September 18, 2008 Conf Call - Recording Available for Download

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H1 visa denied, will it cause any problem to 485 processing or at port of entry?

Dear Rajiv,

We have asked for your advice in one of the conference calls.

Here is a recap of my situation:

I have entered united states on H-4, applied for H-1B worked on H1-B for sometime, went for visa stamping. Visa officer has said that the case need to go through Administrative processing. Recently we have received a letter stating

"section 212 (a) (6) (c) which prohibits unlawful misrepresentation. See form DSL-851 for further details . "

As per your suggestion we have sent an email to US consulate abroad, asking for reasons and future steps, and we have received a response saying

"your case has been fowarded to the USCIS for a final determination. As for your H-4 visa, a decision may not be taken until the USCIS makes a final determination in your case by the USCIS."

Can you advice us what to do next?

1. Will it be possible to withdraw the H1-B application from USCIS?
2. Approximately howlong it may take to get a final decision?
3. Is it better to contact USCIS about the case?
4. Will there be any impact of this on my 485 application? or on any future immigration processes?
5. Will there be any problem while entering or leaving the country?
6. Does USCIS notify us about the final decision?
7. Is it better to seek help from Senator in this matter to know what is the decision on our case?
8. Is it save to travel now on Advance Payroll?

Thank you very much for your help.
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Registered Users (C)
H4 incorrectly denied, what are my options.

Dear Rajiv,

Thanks again for the wonderful service, time and again I am very indebted to this service which serves as a lifeline to most of us immigrants.

I had recently applied for an H1 and H4 extension. Even though I have maintained my lawful status at all times, and just in the last few months got a visa from a US consulate, the adjudicating officer thought I had not maintained my non-immigrant status and has denied the H4 extension while approving the H1 without an I-94.

In the notice informing about the denial of the H4, it said that the h4 applicant no longer has a lawful status to stay in the United States, and therefore will be in violation of the US laws.

1) Both my wife and I have our current I-94 which is valid till early next year. Given the notice from USCIS, are we already accruing illegal stay? Or do we have till our I-94 period to stay and then get out new visas?

2) Given this situation, does both the H4 and H1 applicant need a new visa to get a new I-94, or can we just cross the border and jump back in asking for a new I-94 (we have our current visas valid till the next year).

3) To further muddy the waters, USCIS sent another notice (the very next business) day saying that they are reviewing (or have made a new decision) regarding our case and we should be hearing from them shortly! This notice was for H4 applicant (not sure if they will review the H1 case too). In case they approve a new 1-94 for the H4 applicant, and dont review the H1 case, can the H1 applicant cross the border and be back for a new I-94 (using existing visa and not applying a newer visa)



Registered Users (C)
Old Lady Seeking help

Dear Rajiv
I know old lady 60 years old
she admitted on b2 VISA 7 years ago
she had heart surgery and the doctor said that she is not alwoed to fly back home
she couldn't go back and now she is illegal
sh had a 32 years old son who was permenet resident he died and barred here
she has another doughtier she is a permenet resdent and she couldnt get her citzenship becouse she don't read and write English
the lady want to get a green card or any kind of legal status
I don't know what she can do
is any way she can get a humnatry sitouiotion status
Please let us know what is the best way
Hi Rajiv,
Thank you for the service you are doing for the community.

Here is my case.

While working for Company A, applied for 140/485 last July/Aug from a consulting company - company B. Got FP/EAD Oct 2007.
140 approval IS PENDING and processing got transferred to NSC 4 months ago. Same time I joined Company B on EAD and started consulting for Company C( joined on contract to hire after 6 months)

I am in a dilemma now.
1.Can I join company C after 2 months on AC21 portability?
2.Company B can hold on to my 140 processing but is saying there is a ruling now which mandates them to withdraw my case if I port.Is it true?
3.Can I join Company C on new H1B?Will it not invalidate my GC processing with company B?


Registered Users (C)
Changing career to another field after receiving permanent residence status

Dear Rajiv,
  1. Can a legal permanent resident(LPR) change career after say one year from his AOS approval to an entirely different field from the one for which his labor and his AOS was approved? Will this raise any red flags at the time of citizenship?
  2. In other words, after receiving green card on the basis of say job in computer industry, when can one change his/her profession to an entirely different field (let say opening up a restaurant or go into real estate on full time basis) without jeopardizing the citizenship? Would waiting for one year(or some other amount of time?) after AOS approval be good enough to satisfy the "intent to work for in the field noted in labor application on a permanent basis"?
  3. Is the person after receiving green card on the basis of employment in certain field stuck in that field for ever?
  4. What are you thoughts in general about this scenario and how should one go about it?
Thanks in advance for your response.

PS: This may be a good candidate for your blog.
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Wife on H4 while I have a GC

Dear Rajiv,

I have a weird situation. While I was on h1B my wife in india applied for H4 about 4 months ago. The consulate took her passport and everytime we called they said they were processing the visa. My GC got approved in July and I got the actual card. Now yesterday the consulate sent my wifes passport back to her with a 3 year H4 visa stamped on it.

Question should she travel to US on this visa? I am a GC holder now.
I have applied I-824 for her but this is taking over an year and the priority dates retrogressing I am in a weird situation.

1- Will the CBP officers let her enter US on H4, I know indian immigration will not give her time.
2- what are my chances of getting her here with out a lot time spent away from her.



Registered Users (C)
Dear Rajiv, I appreciate your input. Your response was lightening fast that it was scary, just kidding :). This scenario may be among the most commonly asked in league with "When can one leave sponsor employer after getting AOS approval?". I will have some follow-up questions if you don't mind but I will post them under your blog entry. Thanks again!!
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Hi Rajiv
Thanks for the services.
I am on H1B visa ending on nov 2009.My company has started my GC and have started advertisement process.The lawyer is planning to apply before 365 days for my perm.But there are chances we might not meet the deadline.
Out of my 6 yrs ,I was out of US for around 20 months as I was working with one of giant Indian software companies who send employees for short terms to US. During that 20 months time I was employee of the indian company and not the US company.
1. Will I be able to recapture that time?
2.I don't have the boarding pass airline tickets for my travel out of US.Also the immigration stamp is not very clear. But I had submitted my I-94 while departing.
What else can I provide to recapture this time.
3.How early can I apply for the same
4.If luckly my PERM get applied before 365 days can I ask for these 20 months along with my 1 yr extension

thanks a lot


Registered Users (C)
Filing for Citizenship

Hello Mr. Rajiv,

I would like to get some advise on my case/eligibility for filing for citizenship. Below is the information with respect to dates:

date GC received : 31sy July 2004

I moved to India : May 22nd 2007

in an attempt to not to break the continious residency clause, i visited US for 8 days on Oct 23rd 2007 (out for 158 days) and April 14th 2008 ( out for 162 days) .so i was out of the US for less than 6 months.

I had a joint lease for an apartment while i was gone.

Now i have moved to US with a job on August 1st 2008 and plan to continue to stay here till i become eligible ie; April 2009

If we go by the dates and as per my knowledge i become eligible to file for citizenship on April 2009.

While i was in India, i worked for an Indian company from the period JUL 2007 till Jul 2008. After reading a few post on the portal, i am worried if i should mention in my N400 that i took up a job while i was in India. The reason i am worried is that i have seen some cases where in they were denied citizenship as they took up employment while they were in India.

Also i have started working for the same company which i was working for when i left.

please advise on my chances of getting approved for citizenship.

Thanks a ton for your advise.

Rajiv S. Khanna

HOST, Immigration.Com
Staff member

Dear Rajiv, I appreciate your input. Your response was lightening fast that it was scary, just kidding :). This scenario may be among the most commonly asked in league with "When can one leave sponsor employer after getting AOS approval?". I will have some follow-up questions if you don't mind but I will post them under your blog entry. Thanks again!!
Sure. I will be happy to answer. Your input has always been helpful to us in shaping this forum.


Registered Users (C)
Company spin off

Hi Rajiv,

I have following questions:

1. I am working for Company A. Company A has two divisions 1 and 2. Division 2 is being spun off into company B while division one will retain the name "Company A". Ill be an employee of company B. Company B may have very different designations etc.

1. I wanted to know how would it affect my GC . Any issues that I could face ?

2. Given that I might be part of a new company can I continue to extend my H1 ?

3. Also is it possible to somehow get into EB2 category if my new designation requires higher experience in new company ?. Secondly I will have a Masters degree before the spin off , could that help in changing the category to EB2 ?

4. Finally (sorry for so many Qs) I am now on H1 status and thats how I came into the country last time. I have not used my EAD yet. However in december I need to travel to Europe for work, so could I enter back using AP as my H1 will be expired in november and I may not have received my extention by December ? I am not too clear if I enter on AP in december I become on EAD status ? Can I get back on H1 right away ? How easy it is to switch back and forth ?

PD - Nov 2003. (India)
I-140 (EB3) - pending, filed Aug 2007
I-148 - Pending, filed Aug 2007

Rajiv, I appreciate your time in answering the questions and again apologize for asking so many .

Thanks and regards...
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Registered Users (C)
EAD renewal

I applied for renewal EAD on aug 5 2008 and got it on aug 25 2008 .my husband the secondary applicant applied for renewal ead on july 21 2008 and is still waiting. he will complete 90 days of waiting next month. he is working on ead and if he does not receive the renewal ead by 22nd october he cannot work.
what can we do to prevent him from losing his job. the processing is in texas service center.


Registered Users (C)
Gc - ac21

My company B applied for 140 through labor substitution which was approved. they also applied for perm labor for me which got approved. i applied for concurrent 140 and 485 using the perm labor as at that time my previously filed i140 was not approved.
now my I140 that was concurrently filed with my 485 is still pending.

I also have a approved I140 with my previous company A .

If i were to get laid off from company B would i still be eligible for AC21 portability and can i continue my third stage with a new company


Registered Users (C)
Hello Rajiv,

Thank you for the work you're doing, helping us to better understand these immigration procedures. I need some advice. A few (about 1988) years ago my uncle filed for my mother, then the filing finally came through. About a year before the filing came through, a letter was sent to my mother
stating that she should contact the US embassy in my country before
my 21st birthday, however when she got the letter my birthday was already gone. Anyway now I'm in the US under the H2B status and my mom is now US
citizen, questions are:

1) If my mom files I-130 now, how long would it be before I can apply for EAD & AP? (approximately)
2) How many years am I looking at to complete the process (PR)? (approximately)

I just need to better understand my case.
Thank you Rajiv
H4 to H1 stamping issue


I came to US on H4 in 2006. My H4 was stamped till Sep 2008. In 2007, I applied for H1. My H1 is valid from Oct 2007. But due market and some personal issues, I did not actually start working. So I do not have any pay stubs. Now I need to travel to India and need to get the new visa stamped. What are my my options? Will I have problems stamping H1? What sort of paperwork will I need at the time of stamping? If I apply for H4 through my husband's employer, how long will it take to get approved? Can this process be expedited? What will happen to my H1 in this case? Will I have to reapply for H1 if I want to work? If I go for H1 stamping and it gets rejected, will I be able to apply for H4 after that? What is my best best option?

Thank and regards


Registered Users (C)
Gap between jobs and likelyhood of visa denial

I would be truly grateful if you could answer this question though it is long.

Came to US in Aug 2003 on F1; Started working for US employer XX on H1 from July 2005; While I was working on H1B visa for employer XX , I was laid off on Feb 11-2008. The H1B approval for employer-XX has a I-94 that is valid until Oct-1-2008. I applied for transferring H1B to a new employer-YY on March 24,2008. My H1B transfer application is still pending. I started working for the new employer on May 15.

My questions are:
1) By applying for a transfer after being laid-off, have I violated any terms of my stay in the US?
2) During which time period, my stay in the USA would be considered out-of-status or unlawful? Between Feb-2008 to March 24-2008 or Between Feb-2008 to May 15-2008 or some other period.
3) I have a gap of about six weeks between the time I lost my job and new H1 was filed. But may pay stubs have a longer – about 3 and half months gap between two employers. Would I be denied a H1B visa stamping when I go for stamping at any point if I have about six months of pay-stubs from my new employer-YY starting from the time I started working for YY for reasons such as staying in the USA while out-of-status or for unlawful stay, if any?
4) If my H1B transfer application gets denied, would I be considered as staying in the US out-of-status or unlawfully? From what date my stay would be considered out-of-status or unlawful in the event that my H1B transfer petition is denied.

A different question:
I have to make a decision between two options:
1) leave my job and change to F1 status from 2009 to 2011 for an MBA.
2) Continue my job, start GC process now and do a part time MBA (for which I don’t need to change to F1). By the time I finish MBA in about 3 years from now, I might have progressed close to filing I-485. I would prefer this if, for some reason, US immigration policies might change in next 3 to 5 years and not allow employment based immigration.

Question is: Is there a chance that in the next 3 to 5 years the immigration policies of USCIS might change ( for any reasons such as US congress/senate opposing immigration in the wake of bad US economy etc) such that people on work visas (such as H1B) might not be allowed to apply for permanent residence?
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Registered Users (C)
Hi Rajiv,
Thanks for your help. One of my friend was on L1 in US when he applied H1B visa. He travelled to India when the H1B was pending and later approved when he was in India. He came back to US Now on L1B.To his surprise his H1B came with an I 94 (change of status approved). The USCIS might have ignored his travel. Now the question is whether he can still continue on L1B after Oct1 which he wants to because technically his COS has to be rejected.



Registered Users (C)
EAD renewal not approved after 90 days

Hi Rajiv,
Thanks for the great service that you are providing.

I applied for EAD renewal online in May and took the required biometrics in June. Its been over 110 days and still no approval. I opened service request, took Infopass appointment multiple times and requested USCIS to expedite but no result. USCIS is not issuing the interim EAD cards anymore.

I am using EAD for work which expires on September 23.

Can I continue to work even after September 23?

I heard about section INA 245(k) which allows a person over the lifespan of GC application to work without valid EAD for 6 months. Can this be applied in my case?

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