Recording of October 14, 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: 28 October 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.

 

[srjmk]

Interfiling from EB-3 to EB-2 and working on H-1B and EAD simultaneously

Filed 485 downgrades from EB2 to EB3 in Oct 2020, Received EAD, Completed BM, Medicals Submitted
Moved to a new employer on H1 after 180 days of 485 and filed 485J

Q1. If EB2 moves faster, Can I interfile from EB3 to EB2? Or Should I file a new 485 to be processed faster?
Q2. While I am on H1 with a new employer full-time, Can I work on a secondary job on EAD?
Q3. If used EAD, Can I still interfile from EB3 to EB2?

 

[whipperhand]

Procedure for renewing B-2 Visa within the USA

Hello Sir,

I have few questions for B2 visa.
1. Is there a provision to renew B2 visa while being in USA.
2. What is the requirement for B2 renewals, do we need to still wait for 180days before visa expiry or is that a different number.
3. Can B2 visa renewals be done via dropbox

Thanks

 

[anantdb]

EB-1C Processing times

Hello Rajiv:

My EB-1C was filed with a priority date of Nov 2020 and is still pending. The receipt date for an inquiry, as you know, has just been pushed back to Jan 2018. Do I have to wait till the receipt date for an inquiry passes my priority date to inquire with the USCIS on my status? Do I have any other recourse for an inquiry?

Separately, have you recently encountered instances of EB-1C filed in or after Nov 2020 being approved? Please advise.

Thanks,
A

 

[ricknim]

FAQ: Reentering the U.S. on Visitor Visa

hello Rajiv sir,

My parents are here on visitor's visa since the beginning of August. If they are here for the full 6 months, can they come back again within 6 months of leaving the US?

 

[ricknim]

Concurrent H-1B and employer change

Rajiv sir,
I am currently on a cap-exempt H1 and also have a concurrent h1. Now, I found another project who filed my cap-subjective H1(lottery) that got approved.
1. What will happen to the concurrent H1, if I switch to new cap-subject h1?
2. Do I have to immediately switch to my cap-subject h1? If not, should I have to go to the lottery again next time?
3. I am relocating to a different place, so my current employer is filing amendment for my cap-exempt h1, so should my concurrent h1 also be amended and if so, by when?

also in general - how many days can a H1b worker be outside of the US and continue working?

Thanks a lot for your service !

 

[sen1]

FAQ: Can GC-EAD holders start a business and what impact on the pending I-485?

Question:
1.Can I run my second W2 on my own company ?Keeping my primary W2 with the same employer who filed GC
2.If I a start business on GC-EAD, if they call for GC interview what type of question they ask related to business ?
3.If I a start business on GC-EAD, any reason will they deny my 485?If I-485 is denied, we can come back in H1B again but do we have to refile I-485 again? do we need to process PERM,I-140 from the beginning even with the same employer ?

 

[Aprodita]

Does CSPA apply for parents with K-1/K-2 visa?

Hi Mr. Rajiv,
I am a K1, at the CP now but it is not taken place due to the pandemic. My derivative was included as K2 but we were afraid that he would be aged out by April this year, so the child has withdrawn the said application by writing to Consular. (In fact, never knew about CSPA process did not know whether it could be applied for K2, that is why it was withdrawn because we were concerned that it would affect the child's future NIVs).
1. Could we have activated the CSPA on this case?
2. If so, how could it have been calculated? From the date of the submission of application and till it arrives at CP?
3. Since the K1 process is not completed yet (I have to request an appointment to face the interview when the pandemic declines) can we appeal to include K2?

Thank you so much for this service.

 

[guptapavan87]

Change of jobs with approved PERM and I-140 from Employer A to Employer B with possible DOJ issues?

Hello Rajiv,
I have an immigration question related to change of jobs with approved PERM and I-140 from Employer A.

Currently working for Employer A on H1B (Valid till 2023) and have an approved I-140 with priority date of 2016. I am looking to change jobs and the new company B is filing for H1B transfer.

However, I hear that Company B has some lawsuit by DOJ and hasn't received any PERM approvals since last year.

1) Now if move to Company B, and let's say the priority dates become current, are there any timelines to file for I-485? What is the 1year time line and the impacts of not filing I-485 within 1year?

2) If Employer B still has issues with DOJ\DOL and not able to process PERM applications, will I lose my priority date?

3) If Employer B files for PERM, what happens if the PERM application is pending or denied? What are the impacts to my GC process and H1B Visa?

Thank you in advance for providing this service.

 

[Mira99]

Can a misdemeanor affect my green card application?

I had one misdemeanor incident due to some misunderstanding in shopping mall, police arrested me and judge gave me 40 hours community service in 2014 and same time my case was expunge. I went to India after that I have done my stamping and my H1B was extended 3 times after that and I did not face any issue. This is background.

What all documents we need to submit related to my misdemeanor case with I-485 application ?

When I joined my current company 2 years back they did my background check and as case was expunge so it did not affect my background check.

I know it will be hard for you to tell but I am asking for general practice what is popular among attorney.
Is it safe to share these details with company attorney ? If I will share all my misdemeanor case details with my company attorney then will they keep it confidential between me and them ? or they will share with my company HR ?

 

[MSP2022]

FAQ: Is there a problem listing one location in a PERM application while living and working remotely in a different location?

Hi Rajiv,

Thanks for your help. Was just wondering if there could be any issues with my prospective PERM application if I am living and working remotely in Minneapolis (consistent with my H1b location) and my employer in Dallas files the PERM application using Dallas as the work location. I am open to eventually relocating to Dallas, so just wondering if this could cause any delays or RFEs for the PERM.

Do you think it would be a better option to file an H1b amendment with Dallas as the work location, and then go through with the PERM or it doesn't matter?

 

[Payal786]

FAQ: EB-2/EB-3 Options in PERM Filing and EB-2 to EB-3 downgrade and upgrade

Follow up Question:

My priority date is 2013 and my company is filing PERM in EB2.

Question1: If the Priority date is current in EB3 then my I-140 and I-485 can be filed EB3 (Lower it ) but you said that after EB-3 will come then I should file I-140 in EB2 also to cover EB2 also.

Not sure about the whole concept, if possible can you elaborate in more detail?

Question2: Can I-140 be filed in EB2 and EB3 together ? or I-140 can be filed in EB3 first once get approval in EB3 and then need to file in EB2 or vice versa.

Question3: Another scenario is when my PERM is approved and that time priority goes back and priority is not current for both in EB2 and EB3. Should I wait some time for priority to change and then file I-140? How long I can wait? Should I wait?

Question4: My company attorney told me that once downgrade to EB3 then I can't upgrade in EB2.

I am very confused can you please explain all the possible ways I can do this ?

 

[nataraj1295]

USCIS confusion with EB-3 and EB-2 immigration petitions after RFE response and interview

Hi Rajiv,
My employer filed a EB2 Immigration petition on Nov-2009 and It rejected on 2011 because my Indian Masters degree is not matched with US Masters. Later in 2012, again my employer filed an I-140 in (EB3) category with priority date as 04/06/2012. It approved.

In 2018, Another company offered me a job and filed an immigration petition I-140 (EB2). I didn't join this company and never used this I-140 for any purpose.

On 10/23/2020, My current employer filed an Adjustment of Status(I-485) with my existing EB3 I-140. I have applied medicals at this time itself.

In March 2021, we have completed the biometrics process.

My Priority date become current from July-2021 bulletin.

On June 30, 2021, we have received an RFE mentions that I have applied my I-485 is in EB2 and no visa numbers are available. But you have another I-140 available in EB3.If you wish to proceed, send a written confirmation. We were shocked about this as we applied in EB3, but RFE said we applied in EB2. We decided to ask USCIS to proceed in EB3 and responded accordingly.

On Aug 10, 2021 USCIS scheduled my interview on 9/14/21.

Visa officer again said no visa numbers available for your category, can't approve my case. Then I explained politely about my EB3- I140 on that only we have applied I-485. He takes the file and turned more pages and found the correct I-140. Now he went and checked in his system for visa number availability. He said visa numbers are available for you. Added a sticky note on that page. Later he verified my medical, I-485J everything and he said he will approve my I-485 next day as he is busy with more interviews for rest of the day. He said I will get my card in two weeks, once the status changes. Keep checking online.

No update for next two weeks. Two weeks later, I have chat with EMMA and got the update as visa number regressed on 9/24/21. But EMMA said its their internal system update. my case is still in Field office. No RFE or action has been taken. My case is still under processing.

I was completely clueless and couldn't understand what is going on my case.

Looks like USCIS is confused with my EB3 and EB2 immigration petitions and spinning in the same place even after RFE response and Interview. Getting nervous because of possible EB3 retrogression in November 2021.

Please guide me what are next steps for me. Since I didn’t receive any notice officially from USCIS what the next steps are ahead of me.

 

[alokmishra]

EB-140 approved and change of job - Supplement J/AC21

Question in the attached image. (it would not let me post it suspecting it as spam, I tried changing the language in many ways but was not successful.

 

[Hrz1]

H-1B OPT- travel and re-entry for parents/maintaining H-1B status/concurrent filing - I-140 and I-485/USCIS same or similar occupation


Hello sir,
Thank you very much for answering these questions


1) I'm on OPT, Can my parents stay in US on visit visa for 6 months then go out of country for 2-3 Weeks and then Return back to US for another 6 months cycle?


2) Is it a good idea to NOT apply for H1-B and continue on OPT for 3 yrs (STEM), because I can get green card within 3 yrs (UAE born and EB-
I'm thinking of this to Bargain with the company so that they apply for my Green Card early and don't spend resources in H1-B filing.


3) Can I file both forms I-140 and I-485 both concurrently? How long would it typically take in that case for me?


4) How can I determine which Jobs are Similar or Not Similar from USCIS perspective? (Software Developer VS Data Scientist)


5) Can you please explain when can an employee change an Employer or change his job, for Green card application like In terms of I-140 and I-485 Forms.

(Like is it necessary to have both the forms filed in the same company and working in the same job role too?)


Thanking you again

 

[Rajiv S. Khanna]

Staying outside the U.S. for more than 10 years and would like to come back to the U.S. as a visitor

Hi there,
On Aug 19, 2020, you were answering question about someone who was overstaying in the US for more than a year, but, have been staying outside the US for more than 10 years and would like to come to the US as a visitor.

You said, if this person applying for a visitor visa, once the US consulate knows that this person has been outside the US for more than 10 years, then, there should not be a problem of obtaining a visa. Your answer can be heard here, video will start at 24:36 marks.

However, on Sep 16 2020, you were answering the same question for someone who was overstaying in the US for more than a year, but, have been staying outside the US for more than 10 years and would like to come to the US as a visitor.

You said, if this person applying for a visitor visa, then, this person would have a hard time obtaining it because visitor visa is a non-immigrant visa and because this person was overstaying (even though it was more than 10 years ago), then this person creates the intention to be an immigrant. Your answer can be heard here, video will start at 16:58 marks.

I'm confuse to see the contradiction between your 2 answers.

On your fist answer, you said, as long as we are outside of the US for more than 10 years, then, we should be good to go.

On your second answer, it does not matter whether we have been outside the US for more than 10 years. What matter is if we had been overstaying in the past it means we have the intention to be an immigrant and therefore, we will be having problem applying for a visitor visa.

Can you please confirm, what would be the correct answer for this situation? Thanks!

Both answers are correct in context. One would no longer be subject to the ten-year bar after 10 years, but they would still have to prove they qualify for a visitor's visa.