Recording of November 19, 2020 Conference Call With Rajiv S. Khanna

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Team Member, Immigration.Com
Staff member

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 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: 03 December 2020
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.
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EB-1C eligibility after company transition while pending I-485 and L-1A extension

Hello Rajiv Ji

I have an approved I-140 in EB1C category with priority date September 2018 and have recently (Oct 2020) applied I-485/I-131/I-765.
My L1A Extension is also pending with USCIS, I am currently in 240 day period after my previous visa expired. I-485 is applied in this 240 day period.
My team is based in India and I am functional manager for the team in India and my department (no team) in US.

Recently, my company has decided to sell off its Indian subsidiary to a 3rd party, however, there will be no change in day-to-day operations, the team will continue to work with me as consultant (not as employees any longer) and my functional manager role in US will also remain same for managing my department.

1. Will I still be considered EB1C eligible after this transition of Indian subsidiary? If not, what would be my options considering I have approved I-140?
2. Will this situation cause a problem to my approved I-140 or pending I-765 or I-485 or my GC process overall?
3. Is it likely that my I-485/I-765 can be approved, even if L1A is denied, it has already been denied once, but we reapplied before the expiry of previous visa.
4. Is it an option to change employer after I-485 is pending for 180 days so I can maintain a managerial role to be EB1C eligible, do I have to be on some Visa at that time or I can do that with EAD?
5. Are there any other options that I can continue working while my I-485 is pending but L1A is denied?

Thank you very much for your help.
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Post completion OPT and employment issues

Hello Rajiv Ji

I applied for an EAD card based on Post-completion OPT. I am on F-1 visa. My OPT was approved and my EAD start date is from November 2, 2020, to November 30, 2021. However, my program end date is from November 24, 2020. I have a job start date from December 1, 2020. Please advise what should I do. Thank you.
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Canadian citizen applying for TN visa during presidential proclamation

Hello Rajiv Sir,
My wife is Green Card Holder living and working in the US and applied for Spouse Visa under the F2B category. So far, my i-130 got approved and documents are under review in NVC processing. Currently, I live and work in Canada, and recently got the Canadian Citizenship. My question is while I am waiting for NVC processing, and since as per the presidential proclamation, all the processing is suspended until Dec 31, 2020; can I apply for a TN visa?

Here is the list of the questions regarding the same.
1. Can I apply for the TN visa, while I am waiting for the NVC processing?
2. Should my job title match exactly with the profession list mentioned under NAFTA?
3. I recently got the Canadian Passport, and my Indian Passport will not be valid, do I have to inform the NVC of this change while my CEAC account profile mentions document under review. What will be the necessary steps for that?

Please if you could address these issues, it will be highly appreciated.
Thank you so much!

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Sharing misdemeanor details of spouse while filing for green card

Posting on behalf of my friend.

What is the last stage a green card spouse can add in a green card - Need to make a decision and file I-485 before 29th Oct 2020 ?

I have one Misdemeanor for shoplifting, which was misunderstanding but store manager did not agree with me. Any way it was expunged immediately in 2014 and I am on H1-B visa and we have been married for 8+ years. My wife's green card priority date is current now (EB3) and her company is filing her I-485. We do not want to share my Misdemeanor details with her company attorney and HR.
  • We want to add me in her green card with the help of an outside attorney, how late can she add me in her green card ? Ideally we want to add me in her green card after her I-485 is approved but not sure that is possible or not ?
  • Is it possible that her company files her I-485 and once her I-485 is approved then she can add me in her green card with the help of some other attorney.
  • She will face any complication in her green card because of my Misdemeanor ?
  • What is the last stage of her green card she can add me ?
  • After she gets a green card she can't add me in till she will get citizenship ?
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Document Checklist for I-485 Adjust of Status

In I-485 and next process:

Hello Sir,

Can you please guide us what all precautions we should take for I-485 and next process in the green card and citizenship path.

What all things impact and what precaution we should take ? some of example I can think of
  • Credit score - Do they check ? If yes what minimum score you can recommend?
  • Driving history and tickets ?
  • Any criminal offence ? if yes then how and what all things will affect ?
  • Social media post ? will it affect ?
  • FB joined groups will affect ?
  • Number of C card and Number B accounts
  • Refund received from IRS ?
Anything else will affect ? so that we can keep them clear and better than expectations.

Anything else will affect ? so that we can keep them clear and better than expectations.
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Consular processing and green card when priority date is current

Hello Rajiv Sir,

I am an Indian citizen with an Australian PR and currently reside in Australia working for a local Australian company. I was in the US on H1-B until May 2019 and my H1-B expired in Dec 2019. I have an EB3 - I140 with a priority date of Mar 2015 sponsored by my previous employer in the US. I understand that in my situation I would have to proceed with a consular processing when my priority date becomes current. Few questions specific to my situation...
  • How do I initiate the change to consular processing? Do I need to get in touch with my previous employer for the consular processing?
  • Can I get consular processing in Australia or would I have to travel to home country India?
  • I assume I would require an offer from the same employer for the same position when my priority date becomes current?
  • In the event my previous employer does not offer employment, what options do I have to pursue the GC process when my date is current?

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Transition from F-1 to H-1B

Hello Rajivji,

I have a question related to my daughter's H1 application. She will be completing her undergraduate in F-1 in March.

1. During the initial registration period (to be selected in lottery), is there a need for a degree certificate or final official transcript?
2. If her case is selected then for final H1 application/petition will transcript suffice or any other letter from the school indicating that she has completed/met the undergraduate degree requirement. If not, then what is generally the timeline for the final submission.
Thank You
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H-1B Visa expiring, extension and delay due to wage rate increment

Hello sir,

Firstly thanks for useful suggestions you provide us.
Coming to my question sir I’m on H1 visa and its expiring on dec2020 and I’m looking for applying my extension but due wage rate increment issue I’m waiting for the lawsuit decision on that case and my employer suggesting to wait for sometime but I’m little nervous on that and try to get better suggestion and my project is extended another year 2021 with same client and have all required supporting documents for H1. What would you suggest me based on my issue does it fair to wait for sometime or should I apply with file my LCA me new wage rates.
Please direct me sir.

Thank you.
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I-485 filing and issues related to primary and derivative applicant

Hi Rajiv,

Me and Spouse are are working currently on EAD received thru my EB-2 and we are still waiting for GC due to India backlog.
In the meantime my spouse is eligible for EB1. Assuming her EB1 I-140 gets approved with her earlier priority date of 2015[she has a prior EB2 approval], can we transfer the underlying basis to make her primary and me as derivative on our existing pending I-485's or do you suggest filing another set of new I-485's?

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How long for interview after priority date becomes current?

Hello Rajiv ji - Thanks for your time.

My PD is July 2010 and I have filed my I-485 AOS application based on Dates for Filing chart EB2 dates. My question is when will I get my biometrics and interview appointments…is it when my PD becomes current in Final Action Dates chart ?

If so what happens if dates per EB3 Final Action Dates chart become current prior to EB2 Final Action Dates?.....Do I need to downgrade my application to EB3 to take advantage of the EB3 Final Action does it work?

Example Scenario: Say in Jan 2021 visa bulletin…if FA dates are below (my PD becomes current in EB3 but not yet in EB2)


Employment-based INDIA
3rd----01 SEP10

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H-1B visa potential immigration issues for being outside the USA for more than a year during pandemic

Dear Rajeev Sir,

I am Rakesh and I am currently on H1B and have valid visa and stamping which is active till 2021 December. For family reasons I came to India and have been in India for last 1 year. My work allows me to work remotely and I am working from India for the last one year and employer is running my pay roll till date. Due to pandemic situation, I avoided travelling to USA till now and planning to return to USA in the month of January 2021.

Can you please let me know what kind of questions I can expect at port of entry and responses I should give to them.

How long a person can stay out of USA on HB1 and can still work remotely from India and what are potential immigration issues I might have to face for being out USA for more then 1 year on H1B.

Best regards
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Laid off due to Covid and the effect on adjudication of STEM OPT visa

Hello sir,

I hope you are well, I am stuck in a visa situation and was hoping if you could give me some advice about it.

I graduated in May'19 with a Master's degree and worked on an OPT visa (July 11th, 2019- July 10th, 2020). I filed for STEM OPT in May'20 and my case was received on June 5th, 2020. Recently, I got laid off due to COVID'19 while my case for STEM OPT is still pending with USCIS.

I am aware that I have an automatic extension of 180 days after my OPT ends (since my case for STEM OPT was received by USCIS). What happens if for some reason my application is denied? Does losing a job affect the adjudication of a STEM OPT visa?

Please let me know. Thank you so much.

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AC21 portability, I-140 and starting a new venture

Dear Mr. Khanna,

I am in the US on an L-1A visa and my employer sponsored an EB-1(C) green card application for me. They filed the I-140 and I-485 concurrently. My EAD and AP have been approved though my I-140 and I-485 are not yet approved. I want to co-found a startup with an associate of mine and am evaluating if an AC21 will allow me to port my application over to a new startup I'm founding that will be funded by outside investors.

  • My I-140 job code is 11-1021 "General and Operations Managers" and my new role as Co-CEO would have the same job code and substantially the same responsibilities.
  • My new salary would be lower than my current salary however the equity component could more than make up for the difference in cash compensation. My new salary would be commensurate with US locals who have founded a startup with outside investors.
  • The startup (a Delaware LLC) was just formed in November 2020. The startup will have annual expenses of about $375,000 and no revenue for about 2 years. The only employees (W-2) will be myself (Co-CEO) and business partner (Co-CEO).
My questions are:
  1. Do I qualify for AC21 portability before my I-140 is approved (assuming my employer does not withdraw the application)?
  2. Do I qualify for AC21 portability after my I-140 is approved (assuming my employer does not withdraw the application)?
  3. Do the EB-1(C) criteria (worked for 1 of the last 3 years outside the US for the petitioner) only apply to the petitioner or do these criteria transfer to my new employer?
  4. Does the petitioner still require the intent to "employ me in a managerial or executive capacity" or does this transfer to my new employer?
  5. Do these criteria have to only be true at the point my I-140 is approved or do they need to hold true until:
    1. I have my Green Card?
    2. I have my interview for AOS?
  6. Can I work on this startup on the side while I stay in my current position? Can I be paid?
  7. Do I need to leave the US and re-enter under my EAD/AP so that I change my status from L-1A to EAD?
Thank you for the kind service you provide to the community!
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221g administrative processing and H-1B visa stamping

I am on an H1b visa valid till Feb 2021. I came to India to visit my parents and went for my visa stamping in Dec 2019 at the New Delhi Consulate and was issued 221g. This was first time I came to India after H1b was issued in 2012. I had sent all the documents requested in 221g through email. There has been no update on my case. I have contacted them through email and phone but was communicated that there has been lockdown so cases are not being processed. They will communicate if they require any other information from me or if there is any update. I have an approved I-140 with my previous employer. I have only switched one employer till now.I have been working remote and my payroll is on.
1. Is there a way to get any update on my case?
2. Is there any other alternative to expedite my case processing?
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Presidential Proclamation and H-1B visa stamping

Hi Rajiv,

I want to confirm that the proclamations 10014 & 10052 do not prevent me from getting my H1-B visa stamped in Delhi consulate. The proclamation says that it does not apply to H1-B visa holders who were there in USA on June 24th. I was here in USA on June 24th and am still here.

I am planning to go to India in Dec and use the drop box facility to get my H1-B visa stamped in Delhi consulate. Do you know if mine is a valid case, and have you come accross anyone who got their H1-B visa stamped successfully after travelling to India recently

-> My visa expired on 26th Dec 2019
-> Visa got extended on June 17th 2020 for 3 years
-> I was present in USA throughout 2020, and am still here
-> Planning to use drop box facility in Dec in Delhi consulate

Below is the link to the proclamation:

travel state gov

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Change of status from J-1 to F-1 Visa and Biometrics

Hello Rajiv Sir,
I am on J1 visa did my masters and currently in academic training(post completion). I applied for Change of status from J1 to F1 in July 2020, I still haven't received biometrics and don't no when they approve case (due to pandemic its taking longer than expected).
I got PhD position with assistantship for spring 2021.
My question: Can i take classes during spring semester even my case is still pending as a J1 to F1 as a student?
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Understanding the Visa Bulletin

Hello Rajiv Ji,

Thank you very much for your help in advance!

I have 2 quick questions,

1. if I am currently in USA, which table is for me to look at on Visa Bulletin, for my current date for an approved I-130. The one that says final action or the first table?

2. My Father filed I-130 for my sister who is in back home. case was filed in 2016 but unfortunately my father passed away last August 2020. Her case was not approved. the status was received. Can my brother who is a US citizen, take over her same case or he has to file a new case for her?

Thanks a lot
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H-1B and prevailing wage levels

Hello Rajiv Ji,

We are 2 Indian citizens, on STEM OPT, working as assistant professors in a native American college in North Dakota, and want to apply for an H1B visa. Currently, our employer is not able to pay us as per the new Level 1 wage, which is about $90k.
We want to know how are the Non-profit H1-B visas affected by the new H1B rules?

Thank you
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Title : Employment Authorization in compelling situations

Question from our community member:

Based on info. we got from conference call, applied for Compelling EAD in 60-day grace period. got receipt and already waiting 3 months no further biometric info. yet. From your info. has anyone who applied for this EAD category after pandemic fallout got EAD approved? If EAD is given out, and we take job based on that EAD, USCIS site says one will no longer maintain H1 status but also not accrue unlawful presence. Then can one travel out and re-enter US while on such EAD? what docs needed apart from valid H1 visa stamp, since i797 approval is lost job right?

Also if my H1 from new employer get approved and I come into full H1 status, and I go to India for my wedding. If wife already has B1/B2 stamp can she just enter US on that stamp after marriage and coming into US she can change to H4/EAD concurrently or is there obligation that she has to first get an H4 stamp? is USCIS generally OK as they will see from wedding date that when she entered on B2 she was already married right?

Thanks much for your kind help as always.
NJ snehshree
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