Recording of November 11, 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: 09 December 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.

 

[sriharshampss]

FAQ: Qualifications for EB-1 Multinational Executives and Managers in a small company

Hi Rajiv ji,


I am currently working as a Senior Software developer at a small company(15 employees). It is privately held and i don't have any stake in it.
I am on h1b visa and my I140 is approved under EB 3 category with dec 2019 start date. I see an opportunity to start a team in India for my current company as I directly work with CEO and have good relation with them. Fingers crossed.

I can manage the team staying in India for a year from India and come back to US and still manage the Indian team. I will have to probably play a dual role where i am a senior developer and should manage the Indian team.

Will I be eligible for EB1 manager/executive level after 3 years? If not, is there an easy way I can leverage the advantage of working in a small shop to get green card faster.

Thank you for your time.

 

[stashkumar]

Applying for I-485: Issues with spouses birth certificate

Hi Rajiv,

I am working in H1B visa and GC is in progress. EB2. For applying I-485, birth certificate is mandatory? My question is on my dependent's (spouse) birth certificate issue. Can you please suggest rectifying it?

My wife name was changed around 2004. Birth Year 1989. During name change it was only updated in state government gazette. Name in birth certificate has not been changed. Currently Passport, all degree certificates and 10th certificates are in new name except birth certificate. When we try to change the name in birth certificate now, Local municipality in India said the new birth certificate cannot be re-issued with new name, as old birth certificate is still valid in combination with gazette(which has a new name in it with her father and mother names referenced). This gazette (provided by TN state Gov) has both old name and new name in it.

Is it valid to submit old birth certificate with gazette when applying for I-485? USCIS accepts it? Or should we get just an affidavit with new name? If you have any template of affidavit please suggest what are the important information needs to be put in it.

Thanks,
Satheesh.

 

[sivakrishna_j]

FAQ: Can I use an approved, but never used, H-1B petition to transfer to a different company?

Hi Rajiv - I have approved H1b petition from 2010 but never used. Can I reuse that petition and do H1b transfer to different company. The old company who has filed H1b petition has not with drawn it.

 

[rahulgopaljoshi]

FAQ: Impact on H-1B status of using advance parole

Namaste Rajiv Ji

Wishing you and your family and staff a belated Shubh Deepawali and a happy new year. Posting this for one of my friends:

A) H1-B Visa Stamp Expired - but H1-B Status Valid until Sept 2023 (I-797 Approval Notice)
B) I-140 approved long back, I-485 pending (PD not current but close), I-765 + I-131 approved Combo Card
C) Travelled to India with both H1-B I-797 and I-485 EAD/AP (Validity was 1 Year) and returned couple months back; chose to return on I-485 AP because could not get a Visa Drop Box Appointment
D) New I-94 received upon entry is only valid till AP expiry date; which is prior to H1B I-94 attached to I-797 (Sept 2023)
E) No change of Employer before or after the travels - return to same employer.

Questions

1) Does the Use of AP on returning mean the H1B status is abandoned in this case ?
2) Would this person fall out of status after August 2022 - based on this new I-94 with AP entry ?
3) Can the already approved H1B status be reinstated (if it was abandoned) and also be extended like regular H1B extension after 2023 - if Yes, would that need a travel out of the country before August 2022 and return on H1B visa stamp ?

Thanks

Rahul Joshi

 

[Subramanyam GP]

Degree equivalency for EB-3 professionals: EB-2 to EB-3 downgrade

Hi Rajiv Ji,

Anyone in this situation.

My PERM requirement is minimum master required with 6 months experience (I am with 3 + 2 years degree, B.Sc, and M.Sc in computer science).

In 2014 we applied for I-140 in EB2 and got RFE on my education saying minimum requirements don't match.

So we did an education evaluation and expert letter attached (I have 10 years of experience before this in the same field)
We responded like below for Eb2 I-140 RFE "Education plus 5 years work experience (per Chintakuntla vs US Dept of Immigration and Naturalization Services" and Cronin memo) is Equivalent to US Master of Science in Computer Science from a Regionally Accredited College or University in the United States of America." Later my EB2 I-140 was approved.

My Priority date is Sep 2014 and dates are retrogressed in the EB3 category.

Last year I have downgraded to EB3 (along with I-485 concurrently filed) and recently my I-140 got RFE in premium (same RFE on educational requirement).

Now my attorney is saying to withdraw the petition, otherwise, it will jeopardize Eb2 I-140 also.

I have below questions

1) If I made the same argument, what are the chances to get approval on EB3 I-140.
2) If for some reason eB3 got denied, will they revoke my existing EB2 I-140 on the same ground.
3) My latest H1b is valid until 2024 and it's approved based on Eb2 I-140. Will they revoke my h1b if EB2 I-140 is revoked?
4) Meanwhile If I do a new PERM And I-140 with the same or different employer, can I able to port my previous priority date.
5) Will it cause any issue with my future 485 if the dates are current again.

Anybody EB3 I-140 approved with master's minimum requirement and the beneficiary with a bachelor's degree.

Please let me know.

Thank you

 

[redhat21]

EB-2/EB-3/I-140 downgrade, EAD, AP and I-485 concurrently

Hi Rajiv,

Hope you are doing good.
I saw your conference call video and was impressed with your explanation. I have three questions

Q1) Company A filed my green card in EB2 category in Jan/2014 and I-140 is approved in Eb2. In Nov/2020 they filed Eb2-Eb3 I-140 downgrade, EAD, AP and I-485 concurrently. My EAD and AP got approved last week but I-140 downgrade is still pending. Since my I-140 and I-485 is pending from 365 days can I change my job? if yes then what is the safest process to join company B without compromising my approved EAD/AP?
Note:
1) Only filing date was current when my company filed the downgrade, my final action date was not current and now the Eb3 dates got retrogressed.
2) On my EAD approval notice it is written that "I can change job if I-140 is pending or approved and I-485 is pending more than 180 days"

Q2) I am still on H1b with Company A which will expire in 8 months, I have not started using EAD. I have travel plans to India and don't want to go for stamping with 8 months left. Is it safe to travel keeping I-140 pending and using combo card to enter USA? What will happen to my H1 visa if I use my combo card to enter USA?

Q3) I am planning to get married, Is it possible to add my spouse to my green card process and file EAD,AP & I-485? How to sponsor her If I go to India and get married?

Thank you

 

[Payal786]

Can I change employers with twice approved I-140 in EB-2 category?

Rajiv Ji,

Priority date 2013 and I-140 is approved two times with different companies in EB2 category. I have 20 years of IT experience.

Question: My both the I-40 was approved with technology ABC and technology A don't have log term future and limited position.

If I will move new company and new technology XYZ and build my carrier with new XYZ technology ? How it imprecate my green card process? My new company will file my green card in new XYZ technology in EB.

Will green card in new technology will impact priority date ? USCIS will ask any question ? or come up with profile mismatch ?

What is best approach for me ? Should I continues with new technology or work in old technology till I get my green card ?

What all things I should do , so that i can work with new technology and if can retain my priority date also ?

 

[akkhi03]

FAQ: Travelled to India on H-1B status, stamping done through NIE, job contract ended: What are the chances to get back to the U.S.?

Hello Sir,

Iam posting these questions on behalf of my friend. My friend had traveled to India in an emergency situation in April this year. Since the consulates were closed for so long he could get his h1 visa stamping done by an emergency appointment last month (through NIE) only. Now , his job contract ended here. What are his chances to come back to US?

- Does he need to have a job with an offer letter before traveling to US back?

- If his employer supports he can come to US and search for a job as he already got his visa?

- What kind of questions we can expect at port of entry as he is out of country for more than 6 months now ?

- One need to have pay roll on while outside the country on H1?

Appreciate your help.


Thank you,
Akki

 

[sarayu123]

Changing jobs (shortly after a promotion) with I-140 approval, I-485 pending, and the 180-day AC-21 portability rule

Dear Sir,
I currently have my I-140 approved from two employers for Senior Software engineer position under EB3 quota.
I have my green card EAD with priority date : Nov 2014. I-485 has been pending for more than 180 days.
I expect to be promote to be a manager in the same line of work in the next 6 months.
Due to personal circumstances, I might have to move to a different employer right after.
Could you please let me know if there are any concerns if I switch right after getting promoted ?

The job duties would change but the line of work will be the same.
I am not sure if the SOC codes will change/remain the same.

Thanks,
Sara

 

[akashappa1110]

FAQ: STEM extension application is pending with USCIS due to a USCIS error in failing to withdraw H-1

Hello Sir,

I’m in the initial OPT which expires on November 30th, 2021. My STEM Extension has been denied based on approved H1-b which is pending withdrawal at the texas service Center for the last 6 months. My current employer’s attorney raised the Ombudsman request a week ago and I’ve taken Ohio senator's help to submit inquiry two weeks ago but no response so far from uscis and also from online forums it seems it’ll take 30 days to get a response at least but I’m running out of my time. my employer is reapplying for my STEM OPT in two weeks again.

1) If it doesn’t go in my favor and if I’ve to raise the motion will I get my STEM Extension time back if the motion is approved because it’s an administrative error?

2) Do I need to take any other steps to get this issue resolved?

Thank you,
Akash.

 

[ajaykishore]

Changing employers after H-1B was approved under consular notification

Hello Rajiv,

I have my H1B approved under consular petition from company A. I am currently in US and in F1 OPT. I would like to know if I can get my H1B transferred to Company B in case of new job offer.

 

[DEEPAMENON]

N-470: Application to preserve residence for naturalization purposes


Question from our Community Member
....................................................................................................

Hello Rajiv Ji,

Thanks for your service.

I am currently in India, working for Indian subsidiary of USA based company. I have approved N-470 from Feb, 2019.
I had approved I-131, Re-entry till June 21, 2021 which is expired now.

Travelled to US in October 2021 to file my re-entry permit I-131 application which is still being reviewed and have returned back to India

USCIS updated me that they have reused the bio-metrics which was done iin 2019 and I don’t need to travel to USCIS application centre for bi-metrics appointment.

1) In October 2021, immigration officer at the port of the entry, gave me a warning and he said that Green card was given to work and live in USA. He said he can understand my intentions as I am currently live and work in India and had expired Re-entry permit. Also I missed travelling to USA before the expiration date in the re-entry permit. If I travel to USA after 1 year I will need to talk to immigration judge.
Should I worried about the immigration officer warning?

2) I want to file Family based green card (F2A) for my wife in India. Can I file F2A for my wife while I am working in India ?
3) If my wife delivers a baby or babies during the process, can they be added to the F2A application?
4) If after filling the F2A application, do I need to move to the USA and start working in USA for my wife’s F2A to get approved? Wife has a tourist visa. Can my wife Travel on Tourist via to USA to spend time with me while green card F2A is being processed?


5) 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 Indian subsidiary of 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