Recording of August 18, 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: September 01, 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

 

[viren7600]

FAQ: Change of employers after H-1B is approved and before October 1; the number of pay stubs required; revocation of H-1B before October 1

I am currently on F-1 Stem OPT, and my H1B got approved this year a few days back. My current company is shutting down its operations and moving everything to Mexico. They have given me the last date of employment as 31st October 2022. So my question is how soon can I change my employer and can I transfer my H1B to a new employer before 1st October 2022? Also, if I can do my visa transfer only after October 1st 2022, can I do that with 1 paystub, or will I require 2 paystubs?

%%%%%%%%%%%% FROM needadviseh1 %%%%%%%%%%
H-1B transfer and changing jobs from employer A to employer B

Hi Rajiv,

Hope all is well with you! I got follow-up questions from last week since I got confused. Here are my situations:
1. I am on an F-1 Student Visa.
2. I got picked for the H1-B cap lottery this year, and my petition has been approved (Filed by Employer A)
3. I got an offer from Employer B, they have applied for my H1-B Change Of Employer petition transfer, and it has been approved (Filed by Employer B)

My questions are:
- On Oct 1st, I would like to start working for Employer B. Is it ok to work for Employer B, the 2nd employer to whom I am transferring at the start of Oct 1st?
- Since I already obtained/received the Change of Employer petition approved from Employer B, would it be ok for me to give notice to Employer A before Oct 1st (Sept 15th) ? And in the worst-case scenario, if Employer A revoked my H1-B, I would still be eligible to work for Employer B, since my H1-B Change Of Employer petition has been approved right? (Would this be a correct understanding?)

Much much thank you for your kind response and help.

 

[NKGokana]

I-485 (Adjustment Of Status) process: Place name slightly different in Birth Certificate and Passport

Hello Rajiv Ji,
I am applying I-485(Adjustment Of Status) but i have an issue. In My Birth Certificate the Place of Birth is ******palle but in my passport it is ******palli. Basically, the last letter is different. All these years i used what is in my passport. May i know will this be a problem for my Greencard? Thank you.

 

[sadiak]

Filing H-4 and H-4 EAD together

Hi Rajiv,

I am writing to learn a little about the H4 and H4 EAD applications for my spouse.

1) My spouse's STEM-OPT status is going to expire on Jan 05 2023, our visa expired on June 2022 and I got my H1B approved last year and have submitted PERM application this year, we are hoping that I will get PERM LCA approved around November 2022 and then planning on going for I-140 premium processing. Can my spouse apply for H4 + H4 EAD now, considering the processing time of 7-11 months?

2) If he applies for H4 and H4 EAD applications now, will he be able to stay in the USA after his STEM OPT grace period expires?

3) Is there any other safe option he could choose to avoid the employment gap after Jan 2023 and until his H4 EAD arrives?

Thank you

 

[SaiRam01]

FAQ: I-140 was approved and then revoked in 2011. Can I keep my priority date and also apply for I-485? What is the deadline for filing I-485?

Hello Rajiv Sir,

My I140 was approved on 10 Aug 2010 in EB2, and my PD is June 1st, 2009. Then I moved back to India in Nov 2010. My old employer submitted an application to withdraw I140 on Feb 27, 2011(after 200 days) & sold his company. I filled FOIA request with USCIS in 2019 & got the below response "In accordance with the authority contained in Title 8, CFR, Section 205.1(a)(3)(iii)(C), the approval of the petition is automatically revoked as of the date of approval because, on February 27, 2011, the petitioner submitted a written request to withdraw the petition".

Now I got my H1 renewed through a new employer and came to the US in Apr 2022 and want to start the GC process again. I believe I have to go through the entire process (PERM, I140, 485, etc.) again with the new employer. We have a prevailing wage that we can use, and my employer is going to file PERM in Sept 2022 & once approved, will try to port my PD (June 1st, 2009) while filling a new I140. So I have below questions regarding my PD. Could you please help to clarify them -

1) Since my I140 was approved and revoked after 180 days, I can still keep my PD and port it to the new employer even after 11+ years, correct?
2) As per Visa Bulletin, my PD (1 June 2009) became 1st in Feb 2012 and then in May 2020. As per Aug 2022 Visa Bulletin, the FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES for the EB2 category show 1 DEC 2014. So logically my PD is current. Can I still use it after 11+ years to port and use it for filling 485?
3) Somewhere I read that there is no actual time limit for how long one can wait to file 485 after PD becomes current, however, the delay can cause losing the job opportunity. On the contrary, at another post, it was mentioned that once the PD becomes current, we have to file 485 within one year. Can you please provide clarity on this?
4) If my PD is valid and if I can still use it to file I485, can I file I140 & I485 simultaneously? Will filling I140 & I485 help expediting the process?

I appreciate your valuable guidance on the above queries.

Regards,
Manoj

 

[Shanmad]

O-1 visa to EB-1A and traveling to the US with O visa: Intent issues with the CBP

Hi Rajiv,

I am based in Munich, and I have O1 Visa and EB1A approved. I filed both the petitions in Munich. I am now planning to visit the US with my O1 visa. Would there be an issue at the US border considering I have an immigration intent, i.e., my EB1A petition is already approved?

Thank you!

 

[abhshu78]

Employer filing AOS, I-131 & I -765 together: Can I file the same for my spouse? Can a green card holder start a business in the U.S.?

Hi Rajiv,
My employer filed for my AOS, I131 & I 765 last week and I want to file the same for my dependent spouse. I am planning to do that on my own ( I know you may not like that) and would like know
1. Do I need to wait for my receipt number or can file before that?
2. What forms do I need to file apart from I485,131 & 765?
3. Any critical issues that I should consider in order to avoid delays.

Also on a completely different note as a licensed professional, can I start my own professional practice after I receive the Greencard? Can I register with Small business administration as a DBE (some readings say you need to be citizen)?
thanks

 

[Dhruv80]

FAQ: Impact of alternate wage survey for H-1B LCA; the success rates of H-1B extensions; AC21 rule when the company is bought by a successor-in-interest

Hi Rajiv Ji, Hope you are doing good. I have couple of questions.

1 . "Alternate Wage Survey for H1B LCA" : Employer Attorney is recommending to use this particular alternate wage survey for H1B LCA. "Willis Towers Watson General IT Report -IT Development Application Development" .
What kind of RFE we could expect from USCIS in using an alternate wage survey?
What is the success rate of H-1B extensions? Any chance of H1B denial from USCIS because of this wage survey ??
Is it a recommended practice to use an alternate wage survey for H1B LCA? Please advice.

2. AC21 (Change of company):: I-140 Amendment approved for a successor in Interest : (original i-140 filed in 2011 June)
EB2 I-485 pending for 6 months since October 2021. I-140 amendment was approved in July 2022.
In this above scenario, can I use AC21 Rule and change the company now ? OR Do I need to wait for 6 more months before i change the company as i-140 amendment was approved in July 2022?
With I-485 pending for 6 months, If i move to new company, do i need to apply for PERM and Labor again ? please advice

Thanks !!
Dhruv

 

[drunkun]

Will there be an issue while working remotely on F-1 STEM OPT?

Hi Rajiv,

Situation: I graduated from a STEM Master's program in June and joined a Big Tech firm this week commencing my F-1 OPT. My team is primarily working remotely and meeting once a quarter for team bonding.

Questions:

1. I would like to work remotely from India for a few months if possible. What is the maximum period of time I can work from India to maintain my status and prevent issues at port of entry?

2. Do I need to inform my manager/employer if I work remotely from India? If I inform, can they insist on taking PTO instead if I go to India (even though the work is remote)?

3. Is there any limit on max number of visits or max duration of a visit outside US on F-1 OPT?

Appreciate your community service.

Thanks,
Ravi

 

[gsoncloud]

After I-140 is approved (company could not support CP and I-485 was not filed, the company is filing L-1B), is it okay to get back to the U.S. without an H-1B visa?

Hi Rajiv,
Asking for a relative.
He was in the US on H1 until 2019. He extension got denied and had to go back to India and is working for the same company. He is trying to get back to the US through the same employer. He has his I-140 on EB2 approved through this company with a priority date of May 2010. His dates have been current for about 2 years now. Since his company does not support CP and he could not file 485. The company cannot renew his H1 as he did not file his 485 while the dates were current for 2 years. Now his company is filing for an L1B visa for the same/similar job.
Now can he file 485 after he is in the country, Can he retain his PD? Does he have to file Perm and 140 again?

Appreciate your response.

Thanks
Govind

 

[wmarie]

212(a)(7)(A)(i)(I) Insufficient documentation. Can a fiancée (K-1) visa work?

Rajiv,
Trying figure out what is needed to reapply for admission into the US.
My son (US citizen) and his girlfriend (Canadian Citizen) were stopped at US border Feb 16, 2020. The girlfriend was found to be inadmissible as an arriving alien to the US under INA 212 (a) (7) (A) (i) (I) and was processed under expedited removal 235 (b) (1) banned for 5 years. She was intimidated and extremely shaken up when questioned. She answered the questions honestly not knowing immigration laws. The two of them have since gotten engaged and plan at some point in the future to marry. My son goes to Canada just about every weekend to see her. She though would like to be able to come visit him in the US. I've researched the K1 visa and know that is an option if they are 100% certain about getting married. Should they file the K1 visa or file a waiver? If a waiver which one would it be (I-192 or I-212)?

Any help you can give is much appreciated.
Wendy

 

[EB2toEB3]

Pending I-485 Supplement J after I-485 is approved

Hello Rajiv ji,

My question is related to pending I-485j after I-485 and Greencard are approved. My case history, in brief, is as follows:

Company A filed for I-485 and I-140 (EB2 to EB3 downgrade) in October 2020.
I-140 EB3 was approved in July 2021

Joined previous employer Company B in April 2022. Company B also holds an approved I-140 EB2.

Company B filed I-485j for AC21 and TUB from EB3 to EB2, and within a few days my I-485 was approved under EB2, and Greencard was received. I-485j receipt was issued 2 months after the Greencard was approved. I-485j is still pending.

Company B attorney says that most likely the Greencard was approved based on Company A I-485 original application.

Questions:
What is the standard SOP for USCIS for the pending I-485j after the Greencard is approved? Will they send the I-485j back or adjudicate it? Will I have any issues at naturalization?

Thank you for taking my question.

 

[Pats22]

Currently on F-1 STEM OPT- Company applied for PERM without H-1B

Mr. Rajiv,
I'm currently on my F1 STEM OPT and of Indian origin.
I did not get selected in H1B this year but my company has started the PERM filing process for me.
I had some scepticism if I should stop the PERM process as it may cause issues with my H1B visa application/approval in the future (intent of staying F1->PERM)?
Also, in case I have to go back to school on another F1 visa in the future would a pending PERM cause issues (without approved H1B)?

Looking forward to our guidance.
Thanks a lot.