EAD (AOS) FAQs

Doing business on AOS EAD and on H-4 EAD/extension

Authored on: Fri, 03/26/2021 - 09:59

Question

1. I know, someone on EAD based on AOS waiting for I-485 approval must produce a valid job offer (Supplement J) during GC interview. Once the person update work status as EAD on Form I9, then the legal status will become EAD based on AOS. Can the person start a business/startup while on EAD with pending I-485? If yes, should the person notify USCIS about it? Does Form I9 need to submitted for starting/running a business/startup?

2. I know, someone on H4 EAD can he start a business? 
 

Answer

Video URL

Filing Supplement J, staying without work on EAD, H-1B denial effect on I-485

Authored on: Wed, 02/10/2021 - 08:08

Question

I am currently on H1-B visa (valid until Dec 2021) and my Priority date is May 15, 2010, in EB2. I am working for employer A and I have recently applied for I-485/AOS in Oct 2020. Both EAD/AP are not approved yet and haven't received biometrics notice yet from USCIS. Kindly see below questions and advise.<br>

1) If I change to employer B after 180 days of filing I-485, how would USCIS know that I changed my employer if I do not file new I-485 J that's given by employer B?
<br>
2 After getting EAD, can I stay without working for a few months? Is there a regulation that says that employment based I-485 applicant needs to work continuously after obtaining EAD?
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3) I am working for a consultancy company and recently changed my client who is not within 50-mile radius of the existing MSA. My current employer A is not planning to file H1-B amendment. In this case, if there is a site visit by USCIS officer and if they revoke H1-B, then am I still considered to be in legal status because I already applied for I-485 in Oct 2020? Am I safe to stay legally in USA in this scenario even though I did not receive EAD based on AOS?
<br>
4) If H1B amendment/extension of an employee gets denied after filing AOS/I-485, is the employee still considered as in-status because of pending I-485?

Answer

Watch the Video on this FAQ:

Filing Supplement J, staying without work on EAD, H-1B denial effect on I-485


Video Transcript

1. Usually if you do an H-1B transfer or if the I-140 is revoked that becomes their source of knowledge.

2. Absolutely, the regulations only require that when asked, you should be able to produce an offer of employment for the same or similar job and file Supplement J. This is only when asked.

3. If you have a I-485 pending you are always allowed to stay in the United States, but make sure that you have an EAD.

4. Normally an H-1B denial has no effect on the Adjustment of Status I-485. 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.

I-485 AOS filed - Maintaining H-1B status after getting EAD/Changing jobs after I-485/Being unemployed/Start own business, etc. (Filed for I-485, EAD, AP along with EB-2 to EB-3 I-140 downgrade)

Authored on: Fri, 01/29/2021 - 08:47

Question

I have filed for I-485,EAD,AP along with EB2 to EB3 I-140 downgrade in October 2020. Got the receipt notices.
1)After 6 months of I-140 approval & I-485 pending with USCIS. Once if I switch job to new employer and use my EAD,AP. Should I have to ever come back to my employer (who sponsored my green card)before I receive green card or after I receive green card for any duration of time anytime?
2)What happens if I stay unemployed after using EAD for some days before I receive the green card? Is my I-485 automatically denied?
3)Is it possible for me to go back to EB2 line with same employer if I start using EAD and AP based on EB3 downgrade I receive?
4)Is it possible to start a company on my own using my EAD and work for my own company till I receive green card? If yes, then say I am working project to project basis consulting do I need to file any other documentation?
5)Why do people maintain H1B status even after getting EAD. Only risk I understand is I-485 denial. But if everything is clean and clear with respect to I-485 why do candidate needs to keep maintaining H1-B visa.
6)What are the risks for EAD and AP renewal. Does the candidate need to prove anything related to job/salary etc any time for renewing EAD and AP each time till I get green card.

Eligibility for and the process of EB-3 to EB-2 Porting

Authored on: Wed, 01/06/2021 - 06:24

Question

Can you talk about this upgrade process from EB3 to EB2 for pending I-485? Does it need another I-485 application or just a letter to USCIS?

Answer

Watch the Video on this FAQ: Eligibility for and the process of EB-3 to EB-2 Porting

Video Transcript

You can always go up and you can always go down as long as your PERM was filed as an EB-2. If you filed your PRM as an EB-3 then you're not going to be able to upgrade to EB-2. But if your PERM was filed as an EB-2 you can downgrade I-140 EB-3. You can go back upgrade to EB-2 if you already have an EB-2 approval. You can file a downgrade second case as EB-3 with the same PERM. 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.

National Interest Waiver (NIW) Filing When Priority Date is Not Current

Authored on: Thu, 02/22/2018 - 02:27

Question

I am a staff in University of Pittsburgh and still have 3 more years to complete 6 yrs of my H1B. H1B sponsorship is an issue for me getting a new job.<br>

1) When I apply for a NIW -EB2, can I simultaneously apply for I140, EAD, 485 simultaneously?
<br>
2) Although the green card date for Indians with EB2 is not current, can USCIS approve my EAD much earlier ( may be within a year) compared to approving 485 which might take several years?
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3) Further can I use that approved EAD to change jobs by bypassing H1B sponsorship?

Answer

Watch the Video on this FAQ: National interest waiver (NIW) filing when priority date is not current

Video Transcript

1. No because the dates are not current. If your country of birth is India you cannot file them together.

2. No because you can't get I-485 filed.

3. Remember NIW is not bound to a particular job except for physicians. Doctors are different, but NIW for non physician employment is not tied to a particular position you can change jobs as many times as you like as long as you are still working in the area of 'intrinsic merit'  which is the basis of your filing. 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.

Can we Open a Company While on EAD?

Authored on: Tue, 11/28/2017 - 07:36

Question

1. I recently filed I-140 under EB1 as I am on L1A, my spouse is on L2-EAD, can I open a company on my spouse name?<br>

2. When I file my I-485 do I have to provide any documents (W2, Tax Returns) related to my spouse company?<br>
3. As USCIS has announced In person interview from 10/01/2017, what kind of questions can I anticipate if I open a new company?

Answer

Watch the Video on this FAQ: Can we open a company while on EAD? What kind of questions/documents will be needed in the I-485 AOS interview?

Video Transcript

1. You cannot open a company in your spouse's name. It would be illegal if you do business through your spouse. But if your spouse wants to do business he or she can. So there is a shade of distinction between what you said. Can I do business through my spouse and the answer is "no" and can my spouse do business the answer is "yes".

2. Yes, you will need to provide copies of all your documents and it is not necessary that she gets a W2 if she's getting a distribution instead of a salary that's fine.

3. First of all, I don't think if the company is not yours and is your wife's and you have nothing to do with it, then you have no questions about it, your wife will have to answer questions about what kind of company etc... 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.

I-485 Applicant Holding Multiple Jobs On EAD

Authored on: Tue, 08/22/2017 - 06:33

Question

1. In respect to the above, Case: I-485 pending since 4 years. Did not renew H1B as using EAD/AP. Can a primary applicant on Green card have multiple jobs on EAD ? More than one W2's simultaneous.<br>
Employer A (original) - Filed Green Card<br>
Employer B (temporary) - New Employer<br>
Work for both Employer A & Employer B.<br>
2. Is it important to have a continued pay stub from Employer A (original company)? Can I work for Employer B for few months and then work back for Employer A? Will there be any problem during final Adjudication?

Answer

Watch Video on this FAQ: I-485 applicant holding multiple jobs on EAD

Video Transcript

1. If you qualify under AC21 that is same or similar to the offered job under the green card or if you are going through the green card sponsoring employer, you will maintain that job. So, if you are currently maintaining that job full time and doing all other jobs at the same time or you intend to return back to that job when your green card is approved you can actually have simultaneous jobs with several different employers.

2. A green card is based upon a job offer which could be present or future. So for example, if you are working for employer A it can be a job offer for a present job or they could be offering you a promoted position. 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.

New Regulations, Effect on Layoff after I-140 Approval

Authored on: Thu, 07/27/2017 - 05:56

Question

1. I have I-140 approved and its more than 6 months over. My priority date is March 2011 under EB2. At this situation, if my current employer lay me off from work, what immediate step I need to do, in order to legally stay in the USA. ( Do I need to contact my lawyer to change my H1B visa status and my family status to Tourist visa or Can I change my status online or what is the option?). <br>
2) With the new I-140 EAD regulations effective Jan 17th 2017 in place, am I eligible to apply for EAD using "Compelling circumstances EAD", if my company laid me off? As of July dates for filing for EB2 visa application is 01FEB09 , which is more than 2 years wait time for my dates to be current.

Answer

Watch Video on this FAQ: New regulations, effect on layoff after I-140 approval

Video Transcript

1. Having an I-140 approval that stayed in existence for 180 days does not protect your current status by itself so with the new rule you've got that 60 day grace period to file for an H-1 or any other kind of change of status after the layoff so you have got that 60 day grace period you could try applying for a tourist visa if nothing else works out.

2. Yes. You can use Compelling Circumstances EAD. See my blog for more details.

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.

Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Authored on: Fri, 06/09/2017 - 02:51

Question

Planning to change my employer. Priority Date: Sept 2014 (EB2). H1: on my 5th Year (Filed for an extension it is currently in process). My plan is to change my employer once my extension is approved but I have the following questions. I am 100% sure my employer is going to withdraw my I-140. How is my H1 transfer going to work?

Answer

Watch the Video on this FAQ: Changing employers after I-140 approval; impact on H-1, green card, H-4 EAD, etc.

Video Transcript

First of all the moment, your I-140 is approved no matter which category EB-1 or EB-2, the Priority Date is yours to keep that means if you got your green card filed in let's say 2017 and you left this employer after the I-140 approval, they revoked your I-140 and you started another green card in 2020 your Priority Date will be still 2017 because your I-140 was approved. So the moment the I-140 was approved the Priority Date becomes your property and it can be carried across categories, across employers, and across geographical areas. So if you go from a PERM filing in New York to an employer in California and your previous filing was EB-3 next filing is EB2 or even EB-1 you can carry the date of the work petition as long as the I-140 was approved. The moment the I-140 is approved, the Priority Date is yours.

There are limited exceptions unless the I-140 is revoked for fraud, etc., by the USCIS. Even if the employer revokes the I-140 you will keep your Priority Date. In addition to that, if the I-140 gets approved and stays approved for 180 days you will not only carry your Priority Date you will carry your right to extend your H-1 through any employer indefinitely. You will get a second benefit after 180 days and if the lawyer revokes the I-140 you will still get the benefit of both Priority Date and the right to extend your H-1 through any employer. The government has also said if you have an H-4 EAD for your spouse, your I-40 stayed approved for 180 days your wife's or your husband's H-4 EAD is safe even if the old employer revokes the I-140 later on as long as the I-140 stayed approved for 180 days. So if you left but the I-140 stayed approved for 180 days H-4 EAD is safe. That, in a nutshell, is the general law. 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.

The Proposed I-140 EAD Rule - FAQ's

Authored on: Mon, 01/11/2016 - 07:23

Question

Answer

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

Inter- Country adoption by Indian couple on EAD

Authored on: Wed, 10/28/2015 - 04:32

Question

I have been in the US for about 10 years with my wife and a daughter. All of us are Indian passport holder and got EAD/AP. Can you please let me know if we can adopt a child from India through Inter-Country adoption process?

Answer

If you are not a US citizen, you need to adopt the child and then to possess custody of the child for 2 years (as far as I remember). Then the child can come here on H-4 or a derivative green card. 

October 2015 Visa Bulletin Confusion FAQ's

Authored on: Thu, 10/08/2015 - 01:23

Question

FAQ's Updated on 21 September 2015

Answer

FAQ's Updated on 21 September 2015 

FAQ 1. I am on the H-1B visa and my spouse on F-1. When my Priority date is eligible is it ok to apply for I-485 for me and my wife given she is on F1 or she has to be on H4 before we can apply for i485? If it is ok to apply with her F1 status, are there any possibilities that she can have issues in the future if she wants to get back to H-4 with a ending I-485?

Answer: The law does NOT require that the spouse be on a derivative visa (like H-4 or L-2, if you are on H-1 or L-1) to file AOS through you. BUT, F-1 presents some potential issues that should be discussed with the school. 

FAQ 2. My sincere thanks for your service. I had one quick question. I am on consular processing currently outside USA. My priority date is July 2010. My application is with NVC (National Visa Center). Do I need to submit my paper work for EAD, will I be eligible EAD ?

Answer: You need to wait till NVC asks for papers, and no EAD, sorry.

 FAQ 3. Do you anticipate any date movement of the new date for I-485 eligibility for EB2 India? Also, are there any chances that this date will also retrogress?

Answer: I think dates are likely to move in both directions: retrogression as well as advancement.

FAQ 4. I filed for my 1-485 concurrently before I got married, now as per the new set of dates. In the October visa bulletin, I am eligible for filing Employment based visa application. Can I add my wife (who is currently on H4) to my application, after 1st Oct,15? Or do I need to wait for a notification before doing so?

Answer: Ideally, wait till receipt. You have all of October to file AOS.

FAQ  5. I have been waiting last 6 yrs and recently I booked h1b stamping interview at Hyderabad thinking that dates won’t move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AD, AP how long does it take? Not sure should I go for stamping or should i wait for few months. 

Asnwer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

 


 

  

 

FAQ's Updated on 14 September 2015 

FAQ 1. My PD is December 2010. Will file for I-485 next month. My wife is travelling to India on Sept 26. Is it OK to add her while she is travelling (technically she will be in India next month). If not, she will come back March 2016. Can I file for her later and file only mine next month? 

Answer: She has to be in the USA when 485 is received by USCIS.

FAQ 2. From the USCIS point it seems that this bulletin was the last action item on Obama executive order for Empl based immigration,please let us know what do you think?

Answer: I think there should be more. An explanation of promotion not being fatal to an employment-based green card, etc.

FAQ 3. My priority date is April 2013. I left the previous employer and he revocked my approved I-140 . I got copy of approved I-140 and revocation letter from USCIS . When my current company will file I -140 , will I able to retain my old priority date ?

Answer: No. The current thinking of the USCIS is that you will lose your PD. I am sorry. 

FAQ 4. My Priority date is Jan2011 (EB2) and it is current now and it is with company A. Now I have moved to company B and they are in the process of filing Perm. And my previous I-140 is not withdrawn by company A. So my question is can we apply for I-485 based on company A's I-140 approval without even involving company A and then after 180 days can we use AC21 and port to company B. At this point i cant leave job at Company B since it is Fulltime. Please advice.

Answer: You must not file I-485 without a genuine job offer from the I-140 sponsoring employer.

FAQ 5. My Priority date under EB2 is June 9, 2011 with my Old Employer and my I-140 was approved on March 7, 2012 and stayed with that company till Nov 2014 and in dec 2014 moved to a new company, Can I file for I-1485, EAD and AP on October 1, 2015 and my Old Employer is ready to give offer letter and here I see you have mentioned to Mr. Pavan that you can only apply AOS, does it mean Adjustment of Status which Includes filing of I-1485 along with EAD and AP or only I485 ? 

Answer: If you are entitled to file I-485, you are ALSO entitled to file AP and EAD.

FAQ 6. Perhaps a mute point - but promised myself I will have this clarified by you. My priority date is in May 2011 - but that PERM and I140 are from previous employer. Current employer hasn't filed PERM yet (it's a non-profit org and things move slow I guess). My spouse has her PERM and i140 (priority date in 2014) from her current employer.

1) Can I use my previous employers i140 to file i485?

2) Can my wife use my PD and file for i485? 

Answer: 1. Only if you have a genuine job offer letter from previous employer.

2. No. 

FAQ 7. Hi, my priority date is April'2011 in EB2 and based on recent employee based priority date for EAD, my date is become current. I am going to India on October 29th. I am planning to file 485 and then leave for vacation. Will that be a problem, kindly sugget.

Answer: Travel after filing I-485 is a problem only if you do not have a valid H-1 visa stamp.

FAQ 8. Can new employer re capture OLB priority date in case old employer revocked approved I 140 ? 

Answer: A revoked I-140 takes away the PD.

FAQ 9. There is I-140 EAD petition blog(regradless of any categories) is going on through out many website. Is it going to get approved this year that all approved I-140 folks are eligible for EAD? Do you have any insight on this? may be this could be scam? 

Answer: That was the original plan of Obama Admin: when you file 140 (or 140 is already approved), you can filed 485 without waiting for PD. But that plan has not been implemented so far. 

FAQ 10. What I understand from the news on the Visa Bulletin is that we (Indians) can only file for AOS under EB2 category if the PD is before 1st July 2011. But even if the PD is before 1st July 2011, the I-485 will ONLY be processed/approved until the Priority date becomes current (which is May 2005). Am I right? 

Answer: A green card will be approved only if a visa number is available. EVERYTHING you see in the visa bulletin is an estimate.




 

FAQ'S as of September 10, 2015 

FAQ 1. My husband has his priority date Dec 2012. As per the new changes in VB , which might have progressive dates every month, Any idea how long it might take to reach to Dec 2012 ? 

Answer: I am not sure if this will be repeated every month and how will the movement continue.

FAQ 2. I have been waiting last 6 yrs and recently I booked H-1B stamping interview at Hyderabad thinking that dates wont move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AP how long does it take? I am sure should I go for stamping or should I wait for few months.

Answer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

FAQ 3. I have prior approved valid I-140 with previous employers with Sep-2010 as PD and my current employer has applied LC and waiting for approval. Can I apply for EAD with the previous employer I-140.

Answer: You can only apply for AOS if the old employer, in good faith, can provide you an offer of employment.

 

 

 

 

Using Obama's Immigration Action to Apply for AOS/EAD

Authored on: Fri, 01/09/2015 - 15:56

Question

I am in L-2 Visa with an approved I-140 from my employer with a priority date of August 2012. My H-1B applications never got picked up in the lottery. My husband's 7 years of L-1A comes to an end in March 2015. So we have to go back to India. My question is, if with Obama's immigration action develops and a possibility occurs for allowing approved I-140 petitioners to apply for I-485 and EAD, what is the process for me to get an EAD while I am in India and how can I come back to US using the approved I-140?

Answer

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

https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

FAQ Transcript

Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.

Immigration Impact of Crimes, Misdemeanor Conviction and Petty Offense Exception

Authored on: Fri, 11/14/2014 - 11:40

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

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

https://www.youtube.com/watch?v=xp4B1_qhvtM#t=2538

 

FAQ Transcript

If you have criminal conviction, lot of times you can have criminal convictions for minor problems for example you got into altercation with somebody  or some kind of public nuisance conviction, in  this  case selling alcohol to minor did not check the ID. So the question is how does that impact my immigration status?

First of all, there are 2 categories of crimes misdemeanors and felonies. Felonies are anything which are punishable don't have to receive that punishment but punishable by more than a year. They are more serious crime and other is misdemeanor is year or less than a year.

So we look at the crime is misdemeanor or it is a felony, then we look whether there is moral turpitude or not. Moral turpitude is the term for dishonesty, reckless, disregard or safety of other people or attack on other people. So these are typically they call them offenses of moral turpitude. So if there is moral turpitude and there is felony chances are, you got the problem. But if there is only one misdemeanor even if it’s turpitude crime it is exempted by something called Petty offense exception. Petty offense exception says if you have only one misdemeanor and the sentence actually imposed upon you was less than 6 months, whether you actually served it or not. Even if it’s a suspended sentence it is considered to be sentence than we leave you alone, give you H-1, F-1 or Green card so petty offense exception. So once again we look at the crime if it is a crime of moral turpitude or not, if it’s not chances are you are going to be OK. If it’s a Felony of moral turpitude you have a problem. If it is only one crime misdemeanor you don't have problem, very generic overview.

Normally when I look into these cases, first thing I do is try to see if we get away from conviction. So if we get the case settled with the government, plea bargain entered without the conviction. 

What is conviction under Immigration law?

A conviction under immigration law is where you admit having committed the offense. If you have to admit the offense then it is conviction, no matter what kind of deal we make. First of all we try to get away from conviction, if there is no conviction there is no crime. If we can do that then we are safe. If we are not able to do so we bargain for misdemeanor. That’s the way typically we handle these cases. . Make sure it is misdemeanor under the state law. You say that it is misdemeanor C. I don't know what that means. State law has to be checked. But it looks that you are going to be OK.