the applications and follow up regularly for updates.

(We believe these “adjucation delays” and the fact that we can’t get any information are due to the U-Visa still being in process.)

On March 17th of 2020 I wrote to the National Benefits Center for an update on my case and received no response.

On April 29th and May 30th of 2020 I sent an inquiry as our case was outside of normal processing times, and got no answer.

On June 17th of 2020 (and on several other occasions) I called USCIS and was told that I could not obtain any information regarding my case and to write the VAWA unit for more information.

On July 15th I sent a Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment with the U.S. District Court in the event a fair and prompt decision (including any and all formalities associated with such decision), has not been made and communicated to me by the end of the business day on August 31st, 2020. This was sent to USCIS, USCIS Vermont Service Center, the local Los Angeles Field Office, and DHS.

We got a reply telling us they would be looking into it. And we would receive a response by August 23rd (nothing came)

On August 28th I wrote a letter stating that I would like to withdraw my U-Visa application along with this lengthy timeline as we cannot get any information since it is blocking anything relating any kind of information that USCIS could possibly give us.

What are my choices now???? Directly sue?

We are losing hope..

Thank you!
 
#18
Hello Rajiv Sir,
I need your expert advice. I filed for Green Card under EB1-C in 2018, with approved 140 and after 2 years due to my company layoffs, I lost job and using AC21 portability, moved to new employer in same/similar role in May 2020 with my valid EAD (L1 A visa was invalid as I had to leave my employer). New Employer filed 485J in August 2020. This month, my 485 and old 485J got approved and received approval notices and green cards too. However, my new 485J is still pending and no change in status. Another thing was that my 485 was with NBC whereas new 485J is with Texas Service Center. What should I do now ? I have valid Legal permanent resident card for myself and my family members. And there are no processing times for 485J, what action items do I need to take? I have all valid documents and followed all steps, including proactively filing 485J from my new employer. Appreciate your guidance.
 
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