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As of 27 April 2012 count, USCIS has received 29,200 regular cap H-1 B petitions and 12,300 advanced degree H-1B petitions. These numbers are considerably higher than the ones we saw at this time in the fiscal years 2011 and 2012 (we are now in FY 2013).
Hello, everyone. This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.
I am very pleased to report this morning that I saw a news report from USCIS Nebraska Service Center teleconference on April 12, 2012, that clarified you can carry forward the Priority Date from one I-140 approval to another 1-140 approval for another employer, even if the old employer revokes the I-140. USCIS has flip-flopped on this issue several times.
Let me first bring you to the news. Right here it says. If you look at the question number two. The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation. So the idea here is this: even if you go from Employer A to Employer B, and Employer A revokes the I-140 approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.
The history of this interpretation is strange. A few years ago, this was the position. USCIS always said you can carry the Priority Date forward. A couple of years ago, they started saying, “No, you cannot.” We had several cases in which they raised this issue, so anybody who has had this issue decided against them can actually go back and file a motion to reopen/reconsider. I advise you to think about this very carefully. You could actually go back and ask USCIS for the Priority Date to be carried forward if they had earlier denied it. There’s a whole lot of people who went through this. File a motion to reconsider. Then USCIS started saying, “Well, you cannot do it.”
Now they are back to their old, very good interpretation, which is in line with Congressional intention for AC-21, where Congress wanted to create room for people to leave their jobs and move on to other jobs because Green Cards were taking so long. So Congress said, “We’ll put in AC-21.” That will make it easier for employees to change jobs without losing their Green Card benefits.
This is excellent news, folks. Once again, I am summarizing it for you. You can carry your Priority Date forward, even if the old I-140 is revoked, unless the I-140 is revoked for some fraud or some willful misinterpretation.
One more thing I wanted to add. This is not good for H-1. Don’t think that if the I-140 is revoked, you can still use it for H-1 extensions. You cannot. If you want H-1 extensions beyond six years, you’ve got to have something else going. You cannot rely on the revoked I-140.
That’s all I have to say on this issue. I will speak with you folks soon.
Thank you for listening.
Transcript: Working Outside USA While in Green Card or H-1 Process
April 17, 2012
Hello, everyone. This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.
I have in front of me a couple of questions from two different people. They’re related so I thought I would club them together. The basic idea is this:
Can I, as an H-1 holder or as Green Card pending status individual, work outside USA instead of being inside USA?
I am just going to do a quick talk on the implications of a person working outside USA while he or she is an H-1 or a Green Card applicant.
The first question relates to somebody who has an EB-3 Green Card pending. As you know, that’s a decade-long wait. So, people have to make some plans about their lives.
So this gentleman says, actually, he’s one of our clients, both myself and my wife are working on EAD and traveling on Advanced Parole. So they have got an I-485 pending but they are EB-3. He is the primary. She is the dependent. The wife wants to move to India for longer than one year and is planning to come back before her EAD gets expired.
First of all, is this okay? Yes, of course. As long your Advanced Parole is alive, EAD doesn’t matter if you are working outside USA with I-485 pending. Only thing we care about is your Advanced Parole or your H-1 visa. Under the circumstances, I would recommend Advanced Parole. Keep it active. Keep it alive. For a derivative, there is absolutely no problem if they are working outside USA. If you are the primary applicant for an I-485, things could be a little different. Now, what happens is that there’s a decision tree.
You can have two situations. One, you are still working for your Green Card sponsoring employer, but you’re working outside USA. The second situation is you’re working outside USA for somebody other than your sponsoring employer. What happens then? There is nothing illegal about it. Both of these situations are allowed. But there is a common sense rule here. The government could say, “Why is it if you have a permanent job in USA, your sponsoring employer can get the job done without you?” Now, there could be many reasons for this. One of the reasons could be the nature of the job is such that could be done anywhere for the time being. So the employer is willing to accommodate you. But, whatever the reasons are, be prepared to be sensitive to that question. Is there really a job? They can ask you that. The idea is that you could be working from anywhere. That is not the main issue here. The most important thing here is that there should be a good explanation that you have a job in USA that is ready and open for you.
One of the issues here is keep in mind that certain technologies don’t allow people from outside USA to work. Most people don’t know that. I think there is some restriction, for example, on encryption technology. I think certain encryption technology is considered weapons grade. Just look into that.
Otherwise, just ordinary commercial jobs, ordinary software development, ordinary financial consulting, can be done from anywhere. That is not an issue. Remember whether or not you have proper work authorization in USA. This is very important to also keep in mind. For example, if you are working from, for example, India, it is not required that you have proper work authorization in USA. I don’t care if you have an EAD. That’s perfectly legal. You are working on Indian soil, not on American soil. I don’t care if you have an EAD. I don’t care if you have an H-1. And that will bring me to my next question in a minute or two.
It also does not matter whether you come to USA periodically or not, as long as the job is alive and well and waiting for you, you should be okay. For the primary and the derivative. For the derivative, it is absolutely no problem. Her job is not implicated at all. She can work from anywhere. But, for the primary applicant, this idea that job is still there and waiting has to be kept in mind. And don’t make things up, guys. We’ve to be truthful about this.
The same situation for H-1 people. I’ve got people who go to India or go to their home countries and get stuck in long, long adversarial processes that go on to three months, four months, five months, six months. What should they do? If you can get your job outsourced and you can work from your home country while the H-1 process is going on, it’s absolutely no problem. You can continue working. Now there can be tax aspects that you’ve got to figure out with your CPA’s. How you do you get paid? Where do you pay taxes? Things like that. But those are tax issues and they can be figured out. People do it all the time. In fact, our own office has a couple of employees from other countries. I don’t think that’s a problem. That can be worked out.
The more important question--What is the impact on my H-1?
For example, I am outside USA for more than one year. What happens to your H-1 is that, after one year outside USA, you can reset the clock and have six years of H-1 all over again, or you can go with something like a remainder option. It’s called the remainder option. I’ll explain the rule in a minute. The idea here is this. If you are outside USA for more than one year, you get six years of H-1 back, but then you are subject to the H-1 quota. If you’re outside, good news is six years back. Bad news is quota. If you don’t want to be subject to the quota, you have to give up your right to six years of H-1 and take whatever is remaining in your H-1 six years initially. That’s called the remainder option. Those are the choices you have. There is nothing wrong in working outside USA.
Bear in mind these principals. If a primary applicant, make sure there’s a job available. If a derivative on an I-485, work from anywhere. No problem. If on H-1, you can outsource the job. You can work from anywhere in the world. Doesn’t matter where you are. The only thing is, at some point, if it’s more than one year outside USA, you have to make a choice of either a remainder or resetting the clock and being subject to the quota.
I hope that explains things adequately, guys. As always, it’s good talking with you. I will speak with you folks soon.
USCIS estimates that as as of 9 April 2012, approximately 25,600 H-B cases had been receipted. Out of these petitions, 17,400 are for bachelor's degree and 8,200 for for people with advanced degrees. These numbers are considerable hire than the last year's at this time.
USCIS has indicated that 22,323 cap-subject H-1B petitions had been received as of April 4, 2012. Approximately one quarter (1/4) of these cases are for advanced degrees. According to USCIS, the number of filings received is almost double the number of filings received by USCIS during the same time last year. It would appear that H-1B numbers are likely to get exhausted a lot earlier than last year.
The current prediction that the priority dates for employment based green card applications are likely to retrogress again has brought a lot of speculation and questions from our clients and our community. Let me clarify some of the questions and concerns.
Q. What happens if my priority date ('PD') retrogresses while my I-485 is still pending?
Topic: Accreditation of Distance Education in USA
Date: March 12, 2012
Total Time: 2 mintues 40 seconds
Hello, everyone. This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.
A number of people have asked me this question in the last few days about how do they tell, if they finish a masters degree online through distance education in the U.S., how do they know if the degree is accredited?
I have looked into this issue because it became such a big issue for people, especially those who are born in countries where EB-3 is very backed up and EB-2 is a much better option.
So I did some review. This is the best of my knowledge. I am not an expert in accreditations, but what I see is this. On the screen in front of you, you see this page where they talk about accrediting agencies recognized for distance education and correspondence education.
This is a page on the Department of Education website.
http://www2.ed.gov/admins/finaid/accred/accreditation_pg10.html
Let me backtrack for a second.
First thing you do is ask the school where you want to go whether the particular program you want to do is accredited and, if so, who accredits it. In other words, the accreditation agency that is accrediting it. Get the name, and see if that name appears on this list right here.
Sometimes a particular program or a particular degree might be accredited, but not the whole school, and sometimes vice versa. So be careful--make sure that particular program is covered by the accreditation.
Good luck to you folks and if you have further questions, log in to the community conference call or we can talk a little bit on the blog itself.
Using "Advanced Search" on Immigration.Com
Hello, everyone. This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.
I wanted to show you the “Advanced Search” feature on immigration.com. I enjoy it because it does focus your search considerably. We have a lot of information. It can be hard to parse through the information.
Every day we do something new and try to get better and better and better. I still have a lot of work to do on the website. The team has a lot of work to do on the website. But we have enough information at least to get you going and keep you in the right direction.
Let me start with the “Advanced Search” feature.
If you press on the “Search” button with nothing in it, just search. It brings you to this button, where you have “Advanced Search.” So you go into “Advanced Search.” The top portion is “Search,” but the bottom portion is “Advanced Search.” Click on “Advanced Search.”
You can search by putting in a search term which contains any of the words, contains a specific phrase, for example, “Adjustment of Status”--that phrase should be there; or containing none of the words. Some words you may not want.
I particularly like the fact that you can search in particular categories. These are categories, which are like tags. When you have tags, like a tag cloud. So these categories that are much more specific. And then, on top of that, you have types. There are content types. For example, let’s say I want to know if there’s a Community Story—you know, people’s experience. We tried to data mine some of these from our own forums.
If there’s a particular Community Story for citizenship. Find and click on the category, “Citizenship” under “Citizenship and Naturalization.” I know what specific story we’re looking for. Let’s put in the word “Detroit.” So I want somebody’s Community Story of what happened during Citizenship/Naturalization in Detroit.
And, after that, when I hit the “Advanced Search” button, I’m led right to the story, “Interview in Detroit.” This is somebody’s story about what happened in Detroit.
Another neat thing that we have is that, if you look at the bottom, we have these tags dimmed. The reason they are dimmed is because I’m not quite happy with the way we have cross-referenced information. But this is just the beginning. I’ve been doing this for the last several years. I’m still not happy, and we’re going to do more, a lot more, making information easily accessible to all of you.
So, let’s look at this. If I click on one of these tags, it will actually bring up the content, all the content, that has been tagged with that particular tag. So, if you look at this, all the particular content that has been tagged. If I look at any content. Let’s say, for example, if I go to “H-1.” I click on “Work Visa,” I go to “H Visa,” and I go to “H Visas for Nurses,” for example. If there’s any tags at the bottom of this and there should be. There’s not going to be a lot of information, but whatever information that we have will be all there for you. Every piece of information that was tagged with that came up.
So, I think this should help you find your way around immigration.com. And I love doing this, and I thank you for being here.