General Green Card

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Impact on Green Card of Job Promotions

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Answer:

Watch the Video on this FAQ:

Impact on green card of job promotions


Video Transcript

Overall, the safest thing is if your priority date is backed up go ahead and start a new green card. FAQ in detail...

 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

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Getting A Second Job After Green Card Approval

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Answer:

Watch the Video on this FAQ: Getting a second job after green card approval

Video Transcript

Absolutely, why not. Once you get your green card approval you can take as many jobs as you like. More...

 

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

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Effect On Green Card And Naturalization Of Using Public Or Government Benefits

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Answer:

Watch the Video on this FAQ - Effect on green card and naturalization of using public or government benefits

Video Transcript:

Under the current regulations the prohibited benefits are: 

1. they have to be means-tested benefits which means they are based upon how much money you make. 

2. either they must be used to supplement your income like receiving some kind of a cash or cash equivalent or they should be giving you a long term medical facility residence. You can look up for the particular policy at the USCIS website.

You should have a lawyer research this issue for you specifically, but there is no need for you to hold back your naturalization. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

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The Impact of the NTA Memo

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Watch the Video on this FAQ: The impact of the NTA memo

Video Script

Green card renewals have been pretty much an administrative process. It is like renewing your drivers licence. If your green card is denied due to a minor administrative process can you be deported? Well, even under NTA if they put you in deportation your lawyers can walk over the evidence of the error to the court. Right now USCIS has postponed implementing its NTA policy until further notice. Even if it gets implemented chances are that as and when the NTA policy get implemented, it would be more reasonable than the way they had announced. More...

Visit the blog section to read more about this policy: https://www.immigration.com/blogs/deportation-and-denial-policy-2018-jul...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

 

 

 


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What Are Different Wage Levels For H-1B And Green Card Jobs?

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Answer:

Watch the Video on this FAQ: What are different wage levels for H-1B and green card jobs?

Video Transcript

The only difference between wage levels for H-1B and green cards in terms of logistics is, when we file for an H-1 we are using our best judgment to decide which level wage will be given. When we file a green card it is the government who decides what the wage should be. The wages are received in most cases from Foreign Labor Certification Data Center and there each occupation is based upon the county and the state in which the occupation is located and is covered under four different levels. What distinguishes the levels is the complexity of the job, the requirement that the employer has and how many years of experience, etc... Level 1 is usually for entry-level people right out of school doing formative chance, so they are still learning. Level 2 is people who are doing professional level jobs, but they are moderately complex at level 3 you become technically advanced. At level 4 you become more advanced but perhaps in terms of leadership. More...

 

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Must I Carry My Green Card With Me At All Times?

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Answer:

Watch the Video on this FAQ: Must I carry my green card with me at all times?

Video Transcript

In Trumps America I would rather not take a chance and if you look at section 264 of Immigration and Nationality Act which is codified as 8 USC section 1304,  the subsection, clearly says every alien 18 years and over shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection D. So if you don't carry your green card with you, you are guilty of a misdemeanor which means a crime and shall upon conviction for each offence be fined not to exceed a hundred dollars or be imprisoned not more than 30 days or both. More...



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International Travel as a Permanent Resident

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Answer:

1. In general, you will need to present a passport from your country of citizenship or your refugee travel document to travel to a foreign country.  In addition, the foreign country may have additional entry/exit requirements (such as a visa).  For information on foreign entry and exit requirements, see the Department of State’s webpage.


2. If seeking to enter the United States after temporary travel abroad, you will need to present a valid, unexpired “green card” (Form I-551, Permanent Resident Card). When arriving at a port of entry, a U.S. Customs and Border Protection Officer will review your permanent resident card and any other identity documents you present, such as a passport, foreign national I.D. card or U.S. Driver’s License, and determine if you can enter the United States.  For information pertaining to entry into the United States, see U.S. Customs and Border Protection’s webpage.


3. Permanent residents are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status.  A general guide used is whether you have been absent from the United States for more than a year. Abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence.  While brief trips abroad generally are not problematic, the officer may consider criteria such as whether your intention was to visit abroad only temporarily, whether you maintained U.S. family and community ties, maintained U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver’s license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.


4. If you plan on being absent from the United States for longer than a year, it is advisable to first apply for a reentry permit on Form I-131. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit’s validity without the need to obtain a returning resident visa from a U.S. Embassy or Consulate abroad.  Please note that it does not guarantee entry into the United States upon your return as you must first be determined to be admissible; however, it will assist you in establishing your intention to permanently reside in the United States.  For more information, see the “Travel Documents” page. 

If you remain outside of the United States for more than 2 years, any reentry permit granted before your departure from the United States will have expired. In this case, it is advisable to consider applying for a returning resident visa (SB-1) at the nearest U.S. Embassy or Consulate. An SB-1 applicant will be required to establish eligibility for an immigrant visa and will need a medical exam.  There is an exception to this process for the spouse or child of either a member of the U.S. Armed Forces or civilian employee of the U.S. Government stationed abroad on official orders.  For more information on obtaining a returning resident visa, see the Department of State’s webpage on returning resident visas.

Additionally, absences from the United States of six months or more may disrupt the continuous residency required for naturalization.  If your absence is one year or longer and you wish to preserve your continuous residency in the United States for naturalization purposes, you may file an Application to Preserve Residence for Naturalization Purposes on Form N-470. For more information, please see the “Continuous Residence and Physical Presence Requirements” page.

 

5. If you lose your green card or reentry permit or it is stolen or destroyed while you are abroad, you may need to file a Form I-131A, Application for Travel Document (Carrier Documentation).  This carrier documentation will allow an airline or other transportation carrier to board a lawful permanent resident bound for the United States without the carrier being penalized.  For more information, please see the Form I-131A, Application for Travel Document (Carrier Documentation) page.

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Does bad credit or private loans/litigation affect immigration?

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Answer:

Watch the Video on this FAQ: Does bad credit or private loans/litigation affect immigration?

Video Transcript:

I don't think it should be a problem unless that non-payment of the loan was somehow some kind of a crime in the United Kingdom. If it is not a crime I don't see why this is an issue at all. More...


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Porting Green Card To A Self-Owned Company Under AC21 Portability

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Answer:

Watch the Video on this FAQ: Porting green card to a self owned company under AC21 portability

Video Transcript

Yes. There are two hidden problems here that you need to be aware of and be careful. One it must be an employer, employee relationship. Second, your job should be same or similar. Talk to a lawyer. Make sure you have covered these two grounds very carefully. More...



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Transfer from H-1 (with I-140 approved) to H-4 EAD

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Answer:

You can most definitely file H-4 and EAD together. Your green card process can continue even though you have changed your status.

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RFE and Audit

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Answer:

Watch the Video on this FAQ: RFE and Audit of GC

Video Transcript:

An RFE simply means a Request For Evidence, which is typically a request by the USCIS to get more information from you. It can come in any petition. RFE typically gives you 87 days to respond sometimes it gives you lesser days to respond. RFE, when it is sent by the consulate, is called administrative proceedings where they will give you a notice. When it is sent by the US Department of Labor it is called an Audit. An audit from the US Department of Labor is the same thing as RFE from the USCIS. It merely requests for more evidence. It doesn't mean the case is denied, it just means it needs to be clarified. More...


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GC Holder Sponsoring Parents

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Answer:

1. You have to be a US citizen to sponsor her Green card. For Green Card holders as I recall the only family other than the children and wife they can sponsor is unmarried adult children over 21 but unmarried you can apply for their Green Card. Once you become US citizen your possible beneficiaries can be larger including your parents. There is little-known provision that is sometimes used, use it if it's necessary when let say your parents they don't have anybody in India to take care of them. We have been able to extend their tourist visa in those cases, stay in tourist visa even though you are on Green card we can try to make an argument that there is nobody in India to take care of them. This provision is not very clear cut in cases of holders of Green Card but believe it or not if you are on non-immigrant visa like student or H-1 visa or O-1 or B-1 any of those visas or L-1, you actually have more rights to bring your parents here. The reason being that there are certain categories of visas where people are not directly dependent and you cannot sponsor them for derivative visas but government recognizes that we will give you an extension of tourist visas. So if you are here on H-1 and you wanted to bring your mother here because she is alone in India, you could actually do her because she can't get her H-4 being your mother, she can still get B-1 or B-2 which can be extended because she is recognized or covered under those situations. However, Green card holders they don't have same privilege but you can be able to get their extension sometimes. It's not the full proof method for me wait until you get naturalization. Once you are naturalized, your parents can be here within a year on a Green Card.

2. I have done it repeatedly, every six months we have to do it, there are some people who are in 3rd, 4th or 5th year we are doing repeatedly for them. But it's not or no means it should be taken as given or guaranteed rule. 


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Rights and Obligations after Green Card

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Answer:

1. There is no such requirement that I am aware of at this point today (June 2017) that you have to notify any US government agency or Indian government just because you received your Green Card. However, what you should do is you should inform your employer that you have got your Green Card so they can update your Form I-9 which is an internal matter within the files of the employer. They don't have to update any government agencies.

 

2. Now, traveling has certain predicates or certain dependencies that should be calculated and that should be known. First of all, people have this idea that if I leave the USA for less than 6 months I won't lose my Green Card. Well, its little bit more complicated than that. Technically, if you leave the United States after you got the Green Card, you leave the United States with the intention to never come back even if you are gone for one day and the second day you change your mind and come back. If it could be proven that you left with the intention to never come back your Green Card is gone. So, the first thing very important - your intention. If you have to travel outside the USA where your intention is never to come back, your Green Card technically can be lifted.


3. No problem at all, especially when your home is in the USA, you live here, you work here, your children go to school here taking vacations for a month, two months even three -four months is not the problem. So, some of these factors are important. Sometimes what happens is, let’s say you are in the USA and decide to go to India and take the job over there for two or three months and that goes up to seven or eight months you could be in trouble because the government can say that it looks like you quit your job here. The job is important, where your children are going to school is important, your permanent home is important. These are not issues for most of the people who live in the USA but I am just pointing out these so when a situation arrives I want you to consult a lawyer before you make a plan.

An Intention is a state of mind, the state of mind cannot be directly looked at it can only be inferred from circumstances. So circumstantial evidence is important to prove your intention. For example, if you leave the USA with a one-way ticket and you don't come back for one year, chances are you lost your Green Card because if you are outside the USA for more than one year you will automatically lose your Green Card.

There is something called Reentry permit which allows you to go up to two years and the reentry permit is a definitive announcement by the US Green Card holders that I do not intend to give up my Green Card. It is not the full proof for saving your Green Card but it is quite effective, if you need to go away for two years you can file for a reentry permit.  

For reentry permit, you have to be in the United States to file for it. After you file it within a few weeks you will be scheduled for Biometrics. You have two choices whether you file and leave the USA, you have to be physically present when USCIS receives your application and then you can leave and come back for the Biometrics or you can stay here, do your Biometrics and then you go. The choices for receiving your reentry permit when it is approved are either to your lawyer or to the address in the United States or to the Consulate of your home country. If you go to live in Mumbai, you could pick up your reentry permit in Mumbai Consulate. 

If you face a very bad emergency when you are in India, you can always apply for reinstatement of Green card which is called Returning Resident Permit or SB-1 Visa, that is done through the US Consulate. You go to the Consulate, explain to them in writing through the form. Everything has a Form, that shows that your stay was unintentional, they can take time and reinstate your Green Card for you. There is another Form you need to fill in, that's called Form N-470. 

 

4. N-470 is a highly misunderstood Form. N-470 is helpful in naturalization only to the extent that normally, if you are gone for one year you have to start naturalization five years all over again. Normally, you can apply for Naturalization five years after you get your Green Card. If you need to stay away for one year you have to start your five years all over again. By filing N-470 you prevent that re-setting your five-year clock and there are very specific rule that covers N-470 including that there must be one year during which after getting the Green Card you must not have traveled outside the USA even for one day, this is one odd little rule but keep all these things in mind. So, N-470 is usually filed in conjunction with reentry permit application.

 

5. No, of course not.

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I-485 approved while outside the USA - travel on AP or GC

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Watch the Video on this FAQ: I-485 approved while outside the USA - travel on AP or GC

Video Transcript

This is a common situation where your I-485 is pending and you got your Advance Parole and you traveled outside the United States and while you were outside the United States your green card got approved and now you want to enter the USA. In a situation like this, you can enter the United States using your Advance Parole. You can also wait and get your green card delivered to you for e.g. by hand and then use that to enter the United States. But I am not sure if there is any law on that, but I know people do it. I don't think it's forbidden, but I would feel a whole lot more comfortable if people came back on their Advance Parole. More...

 

 

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What if I never joined the employer who sponsored me for green card?

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Answer:

Watch the Video on this FAQ: What if I never joined the employer who sponsored me for green card?



Video Transcript

I believe your circumstances are so unique I think what you could do is at least come to the United States as early as you can and take up that job even if it is for a few pay periods with the intention to stay in the United States as much as possible. You can also bring your mother on a tourist visa and keep extending that as well. At the very least you should come to the United States present yourself for work, whether you do it through an email or whatever method and if the company says they don't have a job right now at least you have some hook to the argument that you had presented yourself and they didn't have a job for you. I think you will be able to keep your green card safe eventually is my guess.

 

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Medical problems/diseases that can cause issues in green card

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Answer:

Watch the Video on this FAQ: Medical problems/diseases that can cause issues in green card

Video Transcript:

It is not an issue for Green Card. More...

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Legal Rights/Benefits of Green Card Compared to H-1B

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Answer:

Watch the Video on this FAQ: Legal rights/benefits of Green Card compared to H-1B

Video Transcript:

It is easier to define the rights of a GC holder in comparison to the rights of a U.S. citizen. You can pretty much do everything that the US citizen can do.

1. Of course, a US citizen can be on bench. no risk of green card revocation there.
2. Technically if you are gone for less than 6 months there shouldn't be too many questions.
3. Once you get your GC approval whether you get paid ten times more or less is irrelevant. 
4. You can be self-employed as a GC holder and you can do a 1099.
5. That's not a problem at all.
6. Yes, it is legal for a GC holder to be unemployed. More... 

 
 
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Can pending immigration applications be affected by changes in the law?

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Answer:

Watch the video on this FAQ: Can pending immigration applications be affected by changes in the law?

Video Transcript:

Pending immigration applications will not be affected by changes in the law. Some of these things cannot be changed by executive order they can only be changed by Congress. The idea is you cannot change the rules of the game for those who are already in the game you can change them for people in the future. That's all the more reason for anybody who has not filed their green card or anybody who is waiting to file any application, including naturalization go ahead and file them all as soon as possible, but don't get worried about pending applications they should go through under the old laws. More...


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What Happens to Existing Green Cards?

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Answer:

Nothing. The process continues.  Changes in laws are not retroactive.

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Child Born To A Lawful Permanent Resident Mother During Her Temporary Absence From The U.S

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Answer:

Children born during the temporary visit abroad of a lawful permanent resident (LPR) mother are classified as NA3.

     · A child who meets the requirements of the NA3 classification is exempt both the passport and immigrant visa requirement when arriving in the U.S. for the first time.

     · The child must apply for admission to the United States within two years of birth.

     · The child must be accompanied by the parent who is applying for readmission as a lawful permanent resident upon the first return of the parent to the United States after the birth of the child.

     · The accompanying parent will be admitted as an LPR per normal procedures and must be admissible to the United States.

     · The relationship between the parent and child must be established, usually by a government issued birth certificate (full version listing names of parents) with a certified (notarized) English translation, if applicable. The translator must certify that the translation is accurate and complete and that he or she is competent to translate from the foreign language into English.

     · The child's admission as an immigrant will be recorded at the port of entry on form I-181, which will then be forwarded to USCIS by CBP. The child will also be issued an A-file number by DHS that may then be used to establish eligibility for other federal, state, and local government programs within the United States. http://www.uscis.gov/tools/glossary/number

     · After the birth of the child during a temporary visit abroad, if the LPR mother seeks readmission to the U.S. and is not accompanied by the child, the child would then be required to have an immigrant visa and passport before seeking admission to the United States, even if the child subsequently arrives within two years of birth. If the child does not apply for admission prior to the age of two (2) with an accompanying LPR parent, the child will be required to present an immigrant visa and passport in order to be admitted to the United States as a lawful permanent resident. Requirements to determine eligibility and the process for obtaining an immigrant visa are outlined at www.uscis.gov and www.travel.state.gov

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Changing Back to F-1 Student Status After Filing for Green Card

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Answer:

Watch Video: Changing back to F-1 student status after filing for green card


Video Transcript:
If you have exhibited immigrant intent, getting F-1 status should be very difficult. So it is correct that when you have exhibited an immigrant intent the government or the counsellor officers can take the position that you have basically taken yourself out of consideration for a non immigrant visa like a student visa. 

Theoretically at least your chances are made worse because of the green card. I don't think withdrawal of the I-140 necessary helps.

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form. 

 

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Birth certificate late registration and secondary evidence

Detailed question:

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/1QbgUmUUJvc?t=1405

FAQ Transcript:

In many countries especially India, Pakistan, Bangladesh, it can happen that the birth occurred much earlier but the registration of the birth was done much later. Remember it was not the law that you have to register every birth, it was a voluntary action. So if a child was born in 1980 or 1970 you registered the birth in 2015 because that’s when you needed to get the green card. Now those are not acceptable registration. What you should do in those cases is get a letter from the municipal corporation, or local government, that says before this was registered there was no other registration. Like a non-availability before the registration. Along with that get two affidavits, from your parents or other people, who were alive when you were born, that will take care of it.

Secondary evidence becomes acceptable only when you can’t get non-availability from the municipal corporation and that’s a much more complicated area. I think you should get the non-availability.

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Immigration implications of crime; petty offense exception; admissions and convictions; 212(d)(3) and other waivers

Detailed question:

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/1QbgUmUUJvc?t=598

FAQ Transcript:

First of all, not every crime leads to serious consequences in USA. There are two kinds of crimes. Misdemeanours which are small crimes, punishment is typically less than a year and the other felonies where the punishment is a year or more, those are more serious crimes. In immigration law we look if the crime is of moral turpitude or not. If a crime is not of moral turpitude, I believe it has absolutely no consequences, unless it is a drug offence. Moral turpitude simply means that you are doing something, which reflects on your poor moral character.

The next step: is it misdemeanour or felony. If it is a felony, we almost certainly have a problem. It could lead to deportation, non-admission, and then you will need a waiver of some kind. Waivers are usually available for green card only for family based reasons. You cannot get a waiver just because you want to come to USA. So in an employment based case, and you have a felony conviction for moral turpitude crime you will not be able to come to USA.

Remember the rules are different for deportation, what is called removal and admission. So when you try to enter you could be subject to different laws, sometimes you think you are in USA and I am safe, because your lawyer told you are not going to be deported, but when you come back they won’t let you in and now you have to go back, the reason is the rules for admission are different. This is a very complex area of the law. 

Question: What if I am convicted of misdemeanour involving moral turpitude?

First, how many misdemeanour convictions do you have. If you have multiple convictions, then that itself is ground for deportation removal as well as no admission. But if you have only one offence, a misdemeanour, and the actual punishment imposed was less than six months you are covered by something called petty offence exception. Which says we forgive you entirely as long as it was just a single misdemeanour.

The rules under immigration law and the rules under criminal law for conviction are very different. Sometimes you have a criminal defence counsel. He will tell you this is not a conviction. It may not be a conviction under criminal law but is a conviction under immigration law. Any kind of plea bargain you set up with the government where you are admitting directly that you committed the crime would be considered in all probability to be a conviction. So be careful when you discuss this with your immigration lawyer as well as criminal counsel.

Question: What is 212(d)(3) waiver?

Say if you got the kind of conviction where you cannot come back we can let you in on a temporary basis for a non-immigrant visa. 212(d)(3) applies only to non-immigrant visa and the situation has been a little uncertain, especially for Canadians. I think there is a certain timeframe where you can get it or for one visit you can get it.

Question: I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July.

Normally diversion means some kind of a plea bargaining has been made.

Question: When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behaviour. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US. So does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties? 

That is correct because they denied it based upon their inability to verify that you will come back.

Question: I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?

Definitely that will make it a much stronger tie and you can try again. You might be covered by a petty offence exception.

Question: I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application? 

If you are covered by petty offence exception, then even J-1 is not affected but the 214(b) denial, affects your J-1. If you had a 214(b) denial, it will bar your entry for J-1, F-1, B-1, B-2.  It will not bar your entry for H-1 or L-1. I suspect the officer realised you were covered by petty offence exception.

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Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

Detailed question:

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

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Green Card Before Marriage

Detailed question:

Answer:

It is difficult for me to plan your course, but the law is relatively simple. If you get married BEFORE green card approval, your spouse is entitled to "follow to join." That process tends to be quicker than if you get married after you get the green card approval.

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K Visa for Spouse of Green Card Person

Detailed question:

Answer:

V visa no longer exists. There is no K visa option for green card holders. Sorry. 

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Travel During Pendency of I-829

Detailed question:

Answer:

When the I-829 fees receipt is issued, it should state that your green card is extended for one year and travel and work during this time is permitted.

When the I-829 fees receipt is issued, it should state that your green card is extended for one year and travel and work during this time is permitted. - See more at: http://www.immigration.com/comment/14360#comment-14360
When the I-829 fees receipt is issued, it should state that your green card is extended for one year and travel and work during this time is permitted. - See more at: http://www.immigration.com/comment/14360#comment-14360
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Green Card And Re Entry Permit

Detailed question:

Answer:

You lose your green card status. Reapplying or trying to get a returning resident permit would be the only two options that I can think of.

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Green Card for Artists

Detailed question:

Answer:

Basically two ways: through a job offer in your field OR through your own qualifications, but only if you are nationally or internationally famous. 

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Green Card Without Employer's Support

Detailed question:

Answer:

Three options: Extraordinary Ability Aliens, National Interest Waiver and Investment (EB-5).

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Employment Authorization Document (EAD)

Detailed question:

Answer:

What is an EAD?  

Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid.  

Why does my new EAD look different than my prior one 

USCIS has enhanced the EAD with new security features to reduce fraud. This is part of USCIS’s ongoing efforts to improve the integrity of the 
immigration process. USCIS will replace EADs already in circulation with the new security enhanced EADs as individuals apply for the renewal or 
replacement of their current EAD.  

How do I know if I can get an Employment Authorization Document (EAD)? 

Whether you can obtain, or even if you need, an EAD depends upon what status you have in the United States or, many times, if you have filed or 
are filing for certain other benefits. 

 • If you are in, or want to be in, a valid nonimmigrant category, including a NATO category

• If you are an asylee or refugee

• If you have, or are filing for, Temporary Protected Status (TPS) 

• If you are filing a Form I-485, Application for Permanent Resident Status, you can apply for employment authorization at the same time you file your I-485 or at any time while your I-485 is pending. 

• If you are filing, or have filed for political asylum on Form I-589

• You may also be able to apply for employment authorization if: 

o You have been granted deferred action by USCIS or ICE, 

o You have been granted voluntary return under the Family Unity program, or 

o You are under an order of supervision issued after receiving a final order of deportation or removal from an immigration court.  

How do I apply for an Employment Authorization Document?  

To apply for an Employment Authorization Document, use USCIS Form I-765 

When should I file for an extension of my employment authorization?  

You should not file more than 120 days before the expiration date shown on your current employment authorization document; however, you 
should file 90 days before the expiration date.   

How do I get the Form I-765 "Application for Employment Authorization” (EAD)?  

The Form I-765 can be obtained by downloading it from the USCIS website at www.uscis.gov 
 Note: E- filing may also be available on certain categories on the I-765. 

Under the “I am applying for” area of the form, there are three different blocks. Which one should I check?  

• Initial EAD (this is your first application under a specific category), 

• A Renewal EAD (an extension of previously granted employment authorization), or 

• A Replacement EAD (to replace a lost, mutilated, or destroyed EAD, or to update information, such as a name change on the EAD),  

Initial EAD  

An application for an initial EAD is one in which the applicant is filing for an EAD under a specific category for the first time. For example, if the 
applicant previously had an EAD under the Form I-765(c)(8) category and is now filing under the (a)(5) category, the application is considered an initial application because it is the first one filed under the new category (a)(5), even though they had been issued a previous card under a different category. Each applicant who is required to have an EAD must have it in their possession before they can begin working.  

Renewal EAD  

An application for a renewal EAD is one in which the applicant is filing for an extension of his/her EAD under the same category as he or she 
previously had. Except for applicants in refugee or asylee status, each person must have a valid card in their possession to be eligible to continue working. Therefore, it is important to stress that renewal EADs should be filed at least 90 days before the expiration of the old EAD in order to avoid lapses in employment. 

 Replacement EAD  

An application for a replacement EAD is filed if a card has been lost, stolen, or mutilated, or when the previously issued card contains 
erroneous information, such as a misspelled name or name change. If an application for a replacement EAD is approved, the replacement  EAD will have the same dates and category as the EAD that was lost, stolen, etc.  

Persons applying for replacement documents can present the receipt for the I-765 as evidence of employment eligibility but must produce a
valid card within 90 days of showing the receipt.  

For question 16, how do I know for which category I should apply?  

• If you are filing for Consideration of Deferred Action for Childhood Arrivals, file under category (c)(33) 

• If you are an asylee, file under category (a)(5) 

• If you are a refugee, file under category (a)(3) 

• If you were paroled as a refugee, file under category (a)(4) 

• If you were paroled in the public interest, file under category (c)(11). 

• If you are filing for Temporary Protected Status (TPS), file under category (c)(19) 

• If you have been granted TPS, file under category (a)(12). 

• If you are filing a Form I-485, Application for Permanent Resident Status, file your I-765 under category (c)(9). 

• If you are filing, or have filed for political asylum on Form I-589, please refer to Volume 4.4.3.5, Special Programs and Services before 

filing. If it appears you can file for employment authorization, file under category (c)(8). 

• You may also be able to apply for employment authorization if: 

o You have been granted deferred action by USCIS or ICE, file under category (c)(14) 

o You have been granted voluntary return under the LIFE Act Family Unity program, file under category (a)(14) 

o You are under an order of supervision issued after receiving a final order of deportation or removal from an immigration court, file 

under category (c)(18) 

o You have been granted withholding of deportation by an Immigration Court, file under category (a)(10)  

For other categories, please follow the instructions to Form I-765.  

Note: E- filing may also be available on certain categories on the I-765. 

Do I have to submit photos with the Form I-765?  

Yes, you must submit two standard passport-style photos. The photos must have been taken no earlier than 30 days prior to the date you file the
I-765. Please see the Form I-765 for the required specifications for the photos.  

Do I need to submit a “signature card,” I-765A, with my I-765 application?  

No, the signature card is no longer required as part of the filing process. 

How long does USCIS have to make a decision on my Application for Employment Authorization?  

The required times in which USCIS must make a decision on an I-765 are:  

• Ninety (90) days of receipt of applications filed under categories other than asylum-based, or  

• Thirty (30) days if filing based upon a pending asylum case and filing for an initial EAD,  

One exception to this rule is if USCIS requires additional evidence. The processing time limit is extended by the amount of time it takes for you to receive the request for evidence and respond to it. Also, the processing time is extended when a request for evidence is issued for any Form filed concurrently with the I-765.  

If USCIS has to send out a Request for Evidence, the processing “clock” stops. The maximum allowed time to submit evidence is 12-weeks. Once USCIS receives your response, the processing “clock” starts up again.  

When am I eligible for an Interim EAD? 

If USCIS does not make a decision on your I-765 within 90 days, (30 days for Asylum applicants), you may request an Interim EAD. The interim EAD can be granted for a period up to 240 days.  

Note: If the time frame for a decision on the I-765 has expired, please call our toll-free number at 1-800-375-5283.  

My I-765 was approved, but I have not received my EAD. Can I get temporary evidence of employment authorization?  

Customers who have an approved (or denied) I-765 are not eligible for an interim EAD.  

Note: If your I-765 was approved at a Service Center, but you have not received the EAD 30 days or more from the date of approval, you may be eligible for a Non-Delivery of Employment Authorization Document service request referral to the Service Center. Please call our toll-free number at 1-800-375-5283 for further assistance with this issue. 

 Can I get a Social Security card after I get my EAD?  

In most cases, you can apply for a Social Security card after you receive an employment authorization document. You will need another type of officially issued photo identification, a passport, I-94 bearing a stamp of refugee or asylee status and/ or driver’s license.  

For more information about how to apply for a Social Security card, please call the Social Security Administration at 1-800-772-1213.  

What if my EAD has incorrect information on it when I receive it?  

For help with this question, please call our toll-free number: 1-800-375-5283.  

Who is eligible for an EAD that is valid for two years?  

The two-year EAD is only available to pending adjustment applicants who are currently unable to adjust status because an immigrant visa numberis not currently available. In order to be eligible for an EAD with a two year validity period, an applicant’s I-140, Immigrant Petition for Alien Worker, must be approved. 

 When will applicants expect to receive the new two-year EAD?  

Applicants filing Form I-765 began receiving their two-year EAD after June 30, 2008. 

Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application?  

Generally, no. Initial EAD filings will generally receive an EAD that is valid for one year because they are usually submitted with the Form I-485 which can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD.  

How will USCIS decide whether to issue an EAD valid for one or two years?  

USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.  

If I am filing for a replacement EAD, how long is the EAD valid?  

If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date.  

Why is USCIS changing the validity period for some EADs?  

USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers. 

 When I file Form I-765, how long will it take to receive a decision?  

You should receive a decision within 90 days (30 days for Asylum applicants) from the receipt date on your Form I-765. In some cases, an EOIR- granted asylee will receive an EAD card valid for 2 years by mail within 7 to 10 days from the day the biometrics information is received. 

Note: If you have not received a decision and over 75 days (25 days for Asylum applicants) has passed, please call our toll-free number at 1-800-375-5283 for further assistance with this issue.  

Will the new EAD affect my current valid EAD card?  

No, it does not affect your current valid EAD card and you do need to file for a new card before your current card expires.  

Why USCIS redesigned the Employment card?  

The new features of the EAD will better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States.  

For more information about  EAD please visit our Blog and Podcasts and Video sections. 

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Immigrant Visa Interview - Medical Examination FAQs

Detailed question:

Answer:

1. Chest X-ray and blood tests are not usually required for children under the age of fifteen.

2. Applicants with mental retardation or learning disabilities must present a report of their condition and any special educational or supervision requirements.

3. Medical eligibility is a requirement of INA Sections 212(a) and 221(d). Failure to provide required information may cause delay or denial of immigrant visas. If an immigrant visa is not issued, all medical eligibility forms will be treated as confidential under INA Section 222(f).

4. The applicant must show his/her passport (or other photo identification) and appointment letter to the doctor during the medical examination.

The medical examination will include a medical history review, physical examination, chest X-ray and blood tests for syphilis.

The physical examination will at least include examination of the eyes, ears, nose and throat, extremities, heart, lungs, abdomen, lymph nodes, skin and external genitalia.

In some countries, the panel physician will send the results to the U.S. Embassy/Consulate directly. In other countries, the panel physician will give the applicant his/her medical exam results in a sealed envelope and an x-ray which the applicant must bring to the interview.

Note: The medical examination is not a complete physical examination. Its purpose is to screen for certain medical conditions relevant to U.S. immigration law. The panel physician is not required to examine you for any conditions except those the U.S. Public Health Service specifies for U.S. immigration purposes, nor is the physician required to provide you with diagnosis or treatment even though other matters related to your health might be discovered. This examination is not a substitute for a full physical examination, consultation, diagnosis, or treatment by your primary health care provider.

For more FAQ's on Medical Examination please visit this link

http://travel.state.gov/visa/immigrants/info/info_3745.html#page

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Process After Getting Immigrant Visa

Detailed question:

Answer:

Make an infopass appointment and get her passport stamped for temporary proof of green card. She can travel with that. Normally, the physical GC takes just a few weeks. I am not concerned about SSN. That will arrive eventually. But do review my blog videos about I-131 and maintaining green card, etc.

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Applicant Accompanied by a Third Party for an Interview

Detailed question:

Answer:

The State Department says that on the Immigrant Visa side, the petitioner may accompany the beneficiary if a petitioner is in the Consulate city at the time of the interview.  The interviewing officer will speak to the petitioner only if he/she determines it is necessary to assess the case.  Applicants under 17 years old MUST be accompanied by a parent or legal guardian on the Nonimmigrant Visa side.  Other third parties are not permitted to accompany the Nonimmigrant Visa applicant.

 

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L-1 to GC

Detailed question:

Answer:

There is no problem with you paying the I-485 fees. But the employer must be involved to the extent that they need to provide a (truthful) letter evidencing continuity of your employment.

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Green Card Holder With No Reentry Permit

Detailed question:

Answer:

Start with contacting the local U.S. Consulate. See if they can issue a returning resident permit  (also called SB1 visa).

http://travel.state.gov/visa/immigrants/info/info_1333.html

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Green Card Eligibility Under EB-2 Classification

Detailed question:

Answer:

A Beneficiary’s degree must be from an accredited university in order for the Beneficiary to be considered eligible for a Green Card under EB-2 classification. Evidence such as SEVIS certification or state board approval, which confirm that the university is a legitimate educational institution, is not sufficient to show accreditation for Green Card purposes. A university’s accreditation status may be determined from the following website:

http://ope.ed.gov/accreditation/

You may also want to watch this video Mr. Khanna prepared, “Accreditation of distance education for EB-2” and read the transcript:

 http://www.immigration.com/media/eb2-green-card/accreditation-distance-e...


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EB-5 Investment-Based Green Cards

Detailed question:

Answer:

1. I dont know of any regional center who does not want the entire money up front. They also usually add on a few thousand dollars of additional fees.
2. No idea about ROI. We do not get involved with financial assessments. Not our expertise.
3. Not usually. But this depends upon the project and your agreement. But the green card would fail in such a case.
4. None, usually.
5. Hmm. I do not recall the exact time frame. Sorry.
6. No. Beyond the normal SEC regs, as far as I know, you are, unfortunately, on your own. This is the part about the regional centers that bothers me.
7. Over two years. But your business plan has to show how you will create the jobs.
8. Huh? Yes, of course. But there has to be a connection between the investment and the job creation.

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Priority date retrogression -- consequences and concerns

Detailed question:

Answer:

A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.


A 2. Not usually. Here is what USCIS says about expediting:
Expedite Criteria
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:
• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS
Note: Discretionary expedite requests for petitions and applications that have Premium Processing Service available will not be considered for expedite processing. The only exception is when the petitioner is a not-for-profit organization designated by the Internal Revenue Service. For information regarding premium processing, please refer to the premium processing webpage.
If you have already filed your application or petition:
You can make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.

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Questions regarding I-485

Detailed question:

Answer:

Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks

Answer 2: A visa stamp is NOT required. Proper status only is needed.


Answer 3: It is NOT advisable to travel before AP is issued, if you do not have an H/L visa already stamped. For details, listen to recording's of the community conference call. It is posted here: http://www.immigration.com/free-comm...nference-calls


Answer 4: Presence in USA for 485 filing is mandatory. See previous answer for AP.


Answer 5: I do not believe VO has the authority to revoke an AP.


Answer 6: Under Cronin memo, if you enter on AP to continue working on an existing, valid H-1, you are still considered to be on H-1. I believe your spouse can use his H-4.


Answer 7: Before APPROVAL of I-485.


Answer 8: Your spouse can file his 485 if he is in USA; Priority Dates are current AND he has not been out of status for more than 180 days -- whether or not your 485 is already approved.

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Green Card for musicians

Detailed question:

Answer:

A green card through work is unlikely unless either he/she has a full-time job offer in her field or is nationally/internationally recognized.

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Family Unification and Green Card

Detailed question:

Answer:

One of the ways could be for your daughter to apply for your green card when she turns 21. The problem is, if you were unlawfully present in USA for more than a year, you may be barred from entering USA for 10 years.

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Green Card Stolen

Detailed question:

Answer:

You can easily apply for a replacement green card. Read the instructions on Form I-90. Please visit this link for more information.
http://www.immigration.com/renew-or-replace-green-card

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Out of F-1 visa status

Detailed question:

Answer:

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

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Two year temporary green card

Detailed question:

Answer:

She cannot put a "block." There is no such provision in law.

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Green card for L1-B or L1-A holders

Detailed question:

Answer:

Smaller companies can have a tough time getting an L-1A.

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Green Card for musicians

Detailed question:

Answer:

Green cards in music would be available possibly for two categories of individuals: those who have a permanent job in USA in their field and those who are nationally or internationally famous.

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Green Card Expenses

Detailed question:

Answer:

The employer is bound by law to pay for all expenses, including legal fees, associated with the PERM process (but not the rest of the green card process).

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Holding Company Stocks on TN Visa

Detailed question:

Answer:

I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.

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Green card and overstay

Detailed question:

Answer:

It is highly unlikely that he will be allowed into USA.

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Working outside USA

Detailed question:

Answer:

It is possible. Look into both I-131and N-470 filing through a lawyer.

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Mandated poverty line

Detailed question:

Answer:

Here are the poverty guidelines http://aspe.hhs.gov/poverty/index.shtml

Your father can co-sponsor (file an affidavit of support) along with you.

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AOS applicants applying for H-1 visa

Detailed question:

Answer:

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

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B1/B2

Detailed question:

Answer:

You should be able to get your green card. Do not travel outside USA until you do. I would suggest getting a lawyer.

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Australian Musician to perform in US

Detailed question:

Answer:

A "B" visa is appropriate if the artist will not be paid in USA, other than for travel and incidental expense.


An "O-1" Visa is for an individual artist of International Renown - well known outside their home country. A "P-1" is for a performing group that meets the same standard.


"P-2" Visas are issued on reciprocal basis between countries. You may want to contact the US consulate to see if they have programs for Australia.


"P-3" Visas are for groups that are Culturally Unique - for instance, folk musicicians.

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Green card and priority dates

Detailed question:

Answer:

Green card waits are determined primarily by your priority date and the available visa dates. It is a queue. See the Visa Bulletin to know where your dates are. http://www.immigration.com/visa-bulletin

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Co sign

Detailed question:

Answer:

An affidavit of support can be co-sponsored by your friend. But green card holders cannot sponsor siblings for green cards, only US Citizens can.

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P1 visa to green card

Detailed question:

Answer:

You may be able to apply for a green card if you meet the requirements of EB-1, aliens with extraordinary ability or based upon a job offer, and of course, if a family-based possibility exists

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How to check if I-485 received

Detailed question:

Answer:

You can verify delivery (if sent by Fed Ex, UPS, etc.) and also check with your bank if your fees checks were encashed.

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Re-entry permit

Detailed question:

Answer:

Reentry permit can be obtained only by people who have a valid green card. Your only option (other than filing for a green card again) seems to be to ask the US Consulate for a Returning Resident Permit if you can show them a genuine reason for your absence. Note that this would be a difficult application.

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Outstanding researcher

Detailed question:

Answer:

I cannot think of any stage at which you cannot travel. Good luck!

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EB-2 Eligibility

Detailed question:

Answer:

Impossible to predict. It all depends upon the type of degrees and the language used in the Form ETA 9089

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Quickest way to get a GC

Detailed question:

Answer:

Generally speaking, where there is a choice, we always file multiple green card applications for spouses.

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I have a green card, I was out of the U.S for more than a year

Detailed question:

Answer:

Generally speaking, a visit outside USA lasting more than one year terminates your green card (no matter what the card says).

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B visa while GC pending

Detailed question:

Answer:

The law is uncertain. This type of entry will be left at the discretion of CBP. I have a blog entry on this subject. Please review it: http://forums.immigration.com/blog.php?u=1

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AC21 and losing job

Detailed question:

Answer:

AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.

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EAD restriction for 245i

Detailed question:

Answer:

Theoretically, there is nothing wrong with that, but speak with your lawyers. In my view, not working for the future employer raises issues like is there a job, do you really want to work for this employer, etc.

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How to renew green card

Detailed question:

Answer:

Please visit this link.
http://www.immigration.com/agency_memo_policy_report/how-renew-a-green-card

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J1 overstayed by years, married to a greencard holder

Detailed question:

Answer:

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

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Conditional green card

Detailed question:

Answer:

Off hand, I can think of two types of conditional green cards: marriage-based and investment-based. In both instances, eventually you have to apply to get the condition removed.

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Out of Status

Detailed question:

Answer:

A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'

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Importance of having continuity of employment/pay stubs

Detailed question:

Answer:

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.

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From a B-2 visa to a green card

Detailed question:

Answer:

That does not sound possible. Green cards to USA are granted based upon very limited basis. But, you should have your friend speak with a lawyer to see what options may exist.

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Time Frame for Green Card

Detailed question:

Answer:

The time frame for employment based green cards depends upon two things: your country of chargeability (usually the country you were born in) and the category of green card through which you apply: EB1, EB2, EB3.

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E-3 visa dual intent - applying for green card

Detailed question:

Answer:

Applying for a green card should not be a problem for you or your wife. I always suggest filing two independent green cards where the option is available. This provides for a safety net if the process fails for one of the spouses.

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I-140 Denied

Detailed question:

Answer:

You can refile the I-140 or file an MTR/Appeal. Both have pros and cons.

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Current USCIS procedures for PD transfer and AOS

Detailed question:

Answer:

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

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My mother got her green card

Detailed question:

Answer:

There is some error in your facts. It appears she left in March 2009 (NOT 2008). You cannot file a reentry permit while she is outside USA. If she is outside USA for more than one year, the GC is deemed abandoned. If it is out more than 6 months, but less than 1 year, she can be asked to demonstrate that her permanent home is in USA.

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Green card

Detailed question:

Answer:

In my view, failing to file an I-751 in a timely manner could cause serious problems. I think you should consult with a lawyer locally where you are.

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Prevailing Wage - H-1 and GC

Detailed question:

Answer:

The employer is obliged to pay you the H-1 renewal wage now and the PERM wage after you get the GC approval.

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DWI and Naturalization

Detailed question:

Answer:

USCIS can question anything that has bearing upon good moral character.

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Sponsoring Niece and Nephew

Detailed question:

Answer:

It depends upon how we define the term "sponsor." If you mean can you apply for their green cards, the answer is no. If you mean can you provide an affidavit of support for them to visit or study in USA, the answer is yes.

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Green Card holder parents bringing to US a child born outside USA

Detailed question:

Answer:

Your child may accompany you or travel with you to the U.S if the following conditions are met:
a) the child has a separate passport;
b) has a birth certificate from the corporation, municipality or a registrar of births and deaths (please note hospital records are not adequate)
c) the child accompanies the immigrant mother or father upon her or his return to the U.S following the birth of the child
d) the child is under the age of two years
e) the immigrant mother or father has a valid Form I-551 or I-151, alien registration receipt card (in short called green card), or Form I-327 (permit to re-enter the U.S.) valid for two years from the date of issue.
If the above are satisfied then the child may accompany you into U.S without a visa.
Following admission to U.S contact the nearest CIS office to regularize the stay of the child in U.S.

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I-485 AOS Pending, Employer's Bankruptcy

Detailed question:

Answer:

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

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Obtaining H-1 Extension beyond 6 years

Detailed question:

Answer:

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

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Important questions on H-1, AP and Travel

Detailed question:

Answer:

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

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Working abroad while AOS pending

Detailed question:

Answer:

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

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Working for two companies on EAD

Detailed question:

Answer:

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

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May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

Detailed question:

Answer:

One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

(CT:VISA-803; 04-27-2006)

L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

TN is also not allowed dual intent, but are often not questioned on their green card pendency.

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Applying for green card while on a B-1 or B-2 visa

Detailed question:

Answer:

A1. There is nothing that stops you from applying for their green card. Note also that the same answer applies to children and spouse of a US citizens. But it does NOT apply to brothers/sisters.

There is just one issue. It is INAPPROPRIATE (may be even illegal) for a person to enter USA on a tourist or other similar visa if they have the intent to apply for a green card. BUT, if they enter USA without that intent, and after a few days of entry change their mind, that is perfectly appropriate and legal.

The tricky thing is, intent being a state of mind, can only be inferred from circumstances. If intent ever became an issue, INS may look at how soon after entering a green card was applied. Obviously, the more time has elapsed, the better the case is.

Once the I-130/I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site at: http://www.immigration.com/node/1412/

A2. Maybe. If they already have a visitors visa stamp on their passport, they should be able to visit. Chances of INS (CBP) sending them back from the airport are probably small. But if they will be applying for a tourist visa (also known as visitors visa) now, they may be refused the visa by the US consulate because they have exhibited immigrant intent. In that case they will have to wait until they receive their green card approval.

A3. In terms of legal effect - they are both the same.

Consular processing is faster (as of May 2002 taking about 3-5 months to completion).

For persons outside USA, consular processing is the only option. Once the I-485/I-131/I-765 package is properly filed with INS, your relatives can stay in USA without extending their status. Also, once Form I-131 (Advance Parole) is approved, they are free to leave USA and come back during the pendency of their application. Approximate processing times for these petitions are available on our web site. See link in the question above.

A4. As I understand the law, they should be able to get their green card. You should talk with a lawyer.

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AC21 - accepting a green card

Detailed question:

Answer:

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

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Leave of absence - I-485 pending

Detailed question:

Answer:

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

b). Getting a green card approval while you are abroad is not a large issue as long as you have advance parole. Giving a relative's address is a bad idea. In the absence of a US address, you do run the risk of the green cards being returned back to USCIS, but we can figure that out.

c). USCIS may not accept medicals from anyone except a USCIS approved physician. But we can double check options on this issue also.

 

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RFE after the I-140 was approved

Detailed question:

Answer:

1. There is some legal argument for saying no, but in my opinion, USCIS can do this. In fact, I think there is a 9th circuit case from last week that says they can.

2. My take is AC21 would be a better idea, although, not fool proof.

I detest this current trend of USCIS of over-scrutinizing every case and making impossible demands while operating in an environment of regulation by memorandum. I could share some horror stories with you.

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Marriage to US Citizen with EB AOS is pending

Detailed question:

Answer:

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

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Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?

Detailed question:

Answer:

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

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Should you be applying for employment-based green card in this economy?

Detailed question:

Answer:

A lot of employers have been asking this question in the last few months. Is it even possible to get a labor certification with the US unemployment at a 26-year high.

The answer is yes, if the job requires skills that are not available in the market. For instance, physicians and health care workers in certain areas, IT professionals with specialized skills such as warehousing, BI, LAMP and other open source products, advanced ERP packages (like Peoplesoft, Oracle Apps, SAP, Documentum), Pharmacists, CPA's... there are so many professions and skills still in demand. This list is by no means exhaustive.

The way I look at it, at least you should try. If you fail, at the most you have lost money and can try again in a few months. Job markets can change very rapidly.

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What does AOS approval mean?

Detailed question:

Answer:

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

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Following to join

Detailed question:

Answer:

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

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Employment-based out of status protection for AOS - Section 245(K)

Detailed question:

Answer:

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

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Can H-1 be extended based upon family-based green card?

Detailed question:

Answer:

You cannot. This extension is available only to employment-based applicants.

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I-485: pre-adjudication and employment verification letter

Detailed question:

Answer:

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

 

 

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Status, authorized period of stay and unlawful presence

Detailed question:

Answer:

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status
Status is the immigration designation what has been given to you by USCIS. For instance, when USCIS approves your H-1 with an I-94 attached to the approval notice, you are in H-1 status.

Status and Visa
The difference between status and visa is important. A visa is a stamp on your passport. This stamp is placed by US consulates outside USA. The system of entry and stay in USA is governed by dual permission (DHS and DOS). When you are outside USA and you wish to enter, you first go to a US consulate (an arm of DOS - Department of State or State Department) for the appropriate visa stamping.

For instance, for a tourist visa, you go the US consulate in your home country, follow their procedures and apply for a "B-2" visa. When you get the B visa stamp you have been permitted by one agency (US State Department) to enter USA. If the visa stamp is valid for 5 years, you may travel to USA any time during those 5 years. This is your first permission in the dual permissioning system.

Now with the B-2 visa, you travel to USA. When you land at the US port, CBP (an arm of DHS - the Department of Homeland Security) decides whether you will be allowed to enter USA and how long you can stay in USA. The permission to stay in USA is given to you in the form of a small card that is put inside your passport. This card is called "Arrival Departure Record" or Form I-94. The I-94 has an expiration date.

Once you are inside USA, you are "in status" only till your I-94 is unexpired. If you wish to seek an extension of of your stay, you must request USCIS (another arm of DHS) for an extension.

Authorized Period of Stay
Authorized period of stay means you are not illegal but you are not in full status. Taking the example of B-2 extension I was discussing above, let us say you want to stay longer than the stay initially given on your I-94. You will need to apply for an extension BEFORE your current status (the termination date on your I-94) expires. Once you have made a timely application for extension or a change of status (for instance you wish to change to H-1B), you can continue to stay in USA till your application is decided (but not past the point you had asked for as an extension). The moment your I-94 expires, you go from being "in status" to being in "authorized period of stay." This is less than full status (for instance you cannot change status within USA when you are in authorized period of stay, but you can do so when you are "in status."

Authorized period of stay also applies to people who have applied for the last step of their green card, "Adjustment of Status" (AOS or I-485). When someone files an appropriate AOS, they are in authorized period of stay until their AOS is adjudicated, no matter how long it takes.

Unlawful Presence
This is the real bad one you have to watch for. If you accrue 180 days of unlawful presence in USA, you are barred from entering USA for 3 years. If you are unlawfully present for one year, you are barred for 10 years. This is referred to as the 3/10 bar. A rule of thumb is, unlawful presence begins to accrue when your I-94 expires and you have done nothing to extend/change your status or when the government says your unlawful presence has begun (typically happens when an extension or change of status is denied.
 

In AOS (I-485) Context

Quote: Hope you remember me. I am one of your clients and you had represented me for my H1-B. Today I was laid off from my employer who was the H1-B sponsor. I have my AOS EAD as a beneficiery to my husband's PR process. I am concerned about my status in the US. My husband is also on EAD as he recently changed his employer using AC-21. Could you please help me? What status am I on now? Can I stay in the US? I currently have a valid I-94 in my passport. I need to decide the future course of action

Ans. You are now in authorized period of stay and can legally stay in USA. To work, you will need an EAD and to travel an AP.

In Change of Status Context
Updated 11 May 2009

Q. I am currently on H4 visa and the expiration date of my I-94 is May 23, 2009. My spouse had applied for an extension during the last week of April 09. In between, I received an offer for MS course at Penn state University, PA - US. I am planning to join school again on F1 visa since I have received assistantship/ financial aid from my University. I am planning to join for Fall 09 semester which begins in August 09.

Since I have to apply for a change of status from H4- F1 , is it possible to do this having applied for H4 extension now? Is there any way by which I can submit an application for F1 visa directly to USCIS without going for H4 extension?

Ans.
The rule of thumb is you can always apply for COS when you are in status, but not when you are in authorized period of stay. Upto 23 May, you are still in full H-4 status. After that day you will move to authorized period of stay because your H-4 status would have expired. So, if you file for a COS now, it should be fine. After 5/23 you have two choices. Wait for H-4 to be extended, then apply for COS to F-1 OR go outside USA any time and get F-1 visa stamping.

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I-485 interview-- does arrest create a problem

Detailed question:

Answer:

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

Quote: a. What all questions can the officer ask me in the interview?

Ans. No one can reliably predict that. But there is nothing in your background that seems to indicate there will be a problem. You were not convicted. The rules are simple: do not answer what is not being asked, and answer every question truthfully.

 

Quote: b. My wife is now in our home country. Do i need to have her accompany me?

Ans. Your case is an employment-based case. Unless USCIS specifically asks for her presence (which would be strange), it is not required.

 

Quote: c. Can the officer ask me for another interview with my wife, if she isn't with me the first time?

Ans. They can, but I do not see why.

 

Quote: d. What should I say about the DV record?

Ans. The truth and nothing but the truth.
 

Quote: e. Does the officer approve my green card after the interview or does it
take some more time?

Ans. They have the authority to approve on the spot. Whether or not they will is their discretion. Often, the approval comes a few weeks later.

 

Quote: f. What if the officer asks me about the status of my marriage, what
should I say?
Should I say yes we are married or should I say that we are separated?

Ans. Married but separated. You tell the truth.
 

Quote: g. Does my wife need to be in US when the final green card is approved?

Ans. No. Make sure she has her AP.
 

Quote: h. What happens if the green card is approved while she is in india?

Ans. She can reenter with her AP.

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H-1 Extension based upon spouse's 140; Child born in USA

Detailed question:

Answer:

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

Quote: 2. If not can her employer file for her H1B extension based on my I-140 application.(Probably not since I-140 is an employer based application,but wanted to know if there is any other way).

Ans. No other way.
 

Quote: 3.If my wife were to change her employer after Jan 2010, could the new employer file for H1B transfer? If not does this mean that the option of a new employer filing for her H1/green card is completely ruled out?

Ans. She cannot get an H-1 extension beyond 6 years unless her own green card process is started.
 

Quote: 4. This question is not related to the above, but we are expecting our first baby in the month of August. Are there any applications that need to filed after the kid is born?(I am just glad that USCIS doesnt have any laws regarding making babies during the I-485 pending stage.Or is there...?)

Ans. Congratulations! And no, there are no laws against making babies so far :-). You have to do nothing. The child is born a US citizen if born in USA.

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H-1 without specific job/GC continuation without H-1

Detailed question:

Answer:


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

Ans. USCIS has criminalized civil conduct. To my amazement, I saw a criminal indictment count against an employer (Vision Systems - recently in the news) alleging that to obtain H-1 without a specific job in hand is a crime. I think this is ludicrous overreaching and misuse of law. Nevertheless, it is not a good idea to file an H-1 unless there is a specific job in hand.

2. My labor and I-140 is approved but if H1B extension is denied then I have to go back to Inida. Can GC processing be continued? If yes, In order to maintain my GC processing how quickly do I need to come back to US? What other options do I have in this scenario?

Ans. The green card can go on in your absence, but I am concerned that USCIS may consider that since there is no permanent job available, the green card should be canceled. To the best of my knowledge, they have never done it so far and may not do it, but the risk remains. Not much I can say other than if you dont have a choice then you have to leave and we will deal with other issues when (or if) they arise.

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USCIS Finally correct 140 Premium Policy

Detailed question:

Answer:

Back in June 2008, we, on behalf of clients and community, had sent a letter to USCIS pointing out their defective policy. After 8 months, they have finally (partly) corrected the problem. Read the letter and the details here:
http://forums.immigration.com/blog.php?b=15

The second memo from USCIS is attached.

 

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Watch out - the prioirty date cut off in March was effective immediately

Detailed question:

Answer:

The April 2009 Visa Bulletin was issued on March 9th. The VB said the visa numbers for EB3 were unavailable with immediate effect (Philippines retrogressed to 2003).

This is highly unusual. The visa bulletin is a forecast for the month ahead and does not take effect immediately. But State Department says that this one was of immediate effect.

What does this mean?

1. For people going through consular processing (instead of AOS), consulates with be able to issue immigrant visas only in rare instances where visa numbers were obtained before March 9.

2. Similarly, USCIS will not approve any adjustments unless the visa numbers had already had been obtained.

3. Cases filed after March 9th subject to "immediate effect" will most likely be rejected.

4. We do not yet know if USCIS will eject I-485's filed during March based on the March Visa Bulletin issued February 10, 2009, but it seems unlikely that they will.

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Criteria for Outstanding Researcher/Professor Category

Detailed question:

Answer:

Preliminary requirement: The applicants must be able to document at least three years of experience in teaching and/or research in the specified academic field and that they are "recognized internationally."

Generally speaking, experience in teaching or research while working on an advanced degree will not satisfy the three year requirement.
We can seek an exception if the applicant has acquired the degree, and if the teaching duties included full responsibilities for the courses taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. 8 CFR
204.5(I)(3)(ii).

8 CFR 204.5(I)(3)(I) requires that the applicant must demonstrate that they are recognized internationally in their academic
field by presenting evidence that meets at least two of the following six documentation categories:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field for which the classification is sought which require outstanding achievement
of their members;
3. Published material in professional publications written by others about the alien's work in the academic field;
4. Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or
an allied academic field;
5. Evidence of the individual's original scientific or scholarly research contributions to the academic field; and
6. Evidence of the alien's authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.

Note that professors who qualify for this category through job offers for tenure-track positions will not lose their green card if they fail to reach tenure

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EB-3 "Unavailable"

Detailed question:

Answer:

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence? While these questions have never been asked, do not be surprised if they are. Our explanation must be truthful and not contrived.

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Watch out for this immigration fraud!!

Detailed question:

Answer:

I have received inquiries on this type of email floating around. This is fraudulent. US govt. does NOT issue green cards based upon random email lottery. Please circulate this to all concerned.

--------------------------email---------------

U.S. Department of State

Bureau of Consular Affairs, National Visa Center

32 Rochester Ave. Portsmouth NH 03801-2909

Attention: Winner.

I have received inquiries on this type of email floating around. This is fraudulent. US govt. does NOT issue green cards based upon random email lottery. Please circulate this to all concerned.

--------------------------email---------------

U.S. Department of State

Bureau of Consular Affairs, National Visa Center

32 Rochester Ave. Portsmouth NH 03801-2909

Attention: Winner.
Congratulations! You are among the lucky selected winners of the U.S Green Card lottery program which was conducted under the terms of Section 203 of the Immigration and Nationality-Act (INA) Section 131 of the Immigration Act of 2006 (Pub.L.101-649)

5.3 million email addresses were randomly extracted during the 66-days extraction period. The email addresses were assigned to different-ticket numbers for representation for final selection, and your email address attached to N0-#76403 was selected among the winners of the Green-Card.

Notification is through the selected email addresses electronically undisclosed. Approximately 685 winners have been notified through their email addresses including you today (28-03-2009)

Please read and follow all the enclosed instructions very carefully.

The filing of an immigrant visa petition is the initial step required to receive the "green card" You will have to obtain your immigrant-visa through the U.S Embassy in your home country or your nearest U.S. Embassy.

The visas have been apportioned among the six geographic regions and our representatives are stationed in all the regions. Your visa type permits you to travel to the U.S. with your family members.

Your Green-Card winning detail falls within the Asia-Pacific region as indicated and we have forwarded your winning details to our Asia-Pacific office to which your case has been assigned for the processing of your application documents for the issuance of your visa.

Therefore, for your Green Card and Immigrant Visa Issuance Application-Forms and Requirements, contact our Asia-pacific office with the below contact details:

Contact Person: Mr. Mark Howard.

Address: Diethelm Towers Building 2nd Floor, 28 North Wireless Road Bangkok, Thailand.

Tel: 66-835 619 209 66-843 578 622

Fax: 66-2251 9977

Email: ugcls<@>America.Hm

If it should be necessary to contact our Asia-Pacific office by telephone, you must always refer to your Case Number as they appear below. Your Case Number is clearly written at the lower left hand corner of your notification letter.

Please complete and return Green-Card application form for yourself and all accompanying family members. Complete G-845S form with your Case Number.

Prior to the submission of the completed forms, please note the followings:

All forms and correspondences should be directed to our Asia-Pacific office where your case

has been assigned and it is important that you complete and return the forms listed above as quickly as possible to enhance your chances of early visa issuance.

Selected winners and accompanying family members who do not receive visas before the (30th of April 2-009) will derive no further benefit from their Green Card winning status. Selected winners living legally in the United States who wish to pursue their Green-Card status should contact any of our regional offices where their winning details falls for information's on the requirements and procedures.

All the selected winners should be prepared to pay the processing fee for the processing of their Actual and Approved Green Card documents for the issuance of their visas.
Application processing fee (for one person), US$970.00

Family: US$1,490.00
Application documents processed by United States officers abroad require a visa "application" (machine-readable visa - MRV) fee that recovers for the United States the costs associated with manufacturing, processing and printing the documents.

Your documents will be post to you once the processing is completed and will be forwarded to the U.S. Embassy in your home country for registration of your Green Card status for the issuance of your visa.

You will be notified of your visa interview appointment and should go to the Embassy on your appointment date with your application documents and visa interview appointment letter for the issuance of your visa.

Case Number: WAC4044844157

Preferences-Categories: DV DIVERSITY

Foreign-State-chargeability: Asia-Pacific

For more information about the program, click here- Visa Lottery
Sincerely yours,

Mrs. Roselyn Hodson.

Secretary General, Kentucky-Consular-Center (KCC)

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Multiple I-140 filings

Detailed question:

Answer:

As to possible issues, I can probably write a book. Generally speaking, you can have as many I-140's as you like as long each is motivated by a genuine desire to accept a job before or upon approval of the green card. As to your specific situation, consult your lawyers if they feel there is any problem. I hope this helps you sleep better.

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GC future job; H-1 ext. revocation upon 140 denial, etc

Detailed question:

Answer:

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.

 

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Converting from EAD back to H-1--Updated 6 April 2009

Detailed question:

Answer:

 

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Ans. You will need to get an H-1 approval by having your new employer apply to USCIS any time you like (just like a new H-1 or an H-1 transfer. This is, of course, NOT subject to quota). After the approval you need to exit and reenter USA using your H-1 visa. You may use the old visa stamp if it is still valid and you have not been out of status or get a new stamp if you were out of status or the old stamp has expired.

Quote: Rajivji,

If I convert from H1B to EAD with my current sponsoring employer and they revoke the H1B as you have mentioned before being the best thing to do.
1) Does the H1B revocation still mean that my H1 status is dormant?
2) Would I be able to reactivate my H1 again with the current employer?
3) Would my employer have to reapply for the H1 approval or the current approval that I have valid till Apr 2010 enough?
4) I am assuming based on the answer to Q3 above, I will have to go out of the country and come back on my current H1 visa that I have stamped?

Ans. Once revoked, the H-1 will have to be reapplied, will not be subject to the quota and will be valid for 1 or 3 years depeneding upon your situation. And, yes, you will need a visa stamping to activate the H-1.

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Employers and Employees -- H-1 or EAD?

Detailed question:

Answer:

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

 Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

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H-1 and EAD

Detailed question:

Answer:

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
Ans. If it is an extension beyond six years, you will need to have 485 or 140 pending and meet other related requirements for the extension.

Qo. After USCIS approves H1-B extension in this case, are we required to go immediately to India to get visa stamped or can we keep working on EAD and get the H1-B visa stamped when we like. My I-140 is approved and I-485 pending.
Ans. You can go when you like.

Follow up Qos/Ans

Qo. Thanks a lot, Rajiv. Just one clarification related to H1-B visa stamping in the above case. Do you think the US embassy will ask me why I want to come back to H1-B after having worked on EAD for say 6 months or 1 year after 6 years of H1-B expiration at the time of applying for H1-B visa?
Ans. It should not be any of their concern.

Qo. what should be the response to their question?
Ans. The truth.

Qo. Also, God forbid, in a worse case scenario, if my I-485 is denied after my H1-B extension has been approved in the above case and then I go for H1-B visa stamping, w'd they still give me visa?
Ans. That is legally uncertain. So it is wise to get stamping while the 485 is still "alive."

Qo. On a different note, is there any basis other than a crime, misrepresentation, public health, or revocation of approved I-140 on which the I-485 can be denied?
Ans. Sure. AOS is a discretionary process. It can denied for many reasons (but usually is not).

Qo. If not, then will it still be more advantageous to work on H1-B instead of EAD? I am just trying to evaluate the benefit of coming back to H1-B as opposed to keep working on EAD. Your answers to the above questions will help me greatly in that direction.
Ans. As I have commented several times, I like to keep both options open. So, work on H-1 while keeping your EAD in hand.

Further Questions 

Quote: Me and my spouse are working on H1B for two different companies. My spouse company is processing the green card and the process started in 2005 in EB2. We got married in 2006 and I-140 got approved before our marriage. We filed together for I-485 after marriage in August 2007. We got our EAD card in Nov 2007. We also got our second EAD card in Nov 2008 and it will be valid till Nov 2010.
Though we had EAD card, we are using our H1B. Now, I got laid off from my company last week. I am looking for opportunities. I hope I could find one in a week or two. My questions are
1. When I join my new company should I use EAD card or I do H1B transfer? Please advise.

Ans. H-1 is the best option usually. You can try for a transfer. Usually, CIS declines transfer within USA (requiring you to go outside USA for a visa stamping) if there is any gap in status. But, it is in their discretion to permit it. Joining on EAD is no end of the world. You can start work on EAD and file an H-1. Gert stamping done whenever it is convenient. When you reenter on H-1 visa, you are back on H-1.

Quote: 2. Also, if the market goes further bad and my spouse also got laid off, what will happen to me if I am using my EAD?

Ans. If she uses AC21, you should be fine. Otherwise, if her 485 is void, so is yours. 

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I-485 Priority Dates and Processing Dates

Detailed question:

Answer:

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

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DOL gives PERM processing dates

Detailed question:

Answer:

For recent updates on PERM processing please click here.


http://www.immigration.com/processing-times-and-status-checks

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GC approved. When should I start working on the green card job?

Detailed question:

Answer:

Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.

Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.

As to what is a "reasonable time," we would have to look at the circumstances of each case.

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GC Compliance for Employers

Detailed question:

Answer:

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Quote: (2) Do we need to notify anyone about their GC process and let them know that they are no longer working for us?

Ans. There is no such requirement, but the better practice is to write to CIS revoking the I-140.

Quote: (3) Can we re-hire them on their EAD after few (or several) months once they get a project on their EAD?

Ans. Yes, but the question about "permanent job" remains.

Quote: (4) Can we continue their Medical Insurance (and our company pays for it) even if they are NOT employed with us.

Ans. I can see that as objectionable on several grounds.

Quote: (5) Can they stay in USA if I cancel there H-1 and they have a valid EAD but they are NOT employed by anyone.

Ans. Yes. Have them review the entries on my blog under I-485. You will still have unanswered questions about "permanent job."

Quote: (6) Is there an alternative for them to apply for Consular Processing, under what circumstances should they do so, what are the benefits / disadvantages

Ans. I see no advantage in CP. The basic question about a permanent job remains unanswered.

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Renewing Expired GC and Citizenship for autistic/disabled persons

Detailed question:

Answer:

Quote:  A member of our family was issued a Green Card in November 1980. The green card did not have any renewal date (see enclosed). I assume Green Cards at that time did not have a renewal date. Does this need to be renewed?

Ans: Replace the green card. See:
http://www.uscis.gov/files/form/i-90instr.pdf

Quote: The child is an autistic and her parents have not applied for a US citizenship for her. Can she apply for citizenship? Passing a citizenship exam might be a challenge for her though.

Ans: The law on disability is:

Disability — If you have a physical or developmental disability or a mental impairment so severe that it prevents you from acquiring or demonstrating the required knowledge of English and civics, you may be eligible for an exception to these requirements. To request an exception, you must file a “Medical Certification for Disability Exceptions” (Form N-648). If you believe you qualify, contact a licensed medical or osteopathic doctor or licensed clinical psychologist who will need to complete and sign your Form N-648. To apply for a disability exception, your disability:
• Must be at least 1 year old (or be expected to last 1 year); and
• Must not have been caused by illegal drug use.
If you qualify for this exception, an interpreter, who is proficient in English and the language of your choice, must accompany you to the interview

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Starting business while in AOS/I-485/H-1/H-4

Detailed question:

Answer:

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

2. I think that should be fine. But passive means performing no work. Think of it as investing in IBM on the stock market. Just because you purchase a few shares, you do not get a seat at the Board of Directors of IBM. That is passive investing.

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Pointers for EB1/NIW filings

Detailed question:

Answer:

The following pointers have emerged from recent cases and comments from USCIS:

1. Make sure you document the citation records (to show how many hits the journal gets), impact factor and circulation figures of the journals in which your publications appear.

2. (This we already knew) Recommendations from people who know you personally carry less weight than from those who know you by reputation.

3. Emphasize/document the "international" nature of your accomplishments.

Note: These comments have no application to physicians filing NIW through under served areas.

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Am I obliged to join my sponsoring employer after GC approval?

Detailed question:

Answer:

Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.
4) If I inform company ‘A’ now about the green card, is there any legal basis for company ‘A’ to take any action on me and terminate me?
6) If I am impacted in any way, will my spouse and daughter loose their green card status.

Ans. Your basic question revolves around one issue. "Am I obliged to join my sponsoring employer after GC approval?"

This is a tough question to answer with so many shades of gray that I am venturing into conjecture rather than well-founded legal opinion. But I must try, because this situation does come up a lot.

First, we all the know GC is for a future position but you must have an honest intent ("good faith") to join the employer and they to hire you.

Quote: Practical hint 1. Document as best as you can that you had a good faith intent to join the employer and they to hire you, but due to the economy or whatever other reason they do not have a job for you. You can get a letter from the employer and some evidence that shows they have lost business and have had employee lay offs. You are also not obliged to take a pay cut over the labor cert salary or join in a location other that that mentioned in the labor cert.

Ans. Second, in my opinion, if you will join them, you should do so within a reasonable period. There is no definition of that either. May be a few months delay is justifiable.

Quote: Practical hint 2. If the job you are doing now and the job under the GC are same or similar, make sure you document that. Keep copies of your labor cert and of your current job description. This gives an additional argument to protect your GC under AC21.

Ans. The reason I am asking you to document all this is that when you apply for naturalization, these issues may and often do come up. I am thinking of the defense you will need 5 years from now and if we end up taking the govt. to court, we can have good chances of success.

Company A should have no reason to let you go but you should update your I-9 now. If your GC is revoked so will that of your family.

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Does chargeability change with citizenship change?

Detailed question:

Answer:

Still, India. Your chargeability follows the place of birth, not your citizenship.

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How does the Stimulus Bill affect H-1b, L-1 and Green Cards

Detailed question:

Answer:

There is a lot of confusion out there as is obvious from a gazillion emails I have received. So, I braved the lion’s den and tried to figure out this thing. Here is how I see it.

1. If an employer receives TARP funding they can hire NEW H-1B workers only if they comply with certain requirements. Note that existing H-1 workers are not affected. Note also that there is no effect on existing or future green card applications of such employers.

2. These requirements are already in place for employers whose workforce contains a substantial number of H-1 workers. These employers are referred to as H-1B DEPENDENT employers.

3. The additional requirements that TARP accepting companies have to follow are:
a. They must not displace U.S. workers in similar positions nor may they place H-1B employees at places where such displacement has or will occur (I can give more details to those who wish to know more. Feel free to send me an email through the contact form on http://www.Immigration.Com).
b. They must have made good faith efforts to recruit US workers (there is a whole bunch of regulations on how we are supposed to do this. Again, feel free to send me an email through the contact form on http://www.Immigration.Com)
c. TARP employers are bound by these requirements even if they hire exempt workers. An exempt worker is one who makes at least $60,000/year OR possesses a Master’s or higher degree in his/her filed. Normally the additional requirements of non-displacement and good faith recruitment do NOT apply with respect to exempt H-1B workers. Nevertheless, the Bill says, this exemption is not available for TARP recipients.
4. This restriction on hiring H-1B workers will stay in effect for two years after the President signs the Bill.
5. There appears to be no change regarding L-1 provisions.

For those, who would like to read more on the laws, read section 1611 of referred to as “Employ American Workers Act.” This section refers to 8 USC 1182(n)(3). The full text of the American Recovery and Reinvestment Act of 2009 which I referred to is at http://www.house.gov/billtext/hr1_legtext_cr.pdf

Regards to all. Rajiv.

6 March 2009

CIS has clarified that extensions of existing H-1 are not restricted by the new laws. 

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Adoption from India

Detailed question:

Answer:

I am sharing with you a response to a frequently asked question about adopting a child from India. Our inquirer also wanted to know if she could adopt her niece. Here is the info:

Adoptions of children from India to the US are covered under the Hague Convention on Inter-country Adoption. Adoptions of relatives are permitted under the Hague Convention so long as the adoption proceeds in the same manner as other Convention adoptions. Significantly, the relative child must still meet the definition of a "Convention Adoptee". Please see the following US State Dept. Website for more details: http://adoption.state.gov/about/who/relatives.html. In addition to other applicable requirements, all of the following Hague requirements must be true for a child to be eligible for the "Convention Adoptee" classification:

1. The child is under the age of 16 at the time the I-800 petition is filed (with the USCIS) on his or her behalf, is unmarried, and lives in a Convention country (India is a Convention Country); But note, unless there are exceptional circumstances, India only permits relative adoptions for children under the age of six. This may be problematic for you and should be clearly discussed with your State Dept Approved Agency before proceeding.

2. The child will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, habitually resident in the United States, whom USCIS has found suitable and eligible to adopt (Form I-800A approval) with the intent of creating a legal parent-child relationship. Note that at this stage the child must not have been adopted yet. However, India makes the following additional requirements: Prospective adoptive parents can’t be less than 30 or more than 55 years of age. Married couples must have a combined age of 90 or less. Prospective adoptive parents should be at least 21 years older than the child. Single parents up to the age of 45 can adopt.

3. The child's birth parents (or parent if the child has a sole or surviving parent), or other legal custodian, individuals, or entities whose consent is necessary for adoption, freely gave their written irrevocable consent to the termination of their legal relationship with the child and to the child's immigration and adoption;

4. If the child has two living birth-parents who were the last legal custodian who signed the irrevocable consent to adoption, they are determined to be incapable of providing proper care for the child; and

5. The child has been adopted or will be adopted in the United States or in the Convention country in accordance with the rules and procedures elaborated in the Hague Adoption Convention and the IAA, including that proper accredited adoption service providers were used where required, and there is no indication of improper inducement, fraud, misrepresentation, or prohibited contact associated with the case.

Please note for adopting a relative, item #3 is critical. However, even if the surviving parent provides the written consent of relinquishment, the Indian Government has the right to deny this case based on the sole parent's income, occupation, and reasons for relinquishment. Please see the following Indian Government site which provides guidelines for adoptions of relatives abroad:
http://www.adoptionindia.nic.in/guidelinefamily.htm. If the surviving parent's income, occupation or reason for relinquishment bar classifying the child as a Convention Adoptee, then there is one more possibility. If the child has resided with the United States citizen in legal custody for at least two years, then the U.S. citizen may also file an immigrant visa petition for the child.

If you choose to proceed with the adoption, our firm would work on the immigration petitions (I-800, I-800a) and the State Dept approved agency would be in contact with the Indian Government to arrange for adoption (or legal guardianship) in India of your niece as required by the Hague Convention.

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CIS Reinstates Limited I-140 Premium Processing

Detailed question:

Answer:

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and

The news item and related documents are available here:
http://www.immigration.com/newslette...prmprocss.html

Please note, for now (June 2008), premium processing is only available if you meet ALL of the current requirements:
1. Your are currently on H-1;
2. Your H-1 status is expiring within 60 days when you apply for I-140 premium processing; and
3. You are not eligible to receive 1-year H-1 extensions because your labor certification was filed less than one year ago.

FAQ

Question 1
Can we file I-140 PP if:
A) The applicant is in 7th, 8th or 9th year extension? If yes, do we have to wait until 60 days before the current year expires or can we file at any time?
Answer No. Because you fail the 3rd condition. You ARE entitled to receive one-year extensions of H-1.

B) The 6th year has already expired because there was no way to extend H1 at that time and the I-140/I-485 are currently pending? Applicant is on I-485 Pending status.
Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

C) If the 6th year already expired and the applicant transferred to another non-immigrant status (for example, F-1) because could not extend H1?
Answer We are sending a letter to CIS asking clarification. In my view, this PP should be allowed.

See attached copy of the letter sent to CIS.

Addendum 02/27/09
In February 2009, CIS expanded the premium processing to include those people who are not in H-1 status currently or are out of the US. Rest of the requirements are the same. Typical of their style, the public notice was confusing and singularly useless in providing accurate guidance. Note that we had pointed out this problem to USCIS back in June 2008. See attached letter. It took them only 8 months to (partly) fix it.
 

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Can F/J holders apply for green card?

Detailed question:

Answer:

There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.

One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.

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Turning 21 - do I have to convert to F-1 from H-4?

Detailed question:

Answer:

 I do not see any way around filing an F-1.

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Checked the wrong box on Form I-90

Detailed question:

Answer:

You should certainly point this out at the biometrics appt. You should also call the CIS customer service number and explain the problem. In addition, you should contact your Congressman. Let them contact CIS and help you correct this issue.

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What happens when an employer is under criminal investigation/indictment?

Detailed question:

Answer:

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

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Green Cards for Physical Therapists

Detailed question:

Answer:

 PT's and RN's are both exempt from filing labor cert, but the time for their green card processing is still tied to the time it takes for people from the country of their birth. An India-born PT will wait the same time in EB-3 category as any other India-born EB-3 applicant.

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May physicians process GC during residency?

Detailed question:

Answer:

The essence of a green card application is that it is meant to be for a job in the future. 

Thus, where an employee is currently working or working before obtaining a green card
approval is largely irrelevant.

You must, however, be fully qualified to take the job on the date the PERM application is filed. So, if the State in which you are filing your GC, permits you to get a license to practice in 2nd year of residency, you can file only in the second year.

The process is also governed by good faith. You must have a good faith intention of joining the employer and the employer must have the intention of hiring you. Do you actually have to join the employer? Well, probably not. Look at the law on AC21.

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Is salary reduction possible/legal?

Detailed question:

Answer:

Quote:

1. If an employee is on a H1 they cannot have a 10% pay cut unless their H1 was amended and refiled.

Ans. Probably yes. That is the safest thing to do. The rule of thumb is, you can never pay an H-1 holder below the prevailing wage. You can also not pay them below what you pay other similarly employed professionals in the geographical location of the employment. So, if the 10% pay cut does not violate these two principles, the only other issue in immigration compliance is whether 10% cut in salary is a "substantial" change in the job. An H-1 amendment is always necessary when there is a substantial change. To be safe, I would recommend you amend.

Quote:

2. If an employee is on a GC processing (I140 or I485) they can have a reduction but need to be paid the amount equal to or greater that was listed on the GC petition on the day their GC is approved.

Ans. Basically, yes.

The main issue here is, if the salary being paid is below that expressed in the GC application, does the employer still have the ability to pay wages. This issue is usually not raised past the I-140 approval, but I see no law that says it cannot be raised after the I-140 approval. And in all cases before 140 approval, the salary shortfall must be balanced by showing an equal amount of taxable income or net current assets for each GC beneficiary (employee) still in the process.

For example, you have to give a pay reduction to an employee on H-1. Assuming you have not violated the H-1 requirements we have discussed above, you will need to show continued ability to pay the GC salary. Let us say the salary stated on the GC application in $80,000. The employee is now making $75,000 after the pay cut.

For GC, we will have to show $5,000 taxable income/current assets (or the proportion of salary that falls in that tax year). If there are 5 employees in the same situation, that amount would rise to $25,000.

Quote:

3. If an employee is on a GC processing and has a H1 they need to have their H1 revoked and work on their EAD for the #2 above to be accepted.

Ans. You can do that as long as that employee is getting paid the same as others.

Quote:

4. Benefits that were listed as a part of an employees immigration processing cannot be decreased.

Ans. There is no place where we commit to benefits or state them in the GC application as far as I know. The law does not require benefits.

 

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If I-140 gets revoked/denied does my H-1 extension get canceled?

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Answer:

Quote:

If we apply for a H1b extension for another year ( I believe we can apply 6 months before the expiry of the current 7th year H1b ) and if its approved, does that mean that I can still work till Nov 2010 even if the I -140 gets rejected before the extension comes into effect?

Ans. Yes. You are safe. Under current practice, CIS does not take away extensions already given.

Quote:

I really want to thank and appreciate the good work you and your team is doing.
I had a question regarding Status. I am currently working on H1(6th Year) with one company and have another company who has filled for my GC. The I-140 has been approved(Oct'07) and 485 was also filled in Oct'07.
My question is if my present employer lays me off and terminates my H1,
1. Can apply for H1B transfer to other company?
2. Will I be consider out of Status under any condition?
3. Will H1B cap apply to me as its going to be a new H1B as the previous company will cancel the H1b after Layoff.
4. Can you also tell me can I apply for the H1B from another company as a backup and join that company after layoff?

Ans. You should be able to apply for an H-1 through another company. You may have to apply for an H-1 visa to get back into H-1, but you will not be out of status because your 485 is pending. You will not be subject to the quota. Having an H-1 as a backup is legallly possible, but tricky. Make sure you discuss this with your H-1 lawyers.

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DOL Comments on PERM Processing Times

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Answer:

In a recent meeting, USDOL has stated:

Quote:

...As of late January 2009, DOL is processing cases with priority dates in June 2008, cases in the audit queue with priority dates in August 2007, and cases in the appeal queue of April 2007....

One of the reasons that case processing slowed in the 4th quarter of 2008 was that DOL was hiring and training contractor staff for the Atlanta National Processing Center. The contract was awarded last summer, a losing contractor appealed and won the appeal, then the initial contractor sued. The workers did not come on board until last September 2008. The Atlanta Processing Center has only 40 federal employees and the rest of the staff consists of contractors. With the contractors now in place, the pace of processing has picked up. Only 4,571 PERM applications were completed in October-December 2008 but 3,500 PERM applications were completed in January 2009. However, DOL expects this will level off and processing rates will slow down again because of the limited number of federal employees available to review the contractors’ work.

 

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Expected I-140 denial

Detailed question:

Answer:

 You can get an H-1 extension when your I-140 or an appeal against the denial of an I-140 is pending. So you can have the employer file an appeal against the 140 denial and change employers. The appeal of employer A, will get you H-1 extensions for employer B. This could be easily good for 1-2 years of H-1 extensions. Start the green card again with B.

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Does filing for any green card permit me to stay in USA?

Detailed question:

Answer:

So, the questions is does filing for any green card permit me to stay in USA?

The answer is no.

Only those green card application in which there is no wait for a visa number (example: spouse or parent of a US citizen or EB1 category currently) permit you to stay in USA but only if AOS (I-485) is filed in a timely manner.

That is the reason spouses of green card holders have to wait OUTSIDE USA for many, many years.

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What to do if an I-140 gets rejected?

Detailed question:

Answer:

Generally speaking, NIW is a lousy back up for a number of reasons. But I say this not knowing the merits of your situation, as your lawyer does.

But here are some things to consider.

Under current practice, CIS does NOT take away the H-1 time they have given you even if the 140 is denied.

An MTR is another dumb option in most cases. An appeal is the way to go. While the appeal is pending, you are permitted to keep getting H-1 extensions (an MTR does not give you that right). During that time you can work out other GC options. Consult with your lawyers and also get a second opinion.

The kids and your brother cannot do much. Your kids can petition for your green card only when they turn 21.

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Do advanced degrees help in marriage-based green card?

Detailed question:

Answer:

 1. Advanced degrees do not help in a family-based green card.

2. H-1 approval also does not help in the GC process.

3. Check with your international students office about the OPT part. This one is difficult for me to comment upon.

4. Whether or not you declare, if you are married then that is so. You must state that you are married if any immigration forms ask you. This is VERY important. Regarding taxes, check with a CPA. You do not want tax advice from a guy who barely passed his Federal Tax exam in law school.

If I were you, I would depend on my H-1, not OPT. The H-1 permits dual intent (Nonimmigrant and Immigrant) and is likely to be a strong visa for a person married to a green card holder

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Consequences of DUI's on naturalization and green card

Detailed question:

Answer:

Let us look at the law for green cards and removal (deportation) first.

Remember the following GENERAL elements of the law (there is more to it).

  1. Traffic violations that are not considered crimes under state law have no implications and create no problems for your green card.
  2. If you have only one conviction ever and it is a misdemeanor, you are AUTOMATICALLY protected by law and forgiven under a provision of law called "petty offense exception."
  3. If you have a conviction for a felony we have to look at the law very carefully, but not all felonies are necessarily a problem fro your green card

For naturalization, even too many traffic tickets can become an issue, if CIS wants to make it so. Generally speaking they look at only the last five years from your application for you history, but there is no law prohibiting them from going back further in time.

Any kind of crimes could become a problem for naturalization and you must get yourself a lawyer if you have a criminal history of any kind.

Both traffic tickets and crimes go to the issue of "good moral character," a prerequisite to naturalization. 

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Does lay-off affect natutralization?

Detailed question:

Answer:

 I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

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Start-up applying for H-1 and AC21 for employees

Detailed question:

Answer:

 H-1 by Start-up Companies

It can be really difficult for start up (or very small) companies to obtain H-1 visas. Doubly so, if people are being hired outside the U.S. Normally CIS asks you to prove:
1. You are capable of paying wages
2. You have sufficient amount of work
3. You are a reliable company with proper staff, offices and equipment.
4. If providing consulting services, you are able to procure a letter from your end-client showing the terms of engagement including what the H-1 holder will do and who will supervise them.
YOU MAY SUCCEED If you can:
- SHOW HOW YOU CAN PAY THE WAGES
LINE OF CREDIT
We have advised people to try to get a line of credit from a bank. That works sort of like a credit card. Unless you use the money, you pay no interest on it. Contact any local bank for more details. It is difficult to put down exact numbers, but $250,000 line of credit is a healthy number. Please note, merely having money in the bank may not be sufficient. Also, those companies that are starting with a promised Venture Capital of more than $500,000 should be OK.

BUSINESS PLAN
Having a solid, detailed business plan can help. There is mush software out on the shelves that can help you put together a good business plan.
This will also help show how you have enough work for employees.
LETTER FROM/CONTRACTS WITH CLIENTS
If personnel are being outsourced, contracts from clients will help.

Start up Companies Doing AC21
There is no law on this issue. The current thinking of CIS appears to be that there is no problem in doing AC21 for a start up, as long as the job offered to the employee is similar to their labor cert job. In the past, CIS had tried to question the start up on ability to pay wages. But Yates memo of May 2005 (posted on my blog under AOS/485 section) shut that down stating that is not relevant.

Start up companies starting new green cards
This would be difficult because you have to demonstrate the ability to pay wages from the day you file the labor cert on to the time an employee actually receives the green card approval. This ability is usually shown through a profitable tax history. But if you are consistently paying an employee the wage he/she is supposed to be paid under the labor cert, you are in a good position to get your GC through.

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AC21 Portability and Related Issues

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Answer:

Quote:

Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

Ans. On an EAD, you can start a company and do everything that a green card holder can do including opening and owning your company as an active participant/owner. Your spouse has larger freedom than you do. You have to be in a job "similar" to your labor certification job. In the May 2005 Yates Memo (Posted under AOS discussions in my blog), Yates said you can port to your own company, but I recommend that only as the last option, because there are some troublesome issues that are still unsettled in self porting.

Quote:

Can I hire few more peoples on H1B ??

Ans. Yes.

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Filing EB1 while EB2 AOS is pending

Detailed question:

Answer:

I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
 

Ans.a) Currently, there is no premium processing for this type of cases.

Ans.b) No. We should be able to use the same 485.

Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.

 

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Further questions on AC21

Detailed question:

Answer:

Quote:

 I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

Ans. If you do go on EAD, you can get back on H-1 provided you are willing to get a visa stamp from outside USA. There is no limit on the number of days.

I also think you can try filing for an H-1 transfer and ask to be "forgiven" the 30 days gap in the H-1 transfer.

Further, per Yates memo (posted above in another note on AC21), even if the employer revokes I-140, you still keep your right to AC21.

Quote:

If I move from VA to MD the prevailing wages is changing. So should we file for a new LC?

Ans. No. That is the whole point of AC21. You should not have to file a new labor certification or green card as long as the job and salaries are similar.

Quote:

Within how many days should I file for AC21?

Ans. No limit. But in my view, ASAP.

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Promotion during the green card process through PERM

Detailed question:

Answer:

Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?

Ans. That is not advisable. A promotion or change in job description during the pendency of a green card can jeopardize the green card process. The GC process is for a specific job, at a specific location, at a specific salary.

CHANGES IN JOB DESCRIPTION
Minor changes can be accommodated. But any substantial change would require starting all over again.

SALARY INCREASE
Routine raises in accord with the industry practice should not create a problem. But any large salary hikes are likely to be a problem.

CHANGES IN JOB LOCATION
To preserve your green card, we must be able to show that you are TEMPORARILY changing some items in your job description for now, the present time. For instance, the GC is for a job in NY, but you are temporarily working from California. When the GC is approved, you will be placed back in NY.

If there is an irreversible and substantial change in your job description, we will have to start the entire green card process from the beginning. The only exception to this would be where the change is temporary.

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B visa while GC pending or similar situation

Detailed question:

Answer:

This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.

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Supervisory review

Detailed question:

Answer:

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

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Green Card through Citizen brother

Detailed question:

Answer:

This is usually not a feasible option. To see how long it would take, look at the Visa Bulletin: 

http://www.immigration.com/newsletter/vbarchive.html

You will note that it will take more than a decade to get a green card through family-based category 4. You are not permitted to stay in the USA just because this application is pending.

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Changing Careers after the GC

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Answer:

 A1. I see no problem with this nor do I see any red flags.

A2. Sure. Why not. Permanent does not mean forever.

A3. Not at all.

A4. Nothing else I can think of.

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Multiple Labor Certifications

Detailed question:

Answer:

In my opinion, most definitely, yes. As long as both companies are acting in good faith (honestly) and you have the intention to take whichever green card happens to be more convenient or quicker for you, you can file 2 or more labor certs (PERM) through different employers.

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Can Employer Withdraw My Green card Application?

Detailed question:

Answer:

Ans1. They can withdraw the 140. That is their petition, but they cannot withdraw the I-485. That is your petition. If they withdraw the I-140 you can still take recourse to AC21 and not suffer any negative consequences.

Ans2. If you are covered by AC21, you should be fine.

Ans3. File AC21 letter as soon as possible.

Ans4. Sure .

Ans5. See this link: http://www.immigrationportal.com/blog.php?b=25

Ans6. I do not think there is any easy way to do that. Unfortunately, you may find out only when CIS issues a Notice of Intent to Deny (NOID) your I-485. But you can try calling CIS customer service from time to time.

 

 

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How soon can I leave the employer after I get my GC

Detailed question:

Answer:

A1. There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits. Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary

But REMEMBER, this is just my own guess. Technically speaking, the moment you decide that you will leave after a certain period of time, "permanent" intent is gone. Catch-22 eh? Well that is the way it is.

There may be considerable relaxation in this interpretation because in the year 2001 Congress enacted a law that permits employees to leave an employer even while their I-485 is pending. We do not have the regulations or any detailed guidance on these issues.


A2. There are no clear rules as we have stated above. But, In my opinion, there is no risk in this scenario. You acted in good faith to continue the job, but your employer could not continue to employ you.


A3. I think it is better to be terminated. There are no clear rules as we have stated above. But, In my opinion, there is no risk in this scenario. You acted in good faith to continue the job, but your employer could not continue to employ you.

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PERM News July 15 2008 DOL Meeting

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Answer:

The attached PDF document contains information from DOL on PERM backlogs, program future and other pertinent matters. Enjoy. Regards to all. Rajiv.

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AOS Pending, Should H-1 be Renewed

Detailed question:

Answer:

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get n H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

All the above holds true, whether or not you intend to use AC21 portability.

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Priority Date and AOS (Form I-485) Processing

Detailed question:

Answer:

As of July 2008, this is how the system works.

First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

When the Visa bulletin shows a category is current, the I-485 (AOS) can be filed in the month the PD is current. Once AOS is filed, if the PD stays current, CIS continues to process the case. They call you for FP, put you through security checks and if no further evidence or questions are raised – approve the case. Upon approval, they seek a Visa Number from the State Department. Once that visa number is received (by fax or electronically), they approve your AOS. Eventfully, your GC is produced and mailed to you.

If the PD does not stay current, CIS puts the adjudication on hold till the PD is current again. When the PD is current, again AOS processing is resumed. This part makes no sense to me, but that is how, I believe they generally do it. Now, if you are fortunate enough to have already been assigned a visa number, your case may be approved even if the PD’s slide back again. But if your fingerprinting has not been done, you cannot get a green card approval.

Do feel free to correct me if my understanding is incorrect.
 

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EAD and H-1 Conversions for Derivatives

Detailed question:

Answer:

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

 

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

Qo3. From what I have read on forclients.com if she joins on EAD now she can come back later on H1 but will have to travel out of the country and get her H1 stamping done. Is this right(just confirming it)?
Ans3. Correct.

Qo4. When she comes back on H1 she will be using the current H1 itself? It will not be a new H1 and we will not have any issues of new H1 quota right?
Ans4. Correct.

Qo5. If she decides to come back to H1 should it be before April 2010(when current H1 expires) or it can be after that also?
Ans5. Any time.

Qo6. What happens if her current employer reinvokes her H1 after she quits them. Can she still come back on H1?
Ans6. When she leaves, they should revoke her H-1. If she wishes to rejoin them, they can reapply the H-1.
 

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Gap in Employment during AOS

Detailed question:

Answer:

Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.

Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.

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PERM Through Relative Owned or Controlled Company

Detailed question:

Answer:

The answer is yes, BUT, the case is likely to be very closely scrutinized and may even require supervised recruitment. That means, USDOL will most likely ask us to place advertisements again under their direct supervision. So, we could end up repeating the advertising. This could cause delays (and of course even denial).
This question had come up a few weeks earlier also. I wanted to clarify this with the USDOL so we wrote to them. Our letter and their response is attached.

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AOS Denial – Consequences for H-1

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Answer:

Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.
Technically, as I see the law, if CIS denies the AOS, they can also revoke the H-1 given beyond six years. As a practical matter, they do not. So, even after denial, you should be able to stay in USA to the end of the already granted H-1. You can start a new PERM application and eventually, get H-1 extensions based upon that.
Also, just because AOS is denied, may not mean the CP is not an option. Depending upon the facts of the case, consular processing for green card may still be an option.

Qo. So, would it not be better that a person who applies for AOS should NOT insist on maintaining H1 because he will use up the six years sooner. He should use Advance Parole and EAD to stop the H1 clock because H1 will give him/her more options ONLY IF six years are not up. Your thoughts?
Ans. That may be a good option if there is over one year left on the original H-1 AND the beneficiary is not entitled to three-year H-1 extensions. I get very nervous when your entire work options are based upon an EAD whose renewal time is left in the hands of CIS.

Qo. In your practice, have you encountered similar scenario where I-485 was denied but H1 was not canceled?
Ans. Yes. Several times.

Qo. I was given a three year H1 extension in my 8th year on H1 based on pending I-485 application and approved I-140. Please note that at the time of requesting H1 extension, my employer requested 3 year extension which I thought I wasn't eligible for as visa dates had not retrogressed for my category so I should have been given one year extension.
My three year H1 extension is valid until 2011(8th, 9th, 10th year on H1), in case of AOS denial in the 8 th year, do I have two more years to sort it out?
The maximum time one can stay in H status is 6 year unless the AOS is pending. If AOS is denied and CIS DOES NOT cancel H1 with AOS denial, does such a person start to accrue unlawful presence in US?
Ans. If you have been given an extension mistakenly, that can be taken away and you can have other issues as well. And, I don’t want to us to digress into unlawful presence. That is a whole new topic.

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Basic Criteria for Extraordinary Ability

Detailed question:

Answer:

This morning, I was working on explaining to a client (whom I respect greatly), one of the foremost musicians from India, how EB1 (Extraordinary Ability) category applies to musicians and performers. As I was sending him the basic information on EB1 category, I thought I will share the general criteria with all of you. This information is for EA, generally and applies to all fields - not just music. See attached.

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