Recording of April 15, 2021 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'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: 29 April 2021
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.

 

[immi_kumar_2020]

Sending I-485 Medicals to USCIS without Medical RFE and delay in getting GC - EAD card
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Hi Rajiv

My I-485 with Priority day Mar-2011 in EB2 was filed in 1st week of Oct 2020 without medical documents and it crossed 180 days now. With the EB2 dates for final action dates are moving faster, i am thinking in this month or next my priority date will be current for final action dates. So i have below questions.

1) While filing I-485, i have not filed my medical documents along with my original packet. My I-140 is already approved, my bio-metrics is done. With this situation, only thing left is my Medical documents to be send. I have not got any RFE for medicals so far from USCIS. Can i get my medicals done now and do interfiling? or should i need to wait for Medical RFE and then send documents?

2) My GC- EAD card is getting delayed. Should i contact USCIS in 1-800 number and raise a service request or chat with Emma?

Please give directions and suggestions on this matter.

Thanks in advance.

 

[tanmaybhatia]

Naturalization for applicant claimed on parents U.S. Income Taxes
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Hello Rajiv ji,
my question is regarding naturalization. I came here on family based green card when I was 17. At that time, I was a minor and was completing my education, and then I went to college. So I was claimed as a dependent on my parent's Tax Return because I was a full-time student and was not working anywhere. Now we are ready to file for naturalization, and one of the requirements state that the applicant needs to bring with them previous 5 Tax Returns for the interview. I wanted to know should I take my parent's tax return with me for the interview as I haven't started to file my own taxes yet?

Thank You

 

[kapilrastogi]

FAQ: H-1B revoked after 1 October, never used. Am I quota exempt?

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Hi Rajiv,
I got my H1B visa stamped in Jan-2020, visa is valid till the end of 2021 but never traveled to the U.S.
The U.S. company later revoked the H1B.
Questions -
1. Am I cap exempt if I could find a new sponsor in India?
2. If I could get a I797 approval through a new company, can I use the current stamped visa to travel?

Please share your opinion.

Thank you

 

[AKK27]

Premium processing for EB-3 downgrade I-140
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Hi Rajeev Ji

My I-485 was filed concurrently (EB2 downgrade EB3 I-140 New regular process) in the last week of Oct 2020 and also I received all the receipts on 24 December 2020. Recently 3 times we tried I-140 Premium Process to the texas service center but 3 times return with the same reason original PERM required.
Eb2 140 Approved the same location. Because of the return is there any impact on my I-140 regular process?. Can I try again for Premium Process or wait for the regular process?

Thank You
AK

 

[ITPro20]

FAQ: Travel while I-485 AOS is pending: returning on H-1B visa, AP, AVR etc.

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Priority Date became current (EB3 India) and have filed I-485, I-765, I-131 concurrently for me (H4) and my wife (H1B).
We both have "H" visas valid till next year (2022) stamped in our passport.
It has been almost 6 months, but still haven't received the Biometric Notice. Processing timeline has also got increased.

I have 2 scenarios, but same 3 questions.

Scenario 1: At this moment, if we travel to our home country while AP is pending and return on our same H visas,

1) Will it abandon our I-485 AOS application?
2) If NOT, will it invalidate our pending I-131 AP application and do we need to re-apply AP upon re-entry?
3) Will it also invalidate our pending I-765 EAD application and do we need to re-apply EAD upon re-entry?

Scenario 2: Also, we are eligible for Automatic Revalidation. If we travel to Canada or Mexico while our AP is pending and re-enter through Automatic Revalidation,

1) Will it abandon our I-485 AOS application?
2) If NOT, will it invalidate our pending I-131 AP application and do we need to re-apply AP upon re-entry?
3) Will it also invalidate our pending I-765 EAD application and do we need to re-apply EAD upon re-entry?

 

[Jio]

H-4 visa holder owning business outside the U.S.
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Situation:
Person is running a business in home country for more than ten years.
Then needs to move to the US on H-4. No EAD/ Work permit.
Can he/she continue/keep the business alive in the home country by visiting home country for 2 plus months in a year? All income will be declared on India tax as well as US, due to married filing jointly rules.

 

[Rudra_Patel]

On STEM OPT: Issues as current employer A and employer B filed H-1B registration
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Hi Rajiv ji,
I am on STEM OPT Which is valid till January 2022.Please help me with my below queries:

1. Company A ( Current Employer)& Company B both filed H1b registration for fiscal year 2022 . I got picked up from Company B and not from Company A ( status is still submitted) . Can company B file my H1b petition by making Company A as a Client ( Company A is ready to become a client ), Is it valid/legal to make my current employer as client, as they had also registered my application for h1b?
2. Will it be considered under the “ related entities ”? and just as a note these both the companies are not related to each other .
3. Does this situation considered as a “ multiple / Duplicate registration” for the same beneficiary where my End client would be Company A(current employer )who also filed H1b registration and employer will be Company B ?
4. Company A is in Aerospace sector and Company B works for Pharmaceutical devices , If i go with this approach, would there any chances to get RFE or Denial as both companies are in totally different sectors?
5. Do I need to withdraw my H1b registration from Company A ( current employer) if I choose to make Company A as my client under company B’s H1b application?
6. If above ( 5th Question) is not necessary or required and in case of 2nd lottery draw my registration through company A gets picked up, Can I still file for H1b petition through company A (As a FTE) while the application through company B still in progress?
7. If I choose to go with totally different client through Company B while H1b application is in process then till what date I can continue working with Company A ( current employer ) , Where my STEM OPT Valid till January 2022?

 

[rajesh9147]

Working from India on US Payroll with visa expiring 9/2022
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Hi Rajiv Ji,

Currently I’m in India and I’m working on US payroll, with valid and stamped visa till sep 2022. Are there any immigration rules like how many days i can stay outside usa or any other rules to to be considered while I’m outside Usa?If we stay more than 6months outside usa, do we face any immigration problems?

Thanks,
Rajesh

 

[deepmact]

H-4 EAD applying for green card and travelling outside the USA
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Hi Rajiv Ji.

Thanks for your service.

I have completed my 7 years in L1A and now last 2 years I have been working on H4-EAD (I have been working in same company for 15 years. I was working in India before moving to USA).

1. Can my company start my EB1 green card processing (currently on H4-EAD) or I need to go outside USA for 1 year and come back on L1A again, then only they can start EB1 for me?
2. My spouse I-140 approved 3 years back and we have 2+ years of H1B (& H4-EAD) remaining. If we go out of USA for 1 year and come back will my H4-EAD be still valid or I need to reply for new one (my spouse will work for current employer only outside and after coming back to USA)?

Thanks,
Deep

 

[hdsouza]

Missing priority date in I-485 receipt notice - consequences
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Hello Rajiv ji ,
We have applied 485 applications along with EB2 to EB3 down grade on November 2 . In march we received 485 receipts but there is no priority date mentioned on Primary applicants as well as derivatives 485 receipts neither on I 140 receipt . I can understand missing Priority date on derivatives 485 receipts but its missing on primary applicant 485 receipt .

Our attorney opened service request to add missing priority date but response from USCIS was the
"Only the officer reviewing your case can make the corrections that you have requested. We have forwarded your concerns to your file and they will be reviewed by the officer at the time of adjudication. No corrections have been made at this time."

My Question is will the case officer review my case if there is no priority date on my 485 Receipts ? With missing PD date will they ever find my 485 application once the priority date becomes current ? I have not yet received biometrics yet , Is it because missing priority date on 485 receipt date ?

 

[SxD]

I-485 Form - father and mother's name misspelled and EAD approval for passport renewal
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Hello Rajiv Ji -

I had applied for my GC/EAD in OCT-2020. I just realized that there is a spelling mismatch in Father's Name & Mother's Name in Form I-485 (this is the correct spelling per my dad/mom's passport) application and in my passport. My passport is up for renewal in a couple of months so is it advisable to get the Passport names updated to match the names in I-485 at this stage?

Also, is it mandatory to carry passport to the bio-metric appointment, if so I will need to delay my passport renewal until at least EAD is approved (hopefully in a couple of months) and then apply for passport renewal. Please advise.

 

[rahulgopaljoshi]

Additional issues linked to April 1 conf call question: Relative remaining in the U.S. longer with an I-539 application and impact on sponsors visa issuance
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Namste Rajiv Ji

Link to April 1 Conf Call Question (Relative remaining in the U.S. longer with an I-539 application and impact on sponsors visa issuance)

Found out that the USCIS provided some relaxation here and did approve the one-day late filed I-539 extension. But now the same person has filed for another (second) extension for I-94 - though BEFORE the expiry of the I-94 date obtained through the first extension request this time. As the second time extension may not be an easy one in this situation (total continuous stay is already more than one year) - a few questions:

Main Question

Given this new information - I believe my own H1-B renewal (stamping) and re-entry using that H1-B should now be completely decoupled from this person's situation - correct ? Also,

Scenario One -

B2 holder waits past the new I-94 expiry for the I-539 decision and if that unfortunately results in a denial from USCIS

Q 1 - How long can the B-2 holder continue waiting for the decision and When does the clock for unlawful presence start ticking ?
Q 2 - Could there be any potential impact of the negative decision on the B2 Visa (multiple entry) itself ?

Scenario Two -

B2 holder waits past the new I-94 expiry but leaves prior to

a) the date requested on the second extension AND b) prior to getting any decision from USCIS since application was long pending with no outcome

Q 1 - Would there be any accrual for unlawful presence in this case ?
Q 2 - Could there be any potential impact of the B2 Visa (multiple entry) itself ?

Dhanyawaad Sir

Rahul

 

[Godornit]

Immigration and sexual orientation and Canadian permanent resident applying for US visitor visa
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Hi Rajiv,

Question 1.

I would like to get your thoughts on this scenario. Male F1 holder filed for asylum on lgbtq (Gay) grounds, Received NOID, decided not to go ahead with sending a rebuttal, and received Final denial. If 2 years later, F1 visa holder marries a woman, will F1 holder spouse be able to petition for him on marriage grounds? Will USCIS understand that sexuality can evolve? What can be done for them to believe same?

Question 2.

Can a US asylum applicant who was denied and firmly resettled in Canada as a permanent resident obtain visiting visa to the United States?
Will they apply with the original countries passport? or wait till he's a Canadian citizen to apply with a Canadian passport?

Thank you

Godorns

 

[nikranade]

Switching employers while EAD/AP Combo Card pending
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Hello Sir,

My I-140 is approved and I-485 has been pending for 180 days.

Submitted petitions for EAD-AP combo card for myself and my spouse in Oct 2020. So far we have only received receipt notices

What happens to our EAD-AP applications if I switch employers before getting them approved? Do we have to apply for them again?

 

[PriyankaPolisetti]

H-1B visa stamping in India 2021
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Hi Sir,
I'm a student on F1 visa and my H1-B is selected in this years lottery. I'm filing my H1-B using premium processing and considering my H1-B is approved before June 2021, will I need to get my H1-B visa stamped before returning to US, if I travel to India prior to Oct 2021? Are there any things I need to consider if I travel before Oct 2021?

Thanks,
Priya

 

[rdp]

EB-2 to EB-3 premium processing and changing employers
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Hello Rajiv,

We filed I-140, I-485, I-765, I-131 in October 2020 to downgrade from EB-2 to EB-3.
My priority date is June 2014 and I've approved I-140 for EB-2.

We tried to submit I-140 premium processing for EB-3 in October 2020 when we initially filed the petitions for downgrade.
USCIS returned the petition saying we cannot file premium processing for downgrade (which I believe is not true because they accepted some petitions for downgrade in premium process).

We received receipts in February 2021 for all the petitions filed in October 2020.
We tried again 2 times for EB-3 I-140 premium processing in the last 2 weeks but USCIS returned the files saying "Original PERM" required.

However, I believe we cannot obtain another copy of "Original PERM" because we already sent the original one when we filed I-140 petition for EB-2.

Question 1. Would you please suggest whether we should keep trying to apply for I-140 premium processing for EB-3 downgrade or not?

Question 2. As I mentioned, I've I-140 approved for EB-2. And now, we have filed petitions for EB-3 downgrade (I-485 receipt date is Nov 6, 2020). When can I change my job if needed?

Question 3. Do I have to go through all these petitions again if I change the job?

Question 4. Can the approved I-140 for EB-2 be considered and ported to EB-3 to change the job, after 180 days from Nov 6, 2020 (I-485 receipt date for EB-3)? Or do I need I-140 approved for EB-3?

Your guidance will be truly appreciated.

Thank you.
Rushi

 

[monica1]

Marriage options for fiancées visiting in the U.S. and impact of DOS's “Chats with Charlie” in conjunction with April visa bulletin
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Namaste Rajiv ji,
Due to pandemic uncertainties/recent spikes in India and my US job related reasons, I can't travel back home. So if my fiancee comes here on her B1/B2 visa, is it possible to register our marriage here and then she goes out for H4 stamping and after she re-enter into H4 status apply for EAD then. is it any better than CoS from B2 to H4(i539+i765 concurrent)? or is it the same as marriage certificate will show she married in US while on B2 status? any experience if marrying in US while on B2 creates issue or rejection for H4 or GC later on? i read somewhere in 180 days of B2, within the first 3 months one should not marry, is that true? Another option could be-since I'm Canadian PR, can she come on a visitor visa to Canada and we marry in Canada, she applies for H4 visa at a US consulate in Canada or going back to India. could you advise if that's any better for her US immigration in future.

Also, with the new "Chat with Charlie" DoS has started from his recent session he mentioned 275k new EB immigrant visas for coming Oct. again is that 275k he means beyond 261,500 total from past Oct. due to spilled over from FB category. What is your take on this Rajiv ji for EB3 india priority date of Feb.2018? a lot of posts/predictions going online, however with the experience and trust we have in you, would really like to hear from you Rajiv ji. Need to get my changed employer do PERM/i140 process to make use of any temp. jump if we may see again next year. Or am I eligible to file i485 based on my previous employer's unrevoked i140 anyway in that short window of filing dates chart jump and then i140 of new employer can follow before the final action date chart reaches my date? Thanks for your kind service as always!

 

[monica1]

Re-entry application process through a U.S. consulate in India and length of renewal
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Hi Rajiv Ji,
I am working in India for an Indian subsidiary of a USA Headquartered
company.
My Re-entry permit expires on 20 Jun 2021.
My first re-entry permit was valid from Feb 2017 to Feb 2019, but I moved to
India in Feb, 2018. (been working in the India for around 3 years and 1
months)
in 2019, I came to USA to file the I-131 Travel document. and came to USA
again in few months later in 2019 for finger printing.
Considering Pandemic, can we I do the re-entry application process through a
USA consulate in India?
If not, do I need to come to USA 2 times like I did in 2019. First time to
file the I-131 petition and second time to do the finger printing?
Since I have been working in India for round 3 years and 1 months, when my
re-entry permit get renewed, how much additional time I Will get? Is it the
same 2 years?