Sept 4 2008 - Recording available

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My EB2-NIW (India) possible AOS problem

Hello Rajiv Ji,

I am from India, currently in the U.S. and have a question about EB2-NIW based AOS. If I face problem with my AOS, I would like to have your immigration services to represent my case. If any thing can be or is to be done proactively, I would like to do through you. The PD for my EB2-NIW has become current since August 2008. I have attached a July 14, 2008 USCIS memo, please see page 6, special consideration, technical violation.

I am sending my home phone number as a p.m. to the user id Rahul Mehta of this thread and would like to talk to you some time soon about my case.

1. I came to U.S. on J1 (Biomedical research) in 2002 and worked at organization A for two years and four months.

2. Then I moved to organization B on J1. However, the responsible officer (RO) of this organization, instead obtaining J1 transfer from organization A, issued me DS2019 to begin a new J1 program. This is a J1 visa violation and I learnt about it after seven months. My J1 wavier based on no objection was pending with DOS at this time. For this J1 wavier, I submitted all of my DS 2019.

3. I requested the RO to file for J1 re-instatement. It appears that she was newly appointed and had no experience. she delayed it and advised me to leave the country. I did not leave. My J1 wavier got approved and hence re-instatement was not filed.

4. There was not enough time and therefore without using a lawyer, I filed EB2-NIW my self in 09/2005 (after 8.5 months of failure to transfer J1 visa). My I 94 has D/S. I never left the country after changing job from organization A to B (from point of failure of J1 transfer). My I 140 was approved and also the work permit. I am continuing working with same employer using EAD and currently on 4th EAD. I did not apply for AP and did not travel out.
5. Now the PD dates have become current for India, and I am afraid that my I-485 may be denied.
6. I read about a recent July 2008 USCIS memorandum (atttached in this post) about 245 (k) that says that technical violation if were not on part of applicant , the adjudicator can give special consideration and adjust the status.

Thank you for the wonderful forum service.

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Last Minute Options!?!

Hi Rajiv!

Many thanks for this conference call!

Our situation is thus; My wife and I are both Indian citizens. My wife originally came to the US on a B-2 Visa in October 2000. This was a 10 year, multiple entry visa. She applied and was approved for four 6-month extensions while she took licensure exams (DDS). She subsequently changed status to H-1B, this also was approved, she has been on H-1B status since 09/04/2002. Her 6-years of H-1B expires today, 9/4/2008! She has an I-130 pending (through me - LPR, Eligible for Naturalization in April 2010) and has been denied I-140 (due to inability-to-pay, we are in the process of appealing this decision). She currently has an H-1B extension pending filed on the 19th of Aug 2008 - waiting for the receipt.

Two questions here; first, with all of this going on, is her 10-year, multiple entry B-2 Visa still valid? She has not violated any requirements of her stay in the U.S. Can she now leave the country and get back based on this visa?

Second question -
This is a two part question. We now want to Self-Petition for EB1-EA (I-140, I-485 concurrent/EAD/AP). Must this paperwork be postmarked as of today (Since 6-yr H-1B eligibility expires today) or since her H-1B extension is pending, can we take some more time and make this petition more weighty by getting all recommendation letters etc. from U.K and India?
Second part of the question: My wife is the recipient of a Fellowship from the Faculty of Dentistry of the Royal College of Surgeons in Ireland. She also has a demonstrably strong track record as a dentist and Oral Surgeon and has recommendation letters to substantiate this. She also was a star student, obtaining 1st rank in all years of Dental school and subsequently also received the Best Outgoing Student and Best Allrounder awards from her University and also the local chapter of the Rotary club. We are hoping that is will qualify her for being regarded as a person with 'Exceptional Ability', can you please weigh in with your thoughts and advice?
Basically, we are looking to ensure that she is eligible to stay legally in the U.S at least until I am Naturalized and can upgrade her I-130 petition as a spouse of a USC.

Thanks and sorry for the lengthy post!!

Hi Rajiv,
My question is regarding Labor application status.
DOL website says each processing center (now it's only Atlanta I think) has a automated telephonic system which can be used to query the case status if you have case number or employer telephone number.
Is that correct? If so what is the number? I can't find it anywhere.


Registered Users (C)
I'm a US LPR since Oct 2004 and I would like to apply for US citizenship when I qualify ~ July 2009.
I got married after I got my green card.My wife and I are currently citizens of India.My wife entered USA on B2 visa and coverted to H1-B.
She is out of status for about 9 months ever since she delivered a child in Nov 2007.Her I-94 expires in June 2009. She was on maternity leave for 3 months starting from from Nov 2007 to Jan 2008 though but she never returned to work after maternity leave.Her H1-B is still retained by her employer and her employer is actively looking for a contracting job position.

Has her clock for the 3/10 year re-entry bars already started ticking for being out of status?So will she be subjected to 10 years reentry bar if she stays in US beyond Nov 2008 ( when she would complete 1 year on no pay roll)?If so if she leaves US before Nov 2008 whats the duration of re entry bar that she will be subjected to?

As an alternative if my wife starts working again and works for like 6 months and then go to India, what are the chances of her H1 getting stamped, will the gap in which she was on no pay roll still have impact on her visa stamping?
How long does it take for my wife to get her greencard if she continues to stay in US till and after i get my citizenship?
Please advise on whats the best solution for our complicated issue.We are stressed and dont know what decision to take.

We want to apply for Canadian green card from US as a backup incase my wife needs to go to India for an emergency or any sort of urgent family situation as the wait time for her US green card is about 2 1/2 years from now.If I'm added as an applicant to my wife's Canadian PR application , will the USCIS reject my application for US Citizenship since I showed my intentions of becoming a permanent resident of another country ?
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Hi Rajeev, I have two questions:

1)My Employer didn’t file ETA750B form while filing my I140 with substitute labor (May'2007). Is it a mandatory form? Is it better to file an amendment now or wait for REF? Please suggest.

2)My wife's AP is valid till 27th October 2008 and applied for renewal. Can she travel on old AP and comeback after 27th october with the new approved AP? (I'm going to send her the approved AP by mail/post).

Thank you!


Registered Users (C)
Hi Admins,
I am unable to post new messages for the Sept 4 conference call. Can you please help.
My ID is jvemugunta.

Thanks, jagadish


Registered Users (C)
Hi Rajiv,
Thanks a million for your help to the community.

I am a physician working in research for over 9 years here in US.I have been in J1 (has obtained waiver)and then H1B. I obtained an I-140(NIW) based on my research (prority date july 07).I plan to move back to India and do Consulate processing,I will work in a different field then my present occupation (will practice medicine rather then research)My questions

1) If i work in a different field in India then research would that be a problem for my consulate processing or in other words do i need to be working in the same field in India as in USA for the purpose of my I-140 (NIW) consulate processing.

2) it is usually stated that consulate processing takes lesser time to process is that true.

3)Is consulate processing a straight forward procedure.



Registered Users (C)
Hi Rajiv,

Thanks for your service. I have spoken to you last on the phone call. However, my company's lawer expressed some concerns. Is this a real concern?

Employer -A
Substitute Labor with a priority date of 05/23/2003 in EB2
Filed I-140 and I-485 on 07/13/2007
I-140 denied on 01/26/2008
I-140 sent to appeal(MTR+Appeal) on 02/25/2008
This I-140 is pending in Texas Service Center and has not been forwarded to the AAO office yet.

This is the current employer I am working with.

This Labor and I-140 are mine and the I-140 got approved on 07/15/2008 in
EB2. This labor has a priority date of 11/01/2005.
Now, since EB2 is current, I want to apply the I-485 application with employer-B next week.

When I talked to you last time, you have suggested not to withdraw the I-140 application from employer-A. My company lawyer thinks that withdrawal of Employer A's I-140 is the safe option before filing I-485 with employer-B as it can avoid confusion and mistrust from USCIS.

what should I do now? Please advise.



Registered Users (C)
One more question Rajiv,

I have come from India on Aug 27, 2008 along with my wife and son. My visa expriry date is 05/11/2011 on the passport. The same is true for my son and wife. However, the CBP officer at the port of entry issued the I-194 card for my wife with an expiry date of 10/10/2010. when I asked for the reason, his explaination was baecuse her passport expires on 10/10/2010. When I asked him on how my wife should reniew the I-94, his answer was to go to India and come back with a new passport in 2010. I was surprised by his answer. I know this can't be true.

How can get the I-94 card for my wife until 05/11/2011. Please advise.

Hi Rajiv,

I really admire you for the great service you provide to the immigration community.

I have a question regarding Interfiling.

Following is the sequence of event in my case:

1. I-140 (EB3) approved in June 2007.
2. I-485 applied in July 2007 with I-140 (EB3).
3. Another I-140 (EB2) approved in Aug 2008 with Recaptured priority date from I-140 (EB3) for the same company.

Both the I-140 (EB2 and EB3) and I-485 have same A#.
Priority date for the I-140(EB2) is current but not for I-140(EB3).

Following is my question:

Does this case require sending letter to USCIS for interfiling with New I-140 (EB2) or this is automatically linked through the A# and the most favorable PD/Category will be considered at the time of adjudication?
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Registered Users (C)
Filing MTR

Hello Rajeev,

I am ROW national with a 3 year degree and 15 years of experience. My attorney filed my I-140 under EB2 thinking that it will get approved. We got an RFE about the company taxes and the degree. We did another evaluation to show that it is equivelant to 4 year US degree.

USCIS denied the case stating that I do not qualify for EB2. However, they have stated that I can file for EB3.

My PERM has expired. We sent in MTR asking them to downgrade my I-140 application to EB3. Have you seen success in this case? If we send another I-140 for EB3, will they accept, though PERM has expired?

What are the options I have without filing another PERM (I am trying to save my priorite date)?

Thank you for your time.
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Registered Users (C)
H1-B & Filing for Green Card through Marriage -- Visiting India


Currently, I am on H1 B visa since OCT 2007. My finance is scheduled for Citizenship interview in September 2008 and we are getting married in October 2008. After that we are going to apply for my Green Card based on marriage. If I get green card before Dec 2008 that would be great but the chances are less.

My Question is:

If I want to visit India in December after applying for my Green Card, CAN I?

I would like to know that does my green card filing through marriage affects my H1 status or not?
Please aware me with the PRO's and CON's?

What document would I required to show as a proof in immigration while my return entry to US ?

Thanks in advance.
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Registered Users (C)
Dear Rajiv-sir,

Thanks for the selfless service you have been providing to the community.

Can I embroil you into a controversial (at least for some) topic. I would like to get your views on the visa-spill over rules.

As per the relevant sections (as displayed in every visa bulletin), the spill over from EB1 should go to both Eb2 and Eb3, while the language is not very clear on the priority, based on the spill over of EB4,5 which comes into Eb1 and further trickles down, the language for EB1 spill over seems to suggest that both EB2 and EB3 should get the spill-over simultaneously.

DoS seems to have changed their interpretation, apparently, based on AC21 that all of EB1 spill over should be used by EB2 before EB3 can get any. Other than the a section which says that any visa within a category will not trickle out of that category as long as there is a demand, my untrained eyes did not see anything which suggests that EB1 should go only to EB2.

Can you please comment on your view of the law.
My husband is a GC holder and he has got his citizenship Interview in October 2008. I am in L1B working in US. Once my husband gets his citizenship we want to apply for green Card for myself.

Can we apply for my GC as soon as he gets his citizenship (on the same day or do we have to wait). What is the process for it. How long does it take for me to get GC.



Registered Users (C)
Any problem if LCA's menioned yearly salary is very less?

Hello Rajiv,

I'm working on H1 VISA currently. I switched to current employer to do contracting based job duties few months before from full time role. At that time of transferring my H1, current employer filed my H1 transfer with yearly salary as 42K though my previous wage was 80K per per year. I got my H1 approved.

Does it create any problem at the time of visa stamping as my H1's LCA document has yearly salary mentioned as 42k per year though I get paid 120K per year currently as per my pay stubs?

I asked my current employer to provide me with a supporting document for Visa stamping , he said that LCA mentioned with the minimum wage should not be a problem, would create unnecessary issues if he gives any document relating to the wage, He also said that it would be problem if that LCA wage is more and paid less. Is this correct?

How could I show this excess amount with documentation, can it be documented as overtime and bonus or letter of appreciation with a bonus ?
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Hello Rajiv,

I'm a US LPR for 4 years and have maintained by continous residence with only 2 short trips of 3 weeks abroad. I work for a major US corportation and I need to temporarily work in their overseas branch in India.

1.Before I officially relocate to India I want to go to India for 2 weeks to set things up there. After I come back from India and when N-470 application is approved I want to officially move to India( say a month after my first India trip ). Is there any problem with the approach ? Should there be a year gap before one applies for N-470 ?

2. After I come back to the US spending a year abroad with approved N-470, should I have to wait for 3 months before I apply for my citizenship or can I apply for citizenship immediately ?

3. After I apply for my N-400 can I spend time abroad ( less than 6 months ) without jeopradizing my N-400 application ?



Registered Users (C)
I-485 pending for Name check

Hello Rajiv,

Thank you for your great service.

I have a question, I have filed I-485 on March 2007, in EB2 category.

My case is still pending on Name check. Since the name check can take for ever, is there any other option?, I read something like - if you change to consular processing now, it can be faster? . My labor took 5 years for approval and now, I-485 is also taking much longer than usual. Is there anything I can do at this point?. I have another labor EB3/I-140 approved, can I apply for another I-485 ?.

Thank you.
Background Investigation delaying proceedings

My Employer started my GC processing last year using Substitute labor in April much before the substitute labor was stopped. The receipt date is April 19, 2007. For more than a year now, my I140 is still under processing at Nebraska, even though my priority date is current(2001). After a service request, we finally got the response that the processing is delayed due to background investigation.

1. Is this the same as the FBI namecheck? I thought that happened only at the I485 stage.
2. What is it that I can do to follow up? Should I contact the local Senator?


Registered Users (C)
Multiple H1B's


I am on H4 in the USA , I have applied two H1B's through two different employers (Compnay-A and Compnay-B) on Apr 1st , 2008 and both have got approved which will effective from Oct1st , 2008.

I have the following questions

1. Now I have two new I-94's through two different employers ( Company-A and Compnay-B ) plus I have my own H4 I-94 with me. do I need to return all three I-94's if I leave the US

2. As I have two approved H1B's with company-A and company-B, Can I easily switch from Compnay-A to Company-B later time then to company-A etc . For this do I need to inform USCIS. Is there any -ve consequences in that ?

3. Can I apply SSN now using Company-A H1's approval then join in compnay-B from Oct 1st, 2008

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