Recording of July 21, 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: August 04, 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

 

[JZ_SE]

FAQ: How soon can I file for an H-1B transfer after joining, and do I need the employer's permission?

Hi Sir,

Q1. After H-1B COS is approved, how long I need to work with current employer before I can file H-1B transfer?

Q2. Do I need permission from my current employer for H-1B transfer?

Thanks,

 

[monica1]

Repercussions when you overstay your tourist visa due to Covid

Brief introduction:
I am a retired senior executive from a MNC in Bangalore, India, aged 62 yrs and my wife Navitha H V is a home maker aged 57yrs. We are living in Bangalore with my aged parents. Our daughter (only child) a CA married to a Software Engineer, both working are living in Seattle, USA, since 2015 along with their 14 months old Daughter. Both me and my wife visited our Daughter and Son in law in Mar 2021. This was our third visit to US (the first one was in 2001 and the last one was in 2018, both for a duration of 15 days to ~ 3 months). Landed in San Francisco, US on Mar,11 th 2021, with an I-94 up to Sep,10 th 2021. While in US, sometime in June’2021, due to the start of 3 rd wave (Delta variant) of coronavirus pandemic, there were travel bans and direct flight cancellations.
This was extremely risky for people of our age to travel back to India as per our original schedule on Sep’4 th 2021 and hence we applied for an extension until Nov’30 th 2021. Synopsis with chronology of events of our overstay while in US with B1/B2 visa
o July,15 th 2021 - Filed I-539 and I-539A for an extension
o Aug,3 rd 2021 - Resubmitted after realizing an error in the fee payment in our filing done on July,15 th 2021.
o Aug,9 th 2021 - USCIS Acknowledgement dated Aug,9 th 2021 informing that the application (resubmitted) filed on Aug,3 rd 2021 was under process.
o Aug,25 th 2021 - a notice from USCIS dated Aug,25 th 2021, returning the first application filed on July’15 th 2021 with an information on incorrect fee payment, and an advice to resubmit (which we had already done)
o Oct,23 rd 2021 – Left US with the earliest available direct flight (once per week) from San Francisco to Bangalore as the Delta variant coronavirus (especially in India) was getting under control and the risk of exposure/transmission had got lowered for a satisfactory departure.
o Oct,27 th 2021 – communicated to USCIS thro’ a letter dated Oct,27 th 2021 regarding our departure to Bangalore with evidences of copies of return ticket, ticket purchase receipt, boarding pass, arrival stamping in Bangalore (India), and Post flight certificate from the Airliner, and requesting to approve our application for extension until Oct,23 rd 2021.
o Nov,6 th 2021 – ASC appointment notice from USCIS (letter dated No,6 th 2021 posted to my Daughters residence in US) for a biometric appointment on Nov,29 th 2021 at 11am at USCIS, Seattle.
o Nov,20 th 2021 – Requested for cancellation of the ASC Biometric appointment scheduled on No,29 th 2021 (thro’ a phone call from Bangalore, which was the only way to connect)
o Nov,21 st 2021 – parallelly communicated to USCIS thro’ a letter dated Nov,21 st 2021 requesting to cancel the ASC Biometric appointment scheduled on No,29 th 2021.
o Apr,25th2021 – Letter from USCIS dated Apr,25th2021, denying our application for extension as we had departed the US without satisfying the biometric requirement (under Title 8 Code of Federal Regulations, Section 214.1(c)(5)). Further, should we seek to re-enter the US as a B non-immigrant, we need to establish our admissibility again and be granted an admission as a B2 non-immigrant by US CBP.

Queries
1. How do we establish our admissibility and be granted admission as a B2 non-immigrant by US CBP for re-entering US after an overstay (for 6
weeks) / extension of I-94 with Bi/B2 visa in 2021?
2. Will this overstay be an issue for our B1/B2 Visa renewal which is due in 2027?
3. If so, how do we show convincing proof that we won’t repeat such overstays?

 

[Naveen_B1]

Starting a limited liability company (LLC) while in the US on H-1B

Hi Sir,

I am a software engineer and on H1B. I am a part-time day trader and looking to open an LLC. Is it possible to pursue my interest through LLC? I want to grow my portfolio and not looking to withdraw any salary/money from the LLC. Is this feasible? If no, can I collaborate with a citizen and own 49% of the firm? Does this have any legal complications?

Thank you

 

[JZ_SE]

EB2 or EB3: What is the right option? Does a green card depend on the country of birth?

If country of birth is not India or China, then is there any advantage of EB2 over EB3? If yes, what?

Employment verification letter: What happens if the company or manager is no longer with the company while filing for I-140? Changing jobs during the green card process

Q1. I have an employment letter from my manager that I will use for my green card application. However, if at the time of filing I-140, if the company is no longer in business, or my manager is no more with that company, then will USCIS require additional verification?

Q2. Does USCIS reach out to manager and company to verify employment during green card process?

Q3. For my green card, my attorney suggested me to use my master's degree because I earned required credits before joining current position and I have verification letter for that from my school, but the problem is that the official completion date of master's is after joining current position. So, am I safe, or it will be problematic using this master's?

Employment based green card filed for the current or future job

Situation: If an employment based Green Card is filed for a current job or for a future job however, during green card process or after getting green card, the indented job no longer exists.

Q1. Can the green card still be processed if it is already in the process?

Q2. If the green card already received but not used for indented job because it no longer exists, will that green card still be valid?

H-1B visa porting and working with current employer after H-1 transfer approval

1. If H-1B transfer is not approved, can I keep working for current employer?

2. After H-1B transfer is approved, can I keep working for current employer until I join new employer?

3. After H-1B transfer is approved but I change my mind to remain with current employer, how can I do that?

 

[AnoopGC]

Potential risks of late green card renewal submission

Hi Sir,

I am a Green Card holder and my 10 year GC renewal is pending, I do not have any criminal record and always paid my taxes.

my question is

Can USCIS deny my I-90 10 year GC renewal for one time failing(forgetting) to file ar-11 address change?
In my case I forgot to file ar-11 address change only one time in year 2012
But after that I moved couple of times and I Always filed address change form and also have proof of filing.

I recently read that Ina 265 , 237(a)(3)(a) failing to file ar-11 is deportable offense? Have you seen cases where green card holder deported Only because of failing ( only once) to file ar-11 address change form ?

Thank you

 

[rkamaligp]

FAQ: Naturalization issues when one continues to work with the new employer on GC instead of joining back the old employer

Hi Rajiv sir,

Thanks for doing this.

1. My previous employer applied my GC and it just got approved on 07/15/2022.
(a): I have EB3 and EB2 I-140 approved from the same employer.
(b): Filed 485 based on EB3 priority date and recieved EAD and AP.
(c): No interfiling done to move from EB3 to EB2 and GC got approved.

2. I joined a new employer 5 months ago using H1B with the mutual understanding with my previous employer. In case needed, i would join them back. No I-485J transfer is done so far.

Q1: Can I continue to work with my new employer using my GC instead of H1B?
Q2: Will it cause any issue during my naturalization or will there be any issue now?
Q3: Do I need to join my previous employer? If yes, how long do i need to stay with them before I move back to any other employer?

Appreciate your response on this. Thanks.

Regards,
Ganesh

 

[eef]

Can I work on H-1B (with an approved EB-2) and stay in Canada while my spouse is on TN and children are on TD?

Hi Sir ,

I am Canadian Citizen working on H1B and have approved I140 (EB2) with a priority date of August/2017. My wife is on TN and kids are on TD status. My company started a Canadian subsidiary and has been in operational for the last 3 years. Now, the Company willing to do intra-company transfer to Canada for a period of atleast 12 months or so in a Technical Manager role. This is a remote position and once in a while in-person. After 12 month period, my company is willing to do intra-company transfer to USA and sponsor L1-A and hopefully it will help to get green card in EB1 status.

My questions are
1) Since it's a remote position, Can I move to canada and establish residency then return to US on TD visa under my wife TN and perform remote role from USA for the Canadian subsidiary and when in-person presence required then go to Canada ? My payroll and other benefits will be provided as per Canadian employment offer letter and relevant rules and laws.
2) Is there a minimum in-person presence required in Canada to get L1-A status apart from minimum of 12 months of continuous employment for a Canadian affiliated corp in a Manager role ?
3) Is there any thing I need to be concerned while I explore this route ?

Thank you and have a great rest of the week ..

Ragards

 

[Hrz1]

FAQ: PhD students and eligibility for EB-2 NIW and working on F-1 OPT

Hello Sir,

1) Is it possible for current PhD students to apply for EB-2 NIW?
I have been thru websites where they have said It's Possible, but then why is it not possible for current MS students?

2) Is it possible to work and study in F-1 OPT after completing the degree?


Thank you!

 

[aks341]

FAQ: Divorce while I-485 is pending: cross chargeability loss, section 498A criminal complaint

• I work on H1B. My I 485 and wife's I-485 was filed in April 2022;
• My priority date=Apr 2014; Have lived+worked in USA since 2004=Student visa and h1B visa;
  • Wife was born in Nepal. She has the receipt number of my I-485 and her I-485;
• I believe due to India Priority date current, I am eligible for filing and getting my GC without using cross-chargeability. Is there any implication that I should be aware of?
• We are divorcing due to mismatch in expectations. Got married in 2018; She came to the USA in early 2022 – after 4 years of disagreements and delays to live in the marriage with me.
• She may file cases against be in India – such as 498A and claim that I used her Nepal birth for my GC. T,his was a genuine arranged marriage, that was started through communication between our families.
• Can she harm my I-485 case by directly communicating to USCIS about her claims. What possible risks I should plan for.

 

[chirsiri000]

N-400: Ongoing residence and physical occupancy requirements

Citizenship-related question --

My parents were out of the country on Advance Parole when their GC was issued.

Date of Departure from the US - 09/07/2017
Green Card issued - 10/20/2017
Date of Return to the US - 04/24/2018

So they were out of the US for 6 months 4 days after the GC was issued but on Advance Parole. From then until now they have been outside the US but NEVER for more than 165 days.

In this scenario, I am not sure when the 1st day is counted for the 5 yr requirement.

Question --

Will they be able to submit the application on 10/20/2022 or 7/10/2022 (90 days early)? If yes, is any additional documentation needed before we file N400 ?]
OR
Will they have to wait till 04/24/2023, which will be 5 yrs. from when they returned back to the US (4/24/2018) after GC was issued?

Thank you for taking my question.

Thank you. Regards, Chirag