Recording of May 13 , 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: 27 May 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.

 

[immi254]

Aging out from H-4 visa with EAD card to F-1 change of status
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Hi Rajiv,
Here are the details of my case. Please provide your valuable guidance
Facts of the case:
- My son is aging out of H4 visa status in August 2021
- My son has filed a change of status to F1 in Dec'2020, this is currently pending with USCIS
- I had included my son in the EB3 downgrade I-485 petition as a derivative applicant in Oct'2020
- The I-140 petition is still pending with USCIS
- Last week my son has received EAD card with AP with validity date till April'2022
Questions :
- What do I need to do to ensure my son does not go out of status due to aging out?
- Does the filing of the COS status to F1 cover him from going out of status?
- Can I file a B2 visa for him in the interim while he is a full time student?
- Does the EAD Card issued by USCIS have legal validity beyond his 21 years birth date , even though it's issued past that?
- Is there any possibility to use CSPA to extend the existing H4 for my son; (priority date used for filing the I-485 is the Date of Filing) based on the pending I-140 petition?

Thanks
immi254

 

[svansh]

Spouse visa processing times - Form I-485
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Hi Rajiv

Thank You, for helping the community with all that you do.

My husband is the primary applicant and he filed his I-485(fingerprints done and working on EAD) before our marriage. I’m on H1 and when his priority date became current last year I filed my I-485 as the derivative beneficiary.

Based on the receipt date and field office for my I-485, the time for processing is shown as 12 – 29 months. My husband's case is currently being processed as we see updates on the case.

My question is would USCIS process my I-485 along with my husband’s and will we get our greencards around the same time or would he get his and mine would take 1-2 years based on the processing time( receipt date).

Thank you for your help!

 

[vickyattx]

Working on EAD, pending I-485 AOS and getting spouse to the US
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Hi Rajiv,

If a person has filed for AoS[I-485 based on employment] in 2012 and currently working on EAD, what would be the best way to bring newly wed wife from India.
The company is ready to do H1B. Can the person go out of US get H1B stamp at consulate and newlywed wife get H4 visa at consulate and come to US.

Will this affect ongoing AoS for husband in any way? When the filing date is current again can we file I-485 for wife[derivative] at that time.

Thanks

 

[aaj_2195]

Changing employer while on L-1B with current employer applying for H-1B
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Hi Rajiv,

Scenario : I am currently on L1B visa with company X. Company X applied for my H1B visa in March 2021 and fortunately it has got picked up. Company X is currently in the process of applying for my H1-B as a Change of Status. Meanwhile, I am currently interviewing for another company, say company Y.

Questions :
1) Can I join company Y before October 1st 2021? What is the safest timeline to join company Y with H1B? When can company Y start the process of H1B transfer?
3) Do I need to get a visa stamp before joining company Y?
2) How long does the H1B transfer process require?

Thanks,
Ashwini

 

[BanyanTree]

Consequences for H-1B status holder when dependents are employed with EAD Cards
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Hi Rajiv,
I included my family members - spouse and son as the derivative beneficiaries in the EB3 downgrade I-485/I-140 in October last year. I am on H1B, and my family is in H4 status

All of us have received the EAD Cards with Advance Parole as well

If my wife or son use the EAD Card for employment, will that affect the H1B status of mine?

 

[Indian-Desi]

I-485 processing time - Family Based and wait time for approved I-485 starting additional part-time job
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Namaskar Rajiv-ji,

My employment based I-485 which was filed in 2012, got approved last month. We could file my Wife's derivative I-485 application only in Oct 2020. She has completed her biometric appointment in Dec 2020. Since then her application has not made any progress. I-485 processing time seems to be 12-24 months. She has not yet received her I-485 based EAD.

1. Her H4 I-94 is expiring in July 2021. Can she continue her stay in the USA after her I-94 expires ?
2. Is there anything we can do to expedite her I-485 application or EAD ?
3. I plan to work my current full-time job. Concurrently I want to take a new Part time job. Should I wait for 180 days before starting this Part-time job?

Thanks so much for your insights!

 

[ITPro20]

EB-3 to EB-2 upgrade after filing I-485/working remotely for U.S. employer with pending H4 EAD/Hi1B amendment vs extension
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I filed my I-485 AOS last year as my Filing Date was current under EB3 India.

After 180 days of pending I-485, if I change employer and if later Final Action Date becomes current under EB2 India for the same Priority Date,

Q1) After filing AOS for EB3 application, if the same Priority Date becomes current under EB2 Final Action Date, then can my new employer start a new EB2 Green Card application to Port/Retain the Priority Date from that previously filed EB3 AOS to EB2?

I am talking about an upgrade from EB3 to EB2 from a different employer after filing AOS for the EB3 application already. Because, for the EB3 India even though the Filing Date was current, but Final Action Date may take many years to become current. Meanwhile, EB2 may become current soon in the Final Action Date for the same Priority Date.

Q2) If the above is possible, will that new EB2 filing invalidate my already filed I-485 AOS for the same Priority Date but in a different category (i.e. EB3)?

Q3) If I am on H4 and file extension on time, but leave the country just before expiring H4 EAD, can I continue to work from India but get my salary here in the USA while my H4 EAD extension is still pending?

Q4) My wife is on H1B that expires after a year. If she wants to amend her H1B petition for getting a promotion or to add a new home address to support her REMOTE work, can her employer file an H1B amendment and request for 3 years of approval from now instead of only up to the current H1B petition validity? So that her employer doesn't have to file an extension again after 6 months.

Q5) If the above is possible, can my H4 be also amended along with to get 3 years of approval from now?

 

[arjung]

I-131 Reentry Permit, N470 and COVID
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Hi Rajiv ji.


Thanks for your excellent service.


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.

Currently in India, need to enter USA before June 20 (Re-entry permit expiration date) to mail a new Re-entry permit application.

White house has put a travel ban on entering to USA from India."

A Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019"

https://www.whitehouse.gov/briefing...isk-of-transmitting-coronavirus-disease-2019/

1) How can I enter USA to mail the Re-entry permit I-131 application with this travel ban ? Also, Covid 19 cases are rising exponentially in India and many statesin India has been in lockdown for past 2 weeks and hearing it will get worse before getting better in September?

2) Your thoughts of Returning resident Visa SB1 https://travel.state.gov/content/travel/en/us-visas/immigrate/returning-resident.html

3) I am hearing now US consulates in India are not giving appointments for SB1. Even before pandemic, it was notoriously difficult to get SB1 approved.

4) I got approved for N-470 with the condition it is valid as long I work Indian subsidiary of a USA Headquartered company X.

Due to current pandemic and job scene, if I move to USA Headquartered company Y,

a) Can I update my previous N-470 approved application to Indian subsidiary of a USA Headquartered company from “X” to “Y”?

Or

b) Need to file a new N-470



Thanks,

Arjun Ganesh

 

[bshah123]

On F-1 OPT felony charges case pending - work options
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Hello,
I am on F1-opt and my OPT ends on June 2021. I currently have a full time job. I was arrested on Felony charges in March 2020 and case is pending disposition. My criminal lawyer says because of COVID the case is moving at a slower pace. I have no idea what to do after June 2021. I would not even have a job after that. Can anything be done to at least get a work permit till my case is pending disposition?

 

[parthsp95]

Applied for I-539 requesting status change from F-1 to U-3
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Namaste Rajiv Sir,

Thank you for taking my question.

Fact about my U visa:

I was a student when my U3 visa got approved in November, 2019. I graduated in May,2020 and applied for OPT EAD.

Unfortunately, A number on EAD is same as A number on my U3 petition approval notice (I-797) with Stu: Post Completion Opt. I was hopping to get None category EAD.

We applied for I-539 requesting my status change from F-1 to U3, we got RFE and following are the important points mentioned in RFE Letter:

Reason for Extension Request:

1) There is no provision of law that that enables the use of form I-539 to apply for a change of status to U nonimmigrant from another nonimmigrant or immigrant classification.

Arriva/departure record , Form I-94:

1) USCIS cannot locate a record of your legal entry as a U-3 nonimmigrant into United States with the information you have provided.


I haven't been to India since my arrival in USA back in 2018. When my U3 petition got approved I was on student visa, after graduation I applied for OPT. What would be my current status Attorney Rajiv Ji?

Thank you for taking my question. Currently, my attorney's are not taking any serious step to proceed my case.

 

[rahulgopaljoshi]

Options to move decisions for I-485/AP/I-140 downgrade filed October 2020
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Namaste Rajiv Ji

I-485 + I-140 (EB2 to EB3 Downgrade) + I-765 + I-131 Applied in last week of October 2020. Waiting on Biometrics + EAD + AP with no useful updates yet. I-140 upgraded to premium processing, waiting on acceptance / approval for that as well.

Q 1 - Since I-485 would be pending for 180 days already, how can one use the AC21 to switch over to another same / similar job; especially if EAD sill pending ? Would there be any other things to consider / need to be fulfilled before making such a move ?

Q 2 - It seems that many of October / November 2020 I-485 filers are still waiting to hear back on BM + EAD + AP. An expedite request pursuant to appropriate factual emergency situations works sometimes - but everyone may not have that option. On that note -

a) Is there any defined reasonable processing time for these things under the law - or one just got to wait with no end in sight ?

b) Was reading about options such as Service Request / USCIS Ombudsman Request / Congressman / Administrative Procedures Act and Mandamus Litigations etc. - and wanted to hear your thoughts if any / all of these maybe worth trying for in pushing for an action on one's long-pending cases; in the current situations.

c) If PD is likely to be current in Sept - Oct 2021, and none of these above things are done yet - what are the options; or would one just miss the boat ?

P.S. Just a small clarification. Towards the end of your April 15th Community Conference Call - I was actually trying to ask Q 1 above as a directly relevant follow-up question to one of the questions that you had just answered about pending I-485 and AC21 portability. I was not really attempting to ask any late follow-up question to my own previously posted question on that call.

Dhanyawaad Sir

Rahul

 

[ricknim]

H-1B cap exempt 2021: rules and procedures
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Hello Rajiv ji,

I am currently on a cap-exempt H1 and found an employer who filed my cap-subjective H1 this year. In this case:

1. if the cap-subjective H1 gets approved, will my cap-exempt H1 be invalid?
2. should I have to start working with my cap-subjective employer as soon as it gets approved or by oct 1st, which ever is later or can I wait to join the new company?
3. can I be working on both cap-subjective and cap-exempt h1s?
4. while this petition is pending, can I travel to canada and get my cap-exempt stamping done?

thanks in advance for your suggestions.

 

[NidhiSingh]

Amendment questions re: H-1B stamp and different location than on LCA
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Hello Everyone,

I got my H1B stamped last month. I have never been to US before. The address mentioned in my LCA is my company's office address (Rosemont) and now my company want to send me to Client location (Bloomington). Now my questions are :
1. Do I need to get amendment?
2. If yes, can I fly to my client's location once amendment filed and is under process or do I have to wait till amendment is approved (I have stamped visa right now)?
3. If I fly with a visa that has amendment under process will I be getting any issue at port of entry?

Thanks in Advance.

 

[DEEPAMENON]

Working part-time for ex-employer while PERM is in progress
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Question from our Community Member:

Worked for employer A on H1, with pandemic they were not able to continue to pay so I applied for unpaid leave of absence with employer A as it was a very tricky tough time then(based on options/suggestions from such forums). Anyway I found new job 5 weeks later and have been working for employer B on H1 since then. Employer A is now getting back enough work and would like to have me.

Since I have a full-time job with B now, I want to do only upto 20hrs for employer A if possible(based on the scalable hours H1 option you have informed us before). Employer A never requested USCIS to withdraw my H1 (approved for another 2 more years). Do they still need to file for a new i129 to have me back now? In case I'm allowed to work on old approved i129 and my weekly hours now fall below range on employer A's petition, will it need a new LCA and/or H1 amendment?

Current employer B wants to wait to do my GC, but employer A is more willing to start my PERM/LC soon with future permanent full-time job offer, looking at recent news my priority date is likely to become current in the upcoming year. Is it safe to do PERM thru employer A although I may work for them only part-time while PERM is in progress?

Thanks,
Neeraj