H-1B2 FAQs

Monday, November 24, 2014 - 00:00

Cross-Chargeability

Question

I am working on H-1B. This week, I got my I-140 petition approved that was filed in EB2. I am Indian citizen born in India. My marriage is scheduled to happen in Jan, 2015. The girl is citizen of India and was born in Nepal. I have heard that after marriage, I would be eligible to file I-485 for both myself and my (then) wife, based on cross-chargeability rules. <br>
1: Is my eligibility to file I-485 (based on the birth country of wife) and its approval thereafter dependent on discretion of USCIS? If yes, does USCIS generally approve or deny such I-485 petitions filed on the basis of cross chargeability rules? <br>
2: Is there any reason due to which my wife and I would be denied from filing I-485 and there-after getting an approval of I-485 (leaving aside fraud matters)? <br>
3: My fiancée is yet to get her passport made in India. I found that my fiancée does not have her birth certificate from Nepal. Is a birth certificate the only way to prove location of birth? If she gets her birth certificate made now, Does the USCIS create issues about a birth certificate made so many years after birth? <br>
4: In my scenario (EB2 petition, primary applicant India born, wife Nepal born Indian citizen), How long (approximately) after filing I-485 would it take to get the green card?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 
https://www.youtube.com/watch?v=ujMQ79pgzX8

FAQ Transcript

Here is the situation. What is Cross-Chargeability? Let me explain. Normally when we do analysis which country quota do you belong to for your employment based Green Cards we go by your country of birth. If you are born in India and you are citizen of Japan, you are still going to be charge to India not Japan. If however, your wife is born in third country in Japan you are born in India but your wife is born in Japan, you can be charge to Japan that is called Cross Charge-ability. That is very useful thing to have, because all of sudden from a heavily backed up country you go to country where dates are current. 
So the problem is she is born in Nepal but does not have the birth certificate. Before I go to the birth certificate question, let me go one by one. First is, does USCIS have discretion to deny such cases? Or do they have to give me the Cross charge-ability? The answer is they have to give the cross chargeability. This is not the question of discretion; they are not doing any favors. Once you meet the requirements and you can prove it you are entitled to your cross charge-ability. You cannot be denied your I-485 for this reason.
Now, she does not have the birth certificate from Nepal. Birth certificate is the only way to prove the location of birth, it gets tricky. In normal circumstances if you don't have a birth certificate what you will do is you will get a certificate of non availability from the village Panchayat or Municipal corporation where she is born saying that her birth is never recorded. Then you will get two affidavits from people like her parents, who say that we know that she is born on this date, this place. In areas of cross charge-ability USCIS may require further evidence. It can be any evidence about where she lived in Nepal, things like that but if you try to register her birth now that's not going to happen.
So if you do go through the cross charge-ability and your dates are “current” typically your Green Card should be done within a year.

Friday, November 14, 2014 - 11:40

Immigration Impact of Crimes, Misdemeanor Conviction and Petty Offense Exception

Question

In 2008 while I was working in gas station I was caught selling alcohol to minor. I was in student visa at that time and was getting paid in cash. This was unauthorized work. I was not arrested but went to the court and the final verdict of case came to attempt to sell alcohol to minor which falls into misdemeanor C. Right now I am in H-1B and I have filed my green card through my employment. My Labor and I-140 is approved and waiting for my PD date to be current to apply I-485. So what are my chances to get I-485 approved having that case in my past? I have got mixed answers from the attorneys I have contacted so far. Some said I should be fine and some said if USCIS ask about my work authorization at that time then my petition will be denied due to violating my F-1 status. Please let me know what you think. Will USCIS go further to ask that since you are selling alcohol on F-1, then you must have violated immigration law by being employed without work authorization?

Answer

Video URL

 

Friday, November 14, 2014 - 11:24

Filing Amendment For Pending H-1B Petition

Question

My wife came to US on H-4 initially and applied for H-1B. She has got RFE asking for more project details. She got one job offer meanwhile and her employer replied for RFE also filed separate Amendment petition with new job offer details. We have got approval for H-1B without I-94 details. Shall we expect I-94 once the Amendment process is approved?

Answer

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

https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2384

 

FAQ Transcript

This FAQ is on “filing amendment for pending H-1B petitions”.  

Let me explain to you, what the problem is.  Let’s say I apply H-1B for myself and I am going to work for IBM as the end client. When we filed the case suddenly in 3 months my client changes now I am going to work with Sun Micro systems. Can I file amendment in midstream and the answer is very problematic.

Normally, USCIS they used to be OK until a year ago.  Last year or so USCIS have been saying if your situation changes while the case is pending, we will not accept the change. You have to file H-1 again and if you are out of status you have to go outside USA for visa stamping.

See in your spouse’s case there is little bit of a better situation. In that she is still on H-4 maintaining status. They applied for amendment separately, it might work. If she is a quota case that becomes another problem because if first case is not approved tenth amendment cannot be approved, just keep that in mind. 

 

 

Friday, April 3, 2009 - 01:00

Are H-1 holders being turned back at the airport?

Question

This is the buzz going around in techie town. If you have already heard it then pl. ignore if not this is interesting.

A techie based of Jersey goes to India to visit his family recently. Techie is assumed have lived in the US for quite some time. He is currently working on his work permit as an alien worker. Techie also has a temporary un-approved/un-guaranteed green card called the EAD.

While re entering an immi-officer that if they can call his manager. Techie then hands all the contact information. Officer gives him a call and asks if they really need a H1B worker for his position. Officer also ensures if the H1B possesses exceptional skills. Manager replies back with a YES!

Officer then calls an office that could tell how many citizens posses the same skill and are unemployed. Officer is told numerous unemployed. Officer now decides to send the techie back. Techie then pleads that he has a house on mortage, a car out of a loan. He needs time to return. Officer then grants him a month on a visiting visa. Techie once again pleads and successfully bargains a 3 month on a visitor visa to return back.

Answer

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.