If you would like to ask a question Pallavi Ahluwalia will respond to your question soon. All questions and answers, posted here will be available to the public as they may help people in similar situation. The answers we post here are generic. We kindly request you to keep your questions short and allow for brief answers.

For specific issues, kindly seek an opinion from one of our attorneys, through an interactive session, either by phone or in person, to allow for review of underlying documents.

For consultation with one of our attorneys, kindly email frontdesk@ahluwalialaw.com or call us at 972-361-0606.

Review Past Questions

New employer to file PERM and I-140

Question: My current I-140 with Employer A is valid for more than 2 yrs now. I’m being offered a full time with Employer B who is ready to file for my GC after a year per company’s policy. My current H1B is valid till Sep 2019. 1) How soon or how late should Employer B file for my GC to retain my H1B status beyond Sep 2019 ? 2) Employer B expects me to travel globally based on the project requirement. Is it safe to travel outside of US at this point and for the next 2 years at least ?
Answer: The new employer can do the PERM and I-140 any time before you file I-485. Further, as long as you have a valid H-1B which if questioned shows bonafide employment, you will not have trouble in travelling.

Travelling when H4/EAD is pending

Question: I have a query regarding my dependency H4 Visa, my H1B along with my spouse and son H4 extension (as current visa expiring in September 2017) is filed with USCIS last week but my spouse and son need to travel to home country due to some family reason. So I would like to know if they both (Not me) travel to home country when our case is still pending with USCIS and current I-94 is expired, what option do we have so that they can get back to USA without any issues ? What will happen to their H4 extension case which is pending on their travel outside USA (I will still be in USA)? Will there be any issues for their return back ?

Answer: The extension will be abandoned when they leave the country. They can enter the country with a valid visa up until the current validity of September 2017. They will not be able to travel back after this date and will have to wait for the H1B  approval. They will have to visit the consulate for visa stamping with your H1B approval and then enter the country.

Presently on L2, expiring soon, pending H1B, what are the options

Question: I am currently working on an L2 EAD valid till 24th Aug 2017 (The L2 Visa expires on 24th Aug 2017) My employer has filed an H1 B Petition on my behalf in the last week of April 2017 (my H1 B is not subject to the annual cap). Also, my spouse’s L1 B Visa is valid till April 2019. Given that premium processing for H1B has been suspended, there is a risk that my H1 B approval may not come through before expiry of my L2 Visa in August 2017. Given this scenario, would it be prudent to travel to India and get my L2 renewed? Would that have any impact on processing of my current H1 B petition?

Answer: We can not predict if the H-1B will be processed by the expiration of your L2 visa. But going for stamping is an option if the L1 has been extended till 2019. To work on L2, you will however enter the country on the L2 and then file an EAD which will allow you to work.

Visitor visa for parents

Question: I am us Citizen and trying to apply for my parents B2 visa, what/how can i do it?

Answer: The application for the visitor visa is based on the qualifications of your parents and do not pertain to your status. They need to establish to the satisfaction of the consular officer that they have emotional ties and financial strength in their country of origin and also provide reason for their visit to the US (hint: it should be visitor related). If they can convince the officer that they will return back to their country after the visit to the US, they will be fine.

English language test at time of citizenship interview

Question: My in-laws applied for citizenship. But they do not speak English nor do they meet the qualification for exemptions. Can we accompany them for interview? If possible, then what additional form is required.

Answer: For the citizenship test, parents have to speak and clear the English language written test. If you are accompanying them, it will not resolve what is expected from them at the time of interview.

Passport expiring while visa transfer in progress

Question: I have my old passport expiring on 12/31/17.Current visa expires on 7/17 on the old passport (I-94 expires on 12/17). I will be transferring my Visa to a new company in the month of 5/17. What will happen if my visa transfer is in progress (as I cannot do premium now) and my passport expires. I have already applied a new passport and have received it.

Answer:  If the passport is not renewed at the time of the H-1B with the new employer, it can be updated when going for visa stamping. It is fine as long as you can retain both the new and the old passports.

Green Card expiring and citizenship applied

Question: My 10 yr Green Card will expire in July 2017. I applied for citizenship in Feb 2017. Since it is not possible to complete citizenship process before the expiry of Green Card, what happens to my status once Green Card expires? Should I also apply to renew Green Card?

Answer: Yes, you may want to apply for the renewal of the permanent resident card, while your naturalization is pending. With the enforcement of current memos and orders, you do not want to be without a valid proof of your current immigration status. A receipt of the application is a good proof along with the proof of receipt of naturalization application.

Amendment of location for L-1A

Question: I came here in July 2014 on L1-A. However, my I-129 proposed employment location as Denver with Client A, whereas I landed in July 2014 in Dallas and since then I am working for Client B in Dallas (client office and/or my sponsoring company’s office).
So, in this case, being on L1-A, is it really mandatory for me to file location change amendment to reflect “Proposed Employment” location as precise location where I am working from? Kindly Suggest.
Answer: There is no formal guidance available that mandates an amendment of location for L1A beneficiaries. However, US Citizenship and Immigration Services’s (USCIS) Fraud Detection and National Security Directorate has recently began implementing L-1 site inspection in response to an August 2013 report released by the US Department of Homeland Security’s office of Inspector General (OIG), titled “Implementation of L-1 visa program”. The report is available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-107_Aug13.pdf.  The L-1 site visit is funded by the $500 Fraud Fee required for the initial filing of all L-1 petitions. Based on the site visit program, we would advise an update with the USCIS about your changed location.

Coming for the first time to US on Green card via Dubai

Question: My Mom got her green card visa approved from the Mumbai consulate in India. She wants to see my brother in Dubai UAE before she comes here. Can she board a flight from Dubai or she has to come directly from India? Will there be any problem for her at the port of entry in the US or even boarding a flight out from Dubai as she has her unopened visa packet that she will have to give to the border security agent at the US port of entry?

Answer: There are no restrictions on stopping anywhere en route but please be aware that there is a heightened scrutiny related concerns and checks on all passengers coming either from or through Middle East. Your mother should be prepared to answer more questions about her visit to Dubai as well as have her personal gadgets checked when she enters to US.

Naturalization or Certificate of Citizenship

Question: I am a US citizen since 2005. My son, 28 years of age now remained Alien card holder which expired in 2003. His passport also expired in 2006. He applied N-400 to be US citizen. It completed process with the decision that he is already US citizen. However he is not Naturalized. He is trying to get his US passport. He is having trouble furnishing proof of his basis of citizenship. We are getting his DOB from Birth Registrations office. We have Affidavits for our marriage proof. They are asking for proof of relationship and dependency at the time. Please advice.
Answer: It will require an analysis to see if your son acquired citizenship through you in year 2005 and if he was a minor, that is under the age of 18 years. If he was a minor, than you do not have to file for his naturalization but will apply for a certificate of citizenship.

Require stamping to travel in and outside the country

Question: My question is regarding E2 visa. Once in USA on a visit visa either B1 / B2, we request for status change to E2 and once its approved, can we travel outside USA to any country on a visitor visa and allowed to re-enter USA. More specifically, I want to know if the dependents i.e. spouse of principal applicant and children if they travel outside USA, while principal applicant stay in USA, will they be allowed to re-enter USA or they will be required to stamp visa in the USA Embassy of the country of travel? Please clarify.
Answer: For any one to travel once they have changed to another visa, they have to obtain a stamp on the passport to travel in or out of the country.

H-1B visa transfer

Question: I have question about the H1B Visa transfer. If I transfer my H1B visa to another employer then: 1. Is there any way my existing employer will come to know that I have transferred my visa? 2. Even if my visa get transferred to another employer and later on I decide to continue with my existing employer and not to join the new employer, can I do that without any legal impact? Thanks in advance.

Answer: Your current employer can not find out the transfer plans or any filing petitions unless you share it with them. And yes, you can stay with the present employer even if you transfer to another employer without any legal impact.

L visa extension denied, impact on current visa

Question: I am based out of Dallas and heard about your firm through a lot of channels. I have a situation and hoping you will be able to advice. I have a L1-B (Blanket) valid till 01-Jul-2017( I-94- 30-Apr-2017) . My company (with same petitioner) applied for reclassification application of L1-A in late Feb’17 which got denied in the interview at Chennai Consulate and then after 15 days applied for my L1-B extension and it got denied again in interview on 15-Mar-2017. The consulate officer did not mention anything around cancellation of my existing visa on both instances. My question is – Can I re-enter US with my existing stamped VISA without issues?
Answer: You can enter the country and stay till the expiration of the current visa, if it is still valid. Only the extension of the visa is denied, not the existing one.

Options to get legal status for parents

Question: My parents had green card for three years in late 1990s. They went back and never returned. And never maintained their green card status. They came to USA on visitor visa on July 2 2015. Presently they do not have legal status. They want to go back. What are consequences at the port on departure? What options do I have to make them legal. I am US citizen for past 25 years. Thank you.

Answer: If your parents are here without status for this long, their return back to US will be very tough. They will be subject to bar to their entry for 10 years. As a US citizen, you can sponsor them and they will be allowed to adjust their status here.

H1B extension filed without H4 extension

Question: I joined an employer in Jan-2016. My H1B and dependents H4 extension petition is approved till Dec-2018. On Sept-2016 I joined another employer and only my H1B was transferred and approved. H4 extension was not filled. 1. What will happen to my dependents status when my older employer revokes my H1B and dependent H4 petition. The Visa on passport already expired last year as it was from my previous to previous employer. 2. My current employer immigration team is saying that H4 petition can’t be revoked. Do I need to file H4 extension for dependents with new employer..?
Answer: There is no need to file an extension for dependents as long as they have a validity to stay on H-1B. An employer’s withdrawal has no impact on the H-4 dependents.

Including professional degree in LCA/PERM

Question: I am currently with Employer A on H-1B extension and an approved I-140 for last 3 years. Also, I am currently pursuing FT-MBA and graduating in June 2017. Currently, I have multiple offers and going through interview process. If, I accept offer from Employer B and join before my graduation. Can my MBA degree be used as a qualification in my LCA/PERM process, when Employer B files for it?

Answer: To utilize MBA and to state in the petition for any reason (exempt from recruitment for the purposes of LCA), you have to be graduated. Or to be exempt, you should be paid at least $60,000.

Adding family after I-130 is approved

Question: I am a US citizen and I have filed for my sister’s I-130 back in year 2008. Now my sister’s marital status has changed. She is married and has 2 kids. Do I need to add these updates in her application? Do I need to file a different form for her husband and her kids?

Answer: You have to add the spouse and the children to the application on an approved case on Form I-824 – Application for Action on an Approved Application or Petition.

Error on receipt notice - 1B1

Question: I have an organization who had filed for ‘H1B’ (Counselor Processing) for me but the approval notice which came from USCIS had the visa class mentioned as ‘1B1’ in place of ‘H1B’, due to the ongoing mistype error from USCIS (Receipt notice had it correct as ‘H1B’). I am reaching out to you seeking your advice whether I should submit my passport here in India for stamping with that error on the approval notice OR should I wait for the corrected approval notice?

Answer: Please wait for the corrected approval notice as the USCIS recognizes that those notices were issued in error.

Consequences if University loses its accreditation

Question: I was a student at NPU which was under ACICS accreditation. I graduated on April 24th, 2016 and I am now with Initial OPT. But As ACICS lost accreditation on December 12th, 2016 I was not longer eligible to apply for STEM OPT after December 12th, 2016. But I would like to know that, “Am I eligible for H-1B in masters quota , as I graduated before the ACICS accreditation lost?” This may not be my question only, but thousands of students have same questions. Could you please clarify on this. We are eligible for H-1B in General quota but if we are eligible in master’s quota, the chances are more than general.

Answer: Most SEVP certified schools are not required to obtain accreditation and can provide evidence in lieu of accreditation. However, there are two instances when SEVP – certified schools must be accredited: English as a Second Language (ESL) programs are required to be accredited under the Accreditation of English Language Training Programs Act and F-1 students applying for a 24 month science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension must use a degree from an accredited, SEVP certified school, as the basis of their STEM OPT extension. The school must be accredited at the time the student applies. A loss of the accrediting agency credentials should not impact your degree, in the attorney’s opinion and should be eligible to file under the US Master CAP as you have a Master’s degree. However, this answer is different if the University has lost its accreditation.

E3 visa to H-1B, whether CAP exempt

Question: I am on E-3 visa and applied H-1B visa with employer A and it was picked in lottery 2015, but the same time I joined employer B, on E-3 visa, so my H-1B visa was abandoned in 2015. My question is If I want to apply H-1B visa this year, do I go back to my previous Employer (A) and apply for a new H-1B visa or I  am exempt from the lottery this year? Please advice.

Answer: You are exempt from the CAP if you were approved in 2015 and the H-1B was not withdrawn prior to October 1st of the same year. You do not have to go through the CAP or go back to the first employer.

Applying for Asylum

Question: I want to know if some one here is illegal, can he or she submit asylum?

Answer: Yes, even if some one is illegally staying he or has become illegal, the asylum claim can be submitted. There are two ways of obtaining asylum in the United States – affirmative process and defensive process.

To obtain asylum through the affirmative process, one must be physically present in the country. The individual may apply for asylum status regardless of how he/she arrived in the United States or through their current immigration status. It must be applied within one year of the date of the last arrival in the United States, unless the individual can establish:
  • Changed circumstances that materially affect the eligibility for asylum or extra ordinary circumstances relating to the delay in filing.
  • The individual filed within a reasonable time given those circumstances.
A defensive application for asylum occurs when you request asylum as a defense against removal from the US. For asylum process to be defensive, you must be in removal proceedings in the Immigration court with the Executive Office for Immigration Review (EOIR).

Driver's license based on Asylum

Question: My family is on ASYLUM. Every year our EAD gets renewed. We applied for renewal , got I797 C receipt notice that USCIS received the application and our case is transferred to another USCIS office because of the more pending cases. It clearly stated on the receipt notice that I can work for 180 days more if I have the receipt until I get my EAD. But, my problem is my Driver license expires today as per old EAD. As per Trump new policy, is it safe for me to drive and work ? Please suggest. Thanks in advance.

Answer: If DPS (Texas Department of Public Safety) does not give you a driver’s license without an approved EAD, we would not advise you to drive without a license. Please be careful and you are right – being pulled up by an officer will exacerbate your situation.

English Language test for citizenship

Question: I had a question for my Father. He is living with us & has a Green card. He does not know English and so can not take the English test for citizenship. He born in Pakistan. Will  it be a problem for him to stay here?

Answer: No, there is no problem for a Green card holder to stay in the United States at this time. Further, he is exempt from English language test if he has been a Permanent Resident for the at least 15 years and is over the age of 55 years.

Exemption from English Language test for Naturalization

Question: I have a question for my father. He has a green card & is born in Pakistan. He is living here with us. He does not know English and so can not give English test for the Naturalization. Can you suggest me something for him.
Answer: To get an exemption from the English Language test for Naturalization, one must be a resident for the last 20 years and over the age of 50 years or be a resident for 15 years and be over the age of 55 years. If your father qualifies for one of the exceptions stated above, he will be exempt from the English language test.

Relief for Surviving Relatives - Section 204 (I)

Question: I filed for my bother’s petition in 2004 but he passed away in 2013. So does his family (wife and kids) still can come to USA or the file is stopped?

Answer: Unfortunately, the file gets extinguished if the main beneficiary passes away as the derivative beneficiaries would derive their benefit from them. However, an exception to this clause exists if they are in the country in another status. They can pursue eligibility under section 204 (I) – Relief for surviving relatives.

Follow to join requirements

Question: I received my green card in Dec 2016 through the EB1 category. I am married since 2009 (well before I applied for the GC) and my husband is still abroad. Due to personal reasons we could not concurrently file I 485. We would like to proceed with his green card/visa application now. Can we avail the ‘follow-to-join’ or should I go through the normal?

Answer: The follow to join benefits are available to the preference categories if the people were married prior to the spouse approval of the immigrant visa/ permanent residence. By the information provided, you are qualified to apply for the following to join category. It requires petition of I-824 to USCIS followed by the immigrant visa processing at the consulate if the person being sponsored is abroad.

Filing for B1/B2 extension and Adjustment of status for parents

Question: I am a Lawful permanent Resident and have submitted application for my naturalization.I am hoping to get citizenship within 4 month. My parents are here on B1/B2 visa and their stay is valid till June 2017 . I want to file their petition for green card right after I get my citizenship. So do I need to apply for extention of their stay while their petition in in process or Notice of action of petition will be valid to stay without stamping? Please advise.

Answer: Even though you have a plan to file for your parents later, we can not advice you letting them fall out of status on B2. They can get into deportation proceedings, if they are discovered to be here, past the expiration of their I-94. It is advisable to look at the reasons for extensions of the B2 carefully, prior to enable an approval. They may remain here while the extension of B2 is pending. The time you file their adjustment of status has to be examined and should not fall within 60 days of the request for extension of B2.

“Live-in” maids

Question: I would like to apply for a “live-in” maid from Pakistan on a Need Employment Visa. How can I do it?

Answer: Unfortunately there is no specific category set out for “live-in” maids in the employment category. The temporary visas under H2B was previously used but its extremely difficult to get an approval now. The USCIS and DOL does not consider that this kind of workers are not available within this country. You could try for this person under “Skilled Worker EB-3 category” with a permanent job offer and for Pakistan, this may enable the person to come within few years. Please be aware that this is a lengthy, expensive and unpredictable process.

No update on my status after a successful interview

Question: I have an approved H1B visa and I went to India in December 19th, 2016 for stamping. I gave my interview on 23rd and was approved. They said my passport will come in 10 days. After a week when I tracked my passport it showed it is under administrative process and it has been on same status since then. When I tracked my visa it shows no status by consulate. Now I am stuck in India, even missed my flight back since I haven’t got my passport yet. Nobody knows anything about my case and they didn’t give me any white or pink slip at embassy during interview. The officer had said it was approved. What do I need to do now?

Answer: Kindly email the Consulate but our report indicates that the direct question to them are largely unattended to. An inquiry could be raised through the US Travel Docs, where you are tracking your passport to see if this is going through a normal administrative processing for obtaining a visa stamp or it has been subject to a 221G based review and process. The email address to them is passportstatus@ustraveldocs.com. More information is available at http://www.ustraveldocs.com/in/in-main-contactus.asp.

Amendment to end client location

Question: I have an approved H1b petition. In January, my client changed and had to move to a different location. My amendment has been filed and it is in pending status. I have to go to India in February for my marriage. I also need to go for stamping as this is the first time I will be travelling after H1B approval. Can I go for stamping with H1b in pending status?

Answer: An upgrade to the premium processing should be able to resolve the pending status of the amendment filed with USCIS. But before presenting yourself to the Consulate, having the correct end client location approved is a requirement.

PERM filed by company B, working for company A

Question: I am on H1-B visa and my question is, can employer B file my PERM in spite of not being on their payrolls while I still work for employer A. Also what is the processing timings for PERM

Answer: PERM is a permanent offer of employment based on a bona-fide job opportunity, an employer has an option of filing it for a current employee or someone that they intend to hire on a permanent basis in the future. It takes about 4-6 months for the PERM approval.

EAD new rule effective January 17, 2017

Question: I am on EAD/Advance Parole. My actual underlying category is EB2 India. I am on EAD from 2012. I had EAD three times before. I gave for EAD renewal exactly 120 days in advance at the Dallas Service center. Previously I received my EAD within 90 days. I am on 105th day and still didn’t receive my EAD. Contacted USCIS on 95th day and did the service request but they told they are working on it. Also contacted congressman for it last Friday. Do you know how long will it take for me and my wife to get the EAD? Also is there anything I can do about it?

Answer: Under the new EB Modernization Rule effective from January 17th, 2017, a person with timely filed EAD request, receipt of Form I-765 can be used to continue work and USCIS has now pushed the processing times of such EADs to 180 days. The I-9 form, November 14, 2016 version has been updated to reflect this. However, the USCIS in one of their teleconferences stated that this would apply to filings after January 17th, 2017. The dates of your filing leave you unprotected to take advantage of the new rule, so at this time, you will just have to await the processing of your pending EAD.

Children born in Canada, pursuing studies in USA

Question: I am Canadian citizen. I have two boys 16 and 11. I want my children to stay in US and pursue their studies. I talked to public schools in Dallas and enrolled my children in the school. But on the border, I was asked if my children could take student visa. How can I get student visa for them. Please suggest the easiest way out.

Answer: To understand the kind of schools, allowing students to obtain student visa, there is a difference between private school and a public school. The SEVP certified private school can issue student visas. However, a public school cannot issue I-20s for a student visa up until high school.

Multiple amendments and an Extension

Question: I joined new Client in March 2016 and an amendment was filed under regular processing. In August, my company filed an extension and an amendment under premium processing. In my case nothing changed in between two amendments. I am working for the same client at the same location. The extension filed in August is approved but Amendment filed in March is still pending . My questions are: 1) If I go to India for stamping while Amendment filed in March is pending, will that cause any issue in stamping? 2) Both Amendment filed in March and Sep are for same client and location .Will the Amendment filed in March have any effect in case it is denied or RFE is caused?

Answer: You should be okay to go out for stamping on the approved case. Even after you enter and the case gets an RFE, it must be approved or it is possible for USCIS to come by and re open the approved case. An option is to get the previously filed case approved before you step out to avoid any issues with the consulate. In the attorney’s opinion, you should be okay, even if the amendment case is pending.

 

Approval from Company B when Amendment pending with Company A

Question: I worked for a company A and had a valid visa till September 2017. Due to the location change, my employer A applied for H1B amendment. Recently I got an opportunity with Company B and they transferred my visa in premium process. My H1B transfer visa was approved and extended till Aug 2019 along with I-94. Later I got RFE for Company A amendment petition. Then I resigned company A and joined Company B. Will there be any issue If my company A withdraws the Amendment petition?

Answer: Company A can withdraw the amendment by letting the USCIS know that you are no longer with them. Please be aware that if the amendment is not approved, USCIS has an option to revisit the currently approved transfer.

H-1B extension, amendment pending and travel plans

Question: My H-1B visa is getting expired on Nov 3 2016. H-1B amendment was filed on Mar 2 2016 (Still Pending). My H1 extension was filed on June 30 2016. I want to upgrade my extension case in premium. So that based on the approved H1 extension petition my wife can get the stamping done in India and travel to US. Will there be any issues if I file H1 extension in premium when Amendment is still pending? In case my H1 extension gets approved. Can my wife go for stamping based on the extension approval notice ? Assuming amendment is still pending.

Answer: Yes, you can file your extension case in premium processing. USCIS should approve it though they have an option to wait on the approval of the amendment. Please do enclose the amendment’s receipt notice. Your wife can obtain stamping based on this approval of the extension/amendment.

Travelling abroad with pending H-1B amendment

Question: Can I travel to India if my H-1B amendment is still in process?

Answer: If you have a visa that allows you to travel on the H-1B, you can step out and return with a copy of your amendment’s receipt notice, a copy of the contractual agreements and end client support information. You may provide it to CBP, if they ask.

Working less than the H-1B approved hours

Question: My H-1B visa got approved on Oct.04. My employer filed 20 h/w for me, but due to some reasons, I am not able to meet this time frame sometimes. I wondered if we need to file an amendment for it?

Answer: If you are not able to keep up with your promised time or hours on the H-1B, kindly file an amendment. You must do so immediately to avoid accruing time, which shows that you did not comply with the underlying terms of the H-1B. If it is discovered by USCIS, they can move to revoke your case.

Rejection of visitor visa

Question: My mother-in-law’s visit visa was rejected by US Consulate Islamabad. She wanted to come to US to help her daughter with baby delivery and be with us as this will be our first baby. No specific reasons was given for the reason of rejection. We wanted to have a consultation and see what are our options.

Answer: The visitor visa analysis requires the consulate to look in to three prongs – financial ties to the home country of the person applying, the emotional ties to the home country, and reason for the visit, which can not be for any “help” as it is perceived as “work”.

New location within same MSA

Question: My work location as mentioned in my petition is New York but it has changed to Jersey City, which is under the same MSA. So LCA re posting was already done. Now I am planning to go for visa stamping. So I want to know which address to give in my DS160, New York or New Jersey?

Answer: Any time when you go to the consulate, please make sure the address on the I-129 and the actual location matches. I advise an amendment, unless you want to take a chance with the consulate, which can either deny your visa or issue you a 221g.

Applying for Green card when on TPS status

Question: I am from Honduras with TPS. I want to find if I can apply for green card with my job.

Answer: TPS is permission to stay and work in the country but does not give you legal status. If your employer files for a labor certification based on a permanent job offer, than follow it with I-140. You should be able to get these steps approved. For the last step, granting you an adjustment of status, you will be eligible as long as you have maintained status and do not have violations of over 180 days of your non-immigrant status.

Name correction – I-90

Question: I am a Green card holder and recently got my name corrected on the Indian passport. I am planning to file Form I-90 to get a replacement card. How long does it take to receive a new card? Can I travel abroad while the case is pending?

Answer: It can take about 1 year to get I-90 approved. You can travel after obtaining stamping on your passport or some notation on the permanent resident card, which is given at the biometrics. You have to travel with the a copy of your amendment as long as you either have the I-551 stamp on the passport or your permanent resident card is with you.

Change in location without filing H-1B Amendment

Question: My job location was changed on 1st August 2016 from Chicago to New York City. My employer missed filing my LCA H1B amendment. Today is 16th September 2016, it has been around 46 days. What are the consequences if my employer files an H1-B amendment petition now, after 46 days ?

Answer: The Matter of Simeio Solutions LLC has changed the obligations of the petitioner to file an amendment prior to changing the work location of the beneficiary. If discovered, you will be found out of status. I would ask your employer to amend immediately and make it as a consular processing, if the USCIS points out the error. Also, would advise it to be filed under premium processing to resolve the issue within next two weeks.

Calculating residency requirements for US Citizenship

Question: We (me and my wife) got our green card in September 2009. We got an official assignment to India from 2011-2013 (little less than 2 years). Our employer filed for re-entry permit but did not file for N-470. Will the above situation break the continuous residency for citizenship requirements? We have a house in US, paying US taxes when we were in India. When can we apply for US citizenship?

Answer: You should be eligible to apply for citizenship after 4 years of your reentry into the country as long as you have the physical presence in the country and have not broken continuous residency again. The N-470 would have made you eligible earlier. Please confirm the times spent in and out of the country, and have everything reviewed to ascertain the exact time to file.

Last Action Rule

Question: Last year I moved from California to Massachusetts under the same employer. My H-1B amendment was filed on July 2nd 2015, and I filed my H-1B Extension in November 2015 and received it on 25th November(filed in premium). Few days back I received an email from employer that I have to leave to India, as my amendment got approved on 12th Feb. 2016, and that has superseded my I-94 dates, as I have an extended approved petition valid till Sep. 2017, and according to my employer I have to go back to India and get the stamping done on my extension petition. Is it okay?

Answer: I will have to review the file to understand what the employer is saying. But generally speaking, the last action rule does dictate the action on a case. If your case got approved now, without an I 94, you will have to go abroad and return and if you don’t have a visa stamp on the passport, you will have to obtain a visa to return.

Maintain status with pending Adjustment

Question: I am F-1 student. I had applied for green card through my spouse and I received my EAD 2 weeks back. I am currently working on-campus which allows in-state tuition. With my EAD, I have an option of working off campus which means forfeiting my F-1 status. So if I choose to do that would I still be allowed to go to school as per my degree plan since I want to finish my studies as planned. Thank you.

Answer: You are required to maintain your non immigrant status, while you have an adjustment pending under the F2A category. I would not give up yet on the F-1. All the best!

CAP- gap Extention

Question: I am currently in my 1st year of OPT, got the cap-gap extension with my pending H-1B petition. When we filed the H-1B petition in April, I was working for Client-A in location A. We provided all the documentation/agreements between my employer and the vendor company. We couldn’t get the Client letter at that time. Now we got an RFE asking for the Client letter and employee-employer relationship. But, as my project got over with Client-A, I moved out of town (to a different state) and started working for a different client now. We can get all the required documentation from the new Vendor,Client etc. But the old LCA is not valid for the new location. How can we handle this situation? Should I still contact my old Client and get the letter? They may not provide now. Or, should we file a new LCA for the new location and explain our case to USCIS? Please suggest. Thanks.

Answer: USCIS is very tough in this situation. You cannot amend in the middle of the CAP season. This is an issue that continues for a lot of people with contracts. So at this time, no you cannot do a new LCA as that will result in a denial. You have to prove that work exists with the previous client. All the best.

One pending amendment and than one more.

Question: We filed H-1B amendment 2 months ago when I joined a new client and new location. It was filed under regular processing and is still pending in progress. Now my question is I want to change to new client and new location again. So can we file second amendment now? Does it matter if first amendment is denied or approved later on? Please advice.

Answer: To move from from one case to another and than they get stacked up on top of the other, you have to get the one in line before approved and than move to file another case. Or file the second case as an amendment in premium processing, with a request for consular notification, get it approved and reenter the country through a contiguous territory. When filing the second case with consular notification, withdraw the first one. So to answer your question, whatever is pending with the Govt. either has to be resolved or withdrawn.

Manager to Specialized worker

Question: I came to US as a company transfer on L-1A visa as a people manager. If I loose my manager role,
1) will it impact my visa category and do I/my company has to inform legal to update my new role?
2) Will I be able to file my GC application in EB1 category post new role?

Answer: You can not remain on the L-1A and not retain the role that was underlying the qualifying criteria. That is, you cannot go from a Manager to a specialized worker. If you do, the company will have to redo L-1A to L-1B. And you are not eligible for EB1 category based green card.

Visa Stamping post lottery selection

Question: My employer in India filed H-1B application for me and my name is been picked in the lottery. My question is if I am already in US on L-2 visa (on leave, not working currently), is it possible that I can work wef 1st Oct 2016 for the same employer without visiting India for stamping and other related requirements?

Answer: You can start working on H-1B if the H-1B is approved for a change of status. If it is approved for consular processing, then you will either have to step out for stamping, go to contiguous territory and re enter US, using the H-1B approval notice, I-797 or amend the case within the country requesting the action for “change of status”.

L-1A to H-1B

Question: I have Valid L-1A visa valid till 12-August 2016. In Feb 2016 my employer filled my H-1B (non CAP) and it is approved till 30-April 2017 (I also have I-140 approved. When H-1B was approved, my wife was in process to join the company on her L-2 EAD, so I went to Mexico border and re-enter US on L-1A visa.Since it was stamped on my passport. Now after 12th August 2016, I have to come back on H-1B, So do I need to leave country on / before August 12th for stamping or I will automatically move to H-1B after 12th august as I have H-1B I-797A approval.
Also please suggest, since stamping dates are not available in India before October, what should I do?

Answer: One can not work on H-1B if it was filed under the CAP as the H-1B should begin on October 31st, 2016. So from August,2016 to October, 2016, there would be no option to work. A change of status via an amendment can be filed, which will allow you to work on the H-1B from October 1st, 2016, without having to leave the country for stamping.

Spouse visa and Divorce

Question: I came on a spouse visa. I have 2 years of green card. I lived together with my husband for 10 months. But about a month back, he cheated on me and dropped me at my uncle’s home. We have a joint bank account, health insurance and also file taxes together. But now he does not want to share these documents with me. He has also blocked my bank account. I have nothing. He has not filed for divorce. In this case what should i do? Please suggest.

Answer: In this situation, you have two choices…one is to file for a divorce on the fact that the marriage was entered in good faith, and the second is to allege cruelty in the marriage. But please be aware that to establish cruelty, you must have some proof besides your statement, which has to be enclosed in the form of an affidavit.

Visa Stamping post lottery selection

Question: My employer in India filed H-1B application for me and my name is been picked in the lottery. My question is if I am already in US on L-2 visa (on leave, not working currently), is it possible that I can work wef 1st Oct 2016 for the same employer without visiting India for stamping and other related requirements?

Answer: You can start working on H-1B if the H-1B is approved for a change of status. If it is approved for consular processing, then you will either have to step out for stamping, go to contiguous territory and re enter US, using the H-1B approval notice, I-797 or amend the case within the country requesting the action for “change of status”.

Save

Save

Save

Save