Recording of May 26, 2022 Conference Call with Rajiv S. Khanna

[DEEPAMENON]

Recording available for May 26 community conference call,

--------------------------------
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.
-------------------------------------------------
Call Details:
Next Call Date: June 06, 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
-------------------------------------------------

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

 

[prosper28]

FAQ: Employee is outside The US. How to continue green card through consular processing?

Hello Rajiv,

I have a valid i140 from my old employer and have not ported it to my current employer.
Currently, I am not staying in the US, and my dates have become current.

I have below clarifications:

1. Can we file for Consular processing GC from abroad through my previous employer if they are open to hiring me back. At the same time don't want to impact my current job as the old employer does not have their presence outside the US.
2. As per my knowledge, I cannot file GC through CP; however, if I move back to the US will I be able to file i485 without joining my old employer?

 

[AKK27]

FAQ: EB-3 to EB-2 interfiling after using Advance Parole. Reverting back to EB-3 if needed.

Hi Rajeev ji,

I have a question about Interfiling my GC case. My Priority Date (Aug 2014) is current in the June Visa Bulletin. I'm planning to go to India this month and returning back next month while coming back I will use my AP for POE and also My wife already using EAD and AP.

1) Can I do interfile if I use AP for entering the USA?
2) Can I go back to EB3 if the EB2 date is retrogression?

Thank You
AK

 

[sandy9796]

Maintaining H-1B status and traveling back to the U.S. with advance parole with 221(g) case status

Hello Rajiv Sir,

I think my case is a bit complicated, hence i will segregate it into sections

[Background]
I have EB2 i-140 approved in 2013.
Ported to EB3 in Oct, 2020 when date of filing became current. (Filed new i-140)
Received EAD / AP combo card in Oct, 2021 but i-140 and i-485 not approved.
Have approved H1B i797A till May, 2024.
All of above is with same employer.

Traveled to India in March for H1B Visa Stamping based on my lawyers suggestion to maintain H1B and not use EAD / AP to enter U.S.
Received 221g (Yellow) on visa stamping, submitted documents to consulate on March 28 (Still waiting for response)

In the meantime, while i am waiting for 221g response from consulate, EB3 i-140 got issued RFE on May 6th (Lawyer did not receive RFE information in mail yet).

[Questions]
1. Can i travel back on AP and abandon my visa 221g case?
2. Will RFE on i-140 or 221g case on visa affect my chances to enter U.S using AP?
3. If i enter back on AP, can i still maintain my H1B status based using only the i797a? If not then can i file for H1B again right after i return to claim my H1B status?

Notes from my discussion with my lawyer: Law firm wants me to maintain H1b status as a backup plan so that if something goes wrong with 485 then i have H1B back up. As per my lawyer, if i enter U.S using A.P then i am abandoning my H1B and i797, in this case if my i-485 has issues then i do not have any back up. As per law firm, filing for H1B again after using A.P. is a very complicated and risky process, not a straight forward process as regular H1B extension

 

[nikranade]

FAQ: I-485 interfiling to use EB-2 instead of EB-3 with a new employer

Hello Rajiv Ji
I'm an Indian national living in USA.

1) Employer A filed I-140 (EB2) which got approved with a PD: AUG-2014.
2) Switched jobs from A to Employer B.
2. a) Employer B concurrently filed I-140(EB3) and I-485/765/131. This wasn't a downgrade from EB2 to EB3. This I-140 also got approved and able to port PD: AUG-2014. Also I-765/131 got approved. But never used them.
3)Switched jobs from B to Employer C.
3. a) Employer C only filed H1B and I-485J.

Currently, with Employer C and my EB2 final action date became current(As per the June visa bulletin). Now I technically have two approved 140s(One in EB2 and the other in EB3)

Questions:
1) Can employer C do a I-485 interfiling to use I-140 (EB2) instead EB3?
2) Since my PD became current in EB2, What would be the best option for me so that I get my 485 adjudicated sooner and get the GC.

Thank you, sir
-Nik Ranade

 

[Ahmed_7]

Change of status - F-1 OPT to H-1B and switching employer during GC process

Hi Rajiv Sir,

I have 3 years remaining on F-1 OPT+STEM, and I also got picked for H-1B this year. Also, my employer has just started my GC process, and I am NOT from India or China.

Question-1: I want to know that, for me is it better to switch to H-1B, or it is better to remain on F-1 OPT and STEM?

Question-2: At what stage during my GC process I can safely switch my current employer and continue my GC process through my new employer without restarting the whole process?

Thank you sir.

 

[Pooja.mittal]

FAQ: How long can a green card holder stay outside the US?

Dear Rajiv sir. Namaste ji.

I received a Green card (GC) last year (Dec 2021). I travelled to India in January 2022 for vacation and have been staying here in India for last 4 months. While on vacation, I have been working for USA employer from India. This is the same employer who sponsored my GC. I am planning to go back to USA in June 2022. This will be the first time I will be travelling back to USA using my GC. Kindly see my questions below.

1) If I mention that I was in India for four months on vacation, would this answer cause any issue with CBP officer at POE?

2) Is four months of vacation in my home country acceptable for a GC holder?

3) Does this kind of long vacation could negatively affect in anyway? Kindly advise.

4) What typical questions could we face at the Port of Entry for someone who spent four months of vacation in their home country?

5) Is working for a USA employer from India allowed for a GC holder?

6) Do I need to expect a secondary inspection for additional scrutiny by CBP officers due to my four-month vacation?


Kindly advise. Thanks for your help and time!

Thanks,
Pooja

 

[KR07]

L-2 visa holder traveling while spouse's visa status changes from L-1B to L-1A

Hi Rajiv,
Greetings for the day!

I have a question regarding my L-2 status.

My husband is getting his visa status changed from L-1B to L-1A. His visa is being processed under premium processing, but my i-539 which was filed along with his application is under normal processing. My i-94 and visa is expiring next month.

In case his L-1A is approved, can I exit and enter US before my present visa expires, with his approval notice? Will the date in my i-94 be extended for the same duration of his approved petition automatically? And will I be eligible to work, based on it? Or my i-94 end date will not change and will be same as my present visa?

FYI, I have my EAD until June, and also my i-94 has L2-S mentioned already.

 

[aks341]

H-4 traveling back to the U.S. while H-4 extension is pending

Dear Rajiv Sir,

My wife came to the US on 6-March-2022 on H4 Visa; She had to leave for India on May 10th -2022; My employer’s lawyers were in the process of filing for her H4 extension and my H1B extension. They filed both extensions on May 17th – 2022;

My wife plans to come back by June mid. Her H4 visa stamp will expire on June 30th-2022.

Is her H4 extension petition good or does a new extension petition need to be filed for her, after she returns to the US in mid-june-2022?

Thanks a lot for your guidance.

 

[HariSeekar]

EB-3 priority date retrogression and consequences

Namaste Rajiv Ji,

My PD is Feb 2012.
I have 2 approved EB2 petitions from my ex-employers. One approved in 2012 (Employer A) and the other approved in 2016 (Employer B).
Now I am with Employer C. Since my date was current for EB3, my current Employer C filed for my AOS along with I-140, AP and EAD under EB3 in Aug 2021. Just after a month of this filing, the EB3 dates retrogressed and I am not sure what to do?

Here are my questions:
Q1. Can I request my current Employer C to interfile?

Q2. If YES, as the past EB2 approvals were with my past/ex-employers A and B, is it still possible for my current Employer C to take advantage of my earlier EB2 approvals with different employers?

Q3. If NO, what would be the best course of action you can suggest for me? Wait for the EB3 date to get current or file for a new I-140 under EB2 with my current Employer C?

Q4. If my current Employer C applies for a NEW EB2 I-140, are we forced to interfile with Supplement J? Or, can they file an independent AOS independent of the earlier EB3 approval?

Q5. Worst case, if I decide to leave my current Employer C and join another Employer D, would it make my case more complicated for adjudication?

Q6. What would a new Employer D have to do to continue my GC process? Will it be a complete start over from ground zero - PERM, I-140, EAD, AP and GC?

Thank you in advance.
Thanks and regards,

Hari

 

[Ahmed_7]

FAQ: Can a green card be filed while an employee works outside the US?

Hi Rajiv Sir,

Q. Is it eligible for green card sponsorship if a job allows working remotely?

FAQ: While waiting for OPT approval, is "unpaid leave of absence" a violation of the student status?

Q2. Is it considered a violation of F-1 status to be on "unpaid leaves of absence" instead of being unemployed while waiting for OPT approval?
Thank you, sir.

 

[rahulgopaljoshi]

FAQ: "Same or similar job" criteria for green card AC21 portability

Namaste Rajiv Sir

Hope you are doing well. This question is more of an extension of my previous question on the last call :

https://forums.immigration.com/thre...-call-with-rajiv-s-khanna.345769/post-2583533

1) I-485 Filed under EB 3 Downgrade - More than one year back and pending
2)Independent I140 Approved both in EB2 and EB3 (Not as Amendment)
3) Currently working on H1B Work Authorization
4) I-485 EAD and AP Available but never used (EB3 Category)

Questions: -
1) If you change your job but by transferring your H1B (Change of Employer) and NOT use EAD, would the AC21 still apply (Same or Similar Job constraint) if you want to keep the I-485 alive?

2) You said the last call that for Same of Similar Determination - USCIS Looks at all aspects:
a) Do the Job Duties and Actual Job Title need to be a dollar-to-dollar match?
b) Job Location Changes (One City/State to Another) and Job Mode Changes (From Onsite to Hybrid or Fully Remote) - Allowed?
c) Compensation Differentials - Positive or Negative - Any specific considerations/grey areas

Dhanyawaad

Rahul Joshi

 

[sk_fl]

FAQ: Naturalization: Jurisdiction and place of residence and traveling while the application is in process

Hi Rajiv,

Thank you very much for your help with my previous naturalization questions. Couple more questions, please

1) Can we file for naturalization in a different state other than the state of residence. If I live in Texas, can I file for naturalization in California?
2 ) can we travel abroad and come back with the Naturalization application in process.

Thank you

 

[Nick2199]

Is F4 visa applicable for a child over 21 years of age?

Hello Rajiv,

My mother's brother filled for a F4 I-130 petition for her and the family in 2006 with the preference date in April 2006, the petition was approved in June 2010. I am currently 22 years in age. Will I also get a green card/immigrant visa along with my family or will I not be eligible for it since I am above 21 years in age?

There was a period of a little over 4 years, between the filing of I-130 and it getting approved. Does my age freeze for those 4 years, under the child status protection act?

Is it also possible to predict when the April 2006 date will be current? And what is the procedure once the priority date becomes current, how long does it then take to get a green card.

My parents are currently in India and I am here in the States on a F1 Visa.