Thread CLOSED to Post Questions for May 04, 2017 Conference Call

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Rajiv Khanna, US Immigration Attorney, hosts a Free Community Conference Call for all of you, every other Thursday at 12:30 PM Eastern Standard Time to answer US immigration related questions, Dial in No:
(202)800-8394. Everyone, whether or not a member of discussion forums, is welcome to call in and ask questions or just listen live or listen to the recording for the call posted at the end of the day. Note that we answer posted questions and follow-ups first.

Conference Dial-in: :
Topic: General Immigration Related Questions
Start Time: 12:30PM, EST
End Time: 1:30 PM, EST
NEXT CALL DATE: May 18, 2017
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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Hi Rajiv,

I am on valid H1B status (valid 797) that expires on 12/17/2017. Been on H1B since September 2012. I-94 expires 12/17/2017. H1B visa stamp in passport has expired as of 10/26/2016, although I am on valid H1 status and have the required paperwork to get a H1B visa stamped from consulate. I got married to my USC spouse in February and filed paperwork (130, 485, 131, EAD) on 3/4/2017.

Biometrics completed as on 4/10/2017. We are planning to go to India on 6/11/2017. My questions are:

1. Am I on H1 status even though I field for AOS?

2. We planned travel 100 days from date of filing and fortunately/unfortunately cannot be changed. In case AP doesn’t get to us in time, what are our options?

3. Considering I get the AP, should I still go for H1B stamping while in India?

Hello Rajivji,

Thank you your service and help to the community and apologizes for my long descriptive post.
I recently changed my job and joined my employer on 01-Feb-2017 (after receiving the H-1B receipt number) while my H1B petiotion was being processed.
During this time I was approaching my 5th year on H1B which was on 10th March 2017 (with an year to complete 6 years on H1B).
In the meantime my employer filed my GC PERM appplication after 15 days of joining. My H1B was still in process at USCIS and got an RFE.
While responding to the RFE my employer requested for 2 years of H-1B visa. 1 year for the 6th year on H1B and another year extension as my PERM application was filed.
My H1B visa got approved for 2 years with end date of 10th March 2019.
I'm planning to visit India and I have to go for visa stamping.
My employer is saying that I can take the H1B approval notice and client letter for visa interview and these are all the documents that are needed during the interview.
Because of the current environment around H1B visa, I'm wondering if I have to carry supporting documents related to the PERM application as I got the additional 1 year because of PERM filling.
I requested my employer for the PERM application A-number but is unwilling to give to me. Is there any other way get the PERM A-number?
Would I be able to change my employer after my 6th year on H1B visa even if my PERM application is pending or I can do it only after I get I-140 approval and 180 days?
On other lines what is RFE on a PERM application and audit? Are they different?

Thank yu for your help.

(re-posting this question as it was skipped in the April 20th call and I could not join the call from India)

Dear Mr. Rajiv Khanna,

I am a USA legal permanent resident who moved to India in 2013. This is my 3rd year outside of USA and I have my SECOND re-entry permit valid until May 2018.

I need to be in India until Dec 2018. Since the re-entry permit procedure take a period of 20 days minimum, I am thinking of just visiting USA (for a week) before my re-entry permit expires and NOT apply for a THIRD re-entry permit.
(1) If I do so, how long can I stay out side of the USA (without a permit)
(2) Are THIRD re-entry permits given only for 1 year period?
(3) Are there any other options for me to extend my stay for a 5th year without re-entry permit?

Please advise.
Appreciate your answers.
Hello Mr. Rajiv,
We would really appreciate your help in below matter.

Q- I-140 approved -EB3 and 485 has been pending for 3 years, went to India in 2010, withdrew 485 when pending in 2015, PD current in 2016 and I am on H4 and in India now. Can I file 485/AC21 once I am in USA? what's best option to get GC?


Priority date: EB 3 June 2004.
I 140: Approved in 2007.
I 485: was pending for 3 years when I left the company in 2010.
I had EAD & parole till 2013. I didn't not renew it after that because I have been in India since 2010.
I 485 was withdrawn in 2015 while it was pending.
Priority date became current in 2016.

Now I will be coming to usa on H4.

Should I look for a similar job that I had with new employer so I can use my priority date and file I 485 or what would be the best thing to do from here to finish the GC process. MTR could work? since 485 has been pending for more 180 days.



Registered Users (C)
FAQ: Marriage - change in family based category
I am a US citizen and filed for my daughter (unmarried over 21) in 2014. She will be going to marry soon. Once she married, do I have let NVC know about this? How? Will it be same waiting time or different?

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FAQ: Transfer of priority date and AC21 portability of green card
Hi Rajiv,

I would like to consult regarding transferring my job green card. I am currently on H1-B. I applied my green card in May 2014 through a consulting company which I currently employed in working for at client location in California. I got my I-140 approval in June 2015. The new job that I have got is in North Carolina for a bank wherein the work I will be doing is pretty much the same and the job duties will be the same. In my new job the bank would be giving me a title of Assistant Vice President (per bank titles) as compared to the current Software Programmer title on my H1 and Green Card. My question is would there be any issues while doing the H1-B transfer, Labor and i-140 which the bank would be doing because of the change in title. The job roles and duties are pretty much similar. I am not sure if I would like to come back to California on getting the green card as this point. I don't want to lose my priority date.

Appreciate your response.

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FAQ: Time between H-1B visa approval and joining the employer
Hello Rajiv,

Question: Is there any recommendation about when employee should join employer after H1B stamping. Given some flexibility? e.g. 1 or 2 month later after H1B stamping and after offer letter start date? Any issues at POE?
My H1B filed under REACAP. Previous time has been captured. H1B stamping is also done.

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FAQ: Staying with old employer after H-1B approval of another employer
I was planning to join my client and we did H1-B transfer for client and I never informed my present company. I changed my mind and I am not planning to join client , do I need to inform my present company and ask them to re transfer my H1-B with them or I do not need to do anything, I have never resigned from my present company , not sure do I need to do any thing ?

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FAQ: Can H-4 travel ahead of H-1B visa holder - Can H-4 stay in the USA if H-1B has to leave the USA
Hello Sir,

This is regard to my previous question about H1B recapture. Primary candidate has H1B for 18 months. No LC or 140 filed.
Q- Can H4 spouse eligible for EAD? If yes, do they have to apply from USA or can they apply being in India?
Q-Is there any thumb rule that H1B primary candidate has to travel first to USA then H4? or H4 can travel before H1B?

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Thank you for answering our concerns, I really appreciate your time and your passion towards your work.

1. I got laid off from Employer A and joined Employer B and there was a gap from April 01 2016 – May 25 2016. There aren’t paystubs till May 25, 2016 but from May 25 I have paystubs from Employer B. In RFE they are asking for proof of maintenance of my status. I’m not sure whether to answer RFE as I was searching for a job and it took some time of 55 days of gap to get new employer. E-verify says I’m authorized to work, I hope I’m on legal status.

· Do I get a consulate visa or since I’ve been on H-1 since Oct 2012, considering for being quite some time on H-1B, do USCIS forgive the gap and approve my I-797 and I-94?-?

· Can I expect a site visit so they can make sure of my profile?

. In your experience what are high chances of my case getting a consulate visa/approval of I-797 & I-94/denying h-1b?

2. My employment with Employer B has ended on Feb 8th and on Feb 9 2017 I've joined with Employer C and to answer RFE for Employer C we are waiting for confirmation on I-797 from employer-B. I-797 from Employer C is dependent on confirmation of I-797 from Employer-B. If i-797 from Emp:B receives as consulate visa what will be my options ?

a. Should I have to go ahead adn answere rfe for Emp:C and wait for there decision since my currently employed with Emp:C

b. If my i-797 denies from Emp:B, what options will I have with current emp:C.

3. I’m planning to get married here in US and I wanted to apply for visitor visa for my Brother and his wife to visit for marriage. Since my current I-94 from Employer A is expired on end of 04/2017. IS it okay to send them for visit visa interview on expired I-94 or I have to wait for approval of I-94 from Employer-B.

Is it legit way to send them for visa interview on my expired I-94?
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Hi Rajiv,

I’m the beneficiary of a petition (I-130 family-based petition, (F2B) (Philippines), and my priority date is almost current.
I have a US Visitor’s visa and can file either adjustment of status or do consular processing.
I have a fiancee and we are ready to get married.

My question is, what’s the fastest way for my fiancee to live with me in the US? She has a US Visitor's visa too.
Can we get married, and be able to include her in my adjustment of status/consular processing OR I have to be green card holder and petition her?

Thanks in advance and more power to your program.

Kind Regards,

Hi Rajiv,

I have a couple questions about whether or not I can use AC21 to port my green card application to my new company. Below is my situation:
Been with Company A since 2010;
EB2 I-140 approved on 3/3/2014;
EB3 I-140 and I-485 filed concurrently on 12/05/2016, Priority date (3/3/2014) became current in Feburary, 2017, Biometrics done in January, 2017 and EAD/AP received in Feburary, 2017;
Been laid off by Company A on 3/20/2017 and started new job at Company B on 3/21/2017 by using approved EAD and H1B transfer filed on 4/4/2017. Both EB3 I-140 and I-485 are still several months away from being processed based on the latest Nebraska Center processing time status.

Question 1
Should I wait for USCIS to send me RFE and then provide them documents to prove the fact I was laid off by Company A and use AC21 rule to move my entire application to Company B? Even if Company A revoke my EB3 I-140, can I still use AC21?

Question 2
Can I start new PERM, I-140 and I-485 process with Company B while leaving my previous I-485 case alone? Will the pending case affect the new case, or vise versa?

Thank you very much and look forward to next conference call.



Registered Users (C)
FAQ: Self-employment portability AC21
Dear Sir,

I have some questions about AC21 and supplement J.

My PD is Aug, 2009 in EB2 India. My I-485 has been pending since 2012. I also have EAD since 2012. But never used EAD so far. I transferred my H1B to new company in 2016 (didn’t file AC 21 and supplement J). Now I wanted to start a company and work thru my company by using my EAD. Do you see any issues with the current situation? I know that employer has to fill up some information in I-485 supplement J. Can I fill up this information as an employer and fill applicant information as an applicant?

Thank you so much


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Hello Rajiv,

I have qualified for EB2 twice, first time in 2011 & then again in 2014.
Recently my company got sold and for some reason the GC process could not be transferred over, I don't know much details of why but they said we were bought
and moved to an new entity and may be that's why.

Now, the lawyers are saying that they cannot apply in EB2 category because my post graduate diploma + bachelors in commerce does not qualify for Bachelor's in Computer Science.
I know my Post Grad Diploma is not accredited by AICTE anymore and that's the reason I have been given. My previous evaluations state that I have an equivalent degree but the lawyers are insisting
on getting a new evaluation and the evaluation agencies they tried have not given the equivalency certificate.

My two questions:
1. Is there a way I can still transfer my I-140 to new payroll employee (post merger)
2. Is it really required to use a new education evaluation (when I have a case where my EB2 has been approved twice in the past)?

Hi Rajiv,

I am working on H1B visa with consulting employer. My current job with client location in NYC manhattan area is going end and i need to look for new job.
This is question regarding H1B filing for work location change. Below explains job change within an MSA does not require LCA and H1B filing. How can i determine what area is comes in MSA.
Can you please help me understand/determine what area comes for NYC manhattan area MSA.

  • A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
Hi Rajivji,
Thanks for your service to the community. I have questions which are related to benefit claims of US immigrants.
1) I am waiting on green card through the EB2 but through my employer as well as individually, considering investment in multiple insurance/ pension schemes (disability/ life/ unemployment) in both US & India. Have questions on eligibility for insurance claims for dependents of a GC holder (and eventually US citizen). Do you have experience in this area or direct me to any publication. Investing in insurance etc earlier allows much better prices, so do not want to wait till the whole immigration process is completed.
2) Also, I have already worked in the US for over 9 years on H1B, hence have paid significant amount of Social security/ Medicare taxes. However, due to the EB2 backlog, I am still awaiting GC. Could you please share any knowledge on social security claims for the following categories: H1B resident aliens still awaiting GC/ GC holder awaiting citizenship and US citizens living abroad.

Sorry if these questions are tangential to your area of practice. Please re direct to any other sourse if necessary.


Continuation of the previous post:
3) How can sponsored parents (of US citizens) arriving with new GC qualify for medicare? I am a physician and so many of my friends keep aking about these insurance related questions. Both about medicare qualification for new arrivals as well as possible medicare coverage of medical expenditure incurred abroad by US expats. Do you have any insights?
Thanks again.
Hi Rajiv,

I am on H1B visa, I have question regarding my Travel to India and come back to USA.

I was working with Employer A from dec 2012 till Oct 2016

During this time I went to Mumbai, India in Nov 2015 and did the H1B visa stamping and visa get stamped till July 2018 ON passport H1B stamp the PN: details with employer A . Come back to USA in dec 2015.

I switched the job and joined the full time with Employer B in Oct 2016 and new I-797 approval notice approved till July 2019. Meanwhile my previous Employer A revoked my h1B petition.

Now I have to travel to India in month May and will come back in June 2017.

My question is –

1. Can I come back <Travel> to USA with previous stamped h1 visa < even when previous employer revoked the i129 application> and with new 797 approval ?


2. Do I need to go to H1B Visa Stamping in India?

Same situation is for my wife, She is on H4 Visa.

During our last India visit Nov 2015. She also get her visa stamped along with me for H4. Her passport also get visa stamped till July 2018.

While I switched the job, her new 797 also approved till July 2019.

Now we have plan to travel to India in month May and coming back in June 2017.

My question is –

1. Can she came back to USA with her previous stamped H4 Visa and new i797 approval notice?


2. Does my wife need to go for visa stamping in India ?

Appreciate your reply.

Thank You.
With Great Regards,
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