Recording of March 18, 2021 Conference Call with Rajiv S. Khanna

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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 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.

 

[ricknim]

FAQ: Cap-exempt to cap-subject H-1

Hello Rajiv ji,

I have been hearing your opinion on switching from cap exempt to cap subject H1 in your community calls and have few questions.

situation: I am on a cap exempt H1 with an approved i140 more than 180 days and I found an employer who can file my cap subject H1 this April.

1. If the cap subject H1 is approved before oct 1st, will my new employment start date be earlier than October 1st?
2. should I have to leave my current employer as soon as the other H1 is approved?
3. what if I don’t join the new employer until I find a project with them? Meaning, can I wait until after oct 1st until I find a project with them?
4. should I have to start my employment with new employer as soon as H1 is approved?
5. From your previous calls, I understood that if the new H1 is not revoked until oct 1st, I don’t have to go under cap anymore. Is that still accurate? Also, can you explain about getting a new i94?
6. Should i have to go thru the GC filing all over again? What if I leave this new employer in a year? Will the GC process be effected?
7. can I start working with new employer while continuing my current employment?

thanks much in advance !

 

[Vamsi1986]

FAQ: H-1B revoked by the USCIS - impact on quota/lottery exemption

Hello Rajiv,

I have question to related to H1B revocation and Cap exemption.

I am based in India and have never traveled to the US. Back in 2014, Employer A filed H1B for me. It got picked in the lottery, got approved for 3 years till August 2017. When I went for Visa stamping at Chennai consulate, I was given 221g and the case was sent back to USCIS and it got revoked in August 2017. ( about 3 years later of my H1B Approval)

Now I have an employer B who is ready to sponsor H1B. Am I eligible for cap exempt or should i go through the regular CAP quota?
Earlier H1B can be used and transferred to my new employer?


Below if my case history with time lines:

June 5, 2014 USCIS approved your Form I-129, Petition for a Nonimmigrant Worker.
October 7, 2014 I appeared for Visa interview at Chennai Consulate and was given 221g for further Administrative Prosessing
February 11, 2015 The Department of State sent my case to USCIS for review.
June 27, 2017 USCIS mailed my employer a notice indicating our intent to revoke the previous approval decision made on your case.
August 11, 2017 USCIS received employer correspondence for Form I-129, Petition for a Nonimmigrant Worker.
August 25, 2017 Revocation Notice Was Sent

 

[immi_kumar_2020]

Regarding filing green card/ naturalization for single parent

Hi Rajiv

I have below questions with respect to filing Green Card/ Naturalization for our Single Parent.

1) In order to file, Green Card/ Naturalization for our single Parent in India, do i need to be a Green card holder or US Citizen?

2) Filing Green Card / Naturalization when our Parents in USA or Counselor processing from India, which is faster way to get.?

3) Do we need a lawyer to help in this process or can we apply by ourselves? What are the forms to fill and which gov website give more details we can read if we want to apply by ourselves?

Please let us know your thoughts and suggestions.

Thank you in advance.

 

[ITPro20]

FAQ: Doing business on AOS EAD and on H-4 EAD/extension

Q1) I know, someone on EAD based on AOS waiting for I-485 approval must produce a valid job offer (Supplement J) during GC interview. Once the person update work status as EAD on Form I9, then the legal status will become EAD based on AOS. Can the person start a business/startup while on EAD with pending I-485? If yes, should the person notify USCIS about it? Does Form I9 need to submitted for starting/running a business/startup?

Q2) I know, someone on H4 EAD can start a business. After starting the business, when the H4 EAD will be expired next time and will be waiting for approval, how the business can be operating during that waiting period as H4 and H4 EAD take long time to get approved?

Q3) When the owner of the business waiting for the H4 EAD extension approval, can the owner continue to work for the business (while waiting for H4 and H4 EAD approval) if the owner has EAD based on I-485 AOS? If yes, will his H4 extension application become invalid?

Q4) When the owner of the business waiting for the H4 EAD extension approval, can someone else on H1B status who is working for an employer (but has EAD based on I-485 AOS) also support/volunteer the business in parallel temporarily? Will that change his H1B status? Will there be any need for separate Form I9 submitted for him for supporting the business temporarily? Does W2 need to be generated for him for temporary support?

 

[Gme]

Filed H-1B along with H-4/H-4 EAD extensions, premium processing, travel, and USCIS expedite request for spouse's H-4 EAD

Hi Rajiv Ji, Thank you for conducting these biweekly calls.

My question is related to H4 EAD

Current Status : I am currently working on H1B and my wife is working on H4/H4 EAD . Both H1B and H4/H4 EAD are valid till Sept 2021. I filed i485/EAD/AP in Oct 2020 and currently waiting for GC EAD card.
We both have H1 and H4 visas valid till Sept 2021 stamped in our passports.

I filed H1B along with H4/H4 EAD extensions in premium in March 2021 and have questions related to different options I am considering to expedite my wife's H4 EAD.
Option 1: Post getting the H1B i797 extension approval, my wife is planning to travel to Mexico and while entering the US
a) Can she use my approved H1B I-797 approval to extend her H4 i94 till 2024 at POE?
b) Can she then use this new i94 to file for another H4 EAD extension as the standalone EAD extension is getting processed faster ?
c) Will the H4/H4 EAD filed already be abandoned in this scenario? If not, will doing the above cause any conflict like multiple H4/H4 EAD approvals?
d) Are there any other POE (closer to Illinois/Michigan) where it may be possible to extend H4 i94 with just H1B approval notice ?

Option 2: If option 1 is not feasible , then my wife is planning to travel to India , get her H4 stamped using H1B i797 approval and file for another H4 EAD extension after coming to the US ?
a) Will the H4/H4 EAD filed already be abandoned in this scenario ?if not, will it cause any conflict like multiple H4/H4 EAD approvals?
b) Also is it possible to file H4 EAD while she is in India ?

Option 3: Switch to GC EAD if we don't receive H4 EAD before Sept 2021
a) If we receive her H4/H4 EAD approval after switching to GC EAD , will those approval be valid or do we need to inform USCIS before her switching to GC EAD ?
b) if my wife switches to GC EAD , will she be using AP to travel in/out of the US and will I be able to maintain H1B status while travelling or doing any future job changes ?
b) I am a little hesitant about her switching to GC EAD as I am unaware of potential issues it could create on my H1B status. Any restrictions/risks you could advise on if she switches to GC EAD ?

Thanks in advance.

 

[Chipmunk80]

FAQ: I-485 pending laid off just before getting the green card

Hello Sir,
It is very appreciated for all the work you been doing. And thank you for answering my Q in the previous conf call.

I have another situation of my relative - person has the employment based green card received on Mar 12, 2012, Received EAD in 2007. However lost the job(job termination) (Nov 2, 2011) 4 months before to receive the Green Card. At the time when GC was approved (March 12,2012) person was not having the job, and there after person couldn't gone to job. Could you let us know what to do for GC renewal and for citizenship.

Thank you,
D

 

[sapentap]

Incorrect priority date on receipt notice, job change after I-140 approval and derivative spouse (GC EAD) working under husband's work visa

Greeting sir,

I have EB2 PD of Aug 2013 from Employer A.
I left employer A cpl of years and joined Employer B.

In Oct 2020, My employer B concurrently filed I-485/765/131 for myself and my spouse and I-140(But in EB3) since EB3 dates became current. I have recently received I-140 receipt notice. I expected it to have a PD of Aug 2013. But it shows a PD of April 2020.
I'm the primary applicant and my wife is a derived applicant.

Question 1: My attorney said since it is a receipt notice it won't reflect my original PD(Aug 2013). But in the approval notice it will reflect. Is that true? Should I be concerned? or is this normal?

Question 2: Upon receiving the GC EAD I want to switch jobs. Can you please explain job change criteria? I heard that I-140 has to be approved for certain duration and 485 application has to be in pending status for certain duration before I switch jobs. Please explain this criteria

Question 3: Upon my spouse receiving her GC EAD, Can she immediately start working for any employer while I'm still using my H1B?

Thank you sir

 

[job2019]

EB-2 I-140 approved, spouse's EAD and H-4 extension in progress and repercussions of working with another employer in India for more than 5 years

Hello Sir,

Firstly, Appreciate your time in answering the questions related to immigration for several of us.

situation: My EB2 I-140 got approved on June,2020 and PD is Nov,2019. My recent I 797 was approved ( based on I 140) till August,2023. My Wife EAD and H4 extension are still in progress.

Questions
1. I need to go back to India for family support for min of 5 years in next month. Will this stop my whole GC processing as i will work for a different employer in India payroll. If yes, what options are available for continuing GC processing.

2. After 5 years (or in future) , if i decided to move back to US. Do i need a fresh H1-B as my previous H1-B would have expired.

thanks much

 

[mkb3]

Dropbox eligibility for H-1B stamping

Hello Rajiv Ji,

Hope you are doing well!

1. I have a question regarding H1B stamping, I am eligible for dropbox in India, and my last H1B Stamping has done in India.

I am traveling to Australia. I checked the 'US travel docs Australia' website, and it appears that they have a 'Visa Application by Mail' service instead of dropbox. I qualify for all the conditions to apply by mail.

I didn't see the condition that 'last h1b stamping should have been done in the same country (home country)'. so I just want to know that if I am eligible for dropbox (Apply by Mail) in Australia as well?

2. Do you see any problems for us in the future if we don't come back after visa stamping?

Thank you.

 

[neeraj1996]

FAQ: F-1 to H-1B lottery - transfer and changing jobs from employer A to employer B

Hello Rajiv ji,

I am a F1 student graduating in May 2021. An employer "X" wants to e-register me for the H1B lottery and I am hoping for a better offer from employer "Y". Suppose I got selected in the H1B lottery filed by "X". Can I start working for employer "Y"? What are my options to work for employer "Y"?

Can employer "Y" file my H1B petition even though I was registered in the lottery by "X"?

Can I ask "X" to not file an H1B petition after winning the lottery and use F1-opt as work authorization?

I am also applying for F1-OPT. Can I use my F1-opt to work till september for "Y" and then use H1B in october to work for "Y" while it was filed by employer "X"? I believe "X" would send an H1B petition with change of status.

Both "X" and "Y" would want me to start around 15th July 2021. I would be using F1-opt until my H1B gets approved. "X" would file my H1B on MArch 15th while I am expecting an offer from "Y" somewhere between 20th March to 30 April 2021.

Thank you!

 

[rahulgopaljoshi]

I-485 filed with I-140 EB-3 downgrade, biometrics appointment and possible upcoming travel to India

Namaste Rajiv Ji

I-485 Filed with I-140 EB3 Downgrade in First Week of November 2020. Waiting on the Biometrics Appointment, and I-131 AP Document and I-765 EAD Document.

Questions related to a possible upcoming travel plan to India - in order to take care of some time-sensitive tasks in India. Planning to request H1-B stamp and return to USA on H1-B stamp.

1) In general - if I-131 AP document is not received before the date of travel, only that specific application would be considered abandoned - not the other pending applications (I-485 + I-140 + I-765) - Correct ? In that case, the I-131 can be reapplied upon the re-entry - Correct ?

2) Does the Immigration Team also get a copy of the USCIS Biometrics Appointment for the applicant ?

3) Can this biometrics appointment be rescheduled ? If yes, can that be done by the immigration team directly without applicant's signature ?

4) Can a suggestion be made to USCIS regarding the biometrics appointment dates - based on the planned return date ? In your past experience, does USCIS typically honor these kind of suggested date windows ?

5) Can a reschedule request be sent more than once for this biometrics appointment (in the worst case) - with of course, a valid reason ?


Thanks

Rahul

 

[H1BImmi]

DUI and I-485 approval

Hello Rajeev Sir,

I'm currently on H1-B visa. I applied for I-485 in October 2020 and I got my EAD/AP card approved. I'm in EB2 category with priority date of March 2011.

I was convicted for DUI in November 2011 and consulted Rajeev Khanna Sir in 2012 through 15 minutes telephone consultation. As Rajeev sir advised, I got the certified copy of court disposition and a letter from criminal lawyer explaining that this is a misdemeanor -- quoting the statute.

So with the first time DUI arrest (in 2011 been 10 years) , I have 2 questions:
1) I would like to know if first time DUI affects my chances of getting I-485 approval?
2) I'm planning to convert from my H1-B status and start using EAD, will it be wise to do that considering the DUI arrest.

Thanks for your time!

 

[Laura_M]

H-1B travel and expired H-1B stamping

Dear Rajiv,

I am currently on H1b with approved I-140 and pending I-485. I have obtained an H1b I-797 extension until 2023 and an expired H1b stamp. Both - my husband I - received the EAD and advance parole card valid until Feb 2022. We’re planning to go to visit our families in Europe in April and come back via Mexico as parolees (spending 14 days). My questions are:

- Since I may not have the time to renew my H1b Visa stamp during this trip, will I still be able to apply to my H1b stamp later on (like in December), more like to use it as a backup?

- If, instead I have to renew my H1b Visa stamp and come back using that, can my husband come back as parolee instead? Does this create any confusion with the immigration officials at the border (him using the Advance Parole and me the H1b visa?)

- Does the H1b visa get canceled by immigration officials at the border if I enter as a parolee?

Thank you so much for your support,
Laura

 

[Rajiv S. Khanna]

Filed H-1B along with H-4/H-4 EAD extensions, premium processing, travel, and USCIS expedite request for spouse's H-4 EAD

Hi Rajiv Ji, Thank you for conducting these biweekly calls.

My question is related to H4 EAD

Current Status : I am currently working on H1B and my wife is working on H4/H4 EAD . Both H1B and H4/H4 EAD are valid till Sept 2021. I filed i485/EAD/AP in Oct 2020 and currently waiting for GC EAD card.
We both have H1 and H4 visas valid till Sept 2021 stamped in our passports.

I filed H1B along with H4/H4 EAD extensions in premium in March 2021 and have questions related to different options I am considering to expedite my wife's H4 EAD.
Option 1: Post getting the H1B i797 extension approval, my wife is planning to travel to Mexico and while entering the US
a) Can she use my approved H1B I-797 approval to extend her H4 i94 till 2024 at POE?
b) Can she then use this new i94 to file for another H4 EAD extension as the standalone EAD extension is getting processed faster ?
c) Will the H4/H4 EAD filed already be abandoned in this scenario? If not, will doing the above cause any conflict like multiple H4/H4 EAD approvals?
d) Are there any other POE (closer to Illinois/Michigan) where it may be possible to extend H4 i94 with just H1B approval notice ?

Option 2: If option 1 is not feasible , then my wife is planning to travel to India , get her H4 stamped using H1B i797 approval and file for another H4 EAD extension after coming to the US ?
a) Will the H4/H4 EAD filed already be abandoned in this scenario ?if not, will it cause any conflict like multiple H4/H4 EAD approvals?
b) Also is it possible to file H4 EAD while she is in India ?

Option 3: Switch to GC EAD if we don't receive H4 EAD before Sept 2021
a) If we receive her H4/H4 EAD approval after switching to GC EAD , will those approval be valid or do we need to inform USCIS before her switching to GC EAD ?
b) if my wife switches to GC EAD , will she be using AP to travel in/out of the US and will I be able to maintain H1B status while travelling or doing any future job changes ?
b) I am a little hesitant about her switching to GC EAD as I am unaware of potential issues it could create on my H1B status. Any restrictions/risks you could advise on if she switches to GC EAD ?

Thanks in advance.

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