Recording of April 28, 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: May 12, 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

 

[pranavkapoor1]

Foreign equivalency certification for H-1B RFE

I am on F1 visa and will finish my masters degree in the first week of May. My company had enrolled me in masters cap in the H1B lottery but I got selected in the general cap. As the degree takes time to process, I'm requesting a letter from my University Registrar certifying the completion of the masters degree. However, the University Registrar is unable to entertain my request due to staffing shortages.

1. Since the petition was selected in general cap, can I apply just with my bachelors degree in the same field (already received foreign degree equivalency report).
2. Is there chance of a RFE since I was enrolled in the masters cap during registration, but I'm applying with just bachelors.
3. If there is an RFE, I should have my masters degree in hand by RFE response deadline. Would sending it in response to the RFE at that stage be good enough?

 

[immi254]

Options if GC EAD expires while renewal is in process?

Hi Rajiv,

I'm not sure if there is a solution to this or not, but wanted to know your opinion.
My son is in the senior year of completing his bachelors degree in industrial engineering, he had applied for internships in multiple places, however the employer's are rejecting after being selected in the interview based on the expiration date of his GC EAD which is April 2022, I have applied for the renewal of the GC EAD back in Dec'21, but due to delays in the USCIS processing, the approval can be expected only by October'22. The employers are not accepting the 180 Auto Extension of the EAD Status based on the filing of the new petition as a valid status for some reason. He also has a F1 COS approved.

Is there any solution to issue as it would mean he would lose out on all opportunities?

Is F1 OPT EAD or CPT an alternative?

Thank you

 

[jeeyes]

EB-3 priority date current, eligibility for H-1B cap exempt and L-1 Blanket visa from Canada

I've an approved I-140 (EB3) and my priority date has been current *FOR MORE THAN 1 YEAR* (per the final action date chart). i'm currently in India and don't hold a H1/L1.
My most recent extension (petition filed before leaving the US) & a subsequent cap exempt H1B (filed from India) were denied in 2019.

1. Am i still eligible for cap-exempt H1B? If so for how long?
My company is saying I'm NOT - for both cap-exempt & lottery (since priority date has been current more than 1 year)

2. Do you have any insight into L1A/B Blanket from Canada? Company is processing a Canadian work permit & saying it may be easier to get in from there via L1 blanket. Assuming eligibility remains the same, are the outcomes better (processing it from India vs Canada etc)?

 

[prasadpp]

Will my H-1B visa be canceled if I enter the U.S. on a B-2 visa from Canada?

Hello,

I Came to US in 2015 on F1 visa for Masters, I got H1B in 2017 with Employer A. Green Card I140 approved in 2019. My first H1B stamping was done in Toronto, Canada in 2017 valid until 2020. H1B was extended with same employer (A) in 2020 for another 3 years valid until 2023.

I moved to Canada on Intra company transfer work permit in mid 2021 with same employer (A). No current assets in US. H1B stamping was done in Toronto, Canada in late 2021 valid until 2023. My Canada work permit was valid until Aug-2022 (same as passport expiry). passport renewed for another 10 years in late 2021 valid until 2031 and Canada work permit extension applied in Mar 2022 for 2 years extension. I will be eligible to apply for Canada PR in Jul 2022.

My question, I applied for B2 visitors visa appointment in Aug 2022 at Toronto, Canada. The reason is to visit my friends in US and to transit thru Detroit airport for international travel occasionally. I live across border in Windsor, ON in Canada (near Detroit, MI) so occasional shopping once border fully gets reopened. Does attending B2 visitors visa and if approved will abandon my current H1B and future prospects of US Green card since I140 already approved in 2019?

Does entering US via B2 visitors visa will automatically cancel current H1B (stamp on passport valid until 2023) or officer at POE will have the authority to cancel H1B?

Would it be advisable or not? Do I need to carry any letter of invitation from my friend(s)?

I would like to keep both B2 & H1 Active if it's allowed. And, Of course, main thing is not to hamper future green card prospects.

Thanks for the response!!

-Prasad

 

[Amp@123]

Interfile and aging out son

Hi Rajiv,

Here is my scenario. I am with employer A who filed my EB2 GC with priority date Sept 17, 2014. EB2 I140 was approved within 2 weeks in premium. Myself being main applicant and spouse filed I485 (EB3 downgrade I140 and I485 concurrently) with same employer in Oct, 27, 2020 based on Filling date chart being current. My EB3 I140 was approved after 11 months. My H1b and spouse H4 EAD expired on Dec 31, 2021. We both received GC EAD/AP combo and started using it.
I did not add my son (who is currently 20 years old) I485 in EB3 file. Son is currently on F1 visa and will be 21 years old on Jan 21, 2023.

(1) If EB2 final action date become current for me, can Myself, spouse file another I485 in EB2 and add my son I485 file if i have already started GC EAD/AP received based on EB3 file? or i have only interfile option?
(2) Before Jan 21, 2023, If EB2 final action date become current for me, can i interfile from EB3 to EB2 and add my son I485 in my file? would it lock his age based on CSPA?
(2) Can son still continue maintaining F1 visa status even after i add his I485 with my interfile and if I have started using GC EAD/AP?
(3) If EB3 final action date become current after 10 months of my son become 21 years old. Can i use 11 months from EB3 I140 pending period as per CSPA rule to file my son I485 (or it apply only to original I140 which is EB2 ) ?

Please advise on above.

Thanks.

 

[rahulgopaljoshi]

Using EAD instead of extending H-1B, H-1B out of status and dependents, interfiling EB-2 to EB-3

Namaste Rajiv Ji

REPOST WITH REPHRASING - LAST WEEK QUESTION HAD CONFUSING WORDING
(https://forums.immigration.com/thre...-call-with-rajiv-s-khanna.345719/post-2582607)

A) Currently on H1B and filed for I-485 in Nov 2020 (Downgrade from EB2 to EB3).

B) Received I485 EAD and AP. Never actually "USED" EAD or AP till now.

C) I-140 approved BOTH in EB2 and EB3 categories with current employer A.

D) Re-entered USA on H1B Visa stamp but only a few months left on current H1B.

E) Never Interfiled at all to change any basis (to higher or to lower)

Q 1. Scenario Question -

Suppose that I don't renew my current H1B with employer A after expiry, take a break from work for about 3 months to complete a short-term full-time educational course and then either

a) Resume the same employer A on the same full-time job but now using EAD (first time usage) - OR -
b) A new employer B for a similar full time job using EAD (again, first time usage)

Also submit I485J in both cases; would that be considered lawful or cause any issues with GC pendency ?

Q 2. Per my understanding USCIS primarily applies SOC Code criteria for the same / similar job determination. Are there additional must have conditions when it comes to actual job titles and the salary levels ?

Q 3 (non connected). - Can a primary H1 applicant have a H1b Change to a new Employer B petition pending with USCIS when the H4 is travelling back to the USA during this pendency period using the current employer A-linked visa and I-797 for the primary ?

Dhanywaad

Rahul Joshi

 

[ayedeeaye]

Concurrent enrollment for F-1 student

I have a question about concurrent enrollment in two universities. I am looking to avail CPT from one master's program and simultaneously enroll as a student in another university. How would this look like from an immigration perspective? Would I need two F1 visas and two I-20s?

 

[STEM-OPT-Student]

Consequences of being laid off on STEM-OPT EAD

Hello Sir,

- I am currently on my STEM-OPT EAD valid till August 2023. My company laid off my whole department on 12th April. I will get my regular paycheck for this month on 30th April.
- They have given a SEVERANCE package for one month, which will end on 31st May.
- I have 15 PTO days left which I can still use.
- Unemployment days remaining for me: Total = 100 days (40 OPT + 60 STEM)

Question 1) What date is considered for the start of unemployment days (Paycheck date / Last day of service). Will it be the 30th of April or 31th May ie. after the end of the Severance package?
PS - The only goal here is to push the unemployment days as far as possible.

Question 2) This employer has also filed for my H1B visa which was not selected in the 1st lottery, they have agreed to continue with the process. Can they still sponsor my H1B, if selected in the future lottery? How will that work? Will the Case be approved by USCIS?

Question 3) To maintain the status what are things that I should keep in mind? And what are my options?

I really appreciate your help. Thank you!

 

[Thilayraj]

Leaving U.S. as three month CBP waiver expiring after B-1/B-2 visa cancelled as overstay. Can they reapply for a B2 visa?

Hello Sir,
Firstly, i want to thank you and the team for this forum which really helps us in many ways.
This is in follow up of my previous question on Feb 17th 2022 with subject where my parents b2 visa was cancelled as overstay by CBP agency though they travelled back to India before the decision was made.
FAQ: Left while Extension pending. B-1/B-2 visa inspection at the airport by the CBP and repercussions.

As advised, i reached out to the congressman's office and they got all the details to reach out to USCIS. Unfortunately, we didnt hear from them yet. With this situation, my parents are returning to India on April 29th as per the three months waiver letter CBP gave.

Can you please advise if we can reapply for B2 Visa. or we need to wait for certain period to reapply.
Per the CBP, letter they just mentioned that "subject was told she would a new visa for any future trips to the US"

Please advise.

Thank you and Sincerely,
Ilayaraja Palani

 

[Manisankar]

Parents traveling to Mexico while in the U.S. on a B-2 visa: documents needed and extension filing timing

I have question regarding my parents , they are here on B2 visitor visa . They came here on Dec 17th 2021 so their 6 month on I 94 is till June 16th 2022.

We are planning for Mexico trip on May 16th to May 21st with my parents , Do they required any visa /documents to enter back in USA ? Are they going to get new I 94 with new date or still it will be same date as June 16th 2022 ?


We are also planning to file their extension so they can stay another 4 month (till October 15th)

What would be the best approach to file extension ? Before our Mexico trip or After our Mexico trip ?
After Mexico trip there will be only 25 days left so not sure how long before we should file extension ?
On USCIS recommendation is file extensions is 45 days before I 94 expires , is there any concern if i file after our Mexico trip ?

 

[atulk]

EAD/AP from EB-3 downgrade and 180 day portability rules

Namaste Rajiv Ji,

I will appreciate your help in getting some clarification in my case. Below are relevant details

a) Priority date is March 2013 in EB2. I have been with the same employer since 2010.
b) Filed EB3 downgrade in October 2020 and got EAD/AP in July 2021. Have not used the EAD/AP card yet ( currently on H1B).
c) After EB3 dates retrogressed, filed a new 485 application using original EB2 approval (priority date March 2013) in December 2021. No status update on it in 5 months.
d) USCIS announcement came in Jan 2022 about interfiling for EB3 backlogged candidates, so I filed a 485J in March 2022 to use my EB2 140 in place of downgraded EB3 application that was filed in October 2020. So now I have two separate EB2 applications.

I have a job offer in same/similar category from another employer with expected start date in Mid-may 2022. My questions are:

a) Can I take this job while using EAD/AP that I got from the EB3 downgrade application filed in October 2020? I read somewhere that the 180 day rule kicks in if the 485J is filed. Will that apply in my case? My EB2-140 was approved in March 2013 and downgrade EB3-140 was approved in May 2021. Will my 485 filed in October 2020 be rejected if I take this offer using the EAD/AP?
b) The 180 days for the EB2 based 485 application filed in December 2021 will be in June 2022. But I have not received the EAD/AP for this application. Is there any point in asking the new employer to wait till June 2022 so 180 days have passed for this application?
c) I feel that I am probably close to getting my 485 approved by October this year. Would you suggest taking up this job offer or will it be better for me to start looking after getting 485 approval?

 

[Rohan92]

Job change impact on spouses H-4 EAD, monetizing YouTube account and receiving royalties while on H-1B

Hi Rajivji,

How are you? I had a couple of questions that I was hoping to get your insight on:

1) I am currently on H1B with I140 approved (Priority date: Aug 2015). I have a new job offer which I’m planning to accept. However, I believe I will have to go through the PERM and I140 approval in my new job again. My wife is currently working on H4 EAD. Will she lose her H4 EAD when I switch roles while my PERM and I140 is under processing at the new place?

2) I also have a YouTube channel on technical topics that has attracted a sizeable number of subscribers. I’m thinking of monetizing my YouTube account. I know that if I permit ads on my videos, I will earn some ad revenue. I’m not sure if monetizing my Youtube account and earning as revenue from my videos is permitted on H1B.

3) I have also written a book on coding that is currently being reviewed by a publisher. Initial indications are positive and l think they might agree to publish a few thousand copies as a first print. If this happens, I’d have royalty income. Wasn’t sure if this is permitted on H1B either.

I have been researching these topics but it’s hard to get clear answers on what income sources are permissible with an H1B and which ones are not.

Thanks,
Rohan

 

[nsush2009]

Issues related to I-140 for PERM-based green cards (previous as well as current employer, H-1B Extension and EB-2)

Hello Rajeev Ji !

I am working for Employer-B on H1b , i have an Approved I-140 from Employer -A (previous employer)
my H1B extension was done using approved I-140 from Employer-A.
Have left Job with previous employer 2 years back (employer A)

1> My current employer is pressurizing to apply for a new PERM and I-140 through them as they are saying I-140 is a location, employer, and job specific petition and also company’s policy , they saying my H1b extension cannot be filled without new I-140 . As such, if the employer changes, a new I-140 petition needs to be filed in accordance with the new/current employer.
Question -
1a> will my I-140 which stands approved from my previous employer (Employer-A) will get invalidated (cancelled) ? as i am applying a new I-140 with current employer ?
1b>If my current employer raises a new PERM and goes for a new I-140 , i understand my priory date will be the same(because of my previous
approved I-140) but Will that rule of staying 6 months (180 days) with the current employer post I-140 gets approved , apply in this situation too ? Please advice

2> Current employer is saying they will apply in EB-2 category and my approved I-140 is under EB-3 category, any issues with that will happen in future ? what i should know or be aware of ? Please advice

Regards
Nisha